- A-Z Publications
- South African Journal on Human Rights
- Previous Issues
- Volume 28, Issue 2, 2012
South African Journal on Human Rights - Volume 28, Issue 2, 2012
Volume 28, Issue 2, 2012
Source: South African Journal on Human Rights 28, pp 141 –145 (2012)More Less
For many believers, their relationship with God or creation is central to all their activities. It concerns their capacity to relate in an intensely meaningful fashion to their sense of themselves, their community and their universe. For millions in all walks of life, religion provides support and nurture and a framework for individual and social stability and growth. Religious belief has the capacity to awake concepts of self-worth and human dignity which form the cornerstone of human rights.
In this quote, Sachs J highlights the crucial significance of religious belief to many millions of individuals in South Africa. Yet, surprisingly, there has been very limited legal academic writing concerning the implications of the Constitution of the Republic of South Africa, 1996 for religious rights and freedoms, even though there is an urgent need for an examination of these fundamental issues. In the past, the South African state has had a problematic relationship with religion. To a large extent, the state aligned itself (at least during the apartheid era) with a particular form of Christianity, which had implications for the type of education, public holidays, modes of entertainment and sexual conduct that were permissible. Moreover, some religious groupings provided doctrinal support and legitimation for the apartheid system; others strongly opposed it. This history thus requires us to think seriously about the relationship between religion and the state as well as the role religion plays within South African society as a whole.
Source: South African Journal on Human Rights 28, pp 146 –175 (2012)More Less
What model of the relationship between religion and state is optimal for South Africa? In order to identify the possibilities that exist, this article engages in a critical evaluation of the differing models of the state-religion relationship that have been adopted internationally. Part I seeks to identify, from a philosophical perspective, the advantages and disadvantages of particular models. Part II then focuses more closely on the particular historical and social context of South Africa as well as the most important constitutional provisions and case law. We shall argue in this section for what we term a 'positive recognition' model of the relationship between religion and state in South Africa, which emerges from the values underlying the Constitution. The model is not predicated on a strict, inflexible separation between the public and private realms. It requires the state to recognise the significance of religious identities to individuals and to take active measures to enable individuals to realise those identities. Importantly, it must do so in a manner that treats differing religious (and other philosophical) conceptions of the good equally. The last part of the article seeks to illustrate the implications of this model in practice in relation to two important practical questions where the state-religion relationship is implicated: public holidays of a religious character and the presence of religion at state ceremonies.
Source: South African Journal on Human Rights 28, pp 176 –195 (2012)More Less
Recent decisions by the University of the Free State (UFS) regarding the amendment of its motto and the prohibition of the public manifestation of prayer at formal occasions serve as a catalyst towards discussion on the role and place of religion not only in a public university but also in the public sphere. The exclusion of religious expression and activity seems to be part of the UFS's drive towards a 'transformed and inclusivist' approach. This article consequently investigates such exclusivist measures, critically analysing whether such initiatives are truly aligned with 'transformative' and 'inclusivist' aims. How religious (and belief) expressions and practices are dealt with at the UFS makes for a particularly good case study regarding commitments to pluralism, accommodation and multiculturalism. By looking specifically at the changing of the motto of the UFS and the exclusion of prayer at this institution, this article seeks to find solutions to a more effective accommodation of religious expression at the UFS. Lessons can be learnt from this not only for the UFS, but also for any public institution.
Judging Jews : court interrogation of rule-making and decision-taking by Jewish ecclesiastical bodiesSource: South African Journal on Human Rights 28, pp 196 –218 (2012)More Less
Determining who is in, and who is out, is a hot topic in debates about membership in religious communities, and the bodies, state and sectarian, that have the power to make decisions regarding such membership. For the most part, the state and the courts have taken a decidedly hands-off approach to interference in religious association decision-making. Some judgments have reinforced the proposition that individuals who 'voluntarily' commit themselves to a religious association's rules and decision-making bodies must be prepared to accept the outcome of fair-hearings conducted by those bodies. At the same time, a number of judgments have demonstrated a willingness to intervene quite profoundly in the affairs of a variety of different religious communities and mediate the relationship between the profane and the sacred, the traditional and the modern. Our intervention concentrates on but two features of court-driven, constitutional review of religious association decisions regarding membership or participation in a given community. First, we suggest how the law of evidence can provide appropriate guidance to courts faced with the challenge of interrogating the validity of decisions taken by religious bodies. Second, we offer a theory of religious community life in a constitutional democracy that can guide courts in determining when and where they should and should not interfere in the decision-making of religious bodies.
The positive role of public policy in private international law and the recognition of foreign Muslim marriagesAuthor Jan L. NeelsSource: South African Journal on Human Rights 28, pp 219 –230 (2012)More Less
This article deals with the possible recognition in South Africa of foreign Muslim marriages that are not valid in terms of the law of the country in which they were concluded. It is argued that such recognition is possible through the positive application of the doctrine of public policy. The role of public policy in private international law is usually described as a negative one (the exclusion of foreign law), but it is submitted that public policy may also play a positive role (the application of a legal system other than the usually applicable one) and some authority and examples are found in the common-law conflict of laws, Islamic jurisdictions and Israeli law. The relevance of the difference between internal and external public policy is indicated and the issue of whether the infringement by the foreign law of a right in the South African Bill of Rights automatically constitutes a violation of the forum's external public policy is discussed with reference to recent case law. South African decisions dealing with the recognition of Muslim marriages for certain purposes in domestic law on the basis of constitutional values indicate that the doctrine of public policy in private international law may readily be employed to recognise foreign Muslim marriages irrespective of their invalidity in terms of the prima facie applicable legal system. If the Muslim Marriage Bill of 2010 were to enter into force, the courts would be able to rely directly on a provision dealing with the recognition of foreign Muslim marriages to reach the same result. Certain shortcomings in the current draft are highlighted and an alternative formulation is proposed.
Author Patrick LentaSource: South African Journal on Human Rights 28, pp 231 –257 (2012)More Less
The issue of whether religious associations should be permitted to engage in employment discrimination on prohibited grounds such as gender, sexual orientation or race gives rise to a collision between the rights to religious freedom and freedom of association, on the one hand, and the right to equality, on the other. In a recent article in which I criticised Basson J for balancing these rights incorrectly in Strydom v Nederduitse Gereformeerde Gemeente, Moreleta Park, I argued that equal importance should be attached to the rights to equality and religious and associational liberty, and that the correct balancing of these rights requires that religious groups be permitted to discriminate in their employment practices in respect of positions sufficiently close to the core of religious doctrine. My article has elicited two thoughtful replies, one by Prof Stu Woolman and the other by Prof David Bilchitz. Bilchitz argues that I afford the right to equality insufficiently robust protection and claims that in South Africa the right to equality should be accorded 'primacy' relative to the rights to religious and associational liberty in cases in which these rights conflict. Woolman contends that the protection I provide for the right to freedom of association is too weak and that religious associations should have more extensive freedom to discriminate than I allow. In this article, effectively a rejoinder, I defend my assessment of Strydom and my approach to the present conflict of rights against several objections advanced by Bilchitz and Woolman. I argue for a workable compromise between their positions: equality must often prevail (that is, in the public, political and ordinary commercial spheres, and where the position in respect of which religious associations seek to discriminate is distant from the doctrinal core of the religion concerned), but sometimes the claims of religious voluntary associations to discriminate in accordance with settled religious beliefs should be accommodated.
Freedom of association as a foundational right : religious associations and Strydom v Nederduitse Gereformeerde Gemeente, Moreleta ParkSource: South African Journal on Human Rights 28, pp 258 –272 (2012)More Less
In Strydom v Nederduitse Gereformeerde Gemeente, Moreleta Park the applicant was appointed as an independent contractor by the respondent (a church) to teach music to its students. The respondent terminated the services of the applicant when it was discovered that he was involved in a same-sex relationship. However, it was decided that the respondent had discriminated unfairly against the applicant. This decision has prompted earnest debate regarding the parameters of appointments by (and membership of) religious associations in South Africa. This investigation contributes to such debate arguing that appointments by (and membership to) a church may require an adherence to the core tenets of such a church, irrespective of the functions emanating from such an appointment. Also, the view that same-sex sexual conduct should not be used as a discriminatory ground in appointments (membership) by a religious association is critically analysed, hereby presenting some insights as to the relationship between the right to equality and religious rights and freedoms, especially in the context of diversity and identity in a pluralist and democratic society.
Seek justice elsewhere : an egalitarian pluralist's reply to David Bilchitz on the distinction between differentiation and dominationAuthor Stu WoolmanSource: South African Journal on Human Rights 28, pp 273 –295 (2012)More Less
This response to Professor David Bilchitz attempts to put the two of us back on square. It advances our 'roughly' common conception as to how our constitutional order ought to address conflicts between equality and liberty that surface in cases that turn on differentiation and discrimination within religious orders and traditional communities. To that end, this article first clears up any previous misunderstandings, establishes our common ground and adumbrates a (largely) shared paradigm as to when our basic law should identify cognisable harms to the dignity of fellow South Africans and the broad array of remedies at the disposal of our courts. This article then reminds us that we possess a well-developed body of South African jurisprudence that distinguishes the public from the private, and why constitutions are invariably committed to a defence of pluralism and some degree of private ordering. Thereafter, I advance the idea that one might 'seek justice elsewhere' as a response to domination and tyranny: either by peregrinations around the globe or by exiting one sub-public and entering or constructing another more felicitous community within one's birth-state. With respect to the latter form of exit, the community responsible for the expulsion and the impairment of an individual's dignity should, along with the state, bear some form of material obligation in order to make the creation of a more commodious sub-public a reality. Thereafter, the article relies heavily on theses laid out in Michael Walzer's Spheres of Justice. Spheres of Justice, which enables us to make critical distinctions between differentiation and domination, as well as between legitimate distributions of social goods and tyrannical abuses of economic, social and political power that invariably lead to the kind of stratified society that we inhabit in South Africa. The article then draws on Walzer's distinction between differentiation and domination in order to demonstrate how a commitment to remedial equilibration can assist us in developing a sliding scale of 'interdependent and interrelated' rights and remedies by which the rules that govern various non-state publics, communities or associations might be measured when charges of discrimination are laid. A court order based upon remedial equilibration possesses a number of distinct virtues. Where differentiation rises to the level of unfair discrimination, remedial equilibration allows a court to: (a) acknowledge the constitutional infirmity of the conduct; (b) appropriately remonstrate the association responsible for such conduct without necessarily eviscerating the power of the association to continue to determine its rules for membership, voice and exit; (c) require the association, and where appropriate the state, to bear the pecuniary costs of the dismissal (or expulsion); and (d) assist the person harmed to secure employment (or some other good) in a more congenial environment and thereby find justice elsewhere.
The Lone Ranger and Tonto are idling away a perfectly nice summer day on a butte somewhere in Wyoming. All of a sudden, they find themselves surrounded on all sides by Sioux warriors. The Lone Ranger surveys the landscape and ruefully acknowledges that there's simply no way out. He turns to Tonto and says, 'It looks like we're done for this time, my friend'. Tonto has also grasped the gravity of the situation. He stares stoically ahead and replies: 'What's this "we" shit, white man?'
Author David BilchitzSource: South African Journal on Human Rights 28, pp 296 –315 (2012)More Less
This article addresses the question as to whether religious associations should be granted an exemption from legal anti-discrimination provisions relating to their employment practices. It focuses on responding to criticisms mainly by Patrick Lenta of my position that, in general, no such exemptions should be granted. The key issues I address are the following. Firstly, I shall consider the relationship between South Africa's particular context and the approach to be adopted towards interpreting and balancing fundamental rights in South African constitutional law. Secondly, I shall contend that religious associations do violate liberal reciprocity when seeking such an exemption and respond to Lenta's argument in this regard. Thirdly, I shall consider the harms of discrimination by religious communities upon the equal citizenship of vulnerable groups and distinguish these from the distress caused by refusing members of religious associations exemptions from anti-discrimination legislation. Finally, I shall discuss the question of remedies and the possibilities they allow for encouraging religious associations to act in ways that are consonant with South Africa's constitutional democracy.
Author Julian BrownSource: South African Journal on Human Rights 28, pp 316 –327 (2012)More Less
Histories are true stories, and any attempt to evaluate them must take into account both parts of that phrase. The truth of the history is paramount, and can be established by reference to documents, testimonies, and other primary sources. But the story-ness of the history - the way it narrates the events of the past, ties them together, and explains them - must also be examined. After all, every history is an interpretation, a set of claims and an argument about the meaning of connected and contested events. This is true whether the history is written by a professionalised academic, a political provocateur, or a sitting judge.
Defences under the Protection of State Information Bill : justifications and the demands of certaintyAuthor James GrantSource: South African Journal on Human Rights 28, pp 328 –350 (2012)More Less
The Protection of State Information Bill (the Bill) has been heavily criticised on several grounds, including that it contains no 'public interest' defence. However, when properly understood, the Bill does contain a public interest defence, or at least, it contains the basis on which disclosing or possessing classified information may be recognised as the right thing to do - as justified - and therefore as lawful and not subject to criminal liability. This defence operates on the requirement of unlawfulness, required for all criminal liability. Unlawfulness requires courts to engage in a balancing exercise of the values, interests and rights of the respective parties. This makes the requirement of unlawfulness the primary mechanism by which the criminal law may honour its constitutional obligations to develop and give expression to the values and rights in the Constitution. This defence, together with some others, may be recognised as a function of very basic, but well recognised, principles of criminal law - as informed by the values in the Constitution of the Republic of South Africa, 1996. Once this is recognised, it seems necessary for this defence to be expressly set out in the Bill in order to avoid violating the principle of certainty and ultimately the rule of law.
State Control over Private Military and Security Companies in Armed Conflicts, Hannah Tonkin : book reviewAuthor Sabelo GumedzeSource: South African Journal on Human Rights 28, pp 351 –357 (2012)More Less
Hannah Tonkin's book, which began its life as a doctoral thesis completed at the University of Oxford, is one of the many books that have been written in response to the rapid proliferation of private military and security companies (PMSCs) in armed conflicts around the world. State Control over Private Military and Security Companies in Armed Conflicts distinguishes itself from the other books by firstly, critically analysing the international obligations from the perspective of three key states, namely: the hiring state, the home state and the host state of a PMSC; and secondly, identifying circumstances in which PMSC misconduct may give rise to state responsibility. Tonkin's industry in researching on this topical issue of state control over PMSCs in armed conflict is evident. A University of Adelaide's 97th Rhodes Scholar, Tonkin proved to be in control of the subject matter right from the introductory chapter all through the individual chapters up to the conclusion.