Paragraph 64(1), rule 2: agreement of the parties on the applicable law
In other words, the rule provides that (subject to rule 1) the parties to a transaction are free to regulate either the whole or part of their transaction by either the common law or customary law, and that the court should give due effect to their agreement (if any) to regulate their transaction by either the common law or customary law as the pleadings and evidence in a particular case may indicate. The evidence and pleadings in this case overwhelmingly pointed to the common law as the mutually intended determinant system of law for the transaction; and it is our considered opinion that the learned judge erred in holding otherwise.
It is necessary therefore that when an action is governed by rule 6 a plaintiff who wishes to avoid the effect of the general rule should make a clear-cut and positive assertion that he does not wish his claim to be adjudicated in terms of the common law. The choice is that of the plaintiff, not that of the court, and must be made in clear and precise terms.
Paragraphs 67(1) and 72: power of the court to call a witness
In my view, the relevant provisions of paragraph 67(1) of the Courts Decree, 1966 (NLCD 84), quoted above, do not derogate in any degree from the common law rule governing the power of a judge to call a witness on his own motion to give evidence. The power conferred by the sub-paragraph can only be exercised in relation to a person who is absent from court. The power conferred by paragraph 72 of the Courts Decree, 1966 (NLCD 84), on the other hand, is exercised to compel persons present in court to give evidence and produce documents in their custody.
