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RPR210
RPR210: CHAPTER 5 – INTERNAL CONFLICT OF LAWS
Conflict of laws
• Conflict of laws refers to the method of choosing an appropriate rule to apply to the
interests of justice or the rules for choosing the appropriate law (does NOT refer to
the conflict between legal system)
Conflict of laws can take 2 forms (PIL, PoICoL) / applies to 2 kinds of conflicts (2L2C, 2L1C):
1. Private international law (PIL)
o Conflict between rules belonging to the legal systems of two different
countries (2L2C)
o i.e. when choosing the appropriate law to apply in instances where there
is conflict of 2 legal systems in 2 different countries, we use the rules of
private international law
2. Personal or internal conflict of laws (PoICoL)
o Conflict between different legal systems operating within one country
(2L1C)
o i.e. when choosing the appropriate law to apply in instances where there
is conflict of 2 legal systems in 1 country, we use the rules of personal or
internal conflict of laws
Conflict of laws under customary law:
• conflict of laws started in the pre-colonial era
o precolonial Africa had kingdoms which applied different legal systems.
Consequently, the social, commercial, economic, and political interactions
among people belonging to different jurisdictions and subject to different
legal systems (particularly, the different systems of customary law) led to the
existence of problems relating to conflict of laws
o conflict of laws focuses on the methods used to resolve disputes arising from
such interactions (between people and organizations)
• some writers believe that conflict of laws started from the time of colonization
(colonial period), but this view is INCORRECT
o this view creates the false impression that the management of conflict of
laws is a foreign concept that was introduced to Africa by foreigners
• The nature of customary law facilitates the avoidance of conflicts between different
systems of customary law
• Customary law resolves conflicts between the laws of different systems of customary
law that occur between different communities
• customary law also resolves conflicts between different versions of customary law
within the same community
Conflicts under customary law are avoided in the following ways:
(i.e. mechanisms for avoiding conflict)
The tendency to integrate The tendency of The tendency of African
different communities communities to keep to communities to continue
into one legal system themselves when to respect each other’s
contracting marriages cultures and way of life
and conducting business after integration
transactions (trade)
Usually the legal
system of the dominant
group After integration, by allowing diversity
in the context of unity, communities
i.e. resolving the managed to minimize conflicts in their
conflict of cultures thru different approaches to the conduct of
social integration marriages, birth rituals, and funerals
Example of customary law providing a solution to the issues surrounding the custom of
lobolo negotiations and marriage:
- during the lobolo negotiations, the customary law of the bride will be applied that
regulates the hosting of the negotiations and the delivery of goods
- after conclusion of marriage, the customary law of the husband will be applied that
regulates the day to day affairs of the couple and governs the family unit
• even with these mechanisms, sometimes conflict could not be avoided -> in these
cases there were rules used to determine the applicable system
Legislative intervention:
• the Law of Evidence Amendment Act (LEAA) is the legislation that Parliament
enacted to regulate the determination of the version of customary law to be chosen
in conflicts between different systems of customary law
• S1(3) of LEAA is the conflict of laws provision:
, o To resolve conflict of laws and decide which version of customary law to
apply to the case, the court must follow the following steps:
o Find out whether the parties agreed on the legal system / version of
customary law to be applied at the judicial proceeding
o If there is an agreement -> Court must apply the decision of the parties and
implement the agreement
o If there is no agreement -> court must select customary law that applies to
the place where the defendant resides or works
o If the defendant’s version of customary law has multiple versions prevalent
-> court must apply first version of customary law
Conflict rules regulating conflicts between customary law and the common law
• Conflicts also occur between customary law and common law (where they compete
for selection)
• In SA, the attempts to address these conflicts have a long history dating back to the
arrival of the Dutch at the Cape
The regulation of conflict of laws under section 211(3) of the constitution:
• Conflict of laws became subject to regulation by the consti -> S211(3) is a conflict of
laws rule
• S211(3): the courts must apply customary law when that law is applicable, subject to
the consti and any legi that specifically deals with customary law
• i.e. consti is supreme and it says that the law applicable to the issue at hand will be
applied in the interests of justice
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