FUR 2601 ASSIGNMENT 02
DUE 07/10/24
DO NOT COPY AND PASTE
, QUESTION 01
International law refers to international agreements, to customary international law and
to judgments of international courts like the European Court of Human Rights. “Foreign
law” refers to foreign case law, that is, references to precedents of other countries’
courts and also to foreign legislation and other constitutions, but mainly case law. In S
v Makwanyane, the Constitutional Court stated that both binding and nonbinding public
international law may be used as tools of interpretation. International law provides a
framework within which rights can be evaluated and understood. It also assists in the
interpretation of rights and in determining their scope, and provides guidance during
interpretation. According to section 39(1), the courts “must” consider public
international law, but “may” consider foreign law. The courts are therefore obliged to
consider international law as a persuasive source, but are not obliged to do this as far
as foreign law is concerned. The Court stated in Makwanyane that foreign case law
will not necessarily provide a safe guide to the interpretation of the Bill of Rights. This
implies that international law carries more weight than foreign law in the interpretation
of the Bill of Rights.
QUESTION 02
Section 9 of the Constitution (the “equality clause”) states:
(1) Everyone is equal before the law and has the right to equal protection
and benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and freedoms. To
promote the achievement of equality, legislative and other measures designed
to protect and advance persons, or categories of persons, disadvantaged by
unfair discrimination may be taken.
(3) The state may not unfairly discriminate directly or indirectly against anyone on
one or more grounds, including race, gender, sex, pregnancy, marital status,
ethnic or social origin, colour, sexual orientation, age, disability, religion,
conscience, belief, culture, language and birth.
(4) No person may unfairly discriminate directly or indirectly against anyone on
one or more grounds in terms of subsection (3). National legislation must be
enacted to prevent or prohibit unfair discrimination.
DUE 07/10/24
DO NOT COPY AND PASTE
, QUESTION 01
International law refers to international agreements, to customary international law and
to judgments of international courts like the European Court of Human Rights. “Foreign
law” refers to foreign case law, that is, references to precedents of other countries’
courts and also to foreign legislation and other constitutions, but mainly case law. In S
v Makwanyane, the Constitutional Court stated that both binding and nonbinding public
international law may be used as tools of interpretation. International law provides a
framework within which rights can be evaluated and understood. It also assists in the
interpretation of rights and in determining their scope, and provides guidance during
interpretation. According to section 39(1), the courts “must” consider public
international law, but “may” consider foreign law. The courts are therefore obliged to
consider international law as a persuasive source, but are not obliged to do this as far
as foreign law is concerned. The Court stated in Makwanyane that foreign case law
will not necessarily provide a safe guide to the interpretation of the Bill of Rights. This
implies that international law carries more weight than foreign law in the interpretation
of the Bill of Rights.
QUESTION 02
Section 9 of the Constitution (the “equality clause”) states:
(1) Everyone is equal before the law and has the right to equal protection
and benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and freedoms. To
promote the achievement of equality, legislative and other measures designed
to protect and advance persons, or categories of persons, disadvantaged by
unfair discrimination may be taken.
(3) The state may not unfairly discriminate directly or indirectly against anyone on
one or more grounds, including race, gender, sex, pregnancy, marital status,
ethnic or social origin, colour, sexual orientation, age, disability, religion,
conscience, belief, culture, language and birth.
(4) No person may unfairly discriminate directly or indirectly against anyone on
one or more grounds in terms of subsection (3). National legislation must be
enacted to prevent or prohibit unfair discrimination.
