Court/Judicial body: Constitutional Court of South Africa
Date: August 18, 2000 CRC
Provisions: Article 19: Protection from all forms of violence Article 28: Education Article 37: Prohibition of torture and cruel, inhuman, or degrading treatment
Other international provisions:International Covenant on Civil and Political Rights, Articles 7 and 18Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Preamble; Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, Article 5Universal Declaration of Human Rights, Article 5
Domestic provisions:South African Constitution, Sections 9, 10, 12, 14, 15, 28, 29, 30, 31 and 233South African Schools Act of 1996 Children’s Act; National Education Policy Act, Section 3
Case summary
Background: In 1996, the South African legislature prohibited corporal punishment with the passage of The South African Schools Act. Christian Education of South Africa, representing 196 independent Christian schools, sued to fight this prohibition as a violation of the right of its pupils’ parents to freedom of religion and an interference with the right to establish independent schools, the right to participate in the cultural life of their choice, the right to enjoy their culture and to practice their religion.
Issue and resolution: Corporal punishment. The court did not find any violation of freedom of religion and upheld the ban on corporal punishment in schools as lawful.
Court reasoning: The parents are not being obliged to make an absolute choice between obeying a law of the land or following their conscience, but they cannot authorize or instruct teachers to inflict corporal punishment on children in the name of their religious convictions. Schools are not prevented from maintaining their specific Christian ethos.
Excerpt citing relevant human rights
Provisions: [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.” … [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, practice 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 end 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.” … [13] Finally, the respondent states that the trend in democratic is to ban corporal punishment in schools. South Africa’s international obligations under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the United Nations Convention on the Rights of the Child, require the abolition of corporal punishment in schools, since it involves subjecting children to violence and degrading punishment. In as much 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.
[Footnote 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. … [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. 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 . . . .” [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…
Follow Up: Corporal punishment has been regarded as unlawful in South African schools and other education institutions in all instances. However, prohibition is still to be achieved in the home, alternative care settings and possibly penal institutions. A clause which would have prohibited corporal punishment in the home was removed from an Amendment Bill in 2007. The prohibition is likely to be addressed in a further amendment bill in the near future.
CRIN Comments: CRIN believes that this decision is consistent with the CRC and children’s right to be free from all forms of violence, which cannot be compromised in the interest of adults’ freedom of religion. While the Court’s prohibition of corporal punishment in schools is a positive step towards respecting and promoting children’s right to dignity and protection against violence and torture, corporal punishment must also be prohibited in all other places including at home or in alternative care. In this vein, CRIN hopes that there is soon legislative or judicial action to prohibit the corporal punishment of children in all settings.
Citation: (CCT4/00) [2000] ZACC 11
Link to Full Judgment: http://www.saflii.org/za/cases/ZACC/2000/11.html