Harmful traditional practices, (male circumcision - Electronic Thesis ...

1.2 The right to culture
45
As mentioned above, this right is contained in both sections 30 and 31 of the
Constitution. Section 30 is stated as follows:
“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.”
Section 31 provides as follows:
(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 an
provision of the Bill of Rights.”
Both purposive and textual interpretations of section 30 confirm that the right to
culture is an individual right as opposed to an unqualified communitarian
provision. 143 “The individualistic phrasing of the section 30 right made it unclear
whether it could ground claims for the protection of cultural … communities.” 144
The inclusion of section 31 in the Bill of Rights now does the work of protecting
communal interests in culture and religion. 145
143
Haysom N and Cachalia F, “Language and Culture”, in South African Constitutional Law, The
Bill of Rights, 2 nd ed., Butterworths, issue 2, 2005 at chapter 25 p 11.
144
De Waal J, Currie I and Erasmus G, “The Bill of Rights Handbook”, fifth edition, Juta and Co.
Ltd, 2005 at p 636.
145
Ibid.