Constitutional perspective of Church-state relations in South Africa

Attempts of the authorities to come to terms with African values is further evidenced by the legislation that afforded full legal sanction to African customary marriages, including those that are, or in future will become, polygamous. There was also a judgment in the Transvaal Provincial Division of the High Court not so long ago15 to the effect that the institution of primogeniture in African customary law of intestate succession (which deemed African women incompetent to inherit under that system) did not amount to unfair discrimination within the meaning of the Interim Constitution-that is, said Judge Le Roux, "[i]f one accepts the duty to provide [the widow with] sustenance, maintenance and shelter as a necessary corollary of the system of primogeniture."57 Legislation has been introduced in the South African Parliament158 which, when enacted, will amend the Intestate Succession Act of 1987159 with a view to making its provisions applicable to all South Africans, and at the same time to repeal the customary-law rules of intestate succession that had attended customary marriages 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 judicial review. Justice Mokgoro of the Constitutional Court noted on one occasion that customary law "remains integral to the domestic culture of millions of South Africans" and must "be accorded due respect."ls She referred to the "delicate and complex' task of accommodating customary law to the values embodied in the Constitution. "This harmonisation exercise," she went on to say, "will demand a great deal of judicious care and sensitivity."161

1. CHRISTOF HEYNS, WHERE IS THE VOICE OF AFRICA IN OUR CONSTITUTION 1 (1996).

2. See Johan D. van der Vyver, Constitutional Options for Post-Apartheid South Africa, 40 EMORY L.J. 745, 746-48 (1991).

3. See also Ferreira v. Levin NO,1996 (1) BCLR 1 (CC), para. 51 (Ackermann, J., concurring).

4. 1 of Publications Act 42 of 1974. But see Johan D. van der Vyver, General Aspects of the South African Censorship Law, in CENSORSHIP 9, 22-24 (T. Coggin ed., 1983); Johan D. van der Vyver, Religion, in 23 THE LAW OF SOUTH AFRICA para. 242 (WA. Joubert & T.J. Scott eds., 1986); JOHAN D. VAN DER VYVER, SEVEN LEcTuRES ON

HUMAN RIGHTS 44-45 (1976) [hereinafter SEVEN LECTUREs]. 5. See 2(1Xa) (b) of National Education Policy Act 39 of 1967. 6. See 3(a) of Education and Training Act 90 of 1979. 7. See Publications Control Board v. Gallo (Africa) Ltd., 1975 (3) SA 665 (A), 671; R. v. Webb, 1943 A.D. 493, 496.

8. See 47(2)(b) of Publications Act 42 of 1974; see also Gallo (Africa) Ltd, 1975 (3) SA 665 (A) 671; and see the judgments of the Publications Appeal Board in Play with Fire, 1975 PAB 17, and Kalki, 1978 PAB 4.

9. For an example of a law relating to mineral rights which prohibited the pegging of a claim on a Sunday and on public holidays with a religious base, namely Good Friday, Ascension Day, the Day of the Vow (December 16th), and Christmas Day (see 2 of the Public Holidays Act 5 of 1952), see 48(4)(a) of Mining Rights Act 20 of 1967. The Minerals Act 50 of 1991 repealed this provision.