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African Human Rights Law Journal

On-line version ISSN 1996-2096
Print version ISSN 1609-073X

Afr. hum. rights law j. vol.8 n.2 Pretoria  2008




Affirmation and celebration of the 'religious Other' in South Africa's constitutional jurisprudence on religious and related rights: Memorial constitutionalism in action?



Lourens du Plessis

Professor of Law, Department of Public Law, University of Stellenbosch, South Africa




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 MEC for Education: KwaZulu-Natal and Others v Pillay and Others 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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* Blur et Comm, LLB, BPhil, LLD (Potchefstroom), BA (Hons) (Stellenbosch);
1Christian Education SA v Minister of Education 2000 10 BCLR 1051 (CC); 2000 4 SA 757 (CC) para 36, per Sachs J.
2 Prince v President, Cape Law Society 2001 2 BCLR 133 (CC) para 25, per Ngcobo J.
3 See L du Plessis An introduction to law (1999) 169 as to distinguishing first generation ('blue'),         [ Links ] second generation ('red') and third generation ('green') rights. See also L Henkin 'The internationalisation of human rights' in L Henkin et al (eds) Human rights: A symposium (1977) 6 and sec 2.         [ Links ]2 below.
4 Constitution of the Republic of South Africa 1996.         [ Links ]
5 Eg sec 15(1).
6 Sachs J in Christian Education SA (n 1 above) para 36 elaborated on the first of the two dicta above, with remarks applicable also to the second of the two dicta above. The right to believe or not to believe, and to act or not to act according to his or her beliefs or non-beliefs, is one of the key ingredients of any person's dignity. Yet freedom of religion goes beyond protecting the inviolability of the individual conscience. 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. It affects the believer's view of society and founds the distinction between right and wrong. It expresses itself in the affirmation and continuity of powerful traditions that frequently have an ancient character transcending historical epochs and national boundaries.
7 Advocated by, amongst others, IM Young Justice and the politics of difference (1990).         [ Links ]
8 See sec 4 below.
9 E Mureinik 'A bridge to where? Introducing the interim Bill of Rights' (1994) 10 South African journal on Human Rights 31-32.         [ Links ]
10 K Klare 'Legal culture and transformative constitutionalism' (1998) 14 South African Journal on Human Rights 150.         [ Links ]
11 See also in this regard AJ van der Walt 'Dancing with codes - Protecting, developing and deconstructing property rights in a constitutional state' (2001) 118 South African Law journal 295-296 and W le Roux 'Bridges,         [ Links ] clearings, labyrinths: The architectural framing of post-apartheid constitutionalism' (2004) 19 SA Public Law 634.         [ Links ]
12 2008 2 BCLR 99 (CC); 2008 1 SA 474 (CC).
13 Based on 2001 census statistics.
14 Sec 15(2)(a).
15 Sec 15(2)(b).
16 Sec 15(2)(c).
17 n 12 above; see sec 3.6 below.
18 Sec 185 of the Constitution.
19 Sec 16(2)(a).
20 Sec 16(2)(b).
21 Sec 16(2)(c) (my emphasis). The general limitation clause (sec 36 - see below) arguably also caters for such limitations. Specific limitations which are (also) subject to a general limitation clause raise technical problems of their own (albeit not insurmountable).
22 Sec 18.
23 Sec 21(1).
24 Sec 17.
25 Secs 33(1) & (2).
26 Sec 32(1).
27 When limiting a right, the following factors must be taken into account so as to comply with proportionality (secs 36(1)(a)-(e)): (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose.
28 See sec 1 above.
29 In eg secs 26 & 27 of the Constitution. See in general Du Plessis (n 3 above) 169 and Henkin (n 3 above) 6. On the notion of 'new constitutions', see B-O Bryde 'The constitutional judge and the international constitutionalist dialogue' (2005-2006) 80 Tulane Law Review 208.
30 Eg S v Baloyi (Minister of Justice Intervening) 2000 1 BCLR 86 (CC); 2000 2 SA 425 (CC) para 11; Carmichele v Minister of Safety and Security & Another 2001 10 BCLR 995 (CC); 2001 4 SA 938 (CC); Modder East Squatters & Another v Modderklip Boerdery (Pty) Ltd; President of the RSA and Others v Modderklip Boerdery (Pty) Ltd 2004 8 BCLR 821 (SCA) para 27; Government of the Republic of South Africa & Others v Grootboom & Others 2001 1 SA 46 (CC); 2000 11 BCLR 1169 (CC) para 20.
31 Secs 4 & 5 below.
32 1 997 1 0 BCLR 1348 (CC); 1997 4 SA 1176 (CC).
33 27 of 1989.
34 At the time entrenched in sec 14(1) of the interim Constitution (the precursor to sec 15(1) of the final Constitution).
35 Sec 8(2) of the interim Constitution.
36 S v Lawrence; S v Negal; S v Solberg 1997 10 BCLR 1348 (CC); 1997 4 SA 1176 (CC) paras 99-102.
37 13 CRR 64 97.
38 Lawrence (n 36 above) para 92.
39 To use the terminology of sec 7(2) of the Constitution. It must be added, in all fairness, that the interim Constitution in terms of which the Seven Eleven case was adjudicated, contained no provision akin to sec 7.
40 Sec 33 of the interim Constitution. The comparable provision in the final Constitution is sec 36.
41 Lawrence (n 36 above) paras 165-179.
42 Lawrence (n 36 above) para 128.
43 Lawrence (n 36 above) paras 95 & 96.
44 As O'Regan J in her minority judgment quite correctly pointed out; Lawrence (n 36 above) para 125.
45 Sec 33.
46 n 1 above.
47 84 of 1996.
48 Christian Education SA v Minister of Education of the Government of SA 1999 9 BCLR 951 (SE).
49 Christian Education SA (n 1 above).
50 Sec 36.
51 Christian Education SA (n 1 above) para 53.
52 And in n 6 above.
53 Prince v President of the Law Society, Cape of Good Hope 1998 8 BCLR 976 (C); Prince v President, Cape Law Society 2000 7 BCLR 823 (SCA); 2000 3 SA 845 (SCA); Prince (n 2 above); Prince v President, Cape Law Society 2002 3 BCLR 231 (CC); 2002 2 SA 794 (CC).
54 Prince (1998) (n 53 above).
55 Prince (2000) (n 53 above).
56 Prince (2002) (n 53 above).
57 Prince (n 2 above).
58 Prince (2000) (n 53 above); Prince (2001) (n 53 above) para 26.
59 Prince (2002) (n 53 above).
60 Bührmann v Nkosi 2000 1 SA 1145 (T); Nkosi v Bührmann 2002 1 SA 372 (SCA).
61 62 of 1997.
62 Sec 6(1) of the Act.
63 Sec 6(2)(d).
64 Sec 5(d).
65 Sec 6(4).
66 Nkosi & Another v Bührmann (n 60 above) para 49.
67 Bührmann v Nkosi & Another 2001 1 SA 1145 (T) 1155D-F. The Land Claims Court previously in Serole and Another v Pienaar 2000 1 SA 328 (LCC); [1999] 1 All SA 562 (LCC) voiced similar sentiments on the applicability of ESTA rights to justify the procurement of a right to bury a family member on someone else's land: 'Permission to establish a grave on a property could well amount to the granting of a servitude over that property. The owner of the property and all successors-in-title will, for as long as the grave exists, have to respect the grave, not cultivate over it, and allow family members to visit and maintain it. Although the specific instances of use in sec 6(2) are set out 'without prejudice to the generality' of the provisions of secs 5 and 6(1), they still serve as an illustration of what kind of use the legislature had in mind when granting to occupiers the right to 'use the land' on which they reside. The right to establish a grave is different in nature from the specific use rights listed in sec 6(2). It is, in my view, not the kind of right which the legislature intended to grant to occupiers under the Tenure Act [ESTA]. Such a right could constitute a significant inroad into the owner's common law property rights. A court will not interpret a statute in a manner which will permit rights granted to a person under that statute to intrude upon the common law rights of another, unless it is clear that such intrusion was intended.'
68 Bührmann v Nkosi & Another (n 67 above) 1161F-G.
69 Sec 6(2)(dA).
70 2 0 0 3 7 BCLR 806 ; [2003] 2 All SA 323 (LCC).
71 [2004] 3 All SA 436 (T).
72 The case has been reported as Crossley & Others v National Commissioner of South African Police Service & Others [2004] 3 All SA 436 (T).
73 As intimated previously, it was actually not really necessary for the court to make a finding in this regard because it had already found against the applicants on the issue of urgency. However, Patel J did express a view on the constitutional issue.
74 Crossley (n 72 above) para 18.
75 As above. As pointed out previously, the word ubuntu appeared in the Postamble to South Africa's interim Constitution - there associated with the need for national reconciliation in order to overcome the atrocities and divisions of the past (see sec 3 above).
76 See eg Crossley (n 72 above) paras 11-13 for the Court's consideration of this right and a discussion of the possibilities for realising it for purposes of the criminal trial.
77 For completeness sake and for the record, it should be mentioned that Scott-Crossley and Mathebula were tried and convicted of murder in the High Court, Circuit Local Division for the Northern Circuit, sitting at Phalaborwa. The former was sentenced to life and the latter to 15 years' imprisonment. Subsequently, Scott-Crossley successfully appealed against his conviction of murder and his sentence. The Supreme Court of Appeal partially upheld the appeal, setting aside his conviction for premeditated murder and the sentence of life imprisonment, substituting a verdict of guilty of being an accessory after the fact to murder, and reducing the sentence to five years' imprisonment. See S v Scott-Crossley 2007 2 SACR 470 (SCA).
78 n 12 above.
79 The school is a former 'Model C school' - the code name for an advantaged, previously all-white state school, better resourced and staffed by far than its previously (and mostly still) all-black, all-coloured and all-Indian/Asian counterparts in townships and residential areas that used to be demarcated along racial lines (and have mostly remained segregated in actual fact, up to this day). In time the Model C schools increasingly opened their doors to learners of 'other race groups', and some of them have done pretty well in achieving a high participation rate of learners from diverse ethnic origins and cultural backgrounds, contributing favourably to their diversity profiles. In this regard, the Durban Girls' High School got an excellent report card from no less an authority than the Chief Justice of the Republic of South Africa himself (MEC for Education: KwaZulu Natal & Others v Pillay & Others (n 12 above) para 125): 'Durban Girls' High School, the school at issue in this case, is one of the exceptions. Although historically it was a school for white girls under apartheid law, that has changed dramatically in the last 15 years. Now, we were told from the bar, of its approximately 1 300 learners, approximately 350 are black, 350 are Indian, 470 are white and 90 are coloured. Moreover, it is an educationally excellent school which produces fine matriculation results. It is at the cutting edge of non-racial education, facing the challenges of moving away from its racial past to a non-racial future where young girls, regardless of their colour or background, can be educated. This context is crucial to how we approach this case.' For many a learner other than white attending a Model C school, instead of, eg, a local school in a segregated ('non-white') township or residential area, is still very much a token of social mobility upwards. Though not nearly as 'expensive' as private schools, the school fees of a Model C school can be quite substantial, and the families of the majority of children of school-going age in South Africa will probably not be able to afford these fees from the family income. The state has cut down on its subsidies for these schools in order to effect a more equal and equitable distribution of means among all state schools in the country. At Model C schools, learners and their parents thus have to pay for access to certain 'luxuries' but, above all, to a 'high standard' of education.
80 JD van der Vyver 'Constitutional perspective of church-state relations in South Africa' (1999) 2 Brigham Young University Law Review 670-672. On conditions provided for in sec 15(2) of the Constitution, religious observances may even be conducted at such schools.
81 Pillay (n 12 above) para 7.
82 Pillay (n 12 above) para 44. See also Young (n 7 above) 168: 'Integration into the full life of the society should not have to imply assimilation to dominant norms and abandonment of group affiliation and culture. If the only alternative to the exclusion of some groups defined as Other by dominant ideologies is the assertion that they are the same as everybody else, then they will continue to be excluded because they are not the same.'
83 Pillay (n 12 above) para 50.
84 Pillay (n 12 above) para 47.
85 Pillay (n 12 above) para 53.
86 Pillay (n 12 above) paras 63-64.
87 Of reasonable accommodation, the court said the following (Pillay (n 12 above) para 73): 'At its core is the notion that sometimes the community, whether it is the state, an employer or a school, must take positive measures and possibly incur additional hardship or expense in order to allow all people to participate and enjoy all their rights equally. It ensures that we do not relegate people to the margins of society because they do not or cannot conform to certain social norms.'
88 See sec 1 above.
89 Pillay (n 12 above) para 40 n 18.
90 Pillay (n 12 above) para 1.
91 Bührmann v Nkosi (n 60 above).
92 See sec 3.4 above.
93 Pillay (n 12 above) para 107.
94 Pillay (n 12 above) paras 143-146.
95 Young (n 7 above) 173.
96 And elaborating on two previously cited dicta in Pillay (n 12 above) paras 63-64 - see sec 3.6 above.
97 Sec 1 above.
98 Pillay (n 12 above) para 65.
99 A leitmotiv in constitutional construction previously identified - see sec 1 above.
100 Sec 1 above.
101 The image of the Constitution as monument and memorial emerged from legal scholars' engagement with the work of the South African philosopher, Johan Snyman, on the politics of memory. J Snyman 'Interpretation and the politics of memory' (1998) Acta Juridica 317-321. For South African legal scholars' engagement with the work and ideas of Snyman, see L du Plessis 'The South African Constitution as memory and promise' (2000) 11 Stellenbosch Law Review 385-394; LM du Plessis 'The South African Constitution as monument and memorial, and the commemoration of the dead' in R Christensen & B Pieroth (eds) Rechtstheorie in rechtspraktischer Absicht. Freundesgabe zum 70. Geburtstag von Friedrich Müller (2008) 189-205; K van Marle 'Lives of action, thinking and revolt - A feminist call for politics and becoming in post-apartheid South Africa' (2004) 19 SA Public Law 607-612; D Cornell & K van Marle 'Exploring ubuntu: Tentative reflections' (2005) 5 African Human Rights Law Journal 202-203; W le Roux 'Undoing the past through statutory interpretation: The Constitutional Court and marriage laws of apartheid' (2005) 26 Obiter 529-530.
102 Monuments and memorials are aesthetic creations, and memorial constitutionalism contends that a constitution may, with interpretive consequences, be thought of as such a creation too. W le Roux 'The aesthetic turn in the post-apartheid constitutional rights discourse' (2005) 1 Journal for South African Law 107 refers to 'the aesthetic turn in post-apartheid constitutional rights discourse': '[T]he aesthetic turn in postapartheid constitutionalism could be interpreted as a direct response to the need for a non-scientific and non-formalised style of public reasoning. That the rejection of science as a model of constitutional law should have resulted in a turn towards art (traditionally regarded as the direct opposite of science) is not at all surprising.'
103 L du Plessis 'German Verfassungsrecht under the Southern Cross. Observations on South African-German interaction in constitutional scholarship in recent history with particular reference to constitution making in South Africa' in F Hufen (ed) Verfassungen - Zwischen Recht und Politik. Festschrift zum 70. Geburtstag für Hans-Peter Schneider (2008) 531.
104 R Dworkin Law's empire (1986) 228-238.
105 1998 12 BCLR 1517 (CC); 1999 1 SA 6 (CC).
106 2000 1 BCLR 39 (CC); 2000 2 SA 1 (CC).
107 2 0 0 2 9 BCLR 986 (CC); 2002 6 SA 1 (CC).
108 2004 7 BCLR 735 (CC); 2004 5 SA 331 (CC).
109 2006 3 BCLR 355 (CC); 2006 1 SA 524 (CC).
110 For further reference to this case, see sec 5 below. For more examples of the said jurisprudence, see Du Toit & Another v Minister for Welfare and Population Development & Others 2002 10 BCLR 1006 (CC); 2003 2 SA 198 (CC); / & Another v Director-General Department of Home Affairs & Others 2003 5 BCLR 463 (CC); 2003 5 SA 621 (CC); Farr v Mutual and Federal Insurance Co Ltd 2000 3 SA 684 (C). In Volks NO v Robinson & Others 2005 5 BCLR 446 (CC), a majority of the Constitutional Court thought that there was no way in which the benefits for 'surviving spouses' considered in Daniels v Campbell NO & Others 2004 7 BCLR 735 (CC); 2004 5 SA 331 (CC) could be extended to heterosexual life partners. The judgment in Volks NO v Robinson & Others 2005 5 BCLR 446 (CC) is mostly regarded as an undesirable aberration in relation to its predecessors engaging with the 'meaning of "spouse" issue' - see in this regard Le Roux (n 101 above) 543-545; S Woolman 'The amazing, vanishing Bill of Rights' (2007) 124 South African Law Journal 762.
111 Sec 3.1 above.
112 Sec 3.6 above.
113 Sec 4 above.
114 The inclusion in sec 9(3) of the Constitution of sexual orientation as one of 17 explicit grounds on which unfair discrimination is prohibited, is, eg, traceable to a vigorous gay and lesbian lobby during the drafting stages of South Africa's very first democratic Constitution, the Constitution of the Republic of South Africa Act 200 of 1993, which took effect on 27 April 1994.
115 Sec 14(1) of the interim and sec 15(1) of the 1996 Constitution.
116 Sec 8(2) of the interim and sec 9(3) of the 1996 Constitution.
117 Secs 33(1)(a)(ii) & 35(1) of the interim and secs 1(a), 7(1), 36(1) & 39(1)(a) of the 1996 Constitution.
118 Two of the five judges, it will be remembered, did not think that the constitutional claim to even-handed treatment in the circumstances of Seven Eleven was powerful enough to warrant an impugnment of legislation constraining it, while the remaining three judges thought that it was.
119 Sec 3.2 above.
120 Sec 3.3 above.
121 Sec 3.4 above.
122 Sec 3.6 above.
123 Fourie (n 109 above); sec 4 above.
124 Fourie (n 109 above) para 60.
125 Fourie (n 109 above) para 95.
126 Pillay (n 12 above) para 92.
127 That is, the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000.
128 Pillay (n 12 above) para 103.

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