CHAPTER 6

CONFLICT BETWEEN DIFFERENT SYSTEMS OF CUSTOMARY LAW

(a) Current statutory choice of law rules

Because South Africa does not have a single, unified system of customary law, the courts may have to decide which of two or more different systems of customary law apply to the facts of any given case. The relevant choice of law rules - a badly drafted version of nineteenth-century colonial legislation - are contained in s 1(3) of the Law of Evidence Amendment Act.^[73]

In any suit or proceedings between Blacks who do not belong to the same tribe, the court shall not in the absence of any agreement between them with regard to the particular system of indigenous law to be applied in such suit or proceedings, apply any system of indigenous law other than that which is in operation at the place where the defendant or respondent resides or carries on business or is employed, or if two or more different systems are in operation at that place (not being within a tribal area), the court shall not apply any such system unless it is the law of the tribe (if any) to which the defendant or respondent belongs.’

Implicit in this section is a hierarchy of choice of law rules. In the first instance, courts are directed to apply the law agreed upon by the parties. Because the section does not stipulate an express agreement, a tacit agreement could be imputed to the litigants by reason of their conduct, the nature or form of prior transactions, the cultural environment of the case or the parties' lifestyles.^[74] In most cases the existence of an implied agreement would obviate the need to consult the subsequent choice of law rules in s 1(3) (which is a considerable advantage, since these rules are conceptually confused).

In the absence of agreement, courts must apply the law of the place where the defendant resides, carries on business or is employed, provided that only one system of law prevails in that area. This rule gives no solution where a defendant is resident in one area and employed in another, and it seems inappropriate where the defendant is resident in one area but has a closer attachment, such as domicile, with another.

If there is more than one system of law applicable in the area, and if the place of residence, business or employment is not within a tribal area, and further provided that the defendant's tribal law is one of the systems applicable within the area, the court is directed to apply the law of the defendant's tribe. This rule is clearly unsatisfactory, in part because it arbitrarily prefers the defendant's (as opposed to the plaintiff's) tribal law and in part because the concept of tribe is vague and misleading.

(b) The Natal and KwaZulu Codes

The application of the Natal and KwaZulu Codes has generated especially difficult conceptual problems for choice of law. Customary law is personal in the sense that it should apply to litigants by reason of their cultural orientation, regardless where they happen to be. Both Codes correctly purport to apply to the Zulu people, but several cases have suggested that the Natal Code is territorial in application, ie, that within the province it overrides any other potentially applicable system of personal law. The effect of these decisions is to base choice of law on the conflicting criteria of person and territory.

This conceptual contradiction bedevils another question: if people from KwaZulu/Natal move to other parts of South Africa, do the Codes continue to apply to them in their new places of residence (or domicile)? While certain dicta state that the Natal Code is limited to the borders of the province, there is no definite decision indicating whether people subject to the Code are still bound by it when they go abroad. Nor is it clear whether, in order to qualify as a person subject to the Code, an individual must be a domiciliary of KwaZulu/Natal or simply a member of the ‘Zulu tribe’.

Natal and KwaZulu have now, of course, been amalgamated into one province, but as yet no provision has been made to determine how (or whether) differences between the two Codes are to be reconciled.^[75] Until specific legislative action is taken, the Constitution allows for the continued application of the Codes within the former territories of Natal and KwaZulu.^[76]

(c) Conflicts between foreign and domestic systems of law: problems of the former homelands

Whenever a litigant has a close connection with a foreign state, conflict problems will involve a territorially defined legal system. For instance, if a plaintiff subject to Pedi law were to sue a defendant subject to the Ovambo law applicable in Namibia, the laws in question have both a territorial and a personal dimension.

In some cases, the same system of customary law may be involved, as where both plaintiff and defendant are subject to Sotho law, but one is domiciled in South Africa and the other in Lesotho (where the customary law might have been repealed or modified). In other cases, it might not be clear what systems of law are in conflict. The common law of one state might seem to be applicable and the customary law of the other state. What rules should be used to select the appropriate system?

Section 1(3) of the Law of Evidence Amendment Act is worded in such broad terms - ‘In any suit or proceedings between Blacks who do not belong to the same tribe ...’ - that it could be interpreted as being applicable to regulate all these species of conflict. Admittedly, s 1(4) of the Act narrows the meaning of ‘indigenous law’ used in subsection (3) to the ‘Black law applied by the Black tribes in the Republic or in territories which formerly formed part of the Republic’, but s 1(3) is still ambiguous.

In principle, whenever the law of a foreign state is involved, the court should employ private international law to select the relevant law, because these choice of law rules were designed to cater for conflicts conceived in territorial terms. Thus, in any case involving the law of a foreign state, within which two or more personal laws are recognized and enforced, the courts must first, via private international law, locate the issue in the appropriate territorial system, and then, by reference to whatever internal conflict rules are available in that system, decide which system of personal law to apply.

This type of conflict problem is most acute in South Africa, for the previously in-dependent or semi-autonomous homelands, notably Bophuthatswana,^[77] Transkei^[78] and KwaZulu,^[79] passed legislation to modify customary law. It is assumed that these enactments were intended to apply only within the territorial boundaries of the homelands concerned. And, conversely, South African legislation directed at Africans may be assumed to apply only in South Africa (excluding the former homelands).

For purposes of private international law, laws are deemed to have intraterritorial effect. Thus South African laws obviously do not apply to the formerly independent homelands, and vice versa.^[80] None the less, matters of personal status are regulated by an individual's domiciliary law. Accordingly, South African domiciliaries will be bound by South African legislation (wherever they happen to be) and domiciliaries of Transkei and Bophuthatswana will be subject to their specific legislation (even if they happen to be present in South Africa).

The applicability of South African family law legislation to ‘self-governing territories’, notably KwaZulu, is less certain. In the areas for which they had been established, the legislative assemblies of these entities had the power to legislate over matters of personal law regarding their citizens (not their domiciliaries).^[81] Conversely, it would seem that, until a self-governing territory decided to exercise its legislative powers, South African laws continued to apply. On this reasoning, such legislation as the Marriage and Matrimonial Property Law Amendment Act^[82] applied to the citizens of these entities until its provisions were superseded by local legislation to the contrary.

Now that the homelands have been re-incorporated into South Africa, all South Africans should be subject to the same law, but the transitional provisions in the Constitution allow enactments such as the Transkei Marriage Act and the KwaZulu Code to continue in operation.

(d) Proposed reforms

The many problems associated with s 1(3) of the Law of Evidence Amendment Act can be resolved only by repealing and replacing it with a new section. First, conflicts involving foreign systems of law must be clearly excluded from the scope of this provision. Secondly, the choice of law rules designed to select a domestic system of customary law should be based on the same criteria that are used for determining applicability of common or customary law. Reference to the troublesome concept of tribe and preference for the defendant's law should be avoided. Thirdly, some attempt must be made to correct the practice of applying the Natal and KwaZulu Codes as both territorial and personal legal regimes.

A model provision might read as follows:

(1) In any suit involving domiciliaries of South Africa in which two or more different systems of customary law are applicable, the court shall apply the law that the parties have expressly agreed should apply; or, having regard to the pleadings, the nature of a prior transaction, the lifestyle of the parties, the place where the parties live or where the cause of action arose and the parties' understanding of the relevant laws, the law that the parties would have expected to apply.

(2) For the purposes of this section, legislation of any former province or homeland of the Republic shall be deemed applicable to all persons domiciled within that province or homeland.

The definition of ‘indigenous law’, currently contained in s 1(4) of the Law of Evidence Amendment Act, can be deleted. To judge from the absence of any cases in which the issue was raised, the concept of customary (or indigenous) law is quite clearly understood, and any definition is redundant.

[73] 45 of 1988.

[74] In other words, a court may utilize the various factors considered in the context of conflicts between common and customary law, and from these factors infer a common, albeit tacit, expectation that a particular law be applied.

[75] These differences are retained in terms of s 229 of the Interim Constitution, which provides all laws ‘which immediately before the commencement of this Constitution were in force in any area which forms part of the national territory’ shall continue in force ‘subject to any repeal or amendment ... by a competent authority’.

[76] Section 229, as read with s 232(1)(a)(ii).

[77] Intestate Succession Law Act 13 of 1990.

[78] Marriage Act 21 of 1978. Until repealed or modified, both these enactments will continue to apply to the areas for which the original legislative authorities were competent under s 229, as read with s 232(1)(a)(ii), of the Constitution.

[79] Act 16 of 1985.

[80] Transkei devised a code of marriage law uniformally applicable to all persons in the territory: the Marriage Act 21 of 1978.

[81] Section 3 of the National States Constitution Act 21 of 1971.

[82] 3 of 1988.

SAFLII: | | Terms of Use | Feedback
URL: http://www.saflii.org/za/other/zalc/ip/4/4-CHAPTER-6.html