n Tydskrif vir die Suid-Afrikaanse Reg - The internal conflict of law and the intestate succession of Africans : regspraak

Volume 2003, Issue 1
  • ISSN : 0257-7747
  • E-ISSN: 1996-2207



When an African dies intestate the manner in which his estate will be devolved may be regulated either by common law or customary law (for the purposes of this note the term common law means the body of rules common to the country as a whole). In order to determine which legal system is applicable in a particular case regard must be had to the so-called choice of law rules. These rules form a part of that branch of the legal system known as the internal conflict of laws. Following the transition to democracy in 1994 it was inevitable that the constitutional validity of at least some of these rules would be challenged given their genesis in the pre-constitutional era. It is therefore somewhat surprising that, to date, only one such challenge has been reported, namely (2000 2 SA 49 (N)). The decision in this case is accordingly of some significance and consequently deserves consideration. Before turning to consider the facts and judgment of this case it will, however, be useful to set out in broad terms the choice of law rules governing intestate succession for Africans.

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