CHAPTER 5 LAW OF CONFLICT

Question 1

1. Discuss the different ways in which a conflict of law can exist. (4)

Answer 1

Conflict of laws exist in 2 different forms.
1. private international law:
- the conflict of rules operation between legal systems in 2 or more different countries
2. internal conflict of laws:
- conflict of rules of 2 different legal systems operating between one country

Question 2

2. Outline the ways in which Customary law avoids a conflict of law. (3)

Answer 2

1. integrating into one legal system
2. tend to keep to themselves about business transactions as well as marriage ( In this way, they avoided conflict of laws situations )
3. mutual respect for culture and way of life For example, King Moshoeshoe of the Basotho nation allowed different communities to govern themselves according to their laws and customs while they remained part of the same kingdom

Question 3

3. Where two people from different cultural tribes enter into an agreement which leads to
   a dispute, which system of indigenous law will the court apply? Assume for this
   question, the parties are one Londiwe, a Zulu lady who resides in Kwa-Zulu Natal and
   one Lethabo, a Pedi lady who operates her business in the Eastern Cape. The parties
   conclude to barter trade agreement whereby Lethabo was expected to deliver 100kg of
   crops to Londiwe in exchange for 100kg of fertilizer. After receiving Lethabo’s crops,
   Londiwe refused to deliver the fertilizer to Lethabo as agreed upon. Refer to authority
   in your answer. (6)

Answer 3

section 1(3) of the LEAA will be used to determine which customary law should be applied
It uses the following requirements:
1. there must be an expressive and tacitly agreements between the parties on which customary law they decided
2. if there is an agreeemnts- they court should apply the legal sytem that was agreed upon by the parties
3. where there is no agreement- the courts should apply the legal sytem of the defendant where he or she works or resides
4. where there is moe than one version of the defendant , they first version should be applied

there was no prove of an agreement between londiwe and Lethabo
therefore the courts shall apply Xhosa law where Lethabo works.

Question 4

4. After his marriage celebrations with his third wife, Thabiso decides to separate with his
   first wife due to irretrievable breakdown of the marriage. He approaches the law clinic
   of the University of Pretoria for legal assistance regarding his ability to claim back his
   lobolo property from the family head of his first wife. As a fourth-year student
   registered for Practical Law 400 you are tasked with doing research on Thabiso’s matter
   on behalf of your supervisor. Without discussing the merits of Thabiso’s case assist
   your supervisor on the applicable legal system in the matter regarding Thabiso’s claim
   for lobolo against his first wife’s family head. (3)

Answer 4

according to S211(3) the courts should apply customary law when dealing with a custoamry dispute.

section 211(3) determines that matters governed by customary law must be resolved according to this legal system in

this case a lobolo is being negotiated which is the nature of a customary dispute and therefore customary law should apply.

Question 5

What is a conflict of laws?

Answer 5

refers not to a conflict between legal systems
but rather to the method of choosing an appropriate rule to apply in a given case in the interests of justice