Van der Vyver on The Contours of Religious Liberty in South Africa

Johan D. van der Vyver (Emory University School of Law) has posted The Contours of Religious Liberty in South Africa. The abstract follows. – ARH

As far as religion and religious diversity are concerned, the South African Constitution can be described as one of profound toleration and accommodation. The Constitutional Court has on several occasions emphasized the importance of religion for the State. South Africa is therefore not a secular State but can best be described as a religiously neutral State.

The constitutional principle of non-discrimination applies not only to discrimination by the State, but also to discrimination by private individual and non-State institutions, including religious institutions. The Promotion of Equality and Prevention of Discrimination Act of 2000 amplified the constitutional proscription of discriminatory practices. When applying the non-discrimination decree to religious institutions, State courts will not unduly interfere in the internal sphere sovereignty of such institutions. 

References are made to jurisprudence and/or legislation relating to a great variety of religion-specific matters, for example Muslim marriages (not recognized in South Africa as valid marriages, but the consequences of such marriages being enforced on basis of the law of contract), defining the concept of religion, the rules applicable to religious education and to corporeal punishment in schools, the sale of alcoholic liquor on Sundays and Christian holidays, and same-sex unions.

South African courts will not shy away from adjudicating ecclesiastical disputes that might involve “doctrinal entanglement”. Decisions of ecclesiastical tribunals are subject to review by (not appeals to) secular courts of law, but the courts will confine their scrutiny of ecclesiastical cases to the question whether or not the ecclesiastical tribunal acted within the confines of the religious body’s internal rules of procedure and have upheld elementary rules of justice. They will not second guess the merits of an ecclesiastical tribunal’s decision.

The essay finally deals briefly with the religious rights of a child, noting, for example, that parental rights are conditioned by the best-interests-of-the-child paradigm. Parents cannot for religious reasons withhold life-sustaining therapeutic treatment from a child, must apply “the rod of correction” within the bounds of moderate chastisement, and cannot dictate to their children the religion they should adhere to upon reaching a stage of development where they can and should decide for themselves.

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