FUR2601 Assignment 2
Semester 2 2024 - DUE 27
September 2024
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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 plays a crucial role in interpreting the Bill of
Rights, which forms part of the country’s Constitution. In its interpretive process, the
Court has frequently referenced international law and foreign law to ensure that its
rulings align with global human rights standards and comparative constitutional
practices. Here is a detailed discussion on this subject:
The Role of International Law
1. Binding and Non-Binding International Law: The Constitutional Court
distinguishes between binding international law (such as treaties that South
Africa has ratified) and non-binding international law (such as customary
international law and international human rights instruments that South Africa has
not ratified). Binding international law must be applied, while non-binding
international law should be considered when interpreting the Bill of Rights.
2. Section 39(1)(b) of the Constitution: This section explicitly mandates that when
interpreting the Bill of Rights, a court, tribunal, or forum must consider
international law. This directive ensures that South Africa's human rights
framework is harmonized with international standards.
, 3. Influence of International Human Rights Instruments: The Court often
references international human rights instruments, such as the Universal
Declaration of Human Rights, the International Covenant on Civil and Political
Rights, and the African Charter on Human and Peoples' Rights, to interpret the
scope and application of rights within the Bill of Rights.
The Role of Foreign Law
1. Comparative Constitutional Law: Section 39(1)(c) of the Constitution states
that courts may consider foreign law when interpreting the Bill of Rights. This
provision encourages the Constitutional Court to look at how other jurisdictions,
particularly those with similar constitutional frameworks, have addressed similar
issues.
2. Persuasive Precedents: The Court uses foreign jurisprudence as a persuasive
tool to enrich its own interpretations. For example, it frequently refers to decisions
from jurisdictions with well-developed human rights jurisprudence, such as the
United States, Canada, Germany, and India.
Extent of Use
1. Case Law Examples:
o S v Makwanyane (1995): The Constitutional Court’s landmark decision to
abolish the death penalty relied heavily on international human rights
norms and comparative constitutional principles. The Court referred to
various international treaties and foreign judgments to underscore the right
to life and the prohibition against cruel and inhuman punishment.
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