When it applies
The Choice of Path
Deciding whether customary law or common law governs.
The applicability question
Section 211(3) says courts apply customary law "when that law is applicable". Whether it applies is a choice-of-law (conflict-of-laws) question — deciding which system governs a particular matter or dispute.
Factors
- The nature of the transaction or dispute (is it a customary institution, e.g. lobolo?)
- The parties' agreement, intention and lifestyle (do they live by customary law?)
- The environment and social context in which the matter arose
- Fairness and the interests of justice, guided by the Constitution
Key Rule
Whether customary law applies is a choice-of-law question turning on the nature of the matter, the parties' lifestyle and agreement, and the environment — no longer on a repugnancy test.
Ascertainment
Reading the Bones
How courts establish the (living) content of the rule.
Judicial notice
Under s 1(1) of the Law of Evidence Amendment Act 45 of 1988, a court may take judicial notice of customary law insofar as it can be ascertained readily and with sufficient certainty. Where it cannot, the content must be proved by evidence.
How living law is proved
- Expert and assessor evidence on the community's practice
- Oral testimony from community members and traditional leaders
- Textbooks, restatements and precedent — treated with caution as they may state official (frozen) law
The difficulty
Ascertaining living law is hard: it is unwritten, varies between communities, and evolves. Courts must guard against accepting a distorted official version in place of the community's actual practice.
Key Rule
Courts take judicial notice of customary law where it is readily ascertainable with sufficient certainty (s 1(1), Act 45 of 1988); otherwise it must be proved by expert/oral evidence — aiming at the living law.
Common Mistake
Proving customary law only from old textbooks or codes. These may state official law; the court should seek the living law through community and expert evidence.
Internal conflict
The Crossing Paths
Internal conflict of laws — when systems meet.
Internal conflict of laws
Because SA has several systems, disputes arise about which one governs — e.g. where the parties belong to different systems, or a matter straddles customary and common law. This is the field of internal conflict of laws.
Resolving it
There is no rigid code; courts weigh the connecting factors — the parties, the nature of the transaction, and the environment — to choose the applicable system, always consistently with the Constitution.
Key Rule
Internal conflict of laws asks which SA system governs a matter. Courts weigh the parties, the transaction and the environment, subject to the Constitution.