SUMMARY OF RECOMMENDATIONS

Courts and litigants need clear and explicit choice of law rules to indicate when common or customary law will be applicable to the facts of a particular case. A new enactment devoted exclusively to the application of customary law is now needed in order to disentangle choice of law rules from the two statutes currently regulating this issue: the Black Administration Act (which has close association with the policies of segregation and apartheid) and the Law of Evidence Amendment Act (which is mainly concerned with ways of proving foreign and customary systems of law). The Report makes the following recommendations.

1. General principles governing application of customary law

Application of customary law should remain a matter of judicial discretion, but more exact guides to choice of law are necessary to bring certainty to an issue that is currently vague and confused. These guides should be precise, flexible, simple and in keeping with the way in which courts have been used to solving choice of law problems.

The new choice of law rules should indicate that parties are free to agree on the law that best suits their needs. If no express agreement was made, courts should attempt to discern which law the parties would reasonably have expected to apply in the circumstances of the case. In order to assist courts in this inquiry, a list of factors that typically indicate the parties' expectations should be provided. No one factor on its own should be regarded as decisive in indicating the applicable law; rather, all the factors should be considered in combination in order to discover the legal system with which the case has its closest connection.

The procedure contained in the Black Administration Act for exempting individuals from customary law is so closely identified with colonialism and apartheid that it must now be repealed.

2. The ‘repugnancy’ proviso

The repugnancy proviso no longer has useful role to play and it should therefore be repealed.

3. Competence of the courts to apply customary and common law

Race should be irrelevant both as a criterion for applying customary law and for determining the jurisdiction of traditional courts. Hence, s 12(1) of the Black Administration Act must be amended to delete any reference to `Blacks'.

4. Marriage

Wherever marriage law permits of differences between customary and common law, conflict problems will persist. Special statutory choice of law rules to regulate these conflicts would be undesirable, however, since existing case law indicates that the issues are too complex to permit legislative solutions.

5. Wills

The Report considered whether persons subject to customary law should be free to execute wills (and thereby disregard the interests of their intestate heirs under the customary system of succession). Although no final answer to this problem was possible, for the issues must be more fully explored in the context of reforms to the customary law of succession, certain amendments to existing laws are necessary. Section 23(1) of the Black Administration Act should be amended to provide that only the testator's personal interests in property may be disposed of by will and elements of gender discrimination should be removed from the regulations governing succession to land held under quitrent tenure.

6. Intestate succession

Existing choice of law rules contained in regulations issued under the Black Administration Act and in the Act itself should be deleted or amended, since they are poorly worded, conflict with proposed reforms in the customary law of marriage or no longer serve any useful purpose.

The special rule governing succession to the estates of foreigners in reg 2(a) should be deleted.

Regulation 2(b) should also be deleted, if the proposal made above to abolish the exemption procedure in the Black Administration Act is accepted.

Regulations 2(c) and (d) should be amended to provide that the law applicable to the devolution of an estate is determined by the form of a deceased's marriage, unless the deceased's actual cultural orientation indicates that a different law would be more appropriate.

Regulation 2(d), which allows an appeal to the Minister to vary choice of law, should be deleted.

Section 22(7) of the Black Administration Act, which was enacted to protect the wives of customary marriages whose unions had been extinguished by subsequent civil marriages, should be repealed.

Section 23(9) of the Black Administration Act should be amended to clarify the law applicable to estates of people who die partially testate and partially intestate.

7. Conflicts between different systems of customary law

Section 1(3) of the Law of Evidence Amendment Act should be repealed and a new provision should be drafted to give clearer rules on choice of law. Recognition should be given to the litigants' freedom to agree on the applicable law and, in the absence of an agreement, courts should apply the law with which the case has its closest connection.

8. Conflicts with foreign systems of law

Section 1(3) of the Law of Evidence Amendment Act must be amended to exclude conflicts involving foreign systems of law.

9. Application of the Kwazulu/Natal Codes and former homelands legislation

The long established practice of applying these Codes on a territorial basis should not be disturbed. The Codes should none the less only apply to domiciliaries of KwaZulu/Natal. Principles of private international law should regulate application of the Transkei Marriage Act.

10. Proof and ascertainment of customary law

Existing methods of ascertaining customary law must be retained. The practice of calling expert assessors to assist the courts, however, should be re-introduced, although care must be taken that assessors are more representative of the composition of their communities.

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