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By Ella Smook
Tradition is set to be pitted against the constitution in a landmark case around forced circumcision, which is due to go to trial on Monday.
But ahead of the start of proceedings, the Congress of Traditional Leaders of South Africa (Contralesa) has declared that its position on circumcision - forced or otherwise - would remain unchanged, regardless of what a court may order.
Bonani Yamani, now 21, was abducted from his home shortly before dawn on March 3, 2007. He was tied up, taken to the bush, circumcised against his will, then forced to eat the skin taken from his penis.
Circumcision is against Yamani's personal religious beliefs, and he subsequently asked traditional leaders for an apology and an undertaking that no one would in future be subjected to forced circumcision.
Instead, Eastern Cape Contralesa chairperson Chief Mwelo Nonkonyana was quoted as saying that those who refused traditional circumcision should be ostracised by the community.
Yamani's case is being handled on a pro bono basis by the Justice Alliance of South Africa (Jasa) in the Equality Court of the Bhisho High Court in the Eastern Cape.
Jasa explained that Yamani's case was premised on the equality clause in the Bill of Rights, which forbids unfair discrimination on the grounds of religion, conscience or belief.
Yamani argues that his Christian faith did not permit him to be circumcised in a manner that involved a blood covenant with his ancestors.
Custom, on the other hand, maintains that a young man who refuses to submit to the rite should be ostracised by the community because it is this initiation into Xhosa manhood that marks his passage from "ubukhwenkwe (boyhood)" to "ubudoda (manhood)". To be stigmatised in such a way, traditional leaders say, would amount to "fair", not "unfair", discrimination.
But Yamani is asking for an order declaring that his ordeal amounted to unfair discrimination, and a restraint on especially traditional leaders encouraging any form of ostracism.
However, Contralesa president Chief Phathekile Holomisa said last night that even if the court ruled in Yamani's favour and installed the orders as requested, custom required that boys be circumcised. It was "not acceptable" for them to refuse.
Furthermore, leaders should be "commended for not calling for violence to be visited on this boy", he said.
"Forcing them physically is not the way to go. We would persuade them to go and undertake the ritual.
"Of course, ostracising (those who do not want to be circumcised) is one of the ways of forcing people to undergo the ritual," Holomisa said.
A person who failed to "obey" cultural expectations was "liable to be isolated".
Holomisa said Yamani was "wasting the court's time" and said if the court ruled in his favour, it would be "up to society to decide whether the order is meaningful or not".
Asked how this position could be reconciled with the constitution, which is the supreme law of South Africa and trumps any inconsistent laws or conduct, Holomisa said the constitution could not be forced on people.
"It has to be a living document. It has to live in the veins of people. It can't be imposed," he said.
John Smyth QC, of Jasa, said it was possible that the case could go all the way to the Constitutional Court, and acknowledged that even if a ruling was made in favour of Yamani, and, by extension, others like him, it could be hard to enforce.
But he said the first step was to clarify the law. And an order would further serve as a deterrent against the media publishing encouragements to ostracise.
"It will act as a restraint to some extent. This case is all about deterring an encouragement to ostracism," Smyth said.