Authored By: Aphumelele Siyandiba
University of Johannesburg
Introduction
In South Africa, there is a variety of legal systems governing human conduct and determining the way in which the law should be implemented. This includes the place in which a person is legally based, which is known as their domicile. Domicile refers to the place where a person is legally deemed to reside for purposes of exercising their rights and fulfilling their duties. It is separate from citizenship and general residence. In the Mason v Mason case, domicile was defined as ‘the place or country which is considered by law to be a person’s permanent home’.[1] Domicile comprises two types, namely, domicile of choice and domicile by operation of the law. This article explores the dynamics and implications surrounding domicile as an integral part of the application of the law. This includes the importance of domicile in determining the applicable legal system, and what could render it less credible.
Legal Framework
A legal rule that is entrenched in legislative authority obtains inherent enforceability and binding capacity on any matter for which it is used, to the extent that it does not contradict any constitutional provisions. The Domicile Act regulates all matters related to domicile and provides guidance on its implementation.[2] Although Domicile is independent, it can be necessary in the interpretation of various constitutional provisions. Section 20 of the Constitution states that “no citizen may be deprived of citizenship”.[3] A citizen can be domiciled in another country while they retain the citizenship of South Africa. This means that South African law will apply to the extent that the person is a citizen, and everything related to their domicile will be governed by the law of the place where the person is domiciled.
Additionally, old domicile rules were abolished by section 9 of the Constitution for being inconsistent with the constitutional value of equality. Before the commencement of the Domicile Act, a woman automatically acquired the domicile of their husband regardless of their preference. This section emphasizes that although domicile is regulated separately from the Constitution, it still retains the duty to comply with the Constitution, as it is the supreme law of the Republic.
III. Types of Domiciles
Domicile of Choice
The types of Domiciles are regulated by sections 1 and 2 of the Domicile Act. Section 1 states that “Every person who is of or over the age of 18 years, and every person under the age of 18 years who by law has the status of a major, excluding any person who does not have the mental capacity to make a rational choice, shall be competent to acquire a domicile of choice, regardless of such a person’s sex or marital status’’.[4] This section provides for persons with majority to obtain a domicile of their preference, in respect of their right to autonomy.
Domicile by operation of the Law
Section 2 states that “A person not capable of acquiring a domicile of choice as contemplated in section 1 shall be domiciled at the place with which he is most closely connected.”[5] This implies that all persons, such as minors, who do not have decisive authority automatically acquire the domicile of whoever is closest to them. In most cases, minors acquire the domicile of their parents, depending on whether they live with one or both parents. However, this type of domicile is no longer linked to another person, but to the place where the concerned person resides.
Case law analysis
A landmark case on the implications of domicile is the case of Eilon v Eilon.[6] In this case, a married couple from Israel migrated to South Africa for occupational purposes. They were granted permanent residence due to their prolonged stay; however, they decided to keep their Israeli citizenship. They reached a point of dissolution of their marriage, which resulted in Mr. Eilon’s return to Israel. The wife instituted divorce proceedings in South Africa. The court now had to determine whether they have jurisdiction over the matter and whether Mr. Eilon was domiciled in South Africa. The court found that Mr. Eilon did not satisfy the requirements for domicile of choice and subsequently retained the domicile of Israel. The requirements are the lawful presence, physical presence, and the intention to settle there for an indefinite period.
Due to this case being heard before the commencement of the Domicile Act, old domicile rules were used, wherein the court held that the husband was domiciled in Israel. Therefore, the lex loci domicile of the man was used in the suit for their divorce.
This case formed a precedent on how to interpret the laws of domicile and how to implement the rules effectively. Additionally, this case exemplifies the importance of legal certainty in the implementation of the law. The decision not to overstep the South African court’s jurisdiction was an illustration of how certain legal systems apply only to a certain extent, and how a person’s domicile can affect their personal affairs.
Critical Analysis and Argument
Domicile exists uniformly in the various legal systems of the world. This is evident in the case of Minister of Home Affairs v Dickson and Another,[7] wherein a man sought Namibian citizenship on the basis that he had been married to a Namibian woman and intended to reside there for the duration of his life. The Zambian Supreme Court considered the domicile of the man at the time of application and found that he had been virtually and uninterruptedly residing in Namibia for the best part of his life. He was not granted citizenship for being illegally based in Namibia without complying with the necessary formalities of residence. The significance of this case is that, succeeding the discovery of fraud, the court considered the applicable legal system, which was the law of Tanzania, as the applicant was domiciled in Tanzania.
Although domicile is crucial in legal applications, several factors must be considered. A person may need the domicile of another country with the intention of waiving obligations in their country of residence. This was discussed in the case of J.M V M.C, where the court examined the applicant’s intention to be domiciled in South Africa while living in the United States (USA).[8] This was done to ensure the applicant did not intend to escape allegiance to the USA by claiming domicile in South Africa. Therefore, even if someone states they intend to acquire domicile for educational or occupational reasons, their true intention can never be definitively confirmed.
Conclusion
Domicile is an important concept in our legal system, and it ensures legal certainty when it comes to determining the applicable legal system. It is, however, not absolute and subject to implications of fairness and constitutional consistency. Although domicile can be acknowledged for the avoidance of conflicts of laws, it bears disadvantages that may render it less credible. Without domicile, the legal world would be in jeopardy, thus opening a floodgate of ineffective legal rules.
REFERENCE(S):
Mason v Mason [1885]
Eilon v Eilon 1965 SA 703 (A)
Domicile Act 1992 s1 and s2
Constitution of the Republic of South Africa 1996 s9 and s20
Minister of Home Affairs v Dickson and Another 2008 NR 665 (SC)
J.C v M.C 2024 762 ZAGPJHC
[1] Mason v Mason (1885).
[2] Domicile Act 1992.
[3] Constitution of the Republic of South Africa 1996 s20.
[4] Domicile Act 1992 s1.
[5] Ibid s2.
[6] Eilon v Eilon 1965 (1) SA 703 (A).
[7] Minister of Home Affairs v Dickson and Another 2008 (2) NR 665 (SC).
[8] J.C v MC 2024 762 ZAGPJHC.
