This study examines the effect of judicial protection of minority rights on the
Constitutional Court’s legitimacy. The framing of the Marriage Act shows that
Parliament intended marriage to be between a man and a woman. By nullifying section 30(1) of the Act and making the order above, the Court fulfilled its constitutional mandate of upholding fundamental human rights. At the same time, it negated the intention of Parliament which represents majoritarian interests. The Constitutional Court is, in contra-distinction with Parliament, unelected. By voiding section 30(1) of the Marriage Act and arousing public opposition to legal recognition of same-sex unions, it raised a ‘countermajoritarian difficulty.’ This ‘countermajoritarian difficulty’ has elicited intense scholarly debate.17 The study examines how the Court’s negation of majoritarian interests in order to protect minority rights affects its legitimacy.
A Dissertation submitted to the Faculty of Law University of Pretoria, in partial fulfilment of the requirements for the degree Masters of Law (LLM in Human Rights and Democratisation in Africa). Prepared under the supervision of Associate Prof. Tamale Sylvia of the Faculty of Law, Makerere University, Kampala, Uganda
Thesis (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2007.