Regulating Religion

State Governance of Religious Institutions in South Africa

Helena Van Coller

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781351580151
• Edition: 1
• Topic: Diritto
• Subtopic: Teoria e pratica del diritto

This book focuses on government regulation of religious institutions in South Africa. PART 1 explains the meaning of government regulation for religious communities by providing a brief overview of the relationship between church and state, the right to freedom of religion and the legal status of religious organisations. With reference to case examples, this section highlights the importance of religious autonomy and the right to self-determination of religious institutions and non-interference by the state in the internal affairs of the organisation. No fundamental rights are however absolute and the section concludes with a discussion on the limitation of rights and an overview of the relevant constitutional provisions and anti-discrimination laws in place relevant to religious organisations, in the context of equality and non-discrimination. PART 2 discusses in more detail the daily rights, responsibilities and freedoms associated with the right to freedom of religion within some specific spheres of society where regulation of religion has occurred or are necessary or has proved to be problematic. It includes those related to the role of religion in society; the relations between religion and state institutions; education; finance; family matters; employment law; planning law; broadcast media and general governance issues.

Part 1

1 Introduction and Background

Church and state relationship in South Africa

Brief historical overview

In South Africa, between 1652 and 1795, the government followed a Constantinian model in respect of the relationship between church and state. This approach focused not only on government protection of the church, but also on government control over the church. As pointed out by Hiemstra:¹

The basic structure proposed by the Constantinian model is that political authorities are understood to be dominant over church authorities. Firstly, this means political authorities often assist, influence, and sometimes fully control church authority. Secondly, the state’s control includes advancing and supporting ‘true religion’ through the use of its coercive power.

Although there is no state religion established by law in South Africa, it has not always been the case. In 1795, the Cape came under the control of the British and the occupation continued until 1803 when the Batavian Republic took control of the Cape Colony in 1803 until 1806. JA de Mist was appointed the Commissioner-General and with his publication of the ‘Church Order of the Mist’, he was of the view that no civilised society could exist without religion.² According to section 4 of the Provisioneele Kerken-Orde voor de Bataafsche Volksplanting aan de Kaap de Goede Hoop of 1804 (Church Order of 25 July 1804), De Mist decreed that ‘no ecclesiastical bodies other than those that operated in the Cape when the Batavian Republic took control of the colony in 1803 would be permitted to conduct religious ceremonies or hold public gatherings’.³ Although De Mist saw it as the government’s duty to protect church associations, it could only be achieved within the boundaries of firm and just principles based on law and order. The effect of the Church Order of De Mist was in essence not the separation of church and state, but rather the total control of the state over the church.⁴ According to Jooste,⁵ this had the further effect that the church was seen as a mere voluntary association. A further shift in control and the relationship between church and state came in 1806, when the Cape Colony again was under British control. On 22 July 1843, the Dutch Reformed Church submitted Ordinance 7 of 1843 to the Legislative Council for consideration. This Ordinance was seen as a ‘code of law more adapted to the present circumstances of the Church and the Colony, than those comprised in the Church Ordinance of Commissioner-General De Mist’.⁶

1 JL Hiemstra ‘Church, State and the Kingdom of God, an Overview’ REC Focus, Quarterly Journal from the REC Commissions (2005) 5(2) 28.

2 P Coertzen ‘The Position of Churches in South Africa under a New Constitution’ in H Warnink (ed) Legal Position of Churches (2001) 37–38.

3 J Van der Vyver ‘Religion’ in WA Joubert and TJ Scott (eds) The Law of South Africa (2003) 23(1) para 149.

Section 8 of the Ordinance was of particular importance for the future position of the church, stating that ‘all church laws and regulations will legally be seen as the laws of a mere voluntary association, which are legally binding only on them who voluntary subject themselves to the said laws and regulations’ [own emphasis]. In a report by Sir William Porter in relation to this Ordinance, the views were expressed even more explicitly:

The Church laws are to be viewed as the rules of a mere voluntary association. It is not said, indeed that the D.R. Church is such a mere voluntary association; a position which her members would deny and which it would have been improper to lay down. But to declare that her legislation shall be judged of just as if she were such an association, is, I conceive a sound principle and with a legislation so limited, she cannot possibly do harm.⁷

The influence of English law also made its way into the decisions of the courts. In the 1922 case of Bredell v Pienaar,⁸ the Dutch Reformed Church was described by Watermeyer J as a voluntary association with reference to section 8 of the subsequently repealed Dutch Reformed Church of South Africa Ordinance 7 of 1843 (Cape) and the rules and regulations of the church were thus that of a voluntary association.⁹ The period up and until 1994 (including the 1910 Union of South Africa; the period of National Party control with its accompanying ‘apartheid’ policies and the birth of the Republic in 1960), was still characterised by the earlier Constantinian approach to a greater or lesser degree. Churches and religious organisations knew no real freedom of religion during these periods.¹⁰

4 Coertzen The Position of Churches 37–38.

5 JP Jooste Die Geskiedenis van die Gereformeerde Kerk in Suid-Afrika, 1859–1959 (1959) 15.

6 P Coertzen The Position of Churches 39.

7 FE O’Brien Geldenhuys Die Regsposisie van Kerkraad, Ring en Sinode onder die Gereformeerde Stelsel van Kerkregering soos toegepas in die Gefedereerde Ned Geref Kerke in Suid-Afrika (1951) 348.

8 Bredell v Pienaar 1922 CPD 578, 581.

9 Van der Vyver The Law of South Africa para 150–151.

10 P Coertzen ‘Grappling with Religious Differences’ Brigham Young University Law Review (2008) 785–788.

A new approach – the constitutionally protected right to freedom of religion

Constitutional change in South Africa took effect on 27 April 1994, when an interim constitution came into force. This was a transitional constitution, aimed at setting out the procedures for the negotiation of a final constitution. After lengthy negotiations, the Constitutional Assembly adopted the final constitution on 8 May 1996, which was certified by the Constitutional Court and signed into law on 4 February 1997. In 1990, during a National Inter-Faith Conference, South African religious groupings got together and adopted a Declaration on Religious Rights and Responsibilities, explaining in concrete terms what the right to freedom of religion meant for religious believers.¹¹ A compromise between a too strict separation between church and state and an approach of endorsing or favouring one religion over others was evident in the drafting of sections 15 and 31 of the Constitution. It does not prevent the state from recognising or supporting religion, but in addition requires the state to treat religions equally. Read together, these two provisions entrench the right of individuals and religious communities to exercise their religion freely. These two provisions have been described as ‘complementary and mutually supportive spheres’.¹²

In the South African context, Currie and De Waal¹³ argue that the debate about the meaning of ‘religion’ is unnecessary, because section 15 of the Constitution, apart from protecting the right to freedom of religion, also protects the rights to freedom of conscience, thought, belief and opinion. Section 15 protects a wide range of world-views, including agnosticism and atheism or the freedom to reject any religious beliefs. The South African Constitutional Court in National Coalition for Gay and Lesbian Equality v Minister of Justice ¹⁴ observed: ‘Religious practices are protected because they are considered to be central to human identity and hence to human dignity’.¹⁵ Similarly, in Christian Education South Africa v Minister of Education ¹⁶ the same court described the practice of religion as one of the hallmarks of an open, democratic and free society that awakens the ‘concepts of self-worth and human dignity which form the cornerstone of human rights’.

Those who advocated for religious freedom called for both religious tolerance as well as a secular state which did not give preference to one particular religion over others. According to Currie and De Waal,¹⁷ the interpretation of the right to freedom of religion still reflects its historical origins in that it is interpreted in relation to the extent to which the state recognises a religion and how it provides for the freedom to exercise or how it establishes that religion. The drafters of the Constitution was aware of the dangers associated with a too strict separation between church and state, but similarly one that is too close to the church, as was the case during the apartheid regime. Particularly in relation to religion and religious diversity, the Constitution has been described as one of ‘profound toleration and accommodation’.¹⁸ Various provisions in the Constitution support this view and the Constitutional Court, through its decisions, has emphasised the important role of religion, not only in society, but also the importance for the state as a component of our constitutional democracy.

11 I Currie and J De Waal The Bill of Rights Handbook 6 ed (2013) 315.

12 Currie and De Waal The Bill of Rights Handbook 316.

13 Currie and De Waal The Bill of Rights Handbook 316.

14 National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC).

15 National Coalition para 26.

16 Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC) para 36.

17 Currie and De Waal The Bill of Rights Handbook 315.

18 J Van der Vyver ‘Equality and Sovereignty of Religious Institutions: A South African Perspective’ Santa Clara Journal of International Law (2012) 10(1) 157.

Section 15 of the Constitution provides that everyone has the right to freedom of conscience, religion, thought, belief and opinion. However, individuals and community may not exercise the right in a manner inconsistent with the other provisions of the Bill of Rights. Section 15 includes different aspects of religious freedom, such as the freedom of religious choice, freedom of religious observance, freedom of religious teaching and freedom to propagate a religion.¹⁹ The right to freedom of religious choice is an individual right and doe...