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

(1) the first is to question the sincerity of the applicant’s belief;
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(2) then to determine whether the practice in question is a ‘central tenet’ of
the religion; and
(3) with the use of a contextual interpretation, the courts will not protect any
practices excluded under section 15 that are specifically excluded from
protection elsewhere in the Constitution. 190
The Court in Christian Education South Africa v Minister of Education 2000 (10)
BCLR 1051 (CC) avoided this three-pronged approach and chose to resolve the
case under the limitation clause. After an extensive examination of the
obligations of the state to protect children from abuse and maltreatment as well
as South Africa’s international obligations to protect children from harm, the
following submission was made by the court;
“As the court has reiterated many times, freedom of religion, like any freedom, is not
absolute. It is inherently limited by the rights and freedoms of others. Whereas parents
are free to choose and practice the religion of their choice, such activities can and must
be restricted when they are against the child’s best interests, without thereby infringing
the parents’ freedom of religion.” 191
The requirement that the limitation needs to be “reasonable and justifiable in an
open and democratic society based on human dignity, equality and freedom”,
highlights the high importance attributed to equality by the post-apartheid
constitution. 192 The elevated status of the right to equality was clearly reflected
in the case of Pillay v KwaZulu-Natal MEC of Education and Others 2006 (10)
BCLR 1237 (N). In this case, the appellant, the mother of a Hindu girl attending
a public school, challenged the constitutionality of the school’s code of conduct
adopted by the school’s governing body which prohibited the wearing of nose
190 Ibid at p 341.
191 Para 41.
192 See fn 182 above at p 55.