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Religion in Public Schools: The High Court has ruled… Now What?

On June 30, 2017, Posted by , In Blog,

In our view, the court’s decision has affirmed the place of religion in the public sphere, specifically in public schools, whilst requiring schools to not brand themselves in a manner that could be excluding of minorities.

Cause for Justice (‘CFJ’) was a “friend of the court” (amicus curiae party), joined to assist the court in the interpretation and application of the constitutional rights and values engaged in this matter.

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As the dust begins to settle on an eventful week in the freedom OF and freedom FROM religion circles, the question on everyone’s lips is: WHAT NOW?!!

What did the court say?

The court was asked to rule on three questions:

  1. Whether a public school may brand itself as adhering to a single religion, to the exclusion of others?
  2. Whether a public school has the right:
    • to obtain from learners information about their religious affiliations;
    • to keep the information obtained on record; and
    • to segregate learners based on their religious affiliation for purposes of religious observances.
  3. Whether Christian/religious observances are allowed to take place (are legally permissible) in public schools at all?

The court’s answers were:

  • As to 1: “No” (in other words, in the Applicant’s favour)
  • As to 2: “Yes” (in the schools’ favour)
  • As to 3: “Yes” (in the schools’ favour)

What are the implications of the judgment?

What changes?

In essence, a public school may not promote adherence to a single religion, nor brand itself as promoting the interests of a single religion.

No change

But apart from this specific restriction, there has been no change to how School Governing Bodies (SGBs) may govern public schools in terms of their rules and policies, or to the way religious observances may or may not be conducted at a public school. Each school will be acting lawfully as long as it conducts its religious observances in line with the rules of its SGB. And each SGB will be acting lawfully and be constitutionally compliant if it keeps on doing what it has done in the past and specifically adheres to the limitation regarding “single faith branding”.

Status quo confirmed and religious freedom in the public sphere

The case therefore confirms the institutional authority of SGB’s as the makers of policy for conducting religious observances at public schools. As has always been the case, observances must be conducted “on an equitable basis” and attendance at them must be “free and voluntary”.

The court again confirmed that South Africa is NOT a secular State.

Furthermore, in our view the court’s decision has affirmed the place of religion in the public sphere, specifically in public schools, whilst requiring schools to not brand themselves in a manner that could be excluding of minorities.

For the lawyers

Findings against the Applicant: In re 4 declaratory orders and 71 interdicts

In finding against the Applicant on questions 2 and 3, the court relied primarily on the principle of subsidiarity. In terms of this legal principle, anyone who wants to attack the lawfulness of any conduct of a state organ or other person, is only allowed to challenge it against the lowest level of legislation authorising the conduct. In this context, it means that the Applicant is not allowed to challenge conduct of the schools against the Constitution or against the Schools Act – it may only challenge it against the schools’ own rules for conducting religious observances.

Central to CFJ’s arguments before the Court on 16 May 2017, was that the Applicant had failed to challenge the schools’ conduct against the SGBs’ rules and did not allege that the SGBs’ rules fall foul of the applicable provincial or national legislation. The court committed close to half its judgment to this issue and ultimately decided questions 2 and 3 above in the schools’ favour, on the basis thereof.

Findings FOR the Applicant: Single faith branding not allowed

We found the court’s reasoning/motivation for granting partial relief to the Applicant surprisingly thin.

The court laid a very basic foundation of the constitutional imperative to embrace and celebrate diversity, by acting even-handedly in relation to different religions, and not merely tolerating diversity. It then jumped rather quickly to the conclusion that a school branded as a single faith school is unlikely to embrace diversity and would therefore not comply with the Schools Act – spending a total of six paragraphs on its reasoning for this conclusion (paras [91] to [96]). It then committed a further two paragraphs ([97] – [98]) to motivate why giving legal effect to this conclusion would not be precluded by the principle of subsidiarity (as all the other issues had been) and why its order could bind all public schools in South Africa (although the court in principle only has jurisdiction over legal persons in the Gauteng Province).

In our view, the court’s reasoning seemed underdeveloped, if not unconvincing.

The way forward

We expect that SGBs of public schools will take notice and take legal advice on how, if necessary, to react to the judgment. For now, most will probably wait to see whether the six schools or FEDSAS (the Federation of SGBs for South African Schools) decide to appeal against the judgment to the Supreme Court of Appeal, as the noting of an appeal will suspend the high court order.

If no appeal is forthcoming, SGBs would probably want to take advice sooner rather than later – if media reports about the Applicant’s founder and driving force is anything to go by.

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