Chapter 5: Internal conflict of laws

Question 1

Lex fori

Answer 1

• Law of the forum
• Law of the court hearing and disposing of an action

Question 2

Lex causae

Answer 2

• Law of the cause
• Law that has precedence

Question 3

Lex loci celebrationis

Answer 3

• Law of the place where the marriage is celebrated

Question 4

Conflict of laws

Answer 4

• Not a conflict between legal systems, rather to the method of choosing an appropriate rule to apply in the interest of justice.
• Refers to the rules for choosing the appropriate law.

Question 5

What are the 2 kinds of conflicts that courts are called on to determine when settling disputes between litigants, in terms of ‘Conflict of laws’?

Answer 5

1. Conflicts may arise between rules belonging to the legal system of two or more different countries. This is referred to as Private International Law.
   2.Conflicts may occur between different legal systems operating within a single national legal system. Often the case in pluralistic legal systems - Where customary law exists alongside common law. Referred to as personal or internal conflict of laws.

Question 6

From what did problems originate in terms of conflict of laws under customary law?

Answer 6

It ensued from social, economic, and political interactions among individuals and groups belonging to different jurisdictions.

Question 7

In terms of the nature of african cultures, how does it influence the avoidance of situations of conflict of law?

Answer 7

1. Intergrate different communities into the legal system of the dominant group so that in due course no further conflicts arise.
2. Communities tended to keep to themselves when contracting marriages and conducting business transactions.
3. African communities continued to respect one another’s cultures after integration. By allowing diversity in terms of unity, communities after integration, it ofthen minimises conflicts in their different approaches.

Question 8

When does conflicts of laws usually arise under customary law?

Answer 8

Usually arises when the spouses are from different communities.
- Especially when one spouse comes from a matrilineal culture where children belong to the wife’s family, and the other spouse comes from a patrilineal background where the children belong to the husband’s family.
- Conlficts can also arise within the same community: between different versions of customary law within a patrilineal community.

Question 9

During marriage negotiations, issues surrounding the custom of lobule and the delivery of goods arising therefrom, who’s side of customary law will be applicable?

Answer 9

The bride’s family group version of customary law will be applicable.

Question 10

Section 1(3) of the Law of Evidence Amendment Act:

Answer 10

Regulates the determination of the appropriate legal system in conflicts between systems of customary law.

Question 11

Section 1(3) of LEAA provides the following ways to decide which version of customary law is appropriate:

Answer 11

1. Did the parties agree expressly or tacitly as to the version to be applied in legal proceedings.
   2.1 If made expressly, court must implement it. (Freedom of choosing legal system; protected by Constitution)
   2.2 If made tacitly, court will impede terms of the agreement.
2. Absence of agreement between parties, court will look at the residence or work place of the defendant for a solution.
   4, If there is multiple versions, court will look at the first version of customary law.

Question 12

Conflicts of laws during colonial era

Answer 12

• Prior 1652 customary law enjoyed unchallenged sovereignty.
• It was the only legal system with jurisdiction in South Africa.
• Conflicts only existed between versions of customary law.
• Conflicts between Customary and Common law began after 1652.
• Roman-dutch law (Common law) prevailed when there was conflict with customary law.
• RD law prevailed regardless whether or not interests of justice was served.
• RD and English law was applied to customary law disputes; to rescue them from their inferior justice system.
• Courts were to use their discretion when to use customary law.

Question 13

Section 11(1) of the Black Administration Act (BAA)

Answer 13

Made the choice of customary law as a matter of judicial discretion.
- Customary law should not oppose principles of public policy or natural justice.
- Courts are not allowed to declare the custom of ‘lobolo’ as repugnant.

Later REPEALED and replaced with LEAA

Question 14

Section 1(1) of LEAA:

Answer 14

• Equated Customary law to foreign law
• Discretion of application of customary law maintained
• Customary law should not oppose principles of public policy or natural justice
• Lobolo excluded from repugnancy clause

Question 15

Section 211(3) of the Constitution as a conflict of laws rule

Answer 15

• Enjoins the courts to select Customary law when applicable
• Subject to the Constitution and any legislation specifically dealing with Customary law
• Conflict of systems of Customary law determined by s 1(3) of LEAA

Question 16

Factors for application of customary law

Answer 16

1. Agreement and intention: Parties can expressly or tacitly agree on a legal system that should regulate their rights and duties.
2. Nature of the transaction: Focuses on the cultural environment in which it takes place, regardless of irrelevant factors such as race and wealth.
3. Subject matter and environment of the transaction: Courts shoulf not be swayed by irrelevant factors such as wealth or poverty on deciding a applicable legal system.
4. The lifestyle of the parties: Irrelevant as it focuses on people rather than transactions.
5. Exemption from customary law: Africans could apply for exemption of customary law proven they were civilised to enjoy common law. Sufficed by being literate and in a monogamous marriage.
6. Marriage by civil or Christian rites: Africans often maintain customary practices, like polygamy, despite civil marriage norms. Gumede case; the RCMA equalizes legal outcomes for customary and civil or Christian marriages.
7. Testate succession: The Wills Act allows wills to be valid even if they follow customary law forms, as long as the testator’s intentions are clear and the Act’s requirements are met.
8. Intestate succession: The Reform of Customary Law of Succession and Regulation of Related Matters Act (RCLSA) replaced discriminatory intestate succession provisions with the Intestate Succession Act, accommodating both monogamous and polygamous marriages. The Bhe v Khayelitsha Magistrate case invalidated section 23 of the BAA and regulation 2(e) for racial and gender discrimination, leading to the application of the Intestate Succession Act for intestate estates of deceased persons who lived according to customary law.

Question 17

Gumede case

Answer 17

The Recognition of Customary Marriages Act (RCMA) has harmonized the legal consequences of customary and civil or Christian marriages, eliminating past conflicts between customary law and common law regarding marital capacity and recognition.

Question 18

Bhe v Khayelitsha Magistrate

Answer 18

The Bhe v Khayelitsha Magistrate case invalidated section 23 of the BAA and regulation 2(e) for racial and gender discrimination, leading to the application of the Intestate Succession Act for intestate estates of deceased persons who lived according to customary law.