The right to self-determination of religious groups in South Africa

Abstract

The Constitution of the Republic of South Africa, 1996, is a religion-friendly manifesto, because freedom of religion is not only important in the lives of the faithful, but is also of great value to the state. The Constitution makes provision for the right to self-determination of religious communities, which means that members of such communities can exercise their religion without undue state interference. However, the right to self-determination is not an absolute right and is amongst other things subject to the provisions of the Bill of Rights. Mention is made in this regard of litigation relating to education of religion in schools, and implementation of religious codes of conduct in education, that might contradict doctrinal practices, as well as opposition to the prohibition of corporeal punishment, which prohibition is allegedly in conflict with religious principles. South Africa also upholds the sphere sovereignty of religious organisations, which means that the state will not interfere with internal decisions and practices of churches and other religion-orientated institutions. Litigation of relevance in this regard includes disciplinary action against a member of the Orthodox Jewish community of Johannesburg who declined to comply with a maintenance order of the church authorities, as well as the dismissal of a Minister of the Methodist Church in Rondebosch because she entered into a same-sex marriage. The firing of an organ teacher in the Arts Academy of the Moreleta Park Congregation of the Dutch Reformed Church because of his same-sex relations, on the other hand, was not upheld by the Equality Court because the services rendered by the organ teacher as an independent contractor did not relate to the spiritual calling of the Church. The policy of the state in regard to churches and religious practices can be described as a policy of objectivity. In specifying the above constitutional principles, this essay in the first place contains an analysis of the historical origin, development and prominence of the right to self-determination in international law and in the South African context. In the section on application of the right to self-determination in South Africa special mention is made of religious practices in education, noting with reference to a case involving the German School in Pretoria that religion classes are no longer based on a particular denominational basis and attendance of those classes is therefore mandatory; but in a case involving loyalty of certain schools to the Christian faith it was decided that this cannot be upheld in state-sponsored schools, since the state may not afford preference to a particular religion but must treat all religions equally. South African courts have also rejected the supposition that the Bible demands corporeal punishment of children, most recently also condemning corporeal chastisement within parent-child relations.