Jacques Brits

“A concerted effort to preserve our heritage is a vital link to our cultural, educational, aesthetic, inspirational and economic legacies – All of the things that quite literally make us who we are” – Steve Berry

On 24 September 2017, the diverse people of our beautiful country once again celebrated their own and unique heritage which include historical inheritance, language, belief systems, food and many more. Therefore, and in celebration of our country’s most valuable asset, our people, we will investigate the rights pertaining to some of our country’s recent incidents and issues.

  1. Statues in remembrance of our cultural heritage

Due to South Africa’s rich cultural heritage and the iconic figures of our past, various statues have been erected in celebration of a hero or heroine who risked it all for the benefit of our country. Bearing in mind the right of every South African to follow and practice their own and unique culture, religion and language, what are our rights in terms of the vandalisation and removal of cultural statues?

After various precious statues were covered by paint in anger over the last few years, Minister of Defence Nosiviwe Mapisa-Nqakula stated that it was a criminal act in breach of the principles of the Constitution of the Republic of South Africa, 1996.[1] The criminal charge applicable in these circumstances is malicious damage to property which can be defined as the unlawful and intentional damaging of property that belongs to another person. The aforementioned damage must also be tangible and cause financial loss to the person affected.[2]

Section 32(13) of the National Heritage Resources Act of 1999 reiterates the aforementioned by stating that no person may destroy, damage, disfigure or alter any heritage object, without a permit issued by the South African Heritage Resources Agency. The Act furthermore highlights the consultative process that needs to be followed when attempting to remove or relocate an existing statue.[3]

  1. Traditional practice of initiation

Initiation can be described as any customary or cultural practice of traditional communities that is used by such communities as a rite of passage into adulthood in respect of male and female children.[4] With the injuries and deaths to numerous initiates still fresh in our minds, one starts to wonder whether this cultural practice still has a place in the society of today.

The Constitution of the Republic of South Africa, 1996, makes provision for initiation in section 31(1)(a) which states that persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community to enjoy their culture, practice their religion and use their language. Section 28(1)(d)[5] however restricts the aforementioned rights by stating that every child has the right to be protected from maltreatment, neglect, abuse  or degradation.

The Children’s Act 38 of 2005 reaffirms the emphasis on protection of our children by stating that children may not be subjected to social, cultural and religious practices which are detrimental to his or her well-being,[6] while also prohibiting illegal circumcisions to male and females.[7] Furthermore, numerous provinces have promulgated legislation regulating the issue of illegal initiation, initiation schools and circumcision practices.[8]

  1. Religious aspects of our culture and heritage

In MEC for Education: Kwazulu-Natal and Others v Pillay[9], a high school pupil pierced her nose due to religious and traditional reasons. The Respondent argued that the nose stud indicated that her daughter had now become a young woman, who is eligible for marriage. The MEC for Education, as well as the school attended by the Respondent’s daughter, opposed this notion based on the code of conduct of the school which indicated that plain studs may be worn on the ears of the pupils only. In this instance, the Constitutional Court decided that the school discriminated against the pupil, by not affording her the right to pursue her cultural practices, while supporting the other children’s beliefs and cultural practices.[10]

  1. Conclusion

There is no definitive or clear answer when comparing any other rights to the cultural rights of a person. Yes, heritage is of the utmost importance, but at which cost?  In considering this question, emphasis must be placed on the primary rights in the Constitution, namely the right to dignity, equality and life.[11] Therefore and in conclusion, the people of South Africa must have the opportunity to participate in their cultural practices, but within the ambit of our constitution and legislation.

  1. Heritage day / Braai day

The celebration of National Braai Day started in 2005, when the Mzanzi Braai Institute decided that every South African enjoys a good braai, irrespective of their race, gender or heritage.

We hope you all enjoyed Braai Day!

[1]         Wakefield A “Statue vandalism is a criminal act – Mapisa-Nqakula” retrieved from http://www.news24.com/SouthAfrica/News/Statue-vandalism-is-a-criminal-act-Mapisa-Nqakula-20150414 (visited on 15 August 2017)

[2]         Green R ” Malicious damage to property” retrieved from http://www.legaltalk.co.za/malicious-damage-to-property/ (visited 15 August 2017)

[3]         Wakefield A “Statue vandalism is a criminal act – Mapisa-Nqakula” retrieved from http://www.news24.com/SouthAfrica/News/Statue-vandalism-is-a-criminal-act-Mapisa-Nqakula-20150414 (visited on 15 August 2017)

[4]         http://pmg-assets.s3-website-eu-west-1.amazonaws.com/150522draftpolicyoncustomaryinitiation-sa.pdf

[5]         Constitution of the Republic of South Africa, 1996

[6]         Section 12(1) of the Children’s Act 38 of 2005

[7]         Section 12(8) – (10) of the Children’s Act 38 of 2005

[8]         Government Gazette Notice 471 of 2015 dated 22 May 2015 ” Policy On The Customary Practice Of Initiation In South Africa”

[9]        (CCT 51/06) [2007] ZACC 21; 2008 (1) SA 474 (CC); 2008 (2) BCLR 99 (CC) (5 October 2007)

[10]        MEC for Education: Kwazulu-Natal and Others v Pillay (CCT 51/06) [2007] ZACC 21; 2008 (1) SA 474 (CC); 2008 (2) BCLR 99 (CC) (5 October 2007) Par 166

[11]       Sections 8,9 and 10 of the Constitution of the Republic of South Africa, 1996

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.