ASSIGNMENT 03

FINAL PORTFOLIO

MODULE : IRM 1501

NAME & SURNAME : MUNYAI PFUNZO JEFFREY

STUDENT NUMBER : 67153534

CELL : 0725746011
QUESTION 1

-Research is generally important because it assist in the discovery of answers to

questions through the application of scientific processes. It helps in finding the
truth that has not yet been discovered and making it available to the general
public. By doing research you become familiar with particular facts. Research is
important because is essential to find out which treatment work better for
patients. It play an important role in discovering new treatment in the best possible
way. Research clarifies the possible confusion when reading expert opinion.
Research enables you to do work collaboratively with others. And it assist in the
proper understanding of the subject. Then it increase your knowledge as the more
you read the more you learn.

QUESTION 2

INTRODUCTION

- The appellant a 41 year old unemployed man is a diabetic who suffers from
ischaemic heart disease and cerebro-vascular disease which caused him to have a
stroke during 1996. In 1996 his kidneys also failed. Sadly his condition is
irreversible and he is now in the final stages of chronic renal failure.

The facts of the case and Legal questions Commented [1]:

The appellant was a 41-year old, unemployed, diabetic manj who suffered from
ischaemic heart disease, cerebro-vascular disease, and renal failure. His condition
was chronic and irreversible. In order to continue address this condition and
prolong his life, he required regular renal dialysis treatment. The appellant had
made all efforts to continue treatment privately, but was not longer financially
capable of doing so, and as a result he sought from Addington State Hospital in
Durban. However, due to availability of only 20 renal dialysis machines, the hospital
had established very specific policy with regard to the use of these machines. Under
this policy, only individuals with acute renal failure were given automatic access to
the hospital’s dialysis machines because their condition was treatable and
remediable. Patients with chronic renal failure were instead required to meet
certain criteria, primarily eligibility for a kidney transplant, in order to receive
dialysis. The hospital, thus refused the appellant treatment because he did not
meet the necessary hospital criteria for renal dialysis eligibility. The appellant
sought relief from the High Court arguing that the hospital’s policy violated section
27(3) of the Constitution of South Africa, guaranteeing the right to emergency
medical treatment, and section 11, protecting the right to life. The claim was
dismissed by the High Court and the appellant appealed that decision.

Ratio dicendi

The Constitution Court was asked to determine whether the hospital policy
violates Articles 27(3) and 11 of the Constitution of South Africa. The Court
reasoned that the state has a constitutional duty to comply with the
obligations imposed on it by section 27 of the Constitution. However, it has
not been shown in the present case that the state’s failure to provide renal
dialysis facilities for all persons suffering from chronic renal failure
constitutes a breach of those obligations. The purpose of section 27(3) is to
ensure that treatment is given in an emergency situation and is not frustrated
by bureaucratic requirements and other formalities. Although the words
“emergency medical treatment” may be broadly interpreted to include
ongoing treatment of chronic illnesses for the purpose of prolonging life,
interpreting the language in such a manner would run counter to the ordinary
meaning of the phrase and would be contrary to the purpose of section 27(3).
In this case, the appellant suffered from chronic renal failure, a condition that
is not an emergency situation that calls for immediate remedial treatment.
Furthermore, the obligations imposed on the state by the Constitution under
sections 26 and 27 in regards to access to housing, health care, food, water,
and social security are dependent upon the availability of resources for such
purposes. Correspondingly, the rights guaranteed are limited by the
availability of those resources. As such the state may reasonably determine
how to allocate those limited resources.

The decision of the court

In our Constitution the right to medical treatment does not have to be inferred
from the nature of the state established by the Constitution or from the right to life
which it guarantees. It is dealt with directly in section 27. If section 27(3) were to
be construed in accordance with the appellant’s contention it would make it
substantially more difficult for the state to fulfill its primary obligations under
sections 27(1) and (2) to provide health care services to everyone within its
available resources. It would also have the consequence of prioritising the
treatment of terminal illnesses over other forms of medical care and would reduce
the resources available to the state for purposes such as preventative health care
and medical treatment for
Minister of Health v Treatment action campaign [ 2002 ] it was held that the states
failure to provide comprehensive anti referral drugs to prevent mother child HIV
transmission breached their rights to health.

In soobramoney v Minister. The constitutional court set out it’s approach to

examining right to health claim within the context of limited resources.
Conclusion

The applicant in this case presented his claim in a most dignified manner and
showed manifest appreciation for the situation of the many other persons in the
same harsh circumstances as himself.

Question 3

Scientific Research is validated and proven either by experience. A variety of

intellectual process and instrument are used in scientific practice to express
scientific knowledge. Scientific research is a process this process must be logical
and rational. It involves examination of facts in order to expand existing knowledge.

Non-scientific research are based on moral or presumption’s. Then it refers pseudo

research and this implies research that is collected haphazardly or carelessly and is
often based on casual observations and statements that are not logically
supported. It produces findings that cannot be reproduced and are based upon the
researchers faith or hope .

Question 4
 Random Sampling

 Stratified Sampling

 Systematic Sampling

 Convenience Sampling

 Quota Sampling
 Purposive Sampling

Question 5

Basic principles of transformative constitutionalism

 Legal researchers must provide a clear understanding of the applicable law

or legal principle.
 Legal researchers must analyses the applicable law or legal principle.
 Legal researcher must implement the decorative values of human dignity
Equality, and freedom to the law or legal principle.
 They ensure that legal researcher engage critically with law or legal
principles.
 They guarantee that the democratic values enshrined in the constitution
form part of the critical engagement with law or legal principles.
Question 6

Introduction
S v Makwanyane and Another1 was a landmark 1995 judgement of the Constitutional Court of South
Africa. It established that capital punishment was inconsistent with the commitment to human rights
expressed in the Interim Constitution.2

Body
Facts of the case
Two accused in this matter were convicted in the Witwatersrand Local Division of
the Supreme Court on four counts of murder one count of attempted murder and
one count of robbery with aggravating circumstances.
1 S v Makwanyane1995 6 BCLR 665 (CC).

2 S v Makwanyane1995 6 BCLR 665 (CC) par 25.

3 S v Makwanyane1995 6 BCLR 665 (CC) par 12-17. 2

Three They were sentenced to death on each of the counts of murder and to long
terms of imprisonment on the other counts. They appealed to the Appellate
Division Supreme Court against the convictions and sentences.
The Appellate Division dismissed the appeals against the convictions and came to
the conclusion that the circumstances of the murders were such that the accused
should receive the heaviest sentence permissible according to law. Counsel
representing the south Africa Government informed the court that the government
accepted that the death penalty was a cruel and degrading punishment and that it
should be declared unconstitutional. Unconstitutional.
The Attorney general contended that the death penalty is a necessary and form of
punishment which is not cruel.
The Issue had remained unresolved and it was decided to leave to the
constitutional court the task of deciding whether Pre-Constitutional Law making
the death penalty a competent sentencing option was consistent with the
fundamental rights provisions of the constitutional.
4 S v Makwanyane and Another CCT 38/94 [1995] ZACC 3.

5 Constitution of the Republic of South Africa Act 200 of 1993.

6 Currie I and de Waal J The bill of rights handbook (Juta Lansdowne 2013) 280-281.

7 Section 277 of the Criminal Procedure Act 55 of 1977 authorised the death penalty as competent sentence for murder, rape, robbery with
aggravating circumstances, kidnapping, child-stealing and treason in time of war.

Legal question

The core issue was what bearing the interim Constitution had on the death penalty.
Did the death penalty violate sections 9 10 and 11 a which guaranteed every
individual the right to life the right to dignity and the right to be free from torture
and cruel punishment? Judgment 3. Judgment .it met society needs for retribution
in the case of heinous crime . What is cruel inhuman or degrading depends on
contemporary attitude of society ? .
8 S v Makwanyane and Another CCT 38/94 [1995] ZACC 3.

9 Constitution of the Republic of South Africa Act 200 of 1993.

10 Currie I and de Waal J The bill of rights constitutional handbook (Juta Lansdowne 2013) 280-281

Decision of the court

In terms of the Constitution, courts are constrained in their decision making by
the supremacy of the Constitution and the rule of law.14 However, the courts
are further constrained by legislation the common law, precedent and procedural
rules in order to arrive at the outcome that is the most correct, both on the factual
basis of the case and the application of the law to the matter. Examples of
these include the exclusionary rules of evidence making the audi alteram partem
rule and the right to legal representation. In the South African constitutional
setting, established legislation prevailing precedents and other accepted sources.
11 Section 1 of the Constitution.

12 2015 (2) SA 498 (WCC) para 14.

13 Helen Suzman Foundation v Judicial Service Commission 2015 (2) SA 498 (WCC) para 1
The court accordingly ordered that the provisions of paragraphs (a) (b) (c) (d) (e)
and (f) of section 277(1) of the criminal procedure Act and all corresponding
provisions of other legislation sanctioning capital punishment which were in force
in any part of national territory in terms of section 229 of Constitution were
declared to be inconsistent with the Constitution and invalid. It was further ordered
in terms of section 98(7) of the Constitution that as from the date of the order the
state and all it’s organs were forbidden to execute any person already sentenced
to death under any of the provisions declared to be invalid and that all such persons
would remain in custody under the sentences imposed on them until such
sentences had been set aside in accordance with law and substituted by lawful
punishment
14 Constitution of the Republic of South Africa Act 200 of 1993.

15 Decision by the court Act of parliament 280-281.

16 Section 277 of the Criminal Procedure Act 55 of 1977 authorised the death penalty as competent sentence for murder, rape, robbery with
aggravating circumstances, kidnapping, child-stealing and treason in time of war

Conclusion
Constitutional interpretation in the so-called hard cases sometimes requires
subjective interpretation of the law from the judge. This means that the judge
must look outside the accepted law to find sources of interpretation for the
current law.

In some instances, this could lead to a judgment of the court that is based on or
influenced by the judge’s own moral, religious or political belief. In Makwanyane,
the court had to make a normative value judgment to give effect and meaning to
the undefined constitutional rights and values and the justices acknowledged that
subjective constitutional interpretation is unavoidable in constitutional
jurisprudence.
However, this is not compatible with the duty of the court to give a reasoned
decision for its judgment. Therefore, judges should acknowledge and address
the extent of their own predisposition on the case before them. Should this
introspection show that the judge’s own moral predisposition might be in play
this must be articulated in the court’s decision.

This provides legitimacy and objectivity to the judgment by exposing the

subjective interpretational element to criticism.

The acknowledgement then allows for a process through which subjective

interpretation becomes objectively verifiable and provides acceptable grounds for
interpretation and justification.
BABLIOGRAPHY
BOOKS
Introduction to law 1036
Currie Bill of Rights
Currie I and de Waal J The bill of rights handbook (Juta Lansdowne 2013)
Act of parliament
Constitution of the Republic of South Africa, 1996
Criminal Procedure Act 55 of 1977
Interim Constitution of the Republic of South Africa Act 200 of 1993
Court case
S v Makwanyane and Another (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995
(3) SA 391; [1996] 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995)
Journal Articles
Constitutional interpretation in the so –called “hard case “Revisiting S V
Makwanyane.
OVERVIEW OF THE JUDGMENTS OF THE CONSTITUTIONAL COURT OF SOUTH
AFRICA SINCE 1994 TO 2005