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HFL1501Portfolio
Semester 2
2020
Simple law @ Stuvia
, PART 1
QUESTION 1:
During the colonial period, there’s a policy that was followed
that did not give recognition of Indigenous law. In those
instances where indigenous law was recognised, it was
subject to the strict application of a repugnancy clause,
which determined that indigenous law would apply only in
as far as it was not contrary to the Western notion of public
policy and natural justice. This notion was referred to as
“repugnancy clause”.
Indigenous African law is still subject to a repugnancy
clause. The repugnancy clause was originally introduced
during the colonial period when the Cape was under British
rule. The administrator’s only recognised indigenous African
law in as far as it was not contrary to the Western notion of
public policy and natural justice. The repugnancy clause
was later inserted into the Black Administration Act 38 of
1927. Today, the repugnancy clause is contained in the
Law of Evidence Amendment Act 45 of 1988. Section 1(1)
of this Act provides that:
Any court may take judicial notice of the law of a foreign
state and of indigenous law in so far as such law can be
ascertained readily and with sufficient certainty: Provided
that indigenous law shall not be opposed to the principles of
public policy and natural justice: Provided further that it
shall not be lawful for any court to declare that the custom
of lobola or bogadi or other similar custom is repugnant to
such principles.
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