My friend was incensed: “Why,” he wanted to know, “is the Afrikaanse Protestantse Kerk (APK) allowed to discriminate against black people?” Last Friday, at the funeral of Eugene Terreblanche, much was made of the fact that some black journalists and observers were allowed into the APK. This is because the APK is a whites only church and usually does not allow black people inside the church – at least not during the sermon.
“The Constitution and the Equality Act surely prohibits such discrimination,” my friend continued. “Why is Afriforum not making a noise about this? Why does it not lodge a complaint with the Equality Court against the Church to challenge its policy of racial discrimination? Afriforum claims to be so worried about discrimination so it should do something about this!”
Maybe, I explained, it was because such an action – by Afriforum or anyone else – would have no chance of success. The Equality Court will reject the complaint because the right to freedom of religion will trump the right to equality. In equality matters one must weigh up the purpose of the discrimination against the effect that the discrimination would have on the human dignity of those who are being discriminated against.
Here the purpose of the discrimination is to protect the freedom of religion of the weirdo’s who belong to the APK. They believe that God had separated blacks and whites and should pray separately and the purpose of the discrimination is to give effect to that belief. (I am not sure whether they also believe there is one heaven for whites and one for blacks. How would that work in any case?)
On the other hand, it could be argued that the effect of the discrimination would not be particularly egregious as there are many churches where black and white can pray together and black people would probably not feel very welcome in a church that believes that God was really a big fan of apartheid. Banning blacks from the APK therefore does not present such a fundamental affront to the human dignity of black South Africans that it should trump the freedom of religion of the APK.
“But that does not make sense at all,” retorted my friend. “The Constitutional Court found that Rastafarians were not allowed to smoke dagga, despite the fact that this is a central tenet of their religion. To ban them from smoking dagga discriminates against them in the most fundamental way. Besides, the smoking of dagga is probably far less harmful than the effects of racial discrimination. We live in South Africa, after all, and one can buy dagga on every street corner in the city centre of Cape Town.”
I explained that he was confused. In the case of the APK discrimination the question is whether the APK can discriminate against black people. In the Rastafarian case the question was really whether the state can discriminate against Rastafarians. The Court in effect found that it could (although it decided the case on the basis of freedom of religion, not on the basis of equality) because the purpose of the discrimination was so important that it trumped the freedom of religion of Rastafarians. The ban on dagga keeps us all safe from the evils of drug abuse and thus trumps the right to freedom of religion. At least that is what a majority of the judges of the Constitutional Court believed.
My friend was not impressed. “The Equality Act bans discrimination on the basis of race in the same way that the law bans the use of dagga. Are you saying it is ok for the state to discriminate against a religion when the adherents of that religion are mostly black, but its not ok for the state to discriminate against a religion to enforce racial equality when the religion is exclusively for whites?”
Good question, I had to agree. But the use of dagga is a criminal offense and while racial discrimination is prohibited by the Equality Act, it is not a criminal offense to discriminate against anyone. Maybe that’s the difference between the two religions – the practices of the one religion is a criminal offense while the practices of the other is only illegal and enforced not in the criminal court but by the Equality Court. Or maybe both the state and our Courts just think that the use of dagga is far more dangerous and harmful for our society than the racial discrimination by a private institution who happens to be a church.
“Are you kidding?” my friend wanted to know, his voice rising a notch as it always does when he gets excited. “More people are addicted to alcohol than to dagga and far more people crash cars and kill people in accidents when they are drunk than when they are high, so dagga cannot be that dangerous. Given our apartheid past and given what I saw on TV of the Terreblanche funeral, racism and discrimination is far more of a problem in our society than the use of dagga.”
Well, I explained, maybe this also has something to do with the separation of powers doctrine. If the state explicitly banned religious groups from discriminating against anyone then maybe the courts will agree that such a ban was constitutional. But then I realized I was talking rubbish. The state will never force the catholic church to open up the priesthood to women. Neither would it ever pass a law that would force churches, mosques or synagogues to abandoned their homophobia and to marry same-sex couples.
“So,” said my friend gleefully, “what you are saying is that the state is too scared of the established religions and of people in the APK to ban their religious practices, but because the Rasta’s are such a small and powerless group the state has no problem with banning one of the central practices of their religion!”
Don’t ask me, I told my friend. Ask the Constitutional Court and the members of Parliament why they do not ban the APK from discriminating against black people or why they do not make an exception to allow Rastafarians to use dagga.
My friend laughed. “I wonder what the APK position is on men sleeping with young black men? They are probably not too keen on that.”
Luckily, I am not planning to visit my local APK anytime soon to find out, I told my friend.
Prof, you say “…the practices of the one religion is a criminal offense while the practices of the other is only illegal..”. Could you perhaps explain when does an illegal activity or action become a criminal one? My immediate (legally uninformed) mind says illegal = criminal.
Many of us have heard the story of the reverend coming into the APK, finding a Black man on his knees. “What do you think you are doing” he shouts. “I’m washing the floor” comes the reply. “Oh I’m sorry, please proceed, I thought you were praying.”
I don’t know much about the APK, but the are not the only institution who is allowed to discriminate, and also not the only religious orginisation who does so. Think of churhes where only men may become priests. Even the fact that a man cannot be a nun is a form of discrimination. Whites are excluded from membership to numerous institutions and organisations in South Africa. Until not so long ago Whites were not allowed membership of the ANC.
As a matter of interest, why do the APK say they don’t allow Black people to attend services? Do they use religious or cultural grounds?
Hi Pierre
The concourt, although it often gives the impression of omnipotence and infallibility, is not if some of its judgements are anything to go by. You see they in fact do not have the power to allow rastas to smoke ganja. This is because we are signatories to international conventions controlling the use and trafficking of narcotics and related substances and are legally obliged to conform to these legal strictures.
It appears as if the concourt is not even aware of such binding requirements on our government.
Graham, you are mistaken. See this extract from the minority judgement of Ngcobo J (as he then was):
[72] The relevant international instruments are the Single Convention on Narcotic Drugs, 1961 as amended by the 1972 Protocol; the Convention on Psychotropic Substances, 1971;76 and the Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988. In terms of article 36(1)(a) of the Single Convention, the criminalisation of the listed forms of conduct must take place subject to each Party’s “constitutional limitations”. Thus, if under our Constitution an exemption for the religious use of cannabis is required, such an exemption would not fall foul of the Single Convention as the implementation of the provisions of the Convention are subject to our Constitution. Similarly, the implementation of the 1988 Convention is made subject to the “constitutional principles” of each Party. It follows that these international conventions are no bar to an exemption that may be required by our Constitution.
Just an observation…….but why, when there was a suspicion about of sodomy in the ET case did they always show him riding a “black horse”. Just asking…
I think it is not only the right of freedom of religion, belief and opinion that can be invoked by the APK to trump the right to equality here, but also the right of freedom of association. In fact, all the rights contained in ss 14-19 of the Constitution could be invoked together and relied on simultaneously to trump the right to equality here.
But, I think, the thing is much simpler to reslove – as also made out by Prof De Vos as an aside – “On the other hand, it could be argued that the effect of the discrimination would not be particularly egregious as there are many churches where black and white can pray together and black people would probably not feel very welcome in a church that believes that God was really a big fan of apartheid.”
Is there really an infringement of the right to equality if the APK reserves presence in their sermons for whites only? If there is, then the person claiming the right must show that his/her right to equality is infringed. Would Barack Obama want to join the Ku Klux Klan? I think not. Quite clearly, therefore, a black South African will also not feel welcome in a religion that excludes blacks from participating. So why would a black person want to associate him- or herself with a religion that excludes him/her? Why would a black person want to pray and congregate with a congregation that believes he/she is inferior and cannot participate in he APK’s sermons? To enjoy a right, one must claim it, and I doubt whether a black person could justify wanting to join (or attend a sermon in) the APK, other than for ulterior motives. So, there is no right that is infringed in the process. Discrimination per se does not infringe the right to equality – it is only where the effect of the discrimination is truly felt and resented that such a right is infringed.
While I do not subscribe to the belief of the APK (or any of the so-called Drie Susters-Kerke from which the APK split), or worse, the Suidlanders, the Oranje Werkers or the Israel Visie, they have just as much right under the Constitution as I to pray to the God they choose, in a way that they choose. (My belief that they are all dead-wrong to exclude others from Christianity is left aside here.) I mean, it is not allowed for a Non-Hindu to even enter a Hhindu Shrine or Temple. However, why would I, a devote Christian, even want to do so? So, my right to equality is not infringed because Ii do not want to claim that right in the particular circumstance.
Pierre, you make a good and valid point and I defer to your better law knowledge on the subject. I wonder, however, if allowing rastas to do their ganja thing wouldn’t have elicited other problems from groups or individuals who may claim unfair discrimination and also want to partake of this or any other substance based on some arbitrary criterion such as for medicinal purposes or it being part of some religious or other ritual?
This is of course probably academic as the rasta precedent has already been set. It would be difficult therefore for me to claim that I should be entitled to use mescaline, chew peyote or whatever to round off some obscure ritual.
I do however believe that the concourt should in fact not be dabbling in such issues as it would seem to be getting a bit close to violating the separation of powers principle. A good example of this in my view was when the concourt interfered in public health policy by instructing the the Health department to dish out nevirapine after having been harangued by the TAC to do so. The correct approach should have been for the TAC lobby to have voted out a government whose policies they disagree with and voted in one that would do their bidding – not run off to a court to pressure the government to act in a way that serves their particular interest – perhaps even at the expense of a broader public interest. It may only be a matter of time before arthritics, asthmatics, diabetics and TB sufferers are agitating for a similar dispensation.
Anonymouse says:
April 16, 2010 at 10:12 am
“I mean, it is not allowed for a Non-Hindu to even enter a Hhindu Shrine or Temple.”
huh????
There’s no such thing!
I find that seriously offensive.
Maggs Naidu says:
April 16, 2010 at 10:23 am
Sorry Maggs – that is what my party and I have been told last time we were in Nepal en route to Mt Everest – not that I wanted to enter such temples, but some of those accom[anying me wanted to, especially the Temple of Shiva. However, if that information was wrong, I appologise for offending you (and other Hindu’s. I was merely trying to make a point, which I think I have succeeded in doing, albeit using a wrong example.
Anonymouse said: Quite clearly, therefore, a black South African will also not feel welcome in a religion that excludes blacks from participating. So why would a black person want to associate him- or herself with a religion that excludes him/her? Why would a black person want to pray and congregate with a congregation that believes he/she is inferior and cannot participate in he APK’s sermons? To enjoy a right, one must claim it, and I doubt whether a black person could justify wanting to join (or attend a sermon in) the APK, other than for ulterior motives. So, there is no right that is infringed in the process. Discrimination per se does not infringe the right to equality – it is only where the effect of the discrimination is truly felt and resented that such a right is infringed.
______________________________________________________________
Your statement could be untrue Anonymouse: Piet Dlamini might want to join them.
http://www.iol.co.za/index.php?set_id=1&click_id=13&art_id=vn20100414123803808C186545
Grouch Marx once commented that he would not join any club that would be willing to admit hiom as a member.
With a slight twist, the same logic applies here, where no reasonable black person should want to join a church that did not want to have black people as members. If it was the only church in a district, then it might be a slightly different matter.
And in the Pricne case, it is clear that if the discrimination by the state did not take place, then harm would be visited upon large segments of society by virtue of the increased difficulty involved in policing the use and distribution of dagga.
Thomas says:
April 16, 2010 at 10:39 am
I just have reason to suspect that Piet is a mental case.
Anonymouse says:
April 16, 2010 at 10:37 am
Hey Mouse,
My partner who is Christian, said she encountered that particular “temple” when she was in Nepal some years ago – she entered it anyway without any hassle maybe because she looked Hindu.
That, I can assure you is the exception.
There are practical and social limitations typically, like not wearing shoes, being dressed appropriately, no meat or alcohol (in most instances), speaking respectfully and so forth.
Otherwise Hindu temples are open places with very few restrictions or constraints.
Hinduism is agnostic.
Thomas says:
April 16, 2010 at 10:39 am
Ex Africa semper aliquid novi
Chris says:
April 16, 2010 at 11:13 am
Pretty good Latin Bro! Doc Van der Merwe would have been very proud had you been one of his students at Justicce College.
Prof,
Does it mean that the law though it’s supposed to be blind in this instance it is seriously subjectively aware of the implications of it’s bias due to the fact that the custodians of the law are themselves seriously prejudiced as they are constrained by the environment in which they operate in and thus cannot divorce themselves completely from it’s dictates?
Seems like black people should not worry so much about the APK, the AWB or people wearing Khaki (aka ‘Boers’), but bald-headed weirdos – fixating on the figures 88 and 14 and white supremacy. http://www.news24.com/World/News/Man-gets-10-years-for-Obama-plot-20100416
Well, some South African religions come close to that – go visit the websites of the Suidlanders, the Israel Visie and the likes.
“Agents in our social interplay deliberately or unwittingly overplay racism as a polarising issue to obscure the simmering struggle for social justice, spawned by unequal ownership or access to resources. The state machinery has done little to protect farm workers.”
http://www.sowetan.co.za/News/Article.aspx?id=1132497
Maggs, since you quote that piece from the Sowetan, it occurs to be that it is not only Brett that has been a little cagey with numbers. Do you have figures on how many farm workers are killed by farmers per annum?
Maggs: Hinduism is certainly not agnostic.
Agnostic definition as follows:
a. One who believes that it is impossible to know whether there is a God.
b. One who is skeptical about the existence of God but does not profess true atheism.
Hinduism embraces many forms of God, the one within many, and with many attributes. They firmly believe that God can be personally experienced through the practices of Yoga and subsequent enlightenment, though it takes many lifetimes to achieve. Read the Bhâgavata Purâna, and if you have a few years of leisure time available, try the Mahabharata.
Anonymouse, I think one has to be careful to argue that freedom of assiciation will trump the right to equality and to conclude that where a private institution discriminates this will have no effect on those excluded. For example, where a golf club excludes women this may have serious effects for women as business deals and friendships that allow for advancement are often forged on the golf course. If some colleagues have a book club and they only invite white collegues to join this can be problematic because affairs of the work might be discussed there and alliances forged that might give members of the bookclub an unfair advantage in promotions etc. In some instances the exclusion of s certain group will only be symbolic, but this will not mean that it might not have negative effects on those who are excluded. For example, if a old age home prohibits any gay men and lesbians from staying there, one might well argue that this would not have an effect on gay men and lesbians as they would not want to saty in a place where people are so homophobic. But the effect of such a rule would be to send a signal and to reinforce the idea that there is somethingw rong with gay men and lesbians. This could leave the targeted group with pshycological scars and might help to keep in place the heteronormative system which institutionalises discrimination on the basis of sexual orientation. So I am saying it is not so easy to distinguish between “harmful” and “non-harmful” discrimination. Almost all discrimination against a group that is marginalised or disempowered would be harmful in some way – its just a matter of degree.
Michael Osborne says:
April 16, 2010 at 13:07 pm
Hey Micheal,
There are no stats in the quote or the article – “a little cagey with numbers” does no justice to it.
Nevertheless there’s merit in your question, it would be an interesting study and certainly worth trying to establish what the extent of the problem is.
Pierre De Vos says:
April 16, 2010 at 13:30 pm
Agreed on the argument pertaining to the right of freedom of association – but, my observation above was not that such a right alone would be able to trump the right to equality. Only that such a right can be invoked alongside and in addition to the right of freedom of religion.
I also agree that it is not easy to distinguish between “harmful” and “non-harmful” discrimination, especially in one or two of the examples you give (the one of the book club excluded, as I do not agree). However, the point that I want to make is that the right to equality does not exist in the abstract – one would have to show that, at the very least, the discrimination involved holds the potential of being harmful. So, if a black person can say that he has a very real interest in attending an APK sermon (like the case with the black jouratists at ET’s funeral service – and, I suppose the guy referred to in the article linked by Thomas above and, perhaps, also a black policeman who want’s to make sure that no acts of treason are committed during such a sermon), refusing him/her the right of attendance of a church sermon would be ndiscriminating – and, in such a case, the right to equality would most probably trump the other rights. But, if such a black person cannot show any real interest in attending the sermon, he/she has no interest at all, and no right is being infringed. As you say – it might all just be a matter of degree – but I still think that black people would have a very hard time in convincing a court that their general exclusion from APK sermons is unconstitutional.
Pierre, a black friend of mine was not invited to a southern suburbs dinner party thrown by some office colleagues He is he sure was excluded because he is black. Can he sue the liberal bustards?
sirjay jonson says:
April 16, 2010 at 13:15 pm
With great respect, you’re not in a position to define what Hinduism is (neither am I by the way – I take it from the perspective that Hinduism means to individuals what each of us define it to be).
Here’s definitions of agnostic that I prefer to yours :
“1. a person who holds that the existence of the ultimate cause, as God, and the essential nature of things are unknown and unknowable, or that human knowledge is limited to experience.
2. a person who denies or doubts the possibility of ultimate knowledge in some area of study.”
You say “Hinduism embraces many forms of God, the one within many, and with many attributes.”
Maybe. However all the Hindus I know are either atheist (like me) or monotheist. I haven’t come across anyone who “embraces many forms of God” – but maybe there are those.
Buddhism, as you know, has its roots in Hinduism and is essentially atheist.
Some people will achieve enlightenment through yoga, some through study, some through service, some through drinking, some through, some through being “all knowing”, some through sport and and and – like I said earlier, to each his own.
@ Maggs
“Hinduism means to individuals what each of us define it to be”
If a word is utterly subjective — has no conventionally agreed objective referent — it loses its utility as a medium of communication.
(A bit like Gwebe’s use of the word “African.”)
Michael Osborne says:
April 16, 2010 at 14:50 pm
“If a word is utterly subjective — has no conventionally agreed objective referent — it loses its utility as a medium of communication.”
Maybe.
John Edwards to the rescue!
Maggs Naidu says:
April 16, 2010 at 15:01 pm
Michael Osborne says:
April 16, 2010 at 14:50 pm
“If a word is utterly subjective — has no conventionally agreed objective referent — it loses its utility as a medium of communication.”
This sorta reminds me of our legal system.
Take our CC for example.
Eleven extremely learned judges, all listening to the same matter, reading the same papers, basing that on the same constitution and everything else that goes with it.
Often they arrive at different conclusions, sometimes even where they agree they disagree on how they got there.
And when they disagree it’s like they were in different rooms with different matters entirely or they disagree for different reasons or they find differently for the same reasons.
Now expand the eleven to a billion or so, each with a different set of experiences and the complexity of “utterly subjective” becomes clear as mud!
Well actually Maggs, and with equal respect. I Am!
sirjay jonson says:
April 16, 2010 at 16:16 pm
“Well actually Maggs, and with equal respect. I Am!”
Whatever!
Anonymouse says:
April 16, 2010 at 11:30 am
I’ve never been in Doc’s Latin class, but I was one of his Law of Delict students, where I heard that those who can’t speak Latin are just learned barbarians.
@ Chris
“… those who can’t speak Latin are just learned barbarians.”
LOL!
I was at first fascinated by the idea of speaking Latin. However, in his book, Criminal Law, 3rd Edition (I think), Prof. Snyman argued convincingly that Latin is losing ground in our legal system and therefore he has tried in his book as much as possible to avoid using Latin terms unless neccessary. I was doing my first year towards an LLB degree then.
All cultures feel a uniqueness about their own, their aspirations and their familial selves. Its not apartheid to feel a collective pride. We’re so sensitive to this in SA, as though its threatening, whereas it could be empowering with a shift in perception. Far better to recognize and accept each other as each of us a part of a unique collective interacting with other collectives, as well as individually, eliminating all barriers.
There are a few countries in the world who celebrate their different cultures even to the point of government financial support to strengthen cultural roles and participation in nation building; some, like myself actually relish this diversity.
For some in SA the variety of cultures in one’s face all the time is a joy, and actually amazing, pity all don’t feel this way. Those who qualilfy themselves as people watchers get such bliss from the panopy SA produces. What a hoot!
Anything a government can do to increase pride in all its citizens’ heritage and customs (apart from crime and cruelty) advances a country when combined with the acceptance that we all are different, each of us as unique as a snowflake, and each culture as unique as its history dictates. Who can question that we all have the same desires, want the same things, love, safety, family, friendship, advancement.
Perhaps the story of the Tower of Babel, so important in SA’s dogmatic history, doesn’t illustrate so much the Almighty’s desire for separateness, as a desire for variety. Does the rose have thorns to protect itself from other flowers?
I love my gardens precisely for the variety which resides within them.
Sine says:
April 16, 2010 at 17:21 pm
Latin will be around for as long as life continues, as classic a language as Sanskrit, the mother of many tongues, which is even older than Latin.
Much like classical music Latin will always have it roots in our lives, whether we know it, practice it, or even be aware of it due to inferior education. As for it’s alignment to law, it’s demise can only unfold if common law itself expires, far too much history and precedent. And not to know it in law is to be disadvantaged, certainly in our lifetime.
Ironically Sine: its one of the easiest languages to learn and so pleasant to the ear.
Well its Friday night, all you posters partying. As an elder, I’m pursuing. See herewith something of value, recalling that someone mentioned Gandhi recently:
“Seven Blunders of the World” (Seems to apply to SA)
1. Wealth without work
2. Pleasure without conscience
3. Knowledge without character
4. Commerce without morality
5. Science without humanity
6. Worship without sacrifice
7. Politics without principle
—Mahatma Gandhi
@ Sirjay
“And not to know it in law is to be disadvantaged, certainly in our lifetime.”
LOL! Nice one to brighten my day…
Sine: Latin, in and with respect to law, is as metric is to science. Thanks for your comment. Also LOL.
I hate all this talk of rights trumping rights. As I understand it, sources of law and not the substantive content of a Bill of Rights should be the only things that can be described as trumping each other.
Having said that, Pierre has a long history of claiming that religious rights will triumph, but I can only think of a few Afrikaans, patriarchical judges to support that assertion. For example, the young music teacher who was sacked when his sexuality was uncovered. He won his case because his employment was as a music teacher and so the church was told his sexuality was none of their business. The beat the children coz it say so in the bible bragade were clearly told that beating children is not a central tenet of their religious practise, so they could not regard it as protective of their child abuse.
Do you see what I am getting at here? The Courts are systematically distinguishing the complained of behaviour from religion and so no allege clash occurs.
I know there was an extremely bad decision from Van Dijkhorst many years ago in relation to a young girl who refused to attend religious instruction classes and so the school (a German school I think) kicked her out. I say that was a bad decision because he claimed that when the mother signed up the child she also signed away the child’s right to not practise a religion. It would need to be that type of warped logic that could claim that a church could employ a pro-Apartheid door policy.
I see no reason at all why any crazy black person who would want to go into that quite dreadful church (perhaps that rather peculiar AWB Zulu I’ve seen in the City Press) would not succeed in arguing that the discrimination is unconstitutional. I would hazard that the congregation would be hard pressed to show that any Christian activities went on in that place at all, so the case may be even easier than I think.
Mpho, i will make a substantial bet that you are wrong. The CC has stated that there has to be a “reasonable accommodation” of religious beliefs and practices. The cases you mention are distinguishable. The gay organist won his case because he was not employed in a religious capacity but to play the organ. His sexual orientation thus had no bearing on the ability of the church to hold and practice its religion as it sees fit. The Christian Education case turned on the fact that the ban on corporal punishment did not prohibit any church from holding or practicing their religious beliefs IN CHURCH and Sachs made much of the fact that parents would retain the right to use corporal punishment at home if that accorded with their religious views. Where a church claims that a particular belief of practice is central to that religion (as the APK would surely do) the Court will not get involved in questions about the correctness of this view and will defer to the church unless extraordinary reasons demand otherwise (such reasons would include the fact that the practice is a criminal offense). No SA court will order the Catholic Church to open the priesthood to women or gays as that is a central part of the Catholic religion and despite the discrimination involved a reasonable accommodation of the practice would require that this practice be respected. In the same manner the APK will argue its racism is central to its religion and will probably be allowed to continue. If you want to take a bet on this I would be happy to do so.
Pierre De Vos says:
April 23, 2010 at 16:19 pm
“The gay organist won his case because he was not employed in a religious capacity but to play the organ.”
?????