Unit 6

Question 1

What is the content of section 15?

Answer 1

1) Everyone has the right to freedom of conscience, religion, thought, belief and opinion
2) Religious observance may be conducted at state or state-aided institutions, provided that -
a) Those observances follow the rules made by the appropriate public authorities
b) They are conducted on an equitable basis
c) Attendance at them is free and voluntary
3) a) This section does not prevent legislation recognising -
i) Marriages concluded under any tradition, or a system of religious, personal or family law; or
ii) Systems of personal and family law under any tradition, or adhered to by persons professing a particular religion
b) Recognition ito para. a, must be consistent with this section and the other provisions of the C.

Question 2

What is the content of section 31?

Answer 2

1) Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community -
a) to enjoy their culture, practice their religion and use their language; and
b) to form, join and maintain cultural, religious and linguistic associations and other organs of civil society
2) The rights in ss (1) may not be exercised in a manner inconsistent with any provisions of the BoR

Question 3

What is meant by the scope of freedom of religion?

Answer 3

• Freedom of religion includes the right to 1) have a blief, 2) to express that belief publicly, and 3) to manifest that belief by worship and practice, teaching and dissemination.
• It prohibits the coercion or constraint that might force people to act or refrain from acting in a manner contrary to their religious beliefs.
• The state is required by the BoR to acknowledge the value of religious diversity and pluralism.
• The BoR affirms “the right to be who a person is, without being forced to subordinate themselves to the cultural and religious norms of others”
• The right to be different

Question 4

Explain the scope of religious freedom regarding religious institutions (15)

Answer 4

• Under the right to freedom of religion, resorts the right to establish, maintain and manage religious institutions
• The freedom of religion also guarantees a degree of autonomy for religious groups to run their affairs without interference
• Since the institution’s rules are unlikely to qualify as “law of general application”, the question whether its conduct violates section 9, will turn on whether the discrimination is regarded as “unfair”.
• On the other hand, if the state compels religious institutions to do something (eg. appoint women priests), the institutional aspects of the right to freedom of religion is violated.
• It will be necessary to balance the freedom of religion against the right to equality
• Discrimination on grounds of gender and sexual orientation will likely be permissible in so far as it is required by the tenets of the religion
• A court may interfere where the procedures taken by an ecclesiastical tribunal were illegal and irregular; where civil, pecuniary, temporal or proprietary rights were affected or violated; where the tribunal had acted by methods which were prejudicial to the complainant by being contrary to its own constitution; and where the tribunal had acted against the ordinary principles of justice.
• Tribunal may not act ultra vires
• Courts make it clear that an ecclesiastical body may adopt rules for enforcing discipline which will be binding on those who expressly or by implication have consented thereto.
• There is a development from a narrower approach by our courts (where it was limited to the cases where tribunals exceeded their own regulations) to a wider approach where the courts can now submerge itself into the rules, regulations and doctrine of the body iot determine whether the relevant tribunal had acted reasonably
• The court, not the tribunal, has jurisdiction in the interpretation of the ecclesiastical order.
• The various ecclesiastical bodies must not only criticise the secular approach when necessary, but must also get their own houses in order
• This entails that the formal and material aspects requires concentrated effort
• When there is conflict between religious practices and conflicts with other rights, each case would need to be determined individually. But certain rights, such as the taking of life, cannot be violated by the exercise of religion.

Question 5

In detail explain the importance of MEC for Ed.: KZN v Navaneethum Pillay for religious rights and freedoms in SA

Answer 5

• It raises vital questions about the nature of discrimination under the provisions of PEPUDA as well as the extent of protection afforded to cultural and religious rights in the public school setting and beyond
• The evidence confirmed that the nose stud is a voluntary expression of South Indian Tamil Hindu culture, that is intimately intertwined with the Hindu religion.
• The borders between culture and religion are malleable and religious belief informs cultural practice and cultural practice attains religious significance
• Religious and cultural practices are protected because they are are central to human identity and hence to human dignity (which is central to equality)
• The protection of voluntary as well as obligatory practices also conforms to the C’s commitment to affirming diversity - a commitment in line with SA’s decisive break from its history of intolerance and exclusion
• The Court emphasised the principle of reasonable accommodation
• Sometimes that community 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.
• The question is to what the parameters should be for such “reasonable accommodation”
• The Court warned against aligning the “fairness” test with that of the said principle, because the factors relevant to the determination of fairness have been carefully articulated by the legislature and that option has been specifically avoided.
• Fairness did require a reasonable accommodation due to
  1) It is most appropriate where discrimination aries from a rule or practice that is neutral on its face and designed to serve a valuable purpose
  2) Reasonable accommodation is particularly appropriate in specific localised contexts, such as a school, where a reasonable balance between conflicting interests may more easily be struck.
• The Court stated the following requirements that the School had to consider:
  a) The importance of the practice to Sunali
  b) The hardship that permitting her to wear the stud would cause the school.
• Court’s conclusion:
  a) The discrimination had a serious impact on Sunali
  b) Allowing the stud would not have imposed an undue burden on the school
  c) A reasonable accommodation would have been achieved by allowing Sunali to wear the stud