MOGOENG CJ
“The list of relevant factors is not closed. I would add that the degree of vulnerability
of the people affected, the nature of the right said to be infringed, as well as the
consequences of the infringement of the right are also important considerations in the
analysis.”16
[16]
As indicated, none of the parties before the High Court were willing or able to
challenge the declaration of unconstitutionality. The only way put to the Court to
challenge that declaration is to grant Freedom of Religion standing. Almost all parents
and children in South Africa would be affected by this Court’s decision on this matter.
This group of people were not directly involved in the High Court and neither did they
seek to be involved in the further prosecution of this matter. The parents’ constitutional
right to freedom of religion is also implicated. And it is a matter that involves the best
interests of children, who are a vulnerable group. This, coupled with a child’s right to
be protected from all forms of violence, supports Freedom of Religion’s contention that
it has standing and should thus be allowed to intervene as a party.
[17]
A jump or translation from being a friend of the court in a lower court to
becoming a party at an appeal stage is at times permissible on considerations of justice.17
And the case of Freedom of Religion finds itself in that exact same situation. Not only
does it seek to become a party in the public interest, but the issues raised also bear out
the need for intervention as a party on behalf of the general body of parents and children
in our country.
[18]
What also makes a noteworthy difference is that Freedom of Religion is not
seeking to be involved in this matter for the first time. It took part in the proceedings
in the High Court, albeit in a different capacity. It is familiar with the issues that it seeks
to raise on behalf of the broader public for the attainment of a final and authoritative
16
Lawyers for Human Rights v Minister of Home Affairs [2004] ZACC 12; 2004 (4) SA 125 (CC); 2004 (7) BCLR
775 (CC) at para 18.
17
University of Witwatersrand Law Clinic v Minister of Home Affairs [2007] ZACC 8; 2008 (1) SA 447 (CC);
2007 (7) BCLR 821 (CC) at para 6 and Campus Law Clinic, University Of KwaZulu-Natal v Standard Bank of
South Africa Ltd [2006] ZACC 5; 2006 (6) SA 103 (CC); 2006 (6) BCLR 669 (CC) at para 21.
7