Religion and the public sphere: Towards a model that positively recognises diversity

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

Religion and the public sphere: Towards a model that positively recognises diversity

Authors David Bilchitz, Alistair Williams

ISSN: 1996-2126
Affiliations: Associate Professor, Faculty of Law, University of Johannesburg; Director, South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC), a Centre of the University of Johannesburg; Research Intern, SAIFAC, University of Johannesburg
Source: South African Journal on Human Rights, Volume 28 Issue 2, 2012, p. 146 – 175

Abstract

What model of the relationship between religion and state is optimal for South Africa? In order to identify the possibilities that exist, this article engages in a critical evaluation of the differing models of the state-religion relationship that have been adopted internationally. Part I seeks to identify, from a philosophical perspective, the advantages and disadvantages of particular models. Part II then focuses more closely on the particular historical and social context of South Africa as well as the most important constitutional provisions and case law. We shall argue in this section for what we term a ‘positive recognition’ model of the relationship between religion and state in South Africa, which emerges from the values underlying the Constitution. The model is not predicated on a strict, inflexible separation between the public and private realms. It requires the state to recognise the significance of religious identities to individuals and to take active measures to enable individuals to realise those identities. Importantly, it must do so in a manner that treats differing religious (and other philosophical) conceptions of the good equally. The last part of the article seeks to illustrate the implications of this model in practice in relation to two important practical questions where the state-religion relationship is implicated: public holidays of a religious character and the presence of religion at state ceremonies.

Introduction: The right to freedom of religion in South Africa and related challenges

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

Introduction: The right to freedom of religion in South Africa and related challenges

Authors David Bilchitz, Shaun de Freitas

ISSN: 1996-2126
Affiliations: Associate Professor, Faculty of Law, University of Johannesburg; Director, South African Institute for Advanced Constitutional, Public, Human Rights and International Law; Associate Professor, Faculty of Law, University of the Free State
Source: South African Journal on Human Rights, Volume 28 Issue 2, 2012, p. 141 – 145

Abstract

None

Substantive equality for disabled learners in state provision of basic education: A commentary on Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa

by | Oct 19, 2019 | SAJHR, SAJHR V28 I1

Substantive equality for disabled learners in state provision of basic education: A commentary on Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa

Authors Charles Ngwena, Loot Pretorius

ISSN: 1996-2126
Affiliations: Professor of Law, University of the Free State
Source: South African Journal on Human Rights, Volume 28 Issue 1, 2012, p. 81 – 115

Abstract

Disabled learners are a protected group with rights to equality and basic education under the Constitution. Taking substantive equality and the right to basic education seriously requires the state, especially, to commit significant resources and take positive measures to ensure that the education system adequately accommodates the needs of disabled learners. However, the historical exclusion and marginalisation of disabled people from the education system, the finite nature of economic resources and the fact that socio-economic rights are generally realisable incrementally, can easily provide the state with excuses rather than valid justifications for not meeting the learning needs of disabled learners. This is even more so, if disability is understood as something intrinsic to the disabled learner rather than something that also implicates the larger education system and socio-economic environment. The aim of this article is two-fold. Firstly, it uses the decision of the Western Cape High Court in Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa (2010) as an opportunity for interrogating the relationship between substantive equality and socio-economic rights as well as the relationship between the state and its obligations towards private ‘partners’ in the discharge of its socio-economic obligations through the use of so-called state ‘subsidies’. Secondly, and more broadly, the article uses the education policy that was challenged in Western Cape Forum to highlight that disability is a severe site of discrimination. Even in post-apartheid South Africa, where the Constitution protects the equality rights of disabled people, it is easy for state policy that claims to be advancing a transformative agenda to paradoxically become an instrument for giving legitimacy to a disabling discourse. Ultimately, it is argued that when dealing with disability, equality jurisprudence needs a transformative theory of difference in order to guarantee inclusive citizenship.