Bernstein, David Martin (1996) Stumbling on the Essential Content of a Right - An Insurmountable Hurdle for the State? Masters thesis, University of South Africa.
![[img]](http://thesisbank.jhia.ac.ke/style/images/fileicons/application_pdf.png) |
PDF (Stumbling on the Essential Content of a Right - An Insurmountable Hurdle for the State?)
dissertation_bernstein_dm.pdf - Accepted Version Restricted to Repository staff only Download (1MB) | Request a copy |
Abstract
Section 33(1)(b) is fraught with borrowed provisions. The end-product marries German and Canadian features. The failure of the German Constitutional Courts to interpret the "essential content of a right" precipitated the adopted infant's bumpy landing in South Africa. That the sibling still lacks identity is evidenced by our Constitutional Court's evasive and superficial treatment of the clause. Section 33(1)(a) - proportionality prong enables judges to justify their neglect of Section 33(1)(b). The opinion is expressed that Section 33(1){b) demands interpretation but to date it has been shrouded in vagueness. After all without demarcating boundaries with sufficient precision and highlighting where the State may not tread the State may trespass. Alternatively the limitable nature of human rights could become a myth as Section 33(1)(b) could be transformed into an insurmountable hurdle for the State, rendering every right absolute in practice. A workable conceptual framework proposes an inverted, porous and value imbibing solution.
| Item Type: | Thesis (Masters) |
|---|---|
| Subjects: | K Law > K Law (General) |
| Divisions: | Africana |
| Depositing User: | Martin Lucas Mkoba |
| Date Deposited: | 17 Jan 2017 12:55 |
| Last Modified: | 20 Jan 2017 08:05 |
| URI: | http://thesisbank.jhia.ac.ke/id/eprint/1037 |
Actions (login required)
 |
View Item |