Exam (elaborations)
MRL3701 ASSIGNMENT 2 SOLUTIONS 2021 SEMESTER 1 AND 2
- Institution
- University Of South Africa (Unisa)
MRL3701 ASSIGNMENT 2 SOLUTIONS 2021 SEMESTER 1 AND 2
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LCP4804 ASSIGNMENT 2 SOLUTIONS 2021 SEMESTER 1 AND 2QUESTION 1
i. The courts are obliged by section 211(3) of the Constitution to apply
customary law when it is applicable, subject to the Constitution and any
legislation that deals with customary law. It must then be noted that in doing
so the courts must have regard to the spirit, purport and objects of the Bill of
Rights.
In terms of section 39(2) of the constitution, when interpreting customary law
customary law, the courts must develop it in accordance with the spirit,
purport and objects of the Bill of rights. This suggests that the courts are
expected to more than simply consider the Bill of Rights to trump customary
rules that are incompatible with it. Therefore, any conflict between customary
law and fundamental rights must be resolved by some nuanced balancing
process.
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