IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA CASE NUMBER: CCT 320/17 In the matter between: FREEDOM OF RELIGION SOUTH AFRICA Applicant and MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT First Respondent MINISTER OF SOCIAL DEVELOPMENT Second Respondent NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Third Respondent YG Fourth Respondent THE CHILDREN’S INSTITUTE Fifth Respondent THE QUAKER PEACE CENTRE Sixth Respondent SONKE GENDER JUSTICE Seventh Respondent APPLICANT’S HEADS OF ARGUMENT TABLE OF CONTENTS INTRODUCTION .......................................................................................................................... 2 APPLICATION FOR STANDING AND LEAVE TO APPEAL .................................................. 3 REASONABLE AND MODERATE PHYSICAL CHASTISEMENT ......................................... 7 WHETHER THE COURT A QUO SHOULD HAVE ENGAGED THE CONSTUTIONAL ISSUE? .......................................................................................................................................... 13 WHETHER THE DEFENCE CONTRAVENES INTERNATIONAL OBLIGATIONS? .......... 19 - 2 - WHETHER THE DEFENCE VIOLATES THE CONSTITUTION? .......................................... 22 RELEVANT CASE LAW ............................................................................................................ 28 UNREASONABLE AND UNJUSTIFIABLE LIMITATION OF PARENTAL RIGHTS ......... 33 UNINTENDED CONSEQUENCES ............................................................................................ 37 CONCLUSION ............................................................................................................................. 40 COSTS .......................................................................................................................................... 41 INTRODUCTION 1. This is an application first for standing and secondly for leave to appeal. Assuming that standing and leave to appeal will be granted, the applicant, relying on the grounds of appeal as expounded in its application1, contends for the setting aside, alternatively variation of the part of the judgment and order of the High Court, Gauteng Local Division, Johannesburg (“the Court a quo”) on 19 October 2017 in the appeal of YG vs The State under case number A263/2016 (“the matter for appeal”), in terms whereof it was found inter alia that the common law defence of reasonable and moderate chastisement (“the common law defence”) is unconstitutional and “prospectively” no longer applies in South African law.2 2. In particular, it will be contended that the Court a quo ought not to have abolished the 1 Record, pp 98 – 116. 2 Record, pp 87(a)-(c). The respondents have responded as follows to the application: the first respondent delivered a Notice of Intention to Oppose the application, but no Answering Affidavit. The second respondent delivered a Notice of Intention to Oppose the application and thereafter an Answering Affidavit. The second respondent does not contest the applicant’s standing to bring the application, and opposes only the application for leave to appeal. The third respondent does not oppose the application, and delivered a Notice to Abide the decision of the Court. No response was received from the fourth respondent. The fifth to seventh respondents adopted the following position: they abide on the issue of - 3 - common law defence but to have left its retention or not to parliamentary process, alternatively, instead of abolishing the common law defence, the Court a quo ought to have developed the common law by introducing further parameters of “reasonable” and “moderate” chastisement to what already exists in common law (“a calibrated approach”)3 as in, for example, Canada and the United Kingdom. APPLICATION FOR STANDING AND LEAVE TO APPEAL 3. The applicant4 was invited by the Court a quo to make submissions, and was admitted as fourth amicus curiae with regard to the constitutionality of the common law defence of reasonable and moderate chastisement (“the constitutional issue”) which was raised mero motu by the Court a quo.5 4. The applicant contended6 as it does in this honourable court. The fifth to seventh respondents (herein after referred to as “the CCL amici” by reason of their joint representation by the Child Law Centre) appeared as the first to third amici curiae in the Court a quo, and argued for the abolition of the common law defence. the applicant’s standing; they requested leave to intervene alternatively to be joined as parties, on the same basis as the applicant; and they oppose the application for leave to appeal. 3 Record, p 117 at para 42. 4 Freedom of Religion South Africa NPC (FOR SA) is a non-profit organisation, working to protect and promote the constitutional right to religious freedom in South Africa. The applicant currently has an endorsement base of religious leaders representing 6 million+ people in South Africa. Its constituency spans across denominations, churches and faith groups in South Africa. (Record, p 89 at para 5 and pp 93-94, paras 21.1 – 21.2). 5 Record, p 90 at para 11. We specifically point out that the applicant did not in its amicus submissions to the Court a quo, make any submissions with regard to the factual inquiry, which it submitted was for the Court to decide on consideration of the evidence before it. Instead, the applicant’s submissions were confined to legal submissions on the constitutionality of the defence of moderate and reasonable chastisement, in principle and removed from any particular set of facts - i.e. the constitutional enquiry, only in the event of and to the extent that this enquiry may become necessary after consideration of the factual enquiry. 6 Record, p 91 at para 12. - 4 - 5. Following judgment by the Court a quo, neither the fourth respondent herein (Mr YG), nor the State showed an intention to appeal, leaving the applicant as the only other party to apply for leave to appeal against the judgment7, as it duly did – first to the Supreme Court of Appeal (“the SCA”) which directed the applicant to approach the above Court for leave to appeal.8 This left the applicant with no other reasonable and effective manner in which to challenge the judgment of the Court a quo than its application. 6. The applicant brings this application in the public interest9 as well as that of its constituency.10 The persons affected are not limited to Christian believers who view reasonable and moderate physical correction as a central tenet of their faith11, but also persons of other faiths – or indeed no faith at all – who believe and practice same.12 The range of persons or groups directly affected by the order made by the Court a quo is significant. The opportunity that those persons or groups had to present evidence and 7 Record, p 95 at para 24. 8 Record, p 92 at paras 17-18. 9 Record, p 98 at para 31. 10 The applicant’s interest in the matter lies therein that millions of religious believers in South Africa (across different denominations, churches and faith groups), believe that their scriptures and other holy writings permit (if not command) reasonable and moderate correction of their children. For millions of religious believers, child correction (including physical chastisement at times, where needed, always in love) is a central tenet of their faith. This is not to suggest that for all religious believers, child correction is a central tenet of their faith. Some people believe that their scriptures command reasonable and moderate correction; others do not, interpreting those scriptures differently. (Record, p 94 at paras 21.3 – 21.4) 11 In regard to the Judaic and Christian faiths, Mishlei/Proverbs 13v24, 19v18 and 22v15 find application. The Complete Jewish Bible (Tanakh) commentary by Rashi reads as follows: 13v24: “He who holds back his rod hates his son, but he who loves him disciplines him early.” 19v18: “Chastise your son for there is hope, but do not set your heart on his destruction.” 22v15: “Foolishness is bound in a child’s heart; the rod of discipline will drive it far from him.” The various Christian bible translations accord with these translations. In the Christian Bible and New Testament, Hebrews 12v7 and 12v11 also find application. These in the New International Version are: 12v7: “Endure hardship as discipline; God is treating as his children. For what children are not disciplined by their father?” 12v11: “No discipline seems pleasant at the time, but painful. Later on, however, it produces a harvest of righteousness and peace for those who have been trained by it.” 12 Record, p 247 at para 20.1 - 5 - argument to the Court a quo was limited to the applicant, and we submit that the above court’s oversight is necessary. 7. In University of Witwatersrand Law Clinic v Minister of Home Affairs and Another13, this Court stated as follows: “This court made it clear in Campus Law Clinic14 that an amicus curiae would ordinarily be permitted to appeal against an order of another court only where the actual parties to that litigation were not seeking to pursue an appeal and there was a clear public interest requiring it to be permitted to lodge the appeal” (emphasis added). 8. Given the nature of the rights involved, the order of the Court a quo holds real and potentially dire consequences for parents, children and society. The judgment raises gravely important constitutional issues with regard to parental rights and authority, as well as the constitutional right of parents to raise their children in accordance with their religious, moral