Assignment 2

Student full name: B.Laboff

Student number: 19792417

Group number: FUR2601

Name of department and University: (Department of

Public, Constitutional & International Law)
Course code and name: (FUR2601 – Fundamental
Rights)

Due Date: 2024-09-27

Mylife email address:

[email protected]
Table of Contents
Question 1: ........................................................................................................................... 3

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. ................ 3

Question 2: ........................................................................................................................... 4

2. Discuss the equality jurisprudence of the Constitutional Court and how the court has
interpreted section 9 of the Constitution citing all the relevant caselaw. ............................. 4

Question 3: ........................................................................................................................... 5

3. Explain in detail the Constitutional jurisdiction of the following courts: Magistrate

Court; High Court; Supreme Court of Appeal; Constitutional Court. ................................... 5

Question 4: ........................................................................................................................... 7

4. Discuss the constitutional principle of meaningful engagement in the Bill of Rights

having regard to case law. ................................................................................................. 7

Question 5: ........................................................................................................................... 9

Bibliography ........................................................................................................................ 11
Question 1:

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.

Constitutional Court's Function in Interpreting the Bill of Rights:

o The interpretation of the Bill of Rights is significantly influenced by the Constitutional

Court. In constitutional issues, it is the highest court in the nation, and all other courts
must abide by its rulings. It is the duty of the court to ensure the preservation and
protection of the rights provided by the Bill of Rights.

Constitutional Court use of International Law in Interpreting the Bill of Right:

o When interpreting the Bill of Rights, the Constitutional Court frequently makes
reference to international law. This is consistent with the Constitution's Section
39(1)(b), which mandates that a court, tribunal, or forum must take international law
into account while interpreting the Bill of Rights.

o The court interprets the Bill of Rights using international law as a tool. Instead of
explicitly applying international law, it makes use of it as a guide to interpret the rights
in a way that is compliant with global norms for human rights.

Constitutional Court use of Foreign Law in Interpreting the Bill of Right:

o When interpreting the Bill of Rights, the Constitutional Court also makes reference to
foreign law. This is consistent with the Constitution's Section 39(1)(c), which says that
a court, tribunal, or forum may take foreign law into account while interpreting the Bill
of Rights.

o The court makes use of comparative foreign law. It bases its own view on an
examination of how comparable rights have been construed in other countries.
Foreign law, however, does not bind the court, and it will only be applied where it is
pertinent and useful to the current case.
 Conclusion:

The Bill of Rights has been interpreted by the Constitutional Court using a great deal of
foreign and international law. Its historic rulings make this clear in numerous cases. For
instance, the court used international law to interpret the right to housing in the
Government of the Republic of South Africa v. Grootboom case. Similar to this, the court
used foreign law to interpret the right to life in the S v. Makwanyane case.

The degree to which of application, however, differs from situation to situation. Only
where it is pertinent and useful to interpreting the rights at dispute will the court make
reference to international or foreign law. When interpreting the Bill of Rights, the court
also considers the particular background and values of South African society.

Question 2:

2. Discuss the equality jurisprudence of the Constitutional Court and how the court
has interpreted section 9 of the Constitution citing all the relevant caselaw.

Equality Jurisprudence of the Constitutional Court:

The South African Constitutional Court has been essential in interpreting and
implementing section 9 of the Constitution, which deals with equality. In order to correct
historical injustices and advance substantive equality, the court has continuously
highlighted the transformational nature of equality.

Interpretation of Section 9:

The court has given section 9 a broad interpretation that covers discrimination in both
direct and indirect ways. The court's ruling in Harksen v. Lane established that equality
encompasses both the complete elimination of systematic discrimination and the
advancement of equal enjoyment of rights and opportunities.

Relevant Caselaw:
 o In the 2004 case of Minister of Finance v. Van Heerden, the court stressed the
significance of substantive equality and the necessity of taking into account how
discrimination affects vulnerable groups.1
o In S v. Jordan (2002), the court decided that, especially in light of socioeconomic
rights, the state must take proactive steps to combat discrimination and inequality.2
o The 1999 landmark case National Coalition for Gay and Lesbian Equality v. Minister
of Justice demonstrated the court's dedication to overturning discriminatory laws and
resulted in the decriminalization of same-sex relationships.3
o In the 2004 case of Khosa v. Minister of Social Development, the court stressed how
crucial it is to take into account how laws and policies would affect underrepresented
groups, especially when it comes to social and economic rights.4

Conclusion:

The dedication to substantive equality, redressing historical injustices, and

transformative equality is reflected in the Constitutional Court's equality jurisprudence.
The court has been instrumental in promoting equality and non-discrimination in South
Africa through its interpretations and implementation of section 9.

Question 3:

3. Explain in detail the Constitutional jurisdiction of the following courts: Magistrate

Court; High Court; Supreme Court of Appeal; Constitutional Court.

o Magistrate Court:

1
Minister of Finance and Other v Van Heerden (CCT 63/03) [2004] ZACC 3; 2004 (6) SA 121 (CC);
2004 (11) BCLR 1125 (CC) ; [2004] 12 BLLR 1181 (CC); (2004) 25 ILJ 1593 (CC) (29 July 2004)
2
S v Jordan and Others (Sex Workers Education and Advocacy Task Force and Others as Amici
Curiae (CCT31/01) [2002] ZACC 22; 2002 (6) SA 642; 2002 (11) BCLR 1117 (9 October 2002)
3
National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others
(CCT11/98) [1998] ZACC 15; 1999 (1) SA 6; 1998 (12) BCLR 1517 (9 October 1998)
4
Khosa and Others v Minister of Social Development and Others, Mahlaule and Another v Minister of
Social Development (CCT 13/03, CCT 12/03) [2004] ZACC 11; 2004 (6) SA 505 (CC); 2004 (6) BCLR
569 (CC) (4 March 2004)
 "A court of a status lower than a High Court may not enquire into or rule on the
constitutionality of any legislation or any conduct of the President," among other
things, according to Section 170.

This clause does not give magistrates' courts the authority to uphold the Constitution.
According to the modified section 110 of the Magistrates' Courts Act 32 of 1944, the
court must rule under the premise that the law or the president's behavior is lawful
when a party to proceedings in a magistrate's court claims that any law or the
president's conduct is unconstitutional. After that, the party filing an appeal with the
High Court may bring up the constitutional dispute.

This does not, however, imply that these courts are free to disregard the Constitution.
First off, despite the fact that a magistrate's court cannot declare any law or
presidential action unconstitutional, section 110 of the Magistrates' Courts Act 32 of
1944 allows a litigant to present evidence in the magistrate's court that challenges
the law or action's constitutionality.5

o High Court:

Any constitutional issue may be decided by a High Court, with the exception of those
that are under the Constitutional Court's exclusive purview. A High Court has the
authority to declare acts of Congress or legislation unconstitutional, but its rulings
regarding parliamentary and provincial laws, as well as the president's actions, are
void until validated by the Constitutional Court.6

o Supreme Court of Appeal:

With the exception of cases falling under the Constitutional Court's exclusive purview,
the Supreme Court of Appeal has the authority to hear and rule on constitutional
disputes. It has the authority to consider appeals in any subject, including High Court
challenges pertaining to constitutional issues.

5
Prof A Spies, Dr T Maseko. Fundamental Rights: Only study guide for FUR2601. (University of South
Africa 2021) Pg 36
6
Prof A Spies, Dr T Maseko. Fundamental Rights: Only study guide for FUR2601. (University of South
Africa 2021) Pg 36Pg36
 As per Section 167(5), the Supreme Court of Appeal has the authority to declare
legislation unconstitutional and to request that the Constitutional Court uphold this
decision.7

Constitutional Court:

The jurisdiction of the Constitutional Court is set out in section 167 of the Constitution.
Section 167(3), as amended by the Constitution Seventeenth Amendment Act 2012,
provides as follows:8

The Constitutional Court –

(a) is the highest court in all matters;

(b) may decide constitutional matters, and any other matter for which leave to appeal
has been granted by the Constitutional Court on the basis that the matter raises the
point of law of general public importance; and
(c) makes the final decision whether a matter is within its jurisdiction9

Question 4:

4. Discuss the constitutional principle of meaningful engagement in the Bill of

Rights having regard to case law.

Constitutional Principle of Meaningful Engagement in the Bill of Rights:

The Bill of Rights entrenched constitutional principle of meaningful

participation, highlights the significance of including people and communities in
decisions that impact their rights and interests. According to this principle, the
government must meaningfully and openly consult with people impacted when making
choices that could have an impact on basic rights.

7
Prof A Spies, Dr T Maseko. Fundamental Rights: Only study guide for FUR2601. (University of South
Africa 2021) Pg 36
8
Constitution of the Republic of South Africa, 1996. S 167(3).
9
Prof A Spies, Dr T Maseko. Fundamental Rights: Only study guide for FUR2601. (University of South
Africa 2021) Pg 341
 Case Law Examples:

o Grootboom v Oostenberg Municipality (2000).10

The South African Constitutional Court highlighted in this judgment that the state
must genuinely interact with marginalized communities when making housing rights
determinations. The government's lack of interaction with the homeless people was
deemed by the court to be a violation of their constitutional rights.

o Doctors for Life International v Speaker of the National Assembly (2006).11

This example made clear how crucial it is to participate actively in the legislative
process. The Constitutional Court underlined that maintaining democratic values and
guaranteeing that each person's rights are taken into account depend on public
involvement in the legislative process.

o Residents of Joe Slovo Community, Western Cape v Thubelisha Homes (2010).12

The court stressed how important it is for the state to actively interact with
communities that are about to be evicted. It stated that the government must take
proactive measures to include impacted citizens in the decision-making process and
that meaningful involvement is essential in decisions affecting housing rights.

In conclusion, the government must actively involve people and communities in

choices that impact their rights in order to uphold the constitutional ideal of meaningful
involvement. Case law has repeatedly stressed how crucial it is to actively participate
in defending constitutional rights, especially when it comes to housing, legislative
procedures, and community evictions.

10
Grootboom and Others v Oostenberg Municipality and Others (6826/99) [1999] ZAWCHC 1 (17
December 1999)
11
Doctors for Life International v Speaker of the National Assembly and Others (CCT12/05) [2006]
ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) (17 August 2006)
12
Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and Others (CCT 22/08)
[2009] ZACC 16; 2009 (9) BCLR 847 (CC) ; 2010 (3) SA 454 (CC) (10 June 2009)
Question 5:

5. Critically analyse the approach of the Constitutional Court to proportionality in the case of
S v Makwanyane.

The South African Constitutional Court took a major stance on proportionality in the case
of S v. Makwanyane.13 The South African Constitution's limitation clause, which permits
the restriction of rights in specific situations, served as the foundation for the court's
proportionality examination. The following key characteristics offer a critical analysis of
the court's approach:

o Rights Balancing: The court stressed the importance of striking a balance between
each person's rights and the interests of society overall. While acknowledging the
fundamental nature of the right to life, it also recognized the state's interest in
upholding law and order.

o Effectiveness and Necessity: The court determined whether restricting someone's

rights was the least restrictive way to accomplish a valid goal as well as if doing so
was necessary. This required assessing how well the restriction addressed the current
social issue.

o Proportionality Test: The court used a rigorous proportionality test to determine

whether the advantages of the restriction exceeded the individual's rights being
infringed. This required a close analysis of the connection between the goal to be
accomplished and the methods employed.

o Contextual Analysis: The court recognized that proportionality should be evaluated in

light of the unique social, political, and historical setting of South Africa and took into
consideration the particular background and circumstances of the case.

o International Law and Comparative Jurisprudence: The court showed its

adherence to international human rights standards by using comparative
jurisprudence and international human rights law to guide its determination of
proportionality.

13
S v Makwanyane and Another (CCT3/94) [1995] ZACC 3
In conclusion, the Constitutional Court demonstrated a dedication to protecting basic
rights while acknowledging the legitimate interests of the state by taking a
comprehensive and context-specific approach to proportionality in S v. Makwanyane.
Future cases concerning the restriction of rights in South Africa will be guided by the
court's stringent application of the proportionality test.
Bibliography
o Constitution of the Republic of South Africa, 1996

o Prof A Spies, Dr T Maseko. Fundamental Rights: Only study guide for FUR2601. (University of
South Africa 2021).

o Currie, I. (2014) The Bill of Rights Handbook, 6th edition. (Juta 2014)