Christian Education South Africa v Minister of Education (CCT13/98) [1998] ZACC 16; 1999 (2) SA 83; 1998 (12) BCLR 1449 (14 October 1998)

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[1998] ZACC 16
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Christian Education South Africa v Minister of Education (CCT13/98) [1998] ZACC 16; 1999 (2) SA 83; 1998 (12) BCLR 1449 (14 October 1998)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
                                                                                                                                 Â
 CCT
13/98
CHRISTIAN
EDUCATION SOUTH AFRICA                                                         Â
Applicant
versus
THE MINISTER OF
EDUCATION OF THE GOVERNMENT
OF THE REPUBLIC OF
SOUTH AFRICA                                                         Â
Respondent
Decided on     :           14
October 1998
JUDGMENT
LANGA DP:
[1]
       This is an
application for direct access to this Court in terms of rule 17 of the
Constitutional Court Rules.
1
  The applicant seeks an order in the following terms:
(i)        that section 10 of the South African Schools Act, 1996 (Act 84
of 1996) is hereby declared to be unconstitutional
and invalid to the extent
that it is applicable to independent schools as defined in section 1 of the
said Act; alternatively,
(ii)       that section 10 of the South African Schools Act, 1996 (Act 84
of 1996) is hereby declared to be unconstitutional
and invalid to the extent
that it is applicable to learners at those independent schools as defined in
section 1 of the said Act,
whose parents or guardian have given consent in
writing to such corporal punishment being administered.
[2]
       The applicant is a
voluntary association to which 209 schools, which subscribe to its
constitution, are affiliated in
all the nine provinces of the Republic of South
Africa.  These are all “independent schools”
2
in terms of the
South
African Schools Act (the
Act).  The applicant and its constituent member
schools subscribe to the belief that corporal punishment in their schools, as
in
the home, forms part of a system of discipline based upon the Christian
faith and scriptures.  Applicant contended that corporal
punishment, which it
referred to as “corporal correction”, was part of the common culture of such
schools and that such culture
is protected by
sections 15(1)
,
3
" name="_ftnref3" title="">
3
29(3)
4
and 31(1)
5
of the  Constitution.
6
  It was claimed that
corporal correction, as it was administered at schools affiliated to the applicant,
was not in conflict with
the common law as it constituted moderate chastisement
not amounting to an assault, and was imposed by a teacher with the consent
of
the learner’s parent or guardian.  Applicant drew a distinction between this
and juvenile corporal punishment in a judicial
sentence,
7
or in public schools.
8
  In this respect,
applicant pointed out that moderate corporal correction has been declared not
to be contrary to either the United
States Constitution
9
or to the European
Convention on Human Rights.
1
0
[3]
[      Rule 17(2), which
was adopted pursuant to the provisions of section 167(6)(a) of the
Constitution,
1
1
requires an applicant for direct access to set out, among other things -
“. . . the
grounds on which it is contended that it is in the interests of justice that an
order for direct access be granted”.
[4]
       This Court has, in
a number of decisions, emphasised that direct access is an extraordinary
procedure and that it should
be granted only in exceptional circumstances.
1
2
Accordingly, in
directions by the President of the Court, the applicant was referred to the
decision in
Bruce and Another v Fleecytex Johannesburg CC and Others
1
3
and invited to lodge
written argument dealing with the issue “whether this is a proper matter for
the granting of direct access.”
[5]
       In response, the
applicant contended that although the Constitution recognises that
there should not
ordinarily be an unqualified right to approach this Court directly,
1
4
  subject to certain specific exceptions,
1
5
it was in the interests of justice for this matter to
be heard directly by this Court.  Applicant submitted that since rule 17 is
silent as to the factors to be considered by the Court in determining such
interests of justice, it would be “instructive” to
seek guidance from rule 18,
which provides for the procedure to be followed in an application for leave to
appeal directly to the
Court from a decision of the High Court.
[6]
       Thus, according to
the applicant, the interests of justice will ordinarily have been
satisfied where a matter
is one of substance and one in respect of which there are reasonable prospects
of success, and where there
are no factual disputes requiring further evidence.
1
6
  It was submitted that these factors have been
satisfied in the present case and that, in addition to there being good prospects
of success, the issue is one of importance which has exercised the attention of
other jurisdictions, in particular, the United States
1
7
and the European Community.
1
8
  It was further contended that this is a matter upon
which strong views are often held and which involves a large number of learners
in all nine provinces, and that it concerns an important question of social
policy, that is, the disciplining of children.  Applicant
further attached
significance to the fact that the respondent does not object to the granting of
direct access.
[7]
       There are
considerable difficulties with the approach suggested by the applicant.  It
conflates the requirements
of
two rules which deal with different
circumstances.  Rule 17 is concerned with applications for direct access, and
rule 18 with appeals
directly to this Court from courts other than the Supreme
Court of Appeal.  Although some of the requirements of the respective
rules may
overlap, for instance the factor concerning prospects of success, others will
not necessarily coincide.
[8]
       The relevant
considerations in an application for direct access were authoritatively stated
in
Fleecytex
.
1
9
  They are, in my view, fully applicable to this case
and bear repeating.  Speaking for a unanimous Court, Chaskalson P stated:
“
[7]      Whilst the
prospects of success are clearly relevant to applications for direct access to
this Court, there are other
considerations which are at least of equal
importance.  This Court is the highest Court on all constitutional matters.Â
If, as
a matter of course, constitutional matters could be brought directly to
it, we could be called upon to deal with disputed facts on
which evidence might
be necessary, to decide constitutional issues which are not decisive of the
litigation and which might prove
to be purely academic, and to hear cases
without the benefit of the views of other courts having constitutional
jurisdiction.  These
factors have been referred to in decisions given by this
Court on applications for direct access under the interim Constitution,
and are
clearly relevant to the granting of direct access under the 1996 Constitution.
[8]        It
is, moreover, not ordinarily in the interests of justice for a court to sit as
a court of first and last instance,
in which matters are decided without there
being any possibility of appealing against the decision given.  Experience
shows that
decisions are more likely to be correct if more than one court has
been required to consider the issues raised.  In such circumstances
the losing
party has an opportunity of challenging the reasoning on which the first
judgment is based, and of reconsidering and refining
arguments previously
raised in the light of such judgment.
[9]        Under
the 1996 Constitution, High Courts as well as the Supreme Court of Appeal have
constitutional jurisdiction
including the jurisdiction to make an order
concerning the validity of the provisions of an Act of Parliament.  Although an
order
made by such Courts declaring an Act of Parliament to be invalid has no
force unless confirmed by this Court, the court making the
order may grant a
temporary interdict or other temporary relief pending the decision of this
Court.  The procedure contemplated
by the 1996 Constitution is that such orders
of constitutional invalidity will be referred to this Court for confirmation .
. . .Â
Bearing in mind the jurisdiction of the High Courts and the Supreme
Court of Appeal, and the matters referred to in paragraphs [7]
and [8] of this
judgment, compelling reasons are required to justify a different procedure and
to persuade this Court that it should
exercise its discretion to grant direct
access and sit as a Court of first instance.” [Footnotes omitted]
[9]
       Applicant submitted
that the issue in the present matter involves a value judgment, rendering legal
precedent less significant,
and that the fact that the Court would “sit as a
court of first and last instance without there being any possibility of
appealing
against the decision given”,
2
0
therefore assumed less importance
for the interests of justice.  There is no merit in the submission.  As stated
in
Mistry v Interim National Medical and Dental Council of South Africa and
Others
:
2
1
“Whilst it may
not be easy ‘to avoid the influence of one’s personal intellectual and moral
preconceptions’, this Court has
from its very inception stressed the fact that ‘the
Constitution does not mean whatever we might wish it to mean.’ Cases fall
to be
decided on a principled basis.  Each case that is decided adds to the body of
South African constitutional law, and establishes
principles relevant to the
decision of cases which may arise in the future.”
2
2
[Footnotes omitted]
Whilst the procedure might
accelerate the finalisation of a particular matter, the exclusion of the other
courts from the exercise
of a jurisdiction given to them by the Constitution
would clearly not be in the general interests of justice and the development
of
our jurisprudence.
[10]
     Applicant contended
that the matter is one of urgency by reason of the uncertainty regarding the
constitutionality of section
10 in two respects, and that it was desirable in
the public interest that legal certainty should be achieved quickly.  Firstly,
the uncertainty relates to teachers who would be exposed to the risk of
conducting themselves on the assumption that section 10 is
unconstitutional and
therefore invalid.  Secondly, it was contended in the founding affidavit lodged
on behalf of the applicant
that if the matter were to be brought before a High
Court, the decision of such court would only be binding in its area of
jurisdiction,
and not nationally, and that this would result in uncertainty
about the true legal position amongst the applicant’s constituent
members
elsewhere in the Republic.
[11]
     In my view, the
position is no different to that which this Court dealt with in
Fleecytex
,
2
3
which was an application
for direct access in a matter involving the constitutionality of section 150(3)
of the Insolvency Act,
2
4
where the following was said:
“It was
pointed out in
Transvaal Agricultural Union
that the mere fact that the
validity of a provision of an Act of Parliament is in issue does not in itself
justify an application
for direct access.  There must in addition be sufficient
urgency or public importance, and proof of prejudice to the public interest
or
the ends of justice and good government, to justify such a procedure.
”
2
5
[Footnotes omitted].
The remarks are apposite
in this case.  The importance of establishing the constitutional validity of
section 10 is no greater than
that which ordinarily exists with regard to
provisions of other Acts of Parliament.  I do not agree that there is any
greater urgency
arising from the fact that some teachers may ignore the
prohibition imposed by section 10 and thus expose themselves to prosecution.Â
If they choose to take the risk, knowing full well that the provision’s
constitutionality is under challenge, then there should
be no complaint if
appropriate consequences follow their deliberate conduct.  It is moreover clear
that the prohibition in section
10 is concerned only with corporal punishment
which is imposed within a school context.  It has not been contended, and
indeed it
could not have been, that the provision makes such severe inroads into
the disciplining of children as to render the matter so urgent
that ordinary
procedures would not suffice.  The Act has been in force since 1 January 1997,
a full eighteen months before these
proceedings were launched.  It was not
suggested that discipline at schools has crumbled in the meantime or was
threatening to do
so.  I am satisfied that no case for urgency has been
established.
[12]
     If direct access were
to be given in this matter, this Court would be sitting as a court of first and
final instance, without
there being the possibility of an appeal from its
decision.  It would not have had the benefit of the views of the High Court
which
has jurisdiction.
2
6
  The additional costs that would be incurred and the
delay that would result if normal procedures are followed, are no doubt
relevant
considerations.  I am however not persuaded that, taken by themselves,
or cumulatively with the other factors mentioned by the applicant,
they weigh
sufficiently in this case to justify a departure from the normal procedures.
[13]
     The relief claimed by
the applicant is within the jurisdiction of the High Court and no good ground
has been advanced to
justify an extraordinary procedure.
2
7
  I am satisfied that it
has not been established that this is a proper case for the granting of direct
access.
The Order:
[14]
     The application for
direct access is refused.
Chaskalson P, Ackermann J,
Goldstone J, Kriegler J, Madala J, Mokgoro J, O’Regan J, Sachs J and Yacoob J
concur in the judgment
of Langa DP.
For the Applicant:     Mr FG Richings SC and Mr DM Achtzehn instructed by
Bentley Warne Attorneys.
1
         Â
Constitutional
Court Rules, 1998, as promulgated in Regulation Gazette No. 6199 of 29 May
1998.
2
         Â
Section 1 of the
Act defines an “independent school” as a school registered or deemed to be
registered in     terms of section
46 of the Act.  These were formerly known as
private schools.  See also section 53 of the Act.
3
         Â
Section 15(1)
provides:
“Everyone has
the right to freedom of conscience, religion, thought, belief and opinion.”
4
         Â
Section 29(3)
provides:
“Everyone has the right to establish and maintain, at their own
expense, independent educational institutions that -
(a)           do not discriminate on the basis of
race;
                                (b)           are
registered with the state; and
                                (c)           maintain standards
that are not inferior to
standards at comparable public educational
institutions.”
5
         Â
Section 31(1)
provides:
“Persons belonging to a cultural, religious or linguistic community
may not be denied the right, with other members of that community
-
                                (a)           to
enjoy their culture, practise their religion
and use their language; and
                                (b)           to
form, join and maintain cultural, religious
and linguistic associations and
other organs of civil society.”
6
         Â
Constitution
of the Republic of South Africa, 1996.
7
         Â
See
S
v Williams and Others
[1995] ZACC 6
;
1995 (3) SA 632
(CC);
1995 (7) BCLR 861
(CC).
8
         Â
See
Ex Parte
Attorney-General, Namibia: In re Corporal Punishment by Organs of State
1991 (3) SA            76
(NmS) and
S v A Juvenile
1990 (4) SA 151
(ZS)
at 162D-G.
9
         Â
See
Ingraham
et al v Wright
et al
[1977] USSC 56
;
430 US 651
(1977).
10
        Â
See
Campbell
and Cosans v United Kingdom
[1983] ECHR 3
;
(1982) 4 EHRR 293
;
Costello-Roberts v United
Kingdom
       Â
[1993] ECHR 16
;
(1993) 19 EHRR 112.
11
        Â
Section 167(6)(a)
provides:
“National legislation or the rules of the Constitutional Court must
allow a person, when it is in the interests of justice and with
leave of the
Constitutional Court -
(a)           to
bring a matter directly to the Constitutional Court”.
12
        Â
S v
Zuma and Others
[1995] ZACC 1
;
1995 (2) SA 642
(CC)
;
1995
(4) BCLR 401
(CC) at para 11;
Executive Council,   Western Cape Legislature,
and Others v President of the Republic of South Africa and Others
[1995] ZACC 8
;
1995 (4)
SA 877
(CC);
1995 (10) BCLR 1289
(CC) at paras 15-17
; Ferreira v Levin NO
and Others; Vryenhoek and Others v Powell NO and Others
1996 (1) SA 984
(CC);
1996 (1) BCLR 1
(CC) at para 10
; S v Mbatha; S v Prinsloo
[1996] ZACC 1
;
1996 (2)
SA 464
(CC);
1996 (3) BCLR 293
(CC) at para 29;
Luitingh v Minister of
Defence
[1996] ZACC 5
;
1996 (2) SA 909
(CC);
1996 (4) BCLR 581
at para 15;
Besserglik v
Minister of Trade, Industry and Tourism and Others (Minister of Justice
Intervening)
[1996] ZACC 8
;
1996 (4) SA 331
(CC);
1996 (6) BCLR 745
(CC) at para 6;
Transvaal
Agricultural Union v Minister of Land Affairs and Another
[1996] ZACC 22
;
1997 (2) SA 621
(CC);
1996 (12) BCLR 1573
(CC) at para 16;
Hekpoort Environmental
Preservation Society and Another v Minister of Land Affairs and Others
[1997] ZACC 13
;
1998
(1) SA 349
(CC);
1997 (11) BCLR 1537
(CC) at para 6.
13
        Â
[1998] ZACC 3
;
1998 (2)
SA 1143
(CC);
1998 (4) BCLR 415
(CC).
14
        Â
Id at para 5.
15
        Â
These are
matters involving, among others, the constitutionality of bills before the
national Parliament            or a
provincial legislature, the
constitutionality of certain national or provincial legislation, the
certification of the national or
provincial constitutions and disputes between
national or provincial organs of state (see sections 79, 80, 121, 122 and
167(4) of
the 1996 Constitution).
16
        Â
See rule 18(6)(a)(i)-(iii).
17
        Â
Wright
above n 9.
18
        Â
Campbell and Cosans
and
Costello-Roberts
above n 10.
19
        Â
Fleecytex
above n 13 at paras 7-9.
20
        Â
Id at
para 8.
21
        Â
[1998] ZACC 10
;
1998 (7)
BCLR 880
(CC).
22
        Â
Id at para 49.
23
        Â
Fleecytex
above n 13.
24
        Â
Act 24
of
1936.
25
        Â
Fleecytex
above n 13 at para 19.
26
        Â
Section
169 of the Constitution.
27
        Â
Fleecytex
above n 13 at para 19.