Kotze v Kotze

• Judge: Fabricius AJ
• Judgment Date: 11 February 2003
• Citation: 2003 (3) SA 628 (T)
• Docket Number: 28933/2002
• Hearing Date: 22 November 2002
• Counsel: No appearance for either the plaintiff or defendant.
• Court: Transvaal Provincial Division

Fabricius AJ:

This is an unopposed divorce action. I dissolved the marriage on 22 November 2002 and made a settlement agreement between the parties an order of Court, but refused to sanction a paragraph contained therein relating to a minor D child (at that time almost three years old), which in translation read as follows:

'Both parties undertake to educate the minor child in the Apostolic Church and undertake that he will fully participate in all the religious activities of the Apostolic Church.' E

My reasons follow:

The paragraph not only imposes reciprocal obligations on the parties, but also imposes a duty on the minor child to engage fully in the religious activities of a particular church.

It is obvious that the child had no say in the matter, and would most F likely have no say in the future until he was intellectually and emotionally able to make an informed choice, if indeed such free choice would then be open to him without constraints such as fear, guilt and self-doubt, having regard to whatever dogma he had been subjected to in the mean time.

When I refer to 'dogma' I do not refer to any particular dogma of the Apostolic Church or any other Church. I refer to the Christian G religion with all its characteristics. My reasons, however, in this particular context, apply to religion as a whole, and to all denominations and creeds. By 'religion' I refer to the human recognition of superhuman controlling power, and especially of a personal god or gods entitled to obedience and worship. See H Wittmann v Deutscher Schulverein, Pretoria, and Others 1998 (4) SA 423 (T) at 449A. 'Religious activities' are those practices, observances, rituals and rites which pertain either generally or particularly to any religion that recognises, obeys and worships a personal god or gods. It is, of course, impossible to provide a definitive all-embracing definition of 'religion' or 'religious beliefs' or 'religious activities' in the light of the diversity in this context, and developments in theology, and always considering the particular believer's perspectives. For present purposes however, this is not necessary, over and above the concept of a believer's recognition of an upper human controlling power. For an interesting debate on this

Fabricius AJ

topic see Lawrence H Tribe American Constitutional Law 2nd ed at para 14-6. A

According to s 28(2) of the Constitution of the Republic of South Africa Act 108 of 1996, a child's best interests are of paramount importance in every matter concerning the child. 'Child' means a person under the age of 18 years. B

Section 15 of the Constitution provides that everyone has the right to freedom of conscience, religion, thought, belief and opinion.

It is also significant that, in the context of State or State-aided institutions, religious observances may be conducted, provided that attendance of them is free and voluntary. The Apostolic Church is not a State or State-aided institution to my knowledge...