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Exam (elaborations)

2023 SEMESTER 2 ASSIGNMENT 2 - FUNDAMENTAL RIGHTS - FUR2601

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Question 1 What is the basis for the distinction between socio-economic rights on the one hand and civil and political rights on the other? (3) Question 2 What is the difference between formal equality and substantive equality? (2) Question 3 Ms S and Mr R are the parents to their minor child. Ms S and Mr R were never married and have since separated but have continued to act as co-parents to the minor child. Ms S has recently been promoted and her new position requires her to relocate to Kenya. Ms S wishes to move to Kenya with the minor child. Mr R has refused. Ms approaches the family advocate. She requests that the Family advocate investigate the best interests of the child regarding possible relocation to Kenya, under section 4 of the Mediation in Certain Divorce Matters Act 24 of 1987 (the Act). She is informed that under section 4 of the Act, the family advocate may only intervene in cases concerning divorced or married parents. Ms S approaches you for legal advice. (a) Ms S asks you which rights under the Bill of Rights are infringed by her and her child’s exclusion from the application of the Act. Name and identify two rights. (1/2) (b) You decide to institute proceedings raising the constitutional validity of section 4 of the Act. Which Court would you approach for relief on behalf of Ms S? Provide a reason for your answer. (1/2) (c) Does Section 4 of the Act amount to the infringement of the right to equality and non-discrimination? Discuss with reference to the test laid down in Harksen v Lane NO. Provide reasons for your answer. Half marks will be awarded (4) Total: 10 MARKS ADDITIONAL INFORMATION (QUESTION 3) Section 4 of the Act reads as follows: 4. Powers and duties of Family Advocates (1)The Family Advocate shall— (a)after the institution of a divorce action; or (b)after an application has been lodged for the variation, rescission or suspension of an order with regard to the custody or guardianship of, or access to, a child, made in terms of the Divorce Act, 1979 (Act No. 70 of 1979), if so requested by any party to such proceedings or the court concerned, institute an enquiry to enable him to furnish the court at the trial of such action or the hearing of such application with a report and recommendations on any matter concerning the welfare of each minor or dependent child of the marriage concerned or regarding such matter as is referred to him by the court. (2)A Family Advocate may— (a)after the institution of a divorce action; or (b)after an application has been lodged for the variation, rescission or suspension of an order with regard to the custody or guardianship of, or access to, a child, made in terms of the Divorce Act, 1979,if he deems it in the interest of any minor or dependent child of a marriage concerned, apply to the court concerned for an order authorizing him to institute an enquiry contemplated in subsection (1). (3)Any Family Advocate may, if he deems it in the interest of any minor or dependent child of a marriage concerned, and shall, if so requested by a court, appear at the trial of any divorce action or the hearing of any application referred to in subsections (1)(b) and (2)(b) and may adduce any available evidence relevant to the action or application and cross-examine witnesses giving evidence thereat.

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FUNDAMENTAL
RIGHTS FUR2601



ASSIGNMENT 2 SEMESTER 2
2023

, Question 1: What is the basis for the distinction between socio-economic rights
on the one hand and civil and political rights on the other? (3)



The basis for the distinction between socio-economic rights and civil and political rights
lies in the nature and scope of these two categories of human rights:



Socio-economic rights are primarily concerned with the well-being and material
conditions of individuals and communities. They include rights such as the right to
education, the right to housing, the right to healthcare, and the right to social security.
These rights are often positive in nature, meaning that they require the state to take
active steps to ensure that individuals have access to essential resources and
services. Socio-economic rights are often associated with principles of social justice
and are aimed at addressing economic and social inequalities.



Civil and political rights, on the other hand, focus on safeguarding individual liberties
and freedoms. These rights include the right to freedom of speech, the right to a fair
trial, the right to vote, and the right to privacy. Civil and political rights are often negative
in nature, meaning that they impose limitations on the state's interference with
individuals' lives and liberties. They are essential for the protection of individual
autonomy and the functioning of democratic societies.



The distinction between these two categories of rights is also reflected in their
enforceability and justiciability. Civil and political rights are typically considered
justiciable, meaning that individuals can go to court to seek remedies if these rights
are violated. In contrast, socio-economic rights are often subject to progressive
realization, meaning that states are obligated to gradually improve access to these
rights over time, based on available resources.



Question 2: What is the difference between formal equality and substantive
equality? (2)

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