A Constitution—Almost of Age? Public Role-play in the Construction of Religious and Related Rights in the Constitution of the Republic of South Africa, 1996

ABSTRACT

This article gauges, in the run-up to the twentieth birthday of the Constitution, the proven ability of South Africa's highest law to afford religious communities and institutions, as well as their individual members, meaningful opportunity for public role-play in the construction (that is, the interpretation and application) of religious and related rights in the Bill of Rights (Chapter 2 of the Constitution). A catalogue of constitutional provisions entrenching religious and related rights, as well as examples of how these rights have been invoked in selected constitutional cases, constitute the substance of the discussion. Just having assertible constitutional rights is in itself a public matter. Section 7(2) of the Constitution adds force to this contention, requiring the state not only to respect and protect, but also to promote and fulfil the rights (including the religious and related rights) in the Bill of Rights. These rights can moreover be enforced not only against the state and its organs, but against fellow individuals and non-state bodies too. It will be argued that (and shown how) publicness, as ‘the quality of being public’, is inevitably associated with having constitutional rights, availing oneself of (and asserting) them—also in, for instance, religious disputes and other doings. A public domain that helps sustain a dynamic, visible and progressive realisation of religious rights is assumedly also one allowing sufficient scope for the public role-play of religious adherents and institutions. The case studies in this article are meant, amongst other things, to help form an impression of the quality of the public domain in relation to religious practice in South Africa.

Notes

1 When limiting a right the following factors must be taken into account in order to comply with proportionality (section 36(1)(a)–(e)):

• (a) the nature of the right;

• (b) the importance of the purpose of the limitation;

• (c) the nature and extent of the limitation;

• (d) the relation between the limitation and its purpose; and

• (e) less restrictive means to achieve the purpose.

2 At the time entrenched in section 14(1) of the Constitution of the Republic of South Africa, Act 200 of 1993. The 1993-constitution is also referred as the ‘transitional’ or ‘interim’ Constitution and section 14(1) is the precursor to section 15(1) of the final Constitution.

3 The judgement of the full bench has been reported as Bührmann v. Nkosi and Another, 2001 (1) S.A. 1145 (T.).

4 Bührmann v. Nkosi and Another, 2001 (1) S.A. 1145 (T.) 1155D-F. The Land Claims Court previously in Serole and Another v. Pienaar, 2000 (1) S.A. 328 ([1999] 1 B All S.A. 562) (L.C.C.) voiced similar sentiments on the applicability of ESTA rights to justify the procurement of a right to bury a family member on someone else's land:Permission to establish a grave on a property could well amount to the granting of servitude over that property. The owner of the property and all successors-in-title will, for as long as the grave exists, have to respect the grave, not cultivate over it, and allow family members to visit and maintain it. Although the specific instances of use in s 6(2) are set out ‘without prejudice to the generality’ of the provisions of ss 5 and 6(1), they still serve as an illustration of what kind of use the Legislature had in mind when granting to occupiers the right to ‘use the land’ on which they reside. The right to establish a grave is different in nature from the specific use rights listed in s 6(2). It is, in my view, not the kind of right which the Legislature intended to grant to occupiers under the Tenure Act [ESTA]. Such a right could constitute a significant inroad into the owner's common-law property rights. A Court will not interpret a statute in a manner which will permit rights granted to a person under that statute to intrude upon the common-law rights of another, unless it is clear that such intrusion was intended.

5 The case has been reported as Crossley and Others v. National Commissioner of South African Police Service and Others, [2004] 3 All S.A. 436 (T.).

6 As intimated previously, it was actually not really necessary for the court to make a finding in this regard because it had already found against the applicants on the issue of urgency. However, Patel J did express a view on the constitutional issue.

7 Article 7.1.2.

8 The minority judgment of O'Regan J is wholly in agreement with the results of the majority judgement, but poses relevant questions about possible alternative routes to the same destination and she draws a sharper distinction between religion and culture and the constitutional rights pertaining to them than Langa CJ does. Cf MEC for Education: KwaZulu Natal and Others v. Pillay and Others, 2008 (2) B.C.L.R. 99 (C.C.), 2008 (1) S.A. 474 (C.C.) pars. 143–146. For present purposes, however, this debate is not of pressing importance.

9 MEC for Education: KwaZulu Natal and Others v. Pillay and Others, 2008 (2) B.C.L.R. 99 (C.C.), 2008 (1) S.A. 474 (C.C.) para. 44. See also Young 1990, 168:

Integration into the full life of the society should not have to imply assimilation to dominant norms and abandonment of group affiliation and culture. If the only alternative to the exclusion of some groups defined as Other by dominant ideologies is the assertion that they are the same as everybody else, then they will continue to be excluded because they are not the same.

10 In the words of Langa CJ MEC for Education: KwaZulu Natal and Others v. Pillay and Others, 2008 (2) B.C.L.R. 99 (C.C.), 2008 (1) S.A. 474 (C.C.) para.1.

11 MEC for Education: KwaZulu Natal and Others v. Pillay and Others, 2008 (2) B.C.L.R. 99 (C.C.), 2008 (1) S.A. 474 (C.C.) para.107.

12 In a similar earlier case, Antonie v. Governing Body, Settlers High School, and Others, 2002 (4) S.A. 738 (C.), the Cape High Court adjudicated the issue of wearing Rastafarian dreadlocks and a cap to school, allegedly in contravention of the school's Code of Conduct, very understandingly and even generously in favour of a learner claiming her right freely to express her religious beliefs. In this case the school's Code of Conduct was enforced by its governing body in a draconic way. The Code graphically depicted a number of forbidden hair styles, but did not say anything about dreadlocks and caps, and yet the governing body expelled the applicant for wearing dreadlocks and a cap, after finding her guilty of serious misconduct. This meant that she was treated as if she had committed a criminal offence!