Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
2 November 2010

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.

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