Why courts should not sanction unfair discrimination in the private sphere: A reply

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

Why courts should not sanction unfair discrimination in the private sphere: A reply

Authors David Bilchitz

ISSN: 1996-2126
Affiliations: Associate Professor, University of Johannesburg; Director, South African Institute for Advanced Constitutional, Public, Human Rights and International Law
Source: South African Journal on Human Rights, Volume 28 Issue 2, 2012, p. 296 – 315

Abstract

This article addresses the question as to whether religious associations should be granted an exemption from legal anti-discrimination provisions relating to their employment practices. It focuses on responding to criticisms mainly by Patrick Lenta of my position that, in general, no such exemptions should be granted. The key issues I address are the following. Firstly, I shall consider the relationship between South Africa’s particular context and the approach to be adopted towards interpreting and balancing fundamental rights in South African constitutional law. Secondly, I shall contend that religious associations do violate liberal reciprocity when seeking such an exemption and respond to Lenta’s argument in this regard. Thirdly, I shall consider the harms of discrimination by religious communities upon the equal citizenship of vulnerable groups and distinguish these from the distress caused by refusing members of religious associations exemptions from anti-discrimination legislation. Finally, I shall discuss the question of remedies and the possibilities they allow for encouraging religious associations to act in ways that are consonant with South Africa’s constitutional democracy.

Seek justice elsewhere: An egalitarian pluralist’s reply to David Bilchitz on the distinction between differentiation and domination

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

Seek justice elsewhere: An egalitarian pluralist’s reply to David Bilchitz on the distinction between differentiation and domination

Authors Stu Woolman

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
Source: South African Journal on Human Rights, Volume 28 Issue 2, 2012, p. 273 – 295

Abstract

This response to Professor David Bilchitz attempts to put the two of us back on square. It advances our ‘roughly’ common conception as to how our constitutional order ought to address conflicts between equality and liberty that surface in cases that turn on differentiation and discrimination within religious orders and traditional communities. To that end, this article first clears up any previous misunderstandings, establishes our common ground and adumbrates a (largely) shared paradigm as to when our basic law should identify cognisable harms to the dignity of fellow South Africans and the broad array of remedies at the disposal of our courts. This article then reminds us that we possess a well-developed body of South African jurisprudence that distinguishes the public from the private, and why constitutions are invariably committed to a defence of pluralism and some degree of private ordering. Thereafter, I advance the idea that one might ‘seek justice elsewhere’ as a response to domination and tyranny: either by peregrinations around the globe or by exiting one sub-public and entering or constructing another more felicitous community within one’s birth-state. With respect to the latter form of exit, the community responsible for the expulsion and the impairment of an individual’s dignity should, along with the state, bear some form of material obligation in order to make the creation of a more commodious sub-public a reality. Thereafter, the article relies heavily on theses laid out in Michael Walzer’s Spheres of Justice. Spheres of Justice, which enables us to make critical distinctions between differentiation and domination, as well as between legitimate distributions of social goods and tyrannical abuses of economic, social and political power that invariably lead to the kind of stratified society that we inhabit in South Africa. The article then draws on Walzer’s distinction between differentiation and domination in order to demonstrate how a commitment to remedial equilibration can assist us in developing a sliding scale of ‘interdependent and interrelated’ rights and remedies by which the rules that govern various non-state publics, communities or associations might be measured when charges of discrimination are laid. A court order based upon remedial equilibration possesses a number of distinct virtues. Where differentiation rises to the level of unfair discrimination, remedial equilibration allows a court to: (a) acknowledge the constitutional infirmity of the conduct; (b) appropriately remonstrate the association responsible for such conduct without necessarily eviscerating the power of the association to continue to determine its rules for membership, voice and exit; (c) require the association, and where appropriate the state, to bear the pecuniary costs of the dismissal (or expulsion); and (d) assist the person harmed to secure employment (or some other good) in a more congenial environment and thereby find justice elsewhere.

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.