In the given scenario, Whisky and Double (Rocks) were travelling in Zimbabwe when the accident occurred. Whisky was negligent in driving, resulting in Rocks being seriously injured. According to Zimbabwean legislation, passengers being transported free of charge do not have a claim against a negligent driver in the event of a motor vehicle accident.
Based on the discussion in the text, it is important to consider the appropriate rule to be applied in this situation. The lex loci delicti commissi is generally the starting point in determining the applicable law for a tort case. In this case, since the accident occurred in Zimbabwe and the injury was sustained there, the lex loci delicti would likely apply. This means that the Zimbabwean legislation regarding passenger claims in motor vehicle accidents would be the relevant law.
Given that Rocks would not have a successful claim under Zimbabwean law, it is advisable for Whisky and Rocks to institute any legal action in Zimbabwe. The court is likely to apply the lex loci delicti and uphold the Zimbabwean legislation in this case.
It is important to note that the text mentions that in cases where the plaintiff and defendant have a common residence, domicile, or nationality and have some other link between them, such as travelling in the same vehicle, the case for deviation from the lex loci delicti is strong. However, in the absence of such a common link, the court should be slow to displace the lex loci. Therefore, in this scenario where the accident occurred in Zimbabwe and the parties are domiciled in South Africa, it is likely that the lex loci delicti would apply for determination of the applicable law.
USE THE TEXT BELOW TO ANSWER THE QUESTION THAT FOLLOW:
Although the South African literature is not extensive, a considerable diversity of suggested
solutions to the problem is to be found. Crawford suggests that there should be no departure
from ‘the principles laid down in Phillips v Eyre’ , but the abandonment of Phillips v Eyre
in the United Kingdom undermines this suggestion. Professor Kahn, although originally a
supporter of the lex loci delicti, has been won round to the proper-law approach —in
advance of Babcock v Jackson. Du Plessis is a supporter of the lex loci delicti as a general
rule, but supports deviations from it when there is no ‘sufficient link’ between the locus
delicti and the wrongful occurrence, but there is such a link with some other legal
system. Finally, Edwards supports the prima facie applicability of the lex fori but
suggests that it can be displaced if a litigant shows that some other system has a closer
relationship to the facts of the case than the lex fori. Deciding whether this is so would
require an ‘American style’ inquiry into the underlying purposes and policies of both local and the suggested foreign law. But now in addition to the literature we have the decision in
Burchell v Anglin.
Page 364
As a single-judge decision this case will doubtless not be conclusive, but it will be the point
of departure when the matter next comes before the local courts.
The trouble is that it is not clear what the reasons for the decision in that case were. The
rejection of ‘double actionability’ is welcome and commendable. But it is not clear whether
the court then adopted a flexible lex loci approach followed by consideration of whether the
lex loci should be displaced in favour of another legal system with which there was a more
‘significant relationship’ or whether the judge was in direct search of the ‘jurisdiction
with the most significant relationship with the parties and the delict’, ie a pure proper-law
approach. For the reasons given immediately below the first approach is clearly preferable.
And perhaps this is what the Judge intended, since she put much effort into determining
where the lex loci delicti was, which would have been wasted effort if the search was simply
for the legal system with the most ‘significant relationship’.
For myself two points seem clear: first, that in most cases the lex loci delicti commissi will
be clear, certain and appropriate to the resolution of the dispute before the court. This rule is
thus suggested as being generally applicable. It is, moreover, in accord with the reasonable
expectations of most parties as well as the Roman-Dutch authority. Moreover, the lex loci
delicti has been the approach adopted decisively in both Canada and Australia in strong and
thoughtful judgments. Furthermore, there have been clear legislative moves in the
United Kingdom and in Europe more generally in support of the lex loci delicti (at least in the
form of the lex damni) subject to displacement when inappropriate. So the lex loci ensures
broad uniformity with many other influential jurisdictions across the world, including
important trading partners. All this makes a persuasive case for the lex loci delicti commissi
as the starting point.
It is equally clear, in the second place, that the lex loci delicti will not do for all cases.
Sometimes the locus delicti will be uncertain (although the adoption of the rules in s 11(2) of
the UK Act will reduce this); at other times it will be inappropriate.
In such cases a displacement of the lex loci delicti rule will be in order. Whether this takes
place after a search for the proper law or after determination that there is no ‘sufficient link’
with the locus delicti appears to be immaterial. This will introduce some uncertainty, but with
time—and litigation—in this area, the occasions on which the court will deviate from the
general rule will become clearer. For the time being it is sufficient to remark that where the
plaintiff and defendant have a common residence, domicile or nationality and have some
other link between them—such as travelling in the same vehicle—the case for deviation from
the lex loci delicti is strong. But in the absence of such a common link the court should
be slow to displace the lex loci: there is a real value in being able to predict in advance the
law that will be applied in any particular case.
QUESTION:
Whisky and Double are married and domiciled in South Africa. Some time ago, they decided to take a trip to Victoria Falls in Zimbabwe. They travelled with a friend (Rocks) and used their “4X4 by far” being registered in Gauteng. Rocks did not pay anything for the trip. Whilst touring Zimbabwe, Whisky drives negligently into a donga and Rocks was seriously injured when flung out of the vehicle. Assume that according to Zimbabwean legislation, no passenger (being transported free of charge) will have a claim against the negligent driver of a vehicle once injuries have been sustained in a motor vehicle accident. Had the accident occurred in South Africa, Rocks would have successfully claimed a delict. Advise Whisky and Rocks on the appropriate rule to be applied in the set of facts and where to institute an action. Use authority mentioned in the text above to support your answers.
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