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LCP4804 Assignment 2 Semester 2 - (Due: 11 September 2023)
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LCP4804 Assignment 2 Semester 2 - (Due: 11 September 2023)
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LCP4804ASSIGNMENT 2 (SEMESTER 2)
DUE DATE: 11 September 2023
QUESTION 1
Make a critical evaluation of the provisions of section 39(2) of the Constitution of the Republic of
South Africa, 1996 as they pertain to customary law and provide an illustration of at least two cases
where these provisions (section 39(2)) were applied to develop customary law in the courts. (15)
ANSWER:
Section 39(2) of the Constitution of the Republic of South Africa, 1996 is a critical provision that plays a
significant role in the development and application of customary law in the country. This section reads as
follows:
"When interpreting any legislation, and when developing the common law or customary law, every
court, tribunal or forum must promote the spirit, purport, and objects of the Bill of Rights."
Here's a critical evaluation of the provisions of Section 39(2) as they pertain to customary law in South
Africa:
1. Promotion of Constitutional Values:
• Section 39(2) serves as a crucial bridge between the Constitution and customary law. It requires
that courts interpret and develop customary law in a manner that aligns with the spirit, purport,
and objects of the Bill of Rights. This means that customary law cannot violate fundamental human
rights and freedoms guaranteed by the Constitution.
2. Balancing Tradition and Rights:
Terms of Utilisation:
•
1. It strikes a balance between respecting cultural diversity and upholding individual rights. South
Educational and Reference: You may use this document for educational, reference, and comparison purposes.
2. Africa
No is ora Misrepresentation:
Duplication diverse nation You are with various
not allowed to duplicatecultural traditions
or misrepresent this document'sand
contentpractices.
as your own work.Section 39(2) ensures that
3.
while customary law is recognized and respected, it cannot infringe
Accept Consequences: If you misuse or plagiarize this document, you accept responsibility for any resulting consequences.
upon the constitutional rights
of individuals, especially those from vulnerable or marginalized groups.
Your use of this document signifies your agreement to these terms. Failure to comply may lead to legal action or other appropriate measures.
3. Flexibility and Adaptability:
• Section 39(2) allows for the development of customary law, acknowledging that these laws may
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