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FUR2601 Assignment 2 Semester 2 2024 - DUE 27 September 2024
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FUR2601 Assignment 2Semester 2 2024 - DUE
27 September 2024
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,FUR2601 Assignment 2 Semester 2 2024 - DUE 27 September 2024
Question 1
Describe The Role Of And How Extensively The Constitutional Court Used
International Law As Well As Foreign Law In The Interpretation Of The Rights In
The Bill Of Rights. (10 Marks)
Introduction
The Constitutional Court of South Africa has played a pivotal role in interpreting
the Bill of Rights. In doing so, it has not only relied on domestic legal principles
but also extensively referenced international law and foreign law. This approach
aligns with the South African Constitution, which mandates the consideration of
international law and allows for the use of foreign law in interpreting the Bill of
Rights.
Constitutional Framework
Section 39 of the South African Constitution outlines the interpretive guidelines for
the Bill of Rights:
• Section 39(1): When interpreting the Bill of Rights, a court, tribunal, or
forum must promote the values that underlie an open and democratic society
based on human dignity, equality, and freedom; must consider international
law; and may consider foreign law.
• Section 39(2): When interpreting any legislation, and when developing the
common law or customary law, every court, tribunal, or forum must promote
the spirit, purport, and objects of the Bill of Rights.
Role of International Law
, International law has played a significant role in shaping the Constitutional Court's
jurisprudence. The Court uses international law to:
1. Interpret Rights: The Court often looks to international human rights
instruments and the jurisprudence of international bodies to interpret the
scope and meaning of rights in the Bill of Rights.
2. Ensure Compliance: By considering international law, the Court ensures
that South Africa complies with its international obligations.
3. Develop Principles: International law provides a rich source of principles
that can be adapted to the South African context to address local issues.
Role of Foreign Law
Foreign law serves as a comparative tool for the Constitutional Court:
1. Comparative Analysis: The Court examines how other jurisdictions
interpret similar rights to inform its own interpretations.
2. Benchmarking: By referencing foreign law, the Court can gauge whether
South African jurisprudence aligns with global standards.
3. Innovative Solutions: Foreign jurisprudence can offer innovative solutions
to complex legal issues that South Africa faces.
Case Law Illustrations
**1. S v Makwanyane and Another (1995)
In this landmark case abolishing the death penalty, the Court extensively
referenced international human rights instruments such as the International
Covenant on Civil and Political Rights (ICCPR) and the African Charter on
Human and Peoples' Rights. The Court also looked at the jurisprudence of various
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