Study Theme 11: Religion

Question 1

Section 15 of the Constitution

Answer 1

Everyone has the right to freedom of conscience, religion, thought, belief and opinion.

Question 2

South Africa as a secular state

Answer 2

Section 15 is clear that it does not set out that SA is a secular state.

Question 3

What are things to take into account of S15

Answer 3

• You cannot be the only member of a religion to enforce this right
• You cannot invoke this right under the premise that such a right must be absolutely applied
  [The notion of ‘reasonable accommodation]
• This right is interrelated with other rights in the Constitution

Question 4

Reasonable Accommodation

Answer 4

Instances where the community, whether it is the State, an employer or a school, must take positive measures and possibly incur additional hardships or expense
in order to allow all people to participate and enjoy all their rights equally.

Question 5

Christian Education v Minister of Education

Answer 5

CORPORAL PUNISHMENT

The court’s decision on reasonable accommodation means:

• Check if the religious beliefs of the appellant are impacted by a prohibition, and if it can be justified under Section 36.
• Evaluate if the exemption for a religious practice is reasonable and justifiable in a democratic society focused on dignity, freedom, and equality.
• The court found that the ban on corporal punishment doesn’t violate freedom of religion, belief, or opinion and is meant to protect other rights in the bill of rights.

Question 6

S v Lawrence 1997 (4) SA 1176 (CC)

Answer 6

The right to –
* have (entertain) religious beliefs;
* to declare religious beliefs openly and without fear of hindrance or reprisal;
* the right to manifest religious belief by worship and practice or by teaching and dissemination.

Question 7

MEC Education v Pillay 2008 (1) SA 474 (CC)

Answer 7

Schools must take measures to ensure all students can exercise their right to religion equality

• In a democratic society, the challenge is to balance religious freedom with the need for all to obey basic laws.
• Everyone must agree to fundamental rules for society to function.
• Believers can’t automatically be exempt from the laws due to their religious beliefs.
• The government should try to minimize situations where believers have to choose between their faith and the law.

Regarding reasonable accommodation:

• The CC stresses this principle, especially in matters related to religion.
• It means that the community, whether it’s the government, an employer, or a school, should go the extra mile and potentially spend more to ensure that everyone can enjoy their rights and participate, even if they have religious beliefs.

Question 8

Hay v B 2003 (3) 492 (W)

Answer 8

parents’ refusal of a blood transfusion for their terminally ill child on religious grounds was found to be unjustifiable.

Question 9

Prince v Cape Law Society 2002 SA 784 (CC)

Answer 9

• Prohibited dagga possession, especially for Rastafarians who use it in their religion.
• Justice Sachs says we should consider context and accommodate diversity because the Constitution promotes tolerance and respect for all.

Question 10

Section 15(2) of the Constitution

Answer 10

Religious observances may be conducted at state or state-aided institutions

Question 11

Section 15(3) of the Constitution

Answer 11

This provision does not prevent legislation that recognises:
> Marriages concluded under any tradition, religion or family law
> Systems of personal and family law under any tradition or religion