Quote of the week

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.

Khampepe J
Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State and Others (CCT 52/21) [2021] ZACC 28 (17 September 2021)
2 December 2008

On freedom of religion and the marginalisation of Muslims (and atheists)

I was struck again today by how difficult it is for all South Africans to come to grips with the implications of our world class Constitution. Individuals in institutions tend to continue  to act in ways that reflect their own view of the world, without taking cognizance of the need to change assumptions and transform practices  in line with the requirements of our Bill of Rights.

We tend to see the world from our own vantage point and if we are members of the dominant group we often fail to notice the often hidden assumptions on which we choose to base our decisions and practices. The Constitution is supposed to help change this, but change comes slowly and will often be resisted on grounds that might seem reasonable but might hide a kind of majoritarian world view that inevitably leads to the marginalisation of minorities.

This is especially evident when the right to freedom of religion and conscience is at stake. So, I was not surprised when I discovered that the supplementary exam for one of my courses was scheduled for a Friday afternoon between twelve thirty to two thirty. This meant that Muslim students who wanted to attend Friday Prayers could not write the exam and had to apply for a special examination to be written in the new year.

When questioning this, I was provided with a seemingly reasonable explanation, namely that it would not have been possible to reschedule exams for this time slot because there simply were not enough time slots in the supplementary examination week to accommodate all the courses to be written on Friday afternoon.

The Constitutional Court has dealt with this question in the so called nose stud case where it provided a nuanced understanding of the role of culture and religion in our society and the ways in which minority cultural and religious groups are marginalised and discriminated against.

In that case Chief Justice Langa pointed out that a Code of Conduct like the one adopted by Durban Girls High School was not a neutral document. The norms of such a code actually enforced mainstream and historically privileged practices and excluded marginalised practices. What was required in such cases was for a school or other institution to make a reasonable accommodation of all the different cultural and religious practices of its members. This required more than mere tolerance of what is perceived as weird or alien beliefs and practices and required a celebration of the diversity of cultures and religions in South Africa.

The case should be compulsory reading for all managers in South Africa as it has profound consequences for our debate about religious diversity. It placed a heavy burden on any institution to accommodate those who do not form part of the majority and whose beliefs and practices are not embedded in the institutional culture of that institution through its codes, rules and practices.

So often those who form part of the majority do not notice that the rules and codes they have adopted reflects their own cultural beliefs and practices – often seeing the rules and codes as natural and normal expressions of what is required for the institution. This judgment instructs institutions to move away from culturally specific rules and codes and requires them to engage with diversity and difference.

If we had not lived in Zilleville, but in Islamabad, a University would have planned ahead to ensure that no exams would have to be written during the Friday Prayer. But because the vast majority of South Africans (and the University management) are Christian, this was never considered. It would have been easy to extend the examination period with one session to accommodate everyone, yet this was not done – not out of malice but because of a lack of knowledge and appreciation of minority religious practices.

This thoughtlessness sends a signal to the minority religious group that their religion is not equally respected in our society. It fails to celebrate the diversity of our society in the way advocated by the Constitutional Court.

Atheists or people who are sceptical about the existence of any higher being also face this problem as it is often assumed that one is religious and belongs to a specific religious community. This is why I was disappointed by the remarks made by Mr Jacob Zuma (ha, you thought I would get through an entire post without mentioning the Dear Leader!) that “we need to teach our people to fear God”.

No Mr Zuma, in line with the Constitution we need to teach our people to respect each other and each others beliefs – whether we believe in Allah, in Jesus Christ or merely believe that it is a good thing to have a glass of wine every day. Respect for difference is the key. But if one has a narrow world view and is not aware of one’s own hidden alienating assumptions about how the world works or ought to work, one cannot respect the full diversity of beliefs in South Africa.

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