The Dignity Jurisprudence of the Constitutional Court of South Africa: Cases and Materials, Volumes I & II

Christian Education South Africa

Christian Education South Africa v. Minister of Education  () SA  (CC) CASE SUMMARY Facts Section  of the South African Schools Act  of  (SASA) prohibits the use of corporal punishment in schools. The appellant, a voluntary association, was an umbrella body of  independent Christian schools in South Africa that catered to some , pupils. The appellant contended that the blanket ban on administering corporal punishment in schools violated the religious freedom of parents of the children in those schools to consent to the school administering corporal punishment. The parents, and the voluntary association representing them, regard corporal punishment as integral to their conception of a Christian education. The appellant sought an exemption from section  of the act for its schools. Legal History The appellants had mounted a long campaign to be exempted from the prohibition. They had made numerous, but ultimately unsuccessful, submissions to Parliament when the act was still a bill. After SASA was promulgated, the appellant sought direct access to the Constitutional Court for an order finding the act unconstitutional . The application was refused on procedural grounds. The appellant then applied to the South-Eastern Cape Local Division of the High Court for a similar order. The High Court found that the prohibition did not constitute a substantial Christian Education South Africa infringement of the parents’ right to religious freedom. On the contrary, the High Court held that corporal punishment in schools infringed both the children’s right to dignity and freedom and security of the person and was not protected by any substantive provision of the Bill of Rights. The appellant then appealed to the Constitutional Court. Issues Does SASA’s prohibition of corporal punishment in all schools unjustifiably limit the section  and section  religious rights of parents and learners? Decision of the Constitutional Court The court, assumed without any argument or discussion of the rights asserted, that SASA’s prohibition constituted a prima facie violation of the religious rights of parents and learners in terms of sections  (freedom of religion) and  (community rights) of the Constitution. In deciding that SASA’s limitation of sections  and  was justified, the court noted that parents were not precluded from bringing up their children in accordance with their religious beliefs, but simply that they could no longer authorize third parties (schools) to employ corporal punishment. The prohibition was part of a broader policy to transform the school system, reduce the amount of public and private violence in the country, and protect a very vulnerable class of denizens: children. Order The court dismissed the appeal. Comment The Constitutional Court’s decision in Christian Education South Africa contains valuable language about how our dignity jurisprudence tolerates legal asymmetries. The essence of dignity and equality under the South African Constitution, so says the judgment, is that it does not require that we treat everyone the same way, but that we treat everyone with equal concern and equal respect. The court then explains why the state is justified in barring corporal punishment in all schools and why it need not consider an exemption for such punishment when religious doctrine so dictates. The problem with the judgment is not its result. It is perfectly reasonable to override religious dictates and to bar corporal punishment that impairs the dignity of children. The problem is with the distinction between the practice of religion in schools and the practice of religion elsewhere, i.e., the home. If children lack the capacity to decide for themselves whether religious practices will prove deleterious to their health—and it therefore becomes incumbent upon the state to intervene on their behalf to protect their dignity—then it would seem reasonable to conclude that barring religiously sanctioned corporal punishment at home should be no different than barring religion sanctioned corporal punishment at school. But that is  Christian Education South Africa not what the court concludes. Rather, it contends that the parents “were not being obliged to make an absolute and strenuous choice between obeying a law of the land or of following their conscience.They could do both simultaneously” (paragraph ). That is, parents could follow their conscience at home—and use corporal punishment to discipline their children—but still obey the law of the land by having their children attend school free from corporal punishment. Can the court have it both ways? Either a child’s right to dignity is of such paramount importance that it precludes corporal punishment at home...