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South Africa is a secular state, with freedom of religion enshrined in the Constitution.
The preamble to post-apartheid South Africa's Constitution of 1996 contains references to God in the form of a multilingual evocation asking for God's protection and blessing. [1] Dutch theologian Johannes van der Ven describes this text as a "rhetorical petition prayer". [2] The Constitution nevertheless enshrines the right to freedom of religion.
Chapter 2 of the Constitution of South Africa, the Bill of Rights, contains a number of provisions dealing with religious freedom. Section 9, the equality clause, prohibits unfair discrimination on various grounds including religion and requires national legislation to be enacted to prevent or prohibit unfair discrimination. Section 15 states that everyone has the right to freedom of conscience, religion, thought, belief and opinion. This section also allows religious observances in state and state-aided institutions, provided they follow public authority rules, they are conducted on an equitable basis and attendance is free and voluntary; and provides for the recognition of religious legal systems and marriages that are not inconsistent with the Constitution. Section 31 protects the right of persons belonging to a religious community to practise their religion together with other members of that community, and to form, join and maintain voluntary religious associations. [3]
Various other provisions of the Constitution relate to religion and religious freedom. Sections 185 and 186 provide for a commission for the promotion and protection of the rights of cultural, religious and linguistic communities. [4] In addition, human rights such as the right to human dignity, [5] the right to freedom of expression [6] and the right to freedom of association [7] relate indirectly to the protection of religious freedom. The right to freedom of expression does not extend to hate speech based on various grounds including religion. [6]
The constitutional right to freedom of religion is not absolute. In his keynote speech at the public endorsement ceremony of the South African Charter of Religious Rights and Freedoms in Johannesburg on 21 October 2010 Deputy Chief Justice Dikgang Moseneke stated:
Most of the provisions of the charter may appear uncontroversial, and yet as a sitting justice of the Constitutional Court moments may present themselves when I may be duty-bound to proffer judicial opinion on the remit or impact of one or more of its provisions, if they were to be formally enacted, or if a justiciable dispute about its enactment should arise. I am thus honour-bound to keep an open mind on the constitutional appropriateness of its provisions....
Where religious rights are at odds with other constitutional guarantees or a legitimate government purpose, the conflict must be weighed carefully, keeping in mind that in our constitutional democracy the constitution is supreme and there is no hierarchy of rights. All rank equally. We all have the right to be different.
Every right guaranteed in the Bill of Rights may be limited by a law of general application. Thus the right to religious freedom is not absolute. Its scope may be limited by other rights or by a law in pursuit of a legitimate government purpose.
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We have opted for a secular state which is enjoined to observe strict neutrality among religious tendencies. This duty indeed extends to the right not to believe or hold or observe any religion.— Dikgang Moseneke, "The right to differ religiously". The Sunday Independent. 24 October 2010. Archived from the original on 11 June 2014. Retrieved 18 March 2014– via HighBeam Research.
Pursuant to Section 9 of the Constitution, the Equality Act of 2000 prohibits unfair discrimination on various grounds including religion. [8] [9] The Equality Act does not apply to unfair discrimination in the workplace, which is covered by the Employment Equity Act. [10]
The South African Human Rights Commission (SAHRC) is a chapter nine institution inaugurated in 1995 to support constitutional democracy. The SAHRC investigates complaints about unfair discrimination and assists members of the public with cases heard in Equality Courts. [10] [11] [12]
The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL Rights Commission) is a chapter nine institution established in 2004 to support constitutional democracy. [13]
National legislation and policies governing religion in schools relate to Religion Education, religious observances in schools and school dress codes:
In August 2014 the Organisasie vir Godsdienste-Onderrig en Demokrasie ("Organisation for Religion Education and Democracy") (OGOD) filed an application in the South Gauteng High Court to stop several public schools from describing themselves as Christian or promoting a Christian ethos in contravention of the constitution. [23] [24] [25] [26] All six schools named in the application were Afrikaans-medium public schools and their school governing bodies were members of the Federation of Governing Bodies of South African Schools (FEDSAS). The outcome of the test case applies to all public schools however. The named schools opposed the case and were supported in this by FEDSAS, AfriForum, the Freedom Front Plus political party and the African Christian Democratic Party. [26] [27] [28] [29] In June 2017 the court ruled that it is unlawful for a public school or school governing body, which function in a diverse society, to practise single faith branding aligned with one dominant religion to the exclusion of others. [30] [31] [32] [33] The schools decided not to appeal the court's ruling. [34]
The new Constitution did not result in immediate reform of discriminatory legislation infringing on the right to religious freedom. Various legislative reforms have taken place or have been initiated since 1994 as a result of lobbying by disenfranchised groups.
The Civil Union Act, which came into effect on 30 November 2006, legalised same-sex marriage and also allowed for the legal designation of religious marriage officers without any religious restriction in accordance with the Constitution. Previously, religious marriage officers could only be legally designated as such "for the purpose of solemnizing marriages according to Christian, Jewish or Mohammedan rites or the rites of any Indian religion" in accordance with the Marriage Act. In accordance with section 5 of the Civil Union Act, any religious organisation may apply to the Department of Home Affairs for designation as a religious organisation and when designated as such must formally nominate suitable candidates from within their organisation to be designated by the Department of Home Affairs as religious marriage officers for the purpose of solemnising marriages according to the rites of that religious organisation. [35]
The Witchcraft Suppression Act of 1957 based on colonial witchcraft legislation criminalises claiming a knowledge of witchcraft, conducting specified practices associated with witchcraft including the use of charms and divination, and accusing others of practising witchcraft. [36] In 2007 the South African Law Reform Commission received submissions from the South African Pagan Rights Alliance and the Traditional Healers Organization requesting the investigation of the constitutionality of the act and on 23 March 2010 the Minister of Justice and Constitutional Development approved a South African Law Reform Commission project to review witchcraft legislation. [37] [38]
One of the SALRC's other new projects, the review of witchcraft legislation, will support the constitutional guarantee to freedom of religion, but will also serve to protect vulnerable groups. It is mostly women advanced in age that are persecuted as witches by communities holding traditional beliefs. These innocent victims are vulnerable to a double degree: as women and as older persons.
— South African Law Reform Commission Thirty Eighth Annual Report 2010/2011 [39]
The Christian holidays of Christmas Day and Good Friday remained in post-apartheid South Africa's calendar of public holidays. The CRL Rights Commission held countrywide consultative public hearings in June and July 2012 to assess the need for a review of public holidays following the receipt of complaints from minority groups about unfair discrimination. The CRL Rights Commission stated that they would submit their recommendations to the Department of Home Affairs, the Department of Labour, various Portfolio Committees and the Office of the Presidency. [40] [41] [42] The CRL Rights Commission published its recommendations on 17 April 2013, including the scrapping of some existing public holidays to free up days for some non-Christian religious public holidays. [43] [44] On 18 January 2015 the South African Law Reform Commission published a discussion document on legislation administered by the Department of Home Affairs in which it suggested "that either these holidays be reviewed or that equal weight be given to holidays of other faiths". [45] [46] [47]
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The First Amendment to the United States Constitution prevents the government from making laws respecting an establishment of religion; prohibiting the free exercise of religion; or abridging the freedom of speech, the freedom of the press, the freedom of assembly, or the right to petition the government for redress of grievances. It was adopted on December 15, 1791, as one of the ten amendments that constitute the Bill of Rights.
Civil liberties are guarantees and freedoms that governments commit not to abridge, either by constitution, legislation, or judicial interpretation, without due process. Though the scope of the term differs between countries, civil liberties may include the freedom of conscience, freedom of press, freedom of religion, freedom of expression, freedom of assembly, the right to security and liberty, freedom of speech, the right to privacy, the right to equal treatment under the law and due process, the right to a fair trial, and the right to life. Other civil liberties include the right to own property, the right to defend oneself, and the right to bodily integrity. Within the distinctions between civil liberties and other types of liberty, distinctions exist between positive liberty/positive rights and negative liberty/negative rights.
The Constitution of South Africa is the supreme law of the Republic of South Africa. It provides the legal foundation for the existence of the republic, it sets out the rights and duties of its citizens, and defines the structure of the Government. The current constitution, the country's fifth, was drawn up by the Parliament elected in 1994 in the South African general election, 1994. It was promulgated by President Nelson Mandela on 18 December 1996 and came into effect on 4 February 1997, replacing the Interim Constitution of 1993. The first constitution was enacted by the South Africa Act 1909, the longest-lasting to date. Since 1961, the constitutions have promulgated a republican form of government.
A secular state is an idea pertaining to secularity, whereby a state is or purports to be officially neutral in matters of religion, supporting neither religion nor irreligion. A secular state claims to treat all its citizens equally regardless of religion, and claims to avoid preferential treatment for a citizen based on their religious beliefs, affiliation or lack of either over those with other profiles.
Freedom of religion in Canada is a constitutionally protected right, allowing believers the freedom to assemble and worship without limitation or interference.
Freedom of education is the right for parents to have their children educated in accordance with their religious and other views, allowing groups to be able to educate children without being impeded by the nation state.
Chapter Two of the Constitution of South Africa contains the Bill of Rights, a human rights charter that protects the civil, political and socio-economic rights of all people in South Africa. The rights in the Bill apply to all law, including the common law, and bind all branches of the government, including the national executive, Parliament, the judiciary, provincial governments, and municipal councils. Some provisions, such as those prohibiting unfair discrimination, also apply to the actions of private persons.
The Fundamental Rights in India enshrined in part III of the Constitution of India guarantee civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India. These rights are known as "fundamental" as they are the most essential for all-round development i.e., material, intellectual, moral and spiritual and protected by fundamental law of the land i.e. constitution. If the rights provided by Constitution especially the Fundamental rights are violated the Supreme Court and the High Courts can issue writs under Articles 32 and 226 of the Constitution, respectively, directing the State Machinery for enforcement of the fundamental rights.
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The Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 is a comprehensive South African anti-discrimination law. It prohibits unfair discrimination by the government and by private organisations and individuals and forbids hate speech and harassment. The act specifically lists race, gender, sex, pregnancy, family responsibility or status, marital status, ethnic or social origin, HIV/AIDS status, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth as "prohibited grounds" for discrimination, but also contains criteria that courts may apply to determine which other characteristics are prohibited grounds. Employment discrimination is excluded from the ambit of the act because it is addressed by the Employment Equity Act, 1998. The act establishes the divisions of the High Court and designated Magistrates' Courts as "Equality Courts" to hear complaints of discrimination, hate speech and harassment.
The Constitution provides for freedom of religion, although it prohibits what the Government considers to be religious fundamentalism.
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The South African Charter of Religious Rights and Freedoms (SACRRF) is a charter of rights drawn up by South African religious and civil organisations which is intended to define the religious freedoms, rights and responsibilities of South African citizens. The aim of the drafters of the charter is for it to be approved by Parliament in terms of section 234 of the Constitution of South Africa.
Christian Education South Africa v Minister of Education is an important case in South African law. It was heard in the Constitutional Court, by Chaskalson P, Langa DP, Goldstone J, Madala J, Mokgoro J, Ngcobo J, O'Regan J, Sachs J, Yacoob J and Cameron AJ, on 4 May 2000, with judgment handed down on 18 August. FG Richings SC appeared for the appellant, and MNS Sithole SC for the respondent.
Neopaganism in South Africa is primarily represented by the traditions of Wicca, Neopagan witchcraft, Germanic neopaganism and Neo-Druidism. The movement is related to comparable trends in the United States and Western Europe and is mostly practiced by White South Africans of urban background; it is to be distinguished from folk healing and mythology in local Bantu culture.
The status of religious freedom in Africa varies from country to country. States can differ based on whether or not they guarantee equal treatment under law for followers of different religions, whether they establish a state religion, the extent to which religious organizations operating within the country are policed, and the extent to which religious law is used as a basis for the country's legal code.
The status of religious freedom in South America varies from country to country. States can differ based on whether or not they guarantee equal treatment under law for followers of different religions, whether they establish a state religion, the extent to which religious organizations operating within the country are policed, and the extent to which religious law is used as a basis for the country's legal code.
Freedom of Religion South Africa is a South African nonprofit fundamentalist Christian advocacy group. It was founded in 2014 by Andrew Selley, the lead pastor and founder of the Joshua Generation Church, after parents filed a complaint to the South African Human Rights Commission that alleged that Joshua Generation Church advocated for corporal punishment in the home. In Freedom of Religion South Africa v Minister of Justice and Constitutional Development, FOR SA unsuccessfully opposed a ruling by the Johannesburg High Court that deemed corporal punishment to be assault.
Qwelane v South African Human Rights Commission and Another is a 2021 decision of the Constitutional Court of South Africa on the constitutionality of a statutory prohibition on hate speech. The court found that section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 was unconstitutional insofar as it included the vague term "hurtful" as part of the definition of prohibited hate speech.
May God protect our people. Nkosi Sikelel' iAfrika. Morena boloka setjhaba sa heso. God seën Suid-Afrika. God bless South Africa.
7. Freedom of conscience and religion at public schools.—Subject to the Constitution and any applicable provincial law, religious observances may be conducted at a public school under rules issued by the governing body if such observances are conducted on an equitable basis and attendance at them by learners and members of staff is free and voluntary.
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