The dissertation critically examines and compares the decisions of the
Constitutional Court and the High Courts in cases dealing with the right to life, as
contained in section 11 of the Constitution of South Africa Act 108 of 1996. The
dissertation analysis the issues of adjudication and the concept of justice in
perspective. The main question is as follows: Are the Constitutional Court
decisions objective, based on the interpretation of the constitutional text, or do they
rather reflect the individual judge(s) personal perspective(s) or preference(s).
The purpose of this dissertation is to undertake a comparative study and analysis
of the Constitutional Court decisions on the right to life, same aspect from different
perspective, and show that the right to life is not given proper effect to on account
of the subjective approach to its interpretation undertaken by the judges.
It examines and scrutinises the Constitutional Court’s adjudication process. It found
that the law is indeterminable, because the court’s decisions are not based on the
interpretation of the law, but on the individual judges’ background and personal
preferences. This is so because the court uses the majority rule principle in its
decisions: The perception of the majority of the judges becomes a decision of the
court. It is argued that when taking a decision a judge does not apply the law but
instead uses the law to justify his predetermined decision on the matter. The
conclusion supports the critical legal scholars’ theory relating to the indeterminacy
of the law. It tests the objectivity of the judges using their own previous decisions. / Criminal and Procedural Law / LL. M.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:unisa/oai:uir.unisa.ac.za:10500/18631 |
| Date | 02 1900 |
| Creators | Moabelo, Kgorohlo Micro |
| Contributors | Finney, Polina |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Dissertation |
| Format | 1 online resource (161 leaves), application/pdf |
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