n African Human Rights Law Journal - Affirmation and celebration of the 'religious Other' in South Africa's constitutional jurisprudence on religious and related rights : memorial constitutionalism in action? : focus : the foundations and future of law, religion and human rights in Africa

Volume 8, Issue 2
  • ISSN : 1609-073X
  • E-ISSN: 1996-2096



In this article it is argued that there are examples in South African constitutional jurisprudence on religious and related rights where, in addition to being respected and protected, these rights have indeed and in effect also been promoted and fulfilled as envisaged in section 7(2) of the Constitution. This has been achieved through reliance on a jurisprudence of difference affirming and, indeed, celebrating otherness beyond the confines of mere tolerance or even magnanimous recognition and acceptance of the Other. The said jurisprudence derives its dynamism from memorial constitutionalism which, as is explained, is one of three leitmotivs of significance in constitutional interpretation in South Africa (the other two being transitional and transformative constitutionalism). Memorial constitutionalism understands the South African Constitution as both memory, (still) coming to terms with a notorious past, and promise, along the way towards a (still) to be fulfilled, transformed future. How a jurisprudence of difference feeds into and, indeed, sustains memorial constitutionalism is shown by analysing some selected judgments on guarantees for religious and related rights in the South African Constitution. The examination of relevant case law peaks towards consideration of the Constitutional Court judgment in 2008 2 BCLR 99 (CC); 2008 1 SA 474 (CC), assessed by the author to be a jurisprudential high point in memorial constitutionalism pertinent to religious and related rights. It is argued, in the final analysis, that recent (especially) Constitutional Court jurisprudence dealing with the assertion of religious and related entitlements, couched as equality claims, has increasingly been interrogating, with transformative rigour, 'mainstream' preferences and prejudices regarding the organisation of societal life, inspired by a desire to proceed beyond - and not again to resurrect - all that used to contribute to and sustain marginalisation of the Other.

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