Freedom of association as a foundational right: Religious associations and Strydom v Nederduitse Gereformeerde Gemeente, Moreleta Park

by | Oct 19, 2019 | SAJHR, SAJHR V28 I2

Freedom of association as a foundational right: Religious associations and Strydom v Nederduitse Gereformeerde Gemeente, Moreleta Park

Authors Shaun de Freitas

ISSN: 1996-2126
Affiliations: Associate Professor, Department of Constitutional Law & Philosophy of Law, University of the Free State
Source: South African Journal on Human Rights, Volume 28 Issue 2, 2012, p. 258 – 272

Abstract

In Strydom v Nederduitse Gereformeerde Gemeente, Moreleta Park the applicant was appointed as an independent contractor by the respondent (a church) to teach music to its students. The respondent terminated the services of the applicant when it was discovered that he was involved in a same-sex relationship. However, it was decided that the respondent had discriminated unfairly against the applicant. This decision has prompted earnest debate regarding the parameters of appointments by (and membership of) religious associations in South Africa. This investigation contributes to such debate arguing that appointments by (and membership to) a church may require an adherence to the core tenets of such a church, irrespective of the functions emanating from such an appointment. Also, the view that same-sex sexual conduct should not be used as a discriminatory ground in appointments (membership) by a religious association is critically analysed, hereby presenting some insights as to the relationship between the right to equality and religious rights and freedoms, especially in the context of diversity and identity in a pluralist and democratic society.

The right of religious associations to discriminate

by | Oct 19, 2019 | SAJHR, SAJHR V28 I2

The right of religious associations to discriminate

Authors Patrick Lenta

ISSN: 1996-2126
Affiliations: Associate Professor, School of Philosophy and Ethics, University of Kwazulu-Natal
Source: South African Journal on Human Rights, Volume 28 Issue 2, 2012, p. 231 – 257

Abstract

The issue of whether religious associations should be permitted to engage in employment discrimination on prohibited grounds such as gender, sexual orientation or race gives rise to a collision between the rights to religious freedom and freedom of association, on the one hand, and the right to equality, on the other. In a recent article in which I criticised Basson J for balancing these rights incorrectly in Strydom v Nederduitse Gereformeerde Gemeente, Moreleta Park, I argued that equal importance should be attached to the rights to equality and religious and associational liberty, and that the correct balancing of these rights requires that religious groups be permitted to discriminate in their employment practices in respect of positions sufficiently close to the core of religious doctrine. My article has elicited two thoughtful replies, one by Prof Stu Woolman and the other by Prof David Bilchitz. Bilchitz argues that I afford the right to equality insufficiently robust protection and claims that in South Africa the right to equality should be accorded ‘primacy’ relative to the rights to religious and associational liberty in cases in which these rights conflict. Woolman contends that the protection I provide for the right to freedom of association is too weak and that religious associations should have more extensive freedom to discriminate than I allow. In this article, effectively a rejoinder, I defend my assessment of Strydom and my approach to the present conflict of rights against several objections advanced by Bilchitz and Woolman. I argue for a workable compromise between their positions: equality must often prevail (that is, in the public, political and ordinary commercial spheres, and where the position in respect of which religious associations seek to discriminate is distant from the doctrinal core of the religion concerned), but sometimes the claims of religious voluntary associations to discriminate in accordance with settled religious beliefs should be accommodated.

The positive role of public policy in private international law and the recognition of foreign Muslim marriages

by | Oct 19, 2019 | SAJHR, SAJHR V28 I2

The positive role of public policy in private international law and the recognition of foreign Muslim marriages

Authors Jan L Neels

ISSN: 1996-2126
Affiliations: Professor of Private International Law, University of Johannesburg
Source: South African Journal on Human Rights, Volume 28 Issue 2, 2012, p. 219 – 230

Abstract

This article deals with the possible recognition in South Africa of foreign Muslim marriages that are not valid in terms of the law of the country in which they were concluded. It is argued that such recognition is possible through the positive application of the doctrine of public policy. The role of public policy in private international law is usually described as a negative one (the exclusion of foreign law), but it is submitted that public policy may also play a positive role (the application of a legal system other than the usually applicable one) and some authority and examples are found in the common-law conflict of laws, Islamic jurisdictions and Israeli law. The relevance of the difference between internal and external public policy is indicated and the issue of whether the infringement by the foreign law of a right in the South African Bill of Rights automatically constitutes a violation of the forum’s external public policy is discussed with reference to recent case law. South African decisions dealing with the recognition of Muslim marriages for certain purposes in domestic law on the basis of constitutional values indicate that the doctrine of public policy in private international law may readily be employed to recognise foreign Muslim marriages irrespective of their invalidity in terms of the prima facie applicable legal system. If the Muslim Marriage Bill of 2010 were to enter into force, the courts would be able to rely directly on a provision dealing with the recognition of foreign Muslim marriages to reach the same result. Certain shortcomings in the current draft are highlighted and an alternative formulation is proposed.

Judging Jews: Court interrogation of rule-making and decision-taking by Jewish ecclesiastical bodies

by | Oct 19, 2019 | SAJHR, SAJHR V28 I2

Judging Jews: Court interrogation of rule-making and decision-taking by Jewish ecclesiastical bodies

Authors Stu Woolman, David Zeffertt

ISSN: 1996-2126
Affiliations: Elizabeth Bradley Chair of Ethics, Governance and Sustainable Development, University of the Witwatersrand; Academic Director, Symposia and Colloquia, South African Institute for Advanced Constitutional, Public, Human Rights and International Law; Professor Emeritus, School of Law, University of the Witwatersrand
Source: South African Journal on Human Rights, Volume 28 Issue 2, 2012, p. 196 – 218

Abstract

Determining who is in, and who is out, is a hot topic in debates about membership in religious communities, and the bodies, state and sectarian, that have the power to make decisions regarding such membership. For the most part, the state and the courts have taken a decidedly hands-off approach to interference in religious association decision-making. Some judgments have reinforced the proposition that individuals who ‘voluntarily’ commit themselves to a religious association’s rules and decision-making bodies must be prepared to accept the outcome of fair-hearings conducted by those bodies. At the same time, a number of judgments have demonstrated a willingness to intervene quite profoundly in the affairs of a variety of different religious communities and mediate the relationship between the profane and the sacred, the traditional and the modern. Our intervention concentrates on but two features of court-driven, constitutional review of religious association decisions regarding membership or participation in a given community. First, we suggest how the law of evidence can provide appropriate guidance to courts faced with the challenge of interrogating the validity of decisions taken by religious bodies. Second, we offer a theory of religious community life in a constitutional democracy that can guide courts in determining when and where they should and should not interfere in the decision-making of religious bodies.

Mottos, prayer and the public university

by | Oct 19, 2019 | SAJHR, SAJHR V28 I2

Mottos, prayer and the public university

Authors Shaun de Freitas

ISSN: 1996-2126
Affiliations: Constitutional Law & Philosophy of Law, University of the Free State
Source: South African Journal on Human Rights, Volume 28 Issue 2, 2012, p. 176 – 195

Abstract

Recent decisions by the University of the Free State (UFS) regarding the amendment of its motto and the prohibition of the public manifestation of prayer at formal occasions serve as a catalyst towards discussion on the role and place of religion not only in a public university but also in the public sphere. The exclusion of religious expression and activity seems to be part of the UFS’s drive towards a ‘transformed and inclusivist’ approach. This article consequently investigates such exclusivist measures, critically analysing whether such initiatives are truly aligned with ‘transformative’ and ‘inclusivist’ aims. How religious (and belief) expressions and practices are dealt with at the UFS makes for a particularly good case study regarding commitments to pluralism, accommodation and multiculturalism. By looking specifically at the changing of the motto of the UFS and the exclusion of prayer at this institution, this article seeks to find solutions to a more effective accommodation of religious expression at the UFS. Lessons can be learnt from this not only for the UFS, but also for any public institution.