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.
The African Christian Democratic Party (ACDP) expressed concern this week about what it calls “blasphemous” artworks created by a matric pupil at a Richards Bay school. The Freedom Front Plus similarly objected to the work, while a parent at the school described the exhibition as “demonical”. The ACDP claimed in a statement that the right to freedom of religion includes the right of Christians to “have their faith respected”. However, the truth is that the Constitution does not protect the right to have your faith (or lack of faith) respected and the common law crime of blasphemy is obviously unconstitutional.
Curiously, in theory at least, blasphemy remains a crime in South Africa. Blasphemy is a common law offencedefined as “unlawfully, intentionally and publicly acting contemptuously towards God.” It seems the God referred to is a Christian God and that blasphemy only applies to the Christian religion.
In 1962 the police confiscated a painting done by artist Harold Rubin. Rubin was then prosecuted for blasphemy for exhibiting the painting. According to the Sunday Times of 29 July 1962 the painting depicted a naked crucified Christ “with his head thrown back in agony, tortured limbs and gaping mouth revealing a swollen and blackened tongue” – like the head of an animal or some monster. Rubin was acquitted in 1963, apparently because such depictions were common in literature and art and the state could thus not prove that Mr Rubin had the intention to blaspheme.
The last known prosecution for blasphemy occurred in 1968 when Christopher Pritchard, the then editor of Varsity (the University of Cape Town student newspaper), was prosecuted for publishing a report of a symposium on the topic “Is God Dead?”. The report quoted another student stating: “The question of God’s existence is as irrelevant as the sex of angels…. Even if God does exist, it is necessary to reject him. God is not dead- it is only that he is beginning to stink”. Pritchard was convicted, but at sentencing received only a caution and discharge.
Of course, the apartheid state also banned many books found to be “blasphemous”. In terms of section 47(2)(b) of the Publications Act of 1974, a book could be banned if it was found to be blasphemous or “offensive to the religious convictions or feelings of any section of the inhabitants of the Republic”.
As now retired Constitutional Court justice Johann van der Westhuizen noted in an article published in 1994, the apartheid censors banned films such as The Last Temptation of Christ and books such as Salman Rushdie’s The Satanic Verses and Andre Brink’s Kennis van die Aand, on grounds that the books contained blasphemy. Van der Westhuizen also points out that:
numerous scenes and especially pieces of dialogue (such as exclamations of “Jesus” and “Christ”) were excised from films and plays by the Publications Appeal Board or Publications Committees, in spite of claims that a restrictive interpretation was given to the concept of “offensiveness”.
There has been very few prosecutions for blasphemy in South Africa and – as far as I can tell – none after the Constitution came into effect in 1994. Our courts have therefore not had the opportunity to consider the constitutionality of the crime. I have no doubt that if such an opportunity arose, the court will declare the crime of blasphemy to be unconstitutional. It would similarly be inconceivable that the provisions of the 1974 Publications Act would today pass constitutional muster.
This is so not because – as some commentators claim – South Africa is a “secular state”, but rather because it would be in conflict with the right to freedom of religion as well as the right to freedom of expression protected in the Bill of Rights. In fact, the claim that South Africa is a “secular state”, is at best an oversimplification. It would be more accurate to claim that South Africa is a state in which religious diversity is respected and in which everyone is protected from being coerced to act contrary to their beliefs.
The preamble to the South African Constitution already signals that it does not strive to banish religion entirely from the public sphere, as it concludes as follows:
May God protect our people.
Nkosi Sikelel’ iAfrika. Morena boloka setjhaba sa heso.
God seën Suid-Afrika. God bless South Africa.
Mudzimu fhatutshedza Afurika. Hosi katekisa Afrika.
Moreover, section 15(2) of the Constitution provides that religious observances may be conducted at state or state-aided institutions, provided that this is done in terms of pre-announced rules, it is conducted on an equitable basis, and attendance at them is free and voluntary. The primary purpose of this provision is to ensure that schools and other state institutions respect and accommodate diverse forms of religious and non-religious beliefs. This is why the Gauteng High Court held in 2017 that it is unconstitutional for a state-aided school to embody a “Christian ethos”.
Perhaps because the Constitution does not demand an absolute separation between religion and the state, some Christians wrongly believe that they are constitutionally entitled to have their faith respected and protected from criticism or what they interpret as insults. This is perhaps why the ACDP and others argued that the so called “blasphemous artworks” infringe on their right to freedom of religion.
The artworks of the matric learner from Richards Bay include sculptures of heads with horns, Paper Mache using Bible pages and a painting which referenced The Last Supper. Unlike, say, some of the Charlie Hebdo cartoons, none of the artworks can be argued to have a racist undertone.
A quick perusal of section 15(1) and 16(1) will illustrate that the Constitution contains no right for Christians (or any other belief) to “have their faith respected”. In fact, these sections would be infringed by any law, rule, policy or action that requires society not to disrespect the religious or other beliefs of others. (I leave open the question of whether it would always be ethical or wise deliberately to denigrate the belief system of others, and what principles to rely on when making such an assessment.)
Section 15(1) of the South African Constitution guarantees for everyone “the right to freedom of conscience, religion, thought, belief and opinion”. The right protects both believers and non-believers. The Constitutional Court held in S v Lawrence; S v Negal; S v Solberg that the section protects the right of believers and non-believers to entertain their religious or other beliefs, the rights to declare those beliefs openly and without fear of hindrance or reprisal and the right to manifest such beliefs through practice.
According to the Constitutional Court this right implies an absence of coercion or constraint. Freedom of religion, conscience, belief and opinion may thus be impaired by measures that force people to act or refrain from acting in a manner contrary to their religious or other beliefs.
Section 15(1) does not protect either believers or non-believers from having their belief (or absence of belief) “disrespected”, because this would potentially coerce believers or non-believers to act or refrain from acting contrary to their beliefs.
Moreover, a ban on disrespecting religion would also infringe on the right to freedom of expression guaranteed in section 16(1) of the Constitution. This right includes freedom of artistic creativity, and academic freedom and freedom of scientific research. In De Reuck v Director of Public Prosecutions (Witwatersrand Local Division) and Others the Constitutional Court held that freedom of expression should not be construed narrowly. All forms of expression not explicitly excluded from protection by section 16(2) are protected expression and can only be limited in terms of the limitation clause.
The logic of this approach becomes evident when one flips the script. An atheist may well believe that her atheism is being disrespected when a Christian argues that atheism makes no sense, mocks atheists for being heartless and immoral, or claims that non-believers will burn in hell. But this infringes on the right of the Christian to declare his or her religious beliefs as protected by section 15(1) and 16(1) of the Constitution.
Prohibiting expression in order to protect either believers or non-believers from having their belief “disrespected”, would therefore be constitutionally impermissible.
It would therefore be impermissible for a school to prohibit a Christian learner from making an artwork with a Christian theme, or from making an artwork that criticises or disrespects atheism. It would similarly be impermissible for a school to prohibit an atheist learner from making an artwork that criticises or disrespects Christianity.
To me, the brouhaha about the alleged “blasphemous artworks” reveals how difficult many South Africans find it to deal with difference and diversity. Instead of asking hard questions about their own position of economic, social and (in the case of religion) political dominance and privilege and about the harm caused by their demand for special rights, some groups revert to the inappropriate language of rights to assert their dominance – “rights” for us, but no “rights” for those we disagree with.
This is not the best way to create a society in which differences in faith come to be viewed as a societal strength, something to be celebrated and learn from, and not as an existential threat to the dominant group.BACK TO TOP