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Muna B. Ndulo: "Legal and Humanitarian Perspectives on Equality, State Neutrality and Pluralism: Freedom of Religion in the South African Context"

TEARING DOWN WALLS

-LEGAL AND HUMANITARIAN PERSPECTIVES ON EQUALITY, STATE NEUTRALITY AND PLURALISM: FREEDOM OF RELIGION IN THE SOUTH AFRICAN CONTEXT.

                                                            By

                                                    Muna  Ndulo                                                                                                            (Professor of Law, Cornell University Law School and

                            Director Cornell's Institute for African Development))          

                                                   Introduction

            A major issue concerning religious freedom in international human rights is the extent to which human rights instruments will protect religious freedom especially the right to manifest or display religion or beliefs.  International human rights instruments guarantee individuals and communities the right to "freedom of thought, conscious and religion."  An individual has the right to manifest one's religion or belief and "the freedom, either alone or in community with others and in public or private, to manifest his religion of belief in teaching, practice, worship and observance." "Beliefs" and "religion" are to be broadly construed to cover non-traditional religions and the right not to believe in any religion. The human rights instruments most significant in protecting religious rights are the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights(ICCPR), and the United Nations Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief (Declaration on Religion and Belief); The United Nations Rights of the Child Convention, the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (Declaration on Minorities), the European Convention on Human Rights (ECHR), The Inter-American Convention on Human Rights and the African Convention on Human and Peoples Rights.

            The troubled relationship between the state and religion in liberal democracies is mainly due to the particular historic contexts in which this link is forged but also the globalization of exchanges of persons and the impact of immigration on the increasing religious diversity. Where liberal states hold the power to regulate religious practices within their territory, this does not define their conception of religious neutrality.  Hence the definition of a secular state depends on the viability of regulation and integration of religious practice into state and civil institutions. According to Jeremy Waldron[1], accommodating religious diversity involves taking three measures: (a) enacting legislation giving legal effect to transactions (such as certain types of marriage or property transactions) structured and controlled by norms other than those used to structure and control similar transactions in the general system of law, (b) It involves being sensitive towards, and willing to make room for, other values, meanings and practices and (c) it further involves being open towards judicial interpretations, potentially favourable to minorities, especially in higher courts. In this article we look at the experience of South Africa in the protection of religious freedom and diversity.  We begin the discussion by looking at the South African constitution and then look at the jurisprudence that has developed from the cases relating to the freedom of religion that have come before the South African courts.

    The South African Constitution:  An overview

The Constitution of the Republic of South Africa[2] (the "Constitution") became effective on 4 February 1997 and superseded the Interim Constitution (the "Interim Constitution"), which was in effect from 27 April 1994.  The Constitution is in essence similar to the Interim Constitution, but underwent a number of amendments, as a result of a massive public participation programme as well as a number of parliamentary sessions and certifications by the Constitutional Court. 

The Constitution contains 14 chapters and includes a preamble.  The chapters includes fundamental civil, political, economic, social and human rights (contained in the Bill of Rights, Chapter 2) as well practical matters relating to various functions of government, and the interactions between the branches of government. 

Chapter 1 (sections 1 to 6) contains the founding provisions of the Constitution.  Section 1 provides, inter alia, that the Republic of South Africa is a sovereign, democratic state founded on the values of "human dignity, the achievement of equality and the advancement of human rights and freedoms".  Section 2 of Chapter 1 provides that the Constitution is the "supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled". 

Accordingly, the founding provisions require that all law and conduct be consistent with the Constitution.  The higher courts (the high courts, the Supreme Court of Appeal and the Constitutional Court) have jurisdiction to determine the constitutionality of law and conduct.  The Supreme Court of Appeal is the highest court of appeals in respect of non-constitutional matters; and the Constitutional Court has jurisdiction only to hear constitutional matters (as an appeal court or as a court of first instance, if special leave is given to the applicant) and is the highest court in respect of constitutional matters.

Constitutional interpretation

Section 39(1) of the Constitution requires that when interpreting the Bill of Rights a court:

1.     must promote the values that underlie an open and democratic society based on human dignity, equality and freedom;

2.     must consider international law;  and

3.     may consider foreign law. 

Section 39(2) provides that when interpreting legislation and when developing the common law (or any legislation), every court must promote the spirit, purport and objects of the Bill of Rights. 

The Constitutional Court has stated that fundamental rights (in the Bill of Rights) must be given a generous and purposive interpretation, which gives expression to the underlying values of the Constitution, being human dignity, equality and freedom.[3]  Rights should not be "construed in isolation, but in its context, which includes the history and background to the adoption of the Constitution…"[4] and must also be construed in a way which secures for "individuals the full measure" of its protection.  In S v. Makwanyane[5] the Constitutional Court had to determine the constitutionality of the death penalty in South Africa.  In interpreting the ambit of the right to life, the court had regard not only to the right to life, but also to the right to human dignity and the right to equality before the law and the right to equal protection of the law.   

Freedom of religion

Section 15 of the Constitution[6] is titled "Freedom of religion, belief and opinion" which provides inter alia that:

  1. Everyone has the right to freedom of conscience, religion, thought, belief and opinion. 
  2. Religious observances may be conducted at state or state-aided institutions, provided that:
    1. those observances follow rules made by the appropriate public authorities;
    2. they are conducted on an equitable basis;  and
    3. Attendance at them is free and voluntary. 
  3. Recognition of (this right) must be consistent with this section and the other provisions of the Constitution. 

Section 15 should be read together with section 31, which is titled "Cultural, religious and linguistic communities", and provides that:

  1. Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community:
    1. to enjoy their culture, practise their religion and use their language;  and
    2. To form, join and maintain cultural, religious and linguistic associations and other organs of civil society. 
  2. These rights may not be exercised in a manner inconsistent with any provision of the Bill of Rights. 

In accordance with the principles of constitutional interpretation, the right to freedom of religion (as contemplated in section 15, and more broadly in section 31) should be read in the light of section 9 (which provides for the right to equality, and that, inter alia, the state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including, inter alia, religion, conscience, belief or culture) and the right to human dignity (contemplated in section 10). 

The broad interpretation of the right to freedom of religion has been emphasised by the Constitutional Court in a number of cases.   Before proceeding to the cases, however, it is important to note the technique employed by the Constitutional Court when faced with a law (or conduct) which is inconsistent with a right in the Bill of Rights. 

Limitation of rights:  Section 36 of the Constitution[7]

Section 36 provides that a law of general application may be limited only to the extent that it is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including: the nature of the right; the importance of the purpose of the limitation; the nature and extent of the limitation; the relation between the limitation and its purpose; and less restrictive means to achieve the purpose. 

Case law:

S v Lawrence; Christian Education South Africa; Prince:  Freedom of religion and Cultural, Religious and Linguistic communities

In S v. Lawrence,[8] each of the appellants had been convicted of contraventions of the Liquor Act 27 of 1989 (the "Liquor Act").  The appellants had appealed to the Constitutional Court for an order that the Liquor Act was unconstitutional and accordingly invalid.  In particular, they argued that section 90(1) of the Liquor Act, which prohibited the sale of wine on Sundays, was inconsistent with the right to freedom of religion, belief and opinion (under the Interim Constitution).  (In terms of the Interim Constitution, the right to freedom of religion was similar to the present section 15; however, there was no equivalent provision to the current section 31.)

The Court was divided in this case.  Chaskalson P (with whom three other justices concurred) held that the provision in the Liquor Act was not unconstitutional. 

Chaskalson looked to Canadian law, and its interpretation of the right to freedom of religion, when interpreting the right.  In the Canadian case of R v Big M Drug Ltd, the Supreme Court of Canada decided that the Lord's Day Act, which compelled the sabbatical observance, contravened the right to freedom of religion and therefore unconstitutional. 

Chaskalson held that a law which compels sabbatical observance of the Christian Sabbath would offend against the religious freedom of those who do not hold such beliefs; however, the mere selection of Sunday for purposes which are not purely religious and which do not constrain the practice of other religions would be unlawful simply because Sunday is the Christian Sabbath.[9]  The material difference in purpose between the Lord's Day Act and the provisions of the Liquor Act (relating to the prohibition of sale of wine on Sunday); furthermore, special licences do exist to provide certain sellers with the ability to sell liquor on Sundays. 

Chaskalson relied on the definition of freedom of religion in the R v Big M Drug Ltd case,[10] but emphasised that in addition to providing the right to entertain one's religious beliefs as one chooses, and to declare such beliefs without fear of reprisal, and to manifest such beliefs – the right to freedom of religion encompasses the absence of coercion or constraint.  Ultimately, the Liquor Act would not prohibit grocery stores from doing business on Sundays nor force people to act or refrain from acting in a manner contrary to their religious beliefs.

Chaskalson also noted that the right to freedom of religion in South Africa differed from its understanding in the United States Constitution – South Africa does not have an establishment clause, and the right to freedom of religion is understood through the provisions of the Bill of Rights.[11]

O'Regan J, with whom two other justices concurred, disagreed with Chaskalson's finding on the constitutionality of the provision of the Liquor Act (in so far as it did not contravene the right to freedom of religion).  O'Regan described the right to freedom of religion and agreed with Chaskalson's emphasis on the absence of coercion with respect to the right.  O'Regan went further, however, in stating that the requirement of free and voluntary attendance at state or state-aided institutions, should inform the interpretation of the right as whole – that is, the requirement of fairness or equity is an important component of the conception of the right.[12]  The requirement of equity is something more than fairness: it requires the state to act "even-handedly in relation to different religions".[13]

O'Regan thus interpreted the absence of coercion in the context of the right to freedom of religion as including the absence of both direct and indirect coercion.  The explicit endorsement of one religion over another would not be permitted under the Constitution, because it would result in indirect coercion, and would be a threat to the free exercise of religion (specifically, in a society with a diversity of religions).[14]  The inclusion of Sundays in the Liquor Act is coloured by the inclusion of Good Friday and Christmas Day as being other days on which wine may not be sold – and therefore, it is clear that these days were chosen because of their religious significance for Christians. 

O'Regan concluded that the inclusion of these days of religious significant for Christians is in conflict with the state's duty to act even-handedly in relation to diverse religions and accordingly violates the right to freedom of religion.  O'Regan went through limitation analysis (which was similar in effect to section 36 of the Constitution) and concluded that the limitation was not justifiable and the provision in the Liquor Act was therefore unconstitutional and invalid. 

Sachs J, in a separate dissenting opinion, with whom Mokgoro J concurred, found the provision in the Liquor Act to contravene the right to freedom of religion, but concluded that such limitation was justifiable.  Sachs described the importance of freedom of religion, and described it with regard to its historical context in South Africa.  Sachs stated that "the mere fact that the closed day coincides with a day that has its origins in Christian practice cannot automatically mean that it continues to serve the sectarian purpose of compelling observance of that day as a Christian day of rest… (Sunday) has also become secularised as a common pause day…"[15] Sundays, Good Friday and Christmas, in Sachs' view, no longer represent state endorsement of religion.[16]  Nevertheless, Sachs concluded that the choice of Sunday as a closed day illustrates that the state still shows special solicitude to Christian opinion, and for this reason, it infringes the right to freedom of religion.  Sachs applied the limitation analysis and concluded that the infringement was justifiable.[17]

In Christian Education South Africa v Minister of Education[18] the Court had to determine whether a provision in the South African Schools Act (84 of 1996), which prohibited the use of corporal punishment of students at schools, and imposed criminal liability for any contravention thereof, was unconstitutional.  The appellant, a voluntary association of independent Christian schools in South Africa made submissions to the effect that the prohibition of corporal punishment violated its right to freedom of religion and culture to the extent that it prohibited corporal punishment in those independent schools.  The appellant argued that corporal punishment is a vital aspect of Christianity and it is applied in the light of its biblical context which imposes responsibility on parents for the training of their children.[19]

The Court acknowledged that there were a number of intersecting constitutional values and interests involved in the matter.  Sachs, who wrote the judgment for the Court, referred to the Court's interpretation of the right to freedom of religion in S v Lawrence.  He emphasised that freedom of religion includes both the right to have a belief and the right to express such belief in practice.[20]  Furthermore, Sachs stated that religious practice often involves interaction with fellow believers – it usually has both an individual and a collective dimension represented through activities that are traditional and often ceremonial.[21]  While section 15 of the Constitution protects language rights and rights of belief as individual rights, section 31 emphasises the protection to be given to members of communities united by a shared language, culture or religion.[22]  The Constitution includes other rights which are designed to protect the rights of members of communities. 

Taken together, these rights affirm the right of people to be who they are without being forced to subordinate themselves to the cultural and religious norms of others, and for communities to enjoy the "right to be different".[23]   Importantly, the interest protected by section 31 is not a "statistical one dependent on a counter-balancing of numbers, but a qualitative one based on respect for diversity".[24]

However, Sachs warned that section 31(2) (which requires that the rights members of communities that associate on the basis of language, culture and religion cannot be used shield practices that offend the Bill of Rights) cannot be used to immunise communities from external legislative intervention or to permit oppressive features of internal relationships within the communities concerned.[25]

Sachs assumed that the appellants' rights under sections 15 and 31 were infringed by the legislation (prohibiting corporal punishment in schools) and proceeded to determine whether such limitation was nevertheless reasonable and justifiable (under section 36 of the Constitution).  Ultimately, Sachs concluded that the importance of the limitation (which was aimed at outlawing physical punishment in the school, whose principled and symbolic function was intended to promote respect for the dignity and physical and emotional integrity of all children)[26] outweighed the extent of the infringement on the ability of parents to follow their conscience.  The prohibition provided in the legislation was constitutional and valid.

In Prince v President of the Law Society of the Cape of Good Hope,[27] the appellant, Mr Prince, who held B Iuris and LLB degrees, made application to the Law Society for the registration of his contract of community service for purposes of being admitted as an attorney (in terms of the Attorneys Act (53 of 1979)).  In his application Prince stated that he had two previous convictions for possession of cannabis and he expressed his intention to continue using his cannabis, which was inspired by his Rastafari religion.  The Law Society refused his application because he was not a fit and proper person to be admitted as an attorney (because of his intention to continue to break the law).[28]    

The issue in this case was whether the prohibition on the use or possession of cannabis, when its use or possession is inspired by bona fide religious purposes, is constitutionally invalid on the ground that it infringes the right to freedom of religion.  The question related to whether the prohibition is overbroad. 

The Court relied on the decisions in S v Lawrence and Christian Education to conclude that the right to freedom of religion at least contemplates: (a) the right to entertain the religious beliefs that one chooses to entertain; (b) the right to announce one's religious beliefs publicly and without fear of reprisal; and (c) the right to manifest such beliefs by worship and practice, teaching and dissemination.  Implicit in the right is the absence of coercion or restraint.[29]

In determining whether the right to freedom of religion had been infringed, the Court emphasised that, as a general matter, the Court should not be concerned with whether a particular practice is central to the religion, because religion is a matter of faith and belief.[30]  Importantly, while the beliefs that believers hold sacred may strike non-believers as "bizarre, illogical or irrational",[31] this should not detract from the fact that such beliefs are protected by freedom of religion.  The Court concluded that the prohibition forces Rastafaris to choose between following their religion or complying with the law and accordingly infringes the right to freedom of religion. 

The Court applied the limitations analysis in terms of section 36 of the Constitution, and concluded that the importance of the right to freedom of religion (which is especially important in the South African constitutional democracy based on the values of dignity, equality and freedom) is severely infringed by the prohibition.  The Court stated that in a constitutional democracy that recognises and tolerates diverse religious faiths, tolerance of diversity must be demonstrated by accommodating the practices of all faiths, if this can be done without undermining the legitimate government interest.  The proper approach is not to proscribe the entire practice but to target only that conduct that runs counter to its objectives.[32]

The purpose of the prohibition was to prevent the abuse of dependence-producing drugs and trafficking in those drugs, which was, as the Court stated, a legitimate purpose.  However, this was found to be constitutionally bad because it "proscribes the religious use of cannabis even when such use does not threaten the government interest".[33]  Accordingly, the limitation was held by the Court to be unconstitutional and invalid and Parliament was ordered to provide an appropriate remedy in the circumstances.  In a separate, concurring opinion, Sachs confirmed the decision of the majority and elaborated on the historical context of the right to freedom of religion. 

In the dissenting opinion, the minority argued that the limitation was justifiable and reasonable because the governmental purpose of the legislation was important and attempting to carve out the exception for bona fide religious use of cannabis would be very difficult to implement. 

Hassam; Pillay:  The Right to Equality and Freedom of Religion

In Hassam,[34] the Court had to determine the constitutionality of the Intestate Succession Act (81 of 1987) in so far as it excluded widows of polygamous marriages celebrated according to the tenets of the Muslim religious faith in a discriminatory manner from the protection of such Act.  The applicant, Mrs Hassam, was the second wife of the deceased who had died intestate.    

The Court held that the provision did constitute unfair discrimination under the right to equality (section 9 of the Constitution), because it differentiated between widows married under the Marriage Act and widows in monogamous Muslim marriages, on the one hand, and widows in polygynous Muslim marriages on the other, and that such discrimination was on the grounds of religion (in that the particular religion was, in the historical context, considered in the past as one not deemed to be worthy of respect), marital status, and gender (in the sense that only the wives in polygynous Muslim marriages were affected by the Act's exclusion).[35]  

The Court found such limitation not to be justifiable or reasonable, and therefore held that the legislation was unconstitutional and invalid to the extent that it discriminated against widows in polygynous Muslim marriages, and accordingly made an order widening the ambit of the Act to include such widows under its protection. 

Similarly to Hassam, in Pillay[36] the Court was tasked with determining whether certain conduct was unconstitutional and invalid because it infringed the right to equality and amounted to unfair discrimination on the ground of religious discrimination.  Ms Pillay instituted proceedings on behalf of her minor daughter who had been prevented by her school (in terms of its code of conduct) from wearing her nose ring, which she wore for religious reasons.  The Department of Education brought an application to the Constitutional Court to appeal the decision of the High Court which held that the conduct of the school amounted to unfair discrimination because it interfered with a person's religious and cultural practices and was therefore unconstitutional. 

The Court emphasised the importance of culture, saying that "[c]ultural identity is one of the most important parts of a person's identity precisely because it flows from belonging to a community and not from personal choice or achievement. And belonging involves more than simple association; it includes participation and expression of the community's practices and traditions".[37]   While the wearing of a nose stud was not, on the evidence provided, an integral part of the Hindu religion, it was voluntary expression of South Indian Tamil Hindu culture (which was intertwined with the Hindu religion).  In this case, the Court said that religion and culture were so intertwined that they could not be viewed separately.  The Court held that the code of conduct discriminated against Ms Pillay's daughter on the ground of religion and culture, and that such discrimination was unfair.  The limitation was not justified or reasonable in terms of section 36 of the Constitution and accordingly, the code of conduct was unconstitutional and invalid. 

Throughout the analysis of religion and culture, the Court relied on Christian Education in interpreting the religion and culture. 


[1] Jeremy Waldron, Questions About the Reasonable Accommodation of Minorities in Sharia in the West, Oxford University Press

[2] Constitution of the Republic of South Africa, 1996. 

[3] S v Zuma and Others (CCT5/94) [1995] ZACC 1; 1995 (2) SA 642; 1995 (4) BCLR 401 (SA); 1995 (1) SACR 568; [1996] 2 CHRLD 244 (5 April 1995).

[4] S v Makwanyane and Another (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995).

[5] S v Makwanyane (note 3) at paragraph 10. 

[6] Constitution of the Republic of South Africa, 1996. 

[7] Constitution of the Republic of South Africa, 1996. 

[8] S v Lawrence; S v Negal; S v Solberg (CCT38/96, CCT39/96, CCT40/96) [1997] ZACC 11; 1997 (10) BCLR 1348; 1997 (4) SA 1176 (6 October 1997)

[9] S v Lawrence (note 7) at paragraph 89. 

[10] S v Lawrence (note 7) at paragraph 91. 

[11] S v Lawrence (note 7) at paragraph 100. 

[12] S v Lawrence (note 7) at paragraph 121. 

[13] S v Lawrence (note 7) at paragraph 122.

[14] S v Lawrence (note 7) at paragraph 123.

[15] S v Lawrence (note 7) at paragraph 156.   

[16] S v Lawrence (note 7) at paragraph 163.

[17] S v Lawrence (note 7) at paragraph 165. 

[18] Christian Education South Africa v Minister of Education (CCT4/00) [2000] ZACC 11; 2000 (4) SA 757; 2000 (10) BCLR 1051 (18 August 2000). 

[19] Christian Education (note 17) at paragraph 4.

[20] Christian Education (note 17) at paragraph 19.

[21] Christian Education (note 17) at paragraph 19.

[22] Christian Education (note 17) at paragraph 23.

[23] Christian Education (note 17) at paragraph 24.

[24] Christian Education (note 17) at paragraph 25.

[25] Christian Education (note 17) at paragraph 26.

[26] Christian Education (note 17) at paragraph 51.

[27] Prince v President of the Law Society of the Cape of Good Hope (CCT36/00) [2002] ZACC 1; 2002 (2) SA 794; 2002 (3) BCLR 231 (25 January 2002). 

[28] Prince (note 26) at paragraph 2.

[29] Prince (note 26) at paragraph 38.

[30] Prince (note 26) at paragraph 42.

[31] Prince (note 26) at paragraph 42. 

[32] Prince (note 26) at paragraph 79.

[33] Prince (note 26) at 82.

[34] Hassam v Jacobs NO and Others (CCT83/08) [2009] ZACC 19; 2009 (11) BCLR 1148 (CC); 2009 (5) SA 572 (CC) (15 July 2009). 

[35] Hassam (note 33) at paragraph 34.

[36] 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). 

[37] Pillay (note 35) at paragraph 53.