Exam (elaborations)
FUR2601 Assignment 2 Semester 2 2024 - DUE 27 September 2024
- Course
- FUR2601 (FUR2601)
- Institution
- University Of South Africa
QUESTIONS AND ANSWERS FUR2601 Assignment 2 Semester 2 2024 - DUE 27 September 2024
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[Date]FUR2601 Assignment 2
Semester 2 2024 - DUE 27
September 2024
QUESTIONS WITH COMPLETE ANSWERS
,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)
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)
Introduction: The Constitutional Court of South Africa has consistently engaged with
international law and foreign law in interpreting the rights enshrined in the Bill of Rights.
This approach is grounded in the Constitution itself, which mandates the consideration
of international law and permits the consideration of foreign law. This essay explores
the role and extent to which the Constitutional Court has used these sources in its
jurisprudence.
Constitutional Mandate: Section 39 of the Constitution of the Republic of South Africa,
1996, outlines the interpretative principles for the Bill of Rights:
1. Section 39(1)(b): When interpreting the Bill of Rights, a court must consider
international law.
2. Section 39(1)(c): A court may consider foreign law.
Role of International Law: International law plays a significant role in the Constitutional
Court’s interpretation of rights for several reasons:
, 1. Guidance on Universal Human Rights Norms: International human rights
treaties, conventions, and customary international law provide universal norms
and standards that inform the interpretation of the Bill of Rights.
2. Binding Obligations: South Africa is a party to various international treaties,
and the Constitutional Court has the duty to ensure that domestic law complies
with these international obligations.
Extent of Use: The Constitutional Court has referred to international law extensively in
its judgments. Here are key cases illustrating this practice:
1. S v Makwanyane and Another (1995) 3 SA 391 (CC):
o Facts: The case challenged the constitutionality of the death penalty.
o Decision: The Court considered various international human rights
instruments, such as the International Covenant on Civil and Political
Rights (ICCPR) and the Universal Declaration of Human Rights (UDHR),
to conclude that the death penalty was inconsistent with the right to life
and dignity.
2. Government of the Republic of South Africa and Others v Grootboom and
Others (2001) 1 SA 46 (CC):
o Facts: This case dealt with the right to access adequate housing.
o Decision: The Court referenced the International Covenant on Economic,
Social and Cultural Rights (ICESCR) to emphasize the state's obligation to
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