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• Conflicts With Foreign Systems Of Law
• A. Excerpt From The Issue Paper
• B. Problem Analysis
• C. Evaluation
• D. Recommendations

CHAPTER 8

CONFLICTS WITH FOREIGN SYSTEMS OF LAW

A. Excerpt from the Issue Paper

8.1 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.

B. Problem analysis

8.2 Any connection between the litigants (or cause of action) and a foreign state may generate a conflict problem falling into this category, and many variations are possible. For instance, a South African subject to Venda customary law might marry a Nigerian subject to Yoruba law. Or a South African subject to Zulu law might die domiciled in Zimbabwe, where the common law might be applicable to the estate.

8.3 The same system of customary law may be involved, but the foreign system might have been repealed or modified by legislation and the South African version unchanged. For example, both parties might be subject to Tswana law, but the one might be domiciled in South Africa and the other in Botswana (where the customary law had been superseded by statute). Alternatively, 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.

8.4 What choice of law rules should be used to select the appropriate system? Section 1(3) of the Law of Evidence Amendment Act,^[1] opens with the phrase `In any suit or proceedings between Blacks who do not belong to the same tribe ...', which is so broad that it could be interpreted as applying to conflicts involving foreign law.<sup>[2]</sup> Section 1(4) might cure this ambiguity, of course, because the section provides that the `indigenous law' referred to earlier means `the Black law or customs as applied by the Black tribes in the Republic or in territories which formerly formed part of the Republic'. By definition, then, foreign systems of customary law would be excluded from the ambit of the Act. If that is the case, how should courts decide conflicts with foreign laws?

C. Evaluation

8.5 In principle, whenever the law of a foreign state is involved, the courts should use choice of law rules provided by private international law,^[3] because these rules were specifically designed to cater for conflicts conceived in territorial terms.^[4]

8.6 Once a conflict problem involves both a system of personal law and the law of a foreign state, choice of law should proceed in two stages. A court 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. In a sense, the process involves two conflicts, one territorial and the other personal. When two territorially defined systems of law appear to be applicable to a case and one or both recognize personal systems of law, the court must first apply choice of law rules derived from private international law to decide which state's law is applicable. If that state enforces two or more systems of personal law, the court must then ask which of the personal laws are applicable. To answer that question, internal conflict rules from the country concerned would be applicable.^[5]

D. Recommendations

8.7 Section 1(3) of the Law of Evidence Amendment Act must be amended to make it clear that conflicts involving foreign systems of law are excluded. Once this change has been made, the courts will be free to apply principles of private international law to solve conflicts arising in this category. An explicit statutory provision to that effect would be unnecessary.

[1] 45 of 1988.

[2] Bennett Application of Customary Law 131.

[3] Botswana made express statutory provision in this regard: s 6(2)(a) of the Common Law and Customary Law Act Cap 16:01.

[4] Bennett (1980) 43 Tydskrif vir Hedendaagse Romeins-Hollandse Reg 28.

[5] See, for instance, King v Elliot [1972] 1 Ghana LR 54 and Omane v Paku [1972] 1 Ghana LR 295 (HC); [1973] 2 Ghana LR 66 (CA) and the comment by Tier (1986) 30 Journal of African Law 10-13.