Constitutional Perspective of Church-State Relations in South Africa

39 Pages Posted: 14 Oct 2011 Last revised: 6 Jun 2012

Date Written: January 8, 2001

Abstract

Prior to political transformation of the country in 1994, the new Constitution proclaimed South Africa to be a Christian State. There was indeed no established church in South Africa, but the legal system clearly favored a certain variety of Christian religions and put procedures in place that could be used to prohibit Africans from attending church services in areas proclaimed under the apartheid system to be reserved for white occupation. Religious bodies were not immune from strict security measures designed to maintain white privileges and to suppress active opposition to the racial policies of the government.

The new constitutional dispensation represents a radical transformation of South Africa’s racist and repressive past. As far as religion and religious diversity is concerned, the constitutional dispensation of the “new South Africa” can be described as one of profound toleration and accommodation. The Constitution is religiously neutral, and a single reference to “God” in the Constitution is confined to a citation from the national anthem, which includes the phrase “God bless Africa”. The Constitution guarantees freedom of religion, belief and opinion, permits religious observances in state and state-aided educational institutions, permits the State to subsidize parochial schools, makes provision under certain conditions for the recognition of polygamous (including Muslim) marriages, and prohibits discrimination based on, for example, gender, race and sexual orientation by the State and by non-State organizations, including religious institutions. Although the Constitution leaves scope for religious institutions to justify traditional practices that amount to discrimination based on gender or sexual orientation, it is submitted in the article that merely requiring a church institution to justify its internal doctrinal practices amounts to totalitarian interference by the State in the internal affairs of the church.

The article records decisions of South African courts that refused to legalize the ceremonial use of drugs for religious purposes, and which suggested, by way of obiter dictum, that American jurisprudence which excludes the exercise of jurisdiction by courts of law in cases involving “doctrinal entanglement” might become part of South African law. In subsequent decisions (after the publication of this article), this dictum was not followed. South African courts are charged with resolving disputes and will not shy away from executing their judicial obligation of resolving inter- or intra-ecclesiastical disputes that will require a verdict on doctrinal issues.

Suggested Citation

Van der Vyver, Johan, Constitutional Perspective of Church-State Relations in South Africa (January 8, 2001). Brigham Young University Law Review, Vol. 1999, No. 2, p. 635, 2001, Available at SSRN: https://ssrn.com/abstract=1944196

Johan Van der Vyver (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

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