Constitutional Hill

freedom of religion

Now angels can’t even have sexual feelings

The printed media in South Africa, under pressure from the government and the ruling party, has touted self-regulation via the Press Ombudsman as a model of how to deal with complaints from the public about unethical, untrue or sloppy journalism. But self-regulation is not always a success, especially where the code in terms of which such regulation is conducted is vague or where the code fails to embody the values associated with an open and democratic society in which freedom of expression is respected and the principle of diversity is celebrated.

A recent decision by the Advertising Standards Authority of South Africa (also known as the ASA) demonstrates this point rather starkly. ASA is an independent body set up and paid for by the marketing communication industry of South Africa tasked to regulate the advertising industry of South Africa.

Last week it ruled in favour of Mr Dawie Theron, who lodged a complaint against a television commercial for Axe deodorant. The commercial opens with a little boy witnessing a winged creature falling from the sky. Following this, many more of these creatures are shown falling to earth, ultimately getting up and approaching a man who is somewhat unsure of what is happening. The closing scene shows the man spraying the deodorant and a subsequent thud sound is heard. The voice over says, inter alia, “New Axe deodorant. Even angels will fall.” The text on screen states, “EVEN ANGELS WILL FALL.”

In essence, Mr Theron said that he was offended by the use of angels in the commercial. The fact that these winged creatures fall from the sky suggests that they are heavenly creatures. According to the Bible, angels are God’s messengers, and the suggestion that angels will fall for a man wearing this deodorant is incompatible with his belief as a Christian. (I am not sure whether Mr Theron was also perhaps uneasy because angels are usually depicted as men and that the advert could hence be seen to promote homosexuality if one was really paranoid and easily offended.)

ASA invoked the following rule to justify its decision:

No advertising may offend against good taste or decency or be offensive to public or sectoral values and sensitivities, unless the advertising is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

In its ruling ASA acknowledged that South Africa was a multi-cultural society and recognised that it is important to ensure that all religious faiths and beliefs, no matter how large or small the communities that practice them, are treated with the same consideration and respect. Noting that the “commercial is metaphorical and that the angels are meant to represent something more than simply beautiful women” (the power of deduction is quite impressive!), ASA found that “the commercial sets out to communicate that the new Axe fragrance is so irresistible that even angels will be enticed by it”. It then went on to provide the following reasons for banning the advert:

An angel, according to Christian beliefs is God’s heavenly messenger who obeys His commands. Angels also symbolise purity and goodness while “fallen angels” symbolise wickedness. Fallen angels are generally as angels that rebel against God, and are permanently banned from God’s glory and presence. The Directorate is also mindful of the fact that the angels are not simply coming to earth, or descending on earth, but falling, effectively crashing to earth, which supports the notion that they are fallen angels, presumably banished. When it becomes apparent that they are falling from heaven over a man who wears this deodorant would be considered disrespectful and offensive to the core beliefs of Christians, as angels are known to be celestial beings regarded as divine and pure. The commercial therefore communicates that saintly creatures would give up their heavenly status and fall from grace for a man… As such, the problem is not so much that angels are used in the commercial, but rather that the angels are seen to forfeit, or perhaps forego their heavenly status for mortal desires. This is something that would likely offend Christians in the same manner as it offended the complainant.

In coming to its decision ASA failed to take into account sub-clause 2 of the same part of the code which states:

Advertisements should contain nothing that is likely to cause serious or wide-spread or sectoral offence. The fact that a particular product, service or advertisement may be offensive to some is not in itself sufficient grounds for upholding an objection to an advertisement for that product or service. In considering whether an advertisement is offensive, consideration will be given, inter alia, to the context, medium, likely audience, the nature of the product or service, prevailing standards, degree of social concern, and public interest.

If it had taken this clause into account, it would at the very least have asked whether a reasonable Christian (of who, I am told, there are many) would have been offended by the advert. It would not have asked whether the particularly narrow-minded and easily offended segment of the Christian population would have found the advert offensive, but would have asked instead whether the advert would have caused serious and widespread offensive.

It also failed to interpret the code against the background of the South African Constitution as, I would argue, it was required to do. If it had been a bit more sober and informed, ASA might have known that the Constitutional Court in the Islamic Unity Convention case endorsed the idea that the right to freedom of expression is:

applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. . . . . Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’.

Of course, the standard that should apply to advertisements flighted on television might be stricter than the standard applied to other kinds of speech in the public arena. Viewers cannot easily tune out of adverts they find offensive and it would therefore be permissible to restrict the kinds of themes that can be relied upon in adverts targeted at television audiences.

But this does not mean that it should cave in to the bizarrely thin-skinned viewers who are so easily offended when an advert contains any material with which he or she does not agree. A code regulating advertising cannot endorse close-mindedness or the unhinged personal feelings of some South African who demand that their personal beliefs are so precious yet so frail that these beliefs had to be protected at all cost.

The logic of this ruling would lead ASA to ban adverts for many churches and other religious organisations. Although I am personally not easily offended, I imagine that many atheists would feel deeply offended every time they have to watch an advert (talk about false advertising) that says one will burn in hell if one did not follow the Lord Jesus or states that only that religious group has the answer to what constitutes a meaningful life on earth.

In an open and democratic society based on human dignity, equality and freedom, it is impossible to protect every person from ever feeling offended — even by adverts. If we are going to prohibit adverts on the basis that it offends one or two religious crackpots, we will not have many adverts flighted on television or the radio.

Confronted by the “reasoning” of ASA, one cannot but suspect that the person who made this decision is himself a rather intolerant Christian who believes that the values of a narrow band of people should be enforced on all of us. This is not the kind of open society envisaged by our Constitution, but a society in which the beliefs and feelings of a few people dictate to the rest of us.

The difficult choices facing Chief Justice Mogoeng

The appointment of Chief Justice Mogoeng Mogoeng has elicited much comment, but conceptually the most difficult but also the most interesting aspect of the debate about his suitability for the office of Chief Justice, centres around his obviously sincerely but strongly held religious views. Justice Mogoeng belongs to a church (and is a lay preacher in that church) called Winners Chapel International, which condemns homosexuality as a disease that can be cured. During his interview Justice Mogoeng claimed that God wanted him appointed to the job. He said he prayed and got a sign that “it was the right thing to do”, after President Zuma nominated him.

Section 15 of the South African Constitution states that “[e]veryone has the right to freedom of conscience, religion, thought, belief and opinion”. Should this, then, not mean that the justice Mogoeng’s involvement in his church as a lay preacher and the fact that his church espouses values that are in direct contraventions of Constitution (as the Constitution explicitly protects gay men and lesbians against unfair discrimination and guarantees respect for their inherent human dignity), should not disqualify him to be Chief Justice? After all, if justice Mogoeng cannot become the leader of the judiciary because he belongs to a church which holds deeply demeaning views about a  section of the population explicitly protected by the Constitution, large numbers of judges would be similarly disqualified.

For example, anyone belonging to the Catholic Church, an institution that has its own problems with dealing with child rape and explicitly discriminates against women, would be disbarred from being Chief Justice. And what about members of the Dutch Reformed Church (also known as the NG Kerk), an institution which not so long ago still claimed there was scriptural justification for the policy of apartheid and even today has not managed to unify with its sister churches created during the apartheid era for “coloured” and “african” worshippers? Surely members from these churches should then also be ineligible for the top spot on our judiciary?

Our Constitutional Court has always had difficulty with the matter of religious freedom in cases where it has been called upon to decide how to balance, on the one hand, respect for the religious views and practices of all against, on the other hand, the broader interest of society and the protection of the rights of everyone enshrined in the Constitution. In the Lawrence case, justice Chaskalson, once again borrowing from the Canadian case law, endorsed the view that:

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.

This right has both an individual and a collective aspect. As justice Sachs stated in the Christian Education case:

This broad approach highlights that freedom of religion includes both the right to have a belief and the right to express such belief in practice. It also brings out the fact that freedom of religion may be impaired by measures that coerce persons into acting or refraining from acting in a manner contrary to their beliefs. Just as it is difficult to postulate a firm divide between religious thought and action based on religious belief, so it is not easy to separate the individual religious conscience from the collective setting in which it is frequently expressed. Religious practice often involves interaction with fellow believers. It usually has both an individual and a collective dimension and is often articulated through activities that are traditional and structured, and frequently ritualistic and ceremonial.But this is not the end of the matter. As is the case with all rights, freedom of religion can be limited.

These passages seem to suggest that someone like Justice Mogoeng should be allowed to believe what he wishes and also to practice his religion by acting as a lay preacher in his church — no matter how homophobic or sexist (and hence in contravention of the Constitution) the doctrine of that church might be — and that he should not be forced to decide between his right to believe and practice his religion, on the one hand, and his job as Chief Justice, on the other hand. If he were to be forced to choose, so the argument goes, this would entail an attempt at coercing  a person not to believe or practice his religion — something not permitted by our Constitution.

But this is not the end of the matter. Like all other rights contained in the Bill of Rights, the right to freedom of religion is not absolute and can be limited. Thus the Constitution requires each judge to swear the following oath:

I, A.B., swear/solemnly affirm that, as a Judge of the Constitutional Court/Supreme Court of Appeal/High Court/ E.F. Court, I will be faithful to the Republic of South Africa, will uphold and protect the Constitution and the human rights entrenched in it, and will administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law.

It therefore requires all religiously devoted judges who belong to any number of mainstream and not so mainstream churches to choose between being faithful to their religious beliefs or being faithful to the Constitution and the human rights enshrined in it. If an individual cannot promise that he would disobey and completely disregard his personal religious beliefs about, say, the perceived god given rights of the man to head the household or the belief that homosexuality is a perversion and a lifestyle choice that can and must be cured by prayer, that individual cannot — in all good conscience — become a judge at all. That is why justice Mogoeng’s failure to provide reasons for his “dissent” in the Dey case appears so troubling. By dissenting but not giving reasons he might well have tried to obey both his judicial oath and the injunctions of his faith — something that was clearly impossible and impermissible to do.

In the Christian Education case — as in many other cases dealing with questions about legislative limitations placed on religious beliefs and practices — the Constitutional Court reverted to the limitation clause to try and balance the interests of believers against the broader interest of society and against the rights contained in the Constitution. In that case a group of Christian schools challenged the provision in the Schools Act which prohibits corporal punishment at school, arguing that the Christian Bible commands teachers to assault learners when learners have broken the rules as the Bible states that if one spares the rod one spoils the child.

In a sensitive and carefully crafted judgment, justice Sachs found that the case required the court to apply the proportionality test as set out in the limitation clause and that the real question was whether the failure to accommodate the religious belief and practice of some by means of the exemption to the ban on corporal punishment in schools could be accepted as reasonable and justifiable in an open and democratic society based on human dignity, freedom and equality. As Sachs pointed out, this balancing of interests will often be very difficult in freedom of religion cases and it is worth quoting Sachs’ judgment in this regard at length:

The most complex problem is that the competing interests to be balanced belong to completely different conceptual and existential orders. Religious conviction and practice are generally based on faith. Countervailing public or private concerns are usually not and are evaluated mainly according to their reasonableness. To the extent that the two orders can be separated, with the religious being sovereign in its domain and the state sovereign in its domain, the need to balance one interest against the other is avoided. However religion is not always merely a matter of private individual conscience or communal sectarian practice. Certain religious sects do turn their back on the world, but many major religions regard it as part of their spiritual vocation to be active in the broader society. Not only do they proselytise through the media and in the public square, religious bodies play a large part in public life, through schools, hospitals and poverty relief. They command ethical behaviour from their members and bear witness to the exercise of power by state and private agencies; they promote music, art and theatre; they provide halls for community activities, and conduct a great variety of social activities for their members and the general public. They are part of the fabric of public life, and constitute active elements of the diverse and pluralistic nation contemplated by the Constitution. Religion is not just a question of belief or doctrine. It is part of a way of life, of a people’s temper and culture.

The result is that religious and secular activities are, for purposes of balancing, frequently as difficult to disentangle from a conceptual point of view as they are to separate in day to day practice. While certain aspects may clearly be said to belong to the citizen’s Caesar and others to the believer’s God, there is a vast area of overlap and interpenetration between the two. It is in this area that balancing becomes doubly difficult, first because of the problems of weighing considerations of faith against those of reason, and secondly because of the problems of separating out what aspects of an activity are religious and protected by the Bill of Rights and what are secular and open to regulation in the ordinary way.

In the Christian Education case, the Constitutional Court found that given the fact that parents could still chastise their children at home, given — further — that the Constitution placed a positive duty on the state to try and create a society free from violence and to protect children from physical and emotional harm, and given the importance of the right of everyone to have their bodily integrity protected and respected, it was not unreasonable to limit the rights of freedom of religion in this limited way. Religious believers who wanted to impose corporal punishment could still do so at home, but the interest of the state to create violence free zones at schools allowed it to ban the practice of corporal punishment in these more public arenas.

I suspect much the same argument could be used regarding justice Mogoeng’s beliefs and his role as a lay preacher in a homophobic church. While he must surely have the right to believe what he wishes about women and homosexuals and why he has every right to be a lay preacher in a church that propagates hatred against homosexuals, he should surely not have a right both to be Chief Justice (requiring him to protect gay men and lesbians from discrimination, hatred and harm) and to remain a lay preacher in his church which does exactly the opposite.

I for one would therefore contend that it would be appropriate for Chief Justice Mogoeng to resign as a lay preacher from his church — at the very least. When it is impossible to serve two gods (the god of one’s religion on the one hand and the “god” that is the supreme Constitution on the other) one surely has an ethical — perhaps even a legal and constitutional — duty to choose the one or the other. If one refuses to choose, one’s integrity and honesty might well come under suspicion.

I am not claiming that such choices will always be easy to make. They will often not be easy at all. Given the sincerity of many people’s religious beliefs (including, clearly, that of Chief Justice Mogoeng), given — further — the often deeply personal and strongly held beliefs many people have about their religion and their church, and given the pull of ambition, status and power that might make contradictory demands on one’s conscience, these decisions might well (in certain cases) be agonising and seemingly impossible to make. But that does not mean that one should not make them if one wishes to live an ethical life.

Thus, if I were ever offered a lucrative position, say, to head a private University in the United States that is funded by the Catholic Church and professes to adhere to the teachings of that church, I will have no choice but to decline that offer — even if it would mean a much larger salary, far more status and more influence and power. Life is not always easy and it is seldom fair — especially to those with strong and inflexible principles and beliefs.

Justice Mogoeng has a difficult choice to make. I trust he will choose well.

What a load of dangerous nonsense

NOTE TO READERS: I wrote this piece based on information gleaned from the Lead SA Website and other documents sent to me. Primedia has pointed out (see full letter here) that although a version of the Bill of Responsibilities on the website did not include sexual orientation, other documents did. Although the original version of the document drafted by religious leaders did not include sexual orientation, I have no reason to doubt that the Lead SA campaign did intend to include it in their version and that it made an honest mistake when it published the document that excluded sexual orientation. I therefore apologise for assuming that the campaign did not intend to do so and for claiming that the campaign was homophobic. I am happy to retract the criticism of the Bill (and of Lead SA) based on this assumption. I stand by the rest of my criticism of the campaign.

When the Department of Education, 567 Cape Talk, Radio 702 and others involved in the so called “Lead SA” campaign launched a “Bill of Responsibilities for the Youth of South Africa” this week, I thought it might be a good idea. Rights carry with them responsibilities and promoting both rights and the concomitant responsibilities amongst our youth seems like a good idea.

But then I read the document and was truly appalled. How such a wrongheaded and bigoted document could have been endorsed and promoted by Lead SA and the Department of Education is beyond me. Don’t these people think? If they do, don’t they have any moral compass to guide their thoughts and actions or any notion of what democracy is all about?

Of course, given the fact that the document was drafted by a group of religious leaders, it is not surprising that it gets our Bill of Rights so wrong. The document is shot through with pious platitudes and sickly sweet but morally dubious claims. It is also overlaid with the casual but deadly serious prejudices that sadly infest many who take up leadership positions in organised religious bodies. What is surprising is that the Department of Education and radio stations that pride themselves in getting South Africa talking would endorse this nonsense.

First, the document suggests that it is perfectly fine to discriminate against gay men, lesbians and other sexual minorities. In the sections dealing with equality the document states that the right to equality places a responsibility on everyone not discriminate unfairly against anyone else “on the basis of race, gender, religion, national— ethnic- or social origin, disability, culture, language, status or appearance”. No mention is made of a duty not to discriminate against anyone on the basis of his or her sexual orientation — an obligation that flows directly from section 9(3) of the Constitution and the provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act.

One cannot but conclude that this deliberate and quite glaring omission means that the Minister of Education, 567 Cape Talk, Radio 702, and the Lead SA campaign do not support the prohibition against unfair discrimination against gay youth. In effect these institutions and the Lead SA campaign are endorsing the widespread hatred and homophobia that are also prevalent amongst school children. The silence in this document on the impermissibility of discriminating against gay men, lesbians and transgender youth speaks louder than they might think about the deep prejudices underlying this document.

Given the fact that gay, lesbian and transgender youth are particularly vulnerable as they are still coming to terms with their sexuality — a sexuality they are often told by parents, by their religious leaders, by teachers and by fellow learners are perverted and sinful — it is an outrage that this document deliberately skirts the issue. Gay, lesbian and transgender youth are often relentlessly taunted and bullied by peers — which in extreme cases lead to suicide — yet this document suggests that it is perfectly acceptable to discriminate against them.

According to this deeply odious document, while one has a responsibility not to discriminate against anyone because of her race, one has no corresponding responsibility not to discriminate against anyone because of her sexual orientation. This is not what the Constitution and our law says, so it is misleading. Neither is it what any ethical human being would expect. It is, however, how many bigots — including some religious bigots — think.

How any reputable organisation could endorse this document is therefore beyond me. The fact that the Ministry of Education – who has a duty to uphold and respect the rights in the Constitution – is promoting this document, suggests that it has deliberately and flagrantly decided not to honour its constitutional obligations towards a particularly vulnerable section of society. The Ministry is therefore flouting its constitutional duties and I would argue that in promoting this document the Department is in breach of its constitutional duties to respect, protect, promote and fulfil the rights in section 9 of our Constitution.

The document is also laughably and perhaps quite dangerously anti-democratic. In a democracy, a thousand opinions are supposed to bloom. We are supposed to hold strong opinions and express those opinions — even when such opinions are not popular or even when others (including parents, religious leaders and teachers) do not agree with our opinions. This view of democracy is at the heart of what it means to live in a democracy based on the value of human dignity. In such a democracy we are assumed to have agency and to be able to decide for ourselves what we wish to believe and how we ought to behave — as long as we do not break the law.

But this document suggests that children should be seen and not heard, that they should not upset anyone and hence should not really enjoy the freedom of expression that others take for granted. Children should be passive and obedient creatures who upset no one and express no controversial opinions. What this document demands is that our children should act like passive, unresponsive, scared and obedient automatons without any zest for life, no intellectual curiosity, no belief that what they think matter. This, it seems to me, is a dangerously anti-democratic (even fascist) idea.

First, the document states that the right to human dignity means that everyone has a responsibility “to treat people with reverence, respect and dignity and be kind, compassionate and sensitive to every human being, including greeting them warmly and speaking to them courteously”.

Well, it would be nice if people were generally polite but we have no constitutional duty to treat people with reverence and respect. In fact, I would argue that in a democracy in which we are empowered to decide for ourselves who we are, what we believe and how we want to live, we have a duty sometimes to tell people that they are talking crap and that we do not respect them. How else will they know that they are ridiculous, callous or just plain wrong?

When a religious leader endorses homophobic bigotry I for one will not treat him or her with reverence. I will tell him (because it is mostly a him) that he is harming others and that he is being a very bad person for doing so. A failure to do so would require me to act in a fundamentally unethical manner merely to promote politeness and respect for others. What nonsense.

Similarly the right to freedom of expression does not mean — as this ridiculous document asserts — that we have a duty to ensure that others are “not insulted or have their feelings hurt”. How can we engage in a vigorous exchange of ideas and how can we express ourselves freely if we can never hurt the feelings of anyone? Of course, it is a good thing to try and express one’s beliefs in a logical and rational manner and to engage with the ideas of others seriously, but this does not mean we have an obligation never to hurt the feelings of others. If that were to be the case, I could never express a view, say, that organised religion is often deeply bigoted, that god does not exist or that unbridled capitalism is an evil force in the world.

This document purports to set out a list of responsibilities that are inextricably linked to the rights in the Bill of Rights. But the document does no such thing. It reflects the pious and paternalistic attitudes and beliefs held by many in the field of organised religion. It does not reflect in any way the real responsibilities placed on us by the Bill of Rights. Unlike this document, the Bill of Rights assumes that we are individual human beings whose dignity can only be respected if others also respect our right to say what we believe and think.

In other words the document gets it exactly wrong. Where the Bill of Rights and the law demands that we do not discriminate against anyone because of their sexual orientation, this document is silent. Where the Bill of Rights demands that we should be allowed to express our views and opinions robustly, this document tells us we have a responsibility not to do so if we will hurt the feelings of anyone else. It is teaching our children the wrong things in the wrong way. It is a dangerous document concocted by people who do not like or believe in equality and democracy.

Lead SA should never have gotten involved with this reactionary and paternalistic exercise. They should be ashamed of themselves.

Dreadlocks at school must be allowed

In 2007 in the case of MEC for Education: KwaZulu-Natal and Others v Pillay and Others the Constitutional Court, in a  progressive judgment authored by then Chief Justice Pius Langa, affirmed the importance of South Africa’s constitutional commitment to diversity. Interpreting the relevant provision of the Equality Act, the Court  found that an ostensibly neutral school disciplinary Code which failed to accommodate the cultural and religious practice of a Hindu learner to wear a nose stud unfairly discriminated against that learner.

There was discrimination, held the Court, because the norm embodied by the Code was in fact not neutral (despite the fact that the rules in the Code applied equally to all learners), because it enforced “mainstream and historically privileged forms of adornment, such as ear studs which also involve the piercing of a body part, at the expense of minority and historically excluded forms” of adornment. The Code was discriminatory because it placed a burden on learners who are unable to express themselves fully and must attend school in an environment that does not completely accept them. Other learners who form part of the mainstream do not suffer a similar fate.

In a diverse society like ours, institutions like schools have a special duty reasonably to accommodate the religious and cultural beliefs and practices of learners, employees or members. This principle of reasonable accommodation is well known in the field of disability law but must also be applied to non-discrimination law more generally – especially when interpreting and applying the Equality Act. As the Constitutional Court stated in the Pillay case:

At its core is the notion that sometimes the community, whether it is the State, an employer or a school, must take positive measures and possibly incur additional hardship or expense in order to allow all people to participate and enjoy all their rights equally. It ensures that we do not relegate people to the margins of society because they do not or cannot conform to certain social norms….  Our society which values dignity, equality, and freedom must therefore require people to act positively to accommodate diversity. Those steps might be as simple as granting and regulating an exemption from a general rule or they may require that the rules or practices be changed or even that buildings be altered or monetary loss incurred. 

But often institutions like schools do not wish to respect diversity and would rather impose the values of the majority religious or cultural group on everyone rather than to accommodate the practices with which they do not agree or which they fear or despise. This seems to have happened to fifteen-year-old Odwa Sityatahe, a grade 8 pupil from Joe Slovo Engineering School in Khayelitsha, Cape Town, who has been suspended from the school for failing to cut his dreadlocks. Odwa is a Rastafarian for whom wearing dreadlocks is not a fashion statement.

For Rastafarians wearing dreadlocks and not cutting your hair is a required religious practice as this signals a spiritual connection between the individual and Jah [God]. The school sees the matter differently and last year Odwa was told to cut his hair. He refused, and when Odwa, his family and members of their congregation asked to see the principal, they claim they were chased away. He was then suspended from the school. Sadly, the Education MEC for the Western Cape has not rushed to Odwa’s defence because of the religious discrimination against him. (Could this be because an election is looming and standing up for the rights of Rastafarians do not win votes?)

Yesterday, Bronagh Casey, spokesman for provincial education MEC, Donald Grant, said that one could not assume that any constitutional right had been violated in this case. “It would be incorrect to assume that any constitutional or other rights have been violated. This could only be decided on by a court of law,” she said. (This reminded me a bit of Bheki Cele saying he is innocent because he has not been found guilty of a crime by a court of law – he was merely found by the Public protector to have breached the law and be guilty of maladministration.)

Casey has obviously not heard of the well-established rule of precedent in our law which states that courts are usually bound by their previous decisions. She must also (along with her boss), surprisingly, be either unaware of the precedent set by our highest court in the Pillay case or prepared to ignore the decisions of our Constitutional Court for politically expedient reasons.

If she had been aware of (or honest about) the fact that our system of precedent had addressed the situation in which Odwa finds himself, she and her boss might have had to sing another tune. She would then have known that our Constitutional Court has found that seemingly neutral disciplinary codes are seldom neutral. The norms of such a code often enforce mainstream and historically privileged practices and exclude marginalised practices – like the practices of the Rastafarian religion.

When a school or other body draws up a code of conduct, it should always provide for the reasonable accommodation of all the different cultural and religious practices of the pupils in that school. This requires more than mere tolerance of what is perceived as weird or alien beliefs and practices and requires a celebration of the diversity of cultures and religions in South Africa. This clearly did not happen in this case and I have no doubt that the school is acting unlawfully.

Our law is about as clear as a law can ever be that a school cannot suspend or expel a Rastafarian pupil for wearing dreadlocks, a practice required by his religion. Unlike the smoking of dagga, the wearing of dreadlocks is not illegal. And as the Constitutional Court found in the Pillay case, accommodating religious diversity will not have the horrible consequences envisaged by the intransigent and reactionary school governing body and the MEC for Education.

In the Pillay case the school argued that this was a “slippery-slope” case, because if one allowed one Hindu pupil to wear a nose stud then other children would also be encouraged to come forward and to claim exceptions for their own cultural practices and one will be stuck with a “parade of horribles”. Justice Langa answered this as follows:

[I]f there are other learners who hitherto were afraid to express their religions or cultures and who will now be encouraged to do so, that is something to be celebrated, not feared. As a general rule, the more learners feel free to express their religions and cultures in school, the closer we will come to the society envisaged in the Constitution. The display of religion and culture in public is not a “parade of horribles” but a pageant of diversity which will enrich our schools and in turn our country.

The school has a duty to accommodate Odwa’s religious practice and cannot require him to cut his hair. Even if a school rule requires short hair from boys, this seemingly neutral rule imposes a non-Rastafarian world view on everybody and is therefore unfairly discriminating against Odwa. The MEC should have known this and should have intervened decisively to protect Odwa so that the school would be prevented from infringing his rights. MEC Grant needs to engage with the school as he has a duty to ensure that schools dio not breach the constitutional and legal rights of pupils. If he fails to act immediately, he would be disrespecting the Constitution and would be failing to protect a vulnerable child whose constitutional rights are being infringed.

Is the reasonable person a homophobic prude?

Is it reasonable to be a prude who thinks of sex as always being somewhat dirty and depraved, as something that must remain hidden and covered up at all cost? More pertinently, is it reasonable not to have a sense of humour? In the Laugh it Off case, dealing with the Black Labour/White Guilt T-shirt, Justice Albie Sachs famously asked: “Does the law have a sense of humour?” In that case the Constitutional Court seemed to have agreed that the law can have a sense of humour.

But things seem to have changed up on Constitution Hill and this week the majority of judges of the Constitutional Court found that three schoolboys who played a prank on a deputy headmaster could be successfully sued by that deputy headmaster for defamation. In the case of Le Roux and Others v Dey the majority (per Brand AJ) argued that it was per se defamatory for schoolboys to publish a manipulated picture, described in the following – laughably prudish – manner by Brand AJ:

What the picture explicitly shows is a frontal image of two men, both naked, sitting very close together on a couch. Their legs are wide open and the leg of the one is resting across the leg of the other. The hands of both are obviously in the region of their own genitals, but both the hands and the genitals are covered by an image of the school crest. The position of the hands behind the crest is suggestive of sexual stimulation or some other sexual activity. In short, the vision created is one of two promiscuous men who allowed themselves to be photographed in what can only be described as a situation of sexual immorality, which would be embarrassing and disgraceful to the ordinary members of society. The faces of the two men are electronically cut out and replaced by those of the school principal, on the one figure, and that of Dr Dey, on the other. The manipulation of the picture in this way is obvious and crude. No reasonable person could ever think that the bodies on which the faces are pasted were actually those of the principal and Dr Dey.

I find this description of the picture rather extraordinary. It reveals perhaps more about the moral universe inhabited by the author of the Constitutional Court judgment than he might have realised when he wrote the passage quoted above. The majority seems to assume that two men who have a photograph taken of themselves while they engage in sexual acts are necessarily and always promiscuous and that they are therefore engaged in sexually immoral acts.

While the majority judgment seems to suggest that the fact that the picture depicts two men (as opposed to one man and one woman – the deputy headmaster with Pamela Anderson, say) was irrelevant, it is not so clear from the passage quoted above that this logic is adhered to throughout the judgment. The idea that when two men are depicted as engaging in sexual acts one can reasonably assume that they are promiscuous, defies logic. While many South Africans will have this view, the meaning of the pictures cannot be judged according to how excessively prudish and homophobic members of the public will interpret the picture.

As Brand points out, when deciding whether a statement was defamatory one must ascribe to it the ordinary meaning given to the picture in its context by a reasonable person.  The test to be applied is an objective one. In accordance with this objective test the criterion is what meaning the reasonable reader of ordinary intelligence would attribute to the statement. In applying this test it is accepted that the reasonable reader would understand the picture in its context and that he or she would have had regard not only to what is expressly conveyed but also to what is implied. 

This leads one to pose the following set of questions: who is this reasonable viewer conjured up by the court and what are the values according to which such a reasonable viewer will judge the meaning of a picture? Will such an ordinary reasonable viewer have a sense of humour? Will he or she take into account the fact that the picture was produced by school children and that the faces on the picture clearly did not belong to the bodies on the picture but were added to them by school children?

Would such a reasonable viewer “instinctively” jump to the conclusion that where two men are depicted as engaging in sexual activity they are promiscuous and are engaged in immoral acts? Will  the reasonable person be imbued with the values enshrined in the Constitution or will he or she (like the majority of South Africans) harbour explicit or latent prejudices about gay men and jump “instinctively” to conclusions based on the stereotypes and prejudices that many South Africans (and perhaps also some judges?) hold about gay men?

The construct of the reasonable person is of course a legal fiction. The reasonable person is a fictitious person created by the judge to provide a lens through which to evaluate the picture or publication. Where a judge constructs the reasonable person as someone who is prudish beyond belief and jumps to the conclusion that where two men are depicted as engaging in sexual activity that reasonable person would believe that they are promiscuous and engaged in immoral activity, what the judge in effect is doing is telescoping his or her own beliefs, sexual anxieties, feelings of moral superiority and other prejudices on to the legal construct of the reasonable person to justify his or her own judgment and to provide that judgment with the veneer of objectivity.  

That is why I would argue that the judgment of Brand AJ may perhaps be read as an essay on the homophobic stereotypes that are still deeply embedded in the minds of a majority of South Africans. That is also why the judgment may be saying more about the impossibility of judges constructing and applying a truly “objective” standard of the “reasonable person”, than it may be saying about the defamatory nature of the image under discussion. 

As far as I can see, the reasonable person constructed by the majority of the Constitutional Court is a person who “instinctively” assumes that men depicted as engaging in sexual acts are promiscuous and that what they are doing is immoral – without ever having to engage with concepts such as promiscuity and immorality. The reasonable person cannot define these concepts, but he or she knows it when he sees it because of a gut feeling of revulsion experienced at seeing such a picture.

It is unclear why the majority of the court did not provide a cogent argument to justify its conclusion that sexual immorality was at stake here. Neither is it clear why the court did not fully explain how it came to the conclusion that the two men depicted in the picture were promiscuous.

As far as it is possible to answer these questions based on the reasoning of the court, one might conclude that the Constitutional Court came to the conclusion that whenever a picture is taken of two people engaged in sexual acts (whether the picture is taken by themselves or by someone else), this turns a private and acceptable (if somewhat strange and perhaps slightly shameful) act into a public and hence depraved and immoral act.

Maybe in Bloemfontein – as elsewehere in South Africa – many people think in this way, but in a constitutional democracy in which the narrow and moralistic, religiously-inspired, values are not supposed to be enforced by the law, one can hardly argue that the legal construct of a reasonable person could jump to such a conclusion. But this is exactly what the Constitutional Court – at least the majority – seemed to have done here.

In the absence of an explanation, it is not far-fetched to wonder whether the majority of the court was not influenced by its own ambivalent (if perhaps repressed) assumptions about gay men. After all, the stereotype that all gay men are always promiscuous and that gay men are always engaged in immoral acts are widely held in our society. Could it be that because the two men were photographed and did not care to hide the fact that they might enjoy the sexual company of each other (hence that the two men were not ashamed of their homosexuality and the sex they were enjoying), made the “perversion” and “immorality” just so much more shocking for the so called “reasonable person” constructed by the majority of the Constitutional Court.

What I take from this judgment is that for the reasonable person constructed by the Constitutional Court, sex and sexuality is by its vary nature shameful and degrading, that as long as sex (especially sex between two men) remain hidden in the privacy of these men’s bedroom one could still tolerate the immorality of it all, but as soon as the sexual engagement is made public it becomes so shameful, depraved and immoral that any reasonable person would conclude that it would be deeply hurtful to anyone if one ever suggested that they could possibly have been engaged in such activity.

After having concluded that the reasonable person would have interpreted the picture in the way described above, the court had to decide whether the image was defamatory. In doing so, the majority of the Constitutional Court argued that what had to be answered was the question whether any reasonable observer would infer some association between the two teachers, on the one hand, and the situation described in the picture, on the other. The majority found that the mythical reasonable observer would do just that:

After all, their faces were directly linked to the bodies. In my view that renders the picture difficult to distinguish from a caricature or a cartoon: in all these cases it is obvious that the person identified is not an actual depiction of that person, but that there is some association between that person and what the picture conveys.

According to the Court the reasonable person would ask: why?  “Why are the principal and his deputy, Dr Dey, associated with persons behaving in a lewd and indecent way”? (Once again, note the assumption that when two men are depicted as engaging in sexual activity this must always be assumed to be lewd and indecent.) Why are their faces not pasted on, say, the bodies of ballet dancers, the court wanted to know.

The answer to these questions that, in my view, instinctively springs to mind is this: the whole purpose and effect of the association created by the picture is to tarnish the image of the two figures representing authority; to reduce that authority by belittling them and by rendering them the objects of contempt and disrespect; and to subject these two figures of authority to ridicule in the eyes of the observers who would predominantly be learners at the school. This means that the average person would regard the picture as defamatory of Dr Dey.

The majority of the Constitutional Court somehow did not “instinctively” jump to the conclusion that the picture was manufactured and distributed by schoolboys and that they were engaged in a schoolboy prank. Could it be that the judges were so horrified by the depiction of two men engaging in sexual activity (this “lewd”, “indecent” and “immoral” behaviour – siesa!) that the majority could not conceive of the schoolboy prank in any way other than that it was aimed at tarnishing the image of the headmaster and his deputy and that it had achieved this purpose.

Of course, I would argue that a reasonable person imbued with the values of the Constitution, a person who did not instinctively recoil from depictions of gay sex but understood that sexual activity was a rather enjoyable and mostly positive experience – whether the sex occurred between two men or between a man and a woman – a person who showed some understanding and tolerance for the world of pranks and jokes inhabited by schoolchildren, that such a person might well have concluded that the images were not defamatory because they did not in fact lower the esteem of the headmaster and deputy headmaster in the eyes of any reasonable person.  (Athough it must be conceded that the schoolboy prank probably did lowered the esteem of the headsmaster and the deputy headmaster in the eyes of humourless homophobes and bigots.)

But the majority of the Court found that the fact that this was a schoolboy prank was of little use to the defendants. The real question, argued Brand AJ, is whether the reasonable observer – perhaps, while laughing – will understand the joke as belittling the plaintiff; as making the plaintiff look foolish and unworthy of respect; or as exposing the plaintiff to ridicule and contempt.

Once one has assumed that sex between men – unless hidden away in the privacy of a bedroom – is always promiscuous and immoral, the answer to this question seems pretty obvious. No wonder the majority of the court found in favour of the deputy headmaster who (revealingly) seemed to have been rather disproportionately upset by the suggestion that he might have engaged in same-sex sexual acts.

On Woolworths and freedom of conscience

An interesting debate has been raging – especially in the Afrikaans press – about the decision of Woolworths to stop selling certain religious magazines in its stores. The retailer decided to restock the magazines after an outcry last week by fundamentalist Christians. One report suggested that Woolies decided to stop selling these magazines because of two articles in Joy! magazine, which reportedly had offended a senior Woolies executive. The articles were about the subject of “Judaizers”.

Judaizers are apparently Christians who observe certain Jewish customs, like having the Sabbath on the Saturday. The articles, written by an alleged “missionary” called Peter Hammond, described the behaviour of Judaizers as “unchristian”. Hammond is controversial because he had been accused of smuggling guns to Renamo during the civil war in Mozambique and more recently to rebels in Sudan. During the nineteen eighties there were also persistent rumours that he was working with the South African military to destabilise Mozambique.

I have no idea whether these rumours are true, but having read stuff he had written, I am of the opinion that he is a rather scary and deeply reactionary man. But that is besides the point. The larger issue centres on our understanding of section 15 of the Constitution, which guarantees for everyone the right to “freedom of conscience, religion, thought, belief and opinion”.

In the one corner defenders of Hammond and Joy! magazine argue that Woolies showed a contempt for their Christian faith and that the decision not to stock the religious magazines (as well as subsequent criticism of such magazines and of people like Peter Hammond) at best display intolerance towards Christianity and at worse infringe on the freedom of religion of those few Christian believers who read Joy! magazine every month to keep up to date with news about the deep and abiding faith of people like Joost van der Westhuizen and Amore Vittone.

In the other corner, there are those who argue that Woolies should not have capitulated to religious fundamentalists who insist on their right to see (but seldom to buy) these magazines while standing in the queue at Woolies. Why, they ask, did Woolies not stand up to these religious bullies? How can we be a completely free country if a handful of religious fanatics can dictate to a large retailer what goods they should and should not stock? Are we not on the slippery slope to a Christian dictatorship where Christian values and beliefs (instead of, say, Sharia Law) determines how we live our lives?

Well, the text of section 15 makes it pretty clear that the first group has nothing to complain about. Section 15 does not only guarantee the right to freedom of religion, but also the right to freedom of thought, belief and opinion. We are all entitled to think what we want, believe what we want and express any opinions that we want — as long as we do not defame somebody else or break some other constitutionally valid provision of the criminal law.

Anyone is therefore perfectly entitled to criticise religion in general or the tenets of a particular religion specifically. If I want to say that the beliefs underlying Christianity or Islam are absurd, demonstrably untrue, oppressive and deeply offensive to any conception of freedom, I am entitled to do so. Granted, blasphemy is still a criminal offense in terms of our common law, but I cannot imagine that if challenged this provision will not be declared unconstitutional. The Broadcasting Complains Commission of South Africa has already accepted that blasphemy as defined in our law will not waistband constitutional scrutiny.

Blasphemy is usually defined as the unlawful and intentional insulting or showing contempt or lack of reverence for God/Christianity/Islam. There is no equivalent law criminalising contempt for atheism because if there were the Pope, and thousands of other religious leaders would have had to be locked up long ago. Anyone who challenges the prohibition on blasphemy will therefore have every possibility of being successful as the blasphemy law infringes on the right of non-believers (or the believers of those religions whose God was not targeted) to not only privately believe what  they wish, but to state their beliefs in public.

I obviously have sympathy for the second group, but their complaint does not seem to touch directly on a constitutional issue. In a capitalist state where everyone is free to complain if a retailer stocks or does not stock certain products and is free to urge a boycott of that retailer, the pressure put on Woolies was probably not unlawful or unconstitutional. One could argue that Woolies had caved in to bigotry by deciding to stock these magazines and then one is free not to shop at Woolies because of its cowardly capitulation to right wing bigots. That is what freedom means.

But this question is rather complex.

The fact of the matter is that if one is an atheist, agnostic or if one believes in Judaism, Islam of Hindu religion one is part of a small minority in South Africa. The vast majority of South Africans claim to be Christians (which usually means they go to Church for christenings, weddings and funerals and otherwise ignore religion until they are in big trouble in which case they say a silent prayer to Jesus our Lord).

This does not mean that Christians can demand that their views be accepted by the majority. In the Pillay case, in which the Constitutional Court found that the schools code of conduct was unconstitutional because it failed to accommodate the practices of the Hindu culture and religion, the court made it clear that rules or codes which seem neutral, but which are really based on Christian values, often marginalises and oppresses minority groups and may discriminate against them.

But I suspect there is a difference between a public institution like a school or university or a workplace environment dealing with the behaviour of employees on the one hand, and a private business dealings on the other.  The former can never discriminate. The latter cannot discriminate against individuals it employs but in conducting its business it can probably take decisions that would favour one group or another without fear of being taken to the Constitutional Court.

There is a grey area here between the public and the private and it will not always be easy to decide when the religious views of some could be relied on by a private institution when it made decisions about its business practices. While the Woolies example probably does not implicate the right to freedom of conscience, other examples will be far more problematic. For example, if a Golf club decides, based on the views of its members, not to allow Muslims to join this will probably be unconstitutional (as well as an infringement of the Promotion of Equality Act). But where that same Golf club decided that its members should not play golf on a Sunday I am not sure whether one would be able to challenge this if one happened to be  Jew or an atheist.

It is always complex to deal with (and respect) the widely held superstitions of the majority while also protecting the minority from discrimination and oppression. The  line will not always be easily drawn between permissible Christian influence on the one hand and impermissible marginalisation and oppression on the other.

WWYHD: “What would you have done?”

One of the wonders of living in a democracy is that one soon finds out that there are quite a few idiots about (not all of them politicians) and that it is ok for people to behave like idiots as long as they do not cause too much harm to others. Usually the world as we know it does not come to an end just because some fool somewhere has decided to do something really daft to attract attention or to demonstrate that he (it is always a he is it not?) can be hateful and bigoted in a very special way.

One is free to phone radio talk shows to make cringe worthy statements demonstrating one’s ignorance and superstition or  to say racist, sexist and homophobic things – even if your name is not Julius Malema. One can dress up in horns and a tight blue jersey and paint one’s face blue to show loyalty to that hopeless rugby team called the Blue Bulls. One can appoint an all male cabinet and think no one will notice and one can even – and now I am pushing it – believe that the legal advice provided to the Minister of Defence by her fugitive-from-justice advisor is legally sound.

But when should the courts intervene to stop individuals from making fools of themselves? On what basis should a judge decide that the actions of an individual will cause such harm to others that he or she should be stopped and should be interdicted from going through with his or her planned actions? Should a judge prevent someone from communicating his or her displeasure about a topical issue merely because this would be hurtful to a certain section of the population?

These questions came to mind when I read in the media that Judge Sita Kolbe in the South Gauteng High Court issued an interdict on Friday against a planned Bible burning by businessman and law student Mohammed Vawda.  Vawda said his plan had nothing to do with Christianity; instead, he said he planned the burning because he was angry about Florida pastor Terry Jones’s plan to burn Korans over the weekend.

One could argue that this judgment is not surprising, given the provision of section 16(2)(c) in the Constitution as well as the content of section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA). Section 16(2)(c) of the Constitution states that freedom of expression does not extend to advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm.

This means that the burning of Bibles (or the Koran) would not constitute constitutionally protected speech if it advocated hatred and constituted incitement to cause harm. The Constitutional Court has not yet given a conclusive answer to what this might mean. Canadian case law suggests that the harm should be defined more broadly than physical harm. Acts or words that advocate hatred against a group based on their religion and that constitute incitement to cause serious emotional distress would also qualify as hate speech and would not be constitutionally protected.

Would the burning of Bibles or the Koran constitute incitement to cause serious emotional distress?  Well, it probably would cause serious emotional distress to devout Christians or Muslims if Bibles or Korans are burnt, but I am not so sure that one would be able to argue that the burning of these books would in itself constitute advocacy of hatred of people based on their religious beliefs. Such actions would be mean-spirited and would clearly be intended to hurt the seriously religious. But would one be able to interpret such a pathetic act as advocating hatred against Muslims or Christians? Would it not “merely” be a spiteful attempt to upset Christians (or Muslims)?

If one thought that it could be interpreted as advocating hatred, then one would be entitled to believe that the interdict would have been granted validly. If one thought that it could not, then one might have to conclude that the judge was wrong to grant the interdict.

But even then, this would not be the end of the matter as section 10 of PEPUDA prohibits any person from publishing, advocating or communicating words that could reasonably be construed to demonstrate a clear intention to be hurtful, to be harmful or to incite harm against individuals or groups, inter alia, because of their religion.

Here the definition is far broader than the hate speech provision in the Constitution – except that it seems only to include words and not other kinds of communication such as the burning of Bibles or Korans. One would have to interpret the phrase “advocating or communicating words” so broadly as to include actions – such as the burning of Bibles – where no words are spoken at all but where some communication takes place that signals an intention to hurt others on the basis of their religion.

I am not so sure that the phrase could reasonable be interpreted in such a broad manner. If it could be interpreted so broadly, then it would be clear that the burning of Bibles (or Korans) – a rather spiteful and childish act intended to upset others – would constitute hate speech in terms of PEPUDA and the court would have been correct to grant the interdict. If, however, one interprets words more narrowly to include only words (what a lawyerly phrase that is!) then section 10 would not apply to the burning of Bibles (or Korans) and the granting of the interdict might have been a mistake.

Unless, perhaps, the burning of the Bibles (or the Korans) would have incited people to commit violence. Could a court justifiably have granted an interdict because it was worried that the burning of Bibles or copies of the Koran would have been so provocative that it would have created a serious threat of violence by those offended by the burning of what they consider to be a holy book?

Would this have been a responsible and correct approach or would it have been rather problematic because it would have endorsed the religious intolerance of those who are so easily offended that they would resort to violence every time somebody does something nasty or hurtful relating to their religion? Should religious people not lighten up a bit and chill out and if they do not, should the court take this into account when muzzling free expression?

If we talk about a respect for difference and tolerance of religious diversity, does this not mean that religious believers must also show a tolerance and a respect for diversity towards those who wish to provoke them. I for one, will not rush out to buy a gun or gather my matches and necklaces to go out and kill Christians just because they rock up at my house to protest and to tell me that I am a pervert and that I will burn in hell.

In fact, I will blow them kisses and wave nicely – “one-two-three clutch pearls” – before smiling and getting ready for another wave – “one-two-three clutch pearls”(one can always learn something about how to behave in stressful situations by studying the Queen – of England).

But what is to be done when others are not as tolerant as oneself? Should a court take cognisance of that fact or should the court stand firm against all kinds of intolerance? For once I am not sure what I would have done in this case.  Should a judge prohibit the burning of Korans and Bibles because of the obvious intention behind such a move merely to hurt (rather than to communicate a political or religious message)? Or should a judge allow such a burning on the basis that religious believers should grow up and should learn to embrace the values of democratic tolerance?

WWYHD? (What would you have done?)

Who is digging a big hole for itself?

Maybe Rooseveld High School in Gauteng is a wonderful school with a truly nurturing atmosphere where real learning takes place and the critical thinking abilities of learners are developed so that they can become active citizens in our society. You know, a school where children are taught to respect diversity and embrace difference, to work hard and to think for themselves.

That would make Rooseveld High School a very different school from Pietersburg High School in Polokwane (where I matriculated in the 1980s). There, we were told to love God and our country (which belonged only to white people as black South Africans belonged in Homelands – unless they worked for white people). We were also warned to show pride in our bodies by shaving our hair poenskop (like they did in the army), by refraining from self pleasure and by marching around in military uniforms every Wednesday in preparation for defending apartheid on “The Border” (a mythical place that was somewhere in illegally occupied Angola.

Nothing much seemed to have changed at Pietersburg High School. The present headmaster of Pietersburg High School, one DW Schoeman, earlier this year gave an astonishing speech at assembly saying that “the ethos of the school requires zero tolerance for the use of alcohol and drugs, Satanism and gay activities”.

Leaving aside for the moment the worrying fact that somebody in charge of educating children at one of the top schools in Limpopo believes in Satanism (has anyone ever seen a Satanist and is it true that they play Kurt Darren songs backward to listen to the hidden messages about skinning cats, smoking at school or kissing girls and liking it?), it is rather worrying that Mr Schoeman had not heard that section 9(3) of the Constitution prohibits unfair discrimination on any ground including sexual orientation.

Equating the use of drugs with “gay activities” displays the kind of reactionary attitude that was rife amongst teachers when I was at school there. At least one assumes it has stopped employing a nasty maths teacher called “Koorspen”, who came to class on Monday’s with a heavy hangover bragging about how he and some selected boys from the residence had gone out at night to assault black people.

All this came back to me when I read that a pupil called Luthando Nxasa was having some trouble at Rooseveld High School at the moment. According to her father she was thrown out of class after she spoke isiXhosa to a girl who sits next to her in class.  Nxasana was also allegedly prevented from writing two mid-year exams or going to the toilet, and forced to spend three school days standing in a foyer. Luthando takes up the story:

“It was a free lesson. Everyone was chatting among themselves. Even the teacher was just chatting to some other learners,” said Luthando, who sits close to the desk of her business teacher, Mrs C Venter.  Lebo sits next to me. She was worried about not completing her work. I told her to relax, she shouldn’t worry.” But then the teacher heard the conversation.  “Mrs Venter said to me: ‘Luthando, either you speak English or you get the hell out of my class.’ I stopped and looked at her and decided to take my bag and walk out.” As Luthando walked out, she confronted the teacher, telling her that the reprimand was racist. Venter then allegedly said: “You’re digging a big hole for your small little body.”

If even half of this is true (and the details of the story and the fact that a spokesperson for the school trotted out that hoary chestnut called the sub judice rule, suggests that there was some truth to this story), the school, rather than Luthando, is the one that has been digging a big hole for itself.

What is clear is that a school is prohibited from telling pupils that they cannot speak their home language at school and that they have to speak English – even in a free period where no lessons are taking place. Although the rule might apply to all pupils, the effect of the rule would be to exclude and marginalise some pupils based on their race, language or culture and would therefore unfairly discriminate against those pupils whose first language was not English.

As the Constitutional Court made clear in the Pillay case (dealing with the Hindu pupil who was prohibited from wearing a nose stud), a school had a special duty to accommodate diversity and difference (whether on the basis of their culture, race, language or sexual orientation). This meant that the school could not make rules which, while formally neutral, would enforce the basic assumptions of the dominant group at the school. (I note from the schools website that there are no African representatives on the school governing body, so I assume that the ethos of the school is still very much white and English – despite the diversity of the pupil body.)

It was also not very comforting to note that the code of conduct of the school prohibits pupils from talking to teachers unless being invited to do so. How can one actually become a thinking, reflective person if one is not allowed to speak to a teacher unless invited to do so. If this rule was actually adhered to, one would not be able to ask a teacher any questions (unless invited to do so), and will not be able to challenge a teacher – even when he or she says something racist, sexist or homophobic. This would be absurd and pedagogically disastrous.

Maybe because the school is trying to instil a Waspish reserve in it students in order for them to be able to fit in when they emigrate to the UK? The code also states that “any excessive display of affection is unacceptable”. God forbid one would want to show affection – next thing one might want to talk about one’s emotions too and that, my dear Watson, just won’t be cricket.

This case forces us to ask serious questions about the manner in which schools deal with diversity in post apartheid South Africa. Do the teachers and members of  governing bodies of former “white” schools in South Africa understand that they come to the task of teaching and running the school weighed down by many unexamined assumptions, prejudices and beliefs which – if not checked – would marginalise and alienate pupils who do not share their race, religious, cultural or language background. Do they understand that they have a special duty to review policies and codes of conduct to ensure that these are not used merely to try and force all pupils to become perfect little white, heterosexual, conformist, Englishmen or Afrikaners (who all went along with apartheid after all)?

Somehow – and not only because of the stories relayed above – I have my doubts. If my suspicions are correct, the question may be asked: what kind of society are we creating where we teach pupils that they can only get ahead if they betray their own identities and strive to become good little white, heterosexual, English speaking, Christians? Are we not creating a time bomb by promoting  insecurity and resentment that will haunt our society for decades to come?

The Windows of Heaven (and your wallets) are open!

One of the (many) reasons why I am not a fascist or a Stalinist is because I am rather worried that people might begin to think that I am a repressed and self-hating homosexual who is trying to hide his true self by embracing rightwing Christian fundamentalism. If I ever wavered in my commitment to remain a constitutional democrat and if I ever feared that I would fall into the arms of dangerous spin merchants, there will always be people like Mr Errol Naidoo (who is the director of an outfit called the “Family Policy Unit”) to keep me on the strait and narrow (no pun intended).


Mr Naidoo (see picture on the left), who has the suave charm of a Verimark infomercial presenter and the fading good looks of a celebrity contestant on Fear Factor, is a busy man. (I must confess, if we were both a bit younger and if he had been a bit more careful about his diet, I might have lusted after his body — if not his mind.)

In an email addressed to his fans entitled, “The Windows of Heaven are Open!, he informs all who wish to listen of his latest exciting escapades and thoughts (I use the latter term rather generously, of course). He informs us that he had spent an “exhilarating” two days in the Kruger National Park with his wife, Arlene (whom he refers to with suspicious regularity). “Being up close and personal with God’s awesome creation — in their natural habitat — is an experience Arlene and I will long remember,” he enthuses.

(Why he had to go to the Kruger Park – instead, say, of going to the local Shoprite in Brackenfell or to an HIV clinic in Khayelitsha – to get close to God’s awesome creation is unclear. I guess the folks who demonstrate their sincere commitment to God by donating buckets full of money to his outfit do not begrudge him this little extravagance. After all, people are dirty, troublesome, sinners who have a tendency to make fun of you, while wild animals never talk back and live in the Kruger Park – which is rather more glamorous than Brackenfell.)

But I digress. In the email, Mr Naidoo (I make no comment about the fact that his surname sounds rather similar to an Afrikaans word often used at Stag parties) has the following to say about his wheelings and dealings with politicians and about our sacred constitutional democracy:

There appears to be a growing sense amongst Christians across the country that God is giving the Body of Christ in South Africa a “window of opportunity” to rise up & impact the nation. Despite all the negative reports in the media, many Christians believe God is supernaturally removing barriers to areas of power & authority to provide access for the influence of the Church.

I noticed this shift in attitude towards the Church since the Zuma administration came to power. My submission on gambling law reform to parliament, my partnership with the Dep Minister of Home Affairs, Malusi Gigaba to ban internet pornography, and my work to inform government about the dangers of legalised prostitution, all bear witness to a more family-friendly environment.

The liberal media also appear to recognise this shift in attitude toward family values and are openly attacking government for granting access to the “rightwing Christian fundamentalists”. Several hysterical articles appeared in the media recently criticising government for talking to “shady” Christian organisations like Family Policy Institute. Apparently, groups that disagree with homosexuality and oppose abortion, pornography etc, have no right to engage government.

Read this article by so-called constitutional expert and homosexual activist, Pierre de Vos. ‘The return of fake morality’. A similar article by Tony Weaver was published in the Cape Times. When the Mbeki administration suspended South Africa’s democratic principles in 2006, to railroad same-sex “marriage” legislation through Parliament – despite massive public opposition — people like Pierre de Vos and the pro-homosexual media were conspicuously silent! Ironically, this attitude — promoted in the media — is a violation of core constitutional freedoms…..

P.S. Please forward this to a friend

As I do not like sending spam emails, but at the same time do not want people to think that I have anything against poor Mr Naidoo, I decided to reprint the sizeable section of his email above. Hey, Errol, you know what they say: “All publicity is good publicity.” (Or was that rather: “All publicity brings in the bucks?”)

However, it saddens me to note (and I do hope Mr Naidoo and his followers do not take this in the wrong way) that all that time with Gods creatures in the Kruger Park seemed to have affected Mr Naidoo’s ability to construct a rational argument. Mr Naidoo also sadly seems to have lost his memory and has forgotten that we now live in a constitutional democracy (and not in the Christian Nationalist state of the apartheid era).

He seems blissfully unaware that we now have a justiciable Bill of Rights in which the power of the state to oppress people and to discriminate against them based on their personal attributes and characteristics (like their race, sex, disability and sexual orientation) is severely limited.

In a constitutional democracy the religious views of some — and I have no reason to believe that Mr Naidoo and his lovely wife Arlene do not hold their religious views deeply and sincerely — cannot be imposed on society as a whole as this would be in fundamental breach of the rights of those who do not share these views. Sincerity and deeply held convictions do not justify unfair discrimination in a constitutional democracy.

While every person is entitled to believe what he or she wishes (one can believe, for example, that Simba the Lion King is the God Almighty, or that all homosexuals will burn in hell or, even, if one wants to stretch the point, that 300 000 believers will be whisked away to Heaven on the day of the Rapture) a person cannot get the state to force his or her beliefs down the throats of others as this would constitute a fundamental breach of our human rights. (For example, a religious group — even if it had the support of the majority — could not legitimately demand that the state ban all driving on a Sunday because the group happens to believe the Rapture would occur on a Sunday and that driving on that day would therefore cause too many accidents.)

Mr Naidoo is therefore entitled to believe that same-sex marriage is just as evil as child abuse or women’s liberation — as the leadership of the Catholic Church seem to do, at least about women’s liberation — but he cannot require the state to enforce that belief by banning same-sex marriage. If he wanted the state to ban same-sex marriage or to force women to stay barefoot and pregnant in the kitchen, he is of course free to emigrate to Saudi Arabia. (I hear Iran also has lovely game parks and rather strict laws on homosexuality — although I am not sure whether they will embrace emigration by right wing Christians.)

He is free to believe what he wants, to preach what he wants and to even practice what he preaches (the latter being a rare occurrence in the overtly pious — at least in my experience). And in the unlikely event that, like many Evangelists in the USA, his animosity towards homosexuals is fuelled by a secret desire to have sexual relations with members of the same sex, he is even free to divorce his wife and marry another man — although he will have to go on a diet, radically revise his beliefs, and read a few satyrical novels before I would seriously consider his marriage proposal.

The claim by Mr Naidoo that the “core constitutional freedoms” have been breached by the adoption of same-sex marriage laws can only be sustained if one believed that freedom had nothing to do with freedom at all, and hence that freedom was completely divorced from the notion that people had a right to live their lives free from hatred and discrimination. His view of “constitutional freedoms” would require one to endorse the idea that the state had a right to enforce the views of some on society as a whole.

Such a society would not be free, of course, and neither would it be a substantive democracy. In such a society the only people who would have “core constitutional freedoms” would be those who wielded power and could therefore ensure that their beliefs were enforced through the barrel of a gun and through torture (perhaps by forcing people to listen to Gospel music played backwards), imprisonment or campaigns of social vilification. Such a society would be one in which the human dignity of almost all people would be flagrantly disrespected and would be decidedly undemocratic (a bit like Texas without the big hats, the funny accents, the Hummers and the occasional election).

PS: This post must be read in the same spirit in which Umberto Eco wrote his novel, The Name of the Rose. In this novel a Franciscan Friar discovers that Monks are being poisoned in a monastery when they read humorous books because some members of the church hierarchy believe that laughter is the antidote to fear and that if one stopped fearing one might also stop believing in God. As Wikipedia explains: “As the plot unfolds, several other people mysteriously die. The protagonists explore a labyrinthine medieval library, the subversive power of laughter, and come face to face with the Inquisition. It is left primarily to [the main protagonist] William’s enormous powers of logic and deduction to solve the mysteries of the abbey.”

The return of fake morality?

Because my parents were members of the Dutch Reformed Church, I had to attend the church service and Sunday school every week. What fun! The dominee (minister), speaking in the ridiculously pretentious accent learnt at the kweekskool (seminary), usually warned in apocalyptic terms against the evils of sex before marriage (or sex with an Engelse meisie or a black woman – after marriage), Satanism, masturbation, homosexuality and the twin evils of communism and majority rule.

Sometimes the dominee also warned us that one had to pay at least one tenth of one’s income to the church to demonstrate one’s love for Jesus our Lord. (Loving Jesus was not too difficult for me, as the pictures in my Children’s Bible of a semi-naked Jesus on the cross, his six pack rippling, his long blonde hair styled in the way that was so popular amongst hairdressers in Benoni and Brakpan in the nineteen seventies, was almost as sexy as the adverts for Jockey underpants in Huisgenoot.

The Dutch Reformed Church, whose dominees almost all belonged to the secret and shadowy Afrikaner Broederbond, was all-powerful – the National Party at prayer – and played a pivotal role in legitimising and defending apartheid. It also ensured that a narrow, bigoted, morality was enforced on society as a whole: there was no movies or sport allowed on a Sunday and even at the Hennenman swimming pool (which was only open from 2-5 pm on a Sunday) one was not allowed to dive from the diving board on a Sunday out of respect for the Church and perhaps even for God.

After 1994, Afrikaans Churches pretty much lost their moral authority as more and more white Afrikaners faced up to the fact that the church had supported an evil and immoral system under the guise of high moral principle. In 1998, staying at the Parktonian Hotel in Braamfontein, I was therefore not surprised when I looked out of my hotel window across the street and spotted the face brick Dutch Reformed Church, now all boarded up with a huge “For Sale” sign in the front.

The church and its particular brand of bigoted and racist moralism had become truly bankrupt and was now completely delegitimised. From now on, I thought, we will look towards the Constitution as a guide for ethical living – not towards any church or the teachings of some odd men in Penguin suits.

But in the moral universe of President Jacob Zuma (in which it is perfectly acceptable to take more than a million Rand from a crook, to do favours for that crook and then to submit a fake loan agreement to Parliament to cover up your tracks) and some (but luckily by far not all) of the members of the ANC, churches and a particular brand of narrow minded and bigoted morality is making a comeback. Hey, in this world, it is ok to steal other people’s money and to be corrupt – as long as one prays to God and hates homosexuals and woman equally.

Recently the shadowy and far-rightwing group called the Family Policy Institute (FPI) teamed up with the Film and Publications Board (the predecessor of the censor board who, under the guidance of the Dutch Reformed Church, “protected” apartheid South Africa from the “immorality” of being shown woman’s naked breasts and the “dangers” of the speeches of Nelson Mandela and Oliver Thambo) to hold a seminar warning against the so called dangers of pornography.  

This was not, let’s be kind, an event where scientific or academically plausible research was shared or discussed: it was a progapaganda exercise promoting narrow and very particular religious views.

For some scary entertainment on the laughable and unfounded views of the FPI, one can peruse their website which warns that pornography destroys the human soul (if one can find the soul at all) and morality (as defined by some people who believe that if we only fear a god we cannot see and whose existence we cannot prove we will all live happily ever after in a heaven where we will all love each other, sing Kumbaja while holding hands, before retiring to bed to recite Amore Vittone songs backwards to make us go to sleep). The document also warns that pornography is so strong and evil that it destroys marriages (the heterosexual and non-polygamous kind, of course) and also causes poverty and corruption. (Well I lied about the poverty and corruption, but you get the drift.)

The fact that a state body like the Film and Publication Board, with the assistance and support of the Deputy Minister of Home Affairs, teamed up with a very reactionary, homophobic, anti-abortion, religious group, is truly shocking as it sends a signal that a state institution has chosen sides against the values of openness, respect for difference, freedom of religion and opinion and human dignity ensrined in the Constitution.

It suggests the Department of Home Affairs and the Film and Publication Board have decided to endorse the mad ramblings of a reactionary group who feigns interest in saving our soul while eying our wallets. What do all the many strong and progressive woman and men in the ANC think of this, I wonder?

Another such scary group now gaining in influence amongst members of the new elite in the Eastern Cape is an outfit called the “Godly Governance Network” (lovely name, not such lovely people). In an email advertising its “prayer focus” for the next two months, the Network states:

Repent before the Lord for the sexual immorality and adultery that is filling our Province resulting in unwanted pregnancies (and often abortion), break up of marriages and the rapid spread of HIV/Aids.  Repent on behalf of the government’s policies that have encouraged this…..

Pray for the re-education of this generation on family values according to the Word of God, i.e. a man shall be a husband of one wife (Titus 1:6); sex outside of marriage is sin (Hebrews 13:4); homosexuality is sin (1 Cor 6:9); divorce is not God’s will(Mark 10:6-12); husbands should love their wives (Eph 5:25,28); wives should respect and honour their husbands as head of the home (Eph 5:22-23, 1 Pet 3:1); children should honour and obey their parents ( Ex 20:12; Col 3:22)

The Network is also trying to resist the teaching of evolution in schools and argues that evolution is “Satanic”. These people are crackpots of the first order and they make those omies of the Dutch Reformed Church almost look kind and reasonable. In one of their “Concept Documents”, published in 2008, they write:

Hence most organizations and political parties, from the recently liberated countries find themselves controlled and manipulated to implement the secret agenda of the New Age Movement by adopting constitutional models and systems of government that are aimed at installing the fascist Luciferian World Order and Government. South Africa, the African National Congress and other parities are not immune to this global conspiracy. It is not a surprise to discover that most of its social and economic transformation policies and legislative framework are so alien and foreign to the general citizens of the country. The agenda is to control and manipulate people to adopt Illuminati Policy Agenda through a centralized system of government.

Of course, section 15 of the Constitution guarantees for everyone the right to make a fool of him or herself and proudly to display his or her ignorance and bigotry for all to see. Well, that is not exactly what section 15 states:  it says that everyone has the right to freedom of conscience, religion, thought, belief and opinion – but you get the drift.

While people have a right to hold religious views, no matter how scary or hateful (just as they have the right to believe that religion is a lot of codswallop), it becomes rather troubling when religious groups like those mentioned above attack the very basis of our democracy: the Constitution. Even more troubling is the fact that they seem to have some official sanction from elements in the government. If these people were journalists they would long since have been arrested.  The Constitutional Court has made clear that the right to freedom of religion prohibits the state from enforcing the religious views of some onto society as whole. But that is exactly what the groups mentioned above is agitating for.

Why is it then that in the email I received from the Godly Governance Network, I am told I can contact the Eastern Cape Legislature where the Speaker’s Office will assist me with information about a prayer service conducted in the legislature every Thursday between 4:30 to 6:00 in the Speaker’s Conference Room? Surely, no self-respecting ANC MP would want to be associated with these crackpots? 

Or are we seeing a gradual move back to the pre-democracy era where the government of the day, trying to regain some of the legitimacy it has lost through its immoral and greedy actions, endorses censorship of the press and embraces ever more reactionary religious groups in the hope that ordinary people will be blinded by a misguided moral righteousness and will therefore forget that they are suffering because of the actions of incompetent or corrupt government officials?

How long before Ministers (of the church and of the government) starts warning us again the evils of homosexuality, Satanism and masturbation? How long before a woman’s right to choose to have an abortion is taken away and pictures of naked women and men are banned – along with novels like Lolita, Lady Chatterleys Lover and Chinua Achebe’s When Things Fall Apart? Is this not the way that government’s go when they run out of ideas and have to admit that they are incapable of creating a better life for all?