MOGOENG CJ
[22]
Not only does this application implicate several constitutional rights,20 but it also
most certainly raises an arguable point of law of general public importance which ought
to be dealt with by this Court.
[23]
Since the decision of one Division of the High Court of South Africa does not
bind all other Divisions, the need for uniformity and finality demands the intervention
of this Court. The constitutional sustainability of moderate and reasonable chastisement
is an arguable point of law of general public importance because it concerns those
parents who subscribe to different religious beliefs or cultural practices and even those
who do not espouse any faith or culture. It is thus safe to conclude that this application
affects the overwhelming majority of parents and children in our country.
[24]
At the heart of this application lie issues relating to what is in the best interests
of children. And children are a vulnerable group whose interests are of paramount
importance.21 An integral part of those interests is how to raise them well as responsible
and disciplined citizens of our country. The issues or points of law raised are of great
interest and importance to almost all parents and children, most of whom are not able
to champion the cause of ventilating these rights themselves and would thus be
well served by the intervention of Freedom of Religion as a litigating party. If moderate
and reasonable chastisement is unconstitutional, it is best to settle the issue once and for
all to avoid the possible violation of children’s rights in other parts of the country. The
issues have been extensively ventilated in the High Court and in this Court.
[25]
Freedom of Religion does have reasonable prospects of success, particularly
because some comparable democracies retain the common law defence of reasonable
and moderate chastisement. The interests of justice thus point to the granting of leave
to appeal. It follows that this Court has jurisdiction in this matter.
20
Sections 9, 10, 12 and 28 of the Constitution.
21
Section 28(2) of the Constitution.
9