CHAPTER 7

CONFLICTS BETWEEN DIFFERENT SYSTEMS OF CUSTOMARY LAW

A. Excerpt from the Issue Paper

7.1 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.

B. Problem analysis

7.2 Section 1(3) of the Law of Evidence Amendment Act lays down choice of law rules for courts presented with conflicts between different systems of customary law.^[1]

`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.'

7.3 Although not clearly stated, this section suggests a hierarchy of choice of law rules. In the first instance, courts are directed to apply whatever law was agreed upon by the parties. Because the section does not stipulate an express agreement, courts would be free to impute a tacit or implied agreement, and to do so they might refer to the parties' prior conduct, the nature or form of a transaction and the parties' cultural orientation.^[2]

7.4 If the appropriate law cannot be chosen by reference to an agreement, a court would then have to consider the remaining choice of law rules listed in s 1(3). It would have to apply the law of the place where the defendant resided, carried on business or was employed,^[3] provided that only one system of law prevailed in that area. This rule bristles with problems. What if the defendant is resident in one area and employed in another? What if he or she is resident in one area but has a closer attachment, such as a domicile, with another? Why should the common-law connecting factor of residence^[4] be preferred to a traditional customary-law connecting factor, such as allegiance to a traditional authority?

7.5 If more than one system of law is applicable in the defendant's area, and, if the place of residence, business or employment is not within a `tribal area' (which presumably means an urban area), and further provided that the defendant's tribal law is one of the systems applicable within the area, the court would be obliged to apply the law of the defendant's tribe. This rule is also unsatisfactory.^[5] First, it is arbitrary to prefer the defendant's as opposed to the plaintiff's tribal law,^[6] for roles of plaintiff and defendant are determined by the tactics of litigation, which is hardly a principled foundation for choice of law. Secondly, the concept of tribe is vague and confusing.^[7]

C. Comparison with the laws of other African countries

7.6 Choice of law rules in Botswana and Zimbabwe, two countries that legislated about conflicts between different systems of customary law, are similar in one respect to s 1(3) of South African's Law of Evidence Amendment Act: they also placed emphasis on the litigants' actual or presumed intention.^[8] There similarities end, however, because, if no intent can be imputed to the parties, the legislation in Botswana and Zimbabwe adopted choice of law rules derived from private international law.

7.7 In Zimbabwe,^[9] the court must apply the law `with which the case and the parties have the closest connexion'. And, if that law is not ascertainable, the court is directed to whichever law is considers `just and fair' to apply in the case. The notion of close connection is widely used in private international to determine the `proper law' applicable to contracts. In Botswana, in matters concerning land, the applicable law is that of the place where the land is situated^[10] and in matters of inheritance the `law applying to the deceased'.^[11] Subject to these two provisions, courts are directed to the parties' actual or presumed intent.^[12]

D. Evaluation

7.8 The current s 1(3) of the Law of Evidence Amendment Act was lifted directly from s 11(2) of the Black Administration Act.^[13] Not only were these provisions poorly drafted but the conceptual basis for the choice of law rules was also defective (for the reasons mentioned above).

7.9 The only defensible rule contained in s 1(3) is the reference to an agreement by the parties. Nevertheless, it should be appreciated that in practice litigants will very rarely enter into an express agreement before they come to court. Reference to an implicit agreement would therefore cater for many more cases.^[14]

7.10 To some extent it is true that the notion of an implied consent is artificial. As Professor A J Kerr (Rhodes University) says, a judge's decision will seldom in reality represent the parties' common intent.^[15] Indeed, when seeking to impute an agreement to the parties, courts are likely to traverse grounds similar to those needed for discovering with which law the case has its closest connection. Implied intent and close connection merely emphasize subjectivity and objectivity, respectively. Both approaches have a role to play in choice of law (as is evident from the statutory rules in Zimbabwe) and both are widely used in private international law to discover the `proper law' of contracts and sometimes delicts.

7.11 The `proper law' approach is a sensible one for most choice of law problems, because it encourages the courts to investigate a wide range of connecting factors. These would include: the domicile, residence or affiliation to a traditional authority and the place where a cause of action arose. From a grouping of these factors a prevailing law may be inferred.^[16]

7.12 While this approach would in most cases obviate the need to consult any other choice of law rules, the two included in Botswana's legislation are worth mentioning. Referring questions about land to the law of the place where the land is situated yields a quick, certain solution,^[17] and so, too, does reference of matters of succession to the personal law of the deceased.^[18]

E. Recommendations

7.13 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. For conflicts between domestic systems of customary law, the choice of law rules need to be simplified, preference for the defendant's law removed and reference to `tribal' law deleted.

7.14 New legislation should recognize the litigants' freedom to choose the law that best suits their purposes. Hence, they should be entitled to agree expressly on the applicable law, or, failing an express agreement, the courts should be directed to impute an implicit agreement to the parties based on their previous dealings with one another.

7.15 In the absence of any form of agreement, the courts should apply the law with which the case has its closest connection. (The criteria for determining `close connection' will in fact be similar to those used for selecting domestic systems of common or customary law.) Causes of action involving land and succession may conveniently be referred to the law of the place where the land is situated and the deceased's personal law, respectively.

[1] 45 of 1988. Note that the `indigenous law' mentioned in this section is defined in s 1(4) to mean `the Black law or customs as applied by the Black tribes in the Republic or in territories which formerly formed part of the Republic'.

[2] See, for instance, Mahlaba v Mdladlamba 1946 NAC (C&O) 51 and Govuzela v Ngavu 1949 NAC 156 (S).

[3] See Govuzela's case above and Rubushe v Jiyane 1952 NAC 69 (S).

[4] According to Ex parte Minister of Native Affairs 1941 AD 53, the concept of residence must be interpreted according to the common law. See further Madhlala v Mbata 1939 NAC (N&T) 141.

[5] See Forsyth (1979) 96 SALJ 418 and Lewin (1944) 61 SALJ 269.

[6] Although preference for the defendant's law has ancient origins: Bennett Application of Customary Law 120.

[7] Bennett Application of Customary Law 118-19.

[8] Section 4 of Zimbabwe's Customary Law and Local Courts Act Cap 7:05 and s 6(1) Rule 4(c) of Botswana's Common Law and Customary Law Act Cap 16:01.

[9] Section 4 of the Customary Law and Local Courts Act Cap 7:05.

[10] Section 6(1) Rule 4(c) of the Common Law and Customary Law Act Cap 16:01.

[11] Section 6(1) Rule 5. See, too, In re Larbi [1977] 2 GLR 502 (CA) and Olowu [1985] 3 Nigerian Weekly LR 372 (SC) for references to the personal law of a deceased.

[12] Section 6(1) Rule 2.

[13] 38 of 1927. The original version of s 11(2) was taken from Transkeian legislation of 1879, which directed courts to apply the law of the defendant's place of residence. This provision was amended by s 5 of Act 21 of 1943 to produce the exemplar for s 1(3) of the Law of Evidence Amendment Act.

[14] See above para 1.82.

[15] Because litigants usually have directly opposed views when they come to court, and prior to that they probably never thought about the matter. See above para 1.81.

[16] The proper law approach was also generally advocated for conflicts between customary and common law. See above paras 1.91 and 1.102 and Bennett Application of Customary Law 122.

[17] Bennett in Kahn The Quest for Justice 123.

[18] In private international law, questions of intestate succession are generally referred to the law of the deceased's last domicile: Forsyth Private International Law 340-1.

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