Freedom of or freedom from religion? An overview of issues pertinent to the Constitutional protection of religious rights and freedom in "the new South Africa"

Brigham Young University Law Review, 2001 by Plessis, Lourens du

In a previous issue of this Law Review, Johan D. van der Vyver proffered an insightful, profound, and markedly exhaustive perspective of the evolution of church-state relations in South Africa.1 He painted an instructive picture of historical developments that shaped church-state relations in South Africa prior to the advent of constitutionalism in 1994. He then assessed developments since 1994 against this historical backdrop. It would be fruitless to duplicate this tour de force-especially its historical (pre-1994) dimension. Consequently, this article will supplement van der Vyver's post-1994 exposition with an overview of more recent developments. Additionally, the article will revisit issues that van der Vyver raised, putting a thematic spin on them.

The first thematic concern is the extent to which the protection of religious human rights and freedom in South Africa's Constitution2 serves to enhance tolerance among a religiously, ethnically, economically, and politically diverse population. Religious pluralism, in and of itself, has never been a major source of inter-individual and inter-group intolerance in South Africa. However, racial and ethnic conflict (including tensions between modernism and traditionalism), class tension, and political strife have found expression in the religious life of a nation where the vast majority profess some kind of religious affiliation.3

The second concern is whether, in light of South Africa's post-- 1994 constitutional case law, it is realistic to expect that judicial constructions of religious freedom might proceed beyond the mere allowance of a passive toleration of individual religious free exercise. Is it realistic to hope that constitutional warranties may be forthcoming in order to sustain the identity and integrity of dissimilar religious groups and communities, in a country where incongruities intertwined with religious life are rife? This expectation is premised on the cultivation of active religious tolerance in a state that abstains from favoring any particular religious communities or sentiments.

II. THE TRANSITION TO CONSTITUTIONALISM

A. The Transitional Constitution

The product of intense negotiation, South Africa's first justiciable Constitution (the "transitional" or "1993 Constitution"),4 entered into force on April 27, 1994 (coinciding with the first fully democratic elections in the country's history). This Constitution was a transitional one, "provid[ing] a historic bridge between the past of a deeply divided society characterized by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex."5

The transitional Constitution paved the way for the final Constitution. It also made generous provision for the protection of fundamental freedoms, including religious rights6 and other rights conducive to the realization of the same. These other rights include the right to equality,7 freedom of expression,8 freedom of association,9 and others.10 Moreover, religious rights were immune from suspension during a state of emergency,11 and the limitation of these rights was subject to a stricter form of scrutiny than the limitation of most other rights.12 Thus, in spite of its transitional nature, the 1993 Constitution effectively protected an impressive catalogue of rights, thereby laying a sound foundation for the eventual protection of rights, including religious rights, in the final Constitution. Finally, the transitional Constitution trail-blazed the rise of a South African constitutional jurisprudence.

B. The Final Constitution

The final Constitution (or the "1996 Constitution") was agreed on by a Constitutional Assembly and adopted by Parliament. After its adoption, compliance with the transitional Constitution's "Constitutional Principles"13 had to be certified by the Constitutional Court.14 The Constitutional Court referred the text back to the Assembly because it was of the opinion that, in certain respects, the text did not comply with the Constitutional Principles.15 An improved text was then resubmitted, and this text eventually withstood judicial scrutiny.16 The Constitution of the Republic of South Africa" thereupon entered into force on February 4, 1997. This final approved 1996 Constitution will serve as the principal point of reference in the overview that follows. However, much of the jurisprudence considered in this article is based on the transitional Constitution.

The 1996 Constitution has, in many respects, been designed to inculcate tolerance among South Africans. Passive tolerance means that people bear or put up with one another; affirmative tolerance means that they understand, accept, and appreciate one another. The latter form is worth striving for, but a minimum, basic (albeit passive) tolerance is preferable to no tolerance at all.18 Some of the general value statements in the 1996 Constitution make it clear that the reconciliation of individuals, groups, and communities whose interests are potentially in conflict is one of the Constitution's priorities.