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FUR2601 Assignment 2 (COMPLETE ANSWERS) Semester 2 2024 - DUE 27 September 2024 Course Fundamental Rights (FUR2601) Institution University Of South Africa (Unisa) Book The Bill of Rights HandbookR49,47
FUR2601 Assignment 2 (COMPLETE ANSWERS) Semester 2 2024 - DUE 27 September 2024 Course Fundamental Rights (FUR2601) Institution University Of South Africa (Unisa) Book The Bill of Rights Handbook
FUR2601 Assignment 2 (COMPLETE ANSWERS) Semester 2 2024 - DUE 27 September 2024
Course
Fundamental Rights (FUR2601)
Institution
University Of South Africa (Unisa)
Book
The Bill of Rights Handbook
FUR2601 Assignment 2
(COMPLETE ANSWERS)
Semester 2 2024 - DUE 27
September 2024 ; 100%
TRUSTED
ADMIN
[COMPANY NAME]
,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)
The Constitutional Court of South Africa has a well-documented
history of using international law and foreign law in its
interpretation of the rights enshrined in the Bill of Rights. This
approach aligns with Section 39(1) of the South African
Constitution, which explicitly directs courts to consider international
law and permits the use of foreign law in interpreting the Bill of
Rights. Here is a detailed description of how the Constitutional
Court employs these sources:
Role and Extent of International Law
1. Constitutional Mandate: Section 39(1)(b) of the Constitution
mandates that when interpreting the Bill of Rights, a court
"must consider international law." This inclusion emphasizes
the importance of international standards and norms in shaping
the understanding and application of human rights in South
Africa.
2. Guiding Principles: The Court often looks to international
human rights instruments, such as the Universal Declaration of
Human Rights, the International Covenant on Civil and
Political Rights (ICCPR), and the Convention on the
Elimination of All Forms of Discrimination Against Women
(CEDAW), among others, to guide its interpretation.
3. Case Examples:
o S v Makwanyane (1995): The Constitutional Court
abolished the death penalty, referencing various
international human rights treaties and conventions to
, support its decision, showcasing the pivotal role of
international law in influencing its judgment.
o Government of the Republic of South Africa v
Grootboom (2000): The Court used international legal
standards to interpret the right to housing, demonstrating
its commitment to aligning domestic law with
international human rights norms.
Role and Extent of Foreign Law
1. Permissive Consideration: Section 39(1)(c) allows courts to
consider foreign law, which provides a broader scope for
drawing on comparative legal perspectives and enriching the
interpretation of rights with diverse legal traditions and
practices.
2. Comparative Analysis: The Constitutional Court frequently
examines jurisprudence from jurisdictions with similar
constitutional frameworks, such as Canada, Germany, India,
and the United States. This comparative analysis helps the
Court to adopt best practices and innovative approaches to
human rights protection.
3. Case Examples:
o Carmichele v Minister of Safety and Security (2001):
The Court referenced foreign case law from the UK and
Canada to develop the concept of state liability in the
context of protecting individuals from gender-based
violence.
o Khosa v Minister of Social Development (2004): The
Court looked at foreign precedents to interpret the socio-
economic rights of non-citizens, underscoring the value
of foreign legal principles in shaping equitable and just
outcomes.
Conclusion
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