What is a repugnancy clause?
What is a repugnancy clause?
The repugnancy doctrine was introduced into Nigeria in the 19th century through the received English laws. This doctrine prescribes that the courts shall not enforce any customary law rule if it is contrary to public policy or repugnant to natural justice, equity and good conscience.
Does the repugnancy clause still apply in South Africa?
The so-called ‘repugnancy proviso’ has not been invoked by South African courts for many years and in other southern African states it has been repealed because of its associations with the colonial past.
What is the meaning of repugnancy test?
The process for determining the abolition or rejection of perceived unwholesome or inhuman Customary Law on the ground that it is obnoxious is what is now very popularly known as the Repugnancy Test.
Which act currently contain repugnancy clause?
An example of this repugnancy clause is in the Law of Evidence Amendment Act 45 of 1988 (quoted below), which codifies the fact that the courts may take judicial notice of customary law, though this is qualified by the fact that such law has to be “readily ascertainable and sufficiently certain”.
What is a repugnancy clause in South Africa?
This doctrine prescribes that the courts shall not enforce any customary law rule if it is contrary to public policy or repugnant to natural justice, equity and good conscience.
What is repugnancy test of customary law?
What does the Constitution say about indigenous law?
Indigenous law is applied in the ordinary courts. The Evidence Amendment Act, (Act 45 of 1988) stipulates that a court can take judicial notice of indigenous law, provided that it is not in conflict with the principles of public policy or natural justice.
How do you prove customary law in court?
The proof of customary law in court is governed by the copious provision of Section 16 of the Evidence Act 2011. The summary of the Act therefore is a customary law can either be proved by direct evidence to establish its existence or by established judicial notice.
What is meant by repugnancy clause in South Africa?
What is indigenous law in South Africa?
Indigenous law has been defined by the Constitutional Court of South Africa in as having three different forms: law practised in the community; law in statutes, case law or textbooks on official customary law; and academic law that is used for teaching purposes (Bhe v Magistrate Khayelitsha [2005] 1 SA 580 (CC) at [152 …
What makes customary law valid?
Validity of customary law This test generally means that where a subject matter is governed exclusively by a law or statute for the time being in force, any customary law that is inconsistent with such a law or statute cannot be valid.
What is meant by the repugnancy clause and say whether it still applies in South Africa today?
What does repugnancy mean in law?
Repugnancy An inconsistency or opposition between two or more clauses of the same deed, contract, or statute, between two or more material allegations of the same Pleading or between any two writings. Inconsistent defenses or claims are permitted under the Federal Rules of Civil Procedure.
Why are repugnancy clauses so notorious today?
The repugnancy clauses are notorious today because they reflect an assumption of cultural superiority. The Act also explicitly recognizes polygamous customary marriages, and does not subject customary matrimonial law to a repugnancy clause.
Does repugnancy doctrine have a positive role in the development of customary law?
The doctrine is generally criticised for its use of foreign standards to assess the validity of the customary law rules. This article, however, contends that repugnancy doctrine had played a positive role in the development of customary law in Nigeria by removing its harsh aspects.
What is the repugnancy clause in Nigeria?
The repugnancy clause is found in both the early and modem statutes dealing with the administration of justice in Nigeria. Section 19 of the Supreme Court Ordinance 19143 is one of the earliest provisions on the repugnancy test and states as follows:
