Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
13 March 2013

MEC who supports the assault of children must surely resign

Under the leadership of President Jacob Zuma the patriarchs are, once again, on the rise. Over the weekend MEC for education in the Eastern Cape, Mandla Makupula, reportedly said that no children under the age of 21 who are still dependent on their parents for food and shelter has any rights. It is not clear where he got this idea from. Maybe he forgot to read the Constitution.

Patriarchy – literally meaning the rule of the father – is a deeply ingrained belief in the right of men to hold power in society and government, while women and children are largely relegated to positions of subordinates and servants. This usually mirrors traditional family arrangements that assume the father or eldest male “naturally” and as of right acts as the head of the family.

Some men justify this state of affairs by invoking “culture” and “traditions”, assuming that “culture” and “tradition” is unchanging and sacrosanct and that it should trump all other considerations – including the constitutional demand to respect the dignity of others, including the vulnerable and marginal in society. But of course, this is often an egotistical (if politically powerful) argument deployed to protect the unearned privilege and the power of the dominant group whose members do not wish to give up their ability to exploit others. “Culture” and “tradition” is invoked to trump all other concerns and to end the conversation.

But it is a particularly unconvincing and transparently self-serving argument with no power. Imagine if we could all invoke our culture or tradition to justify the exploitation of others. Some white people, for example, would then argue that apartheid was part of their culture and tradition. After all, they grew up with the idea that they had the right to exploit black South Africans. But that idea is a repugnant and deeply harmful one, so why should it ever be allowed to trump concerns about the well-being of others? The answer is that it should not.

The MEC can therefore not justify his rant by invoking his “culture” or “tradition”. His beliefs would remain repugnant and ethically wrong. To understand why, it might be helpful to explore his reported remarks in more detail.

MEC Makupula was in full patriarchal mode over the weekend, expressing shocking views endorsing violence against children. He is quoted as saying: “For you, rights come later in life when you are independent, finished studying and have your own place to stay and your own car. That is when you can start talking about rights.” Makupula was reportedly addressing the Bhisho legislature, where hundreds of pupils were attending the provincial schools’ debate on Premier Noxolo Kiviet’s state of the province address.

He allegedly referred to an Eastern Cape boy who took his father to court after he was forced to attend initiation school. This would not have happened in his home, he reportedly said.

I asked myself what was wrong with that boy. His father did go to the initiation school, but because of the rights now, he did not want to go there himself … I wish he could have been my child, I would have hit him on the head with a knobkerrie and he would have gone to that initiation school crying.

The MEC might not be aware (just as some of the right-wingers at Stellenbosch University are not aware) that the other rights in the Bill of Rights trump his right to culture and tradition and is made subject to it. Cultural and traditional practices that discriminate or harm others in a manner that infringes on any of the other rights in the Constitution are therefore invalid.

Moreover, most of the rights in the Bill of Rights are guaranteed for “everyone”, which includes both adults and children. Yes, only “citizens” have the right to form political parties and to vote, but no right in the Bill of Rights is reserved only for adults. This includes the right to freedom and security of the person, which includes the right to be free from all forms of violence from either public or private sources.

Even if one assumes that the common law provisions that justify “moderate chastisement” of children by his or her parents is constitutionally valid – something that is far from certain – hitting a child over the head with a knobkerrie would never be found by a court to constitute “moderate chastisement”. In other words, the MEC supports the assault (perhaps with the intention to do grievous bodily harm) on children on the basis that the child “belongs” to the father and can be violated as the father pleases.

This is a shocking attitude that cannot be squared with the Constitution. The MEC clearly is not fit to hold the office that he does. But sadly he is probably not going to be fired. After all, the statement is reminiscent of one made by President Jacob Zuma back in 2006 when he said that: “When I was growing up an ungqingili [a gay] would not have stood in front of me. I would knock him out.”

It is perhaps ironic that the Bill of Rights grants children more rights than everyone else – which is exactly the opposite position than that propagated by the MEC. Section 28 states that every child has the right, amongst others, “to basic nutrition, shelter, basic health care services and social services” and “to be protected from maltreatment, neglect, abuse or degradation”. The section affirms that a child’s best interests are of paramount importance in every matter concerning the child and that for the purposes of the Constitution a “child” means any person under the age of 18 years.

It might well be that a child would choose not to attend an initiation school because he might choose not to have himself mutilated. When this happens the rights of the child would always trump the rights of the father to have his traditions enforced. The MEC might not like this, but then he can always resign from the ANC and start his own party whose aim is to amend the Constitution to install the man as the head of each household and to scrap the rights that protects the rest of us. But he is sure going to find it difficult to get two thirds of South African voters (of whom a majority is women) to agree with him.

Alternatively, he can just resign.

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