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)
Question 2
Discuss the equality jurisprudence of the Constitutional Court and how the court has interpr...
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Question 1
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.
The Constitutional Court of South Africa holds a pivotal role in interpreting the Bill of Rights, with a
significant aspect of its mandate involving the incorporation of international law and foreign law.
This practice not only enriches the legal interpretations within the domestic context but also aligns
South Africa's jurisprudence with broader global legal standards.
Constitutional Mandate
The South African Constitution explicitly mandates the use of international law in the interpretation
of the Bill of Rights. Section 39(1) of the Constitution states:
"When interpreting the Bill of Rights, a court, tribunal or forum:
must consider international law; and
may consider foreign law."
This directive ensures that the Constitutional Court systematically integrates international norms and
standards into its decisions.
Application of International Law
International law plays a crucial role in the Constitutional Court's interpretation of the Bill of Rights.
The Constitution outlines several instances where international law is directly applicable:
International Agreements: Section 231 stipulates that international agreements bind the
Republic after being approved by Parliament. These agreements become law once enacted
through national legislation.
Customary International Law: Section 232 declares that customary international law is law
in South Africa unless it conflicts with the Constitution or an Act of Parliament.
Interpretation of Legislation: Section 233 mandates that courts must prefer interpretations of
legislation that are consistent with international law over those that are not.
These provisions highlight the Constitutional Court's obligation to incorporate international law,
ensuring that South African law aligns with its international obligations and commitments.
Use of Foreign Law
In addition to international law, the Constitutional Court may consider foreign law when interpreting
the Bill of Rights. This practice allows the court to draw on a wide array of legal precedents and
doctrines from other jurisdictions. While not obligatory, the use of foreign law can provide
persuasive authority and comparative insights that enhance the Court's reasoning and judgments.
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