CHAPTER 2

THE `REPUGNANCY' PROVISO

A. Excerpt from the Issue Paper

2.1 [The repugnancy proviso is] a clear reflection of the ethnocentric bias in South Africa's legal system. [It] is unsatisfactory for other, technical reasons. In the first place, its scope of application is vague, for it is uncertain whether customary rules should be considered in abstract or in the context of particular facts or whether the clause should be used as a choice of law rule to avoid hard cases. In the second place, the clause can be used to subject customary law to the Constitution.

B. Problem analysis

2.2 Since the colonial administration of Natal first took cognizance of customary law in the mid-nineteenth century, recognition formulae have always contained a so-called `repugnancy proviso'. Although colonial authorities both here and elsewhere in Africa were prepared to tolerate customary law, they would not enforce rules that might offend European standards of morality and justice. South Africa's current statute on recognition continued this tradition. Section 1(1) of the Law of Evidence Amendment Act^[1] declared that courts may take judicial notice of customary law,

`Provided that [it] shall not be opposed to the principles of public policy or 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 ...'.

2.3 It is somewhat surprising to find that, even in the colonial period, courts have seldom invoked this clause; and for the last thirty years they have scarcely mentioned it. On the face of it, then, the repugnancy proviso appears to be an anachronism. Nevertheless, it could gain a new lease of life in the hands of a judiciary determined to promote human rights, for the terms `natural justice' and `public policy' could be read as co-extensive with the Bill of Rights. The courts would then have a pretext for subordinating customary law to the Constitution without having to engage in the difficult debate about whether to extend the Bill of Rights to private relationships or whether to allow rights to be limited by rules of customary law.

C. Submissions and comparative survey of laws

2.4 Both the Zion Christian Church and the Gender Research Project (CALS) urged abolition of the repugnancy proviso, and, because of its strong associations with the colonial past, most African countries abolished the proviso when they gained independence.^[2] Where the clause was retained, it was usually made applicable only in courts of traditional leaders.^[3]

D. Evaluation

2.5 The terms `public policy' and `natural justice' are notoriously vague, and their meanings may well overlap.^[4] None the less, they are still separate and definable concepts. While natural justice can denote substantive principles of the natural law, today it is normally identified with basic requirements of procedure.^[5] By contrast, public policy is usually associated with substantive law, and, unlike natural justice, it denotes the practical needs of a particular society. Hence, public policy is neither universal nor eternal and it does not necessarily propose an ideal standard to which all law ought to conform. Rather, it is a principle that can be invoked from time to time, as circumstances demand, to override rules of positive law.^[6]

2.6 On the few occasions when the South African courts referred to the repugnancy proviso, it was not always clear why or in what way customary law was at fault. Sometimes the courts refused to apply rules of customary law and sometimes particular transactions.^[7] Strictly speaking, transactions fall outside the scope of the repugnancy proviso, which was intended to strike down certain offensive rules for all time. Courts always have a residual discretion to refuse to enforce customs or contracts that contravene boni mores.^[8]

2.7 In other cases, a rule of customary law might have violated the repugnancy proviso in the abstract or only in the context of a specific set of facts.^[9] Again, strictly speaking, the repugnancy clause should be reserved for assessing rules in abstract.^[10] If it were to be invoked when customary law might, on the facts of a particular case, produce a harsh result for one of the parties, the overall choice of law process would become capricious and uncertain.

2.8 In fact, notwithstanding the generous discretion implicit in the repugnancy proviso, South African courts have exercised their powers under it very sparingly. Like their counterparts in other parts of southern Africa, they declared customary law repugnant only when it impressed them `with some abhorrence' or an obvious `immorality'.^[11] Thus the proviso was appealed to in only a handful of cases, most of which involved customary rules inhibiting the freedom to marry,^[12] although some restricted liberty,^[13] encouraged sexual immorality^[14] or favoured succession by illegitimate children.^[15]

2.9 Had the courts been prepared to invoke the proviso more often, they could have furthered the cause of women and children's rights by deleting outdated and socially inappropriate rules. Their hesitance is, however, understandable, for, if they had fully exploited their powers, they could have invalidated large areas of customary law.^[16]

2.10 In recent years, no reference has been made to the proviso at all, prompting one author to say that it has outlived its usefulness.^[17] Nevertheless, the repugnancy proviso could be revived to play a more dynamic role in South Africa's new constitutional order. Through it the courts could screen customary law against the Bill of Rights.

2.11 Attractive as this proposition may seem, it should in principle be avoided. First, to assume that the terms `public policy' and `natural justice' are synonymous with the catalogue of rights contained in ch 2 of the Constitution is misleading. The repugnancy proviso involves norms of high abstraction, and, while these norms might be informed by human rights, they are superordinate values that transcend even the Constitution.

2.12 Secondly, the repugnancy clause should not be used to skirt the serious issues raised by the Constitution. Whether or not fundamental rights should override customary law may be formally posed as an issue of limitation of rights and horizontal application or as an issue of repugnancy. The form of the ensuing debate is not without significance. The repugnancy proviso - a mark of colonial paternalism - is not an appropriate medium for determining the constitutional validity of customary law. This is an issue deserving a more thoughtful and a more rigourous discourse.^[18]

2.13 Finally, s 211(3) of the Constitution expressly states that application of customary law is subject to the Bill of Rights. In view of this provision, the repugnancy proviso is now superfluous to any inquiry into the constitutional validity of customary rules.

2.14 The special protection that the repugnancy proviso affords lobolo is also now redundant. According to proposals made by the Law Commission in its Report on Customary Marriages,^[19] lobolo agreements should continue to be enforced and recognized but subject to new terms and conditions set by the Bill of Rights and legislation regulating the spouses' relationships with one another and with their children.

E. Recommendations

2.15 The repugnancy proviso is an unwelcome reminder of the superior role enjoyed the common law in South Africa's legal system. The proviso no longer has useful role to play, and it should therefore be repealed.

[1] 45 of 1988.

[2] Cf Kenya, s 3(2) of the Judicature Act Cap 8, and Botswana, s 2 of the Common Law and Customary Law Act Cap 16:01.

[3] In Lesotho by s 9 of Proc 62 of 1938 and Swaziland by s 11(a) of Act 80 of 1950. The assumption seems to have been that traditional leaders are more likely to favour customary law and that their partisan approach has to be corrected.

[4] Use of `or' in s 1(1) of the Law of Evidence Amendment Act, however, suggests that the terms be considered separately.

[5] Such as the audi alteram partem rule. The repugnancy proviso was applied in this sense in Phiri v Nkosi 1941 NAC (N&T) 94 at 98 and S v Mukwevho; S v Ramukhuba 1983 (3) SA 498 (V) at 502.

[6] Peart 1982 Acta Juridica 108.

[7] As in the court's ambiguous decision in Gidja v Yingwane 1944 NAC (N&T) 4 at 5-6.

[8] Including ones associated with common law. See the decisions in Nowamba v Nomabetshe 1906 NHC 39 and Matiwane v Bottomani 1932 NAC (C&O) 18. See further Bennett Application of Customary Law 84-5 and Masango v Ngcobo 1938 NAC (N&T) 155 at 157.

[9] In Mokhesi v Nkenjane 1962 NAC 70 (S), for instance, a woman under the age of 21 was persuaded to run away with a man and marry him by civil rites. Her guardian sued the man under customary law for abducting his daughter and marrying her without paying lobolo. The court refused the claim, holding that the conduct complained of was sanctioned by common law. In other words, to apply customary law (with the implication that the conduct amounted to abduction) was repugnant to the principles of public policy and would penalize conduct permitted by the common law. If the woman had been over the age of 21, the court might have reached a completely different conclusion.

[10] Which would be borne out by a literal interpretation of s 1(1) of the Law of Evidence Amendment Act 45 of 1988.

[11] Chiduku v Chidano 1922 SR 55 at 58. See, too, Matiyenga & another v Chinamura & others 1958 SRN 829 at 831.

[12] For example, Zimande v Sibeko 1948 NAC 21 (C) at 23, Zulu v Mdhletshe 1952 NAC 203 (NE) and Mngomezulu v Lukele 1953 NAC 143 (NE).

[13] Gidja v Gingwane 1944 NAC (N&T) 4.

[14] Palamahashi v Tshamane 1947 NAC (C&O) 93 and Linda v Shoba 1959 NAC 22 (NE).

[15] Dumalitshona v Mraji 5 NAC 168 (1927), Madyibi v Nguva 1944 NAC (C&O) 36 and Qakamba & another v Qakamba 1964 BAC 20 (S). In a residual category of cases, customary law was struck down simply because it appeared unjust. These cases included a rule that lobolo must be returned in full when a customary marriage was terminated by the wife's premature death (Gidja v Yingwane 1944 NAC (N&T) 4 at 7) or a rule that a replacement beast must be given for a cow that had been loaned, when the cow had died and the death was not reported to the owner (Mcitakali v Nkosiyaboni 1951 NAC 298 (S)).

[16] See Meesadoosa v Links 1915 TPD 357 at 361.

[17] Peart (n149) 116.

[18] The discourse of colonialism was grounded on an arrogant assumption that European standards were the only ones worth considering. Hence, the repugnancy proviso gave judges licence to dismiss African institutions without examining their essential purpose and context.

[19] See paras 4.3.3.14-16.

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