Wittmann v Deutscher Schulverein, Pretoria and Others

• Judge: van Dijkhorst J
• Judgment Date: 04 May 1998
• Docket Number: 10017/95
• Hearing Date: 09 March 1998
• Counsel: HF Jonud (with him WPN Sceales and CR Jansen) for the plaintiff E Bertelsmann for the first, second and third defendants B
• Court: Transvaal Provincial Division

Wittmann v Deutscher Schulverein, Pretoria and Others
1998 (4) SA 423 (T)

1998 (4) SA p423

Citation	1998 (4) SA 423 (T)
Case No	10017/95
Court	Transvaal Provincial Division
Judge	van Dijkhorst J
Heard	March 9, 1998
Judgment	May 4, 1998
Counsel	HF Jonud (with him WPN Sceales and CR Jansen) for the plaintiff; E Bertelsmann for the first, second and third defendants B

Flynote : Sleutelwoorde

Constitutional law — Human rights — Right to freedom of conscience, religion, thought, belief and opinion in terms of s 14 in chap 3 of Constitution of the Republic of South Africa Act 200 of 1993 — School compelling student to attend religious instruction classes — Constitutionality of — Religious instruction not qualifying as religious observance — C Constitution granting right to conduct religious observances at State and State-aided institutions — Religious instruction classes not unconstitutional — Section 14(2), however, recognising that attendance to be voluntary — School registered as private school in terms of s 6 of Private Schools Act (House of Assembly) 104 of 1986 — School not D executive organ of State — Act 200 of 1993 having no horizontal application — Provisions of s 14 of Act 200 of 1993 not applicable to school.

Constitutional law — Human rights — Right to freedom of conscience, religion, thought, belief and opinion in terms of s 14 in chap 3 of Constitution of the Republic of South Africa Act 200 of 1993 — Whether s 14 affording parent right to E exclude student from attendance at religious instruction classes and observances at school — Court recognising implications of s 32(c) — Court accepting existence of right to abstention from attendance at religious observances and instruction — Question not whether fundamental right in s 14 being waived but whether ancillary right to abstention F from attendance can be waived — Right to non-attendance can be validly waived — Parent having waived such right by subjecting herself to the school association's constitution and the school's regulations.

Voluntary association — Membership — Termination of by association — Member accepting to abide by association's constitution and decisions of the board — Member acting contrary to board's decisions and granting interviews G

1998 (4) SA p424

to press leading to condemnation of association's conduct in news articles — Adequate reason to terminate A membership — Constitution of association providing for fair hearing prior to termination of membership — No hearing held — Association not convincing Court that no prejudice to member — Decision of board to terminate membership set aside.

School and school board — School — State-aided school — Whether school 'State-aided' institution — Meaning of B State-aided' in legislation — School a private school registered in terms of s 6 of the Private Schools Act (House of Assembly) 104 of 1986 — School not executive organ of State.

Headnote : Kopnota

The plaintiff had instituted action against the defendants in her personal capacity and in her capacity as custodian C mother and natural guardian of the minor child, T, for a declaratory order declaring the actions of the defendants in compelling T to attend religious instruction classes at the German School to be unconstitutional, unlawful and invalid; declaring the purported termination of the plaintiff's membership of the first defendant to be D unconstitutional, unlawful and invalid; and declaring that the plaintiff had the right to have T excused from attendance at the religious instruction classes conducted at the German School.

A large portion of the school's budget as well as the teachers' salaries were provided by the German government. During the long history of the German School's existence, the school rules had always provided that participation E at the evangelical religious instruction given at the school was voluntary. In 1987 it had been decided to present religion in a historical sense as part of general knowledge. Accordingly, from that date onward there had been a policy at the German School that a personal view regarding religion and non-affiliation to a denomination were not valid reasons for the exemption of children from attendance at religious instruction classes. In 1988 the F plaintiff and her former husband had applied for the admission of their children to the German School and for their admission as members of the first defendant. No mention had been made about the exemption from religious studies classes and upon admission, the plaintiff had signed a form accepting the school rules and the constitution of the first defendant.

The plaintiff had become aware that T had been attending religious instruction classes when she was graded for G such classes on her report card. The plaintiff had written to the board of the first defendant requesting that T be exempted from religious instruction on the grounds that she did not belong to any religious denomination. The board had replied that they had chosen to stand by their existing policy and accordingly, the plaintiff's reasons for exemption were not valid and T could not be exempted from religious instruction classes. This had resulted in an H ongoing tussle between the plaintiff and the defendants, involving, inter alia, a referral to the German Foreign Affairs Department, which had culminated in the board of the first defendant issuing an ultimatum, after affording the plaintiff a fair hearing, that the plaintiff's membership of the first defendant would be terminated unless she I confirmed in writing her willingness to abide by the constitution of the first defendant and the decisions taken by the board. The plaintiff had duly signed the required confirmation. The matter, however, did not end there as T had remained absent from religious instruction classes despite the board's decision that she was not exempt from attendance and as the plaintiff had exhibited no intention to guarantee T's attendance at such classes. Furthermore, the plaintiff had granted an interview to the press which had led to the publication of various news articles condemning the J

1998 (4) SA p425

defendants' failure to exempt T from religious instruction classes for what the appellant alleged was good reason. A The board of the first defendant reacted to this by expelling the plaintiff from the first defendant and thereby terminating T's entitlement to attend the German School.

The Court held that, although there had been adequate reason to terminate the plaintiff's membership, the constitution of the first defendant provided that a hearing had to be held before membership was terminated. The B hearing which had been held prior to the plaintiff signing the required confirmation did not suffice. As there had accordingly been no hearing and as the defendants could not convince the Court that there had been no prejudice to the plaintiff, the decision of the board to terminate the plaintiff's membership was set aside. (At 437D/E--E and 438F.)

On the issue of the constitutional validity of the defendants' actions, the Court examined s 14 of the Constitution C of the Republic of South Africa Act 200 of 1993 and s 15 of the Constitution of the Republic of South Africa Act 108 of 1996 and the manner in which they should be interpreted, with extensive discussion of comparative law on the interpretation of religious clauses in foreign constitutions. The Court stated that comparative law D offered no guidelines to the interpretation of the religious clause contained in the South African Constitution and that the contents of rights and freedoms in the Constitution should be informed rather by the plain meaning of the words used to frame the rights along with the fabric of social, ethnic and religious history of the country itself. In this regard, the Court found that the concept 'religion' as used in s 14 of Act 200 of 1993 and s 15 of Act 108 of E 1996 was not neutral but loaded with subjectivity and denoted a particular system of faith and worship. Religious observance was an act of a religious character, a rite, and religious education could not qualify as such an observance. Even if religious instruction were a religious observance, the Constitution granted the right to conduct religious observances at State and State-aided institutions and that right could not be nullified by those who had the right to abstain from them but chose not to. The religious instruction classes at the German School F were therefore not unconstitutional and this situation would hold true regardless of whether the German School was a State-aided institution or a private school. However, the right of freedom of religion and the right to freedom of thought, belief and opinion entailed that attendance could not be enforced but had to be voluntary as ss 14(2) of Act 200 of 1993 and 15(2) of Act 108 of 1996 specifically recognised non-attendance. (At G 449A--A/B, E--E/F, F--G and 450A/B--C.)

A contentious issue between the parties had been whether the interim Constitution or the final Constitution was applicable in the circumstances. The Court eventually found that because of the times at which the important events in the matter had occurred, the matter had to be resolved in terms of the provisions of the interim H Constitution. (At 456A.) The first defendant consequently argued that the German School was not a State-aided institution but a private school registered in terms of s 6 of the Private Schools Act (House of Assembly) 104 of 1986 and accordingly, as the interim Constitution did not have horizontal application, that the provisions of the religious clause in the interim Constitution did not apply to the German School. The Court examined the I interpretation to be given to the phrase 'State-aided' and held that the German School was indeed...