The religious question and the South African Constitutional Court : Justice Ngcobo in Prince and De Lange

• Pages: 1-17
• Date: 01 August 2017
• Published date: 01 August 2017
• Author: Enyinna Nwauche
• DOI: 10.25159/2522-6800/3577

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https://doi.org/10.25159/2522-6800/3577

ISSN 2522-6800 (Online) | ISSN 2219-6412 (Print)

© Unisa Press 2017

Southern African Public Law

https://upjournals.co.za/index.php/SAPL/index

Volume 32 | Number 1 and 2 | 2017 | pp.1–17

ARTICLE

The Religious Question and the South African

Constitutional Court: Justice Ngcobo in Prince and De

Lange

Enyinna Nwauche

Professor and Head of the Department of Private Law

Nelson Mandela School of Law

University of Fort Hare

Email: enwauche@ufh.ac.za

ABSTRACT

Justice Ngcobo, an active member of the Constitutional Court early in the post-apartheid

years, engaged with the merits of religious freedom and considered the determinations of the

faithful and of religious organisations as part of appropriate adjudicatory factors. Roughly two

decades after the end of apartheid, in Ecclesia De Lange v Presiding Bishop of the Methodist

Church for the Time Being & Another, a strong suggestion is discernible that this position

could be abandoned. If this trend were to be embraced, it would regard the determinations

of the faithful and of religious associations as nal and dispositive. Consequently, features

of religious belief and practice would be rendered immune to constitutional scrutiny. What

makes this trend worthy of evaluation are the decision of the Supreme Court of Appeal

leading up to De Lange; the force of the trend evident in De Lange, and the persistence

and subtle recognition of the religious question in South Africa’s lower courts in the post-

apartheid era despite the stance of the Constitutional Court post-1994 to engage fully with

petitions about the right to religious freedom. This article draws attention to the challenges

of the resurgence of the religious question in South African law by engaging in a review of

the opinion of Justice Ngcobo in Prince v President of the Law Society of the Cape of Good

Hope & Others as well as in similar cases, such as De Lange, where the religious question

has arisen.

Keywords: right to religious freedom; Prince; De Lange; religious question; constitution-free

space; religion and law; doctrine of entanglement

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Nwauche The Religious Question and the Constitutional Court

Introduction

This article discusses the nature of and the extent to which courts can review questions

arising in the course of the interpretation of the right to freedom of religion.1 It is

because religion is a world of power2 that requires a certain measure of respect and

deference that the nature of its relationship with the law is often a matter of controversy

and it is in constant ux. All modern liberal democracies are struggling to determine the

extent to which a court of law, faced with petitions of a breach of religious freedom,

should accept determinations of the faithful and of religious associations regarded in

this article as the ‘religious question’.3 Should a court of law accept such determinations

as total, substantial or simple? If it is a matter of total, a court of law would refuse to

engage in the merits of a petition. If it is substantial, a court of law would depart from

such determinations in rare cases. If it is simple, a court of law would regard such

determinations as part of the factors to be considered in its adjudication.

At another level, it could be argued that in a rights-based constitutional democracy such

as South Africa the courts have no room for such determinations. It could be asked how

a court would evaluate a petition of a breach of religious freedom if it is incapable of

engaging in or unwilling to engage with the merits of a belief or practice, no matter how

dicult or insensitive doing so would appear to be. Many unsettling issues arise where

incapacity or reluctance to engage in a review exists despite a constitutional obligation to

act otherwise. Did the Interim Constitution and the Constitution, 1996 require a change

of the apartheid-era jurisprudence that recognised the nality of the determinations of

the faithful and of religious associations in religious freedom litigation? Under what

circumstances should this change be reversed, if at all?

In this article, it is argued that Justice Ngcobo, an active member of the Constitutional

Court early in the post-apartheid years, engaged with the merits of religious freedom

and considered the determinations of the faithful and of religious organisations as part

of appropriate adjudicatory factors. Roughly two decades after the end of apartheid,

in Ecclesia De Lange v Presiding Bishop of the Methodist Church for the Time Being

1 See s 15 of the Constitution of the Republic of South Africa, 1996 (‘the Constitution’).

2 See, generally, Stephen Ellis and Gerrie ter Haar, Worlds of Power: Religious Thought and Political

Practice in Africa (Hurst and Company 2003).

3 See Sachs J in Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC)

(‘Christian Education’) para 35, who conceptualised the dilemma that faces modern liberal States

thus: ‘The underlying problem in any open and democratic society based on human dignity, equality

and freedom in which conscientious and religious freedom has to be regarded with appropriate

seriousness, is how far such democracy can and must go in allowing members of religious communities

to dene for themselves which laws they will obey and which not. Such a society can cohere only if

all its participants accept that certain basic norms and standards are binding. Accordingly, believers

cannot claim an automatic right to be exempted by their beliefs from the laws of the land. At the same

time, the State should, wherever reasonably possible, seek to avoid putting believers to extremely

painful and intensely burdensome choices of either being true to their faith or else respectful of the

law.’