EIGHTEENTH ANNUAL INTERNATIONAL LAW AND RELIGIOUS SYMPOSIUM 3 October 2011 Vic van Vuuren
South Africa • South Africa scenario vis a vis religion • Large country (50 million) • Variety of religions with Christianity being the most dominant • Absolute freedom of religion
South Africa • Impact of Apartheid • Protection of human rights has been focal point and protection of individual rights and matters of anti-discrimination has dominated the debate since democracy in 1994
South Africa • The majority of South Africans suffered discrimination of all forms during the Apartheid era; therefore, the advent of democracy in 1994 brought a plethora of laws to eliminate unfair discrimination, including discrimination affecting freedom of religion, belief and opinion and labor rights.
South Africa • The South African Bill of Rights presumes that any state or private discrimination on the basis of religion (or other suspect classifications) is unconstitutional “unless it is established that the discrimination is fair”
South Africa • Section 9 of the constitution deals with the concept of equality and in particular section 9 (3) deals with discrimination based on inter alia religion. • More specifically Section 9(3) states “The state may not unfairly discriminate directly of indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, color, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.”
South Africa • Section 9(3) is however qualified by section 9(5) which reads “Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.
South Africa • It is important to point out that the burden of proof lies on the respondent to prove that the discrimination is unfair and this is clearly stated in section 13(2)(a) of the Promotion of Equality and Prevention of Unfair Discrimination Act, No. 4 of 2000.
South Africa • The right to equality is protected by law in the Promotion of Equality and Prevention of Unfair Discrimination Act, No. 4 of 2000and the Employment Equity Act, No. 55of 1998. • The two acts work in synergy
South Africa • South African Constitution • Section 15 Freedom of religion, belief and opinion. • 15(1) Everyone has the right to freedom of conscience, religion, thought, belief and opinion. • 15(2) 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.
South Africa • (Continued) • (3) (a) This section does not prevent legislation recognising- • (i) marriages concluded under any tradition, or a system of religious, personal or • (ii) systems of personal and family law under any tradition, or adhered to by persons professing to a particular religion. • (3) (b) Recognition in terms of paragraph (a) must be consistent with this section and the other provisions of the Constitution.
South Africa • The Equality Court of South Africa Case no 26926/05 in the matter between John Daniel Strydom and Nederduitse Gereformeerde Gemeente Moreleta Park stated in dicta that an employee in a position of spiritual leadership can be terminated by a church for conduct in conflict with church doctrine, even if the grounds for termination is another protected classification.
South Africa • Strydom Case: • “If a court were to hold that churches could not deem sexual orientation, or any other enumerated ground in the equality clause, a disqualifying factor for priesthood, the effect for many churches could be devastating.”
South Africa • Strydom Case: • “Consequently, although the value of equality is foundational to the new constitutional dispensation, it is unlikely that equality considerations could outweigh the enormous impact of failing to give churches an exemption in relation to their spiritual leader.”
South Africa • Strydom case: • “Where appointment, dismissal and employment conditions of religious leaders (such as priests, imams rabbis, and so forth) are concerned, religious bodies are likely to be exempted from compliance with legislation prohibiting unfair discrimination.”
South Africa • Strydom case: • “I am not convinced on the evidence presented by the church that on the facts of the matter at hand the complainant was in such a position of spiritual leadership. In other words, the church has not rid itself of its onus in this instance. In casu, thedescription of the services to be rendered on the evidence was (in the absence of a written contract of work) to teach music at the “kunste-akademie” of the church.”
South Africa • Strydom Case (Cont) • “There was not a shred of evidence that the complainant had to teach Christian doctrine. On the contrary, the Christian foundations were taught at the “kunste-akademie” by ministers of the church. The complainant mostly taught issues around music (also technical issues). In the event, the complainant’s work involved no religious responsibilities at all.”
South Africa • Religious Charter • Over time religious rights have been overshadowed by the human rights debate • Religious leaders are now taking a proactive step to maintain a balance between religious rights and the rights of the individual • Negotiation of a “Religious Charter” • Initiated a process towards legislating the charter
South Africa • Religious Charter • SOUTH AFRICAN CHARTER OF RELIGIOUS RIGHTS AND FREEDOMS • Continuation Committee, South African Charter of Religious Rights and Freedoms
Process • Charter Process • Two paths • Should run simultaneously • Path 1 • Approach appropriate Government Department at Ministerial level • Approach Chairman of Parliamentary Port Folio Committee • Address the Port Folio Committee
Process • Path 2 • Approach organised business • Approach organised labour • Approach community constituents • Agree on timelines and look at interim implementation measures • Identify champions • Impact on the Sub region and possibly further
South Africa • Charter content • Preamble • Religious Rights • Best practice