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

1.2.1 The application of section 36 of the Constitution.
49
In a case where the right to culture is under constitutional scrutiny, a court will
have to look at the cultural practice, its significance to the community concerned
and the potential rights that it is alleged to infringe. Culture can be construed to
mean the freedom, akin to a freedom of expression, to perform or practice the
arts and sciences. 161 Culture may also denote a people’s entire store of
knowledge and artifacts, especially beliefs, arts, morals, laws and customs, in
other words, everything that humans acquire by virtue of being members of
society. 162
Section 31 therefore guarantees individuals both the right to stay in a cultural
group or to leave it. 163 The right to a cultural life protects the collective strength
of those whose choices might otherwise be in jeopardy at the hands of the
majority. 164 Canada’s Chief Justice Dickson made the following submission with
regard to associational freedom in Alberta Union of Provincial Employees v
Attorney-General of Alberta (1987) 28 CPR 305:
“Association has always been the means through which political, cultural and racial
minorities , religious groups and workers have sought to obtain their purposes and
fulfillment of their aspirations. It has enabled those who would otherwise be vulnerable
and ineffective to meet on more equal terms the power and strength of those with whom
their interests interact and perhaps conflict.” 165
161
Bennet TW, “Human Rights and African Customary Law under the South African Constitution”,
Juta and Co. Ltd, 2004 at p 79.
162
Ibid.
163
Davis D et al, “Fundamental Rights in the Constitution – Commentary and Cases”, Juta and
Co. Ltd., 1997, at p 284.
164 See fn 143 above at p 12.
165 See fn 163 above at p 286.