CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 4/00
CHRISTIAN EDUCATION SOUTH
AFRICA Appellant
versus
MINISTER OF
EDUCATION Respondent
Heard on : 4 May 2000
Decided on : 18 August
2000
JUDGMENT
SACHS J:
Introduction
[1] | The central question in this
matter is: when Parliament enacted a law to prohibit corporal punishment in
schools, did it violate the
rights of parents of children in independent schools
who, in line with their religious convictions, had consented to its
use? |
[2] | The issue was triggered by
the passage of the South African Schools Act (the Schools Act) in
1996,[1] section 10 of which
provides: |
“Prohibition of corporal
punishment
(1) No person may administer corporal punishment at a school to a learner.
(2) Any person who contravenes subsection (1) is guilty of an offence and liable
on conviction to a sentence which could be imposed
for
assault.”
The appellant, a voluntary
association, is an umbrella body of 196 independent Christian schools in South
Africa with a total of approximately
14 500 pupils. Its parent body was
originally established in the USA “to promote evangelical Christian
education” and
the appellant has been operating in South Africa since
1983. It says that its member schools maintain an active Christian ethos
and
seek to provide to their learners an environment that is in keeping with their
Christian faith. They aver that corporal correction
— the term they use
for corporal punishment — is an integral part of this ethos and that the
blanket prohibition of
its use in its schools invades their individual, parental
and community rights freely to practise their religion.
[3] | When the Schools Act was
being debated in Parliament, the appellant made submissions to the effect that
the prohibition of corporal
punishment violated its rights to freedom of
religion and cultural life, as guaranteed in the then applicable interim
Constitution,
but it failed to secure an exemption from the prohibition for its
schools. After the Schools Act was adopted, the appellant sought
direct access
to this Court[2] for an order
challenging its constitutionality. This application was refused on procedural
grounds.[3] The appellant then
applied to the South-Eastern Cape Local Division of the High Court for an order
declaring section 10 of the Schools
Act unconstitutional and invalid in that it
interferes with the right to freedom of religion and to cultural life to the
extent that
it prohibits corporal punishment in those independent schools. In
the alternative the appellant sought to have section 10 declared
unconstitutional and invalid to the extent that it prohibits corporal punishment
in independent schools where parents have consented
to its application. The
appellant eventually abandoned its first claim and relied solely on the
alternative claim. |
[4] | The appellant cited the
following verses in the Bible as requiring its community members to use
“corporal correction”: |
“Proverbs 22:6
Train up a child in the way it should go and when he is old he will not depart
from it.
Proverbs 22:15
Foolishness is bound in the heart of a child, but the rod of correction shall
drive it far from him.
Proverbs 19:18
Chasten thy son while there is hope and let not thy soul spare for his
crying.
Proverbs 23:13 and 14
Do not withhold discipline from a child, if you punish with a rod he will not
die. Punish him with a rod and save his soul from
death.”
In support of its contention that parents have
a divinely imposed responsibility for the training and upbringing of their
children,
the appellant cites Deuteronomy 6:4 to 7:
“Hear, O-Israel! The Lord is our God, the Lord is one!
And you shall love the Lord your God with all your heart and with all your soul
and with all your might.
And these words which I am commanding you today, shall be on your heart;
and you shall teach them diligently to your sons and shall talk of them when you
sit in your house and when you walk by the way and
when you lie down and when
you rise up.”
It contends that corporal punishment is a
vital aspect of Christian religion and that it is applied in the light of its
biblical context
using biblical guidelines which impose a responsibility on
parents for the training of their children.
[5] | It has further claimed that
according to the Christian faith, parents continue to comply with their biblical
responsibility by delegating
their authority to punish their children to the
teachers. By signing a document entitled “Consent to Corporal
Punishment”,
they indicate that they understand corporal punishment to be
inseparable from their understanding of their Christian faith and an
expression
of their religion. They further acknowledge that if they do not wish a child of
theirs to be subjected to corporal punishment
they are at liberty to remove such
child from the school; otherwise they authorise the school to apply corporal
correction. The
correctional procedure to be followed includes giving the
parents themselves the option to apply corporal punishment should they
so wish.
Should such option not be exercised, the correction is to be applied in the form
of five strokes given by the principal,
or a person delegated by him, with a
cane, ruler, strap or
paddle.[4] |
[6] | While not doubting the
sincerity of the appellant’s beliefs, Liebenberg J in the High Court found
that the scriptures relied
on provided “guidelines” to parents on
the use of the rod, but did not sanction the delegation of that authority to
teachers.
He held that the authority to delegate to teachers was derived from
the common law and the approach adopted by the appellant was
merely “to
clothe rules of the common law in religious attire”. He held that in the
circumstances it had not been established
that administering corporal punishment
at schools formed part of religious belief. The judge, however, decided that as
it was a
test case he should consider the other arguments raised by the
appellants. He assumed for the purposes of those arguments that administering
corporal punishment at schools concerned a serious religious belief. He
concluded that section 10 of the Schools Act did not constitute
a substantial
burden on religious freedom. He also held that corporal punishment in schools
infringed the children’s right
to dignity and security of the person and
was accordingly not protected by section 31 of the Constitution. He therefore
dismissed
the
application.[5] |
[7] | The appellant applied for
and was granted leave to appeal to this Court on the grounds that the blanket
prohibition in section 10
of the Schools Act infringes the following provisions
of the Constitution: |
“14. Privacy
Everyone has the right to privacy . . . .”
“15. Freedom of religion, belief and opinion
(1) Everyone has the right to freedom of conscience, religion, thought, belief
and opinion.”
“29. Education
. . . .
(3) Everyone has the right to establish and maintain, at their own expense,
independent educational institutions . . .
.”
“30. Language and culture
Everyone has the right to use the language and to participate in the cultural
life of their choice, but no one exercising these rights
may do so in a manner
inconsistent with any provision of the Bill of
Rights.”
“31. Cultural, religious and linguistic communities
(1) Persons belonging to a cultural, religious or linguistic community may not
be denied the right, with other members of that community
—
(a) to enjoy their culture, practise their religion and use their language; and
(b) to form, join and maintain cultural, religious and linguistic associations
and other organs of civil
society.
(2) The rights in subsection (1) may not be exercised in a manner inconsistent
with any provision of the Bill of
Rights.”
[8] | The respondent is the
Minister of Education. He contends that it is the infliction of corporal
punishment, not its prohibition, which
infringes constitutional rights. More
particularly, he contends that the claim of the appellant to be entitled to a
special exemption
to administer corporal punishment is inconsistent with the
following provisions in the Bill of Rights: |
“9. Equality
(1) Everyone is equal before the law and has the right to equal protection and
benefit of the law.”
“10. Human dignity
Everyone has inherent dignity and the right to have their dignity respected and
protected.”
“12. Freedom and security of the person
(1) Everyone has the right to freedom and security of the person, which includes
the right —
. . . .
(c) to be free from all forms of violence from either public or private
sources;
(d) not to be tortured in any way; and
(e) not to be treated or punished in a cruel, inhuman or degrading
way.”
“28. Children
(1) Every child has the right —
. . . .
(d) to be protected from maltreatment, neglect, abuse or
degradation”
He furthermore
places reliance on section 31(2) which states that section 31(1) rights
“may not be exercised in a manner inconsistent
with any provision of the
Bill of Rights.”
[9] | In an affidavit submitted on
behalf of the respondent, the Director-General of the Department of Education
contends that corporal
punishment in schools is contrary to the Bill of Rights.
He points out that, in 1996, Parliament adopted the National Education
Policy
Act[6] which, its preamble declared,
was: |
“. . . to facilitate the democratic transformation of the national system
of education into one which serves the needs and
interests of all the people of
South Africa and upholds their fundamental
rights”.
Section 3(4)(n) of that Act provides that the
Minister of Education shall determine national policy for the:
“control and discipline of students at education institutions: Provided
that no person shall administer corporal punishment,
or subject a student to
psychological or physical abuse at any education
institution”.
[10] | The affidavit states that
the Schools Act passed later that year provided a single framework for public
and independent schools and
learners, based upon the rights, freedoms and
responsibilities inherent in the Constitution, including the dignity and
equality of
all persons.[7] During
the drafting process of the Schools Act, the respondent received support for the
abolition of corporal punishment at schools
from all the national student
representative bodies, and the two largest national teacher unions. Although
not accepted, the appellant’s
submissions on the Bill were indeed taken
note of and seriously considered when Parliament consulted with interested
parties during
1995 and 1996. |
[11] | The affidavit avers further
that the advent of the new Constitution requires persons and groups to desist
from practices which, according
to their beliefs and traditions, may previously
have been regarded as generally acceptable. In the past, public institutions
had
inflicted physical assaults upon citizens and other forms of abuse of their
physical, emotional and psychological integrity. State
policy and public
practice had formerly permitted corporal punishment to be administered to
children in schools, and also to juvenile
and other offenders in prisons and
other correctional institutions. In the light of the new constitutional order,
state policy is
now different. |
[12] | According to the affidavit,
corporal punishment is inherently violent, and involves a degrading assault upon
the physical, emotional
and psychological integrity of the person to whom it is
administered. South Africans have suffered, and continue to suffer, a surfeit
of violence. The state has an obligation to ensure that the learner’s
constitutional rights are protected. It has an interest
in ensuring that
education in all schools is conducted in accordance with the spirit, content and
values of the Constitution. The
affidavit avers that corporal punishment is
incompatible with human dignity. Such punishment is degrading, unacceptable and
in violation
of both the teacher’s and the learner’s human dignity.
Even though it is significant that parents at the appellant’s
schools do
not object to corporal punishment, this factor cannot override the general
concerns of the state and the Department of
Education. |
[13] | Finally, the respondent
states that the trend in democratic countries is to ban corporal punishment in
schools. South Africa’s
international
obligations[8] under the Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment,[9] and the United Nations
Convention on the Rights of the
Child,[10] require the abolition of
corporal punishment in schools, since it involves subjecting children to
violence and degrading
punishment.[11] Inasmuch as the
outlawing of corporal punishment may limit other rights, such limitation is a
reasonable and justifiable one in
an open and democratic society based on human
dignity, equality and freedom. |
[14] | The respondent indicates
that he does not doubt the sincerity of the beliefs of the parents, nor does he
dispute their right to practise
their religion in association with each other.
Furthermore he does not challenge the right of these parents to administer
corporal
punishment at home, even if he does not necessarily approve of it. He
asserts, however, that such conduct is not appropriate in
schools or the
education system. |
[15] | It is clear from the above
that a multiplicity of intersecting constitutional values and interests are
involved in the present matter
— some overlapping, some competing. The
parents have a general interest in living their lives in a community setting
according
to their religious beliefs, and a more specific interest in directing
the education of their children. The child, who is at the
centre of the
enquiry, is probably a believer, and a member of a family and a participant in a
religious community that seeks to
enjoy such freedom. Yet the same child is
also an individual person who may find
himself[12] “at the other end
of the stick”, and as such be entitled to the protections of sections 10,
12 and 28. Then, the broad
community has an interest in reducing violence
wherever possible and protecting children from harm. The overlap and tension
between
the different clusters of rights reflect themselves in contradictory
assessments of how the central constitutional value of dignity
is implicated.
On the one hand, the dignity of the parents may be negatively affected when the
state tells them how to bring up
and discipline their children and limits the
manner in which they may express their religious beliefs. The child who has
grown up
in the particular faith may regard the punishment, although hurtful, as
designed to strengthen his character. On the other hand,
the child is being
subjected to what an outsider might regard as the indignity of suffering a
painful and humiliating hiding deliberately
inflicted on him in an institutional
setting. Indeed, it would be unusual if the child did not have ambivalent
emotions. It is
in this complex factual and psychological setting that the
matter must be decided. |
Sections 15 and 31 of
the Constitution
[16] | The appellant’s basic
argument was that its rights of religious freedom as guaranteed by sections 15
and 31 had been infringed,
and that those rights should be viewed
cumulatively.[13] It contended that
the corporal correction applied in its schools with the authorisation of the
parent was not inconsistent with
any provision of the Bill of Rights.
Accordingly, the qualification contained in section 31(2) did not apply. It
went on to argue
that once it succeeded in establishing that the Schools Act
substantially impacted upon its sincerely held religious beliefs, the
failure of
the Schools Act to provide an appropriate exemption could only pass
constitutional muster if it were justified by a compelling
state
interest. |
[17] | The respondent contended,
however, that the governing provision was section 31 and not section 15. The
corporal punishment was delivered
in the context of community activity in a
school and accordingly it could only attract constitutional protection if in
terms of section
31(2) it was not inconsistent with any other provision of the
Bill of Rights; since corporal punishment at school violates the right
to
equality and the right to dignity, it forfeits any claim to constitutional
regard. Alternatively, if corporal punishment in the
appellant’s schools
did not violate the Bill of Rights, its prohibition by the Schools Act was
reasonable and justifiable in
an open and democratic
society. |
[18] | I will start with section
15 which deals with freedom of religion, belief and opinion. The meaning of a
similar provision in the
interim Constitution was considered by Chaskalson P in
S v Lawrence; S v Negal; S v
Solberg[14] where he made the
following
observation[15]: |
“In the [R v Big M Drug Mart Ltd] case Dickson CJC
said:
‘The essence of the concept of freedom of religion is the right to
entertain such religious beliefs as a person chooses, the
right to declare
religious beliefs openly and without fear of hindrance or reprisal, and the
right to manifest religious belief by
worship and practice or by teaching and
dissemination.’
I cannot offer a better definition than this of the main attributes of freedom
of religion. But, as Dickson CJC went on to say,
freedom of religion means more
than this. In particular he stressed that freedom implies an absence of
coercion or constraint and
that freedom of religion may be impaired by measures
that force people to act or refrain from acting in a manner contrary to their
religious beliefs. This is what the Lord's Day Act did; it compelled believers
and non-believers to observe the Christian
Sabbath.”[16]
[19] | This broad approach
highlights that freedom of religion includes both the right to have a belief and
the right to express such belief
in practice. It also brings out the fact that
freedom of religion may be impaired by measures that coerce persons into acting
or
refraining from acting in a manner contrary to their beliefs. Just as it is
difficult to postulate a firm divide between religious
thought and action based
on religious belief, so it is not easy to separate the individual religious
conscience from the collective
setting in which it is frequently expressed.
Religious practice often involves interaction with fellow believers. It usually
has
both an individual and a collective dimension and is often articulated
through activities that are traditional and structured, and
frequently
ritualistic and ceremonial. This aspect is underlined by article 18(1) of the
International Covenant on Civil and Political
Rights (ICCPR) which
states: |
“Everyone shall have the right to freedom of thought, conscience and
religion. This right shall include freedom to have or
to adopt a religion or
belief of his choice, and freedom, either individually or in community with
others and in public or private, to manifest his religion or belief in
worship, observance, practice and teaching.” (emphasis
added)
[20] | The interim Constitution,
like the ICCPR, did not distinguish between personal and communal religious
observances and practices.
The final Constitution, however, makes specific
provision in section 31 for the practice of religion in community with others.
For
this reason, much of the argument in this Court and in the High Court was
directed at the interpretation and application of this
section. |
[21] | The respondent contended
that the relief sought by the appellant in the present proceedings, confined as
it was to a declaration that
section 10 of the Schools Act was unconstitutional
“to the extent that it is applicable to learners at . . . independent
schools
. . . whose parents or guardian have given consent to such corporal
punishment . . .”, depended upon section 31 of the Constitution,
and
should be dismissed because it failed to meet the requirement for the exercise
of section 31 rights set by section 31(2). This,
the respondent contended,
flowed from the fact that the administration of corporal punishment to scholars
infringed their right to
dignity under section 10 of the Constitution, their
rights as children under section 28(1)(d) of the Constitution “to be
protected
from maltreatment, neglect, abuse or degradation” and their
right under section 12 of the Constitution to freedom and security
of the
person, which includes the right “to be free from all forms of violence
from either public or private sources”.
The respondent also contended
that if corporal punishment is not prohibited by the Constitution, section 10 of
the Schools Act,
insofar as it may constitute a limitation of other fundamental
rights, is a limitation that “is reasonable and justifiable
in an open and
democratic society based on human dignity, equality and
freedom”.[17] |
[22] | The presence of section 31
in the Bill of Rights may be understood as a product of the two-stage
negotiation process resulting in
the adoption of the final Constitution, in
which one of the concerns was how community rights could be protected in a
non-racial
parliamentary democracy based on universal suffrage, majority rule
and individual rights. Constitutional Principle (CP)
XI[18] declared that the diversity
of language and culture should be acknowledged and protected and conditions for
their promotion encouraged.
CP XII stated that collective rights of
self-determination in forming, joining and maintaining organs of civil society,
including
linguistic, cultural and religious associations should be recognised
and
protected.[19] |
[23] | The Constitution complies
with these Principles in a number of different ways. Thus, language rights and
rights of belief are first
spelt out fully as individual rights in sections 15
and 30, even though they have a community dimension and are frequently exercised
in a community setting. Section 31, in its turn, goes on to emphasise the
protection to be given to members of communities united
by a shared language,
culture or religion. It is evident that this section closely parallels article
27 of the ICCPR, which reads
as follows: |
“In those States in which ethnic, religious or linguistic minorities
exist, persons belonging to such minorities shall not
be denied the right, in
community with the other members of their group, to enjoy their own culture, to
profess and practise their
own religion, or to use their own
language.”
There are important differences, however,
between the two texts. The recipients of the protection offered by section 31
are not referred
to as “minorities”. Instead, the right refers to
those who belong to a cultural, religious or linguistic “community”.
In addition, the word “ethnic”, used in article 27, has been
replaced with the term
“cultural”.[20] The
rights protected by section 31 are significant both for individuals and for the
communities they constitute. If the community
as community dies, whether
through destruction or assimilation, there would be nothing left in respect of
which the individual could
exercise associational rights. Moreover, if society
is to be open and democratic in the fullest sense it needs to be tolerant and
accepting of cultural pluralism. At the same time, following the approach used
in article 27, the protection of diversity is not
effected through giving legal
personality to groups as such. It is achieved indirectly through the double
mechanism of positively
enabling individuals to join with other individuals of
their community, and negatively enjoining the state not to deny them the rights
collectively to profess and practise their own religion (as well as enjoy their
culture and use their language). The Constitution
finally provides for
institutional mechanisms to protect community rights by making provision for the
establishment of the Commission
for the Promotion and Protection of the Rights
of Cultural, Religious and Linguistic
Communities.[21]
[24] | There are a number of other
provisions designed to protect the rights of members of communities. They
underline the constitutional
value of acknowledging diversity and pluralism in
our society and give a particular texture to the broadly phrased right to
freedom
of association contained in section
18.[22] Taken together, they affirm
the right of people to be who they are without being forced to subordinate
themselves to the cultural
and religious norms of others, and highlight the
importance of individuals and communities being able to enjoy what has been
called
the “right to be
different”.[23] In each case,
space has been found for members of communities to depart from a general norm.
These provisions collectively and
separately acknowledge the rich tapestry
constituted by civil society,[24]
indicating in particular that language, culture and religion constitute a strong
weave in the overall pattern. |
[25] | It might well be that in
the envisaged pluralistic society members of large groups can more easily rely
on the legislative process
than can those belonging to smaller ones, so that the
latter might be specially reliant on constitutional protection, particularly
if
they express their beliefs in a way that the majority regard as unusual, bizarre
or even threatening. Nevertheless, the interest
protected by section 31 is not
a statistical one dependent on a counter-balancing of numbers, but a qualitative
one based on respect
for
diversity.[25] |
[26] | It should be observed,
further, that special care has been taken in the text expressly to acknowledge
the supremacy of the Constitution
and the Bill of
Rights.[26] Section 31(2) ensures
that the concept of rights of members of communities that associate on the basis
of language, culture and
religion, cannot be used to shield practices which
offend the Bill of Rights. These explicit qualifications may be seen as serving
a double purpose. The first is to prevent protected associational rights of
members of communities from being used to “privatise”
constitutionally offensive group practices and thereby immunise them from
external legislative regulation or judicial control. This
would be particularly
important in relation to practices previously associated with the abuse of the
notion of pluralism to achieve
exclusivity, privilege and domination. The
second relates to oppressive features of internal relationships primarily within
the
communities concerned,[27] where
section 8, which regulates the horizontal application of the Bill of Rights,
might be specially relevant. |
[27] | This is clearly an area
where interpretation should be prudently undertaken so that appropriate
constitutional analysis can be developed
over time in the light of the multitude
of different situations that will arise. If it is possible to decide the
present matter
without attempting to give definitive answers on a complex range
of questions in a new field, many of which were not fully canvassed
in argument,
then such a course should be followed. In the present matter I think that it is
possible to do so. For the purposes
of this judgment, I shall adopt the
approach most favourable to the appellant and assume without deciding that
appellant’s
religious rights under sections 15 and 31(1) are both in
issue. I shall also assume, again without deciding, that corporal punishment
as
practised by the appellant’s members is not “inconsistent with any
provision of the Bill of Rights” as contemplated
by section 31(2). I
assume therefore that section 10 of the Schools Act limits the parents’
religious rights both under section
31 and section 15. I shall consider, on
these assumptions, whether section 10 of the Schools Act constitutes a
reasonable and justifiable
limitation of the parents’ practice rights
under section 15 and section
31.[28] |
[28] | On the basis of these
assumptions made for the purposes of argument, I proceed to examine whether,
under section 36, the negative
impact which the Schools Act has on the practice
of corporal correction in the schools of the appellant’s religious
community,
is to be regarded as reasonable and justifiable in an open and
democratic society based on human dignity, freedom and equality.
If, even
applying the approach most favourable to the appellant, the answer is yes, then
it will not be necessary to consider alternative
interpretations which would be
less supportive of appellant’s
position. |
Justification of the limitation of
the right to religious freedom and religious community practice
(a) The test to be applied
[29] | I turn now to the question
of whether the limitation on the rights of the appellants can be justified in
terms of section 36, the
limitations clause. The appellant argued that once it
succeeded in establishing that the Schools Act substantially impacted upon
its
sincerely held religious beliefs, the state was required to show a compelling
state interest in order to justify its failure
to provide an appropriate
exemption. This formulation correctly points to the need for a balancing
exercise to be done, but establishes
a standard that differs from that required
by section 36. The proposed formulation imports into our law a rigid
“strict scrutiny”
test taken from American jurisprudence, a test
which I add, has been highly controversial in the United States. The test
requires
any legislative provision which impacts upon the freedom of religion
to be serving a “compelling state interest” A
similar test has been
adopted in relation to classifications based on
race.[29] In the context of freedom
of religion, however, the test has been rejected by a majority opinion of the
Supreme Court.[30] Furthermore,
even those who criticise the new approach adopted by the Supreme Court,
acknowledge that the strict scrutiny test was
honoured as much in the breach as
in the observance[31] and some
assert that a different approach which would require the appropriate
accommodation of religious freedom should be
adopted.[32] |
[30] | Our Bill of Rights, through
its limitations clause, expressly contemplates the use of a nuanced and
context-sensitive form of balancing.
Section 36 provides
that: |
“(1) The rights in the Bill of Rights may be limited only in terms of a
law of general application to the extent that the limitation
is reasonable and
justifiable in an open and democratic society based on human dignity, equality
and freedom, taking into account
all relevant factors, including—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the
purpose.”
[31] | As the Court noted in S
v Manamela, what section 36 requires is an overall assessment that will vary
from case to case: |
“In essence, the Court must engage in a balancing exercise and arrive at a
global judgment on proportionality and not adhere
mechanically to a sequential
check-list. As a general rule, the more serious the impact of the measure on
the right, the more persuasive
or compelling the justification must be.
Ultimately, the question is one of degree to be assessed in the concrete
legislative and
social setting of the measure, paying due regard to the means
which are realistically available in our country at this stage, but
without
losing sight of the ultimate values to be protected . . . .
Each particular infringement of a right has different implications in an open
and democratic society based on dignity, equality and
freedom. There can
accordingly be no absolute standard for determining
reasonableness.”[33]
To
sum up: limitations on constitutional rights can pass constitutional muster only
if the Court concludes that, considering the nature
and importance of the right
and the extent to which it is limited, such limitation is justified in relation
to the purpose, importance
and effect of the provision which results in this
limitation, taking into account the availability of less restrictive means to
achieve
this purpose. Though there might be special problems attendant on
undertaking the limitations analysis in respect of religious practices,
the
standard to be applied is the nuanced and contextual one required by section 36
and not the rigid one of strict scrutiny.
[32] | One further observation
needs to be made, however. In the present matter it is clear that what is in
issue is not so much whether
a general prohibition on corporal punishment in
schools can be justified, but whether the impact of such a prohibition on the
religious
beliefs and practices of the members of the appellant can be justified
under the limitations test of section
36.[34] More precisely, the
proportionality exercise has to relate to whether the failure to accommodate the
appellant’s religious
belief and practice by means of the exemption for
which the appellant asked, can be accepted as reasonable and justifiable in an
open and democratic society based on human dignity, freedom and
equality. |
[33] | Before setting out to apply
the above approach to the facts of this case, I feel it necessary to comment
generally on difficulties
of proportionality analysis in the area of religious
rights. The most complex problem is that the competing interests to be balanced
belong to completely different conceptual and existential
orders.[35] Religious conviction
and practice are generally based on faith. Countervailing public or private
concerns are usually not and are
evaluated mainly according to their
reasonableness.[36] To the extent
that the two orders can be separated, with the religious being sovereign in its
domain and the state sovereign in
its domain, the need to balance one interest
against the other is avoided. However religion is not always merely a matter of
private
individual conscience or communal sectarian practice. Certain religious
sects do turn their back on the world, but many major religions
regard it as
part of their spiritual vocation to be active in the broader
society.[37] Not only do they
proselytise through the media and in the public square, religious bodies play a
large part in public life, through
schools, hospitals and poverty relief. They
command ethical behaviour from their members and bear witness to the exercise of
power
by state and private agencies; they promote music, art and theatre; they
provide halls for community activities, and conduct a
great variety of social
activities for their members and the general public. They are part of the
fabric of public life, and constitute
active elements of the diverse and
pluralistic nation contemplated by the
Constitution.[38] Religion is not
just a question of belief or doctrine. It is part of a way of life, of a
people’s temper and culture. |
[34] | The result is that
religious and secular activities are, for purposes of balancing, frequently as
difficult to disentangle from a
conceptual point of view as they are to separate
in day to day practice. While certain aspects may clearly be said to belong to
the citizen’s Caesar and others to the believer’s God, there is a
vast area of overlap and interpenetration between the
two. It is in this area
that balancing becomes doubly difficult, first because of the problems of
weighing considerations of faith
against those of reason, and secondly because
of the problems of separating out what aspects of an activity are religious and
protected
by the Bill of Rights and what are secular and open to regulation in
the ordinary way. |
[35] | The answer cannot be found
by seeking to categorise all practices as religious, and hence governed by the
factors relied upon by the
appellant, or secular, and therefore controlled by
the factors advanced by the
respondent.[39] They are often
simultaneously both. Nor can it always be secured by defining it either as
private or else as public, when here,
too, it is frequently both. The underlying
problem in any open and democratic society based on human dignity, equality and
freedom
in which conscientious and religious freedom has to be regarded with
appropriate seriousness, is how far such democracy can and must
go in allowing
members of religious communities to define for themselves which laws they will
obey and which not.[40] Such a
society can cohere only if all its participants accept that certain basic norms
and standards are binding. Accordingly,
believers cannot claim an automatic
right to be exempted by their beliefs from the laws of the land. At the same
time, the state
should, wherever reasonably possible, seek to avoid putting
believers to extremely painful and intensely burdensome choices of either
being
true to their faith or else respectful of the
law.[41] |
(b) The nature of the rights and the scope of their
limitation
[36] | There can be no doubt that
the right to freedom of religion, belief and opinion in the open and democratic
society contemplated by
the Constitution is
important.[42] The right to believe
or not to believe, and to act or not to act according to his or her beliefs or
non-beliefs, is one of the key
ingredients of any person’s dignity. Yet
freedom of religion goes beyond protecting the inviolability of the individual
conscience.
For many believers, their relationship with God or
creation[43] is central to all their
activities. It concerns their capacity to relate in an intensely meaningful
fashion to their sense of themselves,
their community and their universe. For
millions in all walks of life, religion provides support and nurture and a
framework for
individual and social stability and growth. Religious belief has
the capacity to awake concepts of self-worth and human dignity
which form the
cornerstone of human rights. It affects the believer’s view of society
and founds the distinction between right
and wrong. It expresses itself in the
affirmation and continuity of powerful traditions that frequently have an
ancient character
transcending historical epochs and national
boundaries. |
[37] | As far as the members of
the appellant are concerned, what is at stake is not merely a question of
convenience or comfort, but an
intensely held sense about what constitutes the
good and proper life and their place in creation. No one in this matter
contested
that the appellant’s members sincerely believe that parents are
obliged by scriptural injunction to use corporal correction
as an integral part
of the upbringing of their children. Furthermore, it has set up independent
schools with the specific purpose
of enabling parents to have their children
educated in what they regard as a true Christian ethos. The impact of section
10 of the
Schools Act on their religious and parental practices is, in their
view, far from trivial. |
[38] | Yet, while they may no
longer authorise teachers to apply corporal punishment in their name pursuant to
their beliefs, parents are
not being deprived by the Schools Act of their
general right and capacity to bring up their children according to their
Christian
beliefs. The effect of the Schools Act is limited merely to
preventing them from empowering the schools to administer corporal
punishment. |
(c) The purpose, importance and effect of the limitation, and the
availability of less restrictive means
[39] | The respondent has
established that the prohibition of corporal punishment is part and parcel of a
national programme to transform
the education system to bring it into line with
the letter and spirit of the Constitution. The creation of uniform norms and
standards
for all schools, whether public or independent, is crucial for
educational development. A coherent and principled system of discipline
is
integral to such development. |
[40] | The state is further under
a constitutional duty to take steps to help diminish the amount of public and
private violence in society
generally and to protect all people and especially
children from maltreatment, abuse or degradation. More specifically, by
ratifying
the United Nations Convention on the Rights of the Child, it undertook
to take all appropriate measures to protect the child from
violence, injury or
abuse.[44] The Declaration on the
Elimination of All Forms of Intolerance and of Discrimination Based on Religion
or Belief declares in article
5(5) that: |
“Practices of a religion or belief in which a child is brought up must not
be injurious to his physical or mental health or
to his full development . . .
.”[45]
[41] | Courts throughout the world
have shown special solicitude for protecting children from what they have
regarded as the potentially
injurious consequences of their parents’
religious practices. It is now widely accepted that in every matter concerning
the
child, the child’s best interests must be of paramount importance.
This Court has recently reaffirmed the significance of
this right which every
child has.[46] The principle is not
excluded in cases where the religious rights of the parent are involved. As
L’Heureux-Dube J pointed
out in the Canadian case of P v
S: |
“[I]n ruling on a child’s best interests, a court is not putting
religion on trial nor its exercise by a parent for himself
or herself, but is
merely examining the way in which the exercise of a given religion by a parent
throughout his or her right to
access affects the child’s best
interests.
I am of the view, finally, that there would be no infringement of the freedom of
religion provided for in s. 2(a) were the Charter to apply to such orders
when they are made in the child’s best interests. As the court has
reiterated many
times, freedom of religion, like any freedom, is not absolute.
It is inherently limited by the rights and freedoms of others. Whereas
parents
are free to choose and practise the religion of their choice, such activities
can and must be restricted when they are against
the child’s best
interests, without thereby infringing the parents’ freedom of
religion.”[47]
In
similar vein Rutledge J of the US Supreme Court stated in Prince v
Massachusetts:
“And neither rights of religion nor rights of parenthood are beyond
limitation. Acting to guard the general interest in youth’s
well being,
the state as parens patriae may restrict the parent’s control by
requiring school attendance, regulating or prohibiting the child’s labor
[sic]
and in many other ways. Its authority is not nullified merely because the
parent grounds his claim to control the child’s
course of conduct on
religion or conscience. Thus, he cannot claim freedom from compulsory
vaccination for the child more than for
himself on religious grounds. The right
to practice religion freely does not include liberty to expose the community or
the child
to communicable disease or the latter to ill health or death . . .
[T]he state has a wide range of power for limiting parental freedom
and
authority in things affecting the child’s welfare; and that this includes,
to some extent, matters of conscience and religious
conviction . . .
The state’s authority over children’s activities is broader than
over like actions of adults. This is peculiarly true
of public activities . . .
”[48]
[42] | The respondent contended
that, in line with the above considerations, the state had two powerful
interests in the matter. The first
was to uphold the principle of equality. It
contended that to affirm the existence of a special exemption in favour of
religious
practices of certain children only, would be to violate the equality
provisions contained in section 9 of the Bill of Rights. More
particularly, it
would involve treating some children differently from others on grounds of their
religion or the type of school
they attended. I think this approach
misinterprets the equality provisions. It is true that to single out a member
of a religious
community for disadvantageous treatment would, on the face of it,
constitute unfair discrimination against that community. The contrary,
however,
does not hold. To grant respect to sincerely held religious views of a
community and make an exception from a general law
to accommodate them, would
not be unfair to anyone else who did not hold those views. As the Court said
in Prinsloo v Van Der Linde and
Another,[49] the essence of
equality lies not in treating everyone in the same way, but in treating everyone
with equal concern and respect.
Permission to allow the practice to continue
would, in these circumstances, not be inconsistent with the equality provisions
of the
Bill of Rights. |
[43] | The second and more
persuasive argument is to the effect that the state has an interest in
protecting pupils from degradation and
indignity. The respondent contended that
the trend in Europe and neighbouring African countries was firmly in the
direction of abolition
of corporal punishment, and that the core value of human
dignity in our Bill of Rights did not countenance the use of physical force
to
achieve scholarly correction. Accordingly, respondent was under an obligation
to prohibit such punishment, and to do so without
exception and for the benefit
of all children. The appellant replied that for believers, including the
children involved, the indignity
and degradation lay not in the punishment, but
in the defiance of the scriptures represented by leaving the misdeeds
unpunished;
subjectively, for those who shared the religious outlook of the
community, no indignity at all was involved. It argued further that
internationally there was widespread judicial support for the view that physical
punishment only became degrading when it passed
a certain degree of
severity.[50] Appellant would be
bound by limits set by the common law, and these limits would establish the
standards to be applied. It did
not contend that corporal punishment should be
permitted in all schools, but asserted that its use should be allowed within
reasonable
limits in independent schools where parents, out of their religious
convictions, had authorised it. The state interest, accordingly,
did not extend
to protecting the children in the appellant’s
schools. |
[44] | The issue of whether
corporal punishment in schools is in itself degrading was touched upon but not
decided by this Court in S v Williams and
Others.[51] Holding that
judicially ordered corporal punishment of juveniles was in conflict with the
Bill of Rights, Langa J stated that “the
issue of corporal punishment [in]
schools [was] by no means free of controversy” and that “the
practice [had] inevitably
come in for strong criticism”. In his view, the
“culture of authority which legitimate[d] the use of violence [was]
inconsistent with the values for which the Constitution
stands”.[52] Speaking
generally, he stated that: |
“The deliberate infliction of pain with a cane on a tender part of the
body as well as the institutionalised nature of the
procedure involved an
element of cruelty in the system that sanction[ed] it. The activity is planned
beforehand, it is deliberate.
Whether the person administering the strokes has
a cruel streak or not is beside the point. It could hardly be claimed, in a
physical
sense at least, that the act pains him more than his victim. The act
is impersonal, executed by a stranger, in alien surroundings.
The juvenile is,
indeed, treated as an object and not as a human
being.”[53]
[45] | Similarly, although not
called upon to decide the constitutionality of corporal punishment meted out to
school children, Dumbutshena
CJ in S v A
Juvenile,[54] nonetheless
indicated that he would agree with the dissenting opinion of Mr Klecker in the
European Commission of Human Rights decision
in Campbell and Cosans v United
Kingdom: |
“Corporal punishment amounts to a total lack of respect for the human
being; it therefore cannot depend on the age of the human
being . . . The sum
total of adverse effects, whether actual or potential, produced by corporal
punishment on the mental and moral
development of a child is enough, as I see
it, to describe it as degrading within the meaning of Article 3 of the
Convention.”[55]
[46] | The same sentiment was
expressed by Mahomed AJA in Ex parte Attorney-General, Namibia: In re
Corporal Punishment by Organs of
State.[56] The issue here was
whether the infliction of corporal punishment in government schools was contrary
to article 8 of the Namibian
Constitution. He noted that although punishment
upon male students at government schools was regulated by a code issued by the
Ministry
of Education, Culture and Sport, such punishment inflicted as some kind
of sentence for acts of indiscipline: |
“ . . . remains an invasion on the dignity of the students sought to be
punished. It is equally clearly open to abuse. It
is often retributive. It is
equally alienating. It is also equally degrading to the student sought to be
punished, notwithstanding
the fact that the head of the school who would
ordinarily impose the punishment might be less of a stranger to the student
concerned
than a prison official who administers strokes upon a juvenile
offender pursuant to a sentence imposed by a
Court.”[57]
The
judgment, however, expressly left open the question of what the position might
be in cases where a parent had actually delegated
his or her powers of
chastisement to a schoolmaster. In a concurring judgment Berker CJ noted that
although little agreement existed
in respect of the desirability or otherwise of
corporal punishment in schools, it seemed to him:
“. . . that once one has arrived at the conclusion that corporal
punishment per se is impairing the dignity of the recipient or subjects
him to degrading treatment or even to cruel or inhuman treatment or punishment,
it does not on principle matter to what extent such corporal punishment is made
subject to restrictions and limiting parameters,
even of a substantial kind
— even if very moderately applied and subject to very strict controls, the
fact remains that any type of corporal punishment results in some
impairment of dignity and degrading
treatment.”[58] (emphasis in
original)
[47] | The above cases support the
argument of the respondent that the trend in southern Africa has been strongly
in favour of regarding
corporal punishment in schools as in itself violatory of
the dignity of the child. At the same time, they do indicate that the issue
is
subject to controversy, and in particular, that the express delegation of
consent by the parents might have a bearing on the extent
of the state interest.
Section 12 of the Constitution now adds to the rights protected by the interim
Constitution the following
provisions: |
“(1) Everyone has the right to freedom and security of the person, which
includes the right—
. . .
(c) to be free from all forms of violence whether from public or private
sources
. . .
(2) Everyone has the right to bodily and psychological integrity, which includes
the right—
. . . .
(b) to security in and control over their body . . .
”
It should be noted that
these rights to be violence-free are additional to and not substitutes for the
right not to be punished in
a cruel, inhuman or degrading way. Under section
7(2) the state is obliged to “respect, protect, promote and fulfil”
these rights. It must accordingly take appropriate steps to reduce violence in
public and private life. Coupled with its special
duty towards children, this
obligation represents a powerful requirement on the state to act.
[48] | The present matter does not
oblige us to decide whether corporal correction by parents in the home, if
moderately applied, would amount
to a form of violence from a private source.
Whether or not the common law has to be
developed[59] so as further to
regulate or even prohibit caning in the home, is not an issue before us. The
Schools Act does not purport to reach
the home or practices in the
home. |
[49] | We cannot, however, forget
that, on the facts as supplied by the appellant, corporal punishment
administered by a teacher in the institutional
environment of a school is quite
different from corporal punishment in the home environment. Section 10 grants
protection to school
children by prohibiting teachers from administering
corporal punishment. Such conduct happens not in the intimate and spontaneous
atmosphere of the home, but in the detached and institutional environment of the
school. Equally, it is not possible to ignore either
our painful past history
when the claims of protesting youth were met with force rather than reason, or
the extent of traumatic child
abuse practised in our society today. These
latter factors in no way touch on the sincerity of appellant’s beliefs, or
on
the spiritual integrity with which their activities are pursued. Nor has it
been suggested that the corporal punishment applied
in the appellant’s
schools constitutes violence of like dimension. Yet such broad considerations
taken from past and present
are highly relevant to the degree of legitimate
concern that the state may have in an area loaded with social pain. They also
indicate
the real difficulties the state may have when asked to make exemptions
even for the most honourable of
persons. |
Proportionality analysis
[50] | The measure was part and
parcel of a legislative scheme designed to establish uniform educational
standards for the country. Educational
systems of a racist and grossly unequal
character and operating according to a multiplicity of norms in a variety of
fragmented institutions,
had to be integrated into one broad educational
dispensation. Parliament wished to make a radical break with an authoritarian
past.[60] As part of its
pedagogical mission, the Department sought to introduce new principles of
learning in terms of which problems were
solved through reason rather than
force. In order to put the child at the centre of the school and to protect the
learner from physical
and emotional abuse, the legislature prescribed a blanket
ban on corporal punishment. In its judgement, which was directly influenced
by
its constitutional obligations, general prohibition rather than supervised
regulation of the practice was required. The ban was
part of a comprehensive
process of eliminating state-sanctioned use of physical force as a method of
punishment.[61] The outlawing of
physical punishment in the school accordingly represented more than a pragmatic
attempt to deal with disciplinary
problems in a new way. It had a principled
and symbolic function, manifestly intended to promote respect for the dignity
and physical
and emotional integrity of all children. It might in appropriate
cases be easier to carve out exemptions from general measures that
are purely
administrative, regulatory or commercial in character than from those that have
principled foundations and are deliberately
designed to transform national civic
consciousness in a major way.[62]
Even a few examples of authorised corporal punishment in an institution
functioning in the public sphere would do more than simply
inconvenience the
state or put it to extra expense. The whole symbolic, moral and pedagogical
purpose of the measure would be disturbed,
and the state’s compliance with
its duty to protect people from violence would be undermined. There is a
further factor of
considerable practical importance. It relates to the
difficulty of monitoring the administration of corporal punishment. It will
inevitably be administered with different force at different institutions, or by
different teachers, and there is always the possibility
that it will be
excessive. Children are put in a very vulnerable situation because they (and
their parents possibly) can only complain
about excessive punishment at the risk
of angering the school or the community. |
[51] | I do not wish to be
understood as underestimating in any way the very special meaning that corporal
correction in school has for the
self-definition and ethos of the religious
community in question. Yet their schools of necessity function in the public
domain so
as to prepare their learners for life in the broader society. Just as
it is not unduly burdensome to oblige them to accommodate
themselves as schools
to secular norms regarding health and safety, payment of rates and taxes,
planning permissions and fair labour
practices, and just as they are obliged to
respect national examination standards, so is it not unreasonable to expect them
to make
suitable adaptations to non-discriminatory laws that impact on their
codes of discipline. The parents are not being obliged to make
an absolute and
strenuous choice between obeying a law of the land or following their
conscience. They can do both simultaneously.
What they are prevented from
doing is to authorise teachers, acting in their name and on school premises, to
fulfill what they regard
as their conscientious and biblically-ordained
responsibilities for the guidance of their children. Similarly, save for this
one
aspect, the appellant’s schools are not prevented from maintaining
their specific Christian ethos. |
[52] | When all these factors are
weighed together, the scales come down firmly in favour of upholding the
generality of the law in the face
of the appellant’s claim for a
constitutionally compelled exemption. The appeal is accordingly dismissed. No
order for costs
was asked for and none is
made. |
Order
The appeal is
dismissed.
Postscript: The Voice of the Child
[53] | There is one further
observation to be made. We have not had the assistance of a curator ad
litem to represent the interests of the children. It was accepted in the
High Court that it was not necessary to appoint such a curator
because the state
would represent the interests of the child. This was unfortunate. The children
concerned were from a highly conscientised
community and many would have been in
their late teens and capable of articulate expression. Although both the state
and the parents
were in a position to speak on their behalf, neither was able to
speak in their name. A curator could have made sensitive enquiries
so as to
enable their voice or voices to be heard. Their actual experiences and opinions
would not necessarily have been decisive,
but they would have enriched the
dialogue, and the factual and experiential foundations for the balancing
exercise in this difficult
matter would have been more
secure. |
Chaskalson P, Langa DP, Goldstone J,
Madala J, Mokgoro J, Ngcobo J, O’Regan J, Yacoob J and Cameron AJ concur
in the judgment
of Sachs J.
For the appellant: FG Richings SC and DM Achtzehn instructed by Goldberg
& De Villiers.
For the respondent: MNS Sithole SC and BJ Pienaar instructed by the State
Attorney, Johannesburg.
[1] Act 84 of 1996
[2] In terms of section 167(6)(a) of
the Constitution and section 16 of the Constitutional Court Complementary Act,
13 of 1995, read with rule 17 of the Constitutional Court Rules.
[3] Christian Education South
Africa v Minister of Education 1999 (2) SA 83 (CC); 1998 (12) BCLR 1449
(CC).
[4] The prescribed procedure is set
out in the appellant’s affidavit as
follows:
“(a) Know the offence. Investigate and get the facts. The child must
deserve the punishment. Know without a doubt that it
was intentional not
careless.
(b) Get a witness. Men give hidings to boys, ladies to girls and the witness
should be the same sex as the child.
(c) Discuss the offence. The child must know exactly what they did and why they
are being punished. Give them the benefit of any
doubt.
(d) Get an admission. The child should admit to doing wrong. If you know the
offence and the child will not admit it, he [sic]
is dishonest and this
compounds the offence.
(e) Identify the biblical principle that has been violated. Identify a
principle from scripture that has been violated by the child’s
behaviour.
(f) Position the child, have them lean forward with feet spread apart. Put
their hands on the desk. You want them to be stationery
[sic]. You don’t
want to hurt the child. Discipline is one thing, damage is another.
(g) Review the offence, discuss the seriousness of the offence and the objective
in building character.
(h) Love the child, smile and tell them that you love them.
(i) Pray with the child and have the child pray first and ask for forgiveness
then [sic] you pray for the child and for his/her growth.
(j) Men should hug boys and ladies should hug the girls. Reaffirm your
relationship with that child. When the child leaves they
need to know that the
slate is clean.”
[5] Christian Education South
Africa v Minister of Education 1999 (4) SA 1092 (SE); 1999 (9) BCLR 951
(SE).
[6] Act 27 of 1996.
[7] See the preamble to the Schools
Act.
[8] The Constitution affirms that
international law is an important interpretive tool. See section 39(1)(b) of
the Constitution which
provides:
“When interpreting the Bill of Rights, a court, tribunal or
forum—
. . .
(b) must consider international
law”.
Section 233 of the Constitution 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.”
[9] South Africa ratified this
Convention on 10 December 1998.
[10] South Africa ratified this
Convention on 16 June 1995.
[11] Article 37 of the United
Nations Convention on the Rights of the Child provides
that:
“(a) No child shall be subjected to torture or other cruel, inhuman or
degrading treatment or punishment. ”
Article 19 provides that:
“1. State Parties shall take all appropriate legislative, administrative,
social and educational measures to protect the child
from all forms of physical
or mental violence, injury or abuse, neglect or negligent treatment,
maltreatment or exploitation including
sexual abuse, while in the care of
parent(s), legal guardian(s) or any other person who has care of the
child.
2. Such protective measures should, as appropriate, include effective procedures
for the establishment of social programmes to provide
necessary support for the
child and for those who have the care of the child, as well as for other forms
of prevention and for identification,
reporting, referral, investigation,
treatment and follow-up of instances of child maltreatment described heretofore,
and, as appropriate,
for judicial
involvement.”
Article 28(2) requires that:
“State Parties shall take all appropriate measures to ensure that school
discipline is administered in a manner consistent
with the child’s human
dignity and in conformity with the present
Convention.”
The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment in its preamble recognises “the
inherent dignity of the
human person” and refers to article 5 of the Universal Declaration of
Human Rights and article 7 of
the International Covenant on Civil and Political
Rights, both of which provide that no-one shall be subjected to torture, or to
cruel, inhuman or degrading treatment or punishment.
[12] I use the masculine gender.
Appellant said that corporal correction at its senior schools was limited to
boys, even though there
was no biblical injunction requiring this, because it
was well known that girls were better disciplined than boys.
[13] After argument in this matter
was concluded, the Supreme Court of Appeal delivered judgment in the case of
Prince v The President of the Law Society of the Cape of Good Hope and
Others SCA 220/98, 25 May 2000, as yet unreported. The issues in that case
were not canvassed in the present one, and this judgment will
not comment upon
them.
[14] 1997 (4) SA 1176 (CC); 1997
(10) BCLR 1348 (CC).
[15] Although the Court was divided
on other questions, there was no dissent from these remarks. It should be borne
in mind that the
interim Constitution did not have a provision similar to
section 31.
[16] Above n 14 at para 92.
[17] See section 36 of the
Constitution.
[18] The interim Constitution
contained 34 Constitutional Principles in schedule 4. A new constitutional text
passed by the Constitutional
Assembly in terms of chapter 5 of the interim
Constitution had to comply with these Constitutional Principles. See Ex
Parte Chairperson of the Constitutional Assembly: In re Certification of the
Constitution of the Republic of South Africa, [1996] ZACC 26; 1996 1996 (4) SA 744 (CC);
1996 (10) BCLR 1253 (CC) at para 2 and paras 15 - 19 and 26 - 30.
[19] In Ex Parte Chairperson of
the Constitutional Assembly: In re Certification of the Amended Text of the
Constitution of the Republic
of South Africa, [1996] ZACC 24; 1996 1997 (2) SA 97 (CC); 1997
(1) BCLR 1 (CC) the Court considered the argument that the wording of section 31
did not comply with the requirements of CP XII. At paragraph
24 the Court
noted that:
“CP XII does not indicate how the collective rights of self-determination
are to be recognised and protected. That was a matter
for the [Constitutional
Assembly] to decide. Having regard to the CPs as a whole, the
‘(c)ollective rights of self-determination’
mentioned in CP XII are
associational individual rights, namely those rights which cannot be fully or
properly exercised by individuals
otherwise than in association with others of
like disposition. The concept ‘self-determination’ is circumscribed
both
by what is stated to be the object of self-determination, namely
‘forming, joining and maintaining organs of civil society’
as well
as by CP I which requires the state for which the Constitution has to provide,
to be ‘one sovereign State’.
In this context
‘self-determination’ does not embody any notion of political
independence or separateness. It clearly relates to what may be done by way
of the autonomous exercise of these associational individual rights, in the
civil society
of one sovereign state.” (emphasis
added)
The Court noted at para 25 that this protective framework for civil society was
enhanced by institutional structures such as the
Public Protector, the Human
Rights Commission, the Commission for the Promotion and Protection of Rights of
Cultural, Religious and
Linguistic Communities, and the Commission for Gender
Equality. The Court thus held that the requirements of CP XII had been met.
[20] One commentator, Currie,
considers that this reflects:
“a desire to avoid any association of the new constitutional order with
the ethnic particularism of the apartheid ideology.
Rather than ties of blood,
the Constitution values and protects ties of affinity. Rather than recognizing
rights of ‘minorities’,
with the accompanying connotations of a
divided population, the Constitution prefers to emphasize that it is protecting
connectedness
. . . . ‘[C]ultural community’ suggests an organic
Gemeinschaft connected by language and custom, rather than a fragmented
and defensive social agglomeration.” (footnote
omitted)
Currie “Minority Rights: Education, Culture, and Language” in
Chaskalson et al (eds) Constitutional Law of South Africa Revision
Service 5 (Juta, Cape Town 1999) at 35-12.
[21] Sections 181, 185 and 186.
[22] Thus, the possibility of
legislation recognising marriages concluded under a system of religious law, or
any tradition, is expressly
provided for in sections 15(3)(a)(i) and (ii); the
right of everyone to establish independent educational institutions is
acknowledged
in section 29(3); section 30 recognises the right to use a language
and to participate in the cultural life of one’s choice;
and section
211(3) recognises customary law.
[23] See S v Lawrence; S v Negal;
S v Solberg above n 14 at para 147 and National Coalition for Gay and
Lesbian Equality and Another v Minister of Justice and Others 1999 (1) SA 6
(CC); 1998 (12) BCLR 1517 (CC) at para 134.
[24] Section 31(1)(b) speaks about
“organs of civil society”. Currie states that civil society is
“generally understood
to mean the private and unofficial associations of
the citizens of a state.” (footnote omitted) (above n 20 at 35-23) The
complex position of civil society as an intermediate structure between the
citizens and the state has been described by Glendon in
the following
manner:
“[W]e need to attend to the ‘seedbeds’ of civic virtue where
succeeding generations learn anew to appreciate the
benefits and sacrifices
necessary for a constitutional order. But here we encounter a problem and a
paradox. The problem is that
the intermediate structures that may be essential
to modern representative governments and welfare states are themselves
threatened
by the expansion of the state and, to some extent, by the expansion
of individual rights against the group. The paradox is that
these endangered,
small, social environments that are somehow necessary to modern . . . states are
not necessarily liberal or egalitarian
or democratic themselves. Nevertheless,
I would suggest that these fragile social environments are in as much need of
protection
from deliberate or inadvertent destruction as is our natural
environment. . . . [We] have concentrated primarily on the individual
and the
state . . . Neither . . . do we have an adequate vocabulary or conceptual
apparatus to deal with the small mediating structures
that lie between the
two.”
Glendon “Comments on Part 4” in Kirchof and Kommers (eds) Germany
and Its Basic Law: Past, Present and Future — A German-American
Symposium (Nomos Verlagsgesellschaft, Baden-Baden) at 286 - 7.
[25] For a discussion of some of the
issues involved in relation to individual rights in the context of claims for
group autonomy see
Metcalfe “Illiberal Citizenship? A Critique of Will
Kymlicka’s Liberal Theory of Minority Rights” (1996) 22
Queen’s Law Journal 167.
[26] Legislation dealing with
personal family law under section 15(3)(a) must be consistent with section 15
and the other provisions of
the Constitution in terms of section 15(3)(b);
independent educational institutions may not discriminate on the basis of race
in
terms of section 29(3)(a); the exercise of the rights to language and culture
in terms of section 30 may not be inconsistent with
any provision of the Bill of
Rights; and the recognition of rights in terms of customary law is subject to
the Constitution in terms
of section 39(3).
[27] See Tribe American
Constitutional Law 2nd ed (Foundation Press, New York 1988) at
1155:
“Any attempt to constitutionalize the relationship of the state to
religion must address the fact that much of religious life
is inherently
associational, interposing the religious community or organization between the
state and the individual believer.
Especially in the area of religion, courts
in this country have been reluctant to interfere with the internal affairs of
private
groups. . . Such deference to intermediate groups entails potential
domination by the group over the individual member, especially
the dissident . .
. ” (footnotes omitted)
See also Ackermann “Women, Religion and Culture: A Feminist Perspective on
‘freedom of religion’”(1994) 22:3
Missionalia 212 at
225:
“For women, freedom of religion means freedom from both religious and
cultural constraints which impinge negatively on our
experience . .
.
[A]s women struggle with the ambiguity of our relationship to the idea of
‘freedom of religion’, while at the same time
recognising our
legitimate claims for a religious and cultural identity, we need to challenge
those aspects of both religion and
culture which are oppressive to us and learn
to live with the pain of ambiguity
creatively.”
[28] If the limitation of the
religious rights protected by sections 15 and 31 proves to be reasonable and
justifiable, it is clear that
any limitations of the rights to privacy (section
14) and the right to establish independent schools (section 29(3)) would also be
justifiable.
[29] See Tribe above n 27 at
1451 and 1465.
[30] In Employment Division,
Department of Human Resources of Oregon et al v Smith et al 494 US 872
(1990) Scalia J for the majority stated the court’s approach as
follows:
“[I]f prohibiting the exercise of religion . . . is not the object of the
tax [law] but merely the incidental effect of a generally
applicable and
otherwise valid provision, the First Amendment has not been offended.”(at
878)
He explained that this was because:
“[I]f ‘compelling interest’ really means what it says (and
watering it down here would subvert its rigor in the
other fields where it is
applied), many laws will not meet the test. Any society adopting such a system
would be courting anarchy
. . . Precisely because ‘we are a cosmopolitan
nation made up of people of almost every conceivable religious preference’
. . . and precisely because we value and protect that religious divergence, we
cannot afford the luxury of deeming presumptively invalid, as applied to
the religious objector, every regulation of conduct that does not protect an
interest of the highest order. The rule
respondents favor [sic] would open the
prospect of constitutionally required religious exemptions from civic
obligations of almost
every conceivable kind . . .” (at 888) (emphasis in
the original)
In dissent, O’Connor J expressed the opinion that a balancing exercise
should be conducted by the court: once it was shown
that a measure in fact had a
substantial impact on the exercise of religious freedom, a compelling state
interest had to be produced
to justify it. This test was to be applied in each
case to determine:
“. . . whether the burden on the specific plaintiffs before us is
constitutionally significant and whether the particular criminal
interest
asserted by the State before us is compelling.” (at
899)
See Berg The State and Religion in a Nutshell (West, Minnesota 1998) at
78 - 115. The case led to enormous controversy and fierce academic debate. See
for example McConnell “Free
Exercise Revisionism and the Smith
Decision” (1990) 57 The University of Chicago Law Review 1109 and
Marshall “In Defense of Smith and Free Exercise Revisionism”
(1991) 58 The University of Chicago Law Review 308.
[31] Sager noted
that:
“The compelling-state-interest test has been described as strict in theory
and fatal in fact. Here, it was strict in theory
and notoriously feeble in
fact.”
Sager “Panel Discussion: Contemporary Challenges Facing the First
Amendment’s Religion Clauses” (1999) 43 New York Law School Law
Review 101 at 117. Berg above n 30 at 102 - 7 cites United States v
Lee [1982] USSC 40; 455 US 252 (1982) and Bob Jones University v United States [1983] USSC 97; 461 US
574 (1983) as examples. See also Tribe above n 27 at 1267.
[32] See McConnell above n 30.
[33] S v Manamela and Another
(Director-General of Justice Intervening) [2000] ZACC 5; 2000 (5) BCLR 491 (CC) at paras 32
and 33.
[34] A similar point is made by
Blackmun J in his dissent in Employment Division, Department of Human
Resources of Oregon, et al v Smith et al above n 30 at 909 - 10, where he
notes that:
“It is not the State’s broad interest in fighting the critical
‘war on drugs’ that must be weighed against
respondents’
claim, but the State’s narrow interest in refusing to make an exception
for the religious, ceremonial use
of
peyote.”
[35] Meyerson notes that religious
matters are not truths that can be publically demonstrated. She notes that they
are “neither
confirmable nor disconfirmable by public evidence” (at
17) and that “[t]he use of common standards of reason cannot help
reasonable people to converge on the truth in the area of religion.”(at
18) The State must thus justify limitations on specific
constitutional rights
by providing “a justification for its measure to which all reasonable
people would, if asked, accord
some degree of force.”(at 12) “[T]he
state is obliged . . . to justify limitations on constitutional rights from a
point
of view from which all citizens can reason”, not with reference to
justifications “whose normative force depends on an
intractably disputed
point of view” (at 17). See Meyerson Rights Limited: Freedom of
Expression, Religion and the South African Constitution (Juta & Co, Cape
Town 1997).
[36] In Prince v
Massachusetts [1944] USSC 52; 321 US 158 (1944) at 165, Rutledge J noted
that:
“Heart and mind are not identical. Intuitive faith and reasoned judgment
are not the same. Spirit is not always thought.
But in the everyday business
of living, secular or otherwise, these variant aspects of personality find
inseparable expression in
a thousand ways. They cannot be altogether parted in
law more than in life.”
[37] Carmella notes that Glendon
observes that:
“Some communities are ‘sectarian’ in their understanding.
Such ‘sects’ stand apart from civil society,
call people out of
society to join them in an intensely private life, and focus their efforts on
the small group of adherents. Others,
indeed the vast majority, consider
themselves ‘church’ as opposed to ‘sect’.
‘Churches’ deem
their role a public one: they are deeply engaged in
service to and discourse with the civil society, and cooperate with and learn
from the society’s institutions. For instance, they educate children,
provide social and medical services, operate institutions
for a wide variety of
purposes, and advocate positions on topics of moral and political importance.
Engagement in the culture by
‘churches’ renders religion a public
phenomenon, socially relevant beyond the small communities of adherents . . . .
[S]uch public religion contributes to the larger civil society and polity by
encouraging virtue in the citizenry and developing
habits and attitudes that
nurture self-government.” (footnote
omitted)
See Carmella “Mary Ann Glendon on Religious Liberty: The Social Nature of
the Person and the Public Nature of Religion”
(1998) 73:5 Notre Dame
Law Review 1191 at 1195.
[38] See the comments in of this
Court in Ex Parte Gauteng Provincial Legislature: In re Dispute Concerning
the Constitutionality of Certain Provisions of the Gauteng School
Education Bill
of [1996] ZACC 4; 1995 1996 (3) SA 165 (CC); 1996 (4) BCLR 537 (CC) at para 49 and 52. See
also S v Lawrence; S v Negal; S v Solberg above n 14 at para 146 - 47;
National Coalition for Gay and Lesbian Equality and Another v Minister of
Justice and Others above n 23 at paras 107 and 134 - 5.
[39] See above paras 7 - 13.
[40] This was the underlying
question to which Scalia J and O’Connor J gave different answers in
Employment Division, Department of Human Resources of Oregon et al v Smith et
al above n 30.
[41] Although it must be noted that
the German Constitution is different to ours, an interesting discussion of the
issues is to be found
in an article by Scholler “The Constitutional
Guarantee of Religious Freedom in the Federal Republic of Germany” in
Grimm/Hesse/Schuppert/Folke
(eds) Jahrbuch zur Staats - und
Verwaltungswissenschaft 7 (Baden-Baden 1994) 117.
[42] See the preamble, section 36(1)
and section 39(1)(a).
[43] Not all religions are
deistic.
[44] Especially articles 4, 19 and
34. See above n 11.
[45] See Van Bueren The
International Law on the Rights of the Child (Martinus Nijhoff Publishers,
Dordrecht 1995) at 163.
[46] Minister for Welfare and
Population Development v Sara Jane Fitzpatrick, CCT 08/00, 31 May 2000 as
yet unreported at paras 17 and 18.
[47] 108 DLR (4th) 287 at
317.
[48] Above n 36 at 166 - 8. It
should be pointed out that the actual decision in this case has been criticised,
but not the above statements.
[49] [1997] ZACC 5; 1997 (3) SA 1012 (CC); 1997 (6)
BCLR 759 (CC) at paras 32 - 3. See also President of the Republic of South
Africa and Another v Hugo [1997] ZACC 4; 1997 (4) SA 1 (CC); 1997 (6) BCLR 708 (CC) at para
41; City Council of Pretoria v Walker [1998] ZACC 1; 1998 (2) SA 363 (CC); 1998 (3) BCLR
257 (CC) at paras 81 and 130, and National Coalition for Gay and Lesbian
Equality and Another v Minister of Justice and Others above n 23 at para
132.
[50] The European Court of Human
Rights has stopped short of finding that all cases of physical discipline,
including smacking, constitute
a violation of the right to freedom from inhuman
or degrading punishment. The cases have held that, amongst other factors, the
severity and effects of the punishment, as well as age of the child, are
relevant. See Tyrer v United Kingdom (1978) 2 E.H.R.R 1;
Campbell and Cosans v United Kingdom. [1983] ECHR 3; (1982) 4 E.H.R.R. 293; Costello
Roberts v United Kingdom [1993] ECHR 16; (1993) 19 E.H.R.R. 112. In A v United
Kingdom [1998] 2 F.L.R. 959, the court unanimously held that the repeated
beating of a nine-year-old boy by his step-father with a garden cane, leaving
bruises
on his thighs and buttocks for a week, amounted to “torture or
inhuman or degrading punishment” contrary to article 3
of the Convention.
The court held that the government of the United Kingdom could be liable for
failing to take measures to protect
the child, in that the Convention imposed an
obligation on states to implement laws which provided sufficient protection of
children
in the form of effective deterrence against what it termed “such
serious breaches of personal integrity”. The United
Kingdom had failed to
do this by allowing parents and others in loco parentis to invoke the
defence before a jury that such punishment was “moderate and
justified” in circumstances such as in this
case, where the punishment was
obviously at a level of severity which fell within the scope of article 3. On
the other hand, at
least eight European countries have prohibited the corporal
punishment of children entirely, namely Austria, Croatia, Cyprus, Denmark,
Finland, Latvia, Norway and Sweden and the United Kingdom finally abolished
corporal punishment in independent schools in 1998 by
section 131 of the School
Standards and Framework Act. See Bainham “Corporal Punishment of
Children: A Caning for the United
Kingdom” (1999) Cambridge Law
Journal 291 at 293. Bernat notes that in 1992, the Austrian Supreme Court
in EvBl 1993/13 used the principle of “non-violent childraising”,
recently introduced into Austrian law, to hold that this principle forbids not
only bodily injury, but also any other form of ill-treatment
that does not
respect human dignity. This was so even though the child himself might not
consider it to constitute “harm”.
The Court held that the best
interests of the child were threatened whenever a parent objectively violated
his parental responsibilities.
See Bernat “Austria: Legislating for
Assisted Reproduction and Interpreting the Ban on Corporal Punishment”
(1993-94)
32 Journal of Family Law 247 at 252 - 3.
[51] [1995] ZACC 6; 1995 (3) SA 632 (CC); 1995 (7)
BCLR 861 (CC) at paras 48 and 49.
[52] Id at para 52.
[53] Id at para 90.
[54] 1990 (4) SA 151 (ZS) at
161E-F.
[55] (1980) 3 E.H.R.R. 531 at
556.
[56] 1991 (3) SA 76 (NmSC).
[57] Id at 93H-I.
[58] Id at 97C-E.
[59] Under section 8(3) of the
Constitution.
[60] The striking words of Mahomed
DP in S v Makwanyane and Another [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665
(CC) at para 262 bear repeating in this
context:
“The contrast between the past which [the Constitution] repudiates and the
future to which it seeks to commit the nation is
stark and dramatic . . . . The
past permitted degrading treatment of persons; s11(2) renders it
unconstitutional . . . . Such a
jurisprudential past created what the post-amble
to the Constitution recognises as a society ‘characterised by strife,
conflict,
untold suffering and injustice’. What the Constitution
expressly aspires to do is to provide a transition from these grossly
unacceptable features of the past to a conspicuously contrasting ‘future
founded on the recognition of human rights . .
.’”
At 263 he stated:
“The post-amble to the Constitution gives expression to the new ethos of
the nation by a commitment to ‘open a new chapter
in the history of our
country’, by lamenting the transgressions of’'human rights’
and ‘humanitarian principle’
in the past, and articulating a
‘need for understanding but not for vengeance, a need for reparation but
not for retaliation,
a need for ubuntu but not for
victimization’”.
[61] See S v Williams above n
51. The Correctional Services Second Amendment Act, 79 of 1996 abolished
corporal punishment as a disciplinary measure in prisons in respect of civil
debtors, whilst section 1 of the Abolition of Corporal Punishment Act, 33 of
1997 abolished corporal punishment as part of the penal system.
[62] The measure cannot be
characterised as an example of “a totalitarian bent” that envisages
one’s country “as
the land of the single, true meaning” and
assumes that “the purpose of the schools is to minimize the aggregate
costs
of parental error. The family, in this vision, becomes a little
baby-making factory, whose purpose is to create children for the
benefit of the
state.” Carter “1997-98 Brennan Center Symposium
Lecture:‘Religious Freedom as if Religion Matters:
A Tribute to Justice
Brennan’” (1999) 87 California Law Review 1059 at
1082.