To pray or not to pray
By Jerome Veldsman
Organisasie vir Godsdienste-Onderrig en Demokrasie v Laerskool Randhart and Others, a judgement of a full bench (three Judges) of the High Court, Johannesburg on 27 June 2017, dealt with the challenging constitutional question of religious practice in public schools.
The applicant is a voluntary association that assists its members and children in public schools when those schools infringe the learners’ constitutional rights. The applicant challenged many aspects of the current system, including the constitutionality of a public school promoting only one religion in favour of others; associating itself with a particular religion; requiring of a learner to disclose (to the school) adherence to a particular religion; and conducting religious observances during school programs on the basis that all learners must attend, but that a learner may elect to opt out.
The applicant’s challenges were technically (under constitutional law practice) less than ideally made; and the Court liberally applied the principle that, when deciding a constitutional matter, a Court has an ample and flexible remedial jurisdiction to forge an order that would place substance above form, by identifying the actual underlying dispute between the parties (regardless of technical deficiencies).
Section 7 of the Schools Act provides that, 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.
The Court held that the “equitable basis” requirement means a public school must act even-handedly in relation to different religions. The Court did deal with what the “free and voluntary” requirement means.
Ultimately, the Court ordered that it offends section 7 of the Schools Act 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’s discussion, containing almost 13 000, words includes the following:
‘… the State should not be seen to be picking sides in matters religion, neither vis-à-vis “non-believers”, nor vis-à-vis other religions.’
“… we are not a secular State and … in this country our diversity is celebrated, not tolerated.”
“The need to celebrate this diversity has been emphasised in our judgments. The concept of the unity of our nation from this diversity is well-known and has often been recognised.”
Such comments flowed from the following portion of the Preamble to the Constitution:
“We the people of South Africa … Believe that South Africa belongs to all who live in it united in our diversity.”
The phrase “united in our diversity” is not unique to the South African political landscape, but it is much more emphasised here than anywhere else; and it features in many Court judgments on constitutional matters. However, to date an ‘official’ answer on how the phrase is to be applied in ‘real world’ practice remains elusive, and ‘official’ attempts at answers seem not to go beyond restatement of the question. It is a challenge advising clients on the phrase, as the motto “united in spite of our diversity” seems to have more traction in practice.