SECTION A: ANSWER ALL THE QUESTIONS IN THIS SECTION
QUESTION 1
1.1. Indicate whether the following statements are true or false, and briefly
explain why: (15)
1.1.1. The term “international agreement”, as it appears in section 231(1) of
the 1996 Constitution, is wider than the term “treaty” and includes informal
agreements between states. (3)
False: In Jürgen Harksen v President of the RSA, the Constitutional Court stated
that the term “international agreement” (as occurring in section 231 of the
Constitution) is to be understood to mean “treaty”, as defined in article 2(1) of the
Vienna Convention on the Law of Treaties.
1.1.2. Executive agreements do not have to be approved by Parliament in
order to bind the Republic internationally, and therefore they become part of
South African law without the need for legislative incorporation, provided
they do not conflict with the 1996 Constitution, or an Act of Parliament. (3)
False: While executive agreements must only be tabled before Parliament in order
to bind the Republic internationally, they are still subject to section 231 (4).
Section 231(4) is perfectly clear where it states that ANY treaty (therefore also
those under 231(3)) must be incorporated by national legislation in order to
become law in the Republic. There is one exception in the form of self-executing
treaties, but section 231(3) treaties cannot be self-executing.
, 1.1.3. Customary international law is law in the Republic, unless it is
inconsistent with the Constitution or an Act of Parliament. (3)
True: Customary international law is provided for in section 232, which explicitly
state that: Customary international law is law in the Republic unless it is
inconsistent with the Constitution or an Act of Parliament.
1.1.4. In terms of section 39(1) of the 1996 Constitution, when interpreting
legislation, the court must consider international law and may consider
foreign law. (3)
False: Section 39(1) provides that when interpreting the Bill of Rights, “a court,
tribunal or forum must promote the values that underlie an open and democratic
society…; must consider international law; and may consider foreign law”.
1.1.5. Section 233 of the 1996 Constitution provides for the direct application
of unincorporated treaties. (3)
False: Section 233 provides “When interpreting any legislation, every court must
prefer any reasonable interpretation of the legislation that is consistent with
international law over any alternative interpretation that is inconsistent with
international law.” One of the purposes of this section is to promote harmony
between international law and municipal law. As a result of its provisions,
international law finds indirect application within the domestic legal system.
QUESTION 1
1.1. Indicate whether the following statements are true or false, and briefly
explain why: (15)
1.1.1. The term “international agreement”, as it appears in section 231(1) of
the 1996 Constitution, is wider than the term “treaty” and includes informal
agreements between states. (3)
False: In Jürgen Harksen v President of the RSA, the Constitutional Court stated
that the term “international agreement” (as occurring in section 231 of the
Constitution) is to be understood to mean “treaty”, as defined in article 2(1) of the
Vienna Convention on the Law of Treaties.
1.1.2. Executive agreements do not have to be approved by Parliament in
order to bind the Republic internationally, and therefore they become part of
South African law without the need for legislative incorporation, provided
they do not conflict with the 1996 Constitution, or an Act of Parliament. (3)
False: While executive agreements must only be tabled before Parliament in order
to bind the Republic internationally, they are still subject to section 231 (4).
Section 231(4) is perfectly clear where it states that ANY treaty (therefore also
those under 231(3)) must be incorporated by national legislation in order to
become law in the Republic. There is one exception in the form of self-executing
treaties, but section 231(3) treaties cannot be self-executing.
, 1.1.3. Customary international law is law in the Republic, unless it is
inconsistent with the Constitution or an Act of Parliament. (3)
True: Customary international law is provided for in section 232, which explicitly
state that: Customary international law is law in the Republic unless it is
inconsistent with the Constitution or an Act of Parliament.
1.1.4. In terms of section 39(1) of the 1996 Constitution, when interpreting
legislation, the court must consider international law and may consider
foreign law. (3)
False: Section 39(1) provides that when interpreting the Bill of Rights, “a court,
tribunal or forum must promote the values that underlie an open and democratic
society…; must consider international law; and may consider foreign law”.
1.1.5. Section 233 of the 1996 Constitution provides for the direct application
of unincorporated treaties. (3)
False: Section 233 provides “When interpreting any legislation, every court must
prefer any reasonable interpretation of the legislation that is consistent with
international law over any alternative interpretation that is inconsistent with
international law.” One of the purposes of this section is to promote harmony
between international law and municipal law. As a result of its provisions,
international law finds indirect application within the domestic legal system.
