CONSTITUTIONAL
LAW
19 MAY 2023
CSL2601
EXAM
ANSWERS
, ACADEMIC HONESTY DECLARATION
1. I understand what academic dishonesty entails and am aware of Unisa’s
policies in this regard.
2. I declare that this assignment is my own, original work. Where I have used
someone else’s work, I have indicated this by using the prescribed style of
referencing. Every contribution to, and quotation in, this assignment from the
work or works of other people has been referenced according to the
prescribed style.
3. I have not allowed, and will not allow, anyone to copy my work with the
intention of passing it off as his or her own work.
4. I did not make use of another student’s work and submit it as my own.
NAME: ……………………………………………………………………………………...
SIGNATURE: ……………………………………………………………………………...
STUDENT NUMBER: ……………………………………………………………………..
MODULE CODE: ...............................................................................................
DATE: ……………………………………………………………………………………....
MARK RECEIVED FOR ASSIGNMENT 01: …………………………………………..
MARK RECEIVED FOR ASSIGNMENT 02: …………………………………………..
, QUESTION 1
1.1 By way of examples and references to the appropriate Constitutional Law
authorities, briefly explain the meaning of counter-majoritarian dilemma. (16)
The counter-majoritarian dilemma is a concept that refers to the tension that arises in
a constitutional democracy when courts are tasked with interpreting and enforcing
the Constitution, which may conflict with the will of the majority. In South Africa, the
Constitution is the supreme law of the land and all other laws and actions of the
government must be consistent with it. This means that the courts are often required
to strike down laws or actions that are inconsistent with the Constitution, even if they
are supported by the majority of the people or the government.
The counter-majoritarian dilemma is particularly relevant in South Africa due to the
country's history of apartheid and the need to transform society to be more equitable
and just. The Constitution includes a range of socio-economic rights, such as the
right to housing, education, and healthcare, which require the government to take
affirmative action to redress past injustices and ensure that all citizens have access
to these basic necessities. However, implementing these rights may require the
courts to strike down laws or actions that are supported by the majority of the people
or the government, which can be seen as going against the will of the majority.
The Constitutional Court of South Africa has grappled with the counter-majoritarian
dilemma in a number of cases, including the case of Minister of Health and Others v
Treatment Action Campaign and Others [2002] ZACC 15. In this case, the court was
asked to rule on whether the government's policy on providing antiretroviral drugs to
HIV-positive pregnant women was consistent with the Constitution. The government
argued that the policy was based on resource constraints and that it was not feasible
to provide the drugs to all pregnant women. However, the court held that the policy
LAW
19 MAY 2023
CSL2601
EXAM
ANSWERS
, ACADEMIC HONESTY DECLARATION
1. I understand what academic dishonesty entails and am aware of Unisa’s
policies in this regard.
2. I declare that this assignment is my own, original work. Where I have used
someone else’s work, I have indicated this by using the prescribed style of
referencing. Every contribution to, and quotation in, this assignment from the
work or works of other people has been referenced according to the
prescribed style.
3. I have not allowed, and will not allow, anyone to copy my work with the
intention of passing it off as his or her own work.
4. I did not make use of another student’s work and submit it as my own.
NAME: ……………………………………………………………………………………...
SIGNATURE: ……………………………………………………………………………...
STUDENT NUMBER: ……………………………………………………………………..
MODULE CODE: ...............................................................................................
DATE: ……………………………………………………………………………………....
MARK RECEIVED FOR ASSIGNMENT 01: …………………………………………..
MARK RECEIVED FOR ASSIGNMENT 02: …………………………………………..
, QUESTION 1
1.1 By way of examples and references to the appropriate Constitutional Law
authorities, briefly explain the meaning of counter-majoritarian dilemma. (16)
The counter-majoritarian dilemma is a concept that refers to the tension that arises in
a constitutional democracy when courts are tasked with interpreting and enforcing
the Constitution, which may conflict with the will of the majority. In South Africa, the
Constitution is the supreme law of the land and all other laws and actions of the
government must be consistent with it. This means that the courts are often required
to strike down laws or actions that are inconsistent with the Constitution, even if they
are supported by the majority of the people or the government.
The counter-majoritarian dilemma is particularly relevant in South Africa due to the
country's history of apartheid and the need to transform society to be more equitable
and just. The Constitution includes a range of socio-economic rights, such as the
right to housing, education, and healthcare, which require the government to take
affirmative action to redress past injustices and ensure that all citizens have access
to these basic necessities. However, implementing these rights may require the
courts to strike down laws or actions that are supported by the majority of the people
or the government, which can be seen as going against the will of the majority.
The Constitutional Court of South Africa has grappled with the counter-majoritarian
dilemma in a number of cases, including the case of Minister of Health and Others v
Treatment Action Campaign and Others [2002] ZACC 15. In this case, the court was
asked to rule on whether the government's policy on providing antiretroviral drugs to
HIV-positive pregnant women was consistent with the Constitution. The government
argued that the policy was based on resource constraints and that it was not feasible
to provide the drugs to all pregnant women. However, the court held that the policy
