Constitutional Perspective of Church-State Relations in South Africa Johan D

BYU Law Review

Volume 1999 | Issue 2 Article 8

5-1-1999 Constitutional Perspective of Church-State Relations in South Africa Johan D. van der Vyver

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Recommended Citation Johan D. van der Vyver, Constitutional Perspective of Church-State Relations in South Africa, 1999 BYU L. Rev. 639 (1999). Available at: https://digitalcommons.law.byu.edu/lawreview/vol1999/iss2/8

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Con st it ution al P er sp ect ive of Church-State Rela tion s in South Africa

Johan D. van der Vyver*

When one considers the con st it utional history of Sou th Af- rica, two aspects of its legal ar ra ngement s of yesteryear a lways come to mind: the syst em atic in st it ution alization by t he state of racist stru ctures; an d, in th e context of religious ma tt ers, a distinct bias for (a certain brand of) Chr istian ity. These two seem ingly contradictory attributes of the South African social, econ omic, political, and legal make-up have at least this in common: th ey denote th e fabric of a totalita ria n r egime both in the sense of the state’s interference in the private lives of individuals and of the state’s regulation of the internal affairs of non- state social institutions. For reasons th at will be stipulated later, t he mean ing a nd im plica tion s of the current constitutional dispensation cannot be fully appreciated without an insight in, and du e consideration of, the country’s past history. But there is yet a further contin gen cy brought about by the constitutional transformation of South Africa in 1994 wh ich has an impact on the interpretation of legally regulated South African institutions. It can perhaps best be depicted as the Africanization of those institutions. Ever since the first white settlem ent in South ern Africa in 1652, governmental control and economic power were, by an d large, the preser ves of th e countr y’s minority whit e elite, an d were consequ en tly d eliberately design ed and execu ted according to a distinctly Western, and more precisely, European, model. Typ ica lly, t his syst em in deed accommoda ted Africa n social and legal stru ctures, but only for Africans wh o, through personal choice or the pressures of involuntary circumstances, upheld a “traditional” life-style and were decidedly segregated from the patterns of mainstream living. The “new” South Africa

* I.T. Coh en Pr ofess or of I nt er na tion al L aw an d H um an Righ ts , Em ory University School of Law.

635 D:\ 199 9-2\ FI NAL \ VAN-FI N.W PD Ja n. 8, 2001

636 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 seeks to be of Africa ; its institutions must therefore be seen to reflect “typical African valu es.”1

I. THE HISTORICAL PER SP EC TIVE

The political and legal system of pr e-1994 South Africa was particularly noted for the totalitarian interference of the state in the private sphere of people’s day-to-day lives.2 In apar th eid South Africa, th e stat e prescribed, with r ace as the prim e criter ion , whom one could mar ry, where one could reside and own property, which schools and universities one would be allowed to atten d, and which jobs were r eser ved for person s of a particular race. The state dictated to sports clubs whom they could admit as members, and against whom they were perm itted to compete. The sick ha d to be conveyed in racially exclusive am bula nces, could only r eceive blood transfu sions from don ors of t heir own race, a nd on ly qualified for treatment in ra cially defined hospitals. The sta te even r egula ted, with race as the primary criterion, who would be allowed to attend church services in certain regions, and where one could be buried.3 These racist appendices of a totalitarian regime did not refle ct th e “spirit ” of, at lea st , t he victim s of t heir pr actica l impact, which—as everyone knows—constituted a vast m ajorit y of the South African nation. Nor were they supported by t he religiou s convict ion s of the people, or of a m ajorit y of the people, or for that matter of any distinct section of the people. Deliberate attempts to resort to the power of the sword as an instrument for the enforcement of the scruples of a dominant religion was also a distinct feature of the in st it ution alized st ructures of Sou th Africa. The law r egula tin g publications control thus provided: “In the application of this Act the constant endeavour of the popula tion of the Republic of South Africa to uphold a Christ ian view of life shall be recognised.”4 The law that regu la ted the edu cation al system for

1. CHRISTOF HEYNS, WHERE IS THE VOICE OF AFRICA IN OUR CONSTITUTION 1 (199 6). 2. See Johan D. van der Vyver, Constitutiona l Options for Post-Apartheid South Af rica , 40 EMORY L.J . 745 , 74 6-48 (199 1). 3. See als o Ferreira v. Levin NO, 1996 (1) BCLR 1 (CC), para. 51 (Ackermann, J., con cur ri ng ). 4. § 1 of Publication s Act 42 of 1974. But see Johan D. van der Vyver, General Aspects of the South African Censorship Law, in CENSORSH IP 9, 22-24 (T. Coggin ed ., D:\ 199 9-2\ FI NAL \ VAN-FI N.W PD Ja n. 8, 2001

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whites mandated the id eology of Ch ristia n-nation al ed ucation ,5 while another statute required that education in bla ck (Africa n) sch ools mainta in a Christian character6 (wit hout th e “national” component that applied in the case of segrega ted wh it e schools). The common-law offence of blasphemy applied t o the slanderin g of the God confessed by Ch ristia nit y only.7 This offense also applied to “blasph emous mat ter ” contained in publica tion s or objects, public entertainments or intended public entertainments, and films that would render the publication or object, public entertainment or intended public entertainm ent, or film “undesirable” and therefore subject to censorship.8 And then, of course, there was also an array of Sunday observance (national) stat ut es a nd (provincial) ordin an ces applyin g to commer ce an d industry,9 as well as to entertainm ent and recr ea tion .10 The const it ution that wa s in place befor e polit ica l transformation occurred in 1994 included a rather absurd constitutional confess ion of faith wh ich pr oclaim ed: “The people of the Republic of Sou th Africa a cknowledge t he sovereignty and guidance of Almighty God.”11 While the “Almighty God” referred to in the corresponding provision in South Africa’s first

198 3); Johan D. va n de r Vyver , Religi on, in 23 THE LAW OF SOUTH AFRICA para . 242 (W.A. Joub er t & T.J . Scot t e ds. , 198 6); J OH AN D. VAN DER VYVER , SEVEN LECTURES ON HUM AN RIGHTS 44-45 (1976) [hereinafter SEVEN LECTURES]. 5. See § 2(1)(a)-(b) of National Education Policy Act 39 of 1967. 6. See § 3(a) of Education and Train ing Act 90 of 1979. 7. See Pu bli cat ion s C ontr ol Boa rd v. G al lo (Afri ca) L td ., 1975 (3) SA 6 65 (A), 671; R. v. Webb, 1943 A.D. 493, 496. 8. See § 47(2)(b) of P ub lica tion s Act 42 of 19 74; see also Gal lo (Africa) Ltd., 1975 (3) SA 665 (A) 671; and see th e judgmen ts of th e Pu blications Appeal Board in Play with Fire, 1975 PAB 17, and Kalki, 1978 P AB 4. 9. For an exam ple of a law r elat ing to mine ra l rights which prohibited the pegging of a cla im on a Su nd ay a nd on p ub lic h olidays with a r eligious ba se, na mely Good Frida y, Ascension Day, the Day of the Vow (December 16th), and Christmas Day (see § 2 of th e Pu blic Hol ida ys Act 5 of 19 52), s ee § 4 8(4)(a ) of Min in g Rig ht s Act 20 of 1967 . Th e Min er als Act 50 of 1991 re pea led th is p rovision . 10. S ee, e.g., The Prohibition of the Exhibition of Films on Sundays an d Pu blic Holidays Act 16 of 1977 (rende rin g it an offence to exhibit, s ave wit h the cons en t of the Minister of Just ice or an officer of the Department of Justice acting under the Minister’s auth ority, a film on Sundays or on religiously-based public holidays at any pla ce where a n adm ission fee or any other form of consideration is charged). The Pr ohib iti on of the Exhibition of Films on Sundays and Public Holidays Am endment Act 102 of 1992 amended the Act to replace ministerial per mission with that of the loca l au th ority. 11. S. AFR. CONST. of 1983, (Act 110), § 2. D:\ 199 9-2\ FI NAL \ VAN-FI N.W PD Ja n. 8, 2001

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republican Constitution of 196112 argua bly refer red to the H oly Trin ity professed by Reform ed Ch ristia nit y,13 “Almighty God” in the 1983 Constitu tion was more likely inten ded to denote a “pot-pourri god” that could be interpreted by all and sundry to suit th eir own persona l conception of the deit y.14 Needless to say, this fallaciou s stat ement comprised a confession of faith and as such did not constitute a r ule of law.15 It consequent ly altogether lacked jur idical relevance.16 As far as church-state relations are concerned, it is important to note that there was no est ablished church in South Africa 17 —though during the previous century, that had

12. See S. AFR. CONST. of 196 1, (Act 32). 13. See JOH AN D. VAN DER VYVER , DIE BESKERMING VAN MENSEREGTE IN SUID- AFRIKA, 75-77 (1975) [hereinafter DIE BESKERMING]; J OH AN DAVID VAN DER VYVER , DIE JURIDIESE FUNKSIE VAN STAAT EN KERK: ’N KRITIESE ANALISE VAN DIE BEGINSE L VAN SOEWEREINITEIT IN EIE KRING 148-57 (1972) [hereinafter D IE JURIDIESE]; SEVEN LECTURES, supra note 4, at 42-44; F. Ven ter , Die Staatsregtelike Soewereiniteit van God , TYDSKRIF VIR DIE SUID-AFRIKAANSE REG 64, at 67 (1977). But see N.J.C. VAN DEN BERGH, DIE GOD VAN DIE GRONDWET EN PRESIDENTSRAAD VAN DIE REPUBLIEK VAN SUID-AFRIKA, 87-89 (1982). 14. This is more evident from the Afrikaans text of the two constitutions than would appear from the English version . In 1961 , the constit ut ional confession of faith att ributed the per tinent belief to “die volk van . . . Suid-Afrika,” while the 1983 Con st itu tion claimed this belief to be that of “die bevolking van . . . Suid-Afrika” (emphases adde d). “Volk” denotes an eth nically defin ed people, wh ile “bevolking” signifies the populat ion. While th e “volk” to which the 1961 Constitu tion referr ed was proba bly me an t t o denot e t ha t s ect ion of th e Sou th Africa n p opu lat ion w hich for t he greater part subscribed to the tenets of Christianity, the “bevolking” clearly comprised large sections of the Sou th African popu lation who wer e not Chr istia ns, in cluding proponents of the Jewish, Muslim, Hindu , and Bu ddhist faiths. The term s of § 11(1) of the 1983 Constitu tion, further more, required the State President to take an oath invoking the na me of “Almighty God,” and s ince not hin g preclu ded a non-Ch rist ian from becoming State President, “Almighty God” was clearly not intended to refer to the God of Chr istia nit y only. S ee S. AFR. CONST. of 198 3, (Act 110 ), § 11 (1). 15. It is of the essence of a law in th e jur idical sen se th at it sh ould en ta il the modal aspe ct of retr ibut ion in t he se nse of sanction ing the consequ en ces t ha t follow upon an y chan ge in t he lega l order brough t a bout by the occur re nce of a le ga l fact . Sect ion 2 of t he 198 3 Con st it ut ion (an d its count er pa rt in th e 19 61 C onst it ut ion ), although pa rt of th e bod y of t he constitution, lacked th at essen tial constit ut ive element of a ju ridica l nor m. 16. See DIE BESKERMING, supra not e 13 , at 75-77 ; J OH AN DAVID VAN DER VYVER , DIE GRONDWET VAN DIE REPUBLIEK VAN SUID-AFRIKA 63 (1984 ); DIE JURIDIESE, supra note 13, at 148-57; J.D. VAN DER VYVER & D.J . J OUBERT, PERSONE- EN FAMILIEREG, 402-03 (1991 ); SEVEN LECTURES, supra note 4, at 44; Johan D. van der Vyver , The Fu nct ion of L egisl ati on a s an In str um ent of S ocial R eform , 93 S. AFR. L.J . 56, 63 (197 6). But see Vent er, supra note 13, a t 68-70. 17. See Bur en U itgewers (Edms.) Bpk. v. Raad Van Beheer Oor Publikasies, 1975 (1) SA 379 (C), 419; Aronson v. Estate Ha rt, 1950 (1) SA 539 (A), 561. D:\ 199 9-2\ FI NAL \ VAN-FI N.W PD Ja n. 8, 2001

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not always been the case.18 Th er e wer e, h owever , la ws in place that, in some inst ances, authorized state interference in the internal affairs of religious bodies and, in other instances, amounted to the repression of religious institutions. Perhaps the most telling example of the first of these two sets of laws is the infamous Church Clause,19 enacted in 1957. This law conferred on the Minister of Co-operation and Development (as he was then called)—who administered the Department that had jurisdiction in matters concerning Africans—the power to prohibit, with the consent of the local authority involved, Blacks from attending church services and functions in urban areas other than those set aside for Blacks under the Group Areas Act.20 The criterion which the Minister had to apply when im posing the ban was whether or not the presence of Blacks in the urban area concerned would constitute a nu isance t o residen ts of the ar ea or, altern at ively, whether or not the Black presence in the urban area would be “undesirable”, in view of t he loca tion of th e premises where the church service or function was to be held. The enactment of this provision caused an outcry from almost all of the mainstream religiou s institutions, including the government supporting

18. The Chur ch Order of 25 July 1804, promulgated by Commissioner-Genera l J .A. de Mist , decreed th at no ecclesiast ical bodies oth er t ha n t hose t ha t oper at ed in the Cape when t he Bata vian Repub lic (t he Net her lan ds) took cont rol of the colony in 1803 would be permitted to conduct religious ceremonies or hold public gatherings. See § 4 of Provisioneele Kerken-Orde voor de Bataafsche Volksplanting aan de Kaap de Goed e Hoop of 1804. In terms of § 20 of the Grondwet van de Zuid-Afrikaansch e R epu bli ek of 1858, the Nederduitsch H ervormde Kerk (a variet y of the Dutch Reformed churches) was th e established chur ch of the Republic (until 1889), and § 32 of the Const itu tion r eser ved th e fran chise for m embe rs of th is church (unt il the Volksraa ds besluit of 20 September 1858). Section 21 of the Constitution denied residential rig ht s in th e Re pu blic t o Rom an Ca th olics a nd oth er per son s wh o did not subscribe to the ten ets of the Belgic Confession of Faith (until the Vol ks raa ds besluit of 1 Ju ne 1870). In the Ora nge Free State, th e Nederduitsch H ervormde Kerk (until 1866) and su bsequently the Nederduitse Gereformeerde Kerk (until 1902) were proclaimed the es tablish ed chur ch of the Repu bli c (§ 22 of the Con st itu tie v an den Oranjevrijstaat of 1854; § 24 of the Gewijzigde Constitutie of 186 6). Th e Du tch Reformed Chu rch wa s neve r r egar ded a s an esta blishe d ch ur ch in the Ca pe Colony. See De Waal and Ot hers v. Van Der H orst an d Other s, 1918 T.P.D. 277, 281; Burgers v. Mur ray, (1865) 1 Roscoe’s Rep. 258, 265; Loedolf & Sm ut s v. R ober ts on, (18 63) 4 Searle’s Rep . 128 , 143 ; see also Bredell v. P iena ar , 1922 C.P .D. 578, 581-82. 19. § 9(7) of Bl ack s (U rb an Are as ) Con soli da ti on Act 25 of 1945, amended by § 29(d) of Act 36 of 1957. 20. Act 36 of 1966. D:\ 199 9-2\ FI NAL \ VAN-FI N.W PD Ja n. 8, 2001

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Dutch Reformed Church, a nd was p roba bly for that rea son never implemented.

Repr ession of religious institutions occurred under auspices of security legislation. The Internal Security Act,21 for example, authorized the banning of organizations in cases where, in the opinion of the Minister of Law and Order, t he or ga niza tion engaged in activities wh ich en da nger ed, or were calculated to endanger, the security of the state or the maintenance of law and order. Alternatively, an organizat ion could be banned under this Act if the Minister was satisfied that the orga niza tion upheld rela tions with communism in any of a variety of wa ys sp ecified in the Act .22 Under the terms of the Affected Organizations Act,23 the State President could, if he was satisfied that an organization enga ged in politics with t he aid of, or in cooperation or consultation with, or under the in flu en ce of, an overseas organization or any person abroad, declare the organization to be an “affected organization.”24 The consequ en ce of such an executive decree was that the orga niza tion wou ld forfeit all for eign fin ancia l supp ort. Religiou s bodies were not immune from these draconian laws. One such organization that fell victim to both was the Chr istian Institute of South Africa.25 Individual church dignitaries who voiced t heir crit iqu e of un jus t and repressive state regulations and practices in many instances also experienced the wrath and h arsh ret ribu tory respon ses of t he powers th at be. In th eir a na lysis of the role of religion wit h regard to race discrimin at ion in Sout h Africa, Meiring a nd others recalled the “drawn-out series of altercations between government and church authorities” through which, as far as members of the An glican communion an d the Roman Cat holic Church were concerned,

21. Act 74 of 1982. 22. See id. § 4. 23. Act 31 of 1974. 24. Id. § 2. 25. See Govern men t N otice (GN) R132/1975, GOVERNMENT GAZETTE (GG) 4728 (declarin g the Ch ristia n Ins titu te an “affected organization”); GN R287, GG 5784 (banning th e Ch ri st ia n I ns ti tu te ). D:\ 199 9-2\ FI NAL \ VAN-FI N.W PD Ja n. 8, 2001

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[p]e ople like Archb ish ops [Geoffrey] Cla yton 26

and [Joost] De Bla nk ,27 th e Ver y Rev. Gon ville ffrench- Beytagh, 28 Fr T re vor H udd leston 29 and others, and m ost recently the Rev. Da vid R us sell,30 have become public figures

26. Weeramantry recor ded t he t ra gic deat h of Archbis hop Cla yton , who “defied the gover nm en t’s ra cial legis lat ion a nd ma de a decla ra tion of open disobedience,” and, after signing th e document , collapsed over his desk. C.G. WEERAMANTRY, APARTHEID : THE CLOSING PHASES? 107 (1 980); see also id. at 240. 27. Joost de Blank, Anglican Archbishop of Cape Town in th e period of 1957- 1963, was “[a]n outsp oke n a nd un com pr om isi ng opp onen t of apartheid dur ing h is six years in Cape Town.” KEESINGS CONTE MPORARY ARCHIVES: WEEKLY DIARY OF WORLD EVENTS 11953B (1963-1964). After having suffered coronary problems, he retu rned t o England in 1963 on medical advice. 28. The persecution of the Very Reverent ffrench-Beytagh (Anglican dean of Joh an nesbur g) is evide nce of govern men t a ction a gain st An glican clergy m emb ers . See S. v. ffrench-Beytagh (1), 1971 (4) SA 333 (T); S. v . ffr en ch-B eyt ag h (2 ), 19 71 (4 ) SA 426 (T); S. v. ffre nch -Beyt agh (3), 197 1 (4) SA 571 (T) (e ma na tin g from th e de te nt ion and interrogation of the accused in terms of § 6 of the Terrorism Act 83 of 1967). In 1971, he wa s s en te nce d t o five yea rs im pr isonm en t for al leg ed act s of t errorism as defined in the Terrorism Act 83 of 1967. His conviction and sentence was set aside on appe al. See S. v. ffr en ch-Be yta gh, 197 2 (3) SA 430(A). H e left S out h Afr ica on th e day of the judgment in t he Appellate Division of the Supreme Court (as it was t hen cal led ). 29. Father Tr evor Hu dd les ton (Rom an Ca th olic), au th or of Nau ght for Your Comfort (1956), came to South Africa in 1943 as Priest -in-Charge of the Community of th e Re su rr ect ion’s Mis sion in Sophiatown (a black township in J ohann esburg). The Blacks affectionat ely called h im Makh alipile (“the daun tle ss on e,” aft er a b old wa rr ior adopted by a fore ign t ribe when t heir own lea der was lost or ha d been capt ur ed). He left South Africa in 1956 but remained active in t he a nt iapa rt heid m ovemen t in En gland, an d ret ur ned t o the count ry, at th e age of seven ty-nin e, for a visit in 1991 to witness the changes t hat had occurr ed since 1990. See T. HUDDLESTON, RETURN TO SOUTH AFRICA: ECSTASY AND THE AGONY (1991). Upon his death in 1998, commemoration se rv ices were he ld i n E ng la nd an d S outh Africa, an d a wide ra nge of South African dignitaries, including President Nelson Mandela, attended. 30. Amon g those placed under banning orders in Octob er 1977 , in te rm s of South Africa’s repressive security legislation, was the Reverent David Russell (Ang lica n). See WEERAMANTRY, supra note 26, at 107, 240. In December 1979, he was charged with breaking the conditions of his banning orders by attending the Cape provincial synod of the Anglican Chur ch in South ern Africa, and in Febr uar y 1980 he re ceive d a one yea r p ri son sent en ce plus a further suspended sentence, totaling twent y-seven month s, on eleven other charges. While he was on bail pending an appe al, he received a further suspended sentence for breaking his banning orders. In February 1977 , Da vid R us sel l wa s se nt en ced t o th re e m ont hs imp rison me nt for refusing to disclose to the police the names of th re e wi tn esses of a cts of police brutality (for fear of reta liation by th e police against t hose wit nesses). Rus sell, together wit h t hr ee oth er mi ni st er s of r eli gion , we re cha rg ed (an d acquitt ed) in 1980 under th e P ub lica tion s Act 42 of 19 74 for pu blis hin g tw o pamph let s: Th e Rol e of R iot Poli ce in t he Bu rnin g and Killin gs, N yan ga, Cape T own , Christm as 1976 and Message for 197 7— To T hos e in Au th orit y an d t o Wh ite S out h A fri ca. See S. v. Russell, 1980 (2) SA 459 (C); see also S. v . Ru ss ell , 19 81 (2 ) SA 21 (C) (s ta tin g tha t th e accused was char ged an d convicted u nder th e Pu blications Act 42 of 1974 for being in D:\ 199 9-2\ FI NAL \ VAN-FI N.W PD Ja n. 8, 2001

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through their concern and work for social change, and through the subsequent reaction of the authorities: threats, deportations, prosecutions and bannings have been applied to ministers of the church in a series of attempts to “bring it into lin e.”31

Members of the Dutch Reformed churches who, by reason of their rejection of apartheid in matters of religion, suffered the effects of ret alia tory intolerance at the instance of the state and th eir peers, included the Reverent Beyers Naudé32 an d theology Professor Albert Geyser.33

poss ess ion of a banned pamphlet, entitled Cros sroa ds Res id ent s— Pers onal Accounts of Conditions During th e Period of Arrest Following the September 1978 Police Raids). 31. Piet Meiring et al., Religi on, in RACE DISCRIMINATION IN SOUTH AFRICA: A REVIEW 186, 197 (S he ila T. va n d er Hor st & J an e Re id eds. , 198 1); see also AN ILLUSTRATED HISTORY OF SOUTH AFRICA 287 (Tre whe lla Ca mer on & S.B. S pies e ds., 1986) (mentioning Father Trevor Huddleston, Arch bish op J oost De B lan k, a nd Bish op Ambrose Reeves as clergymen of the English language ch ur che s in Sou th Africa wh o, in the 1960s, subjected Prime Minister Hendrik Verwoerd to “a barrage of vehement cri ti cism ”). 32. Beyers Na ud é, e dit or of Pro Veritate, a journal founded by him in 1962 to promote ideals of th e n onra cia l ecu me ni cal mo vem en t, an d fou nd er in 196 4 of t he (nonracial ecumenical) Christian Institu te, was—due to these endeavors—compelled to resign from the m inistry of the Nederduitse Gereformeerde Kerk (NGK). In 1975, the Ch r is t ia n In s t it u t e w a s pr ocl a im ed a n “a ffe ct ed or ga n iz a t io n ” in terms of th e Affected Or ga ni za ti ons Act 3 1 of 19 74, wh ich , in effect , meant that th e or gan iza tion could no longer receive financing from fore ign sou rces. See supra note 25. The Institu te, togeth er wit h seve nt een ot her organ ization s, was altogethe r ba nn ed in 1977 by terms of the Internal Security Act 44 of 1950 (superseded by the Internal Security Act 74 of 1982). See supra note 25. Pro Veritate was s imultan eously a lso ban ned . See Proc R300, GG 5784, a t 6 . Th ese ba ns wer e pr oclai me d on th e eve of pu blica tion of the cau se s of S te ve B ik o’s dea th , wh o in Se pt em ber of th at yea r h ad die d of h ead injuries he su sta ined while t he police he ld him in “deten tion wit hout tr ial,” and the banning order s wer e clear ly prom pted by an attempt to silence those individuals and organ iza tion s tha t were likely to be most pron ounced in publicly pr oclaiming t heir ind ign at ion and who would most likely act upon their outrage. Beyers Naudé was also placed under ban ning order s (1977-1984), which, in effect, almost amounted to house arrest. See the consolidated list of banned persons—the first to be published after banning orders were served on him in 1 977—i n G N 1 539, GG 6576, at 4; as t o th e lifting of his banning orders, see GN 2228, 2229, GG 9455, at 6. As to the conve rs ion of Beye rs Na ud é fr om a pr oap ar th eid to a n antiapart heid activist, see J OSEPH LELYVELD, MOVE YOUR SHADOW: SOUTH AFRICA, BLACK AND WHITE 310-1 4 (198 5); for a brief biography of Beyers Naudé, see Cha rles Villa-Vicencio, A L ife of R esis ta nce and Hope, in RESISTANCE AND HOPE: SOUTH AFRICAN ESSAYS IN HONOUR OF BEYERS NAUDÉ 3-13 (Ch ar les Villa-Vicencio & John W. de Gruchy eds., 1985); S.M. de Gruchy-Patta, Beyers Naudé: A Bibliography, in RESISTANCE AND HOPE: SOUTH AFRICAN ESSAYS IN HONOUR OF BEYERS NAUDÉ 27-35 (Cha rles Vil la-Vice ncio & J ohn W. de Gr uchy eds., 19 85). 33. In 1962, P rof. Geyser was excommunicated from the N eder du its ch Hervormde Kerk (NHK) an d depr ived of the ch air he h ad h eld sin ce 1946 as Pr ofess or D:\ 199 9-2\ FI NAL \ VAN-FI N.W PD Ja n. 8, 2001

635] CHURCH-STATE RELATIONS IN SOUTH AFRICA 643

II. LESSONS FOR THE FUT UR E F RO M A REPRESSIVE PAST The history of discrimination an d repression in South Africa , an d its effects within th e realm of religion, serve as a tellin g exa mple of t he consequences th at might em erge in a society where the government qua repository of political power proclaims a m ission to preser ve th e na tional, et hn ic, cultural, or religiou s identit y of the peoples u nder it s political control. In the case of South Africa, that history also, in a very special way, points to the future. Constitutional change in Sou th Africa that took e ffect on April 27, 1994, was designed to innovate social, political and legal st ructures that wou ld be radically differ en t from those of the country’s past history. The n ew const it ution al dispensa tion in that sense emanated from a reactionary response to th e evils of the preceding era.34 Th e 1996 Const it ution ,35 while thus recognizing “the injustices of our past,”36 accordingly depicted the new South Africa as “an open and democratic society based on human dignity, equality and freedom.”37 The constitutional Bill of Rights 38 provided th e legally en forcea ble ba ckin g for su ch a society: any inst it ution ass ocia ted wit h the discrim in ation and repression of aparth eid South Africa must be taken to be

in New Te sta men t Scien ce in th e th eology faculty of the U niver sity of Pr etoria because of his protests against Art. 3 of the N HK’s Stat ut e, which (u nt il recen tly) reserved membership of th e Ch ur ch fo r w hi te s on ly. T he Un ive rs it y of t he Witwatersrand sub sequ ent ly offered P rof. Geyse r a chair , and he established the Department of Religious Stu dies in th e Arts Fa culty of that University. Action taken by Prof. Geyser to contest the legality of his excommunication was eventua lly settled upon conditions that wer e not at a ll favorable to the Church. Geyser an d Beyers Naudé subsequ ently inst itut ed an a ction for libel against Pr of. J.G.M. Dr eye r, e dit or of Die H ervorm er, official m out hp iece of t he NH K, a nd aga ins t P rof. Ad riaa n P ont , church hist orian in the Th eologica l Sch ool of t he NH K in Pr et oria , on acco un t of a series of defamatory articles concerning the plaintiffs, written by Pont and published in Die H ervorm er. The case against Dreyer wa s se tt led out of cour t, a nd th e a ction against Pont, who refused to apologize for th e lib el, w as su ccess ful, th e cou rt awarding to th e plain tiffs subs ta nt ial comp ens at ion (R.20,000 e ach). See Geyser En ’n Ander v. Pon t, 1968 (4) SA 67 (W). The Appe lla te Divis ion of t he Su pr em e Cou rt (as it was th en called) rejeted an appea l in respect of the quantum of the a war d. See Geyser En ’n Ander v. P ont, 1968 (2) SA 545 (A). 34. See Du Plessis v. De Klerk, 1996 (5) BCLR 658 (CC), para. 90 (Ackermann, J .); van der Vyver, supra note 2, at 785-87, 789. 35. S. AFR. CONST. (Act 1 08). 36. Id. pream ble. 37. Id. §§ 36(1), 3 9(1)(a); see also id. § 7(1). 38. Id. ch. 2. D:\ 199 9-2\ FI NAL \ VAN-FI N.W PD Ja n. 8, 2001

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incompat ible with t he values embodied in th e kind of society the country now aspires to be.39 Defining “an open and democrat ic society based on hu ma n dignit y, equalit y an d freedom ” with a view to the evils of the past it was intended to avoid, finds support in several judgments of th e Constitutional Court. In S. v. Makwanyane, Justice O’Regan observed: The values urged upon the Court are not those that have in-

formed ou r pa st . Ou r h ist ory is on e of r ep res sion n ot freedom , oliga rch y not democracy, apartheid and prejudice not equa lity, clan de st ine n ot op en gove rn m en t. . . . In interpr eting the r ights enshrined in Chapter 3,40 therefore, the Court is directed to the future: to t h e id ea l of a new socie ty wh ich is to be bu ilt on th e com m on valu es w hich made a politica l tr ansit ion pos sib le in ou r cou nt ry an d w hich are the foundation of its ne w Cons tit ut ion. . . . Bu t ge ne ra lly section 35(1)41 instructs us, in interpreting the Constitution, to look forward not backward, to recognise the evils and injust ices of th e p as t a nd t o av oid t heir re pe tit ion.42

In a present at ion at a symposium a t E mory University on Apr il 3, 1997, Justice Langa in the same vein referred to the South Africa n Constit ut ion as sa nctioning a “never again” dispensation.43

III. THE AFRICAN CONNECTION

Colonialism has brought to sub-Saharan Africa an impressive va riet y of Ch ristia n religion s. Con tem por ary

39. See Brink v. Kitshoff NO, 1996 (6) BCLR 752 (CC), para. 33 (O’Regan , J.); see also S. v. Solberg, 1997 (10) BCLR 1348 (CC), para. 123 (O’Regan, J .); Ferr eira v. Levin NO, 199 6 (1) BCLR 1 (CC), par a. 51 (Acker ma nn , J.); Sha bala la v. Att orne y- General of the T ra nsva al, 199 5 (12 ) BCLR 1593 (CC), par a. 26 (Mah omed, J .); S. v. Makwan yane, 1995 (6) BCLR 665 (CC), para. 218 (Langa, J.), 262 (Mahomed, J.), 322 (O’Regan, J .); De Kle rk v. D u P les sis , 19 94 (6 ) BCL R 12 4 (T), 131 (Van Dijk hors t, J .). 40. Chapt er Three of the Int er im Con st it ut ion ha s b ecom e Ch ap te r T wo of t he 1996 Constitution. 41. See S. AFR. CONST. (Act 1 08), § 35(1 ). 42. 1995 (6) BCLR 665 (CC), para. 322-23; see also Ferreira, 1996 (1) BCLR 1 (CC), pa ra . 51 (Acke rm an n, J .). 43. See also t he concurrin g judgm ent of Ju stice L an ga. See Ca se v . Min ist er of Safety & Security and Oth ers , 1996 (5) BCLR 609 (CC), par a. 100 (Lan ga, J ., concurring) (referr ing to “South African society . . . gra ppling with the pr ocess of purging its elf of t hos e la ws a nd pr act ices from our pa st wh ich d o not fit in with the values wh ich u nd er pin th e Con st itu tion if only to r em ind bot h authority an d citizen that th e r ul es of th e ga me ha ve ch an ged ”). D:\ 199 9-2\ FI NAL \ VAN-FI N.W PD Ja n. 8, 2001

635] CHURCH-STATE RELATIONS IN SOUTH AFRICA 645 religiou s trends in the region bear evidence of a rema rkable spread of Chr istian ity. Africa is in fact the only continent in the world today where Christ ia nit y is not on the d eclin e. At the same tim e, aposta sy from the mainstream churches is as evident in Africa as it is in other parts of the world. This is evidenced by t he t ypica l Africa n respon ses t o the spread of Christianity and Islam in the sub-Saharan region of the continent . Studies conducted under auspices of the Law and Religion Program of Emory Un iversity ha ve revealed wide- spread perceptions among African s iden tifying Ch ristia nit y with colonialism and I slam wit h totalit aria n dom in ation and intolerance. The foreign, mostly Western, religious groups that compete for the souls of Africa stand accused of transplanting th eir religious rivalries onto African soil and, in so d oin g, of promoting adversaria l religious perceptions and conflict within previously like-m inded and peaceful communities. Those engaged in advocatin g t he ca use of ext raneou s r eligion s a re almost invaria bly totally insensitive to the va lues imbedded in traditional Africa n religion s. 44 Abandonment of in digen ous Africa n institutions and the customar y African life- style—ranging from the clothes they wear and the food they eat to th e edu cation th ey receive a nd th e lan gua ge th ey spea k—is mostly insisted upon as a conditio sine qua non of religiou s conver sion. Un der stan dably, indignation founded upon such perceptions has provoked a certain nostalgia for indigenous values and customary practices. Consequently, ther e has in recent years been a rem arkable reviva l in Africa of tradition al r eligion s with th eir emphasis on h omage to the ancestors and inter-individual caring and sharing (encapsulated in the African concept of ubuntu). There h as also been a remarkable escalation of independent Christian churches within the Afr ica n communities. In Sout h Africa alone, there are more than 6,000 varieties of such Chr istian sects. Religious services in those communities ar e joyful occasions, atten ded, in true African tr adition, by mu ch sin ging, dan cing, and ha nd clapping.

44. See generally Maka u wa Mutua , Lim itations on Religious Rights: Problematizating Religious Freedom in the African Context, in RELIGIOUS HUM AN RIGHTS IN GLOBAL PERS PE CTIVE : LEGAL PERSPECTIVES 417 (Johan D. van der Vyver & J ohn W it te J r. ed s., 199 6). D:\ 199 9-2\ FI NAL \ VAN-FI N.W PD Ja n. 8, 2001

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It is interesting to note that the only mainstream denomination in Southern Africa that has not experienced a radical decline in its African membership in recent years is the Rom an Cat holic Chur ch. This might be due to the policy of inculturation practiced by Ca tholic con gr ega tion s in the Afr ica n community, by which the liturgy and even sacraments of the Church seek to accommodate traditional African practices. These tren ds coin cide wit h in crea sing const it ution al secula rization in Africa . European influences have indeed remained visible in Africa through references in the constitutions of many sub-Saharan countries to ideologica l statements that pay tribute to the deity of Christian religions. Some exam ples in clude t he following. Ghan a proclaimed its constitution “IN THE NAME OF ALMIGH TY GOD.”45 Liberia testified to its “gratitude to God” and recognized “His Divine Guidance for our sur vival as a Nat ion.”46 The National Council for Deve lopmen t of Rwanda , wh ich is respon sible for establishing and adopting their cons tit ution, placed its “[t]rust [] in God Almight y.”47 The people of Seychelles confessed t heir gratitude “to Almighty God t ha t we inhabit one of the most beautiful countries in the world” an d expressed t heir conscious pride for having learned as descendants of different races to live together as one nation under God.48 Although said to be a secular state,49 the Dem ocratic Re pu blic of Ma da ga sca r bor e testimony in its const itu tion of the Ma lagasy people’s “belief in God th e Creator.”50 The Republic of Congo, while likewise professing to be a secular state,51 acknowledged its “responsibility before God.”52 There is a clear ten dency in Africa , if n ot in the world, for non-Muslim states to move away from such religiously-based constitutional testimonies. Proclaiming a state to be “Christian” still enjoys some appeal in many (non-African) countries where Rom an Catholicism predominates, but even there, one finds the

45. GHANA CONST. pream ble. 46. LIBER. CONST. pream ble. 47. RWANDA CONST. pream ble. 48. SEY. CONST. pre am ble. 49. See MADAG. CONST. ar t. 1. 50. Id. pream ble. 51. See CONGO CONST. preamble, art. 1. 52. Id. pre am ble. D:\ 199 9-2\ FI NAL \ VAN-FI N.W PD Ja n. 8, 2001

635] CHURCH-STATE RELATIONS IN SOUTH AFRICA 647 tendency to do awa y with the est ablish ed st atus of t he Church.53 Excep t in the con text of an establish ed church, ideologica l statements in a constitution of non-Muslim states ha s very little juridical relevan ce, if any relevan ce at all. Zambia recently reversed t he t ren d of eliminat ing a special state commitment to Christianity. An amendment to its constitution which entered into force on May 1, 1996, included a preambular clause declaring “the Republic a Christian nation while upholding the right of every person to enjoy that person’s freedom of conscience or religion.”54 Presiden t Freder ick Chiluba of Zambia and his Vice-President, General Miyanda, the driving forces behind this constitutional amendment, are both “Born Again Christians.” It is to be expected tha t, in spit e of this development in Zambia, more a nd m ore cou ntries will follow t he exa mple of those wh o have a void ed const it ution al con fessions of faith. Burundi, perhaps, has set the example of religiously neutral ideological statements in constitutional instruments. Its constitution simply ch arges cit izens t o “contribute to the establishment of a m ora lly healt hy society.”55 As we have seen, the type of polit ica l com munit y wh ich Sou th Africa currently seeks to establish is depicted in the 1996 Constitution as “an open and d em ocratic societ y ba sed on human dignit y, equa lity an d freedom.”56

IV. ESTABLISHMENT OF RELIGION UNDER THE CURREN T SOUTH AFRICAN CONSTITUTION

As far as religion and religious diversity ar e concerned, the South African Constitution can be descr ibe d a s on e of profound toler ation an d accommodat ion. It in gen era l alloca tes to church institutions as juristic persons the privilege s u nder the Bill of Rights;57 gu arantees t he fr ee exe rcise of r eligion ; 58 sanctions

53. See Johan D. va n de r Vyver , Introduction: L egal D im ens ion s of R eligi ous Hum an Right s: Constitutional Texts, in RELIGIOUS HUMAN RIGHTS IN GLOBAL PERS PE CTIVE , supra note 44, at xl. 54. ZAMBIA CONST. (Amendment Act 18), preamble. 55. BURUNDI CONST. art . 46. 56. S. AFR. CONST. (Act 10 8), §§ 36(1 ), 39(1)(a ); see also id. § 7(1). 57. See S. AFR. CONST. (Act 10 8), § 8(4). T he qu est ion of w he th er or n ot a church ins tit ut ion h as th e r igh t t o fre edom of re ligion ha s n ot b een settled in South Africa . Gerrit Piena ar ar gues that the church a s a juristic person is n ot ca pa ble of D:\ 199 9-2\ FI NAL \ VAN-FI N.W PD Ja n. 8, 2001

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freedom of assem bly59 an d freedom of association of “[e]veryone”;60 pr otect s t he r igh t to self-det er min ation of religiou s communities61 and m akes pr ovis ion for a Com mission for th e Pr omotion a nd Pr otection of the Righ ts of Cultural, Religiou s and Linguistic Communities;62 and it envisions the establishment, by m ea ns of n ation al legis la tion , of a Pan Sou th Africa n Lan gua ge Boar d cha rged, inter alia, with promoting and ens ur ing r espect for “Arabic, Hebrew, Sanskrit an d other lan gua ges u sed for religious pur poses in South Africa.”63 The South African Constitut ion also endorses human rights concerns over majorita rian sentiment s. It has been estimated that eighty percen t of the South Africa n pop ula tion is in favor of capital punishment, yet the Constitution outlaws the death pen alt y.64 Est im ates su ggest that abou t the same percentage of the population opposes abortion on demand, yet the Con st it ution guarantees t he r igh t of everyon e “to make decision s concerning reproduction ”65 and “to security in and control over th eir body.”66 Per ha ps even a gr eater percent age condemns homosexuality, yet the constitut ion proscribes discrimin at ion founded on sexual orientation67 by the State,68 as

having a faith or a conscience and that the constitu tion al cl au ses on fr eed om of re ligion consequ ent ly do n ot app ly to a ch ur ch. S ee Ger rit Pien aa r, Konstitusionele Voorskrifte rak end e Reg sper son e, 60 TYDSKRIF VIR HEDENDAAGSE ROMEINS-H OLLANDSE REG 564, 581 (1997). Malh erbe, on th e other h an d, proclaim s out righ t t ha t t he constitutional provisions under considerat ion afford t o chur ch institut ions as jur istic persons th e righ t t o freedom of religion. S ee E.F.J . Malh erbe, Die Grondwetlike Beskerming van Godsd iensvryheid, TYDSKRIF VIR DIE SUID-AFRIKAANSE REG 673, 679 (199 8). 58. See S. AFR. CONST. (Act 1 08), § 15(1 ). 59. See id. § 17. 60. See id. § 18. 61. See id. §§ 31, 235. 62. See id. §§ 181(1)(c), 185-86. 63. Id. § 6(5)(b )(ii). 64. See S. v . Ma kw an ya ne , 19 95 (6 ) BCL R 66 5 (CC ). 65. S. AFR. CONST. (Act 108), § 12(2)(a). 66. Id. § 12(2)(b). The constitu tiona lity of the Choice on Ter min at ion of Pregnancy Act 108 of 1996, which was based on these pr ovisions, was uph eld in Christian Lawyers Ass’n. v. Minister of Health, 19 98 (4 ) SA 1113 (T) (holding th at a foetus is n ot e nt it led to t he con st it ut ion al ly p rote cte d r igh t t o life ). 67. See Voris E. John son, Makin g W or d s o n a P ag e B eco m e E ver yd ay L if e: A S trategy to Help Gay Men and Lesbians Achieve Full Equ ality Under South Africa’s Con sti tu tion , 11 EMORY INT’L L. REV. 583 (1997). In S. v. Ka m ph er, 1997 (4) SA 460 (C), punishment for s odom y wa s h eld to b e in conflict wit h t he cons tit ut iona l pr oscr ipt ion of discrim ina tion bas ed on s exua l orien ta tion. S ee also Lan gemee t v. Minister of Safety & Secu rit y, 1998 (3) SA 312 (T) (holding that regulations issued D:\ 199 9-2\ FI NAL \ VAN-FI N.W PD Ja n. 8, 2001

635] CHURCH-STATE RELATIONS IN SOUTH AFRICA 649 well as by persons in gen era l.69 In a landmark death penalty case, Presiden t Ch ask alson obser ved : “Th e question before us . . . is not wha t t he m ajorit y of South Africans believe a proper sentence for murder should be. It is whether the constitution allows the sentence.”70 Church state relations implicate another set of constitutional decrees: th ose th at regu lat e what , in Amer ica n constitutional parla nce, has come to be called th e “establishment of religion ,” in contradistinction to “the free exercise of religion.” “Esta blishment,” in the American sense, comes into play under seve ral provis ion s of t he 1996 South African Constitut ion. These include: C deit y (the P rea mble and S chedule 2); C freedom of re ligion, belief and opinion (§ 15(1)); C religiou s observan ces in state and st ate-aided institutions (§ 15(2)), a nd t he est ablish men t of parochial sch ools (§§ 29(3) a nd (4)); C marriages concluded under a system of re ligion (§ 15(3)); C equality before the la w an d equal protection a nd benefit of the law (§§ 9(1) and (2)), a nd n ondiscr im in ation on ground of r eligion (§§ 9(3)-(5)); C unla wfu l condu ct in the n ame of r eligiou s; a nd C resolution of legal disputes that involve doctrinal issu es.

A. A Testimony to Th eism South Africa has come a long way since its Constitution asserted th at th e peoples of the countr y believe in the

under the P olice Act 7 of 1958–su per cede d by th e Sout h Afr ica n P olice S er vices Act 68 of 1995–which excluded t he pa rt ner in a sam e-sex un ion from m edical aid bene fits offorded to t he “depe nd an t” of a police office r a re un const itut iona l). F or a not e on Ka m ph er, see Peter Havenga , Same-Sex Un ions, The Bill of Righ ts and Medical Aid Schemes, 61 TYDSKRIF VIR HEDENDAAGSE ROMEINS-HOLLANDSE REG 722 (1998). See also Nationa l Coalition for Ga y & Lesbia n E qua lity v. Minister of Justice, 1999 (1) SA 6 (CC) (h oldin g th at th e com mon law crim e of sod omy an d st at ut ory pr ovisi ons based on the p roscription of sodomy are unconst itut ional); National Coalition for Gay & Lesbian E quality v. Minister of Home Affairs, Case No. 3988/98 (C) (Feb. 12, 1999) (holding a provision of the Aliens Control Act of 1991, which authorized the issuing of an im migra tion perm it to th e spouse of a perm anen t res ident t o be unconstitutional becau se it did not s im ila rl y a pp ly t o sa me -se x cou ple s). 68. See S. AFR. CONST. (Act 1 08), § 9(3). 69. See id. § 9(4). In this instance, the Constitution mandates national legis lat ion “t o p r ev en t or pr oh ib it u n fa ir di s cr im in a t io n .” Id. 70. S. v. Makwan yane, 1995 (6) BCLR 665 (CC), para. 87. D:\ 199 9-2\ FI NAL \ VAN-FI N.W PD Ja n. 8, 2001

650 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 sovereignt y and guidance of Almighty God.71 In the current Con st it ution , the name of God is only invoked in th e closing phrases of the Preamble, where God is ca lled u pon to “protect our people,” and in the openin g lines of the national anthem, where the words “God bless Africa” ar e r epea ted in six of the official la ngu ages . Schedule 2 of the Constitution prescribes the form of the oath or solemn affirmation attending the assumption of office of different stat e officials an d jud ges, and direct s that those preferring to take th e oath sha ll confirm t heir commit ment with t he words: “So help me God.” The latter provision, while it holds out the option of either taking an oath or making an affirmation and furthermore is not at all specific as to the god whose name is to be invoked by persons preferring to take the oath, retained adequate state neutrality to escape esta blishmen t censure. Th e pream bula r referen ce to “God,” on the other hand, is offensive to at least Christians, atheists, and persons adhering to a nonth eistic religion (such as Buddhism).72 Atheists an d persons professing a nonth eist ic religion migh t well, and with good cause, regar d the r eferen ce to “God” in the pream ble of the con stitution as a sign of religious favoritism that leaves them out in the cold. Christians would find the preambular testim ony to “God” objectionable exactly because it seeks to maintain a certain neutrality in regard to all religions; it thus depersonifies th e deit y an d th erefore, from the Ch ristia n perspective, pa ys homage t o an idol. A con st it ution al con fession of faith in a nondescript god is as good an exam ple a s one migh t wish to find of ta king God’s nam e in va in. When the Constitutional Court was called u pon t o certify complia nce of th e 1996 Con st it ution wit h the con st it ution al

71. See supra text a ccompanying notes 11-16. 72. In Pu bli cat ion s Cont rol Boa rd v. G all o (Af rica ) Ltd., 197 5 (3) S A 665 (A), 672, Chief Just ice Rumpff decided that “religion” essentially involves th e belief in, som e kind of commitment t o, and the ser vin g of, a supr eme being or uns een power. See also REPORT OF THE COMMISSION OF INQUIRY INTO SCIENTOLOGY (R.P . 55 of 197 3), para. 13.10 (holding t ha t t he “Chu rch of Scient ology,” being “a re ligion wit hou t G od and without reveren ce to a higher power” (para. 13.11(b )) cannot be regarded as a re ligion or a church (par a. 13.16 and 15.3(c)). However, in Hartman v. Chairman, Board for R eligi ous Object ion , 1987 (1) SA 922 (O), it was decided that Theravada Buddhism, although a nontheistic religion, was nevertheless a “recogn ized re ligiou s denom ination” within t he meanin g of the provision in the Defense Act 44 of 1957 pertaining to conscien tious objection s. D:\ 199 9-2\ FI NAL \ VAN-FI N.W PD Ja n. 8, 2001

635] CHURCH-STATE RELATIONS IN SOUTH AFRICA 651 principles specified in th e Inter im Con st it ution ,73 petitions were submitted to the Court r aising objections to the prea mbu lar references to deity. The Court did not invite the concerned petitioners to submit oral argum ents, and indeed did not deal with th eir objections in t he cert ification judgm ents.74 The question of a constitutional confession of faith was, however, addressed by t he Const it ution al Cou rt when it wa s charged with certifying th e legalit y of the provincial Con st it ution of th e Western Cape, which in t erms of its pream ble was enacted “in hu mble su bmission to Almigh ty God.” Followin g American judicial evaluations of references to “God” as “a tim e-h onored mea ns of a dd in g solem nit y” to, for example, a national motto or pledge of allegiance,75 the Court depicted these words as an instance of “ceremonial deism” that have no effect in the interpretation of the Const itu tion or in respect of the “rights of believers or nonbelievers.”76 It therefore sanctioned the refer en ce t o “Almigh ty God ” in t he P rea mble of the Western Cape Const itu tion. Needless t o say, degr ading referen ces to “Almigh ty God ” to t he “ceremonial” level wher e it has no mean ing is blasphemy in proba bly all t heis tic r eligion s of the world. Degrading “God,” as contemplated in the con stitutional preamble, to the level of “ceremonial deism ” stan ds in glaring contrast to the asser tion of Judge Van Dijkhorst in the recent case of Wittmann v. Deutscher Schulverein, Pretoria,77 that “religion” is not a neu tr al concept but denotes a “system of faith and worship [as] th e human recognition of superhuman controlling power and esp ecia lly of a person al God or gods

73. S. AFR. CONST. of 1983 (Act 110), schedule 4. 74. See In re Cer ti fica ti on of th e Amended Text of th e Co ns ti tu ti on of th e RS A, 1997 (1) BCL R 1 (CC ); In re Certificat ion of th e Am en ded Text of t he Con st itu tion of th e RS A, 19 96 (1 0) BC LR 1 253 (CC). 75. See, e.g., Marsh v. Chamber s, 463 U.S. 783, 818 (1983) (Bre nn an , J., dissen tin g) (suggesting that phrases such as “God save the United States and this Honor able Cou rt ,” “In God We T ru st ,” “One N at ion Un der God,” an d th e like “have lost an y tr ue re ligiou s si gnifican ce”); see also Lynch v. Don nelly, 465 U.S. 668, 716 (1984) (Brennan, J., dissenting); Abington Sch. Dist. v. Schempp, 374 U.S. 203, 303-04 (1963) (Bren na n, J ., concur rin g). 76. In re Certification of the Constitution of the Western Cape, 1997 (9) BCLR 1167 (CC), para . 28 (quotin g Lynch, 46 5 U .S. at 716 (Br en na n, J ., d iss en ti ng )). 77. 1998 (4) SA 4 23 (T ). D:\ 199 9-2\ FI NAL \ VAN-FI N.W PD Ja n. 8, 2001

652 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 entitled to obedience a nd worship.”78 Judge Van Dijlhorst went on to say: [Religion] cannot include the concept of atheism or

agnosticism which are the very antithesis of religion. The ath eist an d a gn ost ic is a fford ed his p rot ect ion under the freedom of th ough t, b elief an d op inion pa rt of th is sect ion [on freedom of re ligion , belief, a nd op inion]. Th er e is con cept iona lly no room for h im unde r t he fr eedom of re ligion part. Freedom of religion does not mean freedom from re ligion . . . . When therefore . . . s 15(2) of the Constitution perm it[s] re ligious observances, this is a reference to the Jewish, Christian, Mosle m , Bu dd his t a nd oth er fait hs pr act isin g th eir re ligion . . . . Religiou s obs er va nces . . . d o[] not m ea n a practice which neither Jew, Christian, Moslem, Buddhist, nor other fait hs recognis e a s su ch; wh er e the Su pr em e Be ing is neither the God of Is rael nor the Holy Trinity nor Allah the Merciful etc but a vagu e non ent ity.79

B. Freedom of R eligion , Belief, a nd Opin ion Section 15(1) of t he Const it ution of the Republic of South Africa succin ctly p rovid es: “Everyon e h as t he r igh t to freedom of conscience, religion, th ought, belief an d opinion.”80 The question whether this provision includes establishmen t proscr iption wa s a t issu e in the Const it ution al Cou rt’s first judgment on the Religion Clause in the 1996 Con st it ution .81 The appella nt in one of the cases, S. v. Solberg, was convicted under the Liq uor Act 82 for having sold wine on a Sunday in contravention of contrary ter ms in her grocer’s wine license. She claimed tha t t he sta tu tory proscript ion of the sale of wine on Sundays, Good Friday, and Christmas Day afforded

78. Id. at 449. 79. Id. 80. S. AFR. CONST. (Act 1 08). 81. See S. v. Solberg, 1997 (10) BCLR 1348 (CC). The case was decided under the Inter im Constitut ion, where religious freedom was dealt with in § 14, which has becom e § 15 of the cur ren t Cons titut ion. For pur poses of th is ar ticle, references are made to t he secti ons of th e cu rr en t C ons ti tu ti on a nd th e r efer en ces to constitutional provisions in the a ctua l judgm ent ha ve been adju sted accordingly. 82. Act 27 of 1989. D:\ 199 9-2\ FI NAL \ VAN-FI N.W PD Ja n. 8, 2001

635] CHURCH-STATE RELATIONS IN SOUTH AFRICA 653 preference to the Ch ristia n Sabbat h a nd Chr istian holidays in violation of her righ t to religiou s fr eedom . President Chaskalson (in whose judgment Deputy President Langa, and Justices Ackermann and Kriegler concurred) differentiated, along the lines of American jurispr udence, between the “establish men t” an d t he “free exe rcise” of religion : The prima ry pur pose of the “establishment clause” in the

United States constitution is to prevent the advancem en t or inhibit ion of religion by the State. The primary purpose of the “free exercise” clause is to permit adherents of different faiths to pu rs ue t heir re ligiou s be liefs wit hout b ein g im pe de d fr om doin g so b y Sta te coer cion.83

Earlier in the ju dgmen t, h e endor sed t he followin g defin it ion of freedom of religion given by Chief Ju stice Dickson in th e Ca nadian case of R. v. Big M. Drug Mart Ltd.: The essen ce of the concept of freedom of religion is the right to

en tert ain such religious beliefs as a person chooses, th e right to declare religious beliefs ope nly a nd w ith out fear of hindrance or rep risal, and the right to man ifest religious belief by w ors hip a nd p ra ctice or b y tea ching a nd d issem inat ion,84 adding that “freedom of religion may be impaired by measures that force people t o act or refr ain from acting in a manner contrary to their r eligious beliefs.”85 Given these directives, Chaskalson decided t ha t Section 15 of the Constitution does not include an establishmen t clause.86 Establishm ent practices could possibly be rendered u nconst it ution al if t hey a mount to unfair discrimin at ion within th e mean ing of Sect ion 9 of the Con st it ution ,87 and he was also open to conceiving circumstances in wh ich en dor semen t of a religion or religiou s belief by th e stat e could be held to contra vene t he free exercise provisions of Section 15, namely if the state should coer ce people, direct ly or indirect ly, t o obser ve t he practices of a

83. Solberg, 1997 (10) BCLR 1348 (CC), para. 100. 84. R. v. Big M. Drug Mart Ltd., (1985) 13 CRR 64, 97. 85. Solberg, 1997 (10) BCLR 1348 (CC), para. 92. 86. See id. at pa ra . 101 ; see also Ryland v. Edr os, 1997 (1) BCLR 77 (C), 86. 87. See Solberg, 1997 (10) BCLR 1348 (CC), para. 102. Since § 9 of t he Con st itu tion was not invoked by the appellant, the court was not willing to consider further whether selection of the Christian Sabbath and Christian holidays as “closed days” for pur poses of th e Liqu or Act did am oun t t o un fair d iscrim ina tion. D:\ 199 9-2\ FI NAL \ VAN-FI N.W PD Ja n. 8, 2001

654 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 particular religion , or wou ld place constraints on them that would hinder observan ce of their own religion .88 That had not been proven in th e presen t case, and th e court consequent ly decided th at th e concerned pr oscript ion of the Liquor Act does not viola te t he fr ee exe rcise provis ion s of t he Const it ution . There are indeed compelling reasons for holding that Section 15 of the Constitution does not entail an establishmen t clause. The section is couched in free exercise lan gua ge, an d in subsequent subsections a ctually m akes provision for instances of establishment. Instances of establishment are also sanctioned in other sections of the Constitution to be alluded to hereafter.89 However , t he con currin g ju dgmen t of J ust ice Sachs (joined by J ust ice M okgor o) pr oceeded on the a ss umpt ion that Section 15(1) does proscribe establishmen t.90 The concurring opinion in essence h eld that the cou plin g of Sunda ys, Good Friday, and Christmas Day as “closed days” for the purpose of a grocer’s wine license amounted to en dor semen t by t he state of the Christian Sabbath (only the sale of wine on a Sunday was at issue here) and that such religious favoritism violates the establishment component of Section 15(1). However, given the facts, first, that the commercial disadvantages suffered by persons whose religious day of rest falls on another day of th e week and who, for religious reasons, might feel compelled to close their grocer business on tha t other day, would be t rivial, and, second, const ra ining the sale of alcoholic beverage on certain days—albeit ones designa ted for religious reasons by Christianity—serve good secula r pu rpos es, t he viola tion of Section 15(1 ) is ju st ified u nder the limit ations p rovision of th e Con st it ution . Justice Sachs consequently concurred in the

88. See id. at pa ra. 104. 89. For th ese r ea son s, t he re as oni ng of Ma lh er be t ha t t he constitutiona l guara ntee of “freedom of conscience, religion, t hough t, belief an d opinion” should be interpr eted as in cluding a free exer cise guarantee as well as “establishment” proscriptions in a broad sense, and that th e further provisions of § 15 (aut horizin g religiou s obse rvan ces in s ta te an d st at e-a ide d in st itu tion s a nd legis lat ion t ha t could affor d legalit y to ma rr iages conclu ded u nder a system of religion) must be seen as excep tion s to t he ru le a ga in st esta blis hm en t, can not be accept ed. Ma lher be, supra note 57, at 698. 90. See Solberg, 1997 (10) BCLR 134 8 (CC ), pa ra . 16 0 (“Th e obje ctiv e of se ction [15(1 )] is to keep the State a way from favouring or disfavouring any particu lar wor ld- view, so t ha t e ven if polit icia ns as polit icia ns ne ed n ot b e n eu tr al on th ese qu est ions, legislators as leg isl at ive dr aft er s m us t. ”). D:\ 199 9-2\ FI NAL \ VAN-FI N.W PD Ja n. 8, 2001

635] CHURCH-STATE RELATIONS IN SOUTH AFRICA 655 decision of the court, holding that the concerned provision of th e Liquor Act is not unconstit ut ional. The dissenting opinion of Justice O’Regan (joined by Justices Goldstone and Mada la ) adm it ted that § 15(1) does not contain an establishmen t clause,91 but nevertheless held that “public endorsem ent of one religion over another is, in it self, a threat to the free exercise of religion.”92 Justice O’Regan disagreed with t he proposition mooted by P residen t Ch ask alson that Section 15(1) could only be invoked if state coercion was involved; favor it ism of one religion over oth ers would in Justice O’Regan’s opinion suffice for this variety of establishmen t to be cen su red under the ge ner al gu arantee of freedom of religion .93 The minority opinion accordingly laid special stress on religiou s favoritism in South Africa’s repressive past as a guide to constitutional provisions representing “a rejection of our history.”94 Having decided that freedom of religion “r equire[s] . . . t hat the le gis la ture r efr ain from favou ring one religion over others” and that “[f]airness and even-handedness in rela tion to diver se religion s is a necess ary com pon en t of freedom of religion,”95 Justice O’Regan decided that the proscript ion under consideration amounted to unconstitutional favoritism of the Ch ristia n r eligion (also noting in pa rticular the coupling of Sundays, Good Friday, and Christmas Day for purposes of that proscription); and furthermore, that the violation of religious freedom in this instance cannot be saved under the limitations clause. In the lat ter context it should be noted t ha t t he dissen tin g opinion laid special str ess on th e fact that religious freedom was singled out in the Interim Constitu tion as one of a few constitutional righ ts that could only be subjected to lim it ation s if those limitations were both reasonable and necessary.96 The necessity requir em en t has been omit ted from the limit ation s provision of the 1996 Const it ution ,97 and one could perhaps argue that Justice O’Regan and the other two Justices who

91. See id. at pa ra. 116. 92. Id. at pa ra. 123. 93. See id. at pa ra. 128. 94. Id. at pa ra. 123; see also supra text a ccompanying notes 34-44. 95. Id. at par a. 128. 96. See id. at par a. 130. 97. See S. AFR. CONST. (Act 108), § 36. D:\ 199 9-2\ FI NAL \ VAN-FI N.W PD Ja n. 8, 2001

656 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 subscribed to her opinion might in the future conclude tha t the lim it ation of freedom of religion in cases like the one un der considerat ion would be constitutionally justified. But that conclu sion does n ot follow. Th er e a re good rea son s t o hold that the necessity requirem ent wa s omitted: first, because it was tautological (st rict er scr utin y in som e ca ses is already part of rea sona ble considerations) and second, because the necessity requirement crea ted a mislea ding a ss umpt ion as to the hierarchy of constitutionally protected rights and freedoms (as though the ones to which it applied were t o be considered more important than those not included in the n eces sity categor y). Subst an tively, therefore, omission of the necessity requirement in th e 1996 Constitu tion is without consequence. In summary, as far as establishment considerations are concerned, the following opinions emerged: C The Ch ask alson opinion held that Section 15(1) of the Con st it ution deals with t he free exercise of religion only, but th at laws sanctioning esta blishmen t could possibly be contested under the equal protection and nondiscriminat ion provisions of Section 9. C The O’Regan opinion agreed that Section 15(1) does not deal with establishmen t per se, but held that freedom of religion as such requires fairness and even-handedness and could therefore be invoked to strike down religiou s favoritism. C The Sa chs op in ion simply a ss umed, without analysis or motiva tion , that Section 15(1) in clu des p roscr iption of the est ablish men t of religion .

C. Religion in State and State-Sponsored Institutions and the Establishm ent of Parochial Schools Constitutionally sanctioned establishment appears from the provisions of Section 15(2), w hich authorizes r eligiou s observances at stat e or sta te-aided institu tions, su bject, t hough, to three basic conditions: C religiou s observan ces must follow ru les m ade by the appropriate public authorities; C they m ust be con du cted on a n equ it able ba sis; a nd C attendance at such observances must be free and voluntary. D:\ 199 9-2\ FI NAL \ VAN-FI N.W PD Ja n. 8, 2001

635] CHURCH-STATE RELATIONS IN SOUTH AFRICA 657

State and state-a ided in st it ution s inclu de hosp it als, prisons, and public schools. The Con st it ution sanctions th e right of “[e]veryone . . . to establish and maintain . . . in dependent education al institu tions.”98 The Interim Constitut ion expressly provided that such institutions could be based on a common culture, language or religion .99 These crit eria were not repeat ed in th e 1996 Con st it ution , proba bly because they w er e t oo restrictive. For exa mple, t he Inter im Con st it ution did not per mit single-sex schools. Omission in t he 1996 Constitution of the Equal Access Clause of Section 32(a) of the Interim Constitu tion is of special significance. Single sex schools in the public education al system are now argu ably constitutional. Thus, independent educational institutions bas ed on a comm on cult ur e, lan gua ge or religion , as well as (private) single-sex schools, are currently constitut ionally tenable. Independent (private) educational institutions must comply with the conditions mention ed above . Applica tion of the N on- Discr im in ation Clause could be complicated. Putative egalitarianism may develop under the guise of a ll k in ds of ostensibly race-neutral admission tests and cunning entry requirements. There a re, in a word, more wa ys tha n one to kill a cat. The principle of “purposive discrimin at ion,” developed in the Un it ed St ates to disp ose of discr im in atory neutral legislation that in it s a pp lica tion amounts t o de facto discrimination,100 ma y serve as a u seful gu ide for dea ling wit h such matters: if it can be d em onst rated that the purpos e of an admission test or entry requiremen t was precisely to conceal a racial pr eferen ce, t hen the in st it ution sh ould be judged to have been created in violation of the nondiscrimina tion imper ative. In th e Inter im Constitution, nothing was said about the financing of independent education al in st it ution s. A st rong argument could be made that st ate subsidies of su ch

98. Id. at § 29(3 ). 99. See S. AFR. CONST. of 199 3, (Act 200 ), § 32 (c). 100. S ee, e.g., Mobile v. Bolden, 446 U .S. 5 5 (198 0) (find ing no d iscr im ina tor y mot iva tion in an a t-lar ge election s ystem which d ilute d Blacks ’ voting pow er ); Wa sh ing ton v. Davis, 426 U .S. 229 (1976) (sust ain ing a language test which kept a dispr oportion at ely hig h n um ber of Bla cks out of police job s); see also Johan D. van der Vyver, Com par ati ve L aw in Con sti tu tion al L iti gat ion , 111 S. AFR. L.J . 19, 30-31 (199 4). D:\ 199 9-2\ FI NAL \ VAN-FI N.W PD Ja n. 8, 2001

658 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 institutions was imperative; if one has a constitutional right to a part icular facility, amenit y, or ser vice, the state is under a complementary duty to provide that facility, amenity or service. In re T he S chool Education Bill of 1995 (Gauteng)101 decided different ly. The matter has now, in any event, been clarified: independent educational institutions may be created and mainta ined at the founder’s own expense.102 Nothing, however, would pr eclu de the state fr om subsidizing an independent education al in st it ution .103 The question of free and voluntary attendance in state and state-aided educational institutions was at issue in the recent case of Wittmann v. Deutscher Schulverein, Pretoria.104 The case involved the German School in Pretoria which is a private institution, fin anced to a large extent by the German Government. Religious education in the school was initia lly offered on a parochial basis (mainly Lutheran, but also Catholic), but after 1987, religious instr uction was offered in a historical context and n o longer from the per sp ect ive of an y particular denomin ation . Con sequ en tly, atten da nce of r eligion classes was mandatory—free only to the extent that no one was obliged to go to tha t school. The plain tiff in t he ma tt er, a student in the German School, t ook issue with the School Ass ocia tion for being compelled to attend the religion classes. Leavin g a side the question of whether the Inter im Constitu tion of 1993—the one that was in force when the dispute arose—was applicable to the school,105 the court found that the constitutional right not to attend religious observances is one that can validly be waived by its beneficiaries and that the plaint iff had d one exa ctly t hat by s ubjectin g h er self t o the sch ool’s rules and regulations when she enrolled as a student.106

101. 1996 (4) BCLR 537 (CC), pa ra . 42 (Kr ieg ler , J .), p ar a. 83 (S ach s, J .). 102. See S. AFR. CONST. (Act 1 08), § 29(3 ). 103. See id. § 29(4 ). 104. 1998 (4) SA 4 23 (T ). 105. Under the Constitution currently in force, th e Ger ma n Sch ool is argu ably an “organ of sta te” and is th erefore subject to th e constit ut ional Bill of Rights. See S. AFR. CONST. (Act 108), § 8(1) (making th e Bill of Rights appl icab le t o orga ns of stat e), § 239 (definin g an “organ of st at e” as includin g “any . . . institution . . . performing a pu blic funct ion in ter ms of any legis lat ion”). The German School is registered in t er ms of § 6 of Pr iva te Sch ools Act (Hou se of Assembly) 104 of 1986, and providin g edu cation ma y be sa id to be a “public fun ction.” 106. See Wittmann, 1998 (4) SA 423 (T), 455. D:\ 199 9-2\ FI NAL \ VAN-FI N.W PD Ja n. 8, 2001

635] CHURCH-STATE RELATIONS IN SOUTH AFRICA 659

The constitutionalit y of legis la tion en acted to br in g South Africa’s education policy and practices in line with constitutional pr in ciples , t he N ation al Education Act107 and the South African Schools Act,108 was unsuccessfully contested.109 In the case of the South African Schools Act, the plaintiff’s constitutional attack focused on provisions that implicated the future of Afrikaan s schools and Christian education. In a concurring judgment, Justice Sachs noted that immense inequality continues to exist in relation to access to

education in our country. At present, the imperatives of equ alis ing access to edu cation a re st rong, and even a lthou gh these should not go to th e ext en t of over rid ing const itu tion ally protected rig hts in re lation to language and culture, they do represent an impor ta nt e lem en t in th e eq uat ion. Th e t hem e of reducing the d iscr ep an cies in th e life ch an ces of a ll Sou th Africans runs right through the Con st itu tion , from th e for cefu l open ing words of the pream ble to the reminder of the past cont ain ed in th e pow er ful p osts cript.110

D. Marriages Conclu ded Un der a S ystem of R eligion Roman-Dutch law—the common law system of South Africa—denies the status of marriage to all polygamous and poten tia lly polygamous unions, which applies, inter alia, to Hindu and Muslim marriages,111 and marriages concluded under indigenous African systems of law.112

107. Act 27 of 1996. 108. Act 84 of 1996. The Act was initially introduced as a bill of the Gauten g legislature bu t w as su bse qu en tly en act ed a s a n Act of Pa rliam en t t o apply nationally. 109. See In re the National Edu cation Policy Bill No. 83 of 1995, 1996 (4) BCLR 518 (CC) (re ject ing th e su bm iss ion t ha t t he bill w ould au th oriz e t he na tion al aut horities to usurp powers reserved for the pr ovin ces ); In re th e Sch ool Ed uca tion Bill of 1995 (Gau ten g), 1996 (4) BCLR 537 (CC). 110. In re the School Education Bill of 1995 (Gauten g), 1996 (4) BC LR 5 37 (C C), para. 52. 111. See Isma il v. Ismail, 1983 (1) SA 1006 (A), 1019-20; Docrat v. Bhayat , 1932 T.P.D. 125, 127; see als o Fir oz Cacha lia, Citizenship, Muslim Family Law and a Future Sout h African Constit ut ion : A Preliminary Enquiry, 56 TYDSKRIF VIR HEDENDAAGSE ROMEINS-H OLLANDSE REG 392 , 39 8-99 (199 3). 112. See Seedat ’s Executors v. The Mast er (Nat al), 1917 A.D. 302, 309; Kaba v. Ntela, 1910 T.S . 964 , 967 -69 (De Villiers , J .P.), 970 (Bri st owe, J .); see also Johan D. van der Vyver, Hum an R ights Aspects of the Dual S ystem A pplying to Blacks in South Af rica , in THE INDIVIDUAL UNDER AFRICAN LAW 130, 136-37 (Pet er N an yenya Takiram budde ed., 1982 ). D:\ 199 9-2\ FI NAL \ VAN-FI N.W PD Ja n. 8, 2001

660 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999

While South Africa’s tra nsition to a democracy was being negotiated at Kempton Park in 1993, a Mu slim delegation raised the problem of nonrecognition of Muslim family law. In consequ en ce of the delegation’s representations, a clause was added to the Interim Constitution wh ich authorized legislation that wou ld afford lega l r ecogn it ion to a system of personal and family law adhered to by persons professing a particular religion , sp ecifically the va lid it y of marriages concluded under a system of religious law subject to specified procedures.113 Since this provision was evident ly in ten ded t o sa nction legisla tion that would afford legalit y to polygamous or potent ially polyga mous Mu slim marria ges , fem in ists p rotested, sin ce polygam y is generally regarded as an affront to the equal treatment of women and as discrimination against women. Two pr oble ms a tten ding t he South Africa n pr ovision came to light in t he ens uin g deba te. First, since t he le gis la tion envisioned by th is section of the Int erim Const itu tion was authorized notwith standing any other provision in the Chapter on Fundamental Rights,114 the con st it utionalit y of the legisla tion would remain u naffected by considerations of equal protection and nondiscriminat ion. Secondly, because the Con st it ution only a uthorized legislation that would legalize personal and family law, a nd m arria ges , founded on a particular religion or religiou s law (su ch as those obtain ed in the Muslim commu nity), African polygamous marriages (referred to in South African legal jargon as “customary unions”) could not be legalized under a uspices of the section in question, becau se “cust omary unions” are not founded on any particular religious scruples. The 199 6 Con st it ution rem edied bot h of these concerns. It now authorizes legislation recognizing marriages concluded under a system of religious, per sona l or family law, or under any tradition. Also, whereas the original provision was preceded by th e phra se “Nothing in this Chapter shall preclude legislation . . . ,” the 1996 Constitu tion now provides that recogn it ion of marriages and of system s of personal and fam ily

113. See S. AFR. CONST. of 199 3, (Act 200 ), § 14 (3). 114. See id. (“Nothing in th is Ch apt er s ha ll pre clude le gislat ion r ecognisin g . . . .”). D:\ 199 9-2\ FI NAL \ VAN-FI N.W PD Ja n. 8, 2001

635] CHURCH-STATE RELATIONS IN SOUTH AFRICA 661 law in ter ms of t he n ew pr ovis ion must be consistent with other pr ovis ion s of t he Const it ution .115 Legis la tion contem plated in the Constitution to validate marriages concluded under a system of religion has thus far not been enacted. Given t he in surm ounta ble problem of reconciling polygam y wit h equal protect ion of, and nondiscrimination against, women, such legislation can perhaps do no more than repeal the le ga l im pedimen t pertain in g t o potentially polygam ous un ions a nd legalizin g de facto monogamous Muslim, Hindu, and African marriages. The new constitutional dispensat ion has had an effect, though, with regards to contractual ar ra ngem ent s att ending potent ially polyga mous (in contradistinction to de facto polygamous) marriages. Although until recently “customary unions” were not regarded as a m ar ria ge, stat ut ory recognition has been given to many of th e m atrim onia l consequ en ces of su ch unions.116 The legislatu re has been less accommodat ing in respect t o Muslim and Hindu marriages. In Ismail v. Ismail, it wa s d ecid ed, on the contrary, that contractual obligations att ending the in valid Muslim marriage, as well as other legal consequences in tr insic to the marriage (such as mainten ance) are unenforceable.117 The position taken in Ismail was reversed in the recent case of Rylan d v. Ed ros.118 The court in Ryland address ed the effect of const it ution al change in South Africa upon concepts such a s pu blic policy and the bon i m ores as criteria for the invalidation of certain legal acts or for rendering contractual arrangements unenforceable. The Constitution clearly established a new et hos fou nded on human rights and fundamental freedoms; and Section 39(2)

115. S. AFR. CONST. (Act 1 08), § 15(3 ). 116. S ee, e.g., § 54A of Mag ist ra te s’ Cour t Act 32 of 19 44; see als o § 1(1) of Law of Evi den ce Am en dm en t Act 45 of 1988 (pr ovidin g th at a cou rt of law ma y not declare th e cu st om of lobola or bogadi—re lat ing to d owr y—to b e r epu gnan t t o th e principles of public policy or natur al justice); § 22(7) of Black Administrat ion Act 38 of 1927 (protecting the property rights of the female partner or partners in a customary union in the event of a subsequent civil mar riage of the husband with som eon e oth er th an th e cu st oma ry wife ); § 31 of Bla ck Laws Amendment Act 76 of 1963 (affording to wives of a customary union the dependents’ claim i n t he event of the ma le par tn er ’s deat h t hr ough a n eglig en t or int en tion al a ct of a th ir d p er son ). 117. See Isma il v. Ismail, 1983 (1) SA 1006 (A) 1019-20; Docr at v. Bha yat, 1932 T.P.D. 125, 127; see als o Cachalia, su pra n ote 111, at 398-99. 118. 1997 (1) BCLR 77 (C), 86; see als o S. v. Solberg, 1997 (10) BCLR 13 48 (C C), para. 101. D:\ 199 9-2\ FI NAL \ VAN-FI N.W PD Ja n. 8, 2001

662 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 instructs a court, tribunal or forum, when called u pon to interpret any legislation, or to develop the common law and customary law, to “promote the spir it , purpor t and object s of the Bill of Rights.” Since the part ies in Ryland were indeed married according to Muslim rit es (even th ough n ot according to South African law), and since their union was indeed monogamous, the court could find nothin g m orally obn oxiou s in th eir conjuga l r ela tion sh ip. Con sequ en tly, the cou rt held that contractual arrangements attending t ha t u nion—perta inin g to maintenance an d a compensatory gift according to Muslim custom—are currently, under the new constitutional dispensation, neit her aga in st pu blic policy n or contra bonis mores, and are therefore enforceable. The court was not called upon to proclaim the marriage valid,119 and expressly confined the bin din g effect of its jud gment to a pot en tia lly polyga mous union that is in fact monogamous. In Am od v. Multilateral Motor Vehicle Accident Fund ,120 the Durban and Coast Loca l Divis ion of the H igh Cou rt wa s n ot prepared to make th e contractual obligations that attended an invalid Muslim m arriage effective against third parties. The plaintiff in that case sou gh t to cla im da mages , pursu ant to the third party insurance law of South Africa, from the person responsible for the death, in a car accident, of her “hu sba nd.” Amod thus related to the liabilit y of a thir d p er son to compensate the dependents of the person for whose death the third person wa s lega lly respon sible for their loss of s upp ort. Under South African law, the liability of the third person to pay dam ages extends only toward those dependants who had a righ t sanctioned by stat ut ory or the comm on law (in contradistinction to a right emanating from contract) to be mainta ined by the deceased. Since the Muslim marriage was considered in va lid by S outh Africa n la w, n o obliga tion sanctioned by positive law had vested in the deceased to support the pla in tiff, a nd t her efor e h er action for damages failed. The fact that the deceased was under a contractual duty

119. At least one commentator saw this judgment as possibly a step toward affording legalit y to pot ent ially polyga mou s ma rr iages . See I.P. Ma ith ufi, Possible Recogni tion of Poly gam ous Marriages: Ryla nd v. E dr os 1997 (2) SA 690 (C), 60 TYDSKRIF VIR HEDENDAAGSE ROMEINS-H OLLANDSE REG 695 (199 7). 120. 1997 (12) B CLR 171 6 (D). D:\ 199 9-2\ FI NAL \ VAN-FI N.W PD Ja n. 8, 2001

635] CHURCH-STATE RELATIONS IN SOUTH AFRICA 663 to provide support for his “wife” was, in terms of the law as it stands, insufficient ground to substantiate the dependant’s claim of the plaint iff. The court dist inguished the judgment in Ryland v. Edros in that the contractual obligat ion enforced in that case was a m at ter between hu sband an d wife only and did not involve the liability of third persons. The influence of the 1996 Con st it ution on Africa n customary unions will a lso be far-rea chin g. By vir tue of Sect ion 54A of th e Magistrates’ Cou rts Act , a court may not apply indigenous law found to be “opposed to the prin ciples of pu blic policy or natural justice.”121 Her e a ga in , Sect ion 39(2) of t he Const it ution instructs any court, tribunal, or forum called upon to interpret a stat ut ory provision to do so in a ma nn er t ha t will “promote the spir it, pu rport an d objects of the Bill of Rights .”122 This means, among other things, that the mean ing of “public policy” and “natural justice” will henceforth have to be esta blished with that in mind; and it is reasonable to assume that courts, tribunals, and for a will be const rain ed to fin d t hat rules of Africa n customary law that contradict the human rights gua rantees enunciated in th e Constitution are unenforceable; not because such customary law is thought to be unconstitutional, bu t by virtue of t he cr it er ia of th e Magistrates’ Courts Act as r eint erpret ed in accordance with section 39(2) of the Constitution. As far as the obligation to seal a customary marriage by payment of dowry is concer ned, the Magistrates’ Cou rts Act express ly p rovid es that this cust om of lobola or bogadi may n ot be decla red repugn ant to the principles of pu blic policy or natural justice.123 If the High Court should find t hat the practice of lobola or bogadi violates the equal protection of wom en as gu aranteed in Section 9 of the Con st it ution , it will be obligated to find this pr ovision nu ll and void.124 The consequence of such a finding will not be to render unconstitutional the practice of lobola or bogadi as such, but would simply lea ve t he door open for a magis trates’ court to find that this pr actice viola tes the prin ciples of pu blic policy or

121. § 54A of Magist ra te s’ Cour t Act 32 of 19 44; see also § 1(1) of La w of Ev ide nce Amendm ent Act 45 of 1988. 122. S. AFR. CONST. (Act 1 08), § 39(2 ). 123. See § 54A of Magistrates’ Court Act 32 of 1944. 124. See S. AFR. CONST. (Act 108), § 172(1)(a). D:\ 199 9-2\ FI NAL \ VAN-FI N.W PD Ja n. 8, 2001

664 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 natural justice; in which event the practice will be considered unenforceable in a court of law. Recently, the South African Parliament enacted the Recogn it ion of Customary Marriages Act,125 which afforded recogn it ion as a marriage to all existing (African) customary marriages, as well as future customary marriages that comply with the substantive requir em en ts a nd for malit ies of the Act. Polygamy is not an obstacle t o the r ecogn it ion as a marria ge of such customary unions. No such legislation has been en acted to legalize Muslim or Hindu marriages and this can of course raise questions of equal protection and nondiscrim ination. However , the Muslim community might elect to follow a differen t st rategy. An insightful law-review art icle by a Muslim feminist126 proposes that Mu slim person al la w be r ecogn ized in ter ms of S ect ion 15(3)(a ) of the 1996 Const it ution , exactly s o that it s p rovis ion s can be brough t in to conformit y with the con st it ution al Bill of Right s as required by Section 15(3)(b). Under Islamic law, women are discriminated against, and the new constitutional dispensat ion in South Africa pr ovid es the oppor tunit y t o do something about that.

Even though the final Constitution promotes and protects the human rights of women through national m achinery, their powers do n ot e xten d b eyon d the Cons tit ut ion. G ra du al s ocial refor m wit hin th e Mus lim comm un ity, a long wit h a ctive participation by M us lim wom en , ap pea r t o be m ore realis tic safeguards and long term solutions for effective improvement to the status of Muslim women.127

E. Equ al Protection an d N ondiscrim in at ion Section 9 of the 1996 Constitution guarantees equality of eve ryon e before t he la w a nd “the r igh t to equal protect ion and benefit of the law,”128 su bject to rem edia l a ction “to protect or

125. Act 120 of 1998. 126. See Na jima Moosa, The Interim and Final Constitu tions and Muslim Personal Law: Impli cation s for S out h A fri can Mu sli m Wom en, 9 STELLENBOSCH L. REV. 196 (199 8). 127. Id. at 205. 128. S. AFR. CONST. (Act 1 08), § 9(1). D:\ 199 9-2\ FI NAL \ VAN-FI N.W PD Ja n. 8, 2001

635] CHURCH-STATE RELATIONS IN SOUTH AFRICA 665 advance persons, or categories of persons, disadvantaged by un fair discrimin at ion.”129 Section 9(3) prohibit s unfair discrim inat ion, dir ectly or indirectly, by the State based on , a mong ot her thin gs, r eligion , conscience, or belief. Sect ion 9(4) p rohibits u nfair discrimin at ion on the same grounds by any person other than the state, but in this instance the proscription must be further sanctioned through national legislation aimed at either preventing or prohibiting the discrimina tion. Section 9(5) creates a rebuttable presumption that discrimination based on an y of the grounds ment ioned a bove is un fair. The In ter national Con ven tion on t he E lim ination of All Forms of Racial Discrimination of 1965130 defines discrimination as

any dis tin ction, exclusion , re st riction or p re fer en ce . . . w hich has th e pu rp ose or effect of nullifyin g or im pa iring the re cogn ition , en joym en t or exe rcis e, on an equ al footin g, of h uman righ ts and fu nda m en ta l fre ed om s in th e p olit ical, econ om ic, socia l, cu ltu ral or an y ot h er field of pu blic life. 131

Since a court, tribunal or forum interpreting the provis ion s of the Bill of Rights “must consider in tern at ional law,”132 this definit ion must count for something. It should be noted, however, that the prohibition of discr im in ation in the South Africa n Con st it ution is not confined to the denial or impairment of recognition, enjoyment or exercise of human rights and fundamental freedoms only, but embraces all instances of unfair discr im in ation . Also, t his pr ohibition is not confined to distinctions, exclusions, restr ictions or preferences in pu blic life only, but also extends t o those obtaining in the private sphere of a person’s day-to-day life . . . unless the distinction, exclusion, restriction or preference is proved to be fair. But even

129. Id. § 9(2). 130. 660 U.N .T.S. 195, reprinted in 5 I.L. M. 3 52 (1 966 ). 131. Id. at ar t. 1 ; see also Con ven tion on t he E lim in ati on of All Form s of Dis crim in ati on Against Women, G.A. Res. 180 (XXXIV), art. 1 (1979), reprinted in 19 I.L.M. 33 (19 80); Declaration on the Elimin ation of All Form s of I nt olera nce a nd of Dis crim in ati on Ba sed on R eligi on or Bel ief, G.A. Res. 55 (XXXVI), a rt . 2.2 (19 81), repr in ted in 21 I .L.M . 205 (1982 ); I.L .O. Con ven ti on (N o. 11 1) Con cerning Dis crim in ati on in Res pect of Em ploy m ent an d O ccup ati on, art. 1(1)(A) an d (B) (1 958 ); UN ES CO Con ven tion Aga in st D iscri m in ati on i n E du cati on, a rt . 1(1 ) (196 0). 132. S. AFR. CONST. (Act 108), § 39(1)(b). D:\ 199 9-2\ FI NAL \ VAN-FI N.W PD Ja n. 8, 2001

666 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 then, if t he per son wis hin g t o uph old the con st it ution alit y of discrimin at ion based on any of the gr ounds sp ecified in Section 9(3) fails to rebut the onus created by Section 9(5), he could nevertheless in vit e a fin ding of const it ution alit y on the basis that th e discrimin at ion is reasonable an d justifiable in a n open and democratic society based on human dignity, equality, and freedom as en visaged in the Limitations Clause.133 The Const itu tion th us compels the interpreter to distinguish between the fairness and the reasonableness of discrimination— an exercise fraught wit h difficulties, contradictions and discrepancies in the history of legal ethics. The chances are that South African courts will relegate the question of fairness to the relics of constitutional rhetoric and throughout apply the directives of reasonableness. Establishment of a religion—in the sense of the st ate either coercing someone to abide by the tenets of a religion other than th eir own or to forsake those of their own religion, or sanctioning or practicing favoritism in respect of a particular religion or some religion—will h ave e qu al protect ion and nondiscrimination im plica tion s. Est ablish men t through in ter fer en ce in the sover eign sp her e of r eligiou s inst it ution s migh t be render ed constit ut ionally tena ble by imposing on persons other than the state the obligation to refrain from unfair discr im ination as envisaged in Section 9(4). Implications of the proscription of discrimination by p er son s or institutions134 other than organs of state may be considered in light of a recent lively debate which eru pted in South Africa concerning th e refusa l of the Roman Catholic Church to ordain women as priests. The question to be considered here is whether this is a matter that may come within the confines of constitutional scrutiny. The 1993 In ter im Constitution was carefully crafted to exclude th e decisions tak en an d acts performed by “priva te” persons, and the conduct and internal r ules of condu ct of institutions other than the Stat e, from Bill of Rights control.135

133. See id. § 36 (1). 134. Note in th is rega rd t ha t t he Bill of Right s bind s jur istic per sons (wh ich in South African la w includes ecclesiast ical inst itu tions ) if, and to t he ext ent th at , it is applicable, “taking into account the nature of the right and the nature of any duty imposed by th e righ t.” Id. § 8(2 ). 135. See Johan D. va n de r Vyver , Con st itu tion al F ree S peech an d t he L aw of D:\ 199 9-2\ FI NAL \ VAN-FI N.W PD Ja n. 8, 2001

635] CHURCH-STATE RELATIONS IN SOUTH AFRICA 667

That Constit ut ion did, however, m ak e provision for civil rights legis la tion “to prohibit unfair discrimination” by persons and institutions whose conduct escaped the a pplication of its provisions.136 Section 9(4) of the 1996 Con stitu tion represents one of several pr ovis ion s t hat devia te fr om the 1993 policy arrangement.137 It exp ressly m akes the n ondiscr im in ation decree applicable to persons other than organs of state—which, in ter ms of Section 8(2), include n at ur al a nd juristic persons. It thus imposes on the Rom an Catholic Church a constitutional obliga tion not to discriminate against women138 an d, one should also note, against gays and lesbians. The wording of Section 9(4) suggest s tha t women wish ing t o be orda in ed as p ries ts ca nnot rely on that Section per se to claim th eir constit ut ional right . Differ in g in this respect from its state-action counterpart,139 this subsection instructs the legislature to enact legislation to give effect to its decree. The pu rpos e of leavin g it to the legisla ture t o fur ther exe cute the constitutional proscription of discrimination by persons and institutions other than organs of state was presuma bly to leave it up to the political representatives of t he people to decide which instances of such discriminat ion may be considered “unfair,” or would provoke such a measure of public outcry that it ought to be prohibited. If tha t is th e case, th e wording of the subsection was badly ch osen. It does not merely authorize legisla tion to outla w discrim in ation by persons and institutions other than the organs of state, it mandates such legisla tion . This, in turn, raises the question how t he im perative of section 9(4) could be enforced. For any court, including the Constitutional Court, t o instruct the legislat ur e to enact a law would constitute a violation of the separation of powers and of the pr in ciple of d em ocracy—bot h of wh ich have been singled

Defa m ati on, 112 S. AFR. L.J . 572, 586-8 9 (199 5); J oha n D . van der Vyver, The Private Sph ere in Constitu tional Litigat ion , 57 TYDSKRIF VIR HEDENDAAGSE ROMEINS- HOLLANDSE REG 378 (199 4). 136. S. AFR. CONST. of 199 3, (Act 200 ), § 33 (4). 137. See S. AFR. CONST. (Act 1 08), § 9(4). 138. See Nicholas Smith , Comm ent , Freedom of Religion Under the Final Con sti tu tion , 114 S. AFR. L.J . 217, 224-25 (1997 ). 139. See S. AFR. CONST. (Act 1 08), § 9(3). D:\ 199 9-2\ FI NAL \ VAN-FI N.W PD Ja n. 8, 2001

668 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1999 out as salient norms of the new constitutional dispensa tion .140 The most th e Const itu tional Court can do is to pr oclaim tha t the legisla ture, b y n ot en actin g t he le gis la tion called for in Section 9(4), is in breach of a constitut ional duty, and then leave it up to the legislatur e, and eventually to the electorate, to decide how to respond t o the cert ified neglect of duty. If legisla tion is en acted that pr ohibits u nfair discr im in ation with in the structures of religious in st it ution s, the Roman Cat holic Church might still cla im that disqualification of women as priests is—given the history and dogma of th e Church—not unfair, or at least not unreasonable. The Church migh t also cite t he con st it ution al r igh t to self-det er min ation afforded to cultural, religious and linguistic communities “t o enjoy th eir cultur e, practise their religion a nd use th eir language”;141 but, then again, “that right may not be exercised in a man ner inconsisten t wit h a ny provision of th e Bill of Right s.”142 The merits of these claims are, for purposes of the present survey, neither here nor there. The mere fact that the Roman Cath olic Church might be constrained to justify its internal ruling before a secula r t ribu na l smells of totalita rianism of the worst kind. It is worth remembering that the exercise of polit ica l power in Sou th Africa condemned by t he Const it ution included many such totalitarian practices. If the new “open and democrat ic society ba sed on hum an dignity, equa lity a nd freedom ”143 is to be a “never aga in” society, su ch pr actices ough t to be avoid ed as m uch as a ny m anifes tation of discr im in ation .

F. The Cerem onial U se of Drugs f or R eligiou s Purposes The judgment of the United St at e Supreme Court in the case of Em ploym ent Div ision Departm ent of Hum an Resou rces of Oregon v. Smith,144 in wh ich it wa s d ecid ed that an Or egon statute that prohibited the use of th e ha llucinat ing dru g, Peyote, by the North American Church for sacramental

140. See Const itutiona l Princip les I a nd VIII (dem ocra cy), an d VI (s epa ra tion of pow er s), S. AFR. CONST. of 1993, (Act 200), schedule 4. 141. S. AFR. CONST. (Act 108), § 31(1)(a). 142. Id. § 31(2 ). 143. Id. §§ 36 (1), 3 9(1)(a ); see also id. § 7(1). 144. 494 U. S. 8 72 (1 990 ). D:\ 199 9-2\ FI NAL \ VAN-FI N.W PD Ja n. 8, 2001

635] CHURCH-STATE RELATIONS IN SOUTH AFRICA 669 purposes did not violated the free exercise clause of the First Amendment, has also had repercussions in South Africa. Prince v. President of the Law Society, Cape of Good Hope,145 is illust rative of this im pa ct. The applicant in that case was a law graduate whose application for registration of his contract of community service, as a prelude for admission to the practice of attorney, had been refused by the Cape Law Society. The Law Society judged that he was not “a fit and proper person” for legal practice because of two previous con vict ions for the illegal poss ession of a dependence-producing drug, cannabis (better know in Sou th Africa as “dagga”), and his st at ed r esolve to continu e us ing t he drug. In his application to the court for the decision of the Law Society to be set aside, the applicant maintained that he was a member of a cert ain sect, th e Rastafar i religion, t ha t cann abis was regarded by that sect as a “Holy Herb,” and that its use constituted an integral part of Rastafari rituals. The Cou rt decided that the statutory prohibition of the possession and use of cannabis was a fair and reasonable lim it ation of the constitutional righ t to freedom of religion, following in this rega rd s eve ral Am er ica n 146 and Canadian147 judgments pertaining to the use of marijuana (the American equivalent of dagga) for religious purposes.

G. The J udiciary and Doctrinal Enta nglem ent The semblance of religious neutrality in the United States has precluded American courts from exer cising jur isdiction in matters involving “doctrinal entanglement” in the disput e, which is perceived to be the case whenever an interdenominational quarrel or a conflict of interest between a church and any of its members cannot be resolved without an inquiry into doctrinal issues.148

145. 1998 (8) BC LR 9 76 (C ). 146. S ee, e.g., Olsen v. Iowa, 808 F.2d 652 (8th Cir. 1986); Whyte v. United States, 471 A.2d 101 8 (D. C. 1 984 ); St at e v. Bla ke , 69 5 P .2d 336 (Ha w. Ct. App. 1985); Commonwealth v. Nissenbau m, 536 N.E.2d 592 (Mass. 1989); State v. Brash ear, 593 P.2d 63 (N .M. Ct . App . 19 79); S ta te v. Roch ele au , 45 1 A.2 d 1144 (Vt. 198 2). 147. See Reg in a v . Ke rr , [19 86] 7 5 N .S. J . (2d ) 305 (Ca n. ). 148. See Serb ian E. Or th odox Diocese v. Milivojevich , 42 6 U .S. 696 (197 6); Maryland & Virginia Eldership of the Churches of God v. Church of God at Sha rps bur g, Inc., 396 U.S. 36 7 (1970); Pr esbyt eria n Ch ur ch v. Hull Church, 393 U.S. D:\ 199 9-2\ FI NAL \ VAN-FI N.W PD Ja n. 8, 2001

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In South Africa, courts of law will not adjudicate upon a purely doctrinal dispute between schisms of a religious sect, but should a conflict arise a s t o the le ga l r igh ts a nd d uties of parties to a disput e, a court will not decline to give a judgment in the matter by reason of doctrinal issues that might have a bearing on those rights and duties.149 South African courts have thus, for example, en ter tain ed jurisdiction to decide which one of two religious factions was ent itled to the use of a part icular name,150 or could lay claim to church property,151 following a schism; and they have taken decisions of an internal ecclesiastical tribunal on review.152 The question as to the degree to which the new constitutional dispens ation m ay have a ffected t he jur isdiction of stat e court s where “doctrina l ent an glement ” prevails was raised, but not decided, in Ryland v. Edros.153 Judge Farlam stated in that case that the American position as to “doctrinal entanglement” migh t well h ave b ecom e part of Sou th Africa n law in virtue of the new constitutional principles pertaining to freedom of religion .154 Although the South African Constitution does not have an Establishment Clau se, the American r ule pertaining to “doctrinal entanglement” can also be based on free exercise considerations.155

440 (1969); Kedr of v. St. Nich olas Ca th edr al, 344 U.S. 94 (1952); Wats on v. J ones, 8 0 U.S. (13 Wall.) 679 (1871). In Jones v. Wolf, a m ajor ity of the Court decided that a property dispute emanating from a church schism could indeed be decided on “neutral prin ciples,” and the Court consequent ly exercised jurisdiction to resolve the dispute. 443 U. S. 5 95, 602 -03 (1 979 ). 149. See Allen v. Gibbs, 1977 (3) SA 212 (SEC), 218. 150. See Old Ap ostoli c Ch ur ch of Afr ica v . Non -Whi te Old Ap ost olic Ch ur ch of Africa , 197 5 (2) S A 684 (C). 151. See The Nederduitsche Her vormde Church v. The Nederduitsche Hervormde of Gereformeer de Chur ch, 1893 C.L.J. 327. 152. See Ther on en Ander e v. Ring Van Wellington Van Die N.G. Sendingkerk in Suid-Afrika en Andere, 1976 (2 ) SA 1 (A); J am ile v. Africa n C ongr ega tion al Church, 197 1 (3) S A 836 (D). 153. See Ryland v. Edr os, 1997 (1) BLCR 77 (C), 86-87. 154. See supra note 148. 155. Ju dge Fa rlam re fer re d in th is r ega rd to United S tates v. Ballard, 322 U.S. 78 (1944). However, that case (admittedly on free exercise grounds) simply reiterat ed that court s of law in Ame rica a re pr ecluded fr om est ablish ing the t ru th or fa lse hood of religious beliefs. In a dissenting judgment, Ju stice Stone (in whose judgment Ju stices Roberts and Frankfurt er concurred) was not prepared to hold that t he constitutional gua ra nt ee of freedom of religion w ould afford im mu nit y from crim ina l pr osecu tion for the frau dulen t pr ocurem ent of money by false statement s as to one’s religious exper iences . See id. at 88-8 9 (Ston e, J ., d iss en ti ng ). D:\ 199 9-2\ FI NAL \ VAN-FI N.W PD Ja n. 8, 2001

635] CHURCH-STATE RELATIONS IN SOUTH AFRICA 671

I would submit t ha t South African la w regarding t he jurisdiction of courts of law in matters where religious belief becomes an issue is sound as it is. It is not for state institutions to judge the substance, or the truth or falsity, of religious belief per se. However, it is a vital function of government to resolve, through its judicial arm, disputes pertaining to the rights and obliga tion s of its subjects. Courts of law ought not to shy away from that function merely because those rights and obligation s cannot in a given case be established with out consider ing doctrinal issues.

V. CONCLUSION

When Nelson Mandela was inaugurated as President of the Republic of South Africa, the official cerem ony included a religiou s service attended by reading from scriptures and prayers—not as incidentals of “solemn deism,” but in a sp ir it of genu ine devotion and hu milit y before the Supreme Being who guided the peoples of South Africa to mira culously sett le th eir differences in a pea ceful manner and wit h the preser vation of, and mutual respect for, th e ethn ic, religious, and linguistic at tr ibutes of every section of the commu nit y. A decidedly religious component of momentous occasions has, of course, a lways been commonplace in Sou th Africa . What was new, however, was that the devotion on th at mem orable autumn day was not—as in the past—restricted to the Chr istian faith. It included participation of other major religion s with a substa nt ial following in t he coun tr y, including dignitaries of the Muslim and Hindu communities. The inauguration of President Mandela clearly illustrates the principle that now gover ns ch urch-st ate r ela tion s in Sou th Africa . The “new” South Africa is not a secular state but seeks to uphold religiously neutral pra ctices; an d it does so in conformity with the egalitarian foundation of its constitutional system. The Grundnorm of any particular political community—the basic norm that irradiates and modifies all its laws and institut ions—derives from th e his tory of th e people, and is quite often, in a reactionar y sense, conditioned by a lamentable past which th e curren t constit ut ional dispensation seeks to overcome. That is at least true of both the United States and South Africa. D:\ 199 9-2\ FI NAL \ VAN-FI N.W PD Ja n. 8, 2001

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But ther e t he sim ila rit ies en d; w hile the a nticolon ial spirit of the American Const itut ion afforded preferential status to the First Amendment freedoms and accordingly instilled essent ially libert ar ian values in the fa br ic of all con st it ution al arrangements, South Africa, in response to its h istory of instit ut ionalized discr im in ation , const ructed a new dispensat ion where considerations of human dignity and equal protection reign supreme. Whereas the libertarian purport of Amer ica n institutions dictated the “wall of separation” of church an d st at e with all its ra mifications, the egalitar ian pr edilection s of Sou th Africa set that country on a different course. In South Africa, religion is not perceived as a governmental taboo, but rather the South Africa n Con st it ution requires eve nhandedn ess in officia l dea lin gs rela tin g t o religion and religious institutions. Take the following example: t he broadca st in g of religiou s services by the state-con trolled r adio and t ele vis ion corpor ation is not pr ohibited in Sou th Africa ; it is, on the contrary, encouraged. All the ma jor religions with a substa nt ial following in South Africa are eligible for conducting su ch ser vices. Time slots are allocated by th e appropriate a ut horities with a view to the norm of equ al trea tmen t—wh ich mea ns t hat the t im e for religiou s broadcast ing allocated to a part icular denominat ion is calculated to be pr oportional to the percentage of support enjoyed by th at denominat ion. When a par ticular Pentecostal denomination, the Rema Church, sought to buy extr a time for the broadcast ing of its services, its application was turned down by th e media authorities; permitting religiou s groups wh o could afford to pa y for ext ra tim e slot s on radio and t ele vis ion to do so, would defeat the egalita rian inten t of th e South African constitutional order. In education, too, South Africa remains favorably disposed toward promoting spir itu al values in the minds of young people, and doing so through the good offices of state institut ions. That is why religious observances in state and state-aided institutions is perm itt ed by t he Constit ut ion, pr ovided only that, in the cont ext of establishm ent, all religious groups are treated equally and, in the spirit of free exe rcise, p articip ation in such observances remains a matter of voluntary choice. Attempts of the a uthorit ies to come t o ter ms w it h Africa n values is further evidenced by th e legislation th at afforded full D:\ 199 9-2\ FI NAL \ VAN-FI N.W PD Ja n. 8, 2001

635] CHURCH-STATE RELATIONS IN SOUTH AFRICA 673 legal sanction to African customary marriages, including those that ar e, or in futur e will become, polygamous. There was also a judgment in the Transvaal Provincial Division of the High Cou rt not so long ago156 to the effect that the institution of primogeniture in Africa n customa ry law of intesta te succession (wh ich deemed African women incompetent to inherit under that system) did not amount to unfair discrimin at ion within the meaning of the Interim Constitu tion—that is, said Judge Le Roux, “[i]f one accepts the duty to provide [the widow with] sustenance, maintenance and shelter as a necessary corolla ry of the system of primogenit ur e.”157 Legislation has been introduced in the South African Parliament158 which, when enacted, will amend th e Intesta te Succession Act of 1987159 with a view to ma king its provisions applicable to all South Africans, and at the same tim e t o repea l t he cu st omary-la w r ules of intestate succession that had a tten ded cu st omary m arria ges of Africans, including the institution of primogeniture. Reconciliation of the values imbedded in African culture with the demands of equal protection and nondiscrimination still has to be put to the test of judicia l r eview. J ust ice M okgor o of the Constitutional Court noted on one occasion that customary law “rema ins int egral to the domestic cultur e of million s of South Africans” and must “be accorded due respect.”160 She referred to the “delica te a nd com plex” t ask of accommodating customary law to the values embodied in the Con st it ution . “This harmonisation exe rcise,” she wen t on to say, “will demand a great deal of judicious care and sen sitivity.”161

156. See Mt he mb u v . Le ts ela , 19 97 (2 ) SA 936 (T ). 157. Id. at 945. 158. See Ame nd me nt of Cu st om ar y La w of S ucc es sion B ill, Bill 10 9-98 (199 8). 159. Act 81 of 1987. 160. Du Plessis v. De Klerk, 1996 (5) BCLR 658 (CC), para. 174. 161. Id.