Author Archives: Thalia Kruger

About Thalia Kruger

Thalia Kruger obtained her BA and LLB degrees from the University of Stellenbosch in South Africa. Thereafter she completed her PHD at the Katholieke Universiteit Leuven in Belgium on “Civil jurisdiction rules in the EU and their impact on third States” (subsequently published by Oxford University Press under the same title). While working on her PHD, she was a teaching and research assistant at the Law Faculty’s Institute for Private International Law where she tutored and lectured on various aspects of private international law and international business law. She has also participated in a research project funded by the European Commission on “International Civil litigation in Europe and relations with third States”. Thalia subsequently worked at the Flemish Centre for Minorities where she give legal advice on Private International Law in family matters and then conducted EU funded research on international child abduction for Child Focus, an NGO working with sexually exploited and disappeared children. Thalia is currently senior lecturer in Private International Law at the University of Antwerp (Belgium) and honorary research associate at the University of Cape Town (South Africa).

Belgium ratified the Child Protection Convention of 1996

Belgium has ratified the Hague Child Protection Convention of 1996. Readers might remember that the ratification by the EU Member States of this instrument was delayed due to a diplomatic issue. Once this was resolved, the Commission’s objective was that all Member States should ratify the Convention by 2010 (see the Council Decision of 5 June 2008). Some were late. Belgium, as the second last Member State to ratify, has now done so.  Of the EU Member States only Italy’s ratification remains outstanding.

The Convention will enter into force in Belgium on 1 September 2014.

New publication on Matrimonial Property Proposal

Jaqueline Gray and Pablo Quinzá Redondo published “Stress-Testing the EU Proposal on Matrimonial Property Regimes: Co-operation between EU private international law instruments on family matters and succession” in Family&Law, an open-source Belgian-Dutch Journal. The publication is available here.

 

European conference on international child abduction, The Hague 7-10 May 2014

On 7-10 May the International Child Abduction Center of the Netherlands  (Centre IKO) will host a conference for family lawyers who work in the field of in international parental child abduction. The event will take place in the Peace Palace in The Hague. 

The conference is part of LEPCA (Lawyers in Europe on Parental Child Abduction), a project funded by the European Commission.

Speakers include mr Fred Teeven (Dutch Secretary of State for Security and Justice), mr Christophe Bernasconi (Secretary General of the Hague Conference on Private International Law), mrs Joanna Serdynska (European Commission DG Justice), and mr Lo Voi (Eurojust).

The remainder of the conference will take the form of interactive seminars on various topics of international child abduction by parents.

For further information and the programme see http://www.lepca.eu.

PhD scholarship in European conflict of laws at University of Antwerp

The Universty of Antwerp ofers a position for a PhD candidate in the field of European conflict of laws. The candidate will research “the specific character, principles and objectives of European conflict of laws”. The research project is funded by the Research Foundation – Flanders (FWO) for a period of four years starting as soon as possible, but at the latest on 1 September 2014.

For more information see the vacancy on the University of Antwerp’s website.

South African Constitutional Court does it again

On 27 June 2013 South Africa’s constitutional court has ruled on two matters of interest for specialists of private international law, specifically international civil procedure.

In the first judgment, Government of Zimbabwe v. Fick and Others, the Court ruled on the enforcement of a costs order granted by the Tribunal of the Southern African Development Community (SADC). At the basis of the dispute was the expropriation of the land of Zimbabwean farmers without compensation. The Tribunal, with its seat in Windhoek, Namibia, has in the meantime been suspended due to the political row that followed this and other judgments.

When Zimbabwe refused to comply with the costs order, the farmers approached the South African courts for registration and enforcement. Property belonging to Zimbabwe, and situated in South Africa, was attached.

On the matter of immunity the Constitutional Court found:

Zimbabwe’s agreement to be bound by the Tribunal Protocol, including article 32[on enforcement and execution], constitutes an express waiver in terms of section 3(1) of the Immunities Act. It is a waiver by Zimbabwe of its right to rely on its sovereign immunity from the jurisdiction of South African courts to register and enforce decisions of the Tribunal made against it.

The Constitutional Court ruled that the common law rules on enforcement, applicable to the judgments of foreign states, had to be extended to the judgments granted by international tribunals.

 

The second judgment, Mukaddam v. Pioneer Foods (Pty) Ltd and Others, concerned a class action against a number of producers of bread, based on anti-competitive conduct. Mr Mukaddam was one of a number of bread distributors. The Competition Tribunal had already found the producers guilty of anti-competitive conduct and imposed fines. The High Court of the Western Cape and the refused certification, since many of the applicants were corporate entities and since the courts found that the issues raised against the various respondents were different.

In its judgment, Children’s Resource Centre Trust v Pioneer Food (delivered on 29 November 2012), the Supreme Court of Appeal grappled with the issue that the South African Constitution allows class actions (in s. 38c), but that there is no legislation on the matter. The Court stated: “We are thus confronted with a situation where the class action is given express constitutional recognition, but nothing has been done to regulate it. The courts must therefore address the issue in the exercise of their inherent power to protect and regulate their own process and to develop the common law in the interests of justice.

It has long been disputed whether class actions are only permitted in constitutional matters or also in civil matters. Therefore the claimants invoked their right to access to food (s. 27,1b of the Constitution). The Court, however, found that their right to access to the courts (s. 34) was sufficient to allow a class action, as they would not be able to bring their claims as individual plaintiffs. Moreover, the Court recognised the general possibility of civil class actions and set down requirements for such actions, including certification. The Court set down the elements that a court should use in the assessment of certification:

  • the existence of a class identifiable by objective criteria;
  • a cause of action raising a triable issue;
  • that the right to relief depends upon the determination of issues of fact, or law, or both, common to all members of the class;
  • that the relief sought, or damages claimed, flow from the cause of action and are ascertainable and capable of determination;
  • that where the claim is for damages there is an appropriate procedure for allocating the damages to the members of the class;
  • that the proposed representative is suitable to be permitted to conduct the action and represent the class;
  • whether given the composition of the class and the nature of the proposed action a class action is the most appropriate means of determining the claims of class members.

The Court subsequently allowed certification of one of the classes and refused certification for the other in this particular case (the different classes related to different geographical areas of the country and different dates).

The standard set by the Supreme Court of Appeal was accepted by all parties, and the Constitutional Court proceeded on that basis. The Court then found that the factors laid down by the Supreme Court of Appeal had to be assessed in view of the interests of justice and that the absence of one factor must not oblige a court to refuse certification. The appeal was allowed on this basis. The South African Courts are thus again developing the law of civil procedure.

South African Constitutional Court rules on taking of evidence

It is not every day that a Constitutional Court rules on a matter of evidence. The case Tulip Diamonds FZE v Minister of Justice and Constitutional Development and Others concerned the taking of evidence in South Africa for a criminal investigation in Belgium. It was on a matter of common interest in South Africa and Belgium: diamonds. In the course of a criminal investigation in Belgium, the authorities issued a letter of request for evidence in South Africa. This concerned evidence that had to be produced by Brinks Southern Africa, established in South Africa. This company was not involved in the suspected criminal activities, but transported diamonds for Tulip from Angola and Congo to the United Arab Emirates. Tulip was the intermediary of Omega, the Belgian company who allegedly imported the diamonds under false certificates to conceal their real value and therefore the company’s taxable profit. The documents that the Belgian authorities sought to be transferred concerned invoices by Brinks Southern Africa to Tulip.

The request was approved by the Minister of Justice and given to a magistrate to carry out. The magistrate issued a subpoena to an employee at Brinks. Before she could submit the documents, Tulip got wind of the request. After negotiations and a temporary interdict by the High Court for Brinks not to transfer the documents, Tulip approached the court for a review of the approving of the request. The issue then arose whether Tulip had standing under the Constitution or under common law to bring these proceedings.

Some of the issues in the case concern criminal procedure law, but the matter of standing is also of interest for civil cases, to my mind.

The judgment (issued on 13 June 2013) is available on the website of the Constitutional Court and on the Legalbrief site.

ERA Conference on Recent Developments in Private International Law and Business Law

The Academy of European Law (ERA), situated in Trier and with the financial support of the European Commission, organises conferences and summer schools on various topics of EU law. On 5-6 June a conference was held on recent developments in private international law and business law (covering civil jurisdiction, civil procedure, contract, delict, insolvency, and company law).

A report summarising the interventions can be downloaded here.

PIL at law teachers’ conference in Pretoria

PIL abstracts of law teachers’ conferenceA special session on Private International Law was held at the conference of the Society for Law Teachers of Southern Africa, held in Pretoria from 21 to 24 January 2008.

The following papers were delivered:
• Classification and liberative prescription in private international law by Jan Neels
• The role of Private International Law in International Trade by Eesa A Fredericks
• Could a South African court be expected to apply the CISG by virtue of article 1(1)(b)? by Marlene Wethmar-Lemmer
• The Strict Approach to Party Autonomy and Choice of Law in E-contracts in South Africa: Does the Approach Render South Africa an Unacceptable Jurisdiction? by Omphemetse Sibanda
• Regional organisations and the jurisdiction of their dispute settlement bodies by Thalia Kruger

(Follow the link at the top for the abstracts and contact details of the authors.)

Arresting a person for civil jurisdiction found unconstitutional by Supreme Court of Appeal of South Africa

In Bid Industrial Holdings (Pty) Ltd v Strang and another [2007] SCA 144 (RSA) the Supreme Court of Appeal of South Africa has ruled on 23 November 2007 that arresting a person in order to found or confirm (civil) jurisdiction is unconstitutional. Under South African law, when a person not domiciled in South Africa is sued in a South African court, the court’s jurisdiction had to be confirmed either by attachment of property or arrest of the person, unless the foreign defendant submitted to the jurisdiction of the court. The part of this rule permitting the arrest of a person has now been found to infringe the rights to freedom and security of the person, equality, human dignity, freedom of movement, and possibly also the right to a fair civil trial. It could not be said that the rule provided a justifiable limitation to these fundamental rights. The Court stated that arresting a defendant was a profound infringement and had the effect of coercing him or her to submit to the jurisdiction of the court, to make prompt payment, or to provide security.
The Supreme Court of Appeal abolished the rule and adopted a replacement rule to the effect that where attachment was not possible to found or confirm jurisdiction, the South African courts will have jurisdiction if summons is served on the defendant while he or she is in South Africa and there is sufficient connection between the suit and the area of the court.

Christian Schulze, ‘The 2005 Hague Convention on Choice of Court Agreements’, (2007) 19 SA Merc LJ 140-150

The article discusses the 2005 Hague Convention’s rules on jurisdiction (of the chosen and not-chosen courts) and the recognition and enforcement of resulting judgments. It then goes on to examine the role of the new convention in comparison to other conventions and to the Brussels I Regulation. Reference is made to the different objectives of these international instruments and to the more limited scope of the Hague Convention. The article also discusses jurisdiction agreements in general, pointing out that they are common in international commercial contracts and may be regarded as a prudent step for parties to take. The author describes the distinction between exclusive and non-exclusive choice of court agreements. He concludes by stating that this convention makes litigation a more viable alternative to arbitration since it ensures the enforcement of choice of court agreements in the same fashion as the New York Convention (1958) does for arbitration agreements. He then expresses the hope that the new convention would draw as much interest as the New York Convention.