QUESTION 1
1.1 By way of examples and references to the appropriate Constitutional Law authorities,
briefly explain the meaning of counter-majoritarian dilemma. (16)
1.2 Succinctly explain, with reference to the relevant authorities, the principle of multiparty democracy from a South African per...
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, QUESTION 1
1.1 By way of examples and references to the appropriate Constitutional Law
authorities, briefly explain the meaning of counter-majoritarian dilemma. (16)
The counter-majoritarian dilemma is a concept that refers to the tension that arises in
a constitutional democracy when courts are tasked with interpreting and enforcing
the Constitution, which may conflict with the will of the majority. In South Africa, the
Constitution is the supreme law of the land and all other laws and actions of the
government must be consistent with it. This means that the courts are often required
to strike down laws or actions that are inconsistent with the Constitution, even if they
are supported by the majority of the people or the government.
The counter-majoritarian dilemma is particularly relevant in South Africa due to the
country's history of apartheid and the need to transform society to be more equitable
and just. The Constitution includes a range of socio-economic rights, such as the
right to housing, education, and healthcare, which require the government to take
affirmative action to redress past injustices and ensure that all citizens have access
to these basic necessities. However, implementing these rights may require the
courts to strike down laws or actions that are supported by the majority of the people
or the government, which can be seen as going against the will of the majority.
The Constitutional Court of South Africa has grappled with the counter-majoritarian
dilemma in a number of cases, including the case of Minister of Health and Others v
Treatment Action Campaign and Others [2002] ZACC 15. In this case, the court was
asked to rule on whether the government's policy on providing antiretroviral drugs to
HIV-positive pregnant women was consistent with the Constitution. The government
argued that the policy was based on resource constraints and that it was not feasible
to provide the drugs to all pregnant women. However, the court held that the policy
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