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May 2018 Issue 13
 
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Actual case: Organisasie vir Godsdienste-Onderrig en Demokrasie v Laerskool Randhart and Others

A public school may not adopt one single religion to the exclusion of others

Facts of the case:

  • The non-profit organization, Organisasie vir Godsdienste-Onderrig en Demokrasie (“Organisation”), applied to the High Court to prevent public schools from advertising that they are exclusively founded in one religion.
  • The basis of the application was that one religion is favoured in public schools and that this bias is in contravention of the Constitution of the Republic of South Africa (“Constitution”).
  • The Organisation argued that if a school only identifies with one religion, it will not be able to fairly address any other religion. This conduct by the school will be unconstitutional.  
  • The various schools used a defence based on the Schools Act, which allows a school to determine its character according to the religions followed in its community. This is usually determined in rules set out by the school’s governing body (“SGB”).
Did you know: There are 27 human rights contained
in the Bill of Rights.

What the Court said:

  • The High Court looked at the right to religious freedom that also allows State-aided institutions (such as public schools) to allow religious observances, provided that:
    • the appropriate rules are followed;
    • they are reasonably and equally conducted; and
    • participation is free and voluntary.
  • The rules set out by the SGB must still comply with the human rights set out in the Constitution. For example, compulsory attendance at school prayers will infringe upon freedom of religion.
  • Even if an SGB makes express provisions for free and voluntary participation by minor religions or non-believers, the exclusion of others cannot be excused. Those learners who decide not to participate might still feel that they do not belong or feel that they are still pressured into participating.
  • The Constitution and the Schools Act do not give a public school the right to adopt one religion to the exclusion of others.
  • The High Court held that schools should take into account the continued evolution of its surrounding community and that there are various religions followed in that community. Religion does play a role in everyday life and religious rights must be adopted in a fair manner to ensure unity in diversity.

Conclusion:

  • The High Court held that public schools, as State institutions, cannot promote single religions to the exclusion of others.
  • Legislation must be put in place to establish to what extent a public school can permit religious observances. The High Court could not make a decision in that regard.


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