State and Religion in South Africa: Open Issues and Recent Developments
Demographically, the religious affiliations of South Africa’s 79.02 per cent Black African, 8.91 per cent Coloured, 9.58 per cent White and 2.49 per cent Indian (or Asian) population look as follows:1 Protestant 51.7 per cent (including Pentecostal and charismatic churches), African Independent Churches 23 per cent, Catholic 7.1 per cent, Islam 1.5 per cent, Hindu 1.2 per cent, African traditional beliefs 0.3 per cent, Judaism 0.2 per cent, no affiliation or affiliation not stated (the majority probably adhering to traditional, indigenous religions) 15 per cent. A considerable majority of the population indicates religious affiliations and most South Africans are Christians of some sort, spread over 34 groupings and several thousand denominations. The more than 4,000 African Independent Churches hold a majority position among the Christian denominations. This picture of decided religious diversity is not uniquely South African. Nor is the patent presence of minority religions, susceptible to ‘sidelining’ or ‘othering’ – if not marginalization – vis-à-vis mainstream religions.
The South African law on state and religion is embodied in the Constitution of the Republic of South Africa, 1996, as prime source; in the common law knowable from (and developed through) case law; in legislation, and in administrative/policy directives. This chapter consists of a bird’s-eye view of constitutional and statutory provisions pertinent to the relationship between state and religion in South Africa, followed by a discussion of jurisprudence of the Constitutional Court dealing, first, with a religious rights claim to an apparently non-religious end and, second, with the predicaments and constitutional entitlements of unconventional (or ‘non-mainstream’) religious individuals and groups. This jurisprudence, concerning itself with the plight of ‘the religious Other’, as it were, and culminating in the court’s benchmark judgment in KwaZulu Natal and Others v. Pillay and Others2 (‘Pillay’), fittingly manifests some of the most salient and distinctive features of the state–religion relationship in South Africa.
Section 15(1) of the Constitution guarantees everyone’s ‘right to freedom of conscience, religion, thought, belief and opinion’ while section 9(1) guarantees everyone’s equality before and right to equal protection and benefit of the law. Section 9(3) proscribes unfair discrimination ‘against anyone’ on the grounds of, amongst others, religion, conscience and belief. This means that the right to ‘equality’ in section 9(1) includes equality of religions and their adherents.
The written constitutional text – and the Bill of Rights in particular – qualify, amplify and direct the basic section 15(1) and sections 9(1) and 9(3) entitlements to religious freedom and equality in various ways:
1. Section 15(2) allows for the conduct of religious observances at state or state-aided institutions, provided that this takes place on an equitable basis,3 rules made by appropriate public authorities are followed4 and attendance is free and voluntary.5
2. The right to establish and maintain, at own expense, independent educational institutions not discriminating on the basis of race, registered with the state and maintaining standards not inferior to those at comparable public educational institutions, is entrenched in section 29(3). This entitlement includes the establishment of religion-specific institutions. In state schools a national policy on religion in education6 makes non-denominational religion education part of the curriculum. Denominationally specific religious instruction and observances are also allowed in such schools, but not as part of the curriculum. A Bill of Responsibilities, drafted by a Forum of Religious Leaders, has furthermore been made available to schools for use in the compulsory Life Orientation Programme, and the Department of Education has approved a draft national school pledge for public comment.7
3. Section 15(3)(a) authorizes legislation recognizing marriages concluded under systems of religious personal or family law. In common law, Muslim and Hindu marriages were regarded as contra bonos mores and were not officially recognized, mainly because they are potentially polygynous.8 That the vast majority of such marriages are de facto monogamous has made no difference. Non-recognition of their marriages has had dire consequences for Hindu and Muslim wives who claim maintenance from their husbands themselves or from their estates, or from third parties who intentionally or negligently have perpetrated the death of a breadwinner husband. To date no legislation has been adopted to provide for the recognition of religious marriages as envisaged in section 15(3)(a), but certain developments in the case law have had the effect of alleviating the plight of Muslim and Hindu women to some extent.9 Legislation is, however, still urgently needed in order to deal with the recognition of religious marriages thoroughly and systematically.
4. Section 31(1) explicitly backs communal (or ‘group’) manifestations of religion10 (and culture) stating that persons belonging to religious (or cultural) communities may not be denied the right to practice their religion (and enjoy their culture),11 and to form, join and maintain religious and cultural associations and other organs of civil society.12
5. Religious rights, like all other rights guaranteed in the Bill of Rights, are to be construed in context, permeated with the values articulated in, or implied by, the founding provisions (in Chapter 1 and especially sections 1 and 2) of the Constitution, section 7’s characterization – and statement of the main objectives – of the Bill of Rights, and the Preamble to the Constitution. Section 39(1) requires that any interpretation of the Bill of Rights promote the values that underlie an open and democratic society based on human dignity, equality and freedom, and also consider international law. Foreign law may be taken into consideration. According to section 39(2) legislation must be interpreted and the common and customary law developed in a manner that promotes the spirit, purport and objects of the Bill of Rights.
Section 7(1) characterizes the Bill of Rights as a cornerstone of democracy in South Africa, enshrining the rights of all people in the country and affirming the democratic values of human dignity, equality and freedom. Section 7(2) then enjoins the state to ‘respect, protect, promote and fulfil the rights in the Bill of Rights’.
All rights entrenched in the Bill of Rights are limitable pursuant to stipulations of a general limitation clause (section 36), requiring limitations to be (only) in terms of law of general application; reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom; and compliant with explicitly spelt out exigencies of proportionality.13 Section 36 does not, however, preclude the specific limitations of rights in the very sections entrenching them, or the suspension of rights during a duly declared state of emergency.14
Jurisprudence of the Constitutional Court Pertinent to the Constitutional Entitlements of ‘Religious Others’
S v. Lawrence; S v. Negal; S v. Solberg15 (‘Solberg’)
Ms Solberg, an employee at a chain store, was convicted of contravening section 90(1) of the Liquor Act,16 which proscribes wine sales on Sundays. She challenged the constitutionality of section 90(1) contending that it infringed, amongst others, her right to freedom of religion.17 Six justices of the Constitutional Court found that this challenge could not be upheld, but they were divided 4-2 on the reasons for this finding. Three justices thought that the challenge should be upheld, but agreed, on a significant issue of constitutional interpretation, with the deviating view of the minority of two judges in the group of six. (These three-plus-two judges will be referred to as ‘the five’, and the remaining judges who dismissed the appeal as ‘the four’.)
Chaskalson P spoke on behalf of the four contending that Solberg’s challenge, based on the right to freedom of religion, required the court’s consideration as a matter of religious free exercise only and not of religious equality (and non-discrimination) as well.18 Taking his cue from a dictum in the Canadian case of R v. Big M Drug Mart Ltd 1985,19 Chaskalson P said the following about religious free exercise:
The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination.
He understood freedom of religion as primarily an individual’s right not to be coerced to do anything against her or his religious beliefs (or non-beliefs) – a right to be respected, in other words, and possibly protected, but hardly prone to promotion and fulfilment by the state.20
O’Regan J, articulating the concerns of the five, held that the guarantee of a right to freedom of religion at any rate entails entitlement to an even-handed treatment of religions and their adherents. In her view section 90(1) unjustifiably encroached on the right to religious freedom. Sachs J and Mokgoro J agreed that there was such an encroachment, but thought that it constituted a constitutionally justifiable limitation to the right in question, and therefore did not cause section 90(1) to be unconstitutional.21
O’Regan J disagreed with the four’s contention that issues of religious equality were not up for consideration in Solberg, stating that the Constitution requires more from the legislature than that it refrain from coercion:22 ‘It requires in addition that the legislature refrain from favouring one religion over others. Fairness and even-handedness in relation to diverse religions is a necessary component of freedom of religion’.
The court was unanimous on one issue of considerable significance, namely the absence, in the Constitution, of an ‘establishment clause’ erecting a wall of separation between church and state.23
Christian Education SA v. Minister of Education24 (‘Christian Education’)
An organization of concerned Christian parents challenged, in a High Court, the constitutionality of section 10 of the South African Schools Act,25 which proscribes corporal punishment in any school, public or private/independent. According to the religious beliefs of the applicants, corporal punishment was a rudiment in the upbringing of their children and section 10 thus infringed their right to freedom of religion. The High Court turned down the application. On appeal to the Constitutional Court26 Sachs J handed down a carefully reasoned judgment dismissing the appeal on the basis that section 10 imposes a constitutionally acceptable limitation27 on parents’ free exercise of their religious beliefs. He refrained, however, from expressing any view on whether it is a constitutionally allowable exercise of a religious belief if parents themselves administer corporal punishment to their own children. He also did not really address the question what schools (and teachers) should at any rate be permitted to do in a country where a modern-day constitution, entrenching fundamental rights in accordance with stringent standards of constitutional democracy, is in place.
In a significant postscript to his judgment, Sachs J lamented the fact that there was no one before the court representing the interests of the children concerned.28 He thought that the children, many of them in their late teens and coming from a community with deep moral values and religious beliefs, would have been capable of articulate expression: ‘Although both the state and the parents were in a position to speak on their behalf, neither was able to speak in their name’.
It would therefore have been advisable, he opined, to have appointed a curator ad litem to represent the interests of the children whose contribution would have ‘enriched the dialogue’. Christian Education put limits on the free exercise of a religious belief, but is the one Constitutional Court judgment in which the significance of religious and related rights was stated most unequivocally nonetheless.29
The Prince Saga30 (‘Prince’)
Gareth Prince, a Rastafarian and a consumer of cannabis for spiritual, medicinal, culinary and ceremonial purposes, successfully completed his legal studies to a point where, qualification-wise, he became eligible to be registered as a candidate attorney doing community service. He had twice been convicted of the statutory offence of possessing cannabis, however, and this raised doubts about his fitness and propriety to be so registered, especially in the light of his declared intention to continue using cannabis. The Law Society of the Cape of Good Hope refused him registration whereupon he unsuccessfully challenged the society’s decision in the Cape High Court.31
Prince appealed to the Supreme Court of Appeal.32 His appeal was dismissed and he then lodged an appeal with the Constitutional Court. A divided court eventually dismissed the appeal with a 5-4 majority,33 but before doing so handed down a significant interim judgment34 in the course of which Ngcobo J intimated that neither the applicant nor the respondents had in the course of the litigious proceedings commencing in the Cape High Court adduced sufficient evidence for any court finally to decide the rather crucial controversies involved in the case. The case was then postponed in order to give both sides the opportunity to gather and adduce the missing evidence. This is something quite extraordinary for a final court of appeal to do, since parties are normally required to adduce all relevant evidence at the time when an action is brought in the court of first instance. Only in rare circumstances are litigants allowed to adduce additional evidence on appeal. The Constitutional Court thought that such circumstances indeed existed in the Prince case. As a vulnerable minority community, Rastafarians were entitled to the fullest possible opportunity to be heard. As Ngcobo J explained: