Christian Education South Africa v Minister of Education

• Jurisdiction: South Africa
• Judge: Chaskalson P, Langa DP, Goldstone J, Madala J, Mokgoro J, Ngcobo J, O'Regan J, Sachs J, Yacoob J and Cameron AJ
• Judgment Date: 18 August 2000
• Citation: 2000 (4) SA 757 (CC)
• Docket Number: CCT 4/2000
• Hearing Date: 04 May 2000
• Counsel: F G Richings SC (with him A M Achtzehn) for the appellant. M N S Sithole SC (with him B J Pienaar) for the respondent.
• Court: Constitutional Court

Sachs J:

Introduction I

[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? J

Sachs J

[2] The issue was triggered by the passage of the South African A Schools Act (the Schools Act) in 1996, [1] s 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 ss (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 B 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 C 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. D

[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 Constitution of the Republic of South Africa Act 200 of 1993 (interim Constitution), but it E 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 F declaring s 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 s 10 declared unconstitutional and invalid to the extent that it prohibits corporal punishment in independent schools where parents have G 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 H

Train up a child in the way it should go and when he is old he will not depart from it.

Sachs J

Proverbs 22:15 A

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 B 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 - 7:

'Hear, O-Israel! The Lord is our God, the Lord is one! C

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.' D

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, E 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 F 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 G given by the principal, or a person delegated by him, with a cane, ruler, strap or paddle. [4]

Sachs J

[6] While not doubting the sincerity of the appellant's beliefs, A 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 B 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 s 10 of the Schools Act C 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 s 31 of the Constitution. He therefore dismissed the application. [5] D

[7] The appellant applied for and was granted leave to appeal to this Court on the grounds that the blanket prohibition in s 10 of the Schools Act infringes the following provisions of the Constitution:

'14. Privacy

Everyone has the right to privacy. . . . E

15. Freedom of religion, belief and opinion

(1) Everyone has the right to freedom of conscience, religion, thought, belief and opinion.

. . .

29. Education

. . . F

(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 G 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. H

(2) The rights in ss (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights.'

Sachs J

[8] The respondent is the Minister of Education. He contends that A 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: B

'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. C

. . .

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 D 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 -

. . . E

(d)

to be protected from maltreatment, neglect, abuse or degradation.'

He furthermore places reliance on s 31(2) which states that s 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 F 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 G 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: H 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...