Conradie, DR (Dawid Rudolph)
31626165
Title: Research Assignment
Module: IURI 275
Lecturer: Ms Roos
Potchefstroom Campus
Date of submission: 5 October 2020
Table of Contents
1Introduction .......................................................................................................1
2The background of the case: Freedom of Religion South Africa v Minister of Justice
and Others 2020 1 SA 1 (CC). ..............................................................................1
3Limitation enquiry and findings............................................................................3
4Conclusion..........................................................................................................5
1
Introduction
The South African Constitution contains a section, Section 36, more commonly
known as the Limitation Clause that stated that rights may be limited to a certain
degree by a law of general application that is reasonable and justifiable in an open
and democratic society based on equality, freedom and dignity. 1 In order to prevent
conflict among rights it is necessary to have a Limitation clause in place to avoid
such situations from happening. Section 36 therefore limits certain rights to prevent
conflict from happening. The importance of Section 36 can be noted in the case
Freedom for Religion South Africa v Minister of Justice and Others, in which Section
36 was discussed in the light of the conflict between the right to religious freedom
and the right to be free from all forms of violence. 2
Focus will be place on the background information of the case namely the events
that led to the dispute, the Bill of Rights that was/were allegedly infringed and the
legal measures will be placed under scrutiny. Furthermore a description of limitation
enquiry and findings will be done and a critical evaluation of limitation enquiry and
findings will be presented. The application of the provisions of section 36 of the
constitution will be discussed.
2
The background of the case: Freedom of Religion South Africa v
Minister of Justice and Others 2020 1 SA 1 (CC).
The events that led to this dispute was between a Muslim father and his son whom
he caught watching pornography. The father than reprimanded his child by spanking
(chastisement) him and ended up beating him severely. 3 Freedom of Religion South
Africa (FOR SA) was invited to be a “friend of the court” (amici curiae) by the
Gauteng High Court.4 In this particular case the state brought charges of common
assault against the father of the abused and the magistrate convicted the father. He
then appealed to the High Court to overturn the original conviction but the appealed
was dismissed due to chastisement not being consistent with the Constitution and
1
Anon 2014 http://constitutionnet.org.
2
Freedom of Religion South Africa v Minister of Justice and Others 2020 (1) SA (CC) para 01.
3
FOR SA 2019 https://forsa.org.za.
4
FOR SA 2019 https://forsa.org.za.
1
seen as invalid.5 The father claimed he was within in rights to punish his child under
the common law. There is a significant difference between corporal punishment and
chastisement. The one is inflicted by the parent in a loving and caring manner and
the other is inflicted by a stranger of some sorts such as teachers. FOR SA then
appealed the decision of the High Court and argued that it was clearly a case of
abuse and that this matter should not be used as a “test case” to determine whether
all forms of spanking should be made illegal in terms of the law. The High Court
disagreed and neither the father nor the state appealed the decision but FOR SA
appealed to the Supreme Court of Appeal in Bloemfontein who referred them to the
Constitutional Court where the matter was heard and judgement delivered. 6
The rights found in the Bill of Rights that were limited and infringed were the right to
human dignity, the right to freedom of religion and the right to be free from all forms
of violence.7 Section 28(2) of the Constitution states that a child's best interests are
of paramount importance in every matter concerning the child. 8 FOR SA's first
question they faced was whether or not they had legal standing in the case as a
friend of the court and it was determined that this case was a matter of public
interest and that it was in the interest of justice as it determined how parenting may
take place according to the law.9 The issue brought before the Constitutional Court
was the declaration of unconstitutionality of the reasonable chastisement was correct
by the High Court.10 The Constitutional Court was tasked with deciding whether
chastisement was constitutional or unconstitutional. The Constitutional Court
dismissed the appeal by FOR SA stating that the common law defence of reasonable
and moderate parental chastisement is inconsistent with the provisions of sections
10, 12 (1(c)), and 28 (2) of the constitution. 11
5
Freedom of Religion South Africa v Minister of Justice and Others 2020 (1) SA (CC) para 01.
6
FOR SA 2019 https://forsa.org.za.
7
Freedom of Religion South Africa v Minister of Justice and Others 2020 (1) SA (CC).
8
Freedom of Religion South Africa v Minister of Justice and Others 2020 (1) SA (CC).
9
FOR SA 2019 https://forsa.org.za.
10
Freedom of Religion South Africa v Minister of Justice and Others 2020 (1) SA (CC).
11
Freedom of Religion South Africa v Minister of Justice and Others 2020 (1) SA (CC).
2
3
Limitation enquiry and findings
As mentioned above section 36 of the Constitution of the Republic of South Africa is
known as the limitation clause. A right in the Bill of Rights can only be limited if it is
reasonable and justifiable in open and democratic society, such a society should also
be based on human dignity, equality and freedom. 12 Section 36 does not limit all
rights and certain factors need to be considered when establishing what rights may
be limited. These factors include aspects such as the nature of the right, the nature
and extent of the limitation, the purpose of the limitation, the relationship between
this purpose and the limitation and any means that are less restrictive that can be
considered.13
In this case the court had to considered whether the right to freedom of religion
would be able to limit the right to dignity and freedom of security of person. To be
able to establish this the court had to determine whether the acts of the father
warranted parental chastisement or assault. Parental chastisement is very different
from corporal punishment as it is intimate and administered by a loving parent, in
situations where it helps the child become a responsible member of society. 14 This
stance can however not be followed in Gauteng as it has previously been invalidated
as a defence, this means that any sort of chastisement be it moderate and
reasonable is now considered to be against the Constitution rendering it illegal. 15
The invalidation of any sort of chastisement will render such behaviour to be
common assault. The court ruled that even moderate and reasonable chastisement is
considered as a form of violence. 16 Allowing the father to continue in such a manner
would go against the child's right to human dignity and his right to security of
person. Section 10 of the Constitution protects a person's right to human dignity and
is considered as one of the foundations that the Republic and the Constitution are
12
Constitution of the Republic of South Africa, 1996.
13
Constitution of the Republic of South Africa, 1996.
14
Freedom of Religion South Africa v Minister of Justice and Others 2020 (1) SA (CC) para 51.
15
Freedom of Religion South Africa v Minister of Justice and Others 2020 (1) SA (CC) para 52.
16
Freedom of Religion South Africa v Minister of Justice and Others 2020 (1) SA (CC) para 36.
3
based on. It is a right that is not generally considered for limitation under section 36,
as it is established as an inherent right that should be respected and protected. 17
Section 12(1)(c) also states that a person should be protected form all forms of
violence be it from a private or public source. 18 This right would also prove that the
limitation of the young boy's right would amount to an unreasonable and
unconstitutional limitation. Although the right to religion is also of paramount
importance and included in the Bill of Rights, it needs to be considered and
measured against all the other rights that are being limited and infringed. The court
made the decision that the limitation of the right should be place on the right to
freedom of religion.19 It looked at the nature of all the rights that were infringed and
the nature and the importance of the limitation and decided that the right to human
dignity should not be protected and rather that the right to freedom of religion be
limited in this particular instance.20
The court also had to keep in consideration that the matter they were dealing with
involved a child and that according to section 28 of the Constitution, the best
interests of the child is of paramount importance in all matters regarding a child. 21
The court must establish what is in the best interests of the child in all matters,
which means that this must be considered all the time and not just in certain
circumstances, the court is always bound to this requirement. 22 The court thus had to
protect the child from potential abuse and needed to limit the right for the good of
the child and society.23
The court thus ruled that the actions of the father was considered to be common
assault. The rights of the child could not be limited as the best interests of the child
is always of paramount importance and should be protected at all costs. The father's
17
Constitution of the Republic of South Africa, 1996.
18
Constitution of the Republic of South Africa, 1996.
19
Freedom of Religion South Africa v Minister of Justice and Others 2020 (1) SA (CC).
20
Freedom of Religion South Africa v Minister of Justice and Others 2020 (1) SA (CC).
21
Constitution of the Republic of South Africa, 1996.
22
Freedom of Religion South Africa v Minister of Justice and Others 2020 (1) SA (CC) para 56.
23
Freedom of Religion South Africa v Minister of Justice and Others 2020 (1) SA (CC) para 56.
4
right to freedom of religion to reasonably and moderately chastise his child was
limited as it has been ruled as invalid in Gauteng. The only outcome for such a
situation is for the matter to be ruled as abuse or common assault.
4
Conclusion
In conclusion the importance of Section 36 is clearly evident in the case mentioned
above and why it is of paramount importance to have the Limitation Clause present
in our justice system. Child abuse is a major issue in our country along side domestic
violence and this Constitutional Court judgement is a major win and a step forward in
limiting child abuse. The events that led to this dispute is a every day problem in
South Africa and only a few individuals are brave enough to come forward and try
and bring an end to this misery. The judgement changed the way common law
protected gave the parents an escape route to protecting the children now and this is
seen as the first of many positive changes to come. There is a need for positive
parenting methods and by declaring any form of chastisement illegal is a good start
for the future.
5
Bibliography
Case Law
Freedom of Religion South Africa v Minister of Justice and Others 2020 (1) SA (CC)
Legislation
Constitution of the Republic of South Africa, 1996.
Internet sources
Anonymous
Limitation
2014
http://constitutionnet.org/sites/default/files/limitations_clauses.pdf
Clause
accessed
04
October 2020
Freedom of Religion South Africa 2019 “Spanking Judgment” – What Does it Say,
and Could the Court Have Found Differently? https://forsa.org.za/spankingjudgment-what-does-it-say-and-could-the-court-have-found-differently/ accessed 04
October 2020
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