versão On-line ISSN 1996-2096
versão impressa ISSN 1609-073X
Afr. hum. rights law j. vol.8 no.2 Pretoria 2008
Professor of Law, North-West University (Potchefstroom Campus), South Africa
Comparable to the South African legal system, the Swazi legal system has the characteristics of a dual legal system. Though the common law of Swaziland is Roman-Dutch law, Swazi customary law has a firm hold in the Swazi legal system. With a population in the region of 1,2 million, made up of different religious denominations, religion in Swaziland is an important matter. Although Christianity is the majority religion in Swaziland, there has generally been freedom of religion from an early stage. This was recently confirmed in the Constitution of the Kingdom of Swaziland Act 1 of 2005, which came into operation on 8 February 2006. The focus of this presentation is on the fairly new constitutional provisions dealing with freedom of religion in Swaziland. The first part of this contribution consists of a general discussion dealing with the commonalities of and interaction between the South African and Swazi legal systems, as well as certain key elements in the making of the Swazi Constitution. The second part deals with specific constitutional provisions pertaining to religion in general and freedom of religion in particular. The contribution concludes with a few comments on the role the South African constitutional jurisprudence has to play in future Swazi constitutional adjudication.
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* Blur, LLB, LLM, LLD (North West); Christa.Rautenbach@nwu.ac.za. I am greatly indebted to Prof Gerrit Ferreira for his helpful comments on an earlier draft.
1 G Collard (ed) Swaziland review (2006 Swazi Review of Commerce and Industry Swaziland) 4; [ Links ] JB Mzizi 'Challenges of proselytization in contemporary Swaziland' (2000) 14 Emory International Law Review 912. [ Links ]
2 Mzizi (n 1 above) 914.
3 It is not only the Swazi legal system which is dual in character, but also the Swazi governmental system. The government consists of the traditional monarchy and western government structures. See the discussion of LG Dhlamini 'Socio-economic and political constraints on constitutional reform in Swaziland' unpublished LLM dissertation, University of the Western Cape, 2005 16-32. [ Links ] He is of opinion that the dual system of government ridicules constitutional reform in Swaziland (77).
4 Mzizi (n 1 above) 914; T Nhlapo Marriage and divorce in Swazi law and custom (1992) 17. [ Links ] He points out that this classification is not without problems. According to him, 'duality' implies the existence of two legal systems on par with each other, whilst the co-existence of customary law and the general law are mostly an unequal relationship where the first is seen as inferior to the latter (6). However, a discussion of these issues falls beyond the scope of this discussion. Also, finding legal information on Swaziland, such as legislation, royal decrees, court decisions and textbooks, is no easy matter. A research report written by B Dube & A Magagula The law and legal research in Swaziland http://www.nyulawglobal.org/Globalex/Swaziland.htm (accessed 13 April 2008) provides valuable background information as a starting point to discover more about the Swazi legal system. [ Links ] Some of the latest decisions of the higher courts of Swaziland can be found at http://www.saflii.org/sz/ (accessed 13 April 2008).
5 Nhlapo (n 4 above) 7-16 explains how this progressed in Swaziland from 1907 onwards. In South Africa, it is no secret that colonialism has had a considerable impact on the existence and development of law. Modern South African law comprises a conglomeration of so-called transplanted laws made up of a mixture of Roman-Dutch law and English common law, as well as indigenous laws, referred to as customary law.
6 Sec 252(1) reads: 'Subject to the provisions of this Constitution or any other written law, the principles and rules that formed, immediately before the 6th September, 1968 (Independence Day), the principles and rules of the Roman Dutch Common Law as applicable to Swaziland since 22nd February 1907 are confirmed and shall be applied and enforced as the common law of Swaziland except where and to the extent that those principles or rules are inconsistent with this Constitution or a statute.'
7 Sec 252(2) reads: 'Subject to the provisions of this Constitution, the principles of Swazi customary law (Swazi law and custom) are hereby recognised and adopted and shall be applied and enforced as part of the law of Swaziland.' Sec 252(3) reads: 'The provisions of subsection (2) do not apply in respect of any custom that is, and to the extent that it is, inconsistent with a provision of this Constitution or a statute, or repugnant to natural justice or morality or general principles of humanity.'
8 See sec 1 of the Law of Evidence Amendment Act 45 of 1988. This provision resembles the Swazi repugnancy clause in the Swazi Courts Act 80 of 1950 which lays down that Swazi customary law prevails in Swaziland 'so far as it is not repugnant to natural justice or morality or inconsistent with the provisions of any law in force in Swaziland' (see sec 11(a) of the Act).
9 The South African Constitution compels the courts to apply customary law when that law is applicable. However, such application is subject to the Constitution and any legislation that specifically deals with customary law; see secs 31 (2) and 211. Although section 1(1) of the Law of Evidence Amendment Act is still in operation, it can safely be accepted that the South African Constitution removed any doubt as to the status of customary law in the South African legal system; it is part of modern South African law on a par with (and not subordinate to) the common law (Roman-Dutch law). In Alexkor Ltd v Richtersveld Community 2003 12 BCLR 1301 (CC) para 51 it was stated: 'While in the past indigenous law was seen through the common law lens, it must now be seen as an integral part of our law. Like all law, it depends for its ultimate force and validity on the Constitution. Its validity must now be determined by reference not to common-law, but to the Constitution.' See also Bhe v Magistrate, Khayelitsha (Commission for Gender Equality as Amicus Curiae); Shibi v Sithole; South African Human Rights Commission v President of the Republic of South Africa 2005 1 SA 580 (CC) paras 40 & 148; Pharmaceutical Manufacturers Association of SA: In re Ex Parte President of the Republic of South Africa 2000 2 SA 674 (CC) para 44; and Mabuza v Mbatha 2003 4 SA 218 (C) para 32. However, the question as to when customary law is applicable and when not, is not always easy to answer. For one, there is always the question whether the general law of South Africa (Roman-Dutch law) is to be applied or the customary law and, in addition to this, the question which customary laws must be applied, because South Africa does not have a unified system of customary laws. For a discussion of the choice of law rules in South Africa, see TW Bennett 'The conflict of laws' in JC Bekker et al (eds) Introduction to legal pluralism in South Africa (2006) 18-27. [ Links ]
10 It is not easy to try to define religion. Over the years, many scholars have attempted to explain what they think the definition should be. In Wittmann v Deutscher Schülverein, Pretoria 1998 4 SA 423 (T) 449, the court held that the concept 'religion' is not neutral and declared as follows: 'It is loaded with subjectivity. It is a particular system of faith and worship. It is the human recognition of superhuman controlling power and especially of a personal God or gods entitled to obedience and worship .... It cannot include the concepts of atheism or agnosticism which are the very antithesis of religion. The atheist and agnostic is afforded his protection under the freedom of thought, belief and opinion part of this section.' For purposes of this presentation, the definition of RL Johnstone Religion and society in interaction (1975) 20 is satisfactory, [ Links ] namely that it is 'a system of beliefs and practices by which a group of people interprets and responds to what they feel is supernatural and sacred'.
11 Swazi traditional religion is a religion which was handed down from generation to generation. It has neither a founder nor a time of revelation and can only be explained through the historical development of die Swazi nation. In this context, the Swazi traditional religion is an amalgamation of the religious traditions of the various traditional communities who merged over the years to form the Swazi nation. See P Kasenene Religion in Swaziland (1993) 9-41 for a discussion of the development and characteristics of Swazi traditional religion. [ Links ] The relationship between Swazi traditional religion and Christianity is not always an easy one. Every now and then the courts do express their dissatisfaction with traditional beliefs. Eg, in Rex v Sibusiso Shongwe & Others (17/1998)  SZHC 6 (8 February 2000), Judge Maphalala made the following comment during sentence: 'There is also an uncanny aspect to this case, that is you are all proclaimed Christians, and that you believe in the teachings of Jesus Christ. You went further to produce a cassette which is now popular in the Zion circles, but you still have such a dark sinister belief in witchcraft. These two are two different ways of life. Christianity is a way of life or witchcraft practice is another way of life. These two do not come together; in fact the one fights the other; it is a contradiction for one to believe in both of them.'
12 See MHY Kaniki 'Christianity and the ideological base of the Swazi monarchy' in AM Kanduza & ST Mkhonza (eds) Issues in the economy and politics of Swaziland since 1968 (2003) 68-82 for an overview of the historical development of Christianity in Swaziland. [ Links ]
13 Literally meaning something rolled up in a bundle. The term was interpreted to mean a book, and in this context the Bible.
14 Literally meaning a round, disc-like object. The term was interpreted to mean money.
15 Much has been written about the vision of King Somhlolo and not all the authors are convinced of the authenticity and meaning of the vision. See, inter alia, Mzizi (n 1 above) 917-918; Kaniki (n 12 above); JB Mzizi 'Is Somhlolo's dream a scandal for Swazi hegemony? The Christian clause debate re-examined in the context of prospects for religious accommodation' (unpublished paper); Vilakati, JN 'Revisiting divine providence in a monetary economy' in AM Kanduza & S DuPont Mkhonza (eds) Poverty in Swaziland: Historical and contemporary forms (2003) 163-164; [ Links ] Kasenene (n 11 above) 43-45.
16 See Kasenene (n 11 above) 63-68 for a discussion of the impact of Christianity on Swazi society.
17 A blend of Christianity and indigenous ancestral worship. See https://www.cia.gov/library/publications/the-world-factbook/geos/wz.html (accessed 17 March 2008). See Mzizi (n 1 above) 923-928 for a general exposition on Zionism in Swaziland. See also JB Mzizi 'Voices of the voiceless: Toward a theology of liberation for post-colonial Swaziland' unpublished LLD thesis, Vanderbilt University, Nashville, 1995 227-232. [ Links ]
18 For a discussion of Islam in Swaziland, see Kasenene (n 11 above) 69-97.
19 Kasenene (n 11 above) 99-129.
20 See United States Department of State, 2007 Report on International Religious Freedom - Swaziland, 14 September 2007 http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain? docid=46ee676ac (accessed 12 March 2008). [ Links ]
21 See Mzizi (n 1 above) 928-930 936 for his discussion of Christian diversity in Swaziland. See also CAB Zigira 'From Christian exclusion to religious pluralism' in Kanduza & Mkhinza (n 12 above) 83-88.
22 See sec 2 below.
23 Eg, Mzizi (n 1 above) 909-936; Kaniki (n 12 above) 68-82.
24 For a detailed discussion of the making of the Swazi Constitution, see Dhlamini (n 3 above) 33-62.
25 High Court and Supreme Court (formerly Court of Appeal).
26 See eg Malambe Solomon Petros v Rex (59/1999)  SZCA 5 (24 April 2003), where the court referred to some of the well-known South African criminal law authors such as Hoffmann & Zeffert, Gardiner & Lansdowne and Hunt.
27 Eg, in the Swazi case, Mike Mamba v Fidelis De Sousa (28/2002)  SZCA 40 (22 November 2002), the court referred to the South African cases Sewmungal NNO v Regent Cinema 1977 1 SA 814 (N); Room Hire Company (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 3 SA 1155 (T); Trust Bank van Afrika Bpk v Western Bank Bpk NNO 1978 4 SA 281 (AD) and Administrator Transvaal v Theletsane 1991 2 SA 192 (AD). Other examples of recent Swazi cases referring to South African cases include Dlamini Themba v Rex (25/2002)  SZCA 36 (15 November 2002); Mabuza Roy Ndabazabantu v King (35/2002)  SZCA 23 (1 November 2002); Gwebu Ray v Rex (19/2002; 20/2002)  SZCA 22 (1 November 2002); Councilor Mandla Dlamini and Manzini City Council v Musa Nxumalo (10/2002 )  SZCA 16 (1 November 2002); Dlamini v Editor of the Nation (2534/2007)  SZHC 16 (1 February 2008) and R v Oparaocha (193/2007)  SZHC 17 (14 February 2008).
28 See eg Gwebu George Rex; Bhembe Lucky Nhlanhla David v King (11/2002; 20/2002)  SZCA 2 (4 February 2003) where the court compared the Swazi Interpretation Act 21 of 1970 with the South African Interpretation Act 33 of 1957, as well as the writings of South African authors.
29 Civil Appeal 27/07  SZSC 1 (6 November 2007). See also Stapley v Dobson (2240/07)  SZHC 11 (1 February 2008).
30 Beckenstrater v Rottcher & Theunissen 1955 1 SA 129 (A).
31 Civil Case 2792/2006  SZHC 1 (6 November 2007).
32 In the alternative, they contended that sec 25 of the Swazi Constitution afforded them the right to free and fair elections. The court's comment on this contradiction is quite entertaining: 'It is curious to observe that section 25 on which the applicants rely for the alternative relief is part of the very Constitution they seek to have declared null and void with no force and effect. It is a curious contradiction!' (See para 11.)
33 Sec 35 of the Swazi Constitution provides for so-called 'bill of rights' litigation. See para 21.
34 See paras 15-16, 21 & 25-28.
35 See paras 21-31.
36 1996 4 SA 744 (CC).
37 See para 31.
38 See paras 42-46.
39 Mzizi (n 1 above) 910.
40 See also Mzizi (n 15 above) 18-24.
41 See sec 4(1) of the draft Swazi Constitution. Although it proclaimed Christianity as the official religion of Swaziland, it did provide for the co-existence or practice of other religions (see sec 4(2) of the draft Swazi Constitution).
42 The 1968 Swazi Constitution did indeed contain a general clause protecting freedom of religion; albeit subject to public interest (see sec 11). However, this Constitution was in essence replaced by the King's Proclamation to the Nation of 12 April 1973 and subsequent royal decrees. C Maroleng 'Swaziland: The King's Constitution' African Security Analysis Programme Situation Report, 26 June 2003 Institute for Security Studies http://www.iss.co.za/af/current/swazijun03.pdf (accessed 12 March 2008) 1-3. [ Links ]
43 See clause 4 of the Swazi Constitution Bill.
44 See sec 2.3 below.
45 Mzizi (n 15 above) 24.
46 The Swazi King and government's commitment to freedom of religion is also evident from the annual United States Reports on International Freedom of Religion which illustrates that there are relatively few incidents relating to religion. For the latest report, see United States Department of State (n 20 above).
47 Mzizi (n 15 above) 25-26.
48 This viewpoint is in accordance with the South African principle of ubuntu - a concept of customary law that refers to the key values of group solidarity, namely compassion, respect, human dignity and conformity to the basic norms of the collectivity. See C Rautenbach 'Therapeutic jurisprudence in the customary courts of South Africa: Traditional authority courts as therapeutic agents' (2005) 21 South African journal on Human Rights 330-331 and the additional sources referred to in the notes. [ Links ]
49 Traditionally, the mother of the King. See sec 7(1) of the Swazi Constitution.
50 Sec 11 of the Swazi Constitution reads: 'The King and iNgwenyama shall be immune from (a) suit or legal process in any cause in respect of all things done or omitted to be done by him; and (b) being summoned to appear as a witness in any civil or criminal proceeding.' The immunity of the iNgwenyama is reiterated in sec 7(5) which reads: 'Civil proceedings shall not be instituted or continued in respect of which relief is claimed against the Queen Regent for anything done or omitted to be done by the Queen Regent in her private capacity and shall not be summoned to appear as a witness in any civil or criminal proceedings.'
51 Swaziland acquired independence on 6 September 1968 under a Westminster style Constitution and, although the Constitution was repealed in 1973, its influence is still evident today in certain areas of law. JH Proctor 'Traditionalism and parliamentary government in Swaziland' (1973) 72 African Affairs 273-287; [ Links ] Prime Minister of Swaziland v MPD Marketing & Supplies (Pty) Ltd (Appeal Case 18/2007)  SZSC 11 (15 November 2007)).
52 Secs 163-171 of the Swazi Constitution deal with the doings of the Commission.
53 Sec 4(4) of the Swazi Constitution confirms that the King and iNgwenyama have all the prerogatives conferred upon him or her by the Swazi Constitution or any other law, including Swazi traditional law, and that these prerogatives must be exercised in the spirit of the Constitution. This is confirmed in sec 276 of the Swazi Constitution.
54 Secs 78 and 275 of the Swazi Constitution are the only two sections specifically referring to a prerogative, namely that of mercy.
55 Prime Minister of Swaziland v MPD Marketing & Supplies (Pty) Ltd (n 51 above) para 27.
56 Ch VI sets out the powers of the King in his capacity as head of state and as head of the executive authority.
57 n 51 above.
58 Sec 4(4) reads: 'The King in his capacity as Head of State has authority, in accordance with this Constitution or any other law, among other things to (a) assent to and sign bills; (b) summon and dissolve Parliament; (c) receive foreign envoys and appoint diplomats; (d) issue pardons, reprieves or commute sentences; (e) declare a state of emergency; (f) confer honours; (g) establish any commission or vusela; and (h) order a referendum.'
59 See para 27. The Court did find that there can be no other unspecified prerogatives than the eight prerogatives specified in the Constitution.
60 1997 4 SA 1 (CC).
61 See sec 84 of the South African Constitution (and sec 82 of the interim Constitution). For a discussion of prerogative powers in South Africa, see C Hoexter Administrative law in South Africa (2007) 32-34.
62 An imprisoned father argued that the pardon unfairly discriminated against fathers with children under the age of 12.
63 See para 5.
64 See para 13.
65 This is one point of difference between the South African and Swazi situation. The maxim 'the King can do no wrong' does not apply to the President and the actions of the latter could be reviewed for human rights violations, as was illustrated in President of the Republic of South Africa v Hugo (n 60 above).
66 See sec 2.3 below.
67 See sec 20 of the Swazi Constitution. See also the concerns raised by Maroleng African Security Analysis Programme Situation Report, 26 June 2003 4-5.
68 A number of provisions in the Swazi Constitution deal with religion. These provisions will be dealt with in the following paragraphs.
69 See sec 2.3.3 below.
70 See L du Plessis Re-interpretation of statutes (2002) 239-244 for a discussion of these cases and other viewpoints. [ Links ] See also GE Devenish A commentary on the South African Constitution (1998) 29-32. [ Links ]
71 1995 7 BCLR 793 (CC) para 112.
72 Although he expressed his views on the Preamble to the interim Constitution, these viewpoints have been followed with regard to the final Constitution as well. See the cases referred to in Du Plessis (n 70 above) 241 n 135.
73 The Preamble in the South African Constitution reads: 'May God protect our people.'
74 1997 9 BCLR 1167 (CC) para 28.
75 See sec 15 of the South African Constitution and the discussion in sec 2.3.4 below.
76 See para 28. In accordance with sec 144, the Constitutional Court has to certify that all provincial constitutions comply with sec 143 of the of the South African Constitution, thus guaranteeing its consistency with the South African Constitution. The right of a provincial legislature to enact a constitution is derived from sec 142 of the Constitution.
77 The equal status of persons is again emphasised by reference to a person's 'gender, race, place of origin, political opinion, colour, religion, creed, age or disability' (my emphasis). See sec 14(3).
78 Sec 14(1). This section resembles secs 7 and 8 of the South African Constitution.
79 Sec 14(1) promotes (a) respect for life, liberty, right to fair hearing, equality before the law and equal protection of the law; (b) freedom of conscience, of expression and of peaceful assembly and association and of movement; (c) protection of the privacy of the home and other property rights of the individual; (d) protection from deprivation of property without compensation; (e) protection from inhuman or degrading treatment, slavery and forced labour, arbitrary search and entry; and (f) respect for rights of the family, women, children, workers and persons with disabilities.
80 Including the executive, legislature and judiciary and other organs of state (see sec 14(2)).
81 The Constitution uses the phrase 'where applicable to them', but is silent on the circumstances when this duty will applicable to other individuals. Sec 14(3) might provide a clue as to the applicability, namely that an individual must respect the religious freedom of another individual.
82 The term is derived from the Latin term respicere, which means to 'look back' or 'pay attention to'. Nowadays, it has a variety of meanings, including 'an attitude of deference, admiration, or esteem; regard', 'to pay proper attention to; not violate' and 'to show consideration for; treat courteously or kindly'; Reverso Dictionary http://dictionary.reverso.net/english-definitions/respect (accessed 21 April 2008). [ Links ]
83 The term 'uphold' means 'to maintain, affirm, or defend against opposition or challenge', 'to give moral support or inspiration to' and 'to support physically'; Reverso Dictionary http://dictionary.reverso.net/english-definitions/uphold (accessed 21 April 2008).
84 Sec 14(2).
85 See sec 2.3.3 below. This is also the viewpoint of I Currie et al The Bill of Rights handbook (2005) 350 pertaining to the South African situation. [ Links ]
86 See sec 36.
87 The fact that the Swazi Constitution does not contain a general limitation clause is not problematic, since most of the rights and freedoms contained in the Bill of Rights are textually qualified, thus providing the limitations of those rights and freedoms. This phenomenon can be referred to as internal limitations.
88 This is also in accordance with the comments made regarding sec 7 of the South African Constitution. See L du Plessis & A Gouws 'The gender implications of the final Constitution (with particular reference to the Bill of Rights)' (1996) 11 SA Public Law 473-475. [ Links ]
89 United States Department of State (n 20 above).
90 See also the discussion in sec 2.3.7 below.
91 Sec 10 reads: 'Everyone has inherent dignity and the right to have their dignity respected and protected.'
92 See eg National Coalition for Cay and Lesbian Equality v Minister of Justice 1998 12 BCLR 1517 (CC) para 17, where the Constitutional Court indicated that the right to equality is closely connected to other rights and values such as human dignity. If differentiation results in the impairment of human dignity, such differentiation is unfair and should not be tolerated. The Court applied this factor to the facts of the case and emphasised that the discrimination against gay men had gravely affected their fundamental dignity (para 26).
93 Sec 18 reads: '(1) The dignity of every person is inviolable. (2) A person shall not be subjected to torture or to inhuman or degrading treatment or punishment.'
94 The concept dignity appears in the following provisions of the Swazi Constitution: See secs 18 (inhuman or degrading treatment); 30 (disabled persons); 57(2) (law enforcement); 58(3) (political objectives);60(6) (social objectives); and 141(3) (judiciary).
95 Sec 9 of the South African Constitution and sec 20 of the Swazi Constitution. Sec 20(1) of the Swazi Constitution reads: 'All persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law.'
96 Sec 20(2) reads: 'For the avoidance of any doubt, a person shall not be discriminated against on the grounds of gender, race, colour, ethnic origin, tribe, birth, creed or religion, or social or economic standing, political opinion, age or disability.' Sec 20(3) reads: 'For the purposes of this section, "discriminate" means to give different treatment to different persons attributable only or mainly to their respective descriptions by gender, race, colour, ethnic origin, birth, tribe, creed or religion, or social or economic standing, political opinion, age or disability.'
97The free dictionary Farlex http://www.thefreedictionary.com/creed (accessed 13 April 2008); [ Links ] Collins dictionary Reverso http://dictionary.reverso.net/english-definitions/creed (accessed 13 April 2008). [ Links ]
98 See secs 14(3), 20(2) & (3), 23(1) & (2) & 23(4)(b).
99 See secs 14(3), 20(2) & 20(3).
100 See secs 23(1) & (2).
101 See secs 14(1)(b), 23(1) & (2) & 28(3).
102 See secs 23(2) & 23(4)(b).
103 See also the discussion of RC Blake & L Litchfield 'Religious freedom in Southern Africa: The developing jurisprudence' (1998) Brigham Young University Law Review 532-534. [ Links ]
104 Johnstone (n 10 above) 20.
105 The long title of the Act reads: 'To give effect to section 9 read with item 23(1) of Schedule 6 to the Constitution of the Republic of South Africa, 1996, so as to prevent and prohibit unfair discrimination and harassment; to promote equality and eliminate unfair discrimination; to prevent and prohibit hate speech; and to provide for matters connected therewith.'
106 See Minister of Health v New Clicks South Africa (Pty) Ltd 2006 2 SA 311 (CC) para 437.
107 See Currie et al (n 85 above) 268.
108 See sec 9(1).
109 See secs 9(3) & (4).
110 See secs 9(3) & (5).
111 The latter form of equality is referred to as formal equality. See the discussions of TP van Reenen 'Equality, discrimination and affirmative action: An analysis of section 9 of the Constitution of the Republic of South Africa' (1997) SA Public Law 153-154; [ Links ] President of South Africa v Hugo (n 60 above) para 41 ; National Coalition for Gay and Lesbian Equality v The Minister of Justice (n 92 above) paras 60-64.
112 1999 1 SA 6 (CC) para 132.
113 Z Motala & C Ramaphosa Constitutional law: Analysis and cases (2002) 259 say: 'The mere fact that a law treats different people in dissimilar ways is not necessarily discriminatory. [ Links ] Legislation that differentiates between people in a way which impairs their fundamental dignity as human beings is discrimination' (authors' emphasis).
114 See the discussion in Currie et al (n 85 above) 243-248.
115 See sec 20(5).
116 The dictionary meaning of discrimination includes 'unfair treatment of a person, racial group, minory, etc,' and is an 'action based on prejudice' (my emphasis) Reverso Dictionary http://dictionary.reverso.net/english-definitions/discrimination (accessed 21 April 2008).
117 See sec 9(4).
118 1998 2 SA 363 (CC).
119 See para 32.
120 See para 105.
121 2008 1 SA 474 (CC).
122 In this case, the Court had to decide whether a public school's prohibition to wear a nose stud discriminated against a Hindu learner's freedom of religion or culture.
123 See paras 70-79.
124 Sec 9(2) of the South African Constitution and sec 20(5) of the Swazi Constitution.
125 For a discussion of some of these cases, see C Albertyn & B Goldblatt 'Equality' in S Woolman et al (eds) Constitutional law of South Africa (2008) 35. [ Links ]1-85 and Currie et al (n 85 above) 229-271 336-357.
126 Sec 15(1) reads: 'Everyone has the right to freedom of conscience, religion, thought, belief and opinion.'
127 See sec 23(1).
128 See also P Farlam 'Freedom of religion, belief and opinion' in Woolman et al (n 125 above) 41.12-16.
129 See sec 23(2).
130 What is protected here is the individual religious right exercised communally. Sec 31 of the South African Constitution has a similar effect. See the discussion in Currie et al (n 85 above) 623-635.
131 See sec 23(2) of the Swazi Constitution.
132 For a discussion of the problem on waiver in South African law, see Currie et al (n 85 above) 39-43.
133 Eg S v Lawrence; S v Negal; S v Solberg 1997 4 SA 1176 (CC); Christian Education South Africa v Minister of Education 2000 10 BCLR 1051 (CC); Prince v President of the Law Society of the Cape of Good Hope 2001 2 SA 388 (CC).
134 1997 4 SA 1176 (CC). The case dealt with religious freedom, contained in sec 14 of the 1993 Constitution. The wording of sec 14 is similar to that of sec 15 of the Constitution. The principles regarding sec 14 would therefore also apply to sec 15 of the Constitution.
135 In this case, the Court had to consider whether the prohibition to sell liquor on a Sunday infringed on the appellants' freedom of religion.
136 (1985) 13 CRR 64 97.
137 Currie et al (n 85 above) 339. This is also in accordance with sec 23(2) of the Swazi Constitution.
138 See para 85.
139 Para 104. See also the discussion of Motala & Ramaphosa (n 113 above) 381-382.
140 Para 105.
141 The annual reports are accessible at http://www.state.gov (accessed 13 April 2008).
142 United States Department of State, 2006 Report on International Religious Freedom - Swaziland, 15 September 2006. [ Links ] Online US Department of State Bureau of Democracy, Human Rights and Labour http://www.state.gov/g/drl/rls/irf/2006/71327.html (accessed 12 March 2008). [ Links ]
143 Sec 23(3) reads: 'A religious community is entitled to establish and maintain places of education and to manage any place of education which that community wholly maintains, and that community may not be prevented from providing religious instruction for persons of that community in the course of any education provided at any place of education which that community wholly maintains or in the course of any education which that community otherwise provides.'
144 Blake & Litchfield (n 103 above) 533.
145 See sec 2.3.5 above. His attendance of the religious place of education will be seen as his consent to be taught in the religions of the relevant religious community.
146 See sec 23(4)(b) of the Swazi Constitution which reads: 'Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision ... that is reasonably required for purposes of protecting the rights and freedoms of other persons, including the right to observe and practise any religion or belief without the unsolicited intervention of members of any other religion or belief.'
147 The South African Constitution allows for religious observances in public schools under certain circumstances. Sec 15(2) reads: 'Religious observances may be conducted at state or state-aided institutions, provided that (a) those observances follow rules made by the appropriate public authorities; (b) they are conducted on an equitable basis; and (c) attendance at them is free and voluntary.' For a discussion of the scope and meaning of this provision, see Currie et al (n 85 above) 351-354.
148 United States Department of State (n 20 above).
149 See sec 2.3.3 above.
150 In Wittmann v Deutscher Schülverein, Pretoria (n 10 above) 440, the court defined religious observance as 'an act of a religious character, a rite. The daily opening of a school by prayer, reading of the scripture (and possibly a sermon or religious message, and benediction) is such an observance.'
151 n 134 above.
152 This section refers to the 1993 Constitution and is the equivalent of sec 15(2) of the new South African Constitution.
153 See para 103.
154 See Currie et al (n 85 above) 353-354.
155 Blake & Litchfield (n 103 above) 536.
156 In terms of sec 261(1) of the Swazi Constitution, the term 'oath' also includes affirmation.
157 Sec 45(4) Swazi Constitution.
158 See sec 129(5)(a) of the Swazi Constitution.
159 Sec 36(1) of the South African Constitution reads: 'The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors A list of factors are included in secs 36(1)(a)-(e) of the Constitution.
160 See sec 23(4)(a) of the Swazi Constitution. All these concepts resort under the maxim 'public interest'.
161 See sec 23(4)(b) of the Swazi Constitution.
162 See sec 23(2) of the Swazi Constitution.
163 That is, religions that have not operated in Swaziland before.
164 Mzizi (n 1 above) 930.
165 United States Department of State (n 20 above).
166 As above.
167 n 103 above, 558-560. Although their research focused on religious freedom in Southern Africa in general, their argument can be applied mutatis mutandis to constitutional issues pertaining to religious freedom in Swaziland.