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

55
into an in-depth analysis of the importance of ritual dagga smoking in the
Rastafarian community as well as the historical significance of the ritual. 185
In the dissenting judgment of Sachs J, the following submissions were made with
regard to the centrality of the practicing of religion:
“The balancing has always to be done in the context of a lived and experienced
historical, sociological and imaginative reality…. South African Rastafari find
themselves in the peculiar position of being the diaspora of the diaspora, physically on
African soil but as reliant as their brethren abroad on the use of dagga as the instrument
for achieving an Afro-centred religious connection with creation. Prohibit the use of
dagga and the mystical connection is destroyed. …” 186
Again, as is the case with the right to culture, the right to religion, although
protected in terms of section 15 and 31 of the Constitution, is subject to the
limitations clause. The above submission by Sachs is particularly relevant in
South Africa, where the right to religion and culture will have to be evaluated
within the social context in South Africa. The right to practice male circumcision
for religious purposes will have to be examined in the context where violence
and the maltreatment of children are an everyday experience in South Africa. 187
Although the limitation clause of section 36 is an effective way of resolving
conflict between the right to religion and other fundamental rights, the courts
prefer to limit the scope of the right before resorting to the application of section
36. 188 The effect is to show that not every practice claiming to be an exercise of
the right to religion is treated as such by the courts. 189 A three pronged test is
used to restrict the scope of the right by employing the following techniques:
185
Paras 145, 152 and 153.
186
Paras 151- 152.
187
See Christian Education South Africa v Minister of Education 2000 (10) BCLR (CC) at para 40.
188
See fn 144 above at p 341.
189
Ibid at p 341.