PRESS RELEASE: 28 JUNE 2017

The Johannesburg High Court delivered judgment today in the case about religious ethos, expression and observances in South African public schools.

Cause for Justice (‘CFJ’) is 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. This is a watershed case for religious freedom in South Africa and is likely to end up in the Constitutional Court.

WHAT WERE THE COURT’S FINDINGS?

The Court found in favour of the arguments presented by the public schools, except on two counts, namely – it is unlawful for a public school:

• to promote or allow its staff to promote that it, as a public school, adheres to only one or predominantly only one religion, to the exclusion of others, and
• to hold out that it promotes the interests of any one religion in favour of others.

The court focussed its investigation on three questions. The first related to its findings above. The second was whether a public school may itself conduct religious observances, or whether these may only be conducted by outside parties at the school’s premises. The third question was whether a learner may be asked to which faith/religion, if any, he or she adheres?

Both the second and third questions were answered in the schools’ favour.

More specifically, the Applicant applied for –

1. seven (7) declaratory orders, of which it was successful with two (2); and
2. 71 interdicts against the schools, and were unsuccessful on all of them.

The issue of subsidiarity

Central to CFJ’s arguments before the Court on 16 May 2017 was the issue of subsidiarity – referring to the fact that 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.

The court committed close to half its judgment to this issue and ultimately decided questions two and three above in the schools’ favour, on the basis thereof. The Applicant had failed to challenge the schools’ conduct against its own rules and did not allege that the schools’ own rules fall foul of the applicable provincial or national legislation.

WHAT DOES IT ALL MEAN?

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

However, the making of policy regarding the conduct of religious observances at a school, remains the right and responsibility of each individual school’s School Governing Body (SGB). The school will be acting lawfully as long as it conducts its religious observances in line with the rules of its SGB.

The case therefore confirms the institutional authority of SGB’s.

SUMMARY COMMENTS ON THE COURT’S JUDGEMENT

We found the court’s reasoning/motivation for granting partial relief to the Applicant surprisingly thin.  The court based its finding on the need to embrace and celebrate diversity, by acting even-handedly in relation to different religions, and not merely tolerating diversity. The court again confirmed that South Africa is not a secular State.

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.

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For further queries, contact CFJ at:

Email: info@causeforjustice.org

Tel:     083 235 1511