Christian Education South Africa v Minister of Education

• Jurisdiction: South Africa
• Judge: Chaskalson P, Langa DP, Ackermann J, Goldstone J, Kriegler J, Madala J, Mokgoro J, O'Regan J, Sachs J, Yacoob J
• Judgment Date: 14 October 1998
• Citation: 1999 (2) SA 83 (CC)
• Docket Number: CCT 13/98
• Hearing Date: 14 October 1998
• Counsel: FG Richings (with him DM Achtzehn) for the applicant No appearance for the respondent
• Court: Constitutional Court

Langa DP:

[1] This is an application for direct access to this Court in terms of Rule 17 of the Constitutional Court Rules. [1] The applicant seeks an order in the following terms:

(i)

that s 10 of the South African Schools Act 84 of 1996 is hereby declared to be unconstitutional and F invalid to the extent that it is applicable to independent schools as defined in s 1 of the said Act; alternatively,

(ii)

that s 10 of the South African Schools Act 84 of 1996 is hereby declared to be unconstitutional and invalid to the extent that it is applicable to learners at those independent schools as defined in s 1 of the G said Act whose parents or guardian have given consent in writing to such corporal punishment being administered.

[2] The applicant is a voluntary association to which 209 schools, which subscribe to its constitution, are affiliated in all the nine provinces of the Republic of South Africa. These are all 'independent schools' [2] in terms of the H South African Schools Act (the Act). The applicant and its constituent member schools subscribe to the belief that corporal punishment in their schools, as in the home, forms part of a system of discipline based upon the Christian faith and scriptures. Applicant contended that corporal punishment, which it referred to as 'corporal

Langa DP

correction', was part of the common culture of such schools and that such culture is protected by ss 15(1), [3] 29(3) A [4] and 31(1) [5] of the Constitution. [6] It was claimed that corporal correction, as it was administered at schools affiliated to the applicant, was not in conflict with the common law as it constituted moderate chastisement not amounting to an assault and was imposed by a teacher with the consent of the learner's parent or guardian. B Applicant drew a distinction between this and juvenile corporal punishment in a judicial sentence, [7] or in public schools. [8] In this respect, applicant pointed out that moderate corporal correction has been declared not to be contrary to either the United States Constitution [9] or to the European Convention on Human Rights. [10] C

[3] Rule 17(2), which was adopted pursuant to the provisions of s 167(6)(a) of the Constitution, [11] requires an applicant for direct access to set out, among other things,

'. . . the grounds on which it is contended that it is in the interests of justice that an order for direct access be granted'. D

[4] This Court has, in a number of decisions, emphasised that direct access is an extraordinary procedure and that it should be granted only in exceptional circumstances. [12] Accordingly, in directions by the President of the Court, the applicant was referred to the decision in Bruce and E

Langa DP

Another v Fleecytex Johannesburg CC and Others [13] and invited to lodge written argument dealing with the A issue 'whether this is a proper matter for the granting of direct access'.

[5] In response the applicant contended that, although the Constitution recognises that there should not ordinarily be an unqualified right to approach this Court directly, [14] subject to certain specific exceptions [15] it was in the B interests of justice for this matter to be heard directly by this Court. Applicant submitted that since Rule 17 is silent as to the factors to be considered by the Court in determining such interests of justice, it would be 'instructive' to seek guidance from Rule 18, which provides for the procedure to be followed in an application for leave to appeal C directly to the Court from a decision of the High Court.

[6] Thus, according to the applicant, the interests of justice will ordinarily have been satisfied where a matter is one of substance and one in respect of which there are reasonable prospects of success, and where there are no factual disputes requiring further evidence. [16] It was submitted that these factors have been satisfied in the present D case and that, in addition to there being good prospects of success, the issue is one of importance which has exercised the attention of other jurisdictions, in particular the United States [17] and the European Community. [18] It was further contended that this is a matter upon which strong views are often held and which involves a large E number of learners in all nine provinces, and that it concerns an important question of social policy, that is the disciplining of children. Applicant further attached significance to the fact that the respondent does not object to the granting of direct access. F

[7] There are considerable difficulties with the approach suggested by the applicant. It conflates the requirements of two Rules which deal with different circumstances. Rule 17 is concerned with applications for

Langa DP

direct access and Rule 18 with appeals directly to this Court from Courts other than the Supreme Court of Appeal. A Although some of the requirements of the respective rules may overlap, for instance the factor concerning prospects of success, others will not necessarily...