FUR2601 Assignment
2 (COMPLETE
ANSWERS) Semester 2
2024 - DUE 27
September 2024 ;
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,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)
In interpreting the rights in the Bill of Rights, the Constitutional
Court of South Africa extensively uses both international law and
foreign law as guiding principles. This approach is enshrined in the
Constitution itself, specifically in Section 39, which outlines the
considerations the court must take into account when interpreting
the Bill of Rights.
Role of International Law
1. Guidance and Persuasion: International law serves as a
persuasive authority in the Constitutional Court's interpretation
of rights. The court does not see international law as binding
but rather as a valuable source of guidance that helps to shape
and inform its decisions.
2. Constitutional Mandate: Section 39(1)(b) of the Constitution
explicitly mandates that the court must consider international
law when interpreting the Bill of Rights. This reflects South
Africa’s commitment to aligning its domestic human rights
framework with global standards.
3. Universal Human Rights Standards: The court frequently
refers to various international human rights instruments, such
as the Universal Declaration of Human Rights (UDHR), the
International Covenant on Civil and Political Rights (ICCPR),
and the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW), to interpret and
give meaning to the rights enshrined in the Constitution.
Role of Foreign Law
, 1. Comparative Analysis: Section 39(1)(c) allows the
Constitutional Court to consider foreign law in its
interpretations. This comparative approach helps the court to
draw lessons from other jurisdictions that have faced similar
issues, thereby enriching the interpretation of the South
African Bill of Rights.
2. Diverse Jurisprudence: The court often looks to a wide range
of foreign legal systems, including those of common law and
civil law traditions, to understand how similar rights and
principles are applied elsewhere. This diverse jurisprudence
helps to ensure that the court’s interpretations are well-rounded
and informed by a variety of perspectives.
3. Precedents and Best Practices: By examining foreign
judgments and legal principles, the Constitutional Court
identifies best practices and relevant precedents that can be
adapted to the South African context. This practice not only
broadens the court's interpretive framework but also reinforces
the universality and interconnectedness of human rights.
Extent of Usage
The Constitutional Court’s use of international and foreign law is
extensive and well-documented across numerous landmark cases:
1. S v Makwanyane (1995): In abolishing the death penalty, the
court extensively referred to international human rights
instruments and foreign case law to underscore the right to life
and dignity.
2. Glenister v President of the Republic of South Africa
(2011): The court used international conventions to argue for
the establishment of an independent anti-corruption body,
highlighting South Africa’s obligations under international
law.
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