Freedom of religion in South Africa explained

South Africa is a secular state, with freedom of religion enshrined in the Constitution.

Legislation

Constitution

The preamble to post-apartheid South Africa's Constitution of 1996 contains references to God in the form of a multilingual evocation asking for God's protection and blessing.^[1] Dutch theologian Johannes van der Ven describes this text as a "rhetorical petition prayer".^[2] The Constitution nevertheless enshrines the right to freedom of religion.

Chapter 2 of the Constitution of South Africa, the Bill of Rights, contains a number of provisions dealing with religious freedom. Section 9, the equality clause, prohibits unfair discrimination on various grounds including religion and requires national legislation to be enacted to prevent or prohibit unfair discrimination. Section 15 states that everyone has the right to freedom of conscience, religion, thought, belief and opinion. This section also allows religious observances in state and state-aided institutions, provided they follow public authority rules, they are conducted on an equitable basis and attendance is free and voluntary; and provides for the recognition of religious legal systems and marriages that are not inconsistent with the Constitution. Section 31 protects the right of persons belonging to a religious community to practise their religion together with other members of that community, and to form, join and maintain voluntary religious associations.^[3]

Various other provisions of the Constitution relate to religion and religious freedom. Sections 185 and 186 provide for a commission for the promotion and protection of the rights of cultural, religious and linguistic communities.^[4] In addition, human rights such as the right to human dignity,^[5] the right to freedom of expression^[6] and the right to freedom of association^[7] relate indirectly to the protection of religious freedom. The right to freedom of expression does not extend to hate speech based on various grounds including religion.

The constitutional right to freedom of religion is not absolute. In his keynote speech at the public endorsement ceremony of the South African Charter of Religious Rights and Freedoms in Johannesburg on 21 October 2010 Deputy Chief Justice Dikgang Moseneke stated:

Equality Act

Pursuant to Section 9 of the Constitution, the Equality Act of 2000 prohibits unfair discrimination on various grounds including religion.^{[8] [9]} The Equality Act does not apply to unfair discrimination in the workplace, which is covered by the Employment Equity Act.

South African Human Rights Commission

The South African Human Rights Commission (SAHRC) is a chapter nine institution inaugurated in 1995 to support constitutional democracy. The SAHRC investigates complaints about unfair discrimination and assists members of the public with cases heard in Equality Courts.^{[10] [11] [12]}

CRL Rights Commission

The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL Rights Commission) is a chapter nine institution established in 2004 to support constitutional democracy.^[13]

Religion in schools

National legislation and policies governing religion in schools relate to Religion Education, religious observances in schools and school dress codes:

• The National Policy on Religion and Education adopted in September 2003 provides for Religion Education, i.e. education about diverse religions, which does not promote any particular religion in the public school curriculum.^[14] Religion Education is covered in the Life Orientation subject.^[15]
• In accordance with Section 15 of the Constitution, religious observances are permitted in public schools provided they are conducted on an equitable basis which acknowledges religious diversity and attendance is free and voluntary.^{[16] [17] [18]}
• The Department of Basic Education's National Guidelines on School Uniform adopted in February 2006 state that a school's dress code should accommodate religious and cultural diversity.^{[19] [20] [21] [22]}

OGOD court case

In August 2014 the Organisasie vir Godsdienste-Onderrig en Demokrasie ("Organisation for Religion Education and Democracy") (OGOD) filed an application in the South Gauteng High Court to stop several public schools from describing themselves as Christian or promoting a Christian ethos in contravention of the constitution.^{[23] [24] [25] [26]} All six schools named in the application were Afrikaans-medium public schools and their school governing bodies were members of the Federation of Governing Bodies of South African Schools (FEDSAS). The outcome of the test case applies to all public schools however. The named schools opposed the case and were supported in this by FEDSAS, AfriForum, the Freedom Front Plus political party and the African Christian Democratic Party.^{[26] [27] [28] [29]} In June 2017 the court ruled that it is unlawful for a public school or school governing body, which function in a diverse society, to practise single faith branding aligned with one dominant religion to the exclusion of others.^{[30] [31] [32] [33]} The schools decided not to appeal the court's ruling.^[34]

Legislative reforms

The new Constitution did not result in immediate reform of discriminatory legislation infringing on the right to religious freedom. Various legislative reforms have taken place or have been initiated since 1994 as a result of lobbying by disenfranchised groups.

The Civil Union Act, which came into effect on 30 November 2006, legalised same-sex marriage and also allowed for the legal designation of religious marriage officers without any religious restriction in accordance with the Constitution. Previously, religious marriage officers could only be legally designated as such "for the purpose of solemnizing marriages according to Christian, Jewish or Mohammedan rites or the rites of any Indian religion" in accordance with the Marriage Act. In accordance with section 5 of the Civil Union Act, any religious organisation may apply to the Department of Home Affairs for designation as a religious organisation and when designated as such must formally nominate suitable candidates from within their organisation to be designated by the Department of Home Affairs as religious marriage officers for the purpose of solemnising marriages according to the rites of that religious organisation.^[35]

The Witchcraft Suppression Act of 1957 based on colonial witchcraft legislation criminalises claiming a knowledge of witchcraft, conducting specified practices associated with witchcraft including the use of charms and divination, and accusing others of practising witchcraft.^[36] In 2007 the South African Law Reform Commission received submissions from the South African Pagan Rights Alliance and the Traditional Healers Organization requesting the investigation of the constitutionality of the act and on 23 March 2010 the Minister of Justice and Constitutional Development approved a South African Law Reform Commission project to review witchcraft legislation.^{[37] [38]}

The Christian holidays of Christmas Day and Good Friday remained in post-apartheid South Africa's calendar of public holidays. The CRL Rights Commission held countrywide consultative public hearings in June and July 2012 to assess the need for a review of public holidays following the receipt of complaints from minority groups about unfair discrimination. The CRL Rights Commission stated that they would submit their recommendations to the Department of Home Affairs, the Department of Labour, various Portfolio Committees and the Office of the Presidency.^{[39] [40] [41]} The CRL Rights Commission published its recommendations on 17 April 2013, including the scrapping of some existing public holidays to free up days for some non-Christian religious public holidays.^{[42] [43]} On 18 January 2015 the South African Law Reform Commission published a discussion document on legislation administered by the Department of Home Affairs in which it suggested "that either these holidays be reviewed or that equal weight be given to holidays of other faiths".^{[44] [45] [46]}

Notable legal precedents

• Christian Education South Africa v Minister of Education (2000) – the Constitutional Court found that the right to freedom of religion did not entitle Christian private schools to an exemption from a general law prohibiting school corporal punishment, despite their belief that the Bible prescribes corporal punishment.
• (2007) – the Constitutional Court found that Durban Girls' High School unfairly discriminated against a Hindu schoolgirl by not allowing her to wear a nose stud.^{[20] [47] [48]}
• Organisasie vir Godsdienste-Onderrig en Demokrasie v Laerskool Randhart and Others (2017) – the South Gauteng High Court found that single faith branding by public schools is unlawful.^[49]

See also

• Blasphemy law in South Africa
• Hate speech in South Africa
• Religion in South Africa
• Christianity in South Africa
• Catholic Church in South Africa
• Protestantism in South Africa
• Irreligion in South Africa

Further reading

• Kroeze, IJ. God's Kingdom in The Law's Republic: religious freedom in South African constitutional jurisprudence. PER. 2003. 6. 2. 97–119. 20 March 2013.
• Pienaar, Gerrit. The interaction between religious freedom, equality and human dignity. PER. 2003. 6. 2. 121–133. 20 March 2013.
• Woolman . Stuart . Defending Discrimination: On the constitutionality of independent schools that promote a particular, if not comprehensive, vision of the good life . Stellenbosch Law Review . 2007 . 1 . 31–52 . 25 September 2014 . https://web.archive.org/web/20160303235247/http://repository.up.ac.za/bitstream/handle/2263/3710/Woolman_Defending(2007).pdf . 3 March 2016 . live .
• Fleisch . Brahm . Woolman . Stuart . On the constitutionality of single-medium public schools . South African Journal on Human Rights . 2007 . 23 . 1 . 34–67 . 10.1080/19962126.2007.11864911 . 2263/3698 . 142728182 . 22 October 2014 . https://web.archive.org/web/20160304023644/http://repository.up.ac.za/bitstream/handle/2263/3698/Fleisch_On(2007).pdf . 4 March 2016 . live . free . This article addresses constitutional provisions relating to language, culture and religion in South African schools.
• Book: Mhango, Mtende. Vilhena. Oscar. Baxi. Upendra. Viljoen. Frans. Right to recognition and protection of religion in South Africa. Transformative constitutionalism: Comparing the apex courts of Brazil, India and South Africa. 2013. Pretoria University Law Press. Pretoria. 9781920538231. 356–371. 14 December 2014.
• News: Scholtz . Herman . Godsdiens in skole gaan monster skep . af . Religion in schools will create monster . 5 September 2014 . Rapport . 16 July 2011 . https://web.archive.org/web/20140830081030/http://www.rapport.co.za/Suid-Afrika/Nuus/Godsdiens-in-skole-gaan-monster-skep-20110716 . 30 August 2014 . live .
• Leatt . Annie . Faithfully Secular: Secularism and South African Political Life . Journal for the Study of Religion . 2007 . 20 . 2 . 29–44 . 24764192 . This article addresses the form of secularism emerging in post-apartheid South Africa.

External links

• Equality Courts

Notes and References

1. Web site: Constitution of the Republic of South Africa, 1996 – Preamble. Government of South Africa. May God protect our people. Nkosi Sikelel' iAfrika. Morena boloka setjhaba sa heso. God seën Suid-Afrika. God bless South Africa.. 18 October 2014.
2. Book: van der Ven, Johannes A.. Osmer. Richard R.. Schweitzer. Friedrich L.. Developing a public faith: new directions in practical theology: essays in honor of James W. Fowler. Chalice Press. St. Louis, Missouri. Religious Freedom and the Public Church. 189–202. 2003. 9780827206311.
3. Web site: Constitution of South Africa: Bill of Rights. Government of South Africa. 18 October 2014.
4. Web site: Constitution of South Africa: Chapter 9: State institutions supporting constitutional democracy, Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities. Government of South Africa. 18 October 2014.
5. Web site: Constitution of South Africa: Bill of Rights: Section 10: Human dignity. Government of South Africa. 18 October 2014.
6. Web site: Constitution of South Africa: Bill of Rights: Section 16: Freedom of expression. Government of South Africa. 18 October 2014.
7. Web site: Constitution of South Africa: Bill of Rights: Section 18: Freedom of association. Government of South Africa. 18 October 2014.
8. Web site: Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. DOJ&CD. 30 March 2013.
9. Web site: Briefing Document: Equality Act and equality courts. DOJ&CD. 1 April 2013. 31 January 2020. https://web.archive.org/web/20200131182552/https://www.justice.gov.za/EQCact/eqc_briefingdoc.html. dead.
10. Web site: Lodging a complaint in the Equality Court: Equality/Discrimination. DOJ&CD. 30 March 2013. 12 August 2019. https://web.archive.org/web/20190812130110/http://www.justice.gov.za/services/discrimination.html. dead.
11. Web site: About the SAHRC. SAHRC. 30 March 2013. dead. https://web.archive.org/web/20130307012102/http://www.sahrc.org.za///home/index.php?ipkContentID=1&ipkMenuID=28. 7 March 2013.
12. Web site: Equality for all! It is our right (leaflet). SAHRC. 30 March 2013.
13. Web site: Investigation and Conflict Resolution (ICR). crlcommission.org.za. 18 November 2012. dead. https://web.archive.org/web/20130131225505/http://www.crlcommission.org.za/icr.php. 31 January 2013.
14. Web site: National Policy on Religion and Education. Government of South Africa. 18 October 2014.
15. Web site: National Curriculum Statement Grades 10-12 (General) Life Orientation. 2003. Department of Education. 1 June 2013.
16. Web site: Constitution of South Africa: Bill of Rights: Section 15: Freedom of Religion, Belief & Opinion. Government of South Africa. 18 October 2014.
17. Web site: South African Schools Act No. 84 of 1996 . Department of Basic Education . 5 September 2014 . 7. Freedom of conscience and religion at public schools.—Subject to the Constitution and any applicable provincial law, religious observances may be conducted at a public school under rules issued by the governing body if such observances are conducted on an equitable basis and attendance at them by learners and members of staff is free and voluntary. . https://web.archive.org/web/20140730064407/http://www.education.gov.za/LinkClick.aspx?fileticket=808cFmkP8U4= . 30 July 2014 . live .
18. Web site: Jeenah. Na'eem. Brian. Ramadiro. Salim. Vally. Education Rights for Learners, Parents and Educators Book 5: Religion and Schools. Education Rights Project. 20 March 2013. https://web.archive.org/web/20121030181341/http://www.erp.org.za/pdf/religion%20booklet_WEB.pdf. 30 October 2012.
19. Web site: National Guidelines on School Uniform . creamermedia.co.za . 23 February 2006 . 30 March 2013 . https://web.archive.org/web/20200301213701/http://us-cdn.creamermedia.co.za/assets/articles/attachments/02561_notice173.pdf . 1 March 2020 . live .
20. News: Parker. Faranaaz. Pupil, school face off over dreadlocks. 30 March 2013. Mail & Guardian. 10 March 2011.
21. News: Parker. Faranaaz. W Cape school overstepped constitutional bounds. 30 March 2013. Mail & Guardian. 23 January 2013.
22. News: Jones. Michelle. Fez, scarf siblings back at school. 30 March 2013. Cape Times. 25 January 2013.
23. Press Release 20/8/2014 . 20 August 2014 . OGOD . 5 September 2014 . https://web.archive.org/web/20140912041508/http://www.ogod.org.za/press-releases/ogod-litigation-press-release-aug2014.pdf . 12 September 2014 . dead .
24. News: Heksejag op Christenskap . af . Witch hunt on Christianity . 4 September 2014 . Die Burger . 3 September 2014 . https://web.archive.org/web/20140904195015/http://www.dieburger.com/nuus/2014-09-03-heksejag-op-christenskap . 4 September 2014 . live .
25. News: Carstens . Sonja . Kind hoor: 'Jy sal in hel brand' . af . Child hears: 'You will burn in hell' . 4 September 2014 . Beeld . 3 September 2014 . https://web.archive.org/web/20140904201336/http://www.beeld.com/nuus/2014-09-03-kind-hoor-jy-sal-in-hel-brand . 4 September 2014 . live .
26. News: Thamm . Marianne . Religion in schools: Watershed case to ensure teaching and not preaching . 4 September 2014 . Daily Maverick. South Africa . 3 September 2014 . https://web.archive.org/web/20140904195859/http://www.dailymaverick.co.za/article/2014-09-03-religion-in-schools-watershed-case-to-ensure-teaching-and-not-preaching/ . 4 September 2014 . live .
27. News: Keep Christian teaching in schools – ACDP. 18 October 2014. The Citizen. 2 September 2014. https://web.archive.org/web/20141018105103/http://citizen.co.za/237618/keep-christian-teaching-schools-acdp/. 18 October 2014. live.
28. News: de Jager. Ischke. Fedsas staan op vir Christenwaardes in skole. af. FEDSAS stands up for Christian values in schools. 18 October 2014. Boksburg Advertiser. 13 September 2014. https://web.archive.org/web/20141018103419/http://boksburgadvertiser.co.za/209220/skole-staan-op-vir-christenwaardes/. 18 October 2014. live.
29. News: van der Spuy. Michelle. Gelyke gelowe in skole bepleit. af. Religious equality advocated in schools. 18 October 2014. Eikestad Nuus. 15 September 2014. https://web.archive.org/web/20141018141202/http://www.eikestadnuus.co.za/articles/articledetails.aspx?id=185058. 18 October 2014. live.
30. News: Macupe. Bongekile. 'Schools should not adopt one religion to the exclusion of others' – judge. 4 July 2017. Mail & Guardian. 28 June 2017. https://web.archive.org/web/20170705082706/https://mg.co.za/article/2017-06-28-schools-should-not-adopt-one-religion-to-the-exclusion-of-others-judge. 5 July 2017. live.
31. News: Davis. Rebecca. One God to be kept out of government schools, rules court. 4 July 2017. Daily Maverick. South Africa. 28 June 2017. https://web.archive.org/web/20170629044930/https://www.dailymaverick.co.za/article/2017-06-28-one-god-to-be-kept-out-of-government-schools-rules-court/. 29 June 2017. live.
32. News: Mabuza. Ernest. Court rules against single-religion schools. 4 July 2017. TimesLive. 28 June 2017. https://web.archive.org/web/20170704233142/https://www.timeslive.co.za/news/south-africa/2017-06-28-court-rules-against-single-religion-schools/. 4 July 2017. live.
33. News: Mabuza. Ernest. Ye of little faith: Court rules against single-religion schools. 4 July 2017. TimesLive. 29 June 2017. https://web.archive.org/web/20170705022913/https://www.timeslive.co.za/news/south-africa/2017-06-29-ye-of-little-faith-court-rules-against-single-religion-schools/. 5 July 2017. live.
34. News: Greyling. Jeanelle. Ogod: Skole gaan nie appelleer nie. af. Ogod: Schools won't appeal. 5 August 2017. Netwerk24.
35. Web site: Civil Union Act 17 of 2006. Government of South Africa. 18 October 2014.
36. Web site: Witchcraft Suppression Act 3 of 1957. DOJ&CD. 18 November 2012. 21 October 2014. https://web.archive.org/web/20141021192934/http://www.justice.gov.za/legislation/acts/1957-003.pdf. dead.
37. Web site: Sapra Appeal for legislative reform. vuya.net. 10 July 2007. 18 November 2012. dead. https://archive.today/20121220043355/http://www.vuya.net/node/2677. 20 December 2012.
38. Web site: Department of Justice and Constitutional Development. Current Investigations: Progress Report; Project 135: Review of witchcraft legislation. DOJ&CD. 18 November 2012. 14 January 2020. https://web.archive.org/web/20200114030442/https://www.justice.gov.za/salrc/progress.htm. dead.
39. Web site: crl rights commission continues with the consultative community hearings on the possible review of public holidays. Government of South Africa. 26 June 2012. 18 October 2014.
40. Web site: Fight over religious holidays . crlcommission.org.za . 18 November 2012 . dead . https://web.archive.org/web/20141018121257/http://www.crlcommission.org.za/fightoverholidays.php . 18 October 2014 .
41. News: Hands off Christmas, protesters say. news24.com. 10 November 2012. 10 November 2012.
42. Web site: Recommendations: Public Holidays vs Religious/Cultural Holydays . CRL Rights Commission . 23 April 2013 . dead . https://web.archive.org/web/20130513085841/http://www.crlcommission.org.za/icr_docs/public_holidays_recomendations.pdf . 13 May 2013 . Publication date per link to document from home page: "Investigation and Conflict Resolution Reports: The ICR Reports were launched on Wednesday 17 April 2013"
43. News: Public holidays scrutinised (video). 30 April 2013. eNCA. 29 April 2013. 22 April 2021. https://web.archive.org/web/20210422172043/https://www.enca.com/south-africa-life/your-public-holidays-religiuos. dead.
44. Web site: Media statement by the South African Law Reform Commission concerning its release of Discussion Paper 133 on statutory law revision in respect of legislation administered by the Department of Home Affairs . 7 July 2015 . https://web.archive.org/web/20150707232755/http://salawreform.justice.gov.za/media/20150119-dp133.pdf . 7 July 2015 . live .
45. Book: Discussion Paper 133 (Project 25). 2015. South African Law Reform Commission. 9780621432800. 7 July 2015. https://web.archive.org/web/20150708015736/http://www.justice.gov.za/salrc/dpapers/dp133.pdf. 8 July 2015. live.
46. News: Soobramoney . Candice . Public holiday outcry . 7 July 2015 . The Post . 25 June 2015 . https://web.archive.org/web/20150707175528/http://www.iol.co.za/thepost/news/public-holiday-outcry-1.1876519 . 7 July 2015 . live .
47. Web site: Judgment: Constitutional Court of South Africa: MEC for Education: KwaZulu-Natal and Others v Pillay. Southern African Legal Information Institute. 2007. 1 April 2013.
48. Web site: Media Summary: Constitutional Court of South Africa: MEC for Education: KwaZulu-Natal and Others v Pillay. Southern African Legal Information Institute. 2007. 30 March 2013.
49. Web site: Organisasie vir Godsdienste-Onderrig en Demokrasie v Laerskool Randhart and Others (29847/2014) [2017] ZAGPJHC 160 (27 June 2017)]. Southern African Legal Information Institute. 2017. 4 July 2017.