Exam (elaborations)
FUR2601 Assignment 2 Semester 2 2024 - DUE 27 September 2024
- Course
- FUR2601 (FUR2601)
- Institution
- University Of South Africa
FUR2601 Assignment 2 Semester 2 2024 - DUE 27 September 2024
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FUR2601Assignment 2
Semester 2 2024 -
DUE 27 September
2024
QUESTIONS WITH COMPLETE ANSWERS
[DATE]
[COMPANY NAME]
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,FUR2601 Assignment 2 Semester 2 2024 - DUE 27 September 2024
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 played a pivotal role in interpreting the
rights enshrined in the Bill of Rights, and in doing so, it has extensively utilized both
international and foreign law. The role and extent of this usage can be understood as
follows:
Role of International and Foreign Law
1. Guidance and Persuasion: The Constitutional Court uses international and
foreign law as persuasive tools to guide its interpretations. While these sources
are not binding, they provide valuable insights and comparative perspectives that
help shape the Court's decisions.
2. Filling Gaps: In instances where South African law may lack clear precedents or
detailed provisions, the Court looks to international and foreign law to fill these
gaps. This ensures that the interpretation of rights is comprehensive and aligns
with global standards.
3. Enhancing Legitimacy: By referencing international and foreign law, the Court
enhances the legitimacy and credibility of its judgments. This practice
, demonstrates the Court's commitment to universal human rights principles and
fosters a sense of global judicial coherence.
Extent of Usage
1. Constitutional Mandate: Section 39(1)(b) of the South African Constitution
explicitly mandates that courts must consider international law when interpreting
the Bill of Rights. This constitutional directive underscores the extensive use of
international law in the Court's jurisprudence.
2. Case Law Examples:
o S v Makwanyane (1995): The Court extensively cited international human
rights instruments, such as the International Covenant on Civil and
Political Rights (ICCPR) and the Universal Declaration of Human Rights
(UDHR), to support its decision to abolish the death penalty.
o Government of the Republic of South Africa v Grootboom (2000): The
Court referred to international instruments like the International Covenant
on Economic, Social and Cultural Rights (ICESCR) to underscore the
state's obligations regarding the right to adequate housing.
3. Foreign Jurisprudence: The Court frequently references judgments from other
constitutional courts, particularly those from jurisdictions with similar rights
frameworks, such as Canada, Germany, and India. For instance, in the case of
Khosa v Minister of Social Development (2004), the Court drew on Canadian
jurisprudence to interpret the right to social security for permanent residents.
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