A constitutional disposition of cultural male circumcision as a heritage right

Abstract

South Africa's constitutional framework entrenches a variety of legislative imperatives that protects culture as a right. Sections 30 and 31 of the Constitution, 1996 were specifically enshrined to resonate with the spirit and purport of the need to protect cultural rights. Some statutory enactments such as Children's Act 38 of 2005 and Limpopo Initiation Schools Act 6 of 2016 are also highly respectful of cultural rights thereby enabling cultural families and communities to subject their children to practice any such cultural activities of their choice, but to the extent that it is practicable. It is argued that while South Africa's post-1994 constitutional apparatus are fundamentally rights based orientated and thus require the state and every legal and juristic persons to be bearers of such a responsibility of protecting human rights, the state is correspondingly obligated to protect cultural rights as a constitutional entitlement in order for citizens to enjoy heritage as a right, either as a group or individuals with cultural orientation. Constitutionally speaking, the state is prohibited from engaging in acts that unjustly interferes with free enjoyment of heritage as a right. The article adopted a traditional legal doctrinal methodological approach, which is best suited for interpreting legislative instruments to capture a variety of plausible meanings and implications to a real life legal situation.