Abstract

Keywords

Freedom of religion; freedom of belief; diversity; law and religion; church and state; religion and the public sphere.

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1 Introduction

Included in the human rights jurisprudence since the establishment of a democratic South Africa (nearly three decades ago) are a limited number of judgments by the Constitutional Court 1

* Shaun de Freitas. B Proc LLB LLM LLD. Professor, University of the Free State, South Africa. Adjunct Professor, University of Notre Dame, Australia. Email: defreitas@ufs.ac.za . ORCiD: https://orcid.org/0000-0003-0236-0109.

1 See S v Lawrence, S v Negal, S v Solberg 1997 4 SA 1176 (CC) (hereafter Lawrence); Prince v President of the Cape Law Society of the Cape of Good Hope 2002 2 SA 794 (CC) (hereafter Prince); Christian Education South Africa v Minister of Education 2000 4 SA 757 (CC) (hereafter Christian Education); MEC for Education: KwaZulu-Natal v Pillay 2008 1 SA 474 (CC) (hereafter Pillay).

Constitutional Court's confirmation of the importance of freedom of religion is bolstered by the Constitutional Court's expressed endorsement of the Constitution as supportive of the protection and promotion of diversity. 7

7 See Pillay paras 64-65, 75-76, 104, 107; National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 1 SA 6 (CC) paras 107, 134-135; Lawrence paras 146-147; Christian Education paras 24-25; Prince paras 49, 79, 147, 170; Fourie para 95.

[w]e, the people of South Africa … [b]elieve that South Africa belongs to all who live in it, united in our diversity …

That diversity should also be understood, as the inclusion of religious beliefs in addition to non-religious beliefs stands to reason. Religious believers are represented by a significant segment of South African society, 8

8 See, for example, Schoeman 2017 HTS Teologiese Studies/Theological Studies 1-7.

Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, 13

13 Section 181 of the Constitution.

Religious freedoms continue to be challenged in many democracies (and non-democracies) around the world, and included in this challenge is the substantive relegation of religion to the private sphere. 16

16 This is evident from, for example, the daily challenges confronting religious civil society institutions, not even to mention the innumerable sources of scholarship by experts in law, education, sociology, philosophy, politics and theology, for example, critiquing the anti-religious sentiment that is rife in liberal democracies around the world. In this regard, see for example, Carter Culture of Disbelief; Deneen, Why Liberalism Failed; and Smith Disintegrating Conscience.

Consequently, this article presents essential insights directed at the promotion of the protection of the right to freedom of religion in South Africa against the background mainly of the limits of law, concerns regarding neutrality-talk and the furtherance of diversity. Bearing this in mind, this article is comprised of the following: a reminder of the importance of religious belief (and implied in this, non-religious belief as well) as well as concerns related to the application of law in a manner that unnecessarily limits the normative frameworks adhered to by the religious. Also, neutrality as a questionable measure pertaining to claims of religious rights is imputed as well as critical pointers involving extracts from selected Constitutional Court judgments which contribute to the discussion on ways in which the protection of freedom of religion can be advanced. This is followed by some thoughts on the advancement of diversity, 17

17 By diversity, for the purposes of this article, is meant a practical arrangement towards the furtherance of inclusion in society, rather than an essential or moral principle.

minority judgments (by Ngcobo J and Sachs J) 18

18 Sachs J delivered a supplementary minority judgment and was joined by Mokgoro J as well as Madlanga AJ in concurring with the minority judgment of Ngcobo J.

2 Underpinnings for the advancement of the protection of religious freedoms

In what follows are insights related to what is suggested as being essential aspects for the advancement of religious freedoms in South Africa. Roger Scruton, in his commentary on the poet TS Eliot, states that if you remove "faith", you do not eradicate a body of doctrine only, nor do you leave a clear picture reflecting, at last, what the individual really is. Rather, says Scruton, you remove the power to notice more important truths:

[t]ruths about our condition which cannot, without the benefit of faith, be properly confronted – such as the truth of our mortality. 20

20 Scruton 2008 Intercoll Rev 8. Also see Nussbaum 1985 Cumb L Rev 56-57.

Melissa Moschella reminds us of the "human good of religion", which lies in the acknowledgement that questions related to ultimate meaning in life are questions regarding that which is:

[p]eculiarly important to have thought reasonably … whatever the answer to those questions turns out to be, and even if the answers have to be agnostic or negative … 21

21 Moschella 2017 J L & Relig 127. Scruton is of the view that "religion is the life-blood of a culture, and it provides the symbols, stories, and doctrines that enable us to communicate about our destiny"; Scruton 2008 Intercoll Rev 9.

with Moschella adding that the importance of these questions for those who believe in a God is:

[g]rasped by practical reason as first principles without the need (or possibility) of a rational demonstration in much the same way as practical reason grasps the values of friendship and sociability (living in harmony with other human beings), of being in good health, of attaining knowledge, of developing one's talents and skills, and of achieving an inner harmony among the reasoning and desiring aspects of oneself. 22

22 Moschella 2017 J L & Relig 127. Moschella is here reminding us of what is reflected in views going as far back as the classical Greeks and Romans and which also overlaps with natural law theory (including the views of eminent modern-day scholars such as John Finnis and George Grant). Added to this are the many records of ancient cultures around the world that attest to the importance of belief in God.

This also confirms the inextricable relationship between human dignity and the protection of religious interests, Robert George saying that:

[r]espect for the person – that is to say, respect for his or her dignity as a free and rational creature – requires respect for his or her religious liberty … 23

23 George 2012 IJRF 39. Also see Ahdar and Leigh Religious Freedom 1-2.

These comments in support of the substantive relevance of religious belief point to religious beliefs also meriting inclusion in the arena of truthfulness and the resultant competitiveness of religion to other non-religious foundational beliefs that occupy (and in many instances rule over) the public sphere (and that also have claims to truth). It is sensible for Paul Horwitz to argue that in a pluralistic society that genuinely acknowledges the possibility of religious truth the state should accord significant weight to the possibility that some religious claimants' understanding of the truth is true. The "constitutional agnostic" (Horwitz’ term) makes an extreme effort to understand religious truth from the perspective of the religious believer, acting under the assumption that the religious believer views this world and its mysteries accurately. 24

24 Horwitz The Agnostic Age 277-278. Horwitz also warns against the settling of conflicts related to freedom of religion by calling upon some view of the public good, which, says Horwitz, is often a decidedly secular and statist one, and adds that our very understanding of what the "public good" requires "is itself a deeply contestable question … for the 'public good' to mean anything in our own age, it must incorporate the possibility and importance of religious truth"; Horwitz The Agnostic Age 278. Also see Hitchcock Supreme Court and Religion Vol 2 144.

Bearing in mind the inherency and importance of religious belief, the question arises as to why many religious believers find it challenging in many instances to be included in the public sphere in a number of societies labelled as democratic? Harold Berman refers to the current climate of viewing the law as an end in itself; a climate in which the Constitution is understood as being an end in itself and in which any higher sense of normative importance is discarded. This Berman refers to as a form of secular religion. 25

25 Berman 1979 Cap U L Rev 354. Although Berman is here referring to the context of the American Constitution, this should serve as a word of caution regarding the South African legal context.

[w]e continue to talk of law as if it refers to an objective ontological reality, a tendency that belies the deeper scepticism of the modern condition. This is the same problem confronting human rights talk. 26

26 Calo 2011 St John's L Rev 517. Also see Berman Law and Revolution 557.

Iain Benson comments that:

Authoritarian regimes have always sought to make all matters subject to law – to make law, in fact, 'comprehensive' in the way that theocratic regimes in times past viewed the state – with all of its aspects framed by religion. Now that we have, in the West, moved beyond theocracy, we are in danger of the law extending its ambit beyond where it should go to a kind of juristic theocracy if we are not careful…risk of 'comprehensive law' that fails to understand its competence and its jurisdiction and that would, thus, threaten the various plural goods that a richly federated state needs to nurture. 27

27 Benson "Foreword" xxxviii.

True tolerance should point towards tolerating that which is viewed, by the powers that be, to be illogical, non-sensible, bizarre or foreign, for example; provided of course that intolerable and substantive violations of fundamental rights not be tolerated. For true diversity to be protected and developed, the civil authorities in democratic societies must make a concerted effort when dealing with the law in the context of matters of religious conviction to detach themselves from their own world or culture of meanings or at least not impose those on lived associations such as religions that view matters differently. This is where the challenge rests regarding the advancement of diversity; the challenge for the governing authorities to avoid as far as is possible the highly attractive temptation to tread the easy path of excluding religion due to differences in meaning, conviction, and even of what is perceived as sensible. There is a variation of ultimate meanings related to legal matters and these meanings emanate from individuals, also in their being part of societal structures such as the family, schools, universities, churches, mosques, temples and business entities. These societal structures exist alongside the state and each, says Gordon Spykman, must be provided with the right of existence:

[t]he state is the balance wheel that safeguards, regulates, and coordinates the work of the other wheels, ensuring a proper intermeshing of functions and, thus, facilitating cooperation in partnership. 28

28 Spykman "The Principled Pluralist Position" 97.

In this regard law plays an essential role for the harmonisation as well as the advancement of interests, the maintenance of peace and the preservation of all within a society. 29

29 As stated in Art 18(3) of the International Covenant on Civil and Political Rights (1966): "Freedom to manifest one's religion or beliefs may be subject only to such

earlier, it is also important that law should not be approached from only one perspective pertaining to substantial moral matters, namely that of the State, rather than from the perspective of associations, for example, the members of which share the same fundamental interests. This relates especially to what the law shows to be right or wrong, moral or immoral; the following serving as a brief illustration (there are of course hundreds of other examples): the legal prohibition against the burial right of the parents of a dead foetus; the law's definition of marriage that includes polyamorous relationships; legislation that promotes the use of taxes for the protection of public parks but not for the maintenance (even partly) of private religious schools; depression as a ground for the legalisation of euthanasia; and the legal prohibition against the smoking of cannabis as part of a religious practice. All these constitute moral views of which, rightly or wrongly, a legal position has been afforded. It is, therefore, imperative that the protection of religious rights and freedoms is allowed to be freely exercised in accordance with the normative frameworks accompanying such religious activities; normative frameworks that are not always aligned with normative frameworks emanating from the civil authorities. In this regard, Justice Van der Westhuizen, in De Lange v Presiding Bishop of the Methodist Church of Southern Africa for the Time Being, 30

30 De Lange v Presiding Bishop of the Methodist Church of Southern Africa for the Time Being 2016 2 SA 1 (CC).

Law recognizes rights, it does not create them as such. If this were not so there would be no standard ‘outside’ law with which to evaluate the justice of law itself … Therefore the cultural grounds that generate the moral and spiritual resources for the recognition of 'right and wrong' must be carefully respected … 32

32 Benson "Foreword" xxix.

Then there is the popular reliance by the authorities on "neutrality-talk" when confronted with claims for the protection of religious interests. 33

33 See for example, Horwitz The Agnostic Age 41-47 and Smith 2013 Notre Dame L Rev 1440-1443. For case law that is reflective of different approaches taken regarding neutrality see, for example, Curtis 2018 Harv J L & Pub Pol'y 935-971. Curtis also brings to the fore how arguments rested on neutrality in fact introduce partialities that do not always serve the interests of the religious.

preferences (as long as such subjectivities, passions, tastes and preferences do not harm others). 34

34 Gedicks 1992 Va L Rev 674-675. The realm of public life has become known also as the realm of secularism; Gedicks 1992 Va L Rev 695-696. Some have argued that this is itself a moral vision of one sort being forced upon the differing and legitimate (legal) beliefs of others: see Benson "Considering Secularism" 83-98.

Some extracts from judgments by the Constitutional Court also require critical analysis against the background of the advancement of religious rights and freedoms. Sachs J comments in Christian Education that:

The most complex problem is that the competing interests to be balanced belong to completely different conceptual and existential orders. Religious conviction and practice are generally based on faith. Countervailing public or private concerns are usually not and are evaluated mainly according to their reasonableness. 39

39 Christian Education para 33.

In this, the view that religion is aligned with faith whilst countervailing public and private concerns are (usually) not, and that the measure of reason exclusively applies to the latter is present and should not be. Even though Sachs J is not stating here that religious belief is unreasonable, note how he points to what the general parameters of "faith" as well as the general application of "reasonableness" should be. The question here is: What does the judiciary rely on to qualify such an understanding? Implied in this is an assumption that religion is exclusively the holder of faith and that the measure of rationality is to be applied mainly or generally to matters “outside” of religion and faith. But the concern arising from this understanding is that faith finds application beyond the religious (call it) belief, (if you like), bearing in mind Steven Smith's comments that:

[m]odern constitutional interpretation … is a religious enterprise in the sense that it depends on the (usually tacit) assumption of transcendent authority. 40

40 Smith "Idolatry in Constitutional interpretation" 159. Also see 162-163, 170 regarding the inextricable connection between the interpretation of a text and the sense of a mind or higher source that transcends the tangible or empirical. Michael Perry refers to the competing concepts of rationality, namely categories of criteria applied for determining what beliefs to accept and what not to; Perry 1986 Wm & Mary L Rev 1067. According to Perry, "No privileged standpoint exists from which to adjudicate among competing conceptions of rationality – no standpoint that does not itself presuppose a particular conception of rationality"; Perry 1986 Wm & Mary L Rev 1067-1068. Perry also refers to "the pretensions to a universal language and tradition that are delusions" and that every language finds itself within a very particular tradition of interpretation, Perry 1986 Wm & Mary L Rev 1071-1072. The distancing of religion from notions of reason is nothing new regarding the judiciary in liberal democracies for example, for the American context, see Hitchcock Supreme Court and Religion Vol 2 125-128.

Reasonableness can inextricably be related to matters of faith, whether religious or non-religious, and therefore the reasonableness accompanying private and public concerns does not guarantee the exclusion of loyalty to belief. Consequently, the judiciary should caution against prioritising arguments believed to be reasonable emanating from non-religious convictions over arguments believed to be reasonable emanating from religious faith.

In Fourie Justice Sachs said:

Their arguments raise important issues concerning the relationship foreshadowed by the Constitution between the sacred and the secular. 41

41 Fourie para 89.

But what does this "between the sacred and the secular" specifically denote? This may imply that "the secular" typifies exclusion from the transcendental; from any sense of belief or faith. 42

42 Ahdar points to the dictionary meaning of "secular" as denoting that which is not connected to religious or spiritual matters; Ahdar 2013 Ratio Juris 405.

Patrick Neal refers to the meta-theory of liberalism that harbours the view that concepts of the good reflect individually defined and possessed ends which separate selves pursue, and that such a meta-theory is non-neutral. The reason for this, says Neal, is that such an understanding excludes any alternative meta-theory:

[w]hich denies that a 'conception of the good' can be properly understood as the ends which separate selves define and pursue. 44

44 Neal 1978 Can J Philos 578.

Also, "the secular", understood as representing reason as such, rests on the faith in autonomous (or pure) reason, 45

45 Deagon 2017 Western Australian Jurist 73; also see 71.

a universal view on specified moral matters. Regarding the latter, Larry Alexander comments that self-proclaimed liberals differ on various matters such as:

[t]he meaning and scope of freedom of speech, economic freedom, privacy, free exercise of religion, equal treatment, community self-determination, the justification of punishment, procedural rights, and so on … 46

46 Alexander 1993 San Diego L Rev 773.

In Prince, Ngcobo J professed that:

Religion is a matter of faith and belief. The beliefs that believers hold sacred and thus central to their religious faith may strike non-believers as bizarre, illogical or irrational. Human beings may freely believe in what they cannot prove. Yet that their beliefs are bizarre, illogical or irrational to others, or are incapable of scientific proof, does not detract from the fact that these are religious beliefs for the purposes of enjoying the protection guaranteed by the right to freedom of religion. 47

47 Prince para 42.

Here Ngcobo J implies that only religion belongs to the category of faith and belief and that the non-religious are not saddled with the challenge of having to prove their beliefs and that the beliefs of the non-religious are exempted from that which is, perhaps to others, bizarre or irrational. From the cosmological perspective undergirding the longest consistent theory of natural law, the idea that humans exist in a purposeless universe in which there is no necessary connection between techne and telos is equally bizarre and unreasonable.

Also note Ngcobo J's reference to "believers" and "non-believers", which is assumed to not have been intended to categorise the religious as believers and the non-religious as non-believers. 48

48 In the majority decision in Prince, reference is also made to "believers" and "non-believers"; Prince para 112.

Aligned with this are some helpful insights arising from South Africa's own context associated with modes of reasoning to be followed by especially the judiciary that can further the protection of religious freedoms. In this regard, Johan Froneman 49

49 Who served as judge on the Constitutional Court for eleven years and also as judge in various other courts in South Africa.

authoritative origin of a legal rule (such as legislation or judicial precedent) whilst substantive reasoning focusses on the underlying justification for the rule and asks questions such as: Is it just? Does it serve a good goal for society? 50

50 Froneman 2005 Stell LR 4. Froneman elaborates by explaining that substantive reasoning acknowledges the inevitability of the interplay of law with moral, political, social, economic and institutional reasons, and where considerations related to equity and good faith reign supreme. With formal reasoning, once it has been confirmed that the rule or decision has resulted from a competent authority such as the legislature or a court, it becomes compulsory to follow suit and no further reasoning is accepted. The aforementioned should not imply that substantive reasoning is to reign exclusively as this would run the risk of distorting; no legal system says Froneman, can exclusively rely on substantive reasoning, Froneman 2005 Stell LR 16.

Having remembered the importance of the right to freedom of religion, the law as denoting some or other presuppositional point of departure (hereby resting on faith) together with some critical delving into excerpts from selected Constitutional Court judgments as well as proposals regarding the mode of reasoning to be followed by the judiciary, the Prince judgment will be discussed in what follows as indicative of a missed opportunity for the advancement of the right to freedom of religion. More specifically, by focussing on the minority judgments in Prince this article argues for the advancement of religious rights and freedoms (and, consequently, of diversity), thereby giving further expression to the aforementioned arguments in support of the protection of religious interests.

3 Prince v President, Cape Law Society

Although the Constitutional Court in Lawrence, S v Negal and S v Solberg contributed to the protection of freedom of religion, 55

55 1997 4 SA 1176 (CC)". Here the Court allowed for the continuation of Christian founded public holidays even though they might come into conflict with those of other religious believers and offend non-religious beliefs.

Prince supported 59

59 With a narrow majority decision of 5-4.

Mr Prince (the appellant), who satisfied all the required academic qualifications but who still required the registration of his contract for community service so as to qualify to practise law, informed the Law Society of the Cape of Good Hope (Cape Law Society) that he was a Rastafari and was therefore required to use cannabis. The appellant was adamant that, notwithstanding the legislation that prohibited the use of cannabis, 61

61 Drugs and Drug Trafficking Act 140 of 1992; Medicines and Related Substances Control Act 101 of 1965.

The views expressed in the majority judgment 64

64 Goldstone J and Yacoob J concurred in the majority judgment of Chaskalson CJ, Ackermann J and Kriegler J.

According to the majority of the judges, authorising the use of cannabis by the Rastafari would weaken the State's ability to enforce its legislation in the interests of the public at large, 66

66 Prince para 139.

In his minority judgment Ngcobo J referred to the limitation test in accordance with section 36 74

74 Section 36(1) states: "The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including – (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose."

[w]hether the failure to accommodate the appellant's religious belief and practice by means of the exemption … can be accepted as reasonable and justifiable in an open and democratic society based on human dignity, freedom and equality. 76

76 Prince para 46.

Accompanying this is the question whether the granting of the religious exemption would undermine the objectives of the prohibition. 77

77 Prince para 47.

In weighing the competing interests and in the evaluation of proportionality, it is necessary to examine closely the relation between the complete ban on the sacramental use or possession of cannabis by the Rastafari and the purpose of the limitation as well as the existence of the less restrictive means to achieve this purpose. 78

78 Prince para 77.

Looking at the nature of the right limited, namely the right to freedom of religion, as well as the scope of the limitation, Ngcobo J began by emphasising the importance of this right:

The right to freedom of religion is probably one of the most important of all human rights. Religious issues are matters of the heart and faith. Religion forms the basis of a relationship between the believer and God or Creator and

informs such relationship. It is a means of communicating with God or the Creator. Religious practices are therefore held sacred. 79

79 Prince para 48. Ngcobo J adds, "The right to freedom of religion is especially important for our constitutional democracy which is based on human dignity, equality and freedom"; Prince para 49. These are profound words.

Ngcobo J then referred to diversity "as the hallmark of a free and open society" as well as the inextricable relationship between the protection of diversity and the right, amongst others, to freedom of religion. 80

80 Prince para 49. This also relates to an emphasis on tolerance and in this regard Ngcobo J refers to "… the constitutional commitment to tolerance which calls for the accommodation of different religious faiths if this can be done without frustrating the objectives of the government"; Prince paras 57, 79. This idea on the importance of tolerance and diversity also enjoys emphasis by Sachs J, who elaborates on this (see below).

[w]hether the achievement of these goals require[s] a complete ban on even purely religious uses of cannabis by Rastafari, regardless of how and where it is used? 83

83 Prince para 53.

According to Ngcobo J, the government did not support an absolute ban on the possession or use of drugs in order to achieve its goals, nor was it contended that all use of cannabis constituted harmful practices where, for example, the use of cannabis was allowed for research, analytical and medicinal purposes. 84

84 Prince para 54.

Ngcobo J commented that no facts were presented to convince him that all religious uses of cannabis by the Rastafari posed a risk of harm and that therefore a religious exemption would thwart the aim of the relevant laws.

The constitutional requirement that in limiting a constitutional right regard must be given to less restrictive means to achieve the purpose of the original or overall limitation required attention as well as the constitutional commitment to tolerance, 85

85 Regarding Ngcobo J's emphasis on tolerance, also see Prince para 57 (which also enjoys emphasis by Sachs J, see below).

I accept that the goal of the impugned provisions is to prevent the abuse of dependence-producing drugs and trafficking in those drugs. I also accept that it is a legitimate goal. The question is whether the means employed to achieve that goal are reasonable. In my view, they are not. The fundamental reason why they are not, is because they are overbroad. They are ostensibly aimed at the use of dependence-producing drugs that are inherently harmful and trafficking in those drugs. But they are unreasonable in that they also target uses that have not been shown to pose a risk of harm or to be incapable of being subjected to strict regulation and control. The net they cast is so wide that uses that pose no risk of harm and that can effectively be regulated and subjected to government control, like other dangerous drugs, are hit by the prohibition. 91

91 Prince para 81.

In his minority judgment Sachs J emphasised the State's responsibility to approach challenging matters with a spirit of inclusion as far as is possible. In the words of Sachs J:

Exemptions from general laws always impose some cost on the State, yet practical inconvenience and disturbance of established majoritarian mind-sets are the price that constitutionalism exacts from government. 92

92 Prince para 147. Sachs J asserted that: "The Constitution obliges the State to walk the extra mile"; Prince para 149.

According to Sachs J, that the Rastafarians cannot be given unlimited freedom pertaining to the use of cannabis does not mean that no freedom at all regarding the use of cannabis should be awarded to Rastafarians. 93

93 Prince para 148.

At the other end of the continuum, explained Sachs J, would be the awarding of all that the appellant asked for, including the free use of dagga in the privacy of Rastafari homes. This, however, according to Sachs J, would be substantively challenging to address:

[a]nd would completely blur the distinction in the public mind between smoking for purposes of religion and recreational smoking. 97

97 Above.

Like Ngcobo J, Sachs J emphasised that it would be the responsibility of Parliament to determine the most optimal means of securing the operational

exemption to which the Rastafari were constitutionally entitled. 98

98 Prince para 148. Also see para 169.

As I see it, the real difference between the majority judgment and that of Ngcobo J relates to how much trouble each feels it is appropriate to expect the State to go to in order to accommodate the religious convictions and practices of what in this case is a rather small and not very popular religious community. I align myself with the position that where there are practices that might fall within a general legal prohibition, but that do not involve any violation of the Bill of Rights, the Constitution obliges the State to walk the extra mile. 100

100 Prince para 149.

The emphasis Sachs J placed on the civil authorities’ duty to protect the right to freedom of religion of the Rastafarian faith (even where it will prove most difficult to do so) is inextricably connected to his emphasis on the significance of the protection and progression of tolerance and diversity. Ngcobo J's reference to the importance of diversity 101

101 Prince para 51.

Intolerance may come in many forms. At its most spectacular and destructive it involves the use of power to crush beliefs and practices considered alien and threatening. At its more benign it may operate through a set of rigid mainstream norms which do not permit the possibility of alternative forms of conduct 102

102 Prince para 145.

This succinct exposition on the importance of tolerance and diversity makes for one of the most prominent expressions by the Constitutional Court in cases dealing essentially with the right to freedom of religion, and on an understanding of the Constitution as supportive towards a pluralist society. 104

104 This emphasis on tolerance and diversity is also included in other Constitutional Court judgments related to the protection of religious rights and freedoms; see for

of diversity (together with openness) as "a constitutional principle". 105

105 Prince para 170. Sachs J commented: "in the present case the clarion call of tolerance could resonate with particular force for those of us who may in fact be quite puritan about the use of dagga and who, though respectful of all faiths, might not be adherents of any religion at all, let alone sympathetic to the tenets of Rastafari belief and practice. The call echoes for all who see reasonable accommodation of difference not simply as a matter of astute jurisprudential technique which facilitates settlement of disputes, but as a question of principle central to the whole constitutional enterprise." Prince para 171 (emphasis added).

The minority judgment of Ngcobo J as well as Sachs' minority judgment in Prince deserve recognition for pushing the boundaries towards the promotion of diversity. Ngcobo J's emphasis on the right to freedom of religion as a fundamental right is salutary, as well as the emphasis placed, especially by Sachs J, on the importance of true tolerance and diversity. Even though the legitimacy of the government's aim in prohibiting the use and possession of cannabis was duly taken cognisance of, the question was posed by Ngcobo J whether a complete ban on the religious use of cannabis would thwart the achievement of the aforementioned governmental aim. 107

107 Prince para 53.

advancement of inclusion. During the proportionality analysis the pitting of one right against another right, or even the pitting of different meanings stemming from a right against one another, should take place with the attainment of true diversity in mind. This is what was achieved in Prince by Ngcobo J's minority judgment as well as that of Sachs J but missed by the majority. There may be the argument that it cannot be expected of societies that are challenged in having an effective infrastructure to regulate exemptions pertaining to the use of cannabis; but the advancement of diversity, even in a context of difficulty, is precisely what the Constitution is all about. As is common knowledge, the civil authorities are tasked with a multitude of regulatory activities, many of which require added effort and resources. Therefore, for the civil authorities, there should be no objection to regulating the use of cannabis for religious purposes in the context of an understanding of freedom of religion as a fundamental right. 109

109 It is ironic that the Constitutional Court, many years after Prince, decriminalised the private use, possession and cultivation of cannabis by an adult for private consumption. This the Court did on basis of the protection of the right to privacy. In this regard, see Minister of Justice and Constitutional Development v Prince (Clarke Intervening); National Director of Public Prosecutions v Rubin; National Director of Public Prosecutions v Acton 2018 6 SA 393 (CC).

4 Conclusion

There are many challenging scenarios that have been brought before the courts in other democracies around the world regarding the protection of the right to freedom of religion, something that the South African context has yet to be confronted with. The protection of religious freedom in South Africa is a field conducive to much-needed exploration and sizeable progression. The significant worth borne by the right to freedom of religion, a right that has also been referred to by the Constitutional Court as one of our most important rights, necessitates making efforts at furthering the protection of such a right that goes beyond the approach evidenced by the majority decision in Prince. This necessity is bolstered by strong influences in democracies around the world, vying for a distinction between religion and the so-called "secular", between religion and the public sphere, as well as between religion and the rational. Discussion on the nature of law is essential, against the background of the inherent risk that law as applied by the civil authorities may potentially dictate to the religious (and their accompanying "worlds of normative content"). This further implies that the public space should be understood as a space for all beliefs, whether religious or non-religious, and that claims to moral neutrality amount to a façade in support of certain subjective moral views. It has also been

explained that the subtle distinctions made (or implied) by the judiciary between religion and the so-called "secular" or between religion and the rational hold back the advancement of the protection of the right to freedom of religion. As a logical and supportive extension of the arguments preceding the discussion on Prince, this article has presented insights included especially in the minority judgment of Ngcobo J as well as that of Sachs J in Prince, which in this regard serves as a salutary example of the limitation of the application of law in certain instances, the judiciary's implied refusal to be led by claims to neutrality, as well as the judiciary's affirmation of "the Other", even if this means that awarding protection to "the Other" would introduce some or other degree of hardship. To do so will bolster the ever-present endeavour towards a diverse and tolerant society. Whether the protection of religious freedoms in South Africa will significantly progress (and together with this, diversity) remains to be seen.

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Berman JH "The Interaction of Law and Religion" 1979 Cap U L Rev 345-356

Berman Law and Revolution

Berman HJ Law and Revolution. The Formation of the Western Legal Tradition (Harvard University Press Cambridge 1983)

Calo 2011 St John's L Rev

Calo ZR "Religion, Human Rights, and Post-Secular Legal Theory" 2011 St John's L Rev 495-520

Carter Culture of Disbelief

Carter SL The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion (Anchor Books New York 1994)

Carter Dissent of the Governed

Carter SL The Dissent of the Governed: A Meditation on Law, Religion, and Loyalty (Harvard University Press Cambridge 1998)

Carter God's Name in Vain

Carter SL God's Name in Vain: The Wrongs and Rights of Religion in Politics (New York Basic Books 2000)

Curtis 2018 Harv J L & Pub Pol'y

Curtis K "The Partiality of Neutrality" 2018 Harv J L & Pub Pol'y 935-971

Deagon 2017 Western Australian Jurist

Deagon A "Secularism as a Religion: Questioning the Future of the 'Secular' State" 2017 Western Australian Jurist 31-94

Deneen Why Liberalism Failed

Deneen PJ Why Liberalism Failed (Yale University Press New Haven 2018)

Du Plessis 2008 AHRLJ

Du Plessis L "Affirmation and Celebration of the 'Religious Other' in South Africa's Constitutional Jurisprudence on Religious and Related Rights: Memorial Constitutionalism in Action?" 2008 AHRLJ 376-408

Fish 1996 First Things

Fish S "Stanley Fish Replies to Richard John Neuhaus" Feb 1996 First Things 1-11

Froneman 2005 Stell LR

Froneman JC "Legal Reasoning and Legal Culture: Our 'Vision' of Law" 2005 Stell LR 3-20

Gedicks 1992 Va L Rev

Gedicks M "Public Life and Hostility to Religion" 1992 Va L Rev 671-696

George 2012 IJRF

George RP "Religious Liberty and the Human Good" 2012 IJRF 35-44

Hitchcock Supreme Court and Religion Vol 2

Hitchcock J The Supreme Court and Religion in American Life. Vol 2, From "Higher Law" to "Sectarian Scruples" (Princeton University Press Princeton 2004)

Horwitz The Agnostic Age

Horwitz P The Agnostic Age: Law, Religion, and the Constitution (Oxford University Press New York 2011)

Inazu Confident Pluralism

Inazu J Confident Pluralism: Surviving and Thriving through Deep Difference (Chicago Chicago University Press 2016)

Kelman Guide to Critical Legal Studies

Kelman MG A Guide to Critical Legal Studies (Harvard University Press Cambridge 1987)

Malherbe 2011 BYU L Rev

Malherbe R "The Background and Contents of the Proposed South African Charter of Religious Rights and Freedoms" 2011 BYU L Rev 613-636

Moschella 2017 J L & Relig

Moschella M "Beyond Equal Liberty: Religion as a Distinct Moral Good and the Implications for Religious Freedom" 2017 J L & Relig 123-146

Neal 1978 Can J Philos

Neal P "A Liberal Theory of the Good?" 1978 Can J Philos 567-581

Nussbaum 1985 Cumb L Rev

Nussbaum LM "A Garment for the Naked Public Square: Nurturing American Public Theology" 1985 Cumb L Rev 53-83

Peller 1985 CLR

Peller G "The Metaphysics of American Law" 1985 CLR 1151-1290

Perry 1986 Wm & Mary L Rev

Perry MJ "Comment On 'The Limits of Rationality and the Place of Religious Conviction: Protecting Animals and the Environment'" 1986 Wm & Mary L Rev 1067-1073

Sachs Strange Alchemy of Life and Law

Sachs AL The Strange Alchemy of Life and Law (Oxford University Press Oxford 2009)

Schoeman 2017 HTS Teologiese Studies/Theological Studies

Schoeman WJ "South African Religious Demography: The 2013 General Household Survey" 2017 HTS Teologiese Studies/Theological Studies 1-7

Scruton 2008 Intercoll Rev

Scruton R "TS Eliot, 'Eliot as Conservative Mentor'" 2008 Intercoll Rev 1-8

Smith 2013 Notre Dame L Rev

Smith SD "The Plight of the Secular Paradigm" 2013 Notre Dame L Rev 1409-1456

Smith Disintegrating Conscience

Smith SD The Disintegrating Conscience and the Decline of Modernity (University of Notre Dame Press Notre Dame 2023)

Smith "Idolatry in Constitutional Interpretation"

Smith SD "Idolatry in Constitutional Interpretation" in Campos PF, Schlag P and Smith SD (eds) Against the Law (Duke University Press Durham 1996) 157-190

Spykman "The Principled Pluralist Position"

Spykman GJ "The Principled Pluralist Position" in Smith GS (ed) God and Politics: Four Views on the Reformation of Civil Government (Presbyterian and Reformed Publishing House Phillipsburg 1989) ch 5

Case law

Antonie v Governing Body, Settlers High School 2002 4 SA 738 (C)

Christian Education South Africa v Minister of Education 2000 4 SA 757 (CC)

Crossley v National Commissioner of South African Police Service 2004 3 All SA 436 (T)

De Lange v Presiding Bishop, Methodist Church of Southern Africa 2015 1 SA 106 (SCA)

De Lange v Presiding Bishop of the Methodist Church of Southern Africa for the Time Being 2016 2 SA 1 (CC)

Department of Correctional Services v POPCRU 2013 4 SA 176 (SCA)

Dlamini v Green Four Security 2006 27 ILJ 2098 (LC)

FAWU v Rainbow Chicken Farms 2000 1 BLLR 70 (LC)

Garden Cities Incorporated Association Not for Gain v Northpine Islamic Society 1999 2 SA 268 (C)

Gaum v Van Rensburg 2019 2 All SA 722 (GP)

Hendricks v The Church of the Province of Southern Africa, Diocese of Free State (108/2021) 2022 ZASCA 95 (20 June 2022)

Kievits Kroon Country Estate (Pty) Ltd v Mmoledi 2014 1 SA 585 (SCA)

Kotze v Kotze 2003 3 SA 628 (T)

Lewis v Media24 Ltd 2010 31 ILJ 2416 (LC)

MEC for Education: KwaZulu-Natal v Pillay 2008 1 SA 474 (CC)

Minister of Home Affairs v Fourie; Lesbian and Gay Equality Project v Minister of Home Affairs 2006 3 BCLR 355 (CC)

Minister of Justice and Constitutional Development v Prince (Clarke Intervening); National Director of Public Prosecutions v Rubin; National Director of Public Prosecutions v Acton 2018 6 SA 393 (CC)

Mohamed v Jassiem 1996 1 SA 673 (SCA)

National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 1 SA 6 (CC)

Nkosi v Bührmann 2002 1 SA 372 (SCA)

Organisasie vir Godsdienste-Onderrig en Demokrasie v Laerskool Randhart 2017 6 SA 129 (GJ)

Prince v President of the Cape Law Society of the Cape of Good Hope 2002 2 SA 794 (CC)

Radebe v Principal of Leseding Technical School (1821/2013) [2013] ZAFSHC 111 (30 May 2013)

Ryland v Edros 1997 2 SA 690 (C)

S v Lawrence, S v Negal, S v Solberg 1997 4 SA 1176 (CC)

Singh v Ramparsad 2007 3 SA 445 (D)

Strydom v Nederduitse Gereformeerde Gemeente, Moreletta Park 2009 4 SA 510 (EqC)

Taylor v Kurtstag 2005 1 SA 362 (W)

TDF Network Africa (Pty) Ltd v Deidre Beverley Faris 2018 CA 4/17 (LCA)

Wittmann v Deutscher Schulverein, Pretoria 1998 4 SA 423 (T)

Legislation

Constitution of the Republic of South Africa, 1996

Drugs and Drug Trafficking Act 140 of 1992

Medicines and Related Substances Control Act 101 of 1965

Government publications

GN 1307 in GG 25459 of 12 September 2003 (National Policy on Religion and Education)

International instruments

International Covenant on Civil and Political Rights (1966)

United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988)

Internet sources

South African Council for Religious Rights and Freedoms 2010 https://classic.iclrs.org/content/blurb/files/South%20African%20Charter.pdf

accessed 23 May 2024

List of Abbreviations