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 QUESTIONS AND ANSWERS
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FUR2601 Assignment 2Semester 2 2024 - DUE 27
September 2024
QUESTIONS WITH ANSWERS
[DATE]
[COMPANY NAME]
[Company address]
,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 Role of International Law and Foreign Law in the Interpretation of
the Bill of Rights by the Constitutional Court
#### Introduction
The Constitutional Court of South Africa has a significant role in interpreting
the Bill of Rights, which is enshrined in Chapter 2 of the Constitution of the
Republic of South Africa, 1996. In doing so, the Court often looks beyond
domestic law to consider international law and foreign law. This practice is
guided by specific provisions in the Constitution that mandate or allow for
such considerations.
#### Constitutional Provisions
1. **Section 39(1)(b) and (c)**: This section explicitly states that when
interpreting the Bill of Rights, a court must consider international law and
may consider foreign law.
- **Section 39(1)(b)**: "When interpreting the Bill of Rights, a court,
tribunal or forum must consider international law."
- **Section 39(1)(c)**: "When interpreting the Bill of Rights, a court,
tribunal or forum may consider foreign law."
2. **Section 233**: This section further reinforces the role of international
law by requiring courts to prefer any reasonable interpretation of the
legislation that is consistent with international law over any alternative
interpretation that is inconsistent with international law.
, #### The Role of International Law
International law plays a critical role in the Constitutional Court’s
interpretation of the Bill of Rights:
1. **Guiding Principles**: International human rights treaties, conventions,
and customary international law provide guiding principles for the
interpretation and development of South African law.
2. **Binding Treaties**: South Africa is a signatory to various international
treaties (e.g., International Covenant on Civil and Political Rights,
Convention on the Elimination of All Forms of Discrimination Against
Women). These treaties inform the Court's understanding of human rights
and fundamental freedoms.
3. **Customary International Law**: Even where South Africa is not a party
to a specific treaty, customary international law, which reflects global
consensus, is considered authoritative.
#### The Role of Foreign Law
The Constitutional Court uses foreign law as a comparative tool:
1. **Comparative Jurisprudence**: The Court examines how other
jurisdictions, particularly those with similar constitutional frameworks (e.g.,
Canada, Germany, India, and the United States), interpret human rights
issues.
2. **Persuasive Authority**: While not binding, foreign judgments can
provide persuasive authority and valuable insights, especially in areas
where South African law is underdeveloped.
#### Extent of Use
1. **Case Examples**:
- **S v Makwanyane (1995)**: The Court abolished the death penalty,
extensively citing international treaties and foreign jurisprudence from the
United States, Canada, and India to emphasize the right to life and dignity.
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