Conflict of Laws

Question 1

what is lex fori

Answer 1

the law of the forum; the law of the court hearing and disposing of an action

Question 2

lex causae

Answer 2

the law of the cause; where there is a conflict of laws , the law which has precedence to dispose of the action

Question 3

lex loci celebrationis

Answer 3

the law of the place where marriage is celebrated

Question 4

what are the two situations where conflicts can arise

Answer 4

1. private international law

2. personal or internal conflict of laws

Question 5

when does a personal or internal conflict of laws arise

Answer 5

different legal systems operating within a single national legal system

Question 6

did conflict laws exist in precolonial times

Answer 6

yes , a false impression is created that it is a foreign concept introduced from people outside of Africa

Question 7

In precolonial times where did conflicts of law arise

Answer 7

precolonial Africa had kingdoms which applied different legal systems, conflicts of law could arise between people from different jurisdictions

Question 8

what imefecane or difaqane

Answer 8

social upheavals caused by wars among the African communities of SA by the end of the second decade of the nineteenth century. These lead to the emergence and consolidation of new nations.

Question 9

Under S1 (3) of LEAA what must the courts first do

Answer 9

must first make a finding as to whether the parties agreed expressly or tacitly as to the version to be applied in judicial proceedings

Question 10

Under S1 (3) of LEAA what happens if the parties made an express agreement about which law to apply

Answer 10

the courts must simply implement the agreement because people have a freedom to choose a legal system (protected by the right to culture)

Question 11

Under S1 (3) of the LEAA what happens if the agreement between the parties to apply law is tacit

Answer 11

the court will impute the terms of agreement to the party taking into account

1. prior conduct
2. cultural background
3. nature of the transaction

Question 12

Under S1 (3) of the LEAA what happens if there is an absence of agreement between the parties as to what law applies

Answer 12

the court will apply the customary law that applies to the place where the defendant resides or works if such if the only prevailing law

Question 13

Under S1 (3) of the LEAA, what happens if there is an absence of agreement but there are more than 1 version of customary law at the place where the defendant resides

Answer 13

The court applies the first mentioned version

Question 14

Under the BAA what system of law was used

Answer 14

customary law applied only to black people and all transactions involving other races were dealt with according to the common law

Question 15

what replaced the BAA

Answer 15

the LEAA

Question 16

Is S1 (1) a law of conflicts rule?

Answer 16

Bennet says no but he regards the repugnancy clause bit to

Question 17

Is S1 (1) a law of conflicts rule?

Answer 17

Bennet says no but he regards the repugnancy clause bit to be

Question 18

in this situation is the repugnancy clause applied as a conflict of law rule:
In Case C , customary law rule X conflicts with the common law rule Y. The court finds X to be repugnant and strikes it down. The court then applies rule Y to the case.

Answer 18

yes

Question 19

In this situation is the repugnancy clause applied as a conflict of law rule:
`in case C , customary law X conflicts with common law rule Y. After the court has consulted the conflict of law rules and the parties agreement, the court decides rule X is applicable. If the court finds rule X to be repugnant and strikes it down, it does not apply rule Y to the case.

Answer 19

NO

Question 20

In Mabuza v Mbatha what did the court argue was the correct test for for the validity of customary law

Answer 20

the constitution and not the repugnancy clause

Question 21

Is S211 (3) a conflict of law rule

Answer 21

yes

Question 22

Although S211 (3) does not tell us how to resolve conflicts, what mechanism can we use to do so when determining conflicts between customary law and customary law

Answer 22

S1 (3) of the LEAA

Question 23

what factors can be used to determine conflicts between common law and customary law

Answer 23

1. agreement and intention
2. nature of the transaction
3. subject matter of the transaction
4. lifestyle of the parties
5. exemption from customary law
6. marriage by christian rites
7. testate or intestate succession

Question 24

explain the factor of “agreement and intention”

Answer 24

parties to a contract can agree which legal system will regulate their contractual rights and duties

Question 25

explain “nature and environment of the transaction”

Answer 25

focuses on the cultural environment in which the transaction took place regardless of factors such as race and wealth. The form and nature are dealt with as one.

Question 26

explain “the lifestyle of the parties”

Answer 26

looks at whether the people abided by customary law , mostly used in delictual claims

Question 27

explain “exemption from customary law”

Answer 27

this rule has no place in a constitutional dispensation - old rule where natives could prove they were civilised enough to have common law and not customary law apply