On the 28th of June 2017, the South Gauteng High court of South Africa handed down a landmark ruling pertaining to the interpretation of section 15 of constitution of the Republic of South Africa on religion. The ruling ordered schools not to promote one religion over another or others.  This case was brought to court by an organization called OGOD against FEDSAS which represented the 6 public schools that promoted Christian ethos at their schools.

Whenever you see three judges on the bench in the high court you should immediately know that the case is going to be a very complex one, and more than one legal mind is required to sift through the legal intricacies that would have been advanced by brilliant legal minds, the advocates and attorneys. Usually a judge would sit alone, or a magistrate in the lower courts, or if the judge sees the need, two assessors would sit on his or her side to help them analyse the legal arguments and evidences given by the applicants or the respondents in a matter. When a case in South Africa is of utmost importance and its outcome is going to affect other parties who did not take the matter to court and did not file affidavits to be considered by the presiding judge, those interested parties can apply directly to the court to be admitted as friends of the court, or can offer legal counsel to those admitted in court. Such was the case in this matter.

All represented parties based their arguments on the section of the constitution under the bill of rights and freedom of religion, which states:

Freedom of religion, belief and opinion (Chapter 2: Bill of Rights) Section 15

(1) Everyone has the right to freedom of conscience, religion, thought, belief and

opinion.

(2) Religious observances may be conducted at state or state-aided institutions,

provided that—

(a) those observances follow rules made by the appropriate public authorities

(b) they are conducted on an equitable basis; and

(c) attendance at them is free and voluntary.

(3)

(a) This section does not prevent legislation recognising—

(i) marriages concluded under any tradition, or a system of

religious, personal or family law; or

(ii) systems of personal and family law under any tradition, or adhered to by

persons professing a particular religion.

(b) Recognition in terms of paragraph (a) must be consistent with this section and

the other provisions of the Constitution.

Based on this, one can tell that although this section of the constitution is excellent, it has its loopholes because religions are not neutral, and Christianity is one that is very exclusive. Christianity does not even permit Christ’s disciples to enter into inter-faith arrangement.  So, the things Christians believe and teach will some way or another go directly against what the other religions believe and teach. And so, in South Africa it is with tension that this section of the constitution is upheld. But, slowly but surely, we are starting to see pressure from those who are starting to recognize that when this constitution was amended and adopted by the constitutional assembly in 1996, they knew very little about religion, and especially, to be more precise, about the Evangelical-Reformed faith. Ours is a faith, directly or indirectly, that speaks against other faiths which we regard as false religions, and practices which are upheld by the constitution. This is the basic understanding anyone interested in this matter should have, but I’m reporting on the above case.

There were a number of issues argued before the court. Others more strongly than the others. Some of us who followed this case closely thought that other important matters would be decided, but that did not happen. In my mind I was thinking about the issue of Evolution vs Creationism. This issue was subtly there, but the courts did not venture into it in depth to the satisfaction of Evolutionists and Creationists. I guess on the other hand the difficulty will always be there because of Christian Evolutionists who see this as a non-issue for their faith. Nonetheless, issues argued and decided by the court were still very important and the ruling was a landmark ruling.

The other main issue that had to be considered by the courts and argued by the legal representatives was whether the constitution allows public schools[1] to lean towards and teach some tenets of the Christian faith[2] while at the same time reasonably acknowledging and recognizing other faiths. This part is complex, so let me attempt to illustrate and simpligy the complexity.

You are a Muslim or a Jew at an assembly at a public school and the school happen to be one that identifies with and promotes Christianity. But acknowledging that you are not a Christian, the school accommodates you by excusing you or lets an Imam or a Raabbi teach you separately on the school premises. This very thing is one that the courts said was problematic, because doing so is merely accommodating you because it appears as though you are at a Christian school that belongs to the government. The non-Christians would feel inferior and would look very different from the rest even if the intention is not there.

I will below show what the other issues were that were argued in court, but there are further problems with the above if one takes it to its logical conclusion. Public schools are organs of state, and the South African state is not a Christian state, even though overwhelmingly the population identifies with the Christian religion. Christianity in South Africa simply means “I’m not this or that, so I must be Christian” or “I like the Christian faith more, so I’m Christian” or “My family or my friends are Christian, so I’m Christian” or “I used to go to Sunday School or used to attend that church, so I’m Christian” or still “I’m Christian and you have no right to question me”. There is simply no standard by which we can judge whether someone is or not a Christian, even though the Bible is unequivocal on the marks of a true Christian.

But the government does not want a public school that makes it appear as though the government is a Christian government, because the constitution states that all religions in South Africa are equal. South Africa is a secular state. But some educators argue that dominant religions in certain communities should influence which religion should be promoted in public schools. On the contrary, court argued and ruled that even if 100% of the learners or parents in that school are of the same religion, the school is not allowed to lean towards one religion because it is an organ of the state functioning in a country with a constitution that recognizes diversity and seeks unity in diversity. Schools are required to respect this diversity and not adopt a policy that has the potential of excluding others. This simply looks like this: you may be 100% Muslim at school this year, but what if in the middle of the year or the next year a Jew joins the school? It is better to not have it on paper that you are a Muslim school so that it does not become difficult to change policy when a non-Muslim joins the school. But you may observe Islamic rituals.

So then, it begged the question: is it permissible (or does the constitution permits) for a school to lean towards one faith over the other(s) while at the same time reasonably accommodating other faiths?[3] OGOD (Organisasie vir godsdienste-onderrig en demokrasie)[4] together with parties that were admitted as the amici curiae (friends of the court), argued that the constitution does not permit. FEDSAS (The Federation of Governing Bodies of South African Schools) on the other hand, on behalf of the six public schools that were taken to court by OGOD, and the other amici curiae[5], argued that it is permissible according to the constitution and existing case law.

The powers of School Governing bodies to decide on behalf of the parents and children which of the 71 religious observances we have in South Africa is to be observed was also under scrutiny and the order was as following: The school cannot hold to a specific faith in such a way as to exclude others. The court also based its judgment on the principle of subsidiarity, namely, that in South Africa the highest law is the constitution, then we have national legislation, provincial legislation, and then policies or legislations of organizations recognized by the government. This means that for schools this would be the school governing body. So, the judgment upheld the authority of the school governing bodies that they have the authority to decide which religion to be upheld at a certain school or which religious observances should be at schools, but the difficulty was not solved around these being fair and equitable.

It appears still unclear to me whether section 15 (2) of the constitution was clearly explained and what “equitable” looks like in practice[6]. But, it was still upheld that the attendance of religious observances at public schools must be free and voluntary. This means that school governing bodies now have to revise their policies if they are exclusive[7]. Once they determine what religion the school would lean towards, their policy should make it clear that other pupils are given the equal opportunity to observe their religion.

Having somewhat complicated and at the same time made it easy to understand the issues and the court case, here is the Judges’ order:

The Court order reads as follows:

(a)  It is declared that it offends section 7 of the Schools Act, 84 of 1996 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 good thing in all of this is that the militant-atheistic organization was only partially granted what it sought. They sought two things. The first being that they wanted the court to interdict the six schools they took to court and bar them from practicing any any of the 71 religious observances we have in South Africa, in whatever shape or form (from just singing a religious song, or praying). The second being that they wanted the court to declare unconstitutional any legislation or policy on religion in all of the more than 24 000 public schools we have in South Africa. The court did not grant these.

So, as it stands they can still appeal the ruling if they are not happy with it. To do so they need to ask the court they first argued before to grant them leave to appeal, and if the leave is granted[8] they will argue the case again before the justices of the Supreme Court of Appeal. No new evidence can be brought before this court, but only what was before the previous court. If they are refused leave to appeal and their application is dismissed by the high court, they can still petition the Supreme Court of Appeal directly and may be granted leave to appeal. If this matter gets past the Supreme Court of Appeal, the last straw is the Constitutional Court. So, this matter may still be far from over, which means we must continue to pray and utilize whatever legal recourses we have at our disposal (if we want to go that route).

But be encouraged. This is not a major thing for the Christians. Nothing can thwart Christianity. Though such things like arrows pierce us, we know that ours is the victory through Christ alone. This also calls us to all the more see that we need to be more deliberate as the church to make disciples of Jesus Christ, and hope in the power of the gospel because the government is not going to fight for us. Gone are the days when we could simply just cite the constitution for defence and protection. It should never have been like this in the first place, but we praise the Lord that we got to enjoy this doctrine enshrined in our constitution. But even if it gets changed, we have the highest, perfect, and infallible authority; which is God and His Word. Ours should be to master interpreting the Word of God, and accurately applying it by the Lord’s help and grace. Let us stick to the Word in season and out of season. Jesus is building His church and the gates of hell will not prevail against it.

[1] It is important to emphasise “public schools” because this matter affected only public schools. Private schools still enjoy their freedom and non-interference from the government in this matter. But because private schools are not completely private, as they are still seen to some extent as servants of the state, I will not be surprised if a similar case is brought before the courts against private schools. Again, because of the tension with which we have to uphold the constitution as Evangelical Christians, this might be a blessing in disguise, but at the same time great damage. Blessing in a sense that if I want to take my child to an academically excellent private school, but leaning towards a strange faith, their faith will be protected by the constitution. But damage for those private schools that are still faithfully evangelical in their ethos.

[2] My historical, exclusive, orthodox, confessional mind sees a problem with this. The Christian faith spoken of here was not defined. Understandably so, it will be difficult to argue what is Christianity in court since Christians are divided themselves. But suffice it to say, just saying Christian and Bible is safe enough.

[3] This Case was of OGOD vs FEDSAS

[4] Loosely translated: Organisation For Religious-Teaching in Democracy. It is very important to know about and keep an eye on this movement. It is a very subtly atheistic-militant movement. On their home page on their site, they say their goals are: We endeavour, through public activism, to:

  • Promote in-depth, fact-based education about religions of the world.
  • Eradicate religious indoctrination through public schools.
  • Identify and expose religious counter-knowledge and magical thinking.
  • Shield children from the psychological dangers of religious damnation.
  • Promote a democratic, secular and human rights based South African society.
  • Eradicate religious elitism.

[5] The six schools and various amici curiae included the SA Council for Religious Rights and Freedoms (Supported by FOR SA even though they were not parties to this case), Cause for Justice, Afriforum and Solidarity.

[6] Equitable was interpreted by the court as: demanding the State to act even-handedly in relation to different religions.

[7] Even though this case was against the Christian religion, this applies to all religions in public schools.

[8] Leave to appeal is granted if the judge is persuaded that they got the law wrong and reasonably think that a different court may come to a different conclusion. Either party in this matter can appeal.