Freedom of religion in South Africa

South Africa is a secular democracy with freedom of religion.

Legislation

Constitution

The preamble to post-apartheid South Africa's Constitution of 1996 contains references to God in the form of a multilingual evocation asking for God's protection and blessing.^[1] Dutch theologian Johannes van der Ven describes this text as a "rhetorical petition prayer".^[2] The Constitution nevertheless enshrines the right to freedom of religion.

Chapter 2 of the Constitution of South Africa, the Bill of Rights, contains a number of provisions dealing with religious freedom. Section 9, the equality clause, prohibits unfair discrimination on various grounds including religion and requires national legislation to be enacted to prevent or prohibit unfair discrimination. Section 15 states that everyone has the right to freedom of conscience, religion, thought, belief and opinion. This section also allows religious observances in state and state-aided institutions, provided they follow public authority rules, they are conducted on an equitable basis and attendance is free and voluntary; and provides for the recognition of religious legal systems and marriages that are not inconsistent with the Constitution. Section 31 protects the right of persons belonging to a religious community to practise their religion together with other members of that community, and to form, join and maintain voluntary religious associations.^[3]

Various other provisions of the Constitution relate to religion and religious freedom. Sections 185 and 186 provide for a commission for the promotion and protection of the rights of cultural, religious and linguistic communities.^[4] In addition, human rights such as the right to human dignity,^[5] the right to freedom of expression^[6] and the right to freedom of association^[7] relate indirectly to the protection of religious freedom. The right to freedom of expression does not extend to hate speech based on various grounds including religion.^[6]

The constitutional right to freedom of religion is not absolute. In his keynote speech at the public endorsement ceremony of the South African Charter of Religious Rights and Freedoms in Johannesburg on 21 October 2010 Deputy Chief Justice Dikgang Moseneke stated:

Equality Act

Pursuant to Section 9 of the Constitution, the Equality Act of 2000 prohibits unfair discrimination on various grounds including religion.^[8][9] The Equality Act does not apply to unfair discrimination in the workplace, which is covered by the Employment Equity Act.^[10]

South African Human Rights Commission

The South African Human Rights Commission (SAHRC) is a chapter nine institution inaugurated in 1995 to support constitutional democracy. The SAHRC investigates complaints about unfair discrimination and assists members of the public with cases heard in Equality Courts.^[10][11][12]

CRL Rights Commission

The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL Rights Commission) is a chapter nine institution established in 2004 to support constitutional democracy.^[13]

Religion in schools

National legislation and policies governing religion in schools relate to Religion Education, religious observances in schools and school dress codes:

• The National Policy on Religion and Education adopted in September 2003 provides for Religion Education, i.e. education about diverse religions, which does not promote any particular religion in the public school curriculum.^[14] Religion Education is covered in the Life Orientation subject.^[15]
• In accordance with Section 15 of the Constitution, religious observances are permitted in public schools provided they are conducted on an equitable basis which acknowledges religious diversity and attendance is free and voluntary.^[16][17][18]
• The Department of Basic Education's National Guidelines on School Uniform adopted in February 2006 state that a school's dress code should accommodate religious and cultural diversity.^{[19][20][21][22]}

OGOD court case

In August 2014 the Organisasie vir Godsdienste-Onderrig en Demokrasie ("Organisation for Religion Education and Democracy") (OGOD) filed an application in the South Gauteng High Court to stop several public schools from describing themselves as Christian or promoting a Christian ethos in contravention of the constitution.^{[23][24][25][26]} All six schools named in the application are Afrikaans-medium public schools and their school governing bodies are members of the Federation of Governing Bodies of South African Schools (FEDSAS). The outcome of the test case will apply to all public schools however. The named schools have decided to oppose the case and are being supported in this by FEDSAS, AfriForum, the Freedom Front Plus political party and the African Christian Democratic Party.^{[26][27][28][29]}

Legislative reforms

The new Constitution did not result in immediate reform of discriminatory legislation infringing on the right to religious freedom. Various legislative reforms have taken place or have been initiated since 1994 as a result of lobbying by disenfranchised groups.

The Civil Union Act, which came into effect on 30 November 2006, legalised same-sex marriage and also allowed for the legal designation of religious marriage officers without any religious restriction in accordance with the Constitution. Previously, religious marriage officers could only be legally designated as such "for the purpose of solemnizing marriages according to Christian, Jewish or Mohammedan rites or the rites of any Indian religion" in accordance with the Marriage Act. In accordance with section 5 of the Civil Union Act, any religious organisation may apply to the Department of Home Affairs for designation as a religious organisation and when designated as such must formally nominate suitable candidates from within their organisation to be designated by the Department of Home Affairs as religious marriage officers for the purpose of solemnising marriages according to the rites of that religious organisation.^[30]

The Witchcraft Suppression Act of 1957 based on colonial witchcraft legislation criminalises claiming a knowledge of witchcraft, conducting specified practices associated with witchcraft including the use of charms and divination, and accusing others of practising witchcraft.^[31] In 2007 the South African Law Reform Commission received submissions from the South African Pagan Rights Alliance and the Traditional Healers Organization requesting the investigation of the constitutionality of the act and on 23 March 2010 the Minister of Justice and Constitutional Development approved a South African Law Reform Commission project to review witchcraft legislation.^[32][33]

One of the SALRC's other new projects, the review of witchcraft legislation, will support the constitutional guarantee to freedom of religion, but will also serve to protect vulnerable groups. It is mostly women advanced in age that are persecuted as witches by communities holding traditional beliefs. These innocent victims are vulnerable to a double degree: as women and as older persons.

— South African Law Reform Commission Thirty Eighth Annual Report 2010/2011^[34]

The Christian holidays of Christmas Day and Good Friday remained in post-apartheid South Africa's calendar of public holidays. The CRL Rights Commission held countrywide consultative public hearings in June and July 2012 to assess the need for a review of public holidays following the receipt of complaints from minority groups about unfair discrimination. The CRL Rights Commission stated that they would submit their recommendations to the Department of Home Affairs, the Department of Labour, various Portfolio Committees and the Office of the Presidency.^[35][36][37] The CRL Rights Commission published its recommendations on 17 April 2013, including the scrapping of some existing public holidays to free up days for some non-Christian religious public holidays.^[38][39] On 18 January 2015 the South African Law Reform Commission published a discussion document on legislation administered by the Department of Home Affairs in which it suggested "that either these holidays be reviewed or that equal weight be given to holidays of other faiths".^[40][41][42]

Notable legal precedents

• Christian Education South Africa v Minister of Education (2000) – the Constitutional Court found that the right to freedom of religion did not entitle Christian private schools to an exemption from a general law prohibiting school corporal punishment, despite their belief that the Bible prescribes corporal punishment.
• MEC for Education: KwaZulu-Natal and Others v Pillay (2007) – the Constitutional Court found that Durban Girls' High School unfairly discriminated against a Hindu schoolgirl by not allowing her to wear a nose stud.^[20][43][44]

See also

• Blasphemy law in South Africa
• Hate speech in South Africa
• Religion in South Africa
• Irreligion in South Africa

Politics of South Africa
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Trade unions and Social movements	see South Africa trade unions Equal Education Mandela Park Backyarders PASSOP Poor People's Alliance Abahlali baseMjondolo LPM Western Cape Anti-Eviction Campaign SJC TAC UPM
Law	see South African law
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Political history of South Africa
Defunct polities	Kingdom of Mapungubwe (c. 1075–c. 1220) Dutch Cape Colony (1652–1806) Mthethwa Paramountcy (c. 1780–1817) Ndwandwe Kingdom (c. 1780–1819) Cape Colony (1795–1910) Zulu Kingdom (1816–97) Natalia Republic (1839–43) Natal Colony (1843–1910) Orange Free State (1854–1902) South African Republic (1856–1902) Griqualand East (1861–79) Griqualand West (1870–73) Goshen (1882–83) Stellaland (1882–85) Nieuwe Republiek (1884–88) Upingtonia (1885–87) Klein Vrystaat (1886–91) Orange River Colony (1902–10) Transvaal Colony (1902–10) Union of South Africa (1910–61) Transkei (1976–94) Bophuthatswana (1977–94) Venda (1979–94) Ciskei (1981–94)
Events	1652–1815 Dutch settlement French Huguenot settlement Khoikhoi–Dutch Wars Xhosa Wars Battle of Muizenberg Battle of Blaauwberg Anglo-Dutch Treaty of 1814 1815–1910 Mfecane 1820 Settlers Great Trek Boer Republics Mineral Revolution Witwatersrand Gold Rush South African Wars South Africa Act 1909 1910–1948 Maritz Rebellion Rand Rebellion Great Depression 1946 African Mine Workers' Union strike Bantustans Apartheid era 1948 general election Apartheid legislation Internal resistance Coloured-vote constitutional crisis Defiance Campaign Congress of the People Freedom Charter Women's March 1956 1957 Alexandra bus boycott Sharpeville massacre 1960 republic referendum International isolation Academic boycott Disinvestment Sporting boycott Olympics Rugby union Rivonia Trial Tar Baby Option Durban Moment Border War Israeli alliance Israel–South Africa Agreement Soweto Uprising Weapons of mass destruction Project Coast Constructive engagement Church Street bombing 1983 constitutional reform referendum Rubicon speech Dakar Conference Third Force CODESA 1992 apartheid referendum Saint James Church massacre Bophuthatswana conflict Shell House massacre Post-apartheid 1994 general election Government of National Unity Reconstruction and Development Programme Truth and Reconciliation Commission Arms Deal Floor crossing African Renaissance Xenophobia Marikana massacre 2012 Western Cape farm workers' strike Nkandlagate 2014 platinum strike #RhodesMustFall protests #FeesMustFall student protests 2016 Tshwane riots
Political culture	Afrikaner Calvinism Baasskap Boerehaat Day of the Vow Greater South Africa Honorary whites Rooi gevaar Slavery Swart gevaar Uitlander Volkstaat
Defunct organisations	Civic and political organisations Afrikaner Bond Afrikaner Broederbond Afrikaner Party AITUP APO AVF BPC Black Sash CDA CTEG COD Congress Alliance COSG CP Dominion Party DP (1973–1977) DP (1989–2000) DPP ECC FA FD Genootskap van Regte Afrikaners GNP Het Volk HNP IDASA ID IP ISL Jeugkrag Johannesburg Reform Committee Labour Party (1910–1958) Labour Party (1969–1994) Liberal Party (1953–1968) NA NCP NIC NLP NNP NP NPP NRP NUSAS PFP Progressive Party (Cape Colony) Progressive Party PRP Radio Freedom Reform Party SABP SADECO SAIC SASO SAYCO SAYRCO South African Party (Cape Colony) South African Party (1911–1934) South African Party (1977–1980) TNIP Torch Commando UFP United Party Unionist Party Volksparty Workers Party WOSA Trade unions and social movements Afrikaner nationalism APF BCM FOSATU ICU MUSA NEUM PAWE SAAPAWU UDF Umkosi Wezintaba Paramilitary and terrorist organisations APLA ARM BBB Boeremag Greyshirts MK Ossewabrandwag Orde van die Dood SANF
Histories of political parties	African National Congress Democratic Alliance Pan Africanist Congress of Azania
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Religion in South Africa
Religions	African Traditional Belief San religion Zulu religion Bahá'í Faith Buddhism Hinduism Irreligion Islam Shia Judaism Paganism Christianity Afrikaans Protestant Church Afrikaner Calvinism Anglican Church Apostolic Faith Mission Assemblies of God Baptist Union Christian Reformed Church Church of Jesus Christ of Latter-day Saints Dutch Reformed Church NGK NHK GKSA Evangelical Lutheran Church Evangelical Presbyterian Church Free Church Methodist Church Nazareth Baptist Church Presbyterian Church of Africa Protestantism Reformed Church in Africa Reformed Evangelical Anglican Church Roman Catholic Church United Congregational Church Uniting Presbyterian Church Uniting Reformed Church Zion Christian Church Zionist Churches People's Church of Africa
Related	Freedom of religion SAHRC CRL Rights Commission Equality Act, 2000 Marriage Act, 1961 Witchcraft Suppression Act, 1957 Traditional healers SACC NICSA Public holidays Satanic panic
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References

Further reading

• Kroeze, IJ (2003). "God's Kingdom in The Law's Republic: religious freedom in South African constitutional jurisprudence". PER. 6 (2): 97–119. Retrieved 20 March 2013. 
• Pienaar, Gerrit (2003). "The interaction between religious freedom, equality and human dignity". PER. 6 (2): 121–133. Retrieved 20 March 2013. 
• Woolman, Stuart (2007). "Defending Discrimination: On the constitutionality of independent schools that promote a particular, if not comprehensive, vision of the good life" (PDF). Stellenbosch Law Review (1): 31–52. Archived from the original on 25 September 2014. Retrieved 25 September 2014. 
• Fleisch, Brahm; Woolman, Stuart (2007). "On the constitutionality of single-medium public schools" (PDF). South African Journal on Human Rights. 23 (1): 34–67. Archived from the original on 22 October 2014. Retrieved 22 October 2014.  This article addresses constitutional provisions relating to language, culture and religion in South African schools.
• Mhango, Mtende (2013). "Right to recognition and protection of religion in South Africa". In Vilhena, Oscar; Baxi, Upendra; Viljoen, Frans. Transformative constitutionalism: Comparing the apex courts of Brazil, India and South Africa (PDF). Pretoria: Pretoria University Law Press. pp. 356–371. ISBN 9781920538231. Retrieved 14 December 2014. 
• Scholtz, Herman (16 July 2011). "'Godsdiens in skole gaan monster skep'" ['Religion in schools will create monster']. Rapport (in Afrikaans). Archived from the original on 5 September 2014. Retrieved 5 September 2014. 

External links

• Equality Courts

Law of South Africa
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