An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
It is not always easy to hold an unpopular or minority view. It is even more difficult to hold a minority view on the emotive subject of religious belief and organised religion. When you happen to be a vulnerable and impressionable child, indoctrinated by parents and subjected to relentless peer pressure, it becomes even more difficult to hold any opinion of your own on the matter. It is for this reason that the right of children not to believe in a specific God or in specific religious dogma, must be jealously protected.
The Federation of Governing Bodies of South African Schools (Fedsas) contend in court papers that it was perfectly acceptable for schools to embody a Christian ethos and to promote “Christian values” (whatever this may mean) in public schools as long as the vast majority of parents desire it.
In its papers it quotes alleged “research” done among more than 7000 learners in the six schools being taken to court for promoting Christian values and practices in these schools which shows that only 3 percent of learners stated that it was unpleasant to be part of these Christian values that is embodied in the culture of each of these schools. According to the research 95% of the primary school children canvassed are perfectly happy when Christian prayer is conducted during assembly and other public events.
Of course, this survey really canvasses the beliefs of parents and not of primary school children because young children almost always believe what their parents tell them to believe. Given the relentless pressure from parents and society at large, the notion that young children in South Africa in fact have autonomy to decide for themselves whether they believe in a God and if so, what kind of God they believe in, is a laughable fiction.
The line or reasoning advanced by Fedsas is not only problematic because it wrongly assumes that almost all children have a free choice in the matter. It is also problematic because in South Africa the religious views of the majority cannot extinguish the rights to religious freedom of a minority.
Unless Fedsas can demonstrate that religious observance at schools (both in individual classes and during mass events like assembly) is completely voluntary and that various beliefs are treated equitably in the school, it will have difficulty convincing the Constitutional Court that the public schools being taken to court are not in breach of the Constitution and the relevant section of the Schools Act.
Some South Africans wrongly believe that ours is a Constitution that demands a complete separation between religion and the state. Unlike in the United States, where the US Supreme Court (interpreting the First Amendment and following the phrase first used by Thomas Jefferson) claims that religious freedom requires a “wall of separation between church and state”, the South African Constitution recognises a limited but significant role for religion in state institutions.
(I have always been struck by the fact that the popular US formulation of the rule requiring a separation of “church” and state is so exclusionary as it completely ignores religious traditions – such as Islam and Judaism – that are not dominant in US society. In these religions synagogues and mosques – and not churches – represent the formal consecrated public spaces where a particular version of God is worshipped, but the traditional formulation completely ignores this.)
In any event, the preamble to the 1996 South African Constitution explicitly refers to a “God”, and thus 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.
Of course, the preamble to the Constitution has no legal effect and cannot be enforced, so these references to God are merely symbolic and of no legal consequence. Moreover, section 15(1) of the Constitution contains an expansive right protecting not only religious freedom, but also the freedom of conscience, thought, belief and opinion of everyone.
This means that section 15(1) equally protects the rights of those who are religious to hold their religious beliefs, to state such beliefs and to practice their religion than it protects atheists to hold their beliefs, to state that they do not believe in God and to arrange their lives accordingly.
But this is not the end of the matter. Section 15(2) of the Constitution explicitly rejects the notion that there should be a complete wall of separation between the state and religion, and thus accepts that:
[r]eligious observances may be conducted at state or state-aided institutions, provided that (a) those observances follow rules made by the appropriate public authorities; (b) they are conducted on an equitable basis; and (c) attendance at them is free and voluntary.
In the Constitutional Court judgment of S v Lawrence , S v Negal ; S v Solberg justice O’Regan emphasised that the section prohibits religious observance that would have the effect of coercing somebody (either directly or indirectly) to observe religious practices with which they do not agree or to coerce them into accepting certain religious beliefs, such as the belief that there is indeed an all-powerful God.
The requirement of free and voluntary attendance at religious ceremonies is an explicit recognition of the deep personal commitment that participation in religious ceremonies reflects and a recognition that the freedom of religion requires that the state may never require such attendance to be compulsory.
Coercion can be direct, but it can also be indirect. The state (or any state institution like a public school) cannot place its power, prestige and financial support behind a particular religious belief or behind religious belief vis-à-vis non-belief because it would result in indirect coercion on non-believers and on religious minorities to conform to the majority view.
Justice O’Regan further held that where a state institution like a school publicly observes religion “the observance of such practices must still be equitable”. Because our society possesses a rich and diverse range of religions the state (and state aided schools) cannot be permitted to act inequitably. The requirement of equity is something in addition to the requirement of voluntariness. What this requires is, at the very least, that the state (or state-aided school) act even-handedly in relation to different religions.
As O’Regan explained in her majority opinion:
The requirement of equity in the conception of freedom of religion as expressed in the … Constitution is a rejection of our history, in which Christianity was given favoured status by government in many areas of life regardless of the wide range of religions observed in our society.
This view has now explicitly been incorporated into our law as section 7 of the South African Schools Act states that:
Subject to the Constitution and any applicable provincial law, religious observances may be conducted at a public school under rules issued by the governing body if such observances are conducted on an equitable basis and attendance at them by learners and members of staff is free and voluntary.
Two important consequences flow from the legal regime in place in South Africa for the protection of freedom of religion and conscience.
First, it is illegal for a state school to directly or indirectly coerce learners into observing a specific religion or any form of religion, either at public events such as assembly or in individual classrooms.
Where a school observes religion at public events it needs to provide a clear alternative for children who wish not to participate. This alternative cannot be presented in such a manner that it indirectly places pressure on a vulnerable child sensitive to peer pressure to attend the religious observance.
Where a school observes religion in classes or wishes to embody teaching with “Christian values” it would have to provide two streams of education in the form of different classes – one class catering for teaching that accords with the Christian ethos and one class completely free from such views and values. A school that unashamedly promotes a Christian ethos and provides no clear and equitable alternative is acting unconstitutionally and illegally.
Second, even where a school has rules in place to ensure that children are neither directly or indirectly coerced into observing religion at public events or in classes, it would still have a duty to treat various forms of belief equitably. This does not mean such beliefs have to be treated in exactly the same manner, but it does mean that a school is prohibited from exclusively advancing the beliefs or teaching of one specific religion or of religion vis-à-vis non-religion.
I suspect very few state schools at present comply with the Constitution and the law because there has been no systematic attempt to dismantle the underlying Christian nationalist ethos that permeated the apartheid education system.
If we are going to decolonise not only our Universities but also our schools, it is time that schools and school governing bodies comply with the Constitution and the law.BACK TO TOP