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Category: Constitutional Law

Traditional rites of passage: Are initiates protected?

June 17, 2022 / / Comments Off on Traditional rites of passage: Are initiates protected?

In South Africa, rites of passage initiates go to initiation schools each year, with teenagers being the most vulnerable to the initiation. The custom has caused outrage due to the number of fatalities that occur during these initiations. The rise in the number of illegal schools run by inexperienced and negligent surgeons is believed to be the main cause of these deaths. However, one cannot overlook the fact that these problems also take place in registered initiation schools.

Traditional initiation is an ancient practice that is commonly practised throughout the country within different tribes. It is regarded as a sacred and compulsory cultural rite, intended to prepare initiates for adulthood. It is at these cultural educational institutes where initiates are taught about manhood and customary values. The practice has, however, received outrage due to a number of factors.

In 2001, the Eastern Cape province passed The Application of Health Standards in Traditional Circumcision Act (the Act) which is aimed at regulating the traditional circumcision practice and setting health standards to be followed by the traditional attendants. The regulations require that initiates must have reached the legal age for circumcision (18 years), attend pre-circumcision medical check-ups, and have access to water throughout the rite. Traditional surgeons and nurses who contravene these regulations are subject to arrest. Furthermore, the Policy on Customary Practice of Initiates clearly states that an initiation school must be registered in accordance with the provisions of this policy.

There are, however, a number of issues associated with the Act. The problems are based on non-compliance by traditional surgeons and nurses, leading to complications and fatalities. Over the past few years, the Eastern Cape province has received widespread publicity due to the alarming rate of fatalities of young boys at initiation schools. These fatalities are mainly due to complications born out of the traditional circumcision, including dehydration, septicaemia, gangrene, pneumonia, assault, congestive heart failure, etc.

The Eastern Cape Premier has confirmed that at least 23 people died in the Eastern Cape region during the 2021 summer initiation season that started on 12 November 2021 and ended on 12 January 2022. According to the reports, it is estimated that 858 boys died while attending initiation schools in the past 15 years, with many more having been admitted to hospital, suffering serious injuries.

Some of the important causes of these problems are lack of skills on the part of traditional surgeons, the erosion of communal authority over the selection of traditional surgeons and nurses, and the rise of illegal initiation schools with overseers who appear to be motivated by financial gain rather than persevering a responsible execution of custom. Medical reports suggest that traditional surgeons are largely ignorant of anatomy as evident in the common practice of chopping rather than excising the foreskin. Since the accompanying pain and suffering is regarded as good for initiates, there is no attempt to control the pain, haemorrhaging, or dehydration.  Despite the reality that a number of initiates die during each initiation season due to negligence and unscrupulous acts by operators of an initiation school, arrests remain relatively low, and it is unclear whether prosecution has resulted from these arrests.

While the importance of cultural values and their relevance to a person’s identity is appreciated, it must be noted that all practices that originate from these values must comply with relevant laws. Initiates have a right to the highest attainable standards of health while at the initiation school. They should not be subjected to surgical procedures that jeopardise their health, dignity, and bodily security. The deaths are likely to have occurred at illegal initiation schools being run by inexperienced and negligent traditional surgeons and nurses and permitted by corrupt traditional leaders.

The state is obligated to protect the initiates from any form of physical violence or bodily harm, as well as against the loss of life inflicted by known individuals, groups, or traditional institutions. The state must, therefore, ensure that each death, be it from registered or unregistered schools, is followed by the charge of murder. Practitioners who are negligent and who operate illegal schools must face appropriate sanctions. The South African Police Service, at provincial and municipal level, must develop and strengthen their detectives and build capacity to combat the proliferation of illegal initiation schools. Specialised courts should be introduced to fast-track the charges and prosecution related to these crimes. Parents and teachers must play a pivotal role in informing boys about the consequences of attending illegal initiation schools. And finally, initiates must be encouraged to report abuse and crimes committed against them at any illegal or legal initiation schools.

REFERENCE LIST

  • ILLEGAL INITIATION SCHOOLS IN SOUTH AFRICA, ASSESSING RISKS TO BOYS AND YOUNG MEN- COMPILED BY THE COMMISSION FOR GENDER EQUALITY, 2021.
  • N. Mgedeza, How does the law protect initiates and their rite of passage?, 2016.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

What are your rights when it comes to forced COVID-19 testing?

June 29, 2021 / / Comments Off on What are your rights when it comes to forced COVID-19 testing?

As the COVID-19 pandemic is spreading across the globe, Minister of Health, Zweli Mkhize has expressed his concern that there is not enough testing being done in South Africa. By the 14th of April, 83,663 tests had been conducted in South Africa according to www.worldometers.info.

During the early stages of this pandemic, it was far clearer which individuals should be tested – individuals who show symptoms who have travelled overseas. Now, it is far more difficult to determine which individuals to target and this could result in disastrous consequences if at-risk individuals and communities are overlooked.

As more tests continue to be conducted, you might be wondering if you can be forced by the government to undergo testing, even if you show no symptoms of the COVID-19 virus. In short, yes you can. As of late, to undergo forced testing of the COVID-19 virus is not considered to be in contravention of your constitutional rights as a South African citizen. During President Cyril Ramaphosa’s Nation Address on the 15th of March, he declared a national state of emergency in response to the COVID-19 pandemic.

After the declaration of the pandemic as a national state of disaster, the government issued regulations to be incorporated in the Disaster Management Act to flatten the curve and manage the spread of the virus. It comes as no surprise that these regulations limit several of our constitutional rights as South Africans e.g. right to privacy and right to freedom of movement during the lockdown period. It is important to note that section 36 of the Constitution states:

“36. (1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—

(a) the nature of the right;

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation;

(d) the relation between the limitation and its purpose; and

(e) less restrictive means to achieve the purpose.” (Constitution of the Republic of South Africa, 1996)

The regulations included in the Disaster Management Act thus qualifies as a law of general application and can limit the rights of South Africans as stated in the Constitution.

In conclusion, under the new regulations, individuals cannot refuse to be tested for COVID-19. If the individual tests positive, the individual can also not refuse treatment or quarantine as these measures are put in place to manage the spread of the virus.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Defamation: What are the requirements?

April 19, 2021 / / Comments Off on Defamation: What are the requirements?

The Bill of Rights as contained in the South African Constitution protects human dignity. Defamation violates a person’s dignity, and more specifically his or her reputation or fama. It thus follows that a person who is defamed must have legal recourse to protect and vindicate their constitutional right.

A party who intends to claim for defamation must do so in terms of the common law rules and not rely directly on the Constitution. There are various requirements which must be met before one will succeed with a claim for defamation. These requirements are as follows:

  1. the statement must have been wrongful;
  2. the statement must have been intentional;
  3. the statement must have been published; and
  4. the statement must have been defamatory.

A statement will be regarded as defamatory if, “in the opinion of the reasonable person, the words have the tendency to undermine, subvert, or impair a person’s good name, reputation, or esteem in the community.” A defamatory statement will thus be an insulting statement that negatively affects the way in which a person is seen by others.

A statement will be regarded as having been published if it is made to a person other than the aggrieved plaintiff or his or her spouse. Publication is furthermore not limited to speech or print, as photographs, sketches, cartoons and caricatures can also be regarded as defamatory. It is important to keep in mind that publication only occurs once the addressee understands the defamatory nature of the statement.

The requirements of wrongfulness and intention shall be deemed to be present once a person has proven the publication of a defamatory statement. The court has stated in this regard that “[o]nce a plaintiff establishes that a defendant has published a defamatory statement concerning the plaintiff, it is presumed that the publication was both unlawful and intentional. A defendant wishing to avoid liability for defamation must then raise a defence which rebuts unlawfulness or intention.”

There are certain defences available to a person against whom a claim for defamation has been instituted. These defences are aimed at rebutting the presence of one of the requirements listed above. A defendant will thus have to allege and prove that a statement was not defamatory in nature, or that it was not wrongful as the statement was reasonable and justifiable. There is a myriad of specific defences available to a defendant in a defamation case, which will be briefly considered.

The first defence often raised by media houses when confronted with a defamation claim is that the published statement is true and publication thereof is in the public interest. A media house or journalist could also raise the related public-media privilege defence if it is established that the statement was in fact false. The defendant must in this instance allege and prove that he or she had reason to believe that the statement was true and that he or she took reasonable steps to verify its correctness, and that the publication was accordingly reasonable.

A defendant in a defamation matter may also raise the defence of fair comment. The defendant must then firstly allege and prove that the defamatory statement was a comment/opinion and not a statement of fact and that a reasonable person would have interpreted it as such. The defendant must furthermore allege and prove that the comment was fair, that the facts commented on were truly stated, and that it was of public interest.

It is clear from the above that one must be careful when making accusations or statements which could have the effect of defaming another person. Social media and the internet in general have exacerbated the risks involved with making such statements as it is often instantly published to a broad audience. One should thus always ensure that statements are true and reasonable before making them.

Reference List:

  • Various case law (see footnotes)
  • Amler’s Precedents of Pleadings

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Recusal of judges: When can a judge recuse him or herself?

December 9, 2020 / / Comments Off on Recusal of judges: When can a judge recuse him or herself?

The doctrine of recusal has recently been placed in the spotlight after former president Jacob Zuma brought such an application at the Commission for Enquiry into State Capture, chaired by Deputy Chief Justice Raymond Zondo. The recusal of a judge is a serious matter and should not be considered lightly. This article will briefly consider the origin and constitutional basis of the doctrine of recusal with reference to some of the pertinent judgments dealing with this issue.

The doctrine of recusal has its origin in the rules of natural justice, which requires that a person accused before a court should have a fair trial. This common law position has since been entrenched in the Constitution of the Republic of South Africa (“the Constitution”). Section 34 of the Constitution gives everyone in South Africa the right “to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.” Section 35 of the Constitution is similar in that it guarantees a fair trial for persons accused of committing a crime.

Furthermore, section 165(2) of the Constitution requires courts to apply the law impartially and without fear, favour, or prejudice. The oath of office prescribed by schedule 2 of the Constitution requires each judge to swear that he or she will uphold and protect the Constitution and will administer justice to all persons alike without fear, favour, or prejudice, in accordance with the Constitution and the law. The above is also reflected in Article 13 of the Code of Conduct for Judges. The Code of Conduct states that a judge must recuse him- or herself if there is a real or reasonably perceived conflict of interest, or if there is a reasonable suspicion of bias based upon objective facts. It furthermore states that a judge shall not recuse him or herself on insubstantial grounds.

The Constitutional Court has stated in President of the Republic of South Africa & Others v South African Rugby Football Union & Others that there exists an anterior presumption that a judge is unbiased. This presumption exists due to the oath that judges take upon being appointed, as well their training and experience, which should enable a judge to not let personal feelings or interests interfere with his or her duties as a judge. The person who alleges that a judge may not act impartially must accordingly prove the reasonable grounds upon which such allegations are based.

The test to be applied when considering a recusal application contains a two-fold objective element: firstly, the person considering the alleged bias must be reasonable; secondly, the apprehension of bias itself must also be reasonable in the circumstances. The Constitutional Court has stated that “the apprehension of the reasonable person must be assessed in the light of the true facts as they emerge at the hearing of the application” and that incorrect facts advanced by the applicant in a recusal application must be ignored when applying this test. The Constitutional Court has aptly summarised all of the foregoing by stating that “the question is whether a reasonable, objective, and informed person would, on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel.”

The just administration of justice, which demands an unbiased and impartial judiciary, is a cornerstone of our Constitution and democracy. The law accordingly provides a mechanism for a judge to be recused in matters where he or she does not meet the requirement of impartiality. However, it is clear from the above that mere allegations and speculation will not be sufficient in a recusal application.

Reference List:

  • R. v. S. (R.D.)51
  • Code for Judges
  • Ex parte Goosen & Others 2019/2137
  • President of the Republic of South Africa & Others v South African Rugby Football Union & Others CC

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

A brief analysis of the constitutional requirement of the “best interest of the child”

August 5, 2020 / / Comments Off on A brief analysis of the constitutional requirement of the “best interest of the child”

Section 28(2) of the Constitution of the Republic of South Africa, 1996 (“the Constitution”) states that a child’s best interests are of paramount importance in every matter concerning a child. Courts are thus mandated by the Constitution, which is the highest law in the land, to always give effect to what would be best for the child. This article will briefly consider and analyse this right as contained in our Bill of Rights in order to establish how the best interests of a child are determined by the courts.

Any attempt to define the constitutional right as enshrined in section 28(2) of the Constitution should commence with a discussion of the Children’s Act 38 of 2005 (“the Act”). The Act was specifically adopted to give effect to certain rights of children as contained in the Constitution and to set out principles relating to the care and protection of children. Section 7 of the Act sets out factors which must be considered when the best interests of the child standard are applied. These factors are:

“(a) the nature of the personal relationship between—

(i) the child and the parents, or any specific parent; and

(ii) the child and any other care-giver or person relevant in those circumstances;

(b) the attitude of the parents, or any specific parent, towards—

(i) the child; and

(ii) the exercise of parental responsibilities and rights in respect of the child;

(c) the capacity of the parents, or any specific parent, or of any other care-giver or person, to provide for the needs of the child, including emotional and intellectual needs;

(d) the likely effect on the child of any change in the child’s circumstances, including the likely effect on the child of any separation from—

(i) both or either of the parents; or

(ii) any brother or sister or other child, or any other care-giver or person, with whom the child has been living;

(e) the practical difficulty and expense of a child having contact with the parents, or any specific parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with the parents, or any specific parent, on a regular basis;

(f) the need for the child—

(i) to remain in the care of his or her parent, family and extended family; and

(ii) to maintain a connection with his or her family, extended family, culture or tradition;

(g) the child’s—

(i) age, maturity and stage of development;

(ii) gender;

(iii) background; and

(iv) any other relevant characteristics of the child;

(h) the child’s physical and emotional security and his or her intellectual, emotional, social and cultural development;

(i) any disability that a child may have;

(j) any chronic illness from which a child may suffer;

(k) the need for a child to be brought up within a stable family environment and, where this is not possible, in an environment resembling as closely as possible a caring family environment;

(l) the need to protect the child from any physical or psychological harm that may be caused by—

(i) subjecting the child to maltreatment, abuse, neglect, exploitation or degradation or exposing the child to violence or exploitation or other harmful behaviour; or

(ii) exposing the child to maltreatment, abuse, degradation, ill-treatment, violence or harmful behaviour towards another person;

(m) any family violence involving the child or a family member of the child; and

(n) which action or decision would avoid or minimise further legal or administrative proceedings in relation to the child.”

The High Court has, with reference to the factors set out above, stated that the list “constitutes a non-exhaustive checklist of criteria which serve as guides relevant to the application of the best interest standard”.1 It is accordingly clear that courts can consider any relevant factor when determining what the best interests of a child are. Courts may accordingly have recourse to any source of information of whatsoever nature when determining what would be in a child’s best interest. The “child’s best interests should [accordingly] not be mechanically sacrificed on the altar of jurisdictional formalism”.2 The High Court is the upper guardian of children in South Africa and should not let legal niceties frustrate it in ensuring that a child’s best interest is protected and advanced in any matter before it.3 This means, in short, that a court should have regard for any evidence and factors placed before it, and should allow parties to a dispute concerning a child as much leeway as possible to introduce relevant evidence. Courts can allow this due to its extremely broad powers in establishing what is in the best interests of a child in any given matter.4 This will place the court in the best possible position to protect children.

There are also other legislative interventions aimed at protecting and advancing the best interest of children. One such example is the Mediation in Certain Divorce Matters Act 24 of 1987 (the Mediation and Divorce Act”). The Mediation and Divorce Act contributes to advancing the best interests of children in South Africa by making provision for the appointment of a Family Advocate by the Minister of Justice and Constitutional Development. The Family Advocate is, in terms of section 4 of the Mediation and Divorce Act, responsible for conducting an enquiry in divorce matters and thereafter furnish the court with a report and recommendations concerning the welfare of the minor children in any marriage about to be dissolved. This advances the best interests of children since the evidence is placed before the court by an independent third party who does not have a personal interest in the matter.

In conclusion, the best interests of any child are always of paramount importance in any matter concerning the child and must be given effect to. The legislator has adopted various pieces of legislation, in line with international conventions, in order to advance this constitutional right. What would be in a child’s best interest is a factual inquiry and courts should consider as much evidence as possible, including expert evidence by trained professionals, when considering this constitutional right.

Reference List:

  • Constitutional of the Republic of South Africa, 1996.
  • Children’s Act, 38 of 2005.
  • Mediation in Certain Divorce Matters Act, 24 of 1987.
  • AD and another v DW and others (Centre for Child Law as amicus curiae; Department for Social Development as intervening party) [2007] ZACC
  • B v B (CA&R60/2017) [2018] ZAECGHC
  • Baloyi v Baloyi (6208/2014) [2015] ZAGPPHC 728

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

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