Exam (elaborations)
FUR2601 Assignment 2 Semester 2 2024 - DUE 27 September 2024
- Course
- FUR2601 (FUR2601)
- Institution
- University Of South Africa (Unisa)
FUR2601 Assignment 2 Semester 2 2024 - DUE 27 September 2024 QUESTIONS WITH ANSWERS
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FUR2601 Assignment2 Semester 2 2024 -
DUE 27 September
2024
QUESTIONS AND ANSWERS
[School]
[Course title]
,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 extensively used both international
law and foreign law in the interpretation of the rights in the Bill of Rights. The role
and extent of this practice can be detailed as follows:
Role of International and Foreign Law:
1. Guiding Framework:
o The Constitutional Court uses international law and foreign law as
interpretative aids to give content and meaning to the rights enshrined
in the Bill of Rights. Section 39(1)(b) of the Constitution mandates
that courts "must consider international law" when interpreting the
Bill of Rights.
2. Enhancing Domestic Law:
o International law serves as a means to enrich domestic human rights
jurisprudence, ensuring that South African law aligns with global
human rights standards. This reflects South Africa's commitment to a
human rights culture post-apartheid.
3. Filling Gaps:
o Where there are gaps or ambiguities in domestic law, international
and foreign legal principles can provide guidance. This is particularly
, important in developing areas of law where domestic precedents may
be lacking.
Extent of Use:
1. Frequent References:
o The Constitutional Court frequently refers to international treaties,
conventions, and customary international law. For instance, in S v
Makwanyane, the Court referred to international treaties like the
International Covenant on Civil and Political Rights (ICCPR) and
various UN resolutions to support its decision to abolish the death
penalty.
2. Comparative Law:
o The Court often looks at foreign case law to inform its interpretations.
In Glenister v President of the Republic of South Africa, the Court
cited foreign jurisprudence from jurisdictions such as Canada and
Germany to support its stance on the independence of anti-corruption
bodies.
3. Influence on Major Decisions:
o In landmark cases, international law has played a critical role. For
example, in Kaunda v President of the Republic of South Africa,
the Court examined international law principles regarding diplomatic
protection.
4. Human Rights Norms:
o The Court has utilized international human rights norms extensively.
In Government of the Republic of South Africa v Grootboom,
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