Transcript Charter

EIGHTEENTH ANNUAL
INTERNATIONAL LAW AND
RELIGIOUS SYMPOSIUM
3 October 2011
Vic van Vuuren
South Africa
• South Africa scenario vis a vis religion
– Large country (50 million)
– Variety of religions with Christianity being the
most dominant
– Absolute freedom of religion
South Africa
• Impact of Apartheid
– Protection of human rights has been focal
point and protection of individual rights and
matters of anti-discrimination has dominated
the debate since democracy in 1994
South Africa
• The majority of South Africans suffered
discrimination of all forms during the
Apartheid era; therefore, the advent of
democracy in 1994 brought a plethora of
laws to eliminate unfair discrimination,
including discrimination affecting freedom
of religion, belief and opinion and labor
rights.
South Africa
• The South African Bill of Rights presumes
that any state or private discrimination on
the basis of religion (or other suspect
classifications) is unconstitutional “unless
it is established that the discrimination is
fair”
South Africa
• Section 9 of the constitution deals with the
concept of equality and in particular section 9 (3)
deals with discrimination based on inter alia
religion.
• More specifically Section 9(3) states “The state
may not unfairly discriminate directly of indirectly
against anyone on one or more grounds,
including race, gender, sex, pregnancy, marital
status, ethnic or social origin, color, sexual
orientation, age, disability, religion, conscience,
belief, culture, language and birth.”
South Africa
• Section 9(3) is however qualified by
section 9(5) which reads “Discrimination
on one or more of the grounds listed in
subsection (3) is unfair unless it is
established that the discrimination is fair.
South Africa
• It is important to point out that the burden
of proof lies on the respondent to prove
that the discrimination is unfair and this is
clearly stated in section 13(2)(a) of the
Promotion of Equality and Prevention of
Unfair Discrimination Act, No. 4 of 2000.
South Africa
• The right to equality is protected by law in
the Promotion of Equality and Prevention
of Unfair Discrimination Act, No. 4 of 2000
and the Employment Equity Act, No. 55
of 1998.
• The two acts work in synergy
South Africa
• South African Constitution
– Section 15 Freedom of religion, belief and
opinion.
• 15(1) Everyone has the right to freedom of
conscience, religion, thought, belief and opinion.
• 15(2) Religious observances may be conducted at
state or state-aided institutions, provided that
– (a) those observances follow rules made by the
appropriate public authorities;
– (b) they are conducted on an equitable basis; and
– (c) attendance at them is free and voluntary.
South Africa
• (Continued)
• (3) (a) This section does not prevent legislation
recognising– (i) marriages concluded under any tradition, or a system
of religious, personal or
– (ii) systems of personal and family law under any
tradition, or adhered to by persons professing to a
particular religion.
• (3) (b) Recognition in terms of paragraph (a) must
be consistent with this section and the other
provisions of the Constitution.
South Africa
• The Equality Court of South Africa Case
no 26926/05 in the matter between John
Daniel Strydom and Nederduitse
Gereformeerde Gemeente Moreleta Park
stated in dicta that an employee in a
position of spiritual leadership can be
terminated by a church for conduct in
conflict with church doctrine, even if the
grounds for termination is another
protected classification.
South Africa
• Strydom Case:
– “If a court were to hold that churches could
not deem sexual orientation, or any other
enumerated ground in the equality clause, a
disqualifying factor for priesthood, the effect
for many churches could be devastating.”
South Africa
• Strydom Case:
– “Consequently, although the value of equality
is foundational to the new constitutional
dispensation, it is unlikely that equality
considerations could outweigh the enormous
impact of failing to give churches an
exemption in relation to their spiritual leader.”
South Africa
• Strydom case:
– “Where appointment, dismissal and
employment conditions of religious leaders
(such as priests, imams rabbis, and so forth)
are concerned, religious bodies are likely to
be exempted from compliance with legislation
prohibiting unfair discrimination.”
South Africa
• Strydom case:
– “I am not convinced on the evidence presented by the
church that on the facts of the matter at hand the
complainant was in such a position of spiritual
leadership. In other words, the church has not rid
itself of its onus in this instance. In casu, the
description of the services to be rendered on the
evidence was (in the absence of a written contract of
work) to teach music at the “kunste-akademie” of the
church.”
South Africa
– Strydom Case (Cont)
• “There was not a shred of evidence that the
complainant had to teach Christian doctrine. On
the contrary, the Christian foundations were taught
at the “kunste-akademie” by ministers of the
church. The complainant mostly taught issues
around music (also technical issues). In the event,
the complainant’s work involved no religious
responsibilities at all.”
South Africa
• Religious Charter
– Over time religious rights have been
overshadowed by the human rights debate
– Religious leaders are now taking a proactive
step to maintain a balance between religious
rights and the rights of the individual
– Negotiation of a “Religious Charter”
– Initiated a process towards legislating the
charter
South Africa
• Religious Charter
– SOUTH AFRICAN CHARTER OF
RELIGIOUS RIGHTS AND FREEDOMS
– Continuation Committee, South African
Charter of Religious Rights and Freedoms
Process
• Charter Process
– Two paths
– Should run simultaneously
• Path 1
– Approach appropriate Government Department at
Ministerial level
– Approach Chairman of Parliamentary Port Folio
Committee
– Address the Port Folio Committee
Process
• Path 2
–
–
–
–
Approach organised business
Approach organised labour
Approach community constituents
Agree on timelines and look at interim
implementation measures
– Identify champions
• Impact on the Sub region and possibly further
South Africa
• Charter content
– Preamble
– Religious Rights
– Best practice
Thank you