Common Law in Southern Africa: Conflict of Laws and Torts Precedents

By Peter B. Kutner | Go to book overview
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4
CHOICE OF LAW

PROOF OF FOREIGN LAW

A litigant who intends to base a claim or defence on foreign law must establish the content of the appropriate law in a proper manner. Southern Africa's adoption of English law as the common law of evidence brought with it the rule that the content of foreign law is a question of fact and must be proved--usually by the evidence of an expert.1

Whatever the merits of this rule as a general proposition, a requirement of formal proof is unjustified, it is submitted, in the case of a law from a country whose legal system shares a common origin with the court's own system and whose contents can readily be understood and interpreted by judges and counsel. Foreign cases, statutes and texts are frequently used in common law countries and Southern Africa for the purpose of deciding a point of domestic law, without any question of formal proof or expert evidence. One might propose that courts in common law jurisdictions be free to refer directly to the law of another common law jurisdiction and interpret it independently, when a question of foreign law arises, and that courts in Southern Africa have a similar freedom with respect to the law of other Southern African countries.

Perhaps Southern Africa should also apply this approach to the law of common law countries, especially England, which is familiar to Southern African lawyers and which has given Southern Africa

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1
See Forsyth, 76-81; van der Morkel Merwe, Paizes & Skeen, Evidence 360-61 ( 1983).

-61-

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