Question 1 Section 9 of the Constitution of the Republic of South Africa, 1996 prohibits
discrimination on the basis of sexual orientation. Moreover, the Civil Union Act 17 of 2006
recognizes same-sex marriages. Keeping in mind the positivist theory of adjudication, is the
South African position...
Question 1 Section 9 of the Constitution of the Republic of South Africa, 1996 prohibits
discrimination on the basis of sexual orientation. Moreover, the Civil Union Act 17 of 2006
recognizes same-sex marriages. Keeping in mind the positivist theory of adjudication, is the
South African position on homosexuality based on law or morality? Discuss. Your answer
should not exceed 750 words. (15) NB: This question does not require you to discuss the
Constitution or the Civil Union Act.
ANSWER
The South African position of homosexuality is primarily based on law rather than morality as
reflected in section 9 of the constitution. This aligns with the positivist theory of adjudication,
which emphasizes the importance of interpreting and applying the law as it is written, rather than
relying on personal moral beliefs.
Positivism holds that the law is a separate and distinct entity from morality, and that judges
should focus on the text and intent of the law when making decisions. In the case of South
Africa, the Constitution explicitly prohibits discrimination on the basis of sexual orientation in
Section 9. This provision reflects the country's commitment to equality and non-discrimination,
and it is the duty of the judiciary to uphold and enforce this constitutional right.
The Civil Union Act further reinforces the legal recognition of same sex marriage in South
Africa. South Africa became the fifth country in the world to legalize same sex marriage after
this legislation in 2006. The Act provides for the solemnization and registration of civil unions
between same-sex couple since they are granted the same legal rights and responsibilities as
heterosexual couples. By enacting this law, the South African government demonstrated its
commitment to equality and non-discrimination in the realm of marriage.
It is important to note that the positivist theory of adjudication does not completely exclude
moral considerations from the legal process. While judges are expected to focus primarily on the
law, they may also take into account broader societal values and principles when interpreting and
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