MODULE: LME3701 STUDENT NAME: NTHABISENG DINAH MAIDI

STUDENT NUMBER:30964385

SECOND SEMESTER:
ASSIGNMENT 03
EXAMINATION PORTFOLIO
DUE DATE: 26 OCTOBER 2018
UNIQUE NUMBER: 748980
LME3701 ND MAIDI (30964385)

SOUTH AFRICAN LEGAL SYSTEM ON THE PROTECTION OF HUMAN RIGHTS

BY

ND MAIDI
(30964385)

SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE

DEGREE
LLB

IN THE

SCHOOL OF LAW

UNIVERSITY OF SOUTH AFRICA

SUPERVISOR: PROFESSOR MG KARELS

(EXAMINATION PORTFOLIO 03)

2018
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ACADEMIC INTERGRITY 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 this 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 submitted it as my own.

NAME: NTHABISENG DINAH MAIDI

SIGNATURE:

STUDENT NUMBER: 30964385

MODULE CODE: LME3701

DATE: 26 OCTOBER 2018

MARK RECEIVED FOR ASSIGNEMENT 01: 80%

MARK RECEIVED FOR ASSIGNEMENT 02: 60%

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TABLE OF CONTENT

LIST OF ACCRONYMS AND ABBREVIATIONS ........Error! Bookmark not defined.

1. INTRODUCTION ................................................................................................. 5

2. PROBLEM STATEMENT .................................................................................... 5

3. HYPOTHESIS...................................................................................................... 6

4. POINT OF DEPARTURE AND ASSUMPTIONS ................................................. 7

5. CONCEPTUALISATION OF CENTRAL RESEARCH THEMES.......................... 7

6. PROPOSED CHAPTER OUTLAY ..................................................................... 10

7. PROJECTED TIME FRAMES FOR SUBMISSION............................................ 10

8. DESCRIPTION OF RESEACH METHODOLOGY ............................................. 11

9. CONCLUSION ................................................................................................... 11

A. BIBLIOGRAPHY ............................................................................................. 12

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1. INTRODUCTION
The research analyses the relevance of the Bill of Rights in the South African
Constitution1 and its impact (if any) on human rights protection within the South African
legal system. A historical study of global and national developments in the field of
human rights protection that led to the inclusion of a Bill of rights in the South African
constitution is conducted indicating the relevance of the international law. A further
analysis on the impact of legislature is made due to the pluralism of the legal system
of the country, as it continuously presents conflict. Due to the conflicts and
inconsistencies in legislature, the judiciary as the interpreters of the law, has
continuously required the harmonisation of the different laws and Constitution.

2. PROBLEM STATEMENT
The primary purpose of this research is to critically analyse the development of the
South African Constitution, the Bill of Human Rights and to critically analyse the effect
of the constitutionality of legislation in relation to the protection of human rights. Insight
into the different legal systems, rules and institutions in the world will be sought, in
order to assess as to the reforms required in South Africa.

The development of human rights came about after the declaration of the Human
Rights that was adopted by the United Nations General Assembly on the 10 th
December 1948. This was as a result of the effect of the 2nd Word war, where it is said
that the members of the assembly took an oath not to commit any atrocities against
men as were experienced in the 2nd world war.

The preamble of the United Declaration of Human Rights, states that “where there was
disregards and contempt for human rights, that have resulted in barbarous acts which
have outraged the conscience of mankind, the advent of a world in which human
beings shall enjoy freedom of speech and belief and freedom from fear and want has
been proclaimed as the highest aspiration of the common people”2. The declaration
further emphasise that if man is not compelled to have recourse, as a last resort to
rebellion against tyranny and oppression, that human rights should be protected by
the rule of law.

1 Constitution of the Republic of South Africa 1996

2 Preamble of the Universal Declaration of Human Ri;ghts-UN 1945
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“The two post-apartheid Constitutions, the interim Constitution which came into force
on the 27th April and its successor, the 1996 or ‘Final’ Constitution, brought about a
constitutional revelation in South Africa.”3 The gazetting of the Constitution was
promulgated as the supreme law of the country. Chapter 2 of the Constitution deals
with the Bill of Human Rights, its application, the restriction and limitations as well as
the 29 Bill of rights as observed by the constitution.

3. HYPOTHESIS

The last decade has seen the development of the Constitution and its transformation
from the very first Constitution. There are currently inconsistencies in the application
of legislation and the Constitution. It is a requirement that any legislation that is in
conflict with the Constitution, must be corrected. There is a call for the harmonization
of the Constitution and the old legislation that is still applicable currently. This is seen
in the statement by Khohliso Van der Westhuizen J, writing for Constitutional Court,
remarked:

“It is rather odd that – 20 years into our constitutional democracy – we are left
with a statute book cluttered by laws surviving from a bygone undemocratic era
remembered for the oppression of people; the suppression of freedom;
discrimination; division; attempts to break up our country; and military
dictatorships.”4
This was a result of the old law that was applicable in the former Transkei was still
recognized when a dissolution of marriage was concluded.

Some of the questions raised include the following:

• The impact of the inconsistencies in legislation.

• The accommodation of unofficial laws, like the Jewish laws, Muslim Laws and
Hindu Laws?
• Where do the customary values and practices find application?
• Is the further application required in the protection of human rights

3 Currie, I and de Waal, J (2013) The Bill of Rights Handbook 6th ed Cape Town: Juta
4 Holomisa v Holomisa and Another (CCT146/17) [2018] ZACC 40 (23 October 2018)

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4. POINT OF DEPARTURE AND ASSUMPTIONS

My point of departure is the Constitutional law perspective, namely the Bill of Rights
and the Indigenous law. There are conflicts that have been identified that results in the
human rights of the citizens not being protected by legislation. Private law, from a
patrimonial point of view takes center stage as there are conflict in that regard.

My assumptions include facts that do not need to be proven and these includes:

• The Constitution is the supreme law,

• Indigenous law has the same standing as common law;
• South Africa is a constitutional democracy
• The Constitution is the founding document of the nation and states authority is
derived from it.

The limitation about my research are time based, as the period between the
declaration of human rights in 1945, the pre-union of the Constitution are not included
in the research. The application of human rights in other countries was also not
considered.

The search will use the empirical method, where reliance is on the qualitative aspects,
the comparative evaluation of the legal pluralism, historical studies, in the development
of the Constitution and textual analysis from primary and secondary sources of law.
The method is used as a bridge between persuasive law and law in action, and how it
affects society. This is seen from the conflict between common law legislation and
customary law and where there is contradictory obligations. This suggests that the law
can be a problem in itself as it does not protect the human rights of the citizens, instead
of providing solutions.

5. CONCEPTUALISATION OF CENTRAL RESEARCH THEMES

The research will consider the following concepts and themes. The development of
law over time, the norms of a specific period in history, the political influence that
cannot be ignored from a global context and lastly the legal pluralism and its effect on
human rights.

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Ndulo5 on page 4 of the review, indicates that chapter 13 of the book focuses on
human rights and international law. This gives a perspective of the history of the South
African Bill of right. In this case the “author observes, the concern by international law
for the treatment of aliens did not until recently extend to the treatment of individuals
by their own States. Early international law dealt with the suffering of individuals other
than aliens lawfully admitted to the injuring State only to a limited degree. These
weaknesses in the legal status of human rights clauses, the author observes, were
vigorously exploited by South Africa as it sought to exclude debate, and later action
by the United Nations on South Africa's racial policies. South Africa became the testing
ground for the battle between human rights and domestic jurisdiction. It forced States
to choose between supremacy of domestic jurisdiction and human rights. By choosing
human rights, they took international law into a new era.”

Initially until 1971, South Africa was adamant that the human rights provisions were
just a statement of ideas and did not impose any legal obligation on them. This was
however resolved “resolved in the context of apartheid when the International Court of
Justice, in its 1971 Namibia opinion, held that apartheid – as extended to Namibia -
violated the Charter”, said Ndulo.

For decades the South African state ignored the international law, however the
adoption of the Bill of Rights in the 1993 Constitution was an inspiration by the United
Nations Human Rights Declaration, as they both play a significant role in the new
South African legal order.

The Bill of Rights confers that the application of the following sections of the
Constitution to the legal order.

Section 8 – Application

Section 39 – interpretation of the Bill of rights

Section 38 – Enforcement of rights

Section 172 - Powers of courts in Constitutional matters

5 Ndulo, Muna “International law: A South African Perspective, by John Dugard [Book Review]
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South Africa has a plural legal system where African Customary law plays a significant
role in the judiciary. “Customary Law” is used a generic term to denote the various laws
of the indigenous people of South Africa. Legal Pluralism is referred to as the coexistence
of the various officially recognised state laws, where the Roman Dutch law is influenced
English Law, adapted and developed through judicial precedence and legislation as well
as the customary law incorporated in legislation.

Dugard6 in his book gives a lightly order of the South African legal framework and the
development of the human rights. This is done in line with the structure of the judiciary as
this significantly affected how the human rights are protected. The judicial system and the
executive plays an important role in the process as they are constantly blamed for the
failure of the protection of the human rights. This is seen in the French version of the
Declaration of the Rights of Man and Citizen7, where the declaration had a serious
limitation where the right of man did not apply to that of a woman. Tolerance towards the
unofficial laws, pure discrimination in the South African context, the limitation of the
human right was seen in the case of Hassan v Jacobs8, where the Muslim woman were
discriminated against, in a polygynous marriage. In this case the Cape Provincial Division
of the Hight court, extended the application of the Interstate Succession Act 9and the
Maintenance of the Surviving Spouses Act 10to spouses in de facto polygynous Muslim
Marriages. Van Reenen J held that the exclusion of the surviving spouses in a in de facto
polygynous Muslim marriage is unconstitutional and made a reding-in order to recast
Section 1(4)(f)11. This was referred to the Constitutional court for confirmation. The
Constitutional Court held that the exclusion of the widows of the in de facto polygynous
Muslim marriage from the interstate Succession Act constitute unjustifiable unfair
discrimination on the grounds of gender, religion and marital status.12

6 Human Rights and the South African Legal order

7 Contemporary print of the Declaration of Rights of man and Citizen in the Musee Carnavalet
Paris. Reproduced in G. Duby. Histoire de la France Volume 2. Paris, Lavousse, 1971, p306,
trans A. Lentin
8 Hassan v Jacobs 2008
9 Interstate Succession Act 81 of 1987
10 Maintenance of the Surviving Spouses Act 27 of 1990
11 South African Constitution 2008
12 Hassan v Jacobs 2009 (5) SA 572 (CC) Heaton & Kruger. Casebook on Family Law, case

68
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6. PROPOSED CHAPTER OUTLAY

CHAPTER THEME CONTENT

1. Research Introduction, parameters and This will include the research problem
conceptualisation statement, the research proposal and
the conceptualisation of the central
research themes.

2. International development of human This chapter presents the global

Rights historical development of human rights.

3. South African development of human This chapter presents the development

rights and the constitution of the Constitution, the inclusion of the
Bill of Rights and the recognition of
domestic legislation.

4. The Constitution and legal pluralism in This chapter presents an analysis of

South Africa the current conflicts that is found in the
juristic legislation and the constitution

5. Conclusions and Recommendations This chapter provides the conclusions,

based on the hypothesis, and provides
recommendations on the reforms to be
undertaken.

7. PROJECTED TIME FRAMES FOR SUBMISSION

EXPECTED DATE OF
SUBMISSION

Submit draft research proposal 07 September 2018

Receive draft proposal with comment 05 October 2018

Resubmit corrected research proposal 26 October 2018

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8. DESCRIPTION OF RESEACH METHODOLOGY

The search will use the empirical method, where reliance is on the qualitative aspects,
the comparative evaluation of the legal pluralism, historical studies, in the development
of the Constitution and textual analysis from primary and secondary sources of law.
The method is used as a bridge between persuasive law and law in action, and how it
affects society. This is seen from the conflict between common law legislation and
customary law and where there is contradictory obligations. This suggests that the law
can be a problem in itself as it does not protect the human rights of the citizens, instead
of providing solutions. The research methodology will be based on authoritative and
persuasive sources of South African Constitutional Law. These will include The
Constitution, Legislation, Common Law, cases, Customary law, and international law.
With regards to persuasive law, it will be foreign law, academic writtings, policy
documents and reports by state institutions.

9. CONCLUSION
The research has indicated the international development of the Bill of rights and its
inclusion in the Constitution of South Africa in 2006. South Africa as a legal pluralism
state, has consistently seen conflicts between legislation and the bill of rights. The
legislation is and should be the law of the state and apply to all fairly and uniformly. Based
on the cases decided by the Constitutional court it has been proven that our legal system
does not protect the human rights and in that case, transformation of the legal system is
required to achieve the desired reforms.

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BIBLIOGRAPHY

Acts:

The Constitution of the Republic of South Africa 1996 Act no 108 of 1996

Books:

Brand South African Constitutional Law in Context.

Brand D et al. (2014) South African Constitutional Law in Context. Oxford

University Press

CurrieThe Bill of Rights Handbook

Currie, I and de Waal, J (2013) The Bill of Rights Handbook 6th ed Cape Town:
Juta

Dugard Human Rights and the South African Legal Order

Dugard, J (1978) Human Rights and the South African Legal Order Princeton,
NJ: Princeton University Press

Heaton Casebook on Family Law

Heaton, J and Kruger, H. (2015) Casebook on Family Law, case 68: Lexis Nexis

Cases:

Hassan v Jacobs NO 2009 (5) SA 272 (CC)

Holomisa v Holomisa and Another (CCT146/17) [2018] ZACC 40 (23 October 2018)

International Instruments:

Contemporary print of the Declaration of Rights of man and Citizen in the Musee
Carnavalet Paris. Reproduced in G. Duby. Histoire de la France Volume 2. Paris,
Lavousse, 1971, p306, trans A. Lentin

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Universal Declaration of Human Rights-United Nations1945

Journals:

Isa International Human Rights Law in a Global Context

Isa, F.G. and De Feyte, K (2009) International Human Rights Law in a Global
Context: Universidad de Deusto

Ndulo International law: A South African Perspective, by John Dugard [Book Review]

Ndulo, M “International law: A South African Perspective, by John Dugard [Book

Review]” (1995). Cornel Law faculty Publications paper 72

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