LJU4801
Assignment 2
Semester 2 – 2023
Question 1
Section 9 of the Constitution of the Republic of South Africa, 1996 prohibits
discrimination on the basis of sexual orientation. Moreover, the Civil Union Act
17 of 2006 recognises same-sex marriages. Keeping in mind the positivist
theory of adjudication, is the South African position on homosexuality based on
law or morality? Discuss. Your answer should not exceed 750 words.
(15)
The South African position on homosexuality, as reflected in Section 9 of the
Constitution and the Civil Union Act, can be considered primarily based on law rather
than morality when viewed through the lens of the positivist theory of adjudication. 1
Legal positivism emphasizes that the validity of law is determined by its source and
formal characteristics rather than its moral content or conformity to an external moral
standard. In this context, the South African legal system recognizes and protects the
rights of individuals regardless of their sexual orientation, reflecting a legal framework
that upholds equality and non-discrimination.
Firstly, Section 9 of the Constitution plays a crucial role in prohibiting discrimination on
various grounds, including sexual orientation. This constitutional provision establishes
a legal principle that forms the foundation for protecting the rights of LGBTQI+
individuals in South Africa. The Constitution serves as the supreme law of the land and
acts as a legal basis for interpreting and applying all other laws in the country.
1 Section 9(3) of the Constitution of the Republic of South Africa, 1996.
Assignment 2
Semester 2 – 2023
Question 1
Section 9 of the Constitution of the Republic of South Africa, 1996 prohibits
discrimination on the basis of sexual orientation. Moreover, the Civil Union Act
17 of 2006 recognises same-sex marriages. Keeping in mind the positivist
theory of adjudication, is the South African position on homosexuality based on
law or morality? Discuss. Your answer should not exceed 750 words.
(15)
The South African position on homosexuality, as reflected in Section 9 of the
Constitution and the Civil Union Act, can be considered primarily based on law rather
than morality when viewed through the lens of the positivist theory of adjudication. 1
Legal positivism emphasizes that the validity of law is determined by its source and
formal characteristics rather than its moral content or conformity to an external moral
standard. In this context, the South African legal system recognizes and protects the
rights of individuals regardless of their sexual orientation, reflecting a legal framework
that upholds equality and non-discrimination.
Firstly, Section 9 of the Constitution plays a crucial role in prohibiting discrimination on
various grounds, including sexual orientation. This constitutional provision establishes
a legal principle that forms the foundation for protecting the rights of LGBTQI+
individuals in South Africa. The Constitution serves as the supreme law of the land and
acts as a legal basis for interpreting and applying all other laws in the country.
1 Section 9(3) of the Constitution of the Republic of South Africa, 1996.
