As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
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.BACK TO TOP