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

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The decision in the Christian Education case above is indicative of the
Constitutional Court’s commitment to uphold the dignity of children as a
vulnerable group and to protect children from practices which have the potential
to violate their dignity. It is therefore submitted that cultural practices which
have the potential to harm children will not pass Constitutional scrutiny.
Furthermore, it can be argued that the potential harm caused by traditional
practices such as male circumcision and virginity testing far outweigh the
benefits put forward by proponents of these practices as explained in chapter 1.
What strengthens this point of view further is the current escalation in violence
and abuse against children and women in South Africa.
1.5.1 The right to religion.
Proponents of infant and male circumcision find their justification for the practice
in religion and culture. 174 With every circumcision performed on an infant or
adult male there are potential physical risks to the well-being of the individual
concerned. 175 It is this potential for harm that concerns human rights groups
and legal scholars in both the international and national law arena.
The right to religion is contained in both sections 15 and 31 of the
Constitution. 176 The most persuasive authority with respect to religious freedom
174 See 2.1 in chapter 1.
175 See 2.2 in chapter 1.
176 Section 15 states the following:
(1) “Everyone has the right to freedom of conscience, religion, thought, belief and
opinion.”
(2) Religious observances may be conducted at state or state-aided institutions,
provided that –
(a) those observances follow rules made by the appropriate public authorities;
(b) they are conducted on an equitable basis; and
(c) attendance at them is free and voluntary.”