The interaction of children's rights, education rights and freedom of religion in South African schools
- Authors: Chetty, Kasturi
- Date: 2013
- Subjects: Children's rights -- South Africa , Children -- Legal status, laws, etc -- South Africa , Freedom of religion -- South Africa , School children -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:10295 , http://hdl.handle.net/10948/d1020864
- Description: This study examines the topic of the interaction of children’s rights, education rights and freedom of religion in South African schools from a legal perspective. It comprises of a discussion on the historical development of religion in South African schools; South Africa’s international obligations with regards to children’s rights, education rights and freedom of religion and the South African substantive law pertaining to children rights, education and freedom of religion as impacting on legal issues pertaining to religion in schools. The study utilises a desktop approach, which comprises of a wide range of legal and other literary sources, international instruments, statutes and case law on children’s rights, education rights and freedom of religion. Importantly, it highlights the integral connection between these aforementioned rights when dealing with issues pertaining to religion in schools. This thesis illustrates that much of the historical development of religion in schools took place without consideration of children’s rights, or more particularly, the best interests of the learners. Instead, (a particular brand of) religious beliefs were promoted in education above other religions and the well-being of school-children. Furthermore, despite the introduction of specific children’s rights into the Constitution, this thesis emphasises that the rights of children have still not been recognised sufficiently in education laws and policies. It is submitted that children’s rights have a paramount and practical role to play in matters pertaining to religion in South African schools. Consequently, it is recommended that children’s rights, more particularly the best interests of the child principle, should be expressly introduced into education legislation and policies. This will create legal obligations for school administrators and SGBs on the inclusion of children’s rights in religious exemption procedures. Furthermore, it is recommended that national guidelines on religious/cultural exemptions (which incorporate children’s rights) be developed which will set legal parameters for the handling of religious/cultural exemption procedures in schools. This thesis also argues against the interpretation that the right to establish private schools includes the right to require religious conformity from non-adherent learners by way of a complete waiver of their religious freedom. Despite the importance of respecting the right of religious communities to protect and preserve their faith in private schools, it is submitted that this right cannot be exercised without regard for the religious freedom, dignity and best interests of non-adherent children. As a result, it is submitted that the waiver of the freedom of religion of non-adherent children is not consistent with the values which South African society reveres and therefore cannot be enforced. This thesis suggests that there is a way for the rights of private schools and the rights of non-adherent children to co-exist in harmony through the application of the reasonable accommodation principle in private schools. Reasonable accommodation of different faiths teaches religious tolerance to leaners in private schools and ensures that they are prepared to grapple with the religious diversity that they will inevitably face outside of the school environment. It is submitted that the enforcement of reasonable accommodation in private schools is to the benefit of all learners in private schools and to South African society in general. Moreover, this study questions and analyses the state’s provision of compulsory religion education in public schools through the National Policy on Religion and Education. A theoretical distinction is made between religion education and religious instruction in the National Policy itself. Religious instruction refers to the teaching of specific religious beliefs. Religion education refers to the teaching about different religions and worldviews from an academic perspective. It is submitted that the National Policy is correct in removing religious instruction from public schools as this would not be in accordance with freedom of religion or equality rights of learners who are not of the majority faith. It is submitted further that, although the provision of compulsory religion education in public schools impacts upon the freedom of religion of learners and their parents, (if taught correctly) it is a reasonable and justifiable limitation on freedom of religion in that it pursues the legitimate state goal of nation-building through the teaching of religious tolerance and “celebrating diversity” in schools. In light of South Africa’s history of religious discrimination, it must be recognised that the current position (although not problem- free) is a significant step forward in the protection of minority religious rights in South African schools. Despite this, it is submitted that there are numerous problems with the implementation of the National Policy that impact upon the dignity, equality and other rights of the learners concerned. These problems cannot be ignored since they impact upon the daily lives of school children. However, many of these problems can be minimised through more effective teacher training in this subject area. Accordingly, this thesis recommends that the current position be maintained as an acceptable compromise between the two extremes of providing religious instruction in one faith and removing religion education from public schools altogether. However, it emphasises that the state has to make a concerted effort to improve teacher training in this subject area in order to ensure that the objectives of the National Policy are carried out as envisaged. Furthermore, this thesis finds that certain provisions of the National Policy contain not only educational goals, but spiritual goals. Also in some instances, it is difficult to determine whether the religion education curriculum borders on being religious or not. In accordance with freedom of religion, it is submitted that the line between religion education and religious instruction must be clearly drawn in law and in practice. Consequently, the state must reconsider the National Policy and the corresponding religion education curriculum to ensure that they are aligned with the objectives of nation-building in all respects, meaning that any provisions or learning outcomes which have purely spiritual goals- must be amended or removed.
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- Date Issued: 2013
Child sex tourism in South African law
- Authors: Chetty, Kasturi
- Date: 2007
- Subjects: Child sexual abuse -- South Africa , Sex tourism -- Law and legislation -- South Africa , Sex crimes -- South Africa , Child prostitution -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10276 , http://hdl.handle.net/10948/485 , Child sexual abuse -- South Africa , Sex tourism -- Law and legislation -- South Africa , Sex crimes -- South Africa , Child prostitution -- South Africa
- Description: Child sex tourism is tourism organised with the primary purpose of facilitating a commercial sexual relationship with a child. It involves a segment of the local child sex industry that is directly connected to both an international and domestic tourist market. The increase of tourism has brought with it complications in that tourism is being used as a means for sex tourists to initiate contact with children. Aside from child sex tourists who are paedophiles, there are those who engage in the opportunistic exploitation of children while travelling on business or for other reasons. There are a number of social and economic factors leading to child sex tourism and the effect is that child victims are exposed to immediate harm, irreversible damage and even death. As South Africa's tourism industry expands into one of the country’s top earners of foreign currency, it is unfortunate to note that its child sex tourist trade is also on the increase. Reports show that sex tours are as easily organised as wine route tours in Cape Town. Commercial sexual exploitation of children is prevalent in South Africa and has become more organised in recent years. A comprehensive response to the problem is essential to ensure that South Africa does not become a “safe haven” for child sex tourists. Effective laws at home and the extraterritorial application of these laws to prosecute South African nationals for crimes committed abroad are imperative. Significant steps are being taken both nationally and internationally to target child sex tourism. South Africa has ratified several international instruments on children’s rights, trafficking in persons, child labour, and discrimination against women and young girls, all of which relate to child sex tourism. In doing so, South Africa has made an international commitment to uphold the provisions of these instruments and give effect to them. South Africa is therefore under an international obligation to create the necessary structures and apply mechanisms and resources to combat child sex tourism.
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- Date Issued: 2007