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Question

Until recently it was clear that this question of which law to apply to a transnational delictual
dispute was res nova in South Africa or, at any rate, sufficiently open to enable the judge
first seised with the question to decide on practically any of the various approaches to the
problem or to adopt any particular rule.
There were indeed three cases in which the problem was potentially present but none of
them led to a considered judgment on the issue. In the first, Mackay v Phillips, the issue
was simply not recognized. The second, Rogaly v General Imports (Pty) Ltd, went off on
a point of pleading. And in the third, Minister of Transport, Transkei v Abdul, the court
seemed to assume—for the question was hardly considered—that a garbled version of the
unreformed English rule applied. Rogaly’s case too gives slight support to the English
rule since Herbstein J was prepared to assume our law was the same, but only for the
purpose of deciding the exceptions then before him.
The old authorities are more helpful. The best known statement is that of Van der Keessel,
who favours the
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lex loci delicti commissi, and further support for the lex loci delicti commissi is to be
found in Van Bijnkershoek’s Observationes Tumultariae. In one case the lex loci is mentioned obiter as the prevailing law in delict, and in another the Hooge Raad in an action for
seduction seemed willing to apply the lex loci delicti commissi except that the defendant had
not raised the defence available under the law of Zeeland (the locus delicti), viz no
compensation would be awarded for seduction. So inasmuch as our old authorities spoke
on the question they spoke in favour of the locus delicti.
But now in Burchell v Anglin we have a considered decision that analyses the question
with care. Stripped to its essentials this complicated suit concerned an action for defamation
brought in the Eastern Cape Court by the plaintiff (who operated a hunting safari and
taxidermy business in South Africa) against a defendant, a hunter and businessman (with
interests in South Africa) resident in Texas. The nub of the allegation (slightly simplified)
was that the defendant had defamed the plaintiff to the plaintiff’s booking agent, who was
based in Nebraska, with the result that the number of hunting safaris booked with the
plaintiff had declined sharply causing him damages and loss of profit. The clear choice of law
issue raised was then whether the law of South Africa (arguably the proper law of the delict)
applied or whether the law of Nebraska (arguably the lex loci delicti) applied to the
defamation claim.
Crouse AJ clearly approaches the choice of law issue on the basis that the question is
effectively res nova before the South African courts. The learned judge considers in detail
the English ‘double actionality’ rule and the objections to it; and rejects it as the way
forward for South African law. She then gives an account of the American ‘proper law’
approach, but now the learned judge’s reasoning becomes unclear. She clearly comes to
the conclusion—because the crucial letter from the defendant to the booking agent was
addressed to his office in Nebraska and read there by employees of the agent—that the lex
loci delicti was in Nebraska. The learned judge is aware that the lex loci delicti may need
to be flexibly applied. But now she turns to finding the ‘the jurisdiction with the most
significant relationship with the parties and the delict’. This, it seems, is adopting the
proper law of the tort approach. In any event she concluded, after a discursive analysis, that
the law of Nebraska applied. We will return to the learned judge’s reasoning but first we
turn to considering the alternative approaches adopted elsewhere and from which a solution
might be chosen.
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.

Answer 1

In the scenario provided, the appropriate rule to be applied would be the lex loci delicti, which refers to the law of the place where the delict (wrongful act) occurred. In this case, the accident occurred in Zimbabwe, so the Zimbabwean legislation would apply.

Based on the authority mentioned in the text above, particularly the case of Burchell v Anglin, the choice of law issue should be approached by considering the jurisdiction with the most significant relationship with the parties and the delict. In this scenario, Zimbabwe has the most significant relationship as the accident occurred there and their legislation determines the rights and liabilities of the parties involved.

Therefore, Rocks should institute an action in Zimbabwe, where the accident and injury occurred, and where the law of the lex loci delicti (Zimbabwean legislation) would apply, preventing him from successfully claiming a delict against Whisky who was the negligent driver. Whisky should also be advised that Rocks would not have a claim against him under Zimbabwean legislation.