STUDY UNIT 2

Question 1

TWO APPROACHES:

Answer 1

1. the Monist
2. the Dualist

Question 2

THE MONIST SCHOOL:

Answer 2

the monist school maintain that international law and municipal law are far from being essentially different, must be regarded as manifestations of a single conception of law.

Question 3

MONIST ARGUE THAT:

Answer 3

Monists argue that municipal courts are obliged to apply the rules of international law.

Question 4

DUALISTS:

Answer 4

Dualists see international law and municipal law as completely different systems of law, with the result that international law may be applied by domestic courts only if adopted by such courts.

Question 5

HARMONISATION THEORY:

Answer 5

qualifies as the monist approach in acknowledging cases of conflict between international law and municipal law, the judge must apply his country’s own jurisdictional rules
-South Africa follows the harmonization theory.

Question 6

CUSTOMARY INTERNATIONAL LAW (PROVISION)

Answer 6

SECTION 232 OF THE CONSTITUTION: provides that customary international law is law in the republic unless it is in consistent with the Constitution or an Act of Parliament

Question 7

SECTION 233 OF THE CONSTITUTION (LEGISLATION)

Answer 7

provides that only a provision of the constitution or an Act of Parliament that is clearly inconsistent with customary international law will trump itT

Question 8

TWO-STAGE INQUIRY:

Answer 8

1. a court must determine what relevant customary international law is in relation to the issue facing the court.
2. the court must determine whether the relevant customary international law is consistent with the constitution and domestic legislation.

Question 9

TREATIES(PROVISION)

Answer 9

section 231(1)-(5) of the Constitution

Question 10

SECTION 39(1)(b):

Answer 10

provides that a court must consider international law when interpreting the Bill of Rights

Question 11

PROMINENT PLACE OF INTERNATIONAL LAW IN SA DOMESTIC LAW CASE LAW:

Answer 11

-S v Makwenyane