Johan D. Van Der Vyver, the Contours of Religious Liberty in South Africa

• Publication year: 2007

THE CONTOURS OF RELIGIOUS LIBERTY IN SOUTH AFRICA

Johan D. van der Vyver^*

The political transformation of South Africa in 1994 from a racist oligarchy to "an open and democratic society based on human dignity, equality and freedom"¹brought about radical changes in regard to almost every aspect of freedom of religion or belief, inspired to a large extent by principles of international law pertinent to that freedom. The pre-1994 era of South Africa's political and constitutional history was characterized by, among other things, totalitarian state interference in matters of religion or belief.²By proclaiming South Africa to be a Christian state and enforcing certain scruples of a distinct faction of Protestant Christianity upon the entire community, the legislature did not uphold the principle of equal treatment of different religious communities.³

Religious expression and political opinion in South Africa was furthermore subject to discriminatory state control and censorship.⁴

The current South African Constitution can be described, as far as religion and religious diversity are concerned, as one of profound toleration and accommodation. Generally, it allocates to church institutions the rights in the Bill of Rights to the extent required by the nature of the right and the nature of the church as a juristic person:⁵it guarantees the free exercise of religion;⁶it sanctions freedom of assembly⁷and freedom of association⁸of "[e]veryone"; it protects the right to self-determination of religious communities⁹and makes provision for a Commission for the Promotion and Protection of the Rights of Cultural, Religious, and Linguistic Communities.¹⁰The South African Constitution envisions the establishment, by means of national legislation, of a Pan South African Language Board charged, inter alia, with promoting and ensuring respect for "Arabic, Hebrew, Sanskrit and other languages used for religious purposes in South Africa."¹¹

The Constitutional Court has on several occasions emphasized the vital importance of religion as a component of South Africa's constitutional democracy. In Christian Education South Africa v. Minister of Education, Justice Sachs had this to say:

There can be no doubt that the right to freedom of religion, belief and opinion in the open and democratic society contemplated by the Constitution is important. The right to believe or not to believe, and to act or not to act according to his or her beliefs or non-beliefs, is one of the key ingredients of any person's dignity. Yet freedom of religion goes beyond protecting the inviolability of the individual conscience. For many believers, their relationship with God or creation is central to all their activities. It concerns their capacity to relate in an intensely meaningful fashion to their sense of themselves, their community and their universe. For millions in all walks of life, religion provides support and nurture and a framework for individual and social stability and growth. Religious belief has the capacity to awake concepts of self-worth and human dignity which form the cornerstone of human rights. It affects the believer's view of society and founds the distinction between right and wrong. It expresses itself in the affirmation and continuity of powerful traditions that frequently have an ancient character transcending historical epochs and national boundaries.¹²

The "new South Africa" was committed to abide by international standards of human rights protection. Customary international law,¹³as well as self- executing international agreements,¹⁴are thus part of the law of the land unless they are inconsistent with the Constitution or an Act of Parliament. The 1996

Constitution furthermore instructs courts of law to prefer an interpretation of legislation that is consistent with international law.¹⁵When interpreting the constitutional Bill of Rights, courts of law are permitted to consider comparable foreign law,¹⁶but are compelled to take international law into account.¹⁷They are evidently precluded from following international law directives that are at odds with constitutionally protected rights.¹⁸

A statute enacted in 2000 to flesh out the equal protection and non- discrimination provisions of the 1996 Constitution,¹⁹and "to give effect to the letter and spirit of the Constitution,"²⁰states as one of its objectives, "to facilitate further compliance with international law obligations including treaty obligations in terms of, amongst others, the Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination Against Women."²¹It states that persons charged with interpreting its provisions "may be mindful of" international law, particularly the two Conventions just mentioned,²²as well as comparable foreign law.²³

The essence of international standards relating to freedom of religion or belief was encapsulated in Article 18 of the 1948 Universal Declaration of Human Rights, which provides:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.²⁴

The 1981 United Nations Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief²⁵essentially focused on censoring state-imposed constraints amounting to intolerance and discrimination founded upon the religion or belief of individual members of a political community, including children, or of groups of persons within such communities.²⁶

I. EQUAL PROTECTION AND NON-DISCRIMINATION

The 1996 Constitution guarantees equality of everyone before the law and the right to equal protection and benefit of the laws²⁷subject to remedial action "to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination."²⁸The Constitution likewise prohibits unfair discrimination, directly or indirectly, by the State, as well as by any other person, based on race, gender, sex, pregnancy, marital status, ethnic or social origin, color, sexual orientation, age, disability, religion, conscience, belief, culture, language, birth, or other similar grounds.²⁹

The 1965 International Convention on the Elimination of All Forms of

Racial Discrimination defines "discrimination" as:

[A]ny distinction, exclusion, restriction or preference . . . which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.³⁰

It should be noted that the prohibition of discrimination in the South African Constitution is not confined to the denial or impairment of recognition, enjoyment, or exercise of human rights and fundamental freedoms only, but embraces all instances of unfair discrimination; and it is not confined to distinctions, exclusions, restrictions, or preferences in public life only, but also extends to discrimination in the private sphere of a person's day-to-day life. "Discrimination" as defined in the Promotion of Equality and Prevention of Unfair Discrimination Act entails:

[A]ny act or omission, including a policy, law, rule, practice, condition or situation, which directly or indirectly-

(a) imposes burdens, obligations or disadvantage on, or

(b) withholds benefits, opportunities or advantages from, any person on one or more of the prohibited grounds.³¹

The grounds mentioned in the Constitution as bases for unlawful discrimination include religion, conscience, or belief.³²The Constitution creates a refutable presumption that discrimination based on any of these grounds (or any of the other grounds mentioned by name in the non- discrimination provisions) is unfair.³³A discriminatory distinction, exclusion, restriction, or preference which is unfair may nevertheless be lawful if it is found to be reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom.³⁴This raises the question of what exactly is meant by "unfair" in contradistinction to "unreasonable" discrimination.

If discrimination is based on any of the grounds mentioned in the Constitution-including religion, conscience, or belief-it is presumed to be a matter of unfair discrimination;³⁵and conversely, if differentiations between groups of persons are not based on any of the listed grounds, unfairness must be established.³⁶Differentiation for purposes of the law based on grounds not mentioned in the Constitution will only be considered unfair if it treats people differently "in a way which impairs their fundamental dignity as human beings."³⁷The Promotion of Equality and Prevention of Unfair Discrimination

Act confirmed the special link between fairness and human dignity. Under the Act, something not mentioned in the Constitution would constitute the basis of unfair discrimination if it "(i) causes or perpetuates systematic disadvantage, (ii) undermines human dignity, or (iii) adversely affects the equal enjoyment of a person's rights and freedoms in a serious manner that is comparable to discrimination on a ground [listed in the Act]."³⁸

Once it has been established that the discrimination is "unfair," the further question will emerge as to whether the unfair discrimination is nevertheless reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom. In affording substance to the reasonable prong of the limitations provision, South African courts have followed the Canadian case of R. v. Oakes, where Chief Justice Dickson held that the proportionality test inherent in the concept of reasonableness entailed three important components:

First, the measures adopted must be carefully designed to achieve the objective in question...