PREACHING FORGIVENESS OR REGULATING THE UNFORGIVABLE: BENEFITS AND SHORTCOMINGS OF PROPOSED REGULATORY MECHANISMS FOR RELIGIOUS LEADERS IN SOUTH AFRICA Yvonne Mary Rose Attieh 714215 Professor Cathi Albertyn Faculty of Commerce, Law and Management School of Law University of the Witwatersrand Word Count: 50 407 This document is submitted in fulfilment of the requirements for the award of Master of Laws by Dissertation degree (LAWS 8002A) in the year 2022. Plagiarism Declaration and Financial Assistance of the NRF I am aware that plagiarism (the use of someone else’s work without permission and/or without acknowledging the original sources) is wrong. I confirm that the dissertation submitted for assessment is my own unaided work except where I have stated explicitly otherwise. I have followed the required conventions in referencing thoughts and ideas of others. For this purpose, I have used the SALJ House style of referencing. I understand that the University of the Witwatersrand may take disciplinary action against me if there is a belief that this is not my unaided work or that I have failed to acknowledge the source of the thoughts and ideas in my own work. I have submitted my dissertation to the Turnitin platform for a similarity check. A copy of the Turnitin report has been included as part of my submission. The financial assistance of the National Research Foundation (NRF) towards this research is hereby acknowledged. Opinions expressed and conclusions arrived at, are those of the author and are not necessarily to be attributed to the NRF. Abstract South African society is characterised by variable but firm religious associations. The important status of religion within the broad spectrum of human rights is both reflected and upheld by the constitutional dispensation, which protects religious freedoms. Notwithstanding the acknowledged status of religion within South Africa, there have been ongoing and prolific instances of malpractice within the religious sector which have highlighted and questioned its inherent value within society. The most significant investigation and proposal was put forward by the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL), which sought to understand the current challenges within the religious sector and respond to same. The CRL published a proposed regulatory model, which generated an outcry from the religious community. This resulted in the CRL publishing a revised model, to respond to the public comments. Religious institutions were still dissatisfied. They formed their own committee to work on solutions that they believed would be effective, the most prominent being the proposed implementation of a uniform Code of Conduct with specific provisions to regulate the conduct of religious leaders. In response, the CRL drafted a Code of Conduct for religious institutions, in which it set out values and general principles for religious leaders to follow. This dissertation has sought to investigate the points of disjuncture within the religious sector which have “allowed” malpractices to prevail. The perspective taken has been to analyse the current regulatory framework in combatting religious malpractices and to assess if and to what extent, any of the proposed alternates are constitutionally, legally, and logistically feasible within South Africa’s constitutional setting. Empirical research, in the form of interviews, has been used to ascertain the internal regulatory processes within religious denominations and to understand the machinations of the model proposed by the CRL. Desktop research has been primarily used to explore the formal regulatory processes, which broadly comprise legislation and case law, regulating malpractices, and to consider the alternates to the current regulatory framework. Through the exploration of the current and alternate regulatory frameworks, the dissertation has highlighted that there are benefits and shortcomings to both. In summation, the current regulatory framework allows people to exercise their religious freedoms and religious institutions to develop their own regulations. However, parts of some legislation are unclear and haphazard, the self-regulatory nature of the framework enables religious leaders to bypass their legal obligations, and there is a lack of public accessibility to information on the regulatory framework. The proposed alternate initiated by the CRL is beneficial in that it has exposed the problems within the religious sector and initiated the process of reform. However, parts of it are unclear and can be subject to misinterpretation. It presents several administrative challenges, has little support from the religious community, and the CRL and its role does not appear to be widely known amongst the religious community. While acknowledging that these recommendations are by no means the final and conclusive answer to the contentious and multifaceted problem faced by the religious sector, the dissertation suggests that a standalone piece of legislation, with the Codes of Conduct drafted by religious institutions and the CRL as its basis, could assist in reducing the incidents of malpractice. Inter alia, the legislation could include existing regulations, obligations and penalties for contravening regulations as contained in various pieces of legislation, all religious denominations having to draw up their own written constitutions and book of rules, a provision for it to be compulsory to notify the CRL when forming a religious institution, and the documentation of general principles in relation to malpractices that have applicability to all religious denominations. In addition to the proposed ‘new’ legislation, existing legislation, which is vague ought to be amended, and the CRL ought to take active steps to make itself and its role better known in religious communities. Acknowledgements Professor Cathi Albertyn Members of Masters and PHD Support Group Panel of examiners in Oral Defence Judy Mafika Marisa Sauls Susie Maluleke Tshepo Mohlakoane School of Law (WITS) Faculty of Commerce, Law and Management (WITS) Participant from Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL) Office of the CRL Participants from religious institutions Offices of religious institutions Efterpi Sotiriou Brian Lebos Yvonne Lebos Paul Attieh Desiree Attieh Latte Attieh Joseph Lebos Martin Lebos Nils Forssman Amanda Forssman Silver Dube Casey Bhebhe Gugu Dlamini Audrey Brauer Chris van Niekerk Johanna Kekana Yuvanga Naidoo Tondi Mulaudzi Table of Contents Definitions relating to religion 1 List of tables and diagrams 2 Chapter 1: Introductory Overview 3-7 Chapter 2: Methodology 8-15 Research Process 8-10 Interview Process 10-11 Reflection of the research – Challenges and limitations 12-15 (1) Pre-conceived opinion 12 (2) Limited application 12-13 (3) Consent from intended participants 13 (4) Subjectivity of responses 13 (5) Accuracy/quality of information 13-14 (6) Verification of information 14 (7) Anonymity/confidentiality 14-15 Chapter 3: Theoretical Framework 16-50 State, religion and society 16-22 Religion and the law 22-45 (1) Freedom of religion 24-28 (2) Equality 28-37 a. The Constitution 28 b. The Equality Act 28-29 c. Religious freedom versus equality 29 d. Scholarly opinions on religious freedom versus 29-31 equality e. Scholarly opinions on role of courts in unfair 31-33 discrimination cases f. Case law relating to religious freedom versus 33-37 equality (3) Freedom of association 37 (4) Dignity 38-41 (5) Children’s rights 41-45 The consideration of ‘harm’ within the religious sector 45-49 (1) Harm 45-46 (2) Voluntary consent to harm 46-48 (3) The law’s stance on voluntary consent to harm 48-49 Conclusion 49-50 Chapter 4: Regulatory Framework 51-99 Theoretical underpinnings of regulatory framework 51-56 (1) State regulation 52-56 a. Theoretical component 52-54 i. Public interest theory 52-53 ii. Private interest theory 53 iii. Economic theory 53-54 b. Practical component 54-56 (2) Self-regulation 56 Overview of the regulatory framework for the religious sector in 56-99 South Africa (1) Formal regulation 57-61 a. Legislation 58-60 i. Religious institutions and children 58-59 ii. Religious institutions and tax 59 iii. Financial accountability of religious institutions 59 iv. Religious institutions and employment 60 v. Religious institutions and health and safety 60 b. Case law 60-61 (2) Informal regulation 61-99 Findings from the interviews in respect of informal regulation 61 a. Categories of religions/religious denominations 62-69 i. Organised formal 62-67 ii. Semi-organised semiformal 67 iii. Unorganised informal 67-69 Analysis: Categories of religions/religious 69-71 denominations b. Criminal malpractices 71-78 Analysis: Criminal malpractices 79-80 c. Discriminatory practices 80-83 Analysis: Discriminatory practices 83-84 d. Harmful acts 84-86 Analysis: Harmful acts 86-87 e. Financial-related malpractices 87-89 Analysis: Financial-related malpractices 89-90 f. Opinion-based responses 90-94 Analysis: Opinion on informal regulation 94-96 Analysis: Opinion on police and court intervention 96-97 g. Conclusion 97-99 Chapter 5: Proposed amendments to the regulatory framework 100-119 Role, powers, functions and rationale behind the CRL model 100-103 (1) Powers and functions of the CRL 100-101 (2) Rationale behind the investigation 101-102 (3) Investigative process 102 (4) Findings from the investigation 102-103 (5) Recommendations based on investigation 103 Preliminary proposed regulatory model 104-107 (1) Functionality of preliminary proposed regulatory model 106 (2) Critique of preliminary regulatory model 106-107 Revised proposed regulatory model 107-109 (1) Functionality of revised proposed regulatory model 109 Responses to the revised regulatory model 109-118 (1) Responses from scholars and interviewees 109-113 a. Constitutional religious freedoms under attack 110 b. CRL exceeded its mandate 110-111 c. Existing laws to rectify the problem 111-112 d. Measures used are disproportionate to the number 112 of malpractices e. Fluidity and flexibility inherent in religion 112 f. Interferes with religious doctrine 113 g. Discrepancies between the contents of the report 113 and interview (2) Counter responses from the interview with the CRL 113-115 commissioner (3) Responses from the Steering Committee and CRL 115-116 Relationship between religious leaders and CRL 117-118 (1) Not knowing about CRL and had no personal dealings 117 with CRL (2) Not knowing about CRL but being supportive of its function 117 within religious sector (3) Knowing about CRL and being supportive of its intervention 118 in certain areas (4) Knowing about CRL and not being supportive of its 118 intervention in any areas (5) Knowing about the CRL and expressing concern about its 118 composition Conclusion 118-119 Chapter 6: Benefits and/or shortcomings of regulatory framework and 120-142 associated recommendations Benefits of existing regulatory framework 120-122 (1) Equal measures of freedom and constraint of religious 120-122 freedom in principle (2) General informal regulatory structures 122 Shortcomings of existing regulatory framework and recommendations 122-134 (1) Considerations relating to form and content of legislation 122-124 a. Loopholes in legislation 123 Recommendation based on loopholes in legislation 123 b. Fragmented legislative framework 124 Recommendation based on fragmented legislative 124 framework (2) Considerations relating to the functionality and 124-134 implementation of the regulatory framework a. Contradiction between informal and formal regulations 124-125 Recommendation based on contradiction between 125 informal and formal regulations b. Lack of use of relevant laws and authorities 126-127 Recommendation based on lack of use of relevant 127 laws and authorities c. Conflict between religious and legal frameworks 127-129 Recommendation based on conflict between religious 129-131 and legal frameworks d. Lack of knowledge among members who belong to 131-132 religious institutions Recommendation based on lack of knowledge among 132 members who belong to religious institutions e. Fear associated with reporting malpractices 132-133 Recommendation based on fear associated with 133-134 reporting malpractices Summation of current regulatory framework 134-135 Alternate regulatory framework 135 Benefits of alternate regulatory framework 135 Initiated reform in the religious sector 135 Shortcomings of alternate regulatory framework 136-138 (1) Considerations relating to form and content of the alternate 136-137 recommendations a. Misinterpretation of the model 136 b. Administrative burden 136-137 (2) Considerations relating to functionality and implementation 137-138 of the alternate recommendations a. Minimal support from the religious sector 137 b. Minimal knowledge of the CRL 137-138 Analysis of current and alternate regulatory frameworks 138-142 Chapter 7: Conclusion 143-145 Bibliography 146-149 Annexures Page | 1 DEFINITIONS RELATING TO RELIGION The key, recurring terms relating to religion that will be used throughout this dissertation are defined as follows: Religion/s: An organised system of beliefs, ceremonies, and rules used to worship a god or group of gods (e.g. Christianity, Hinduism, Islam, Judaism etc.) Religious belief: Belief in a religion’s central activities of faith/attitudes Religious community: A gathering of individuals who have common religious beliefs, habits, practices and ideologies about the negotiated order of these gatherings (e.g. Rosebank Catholic Church, Sandton Shul, Houghton Mosque) Religious denomination/s: A subgroup within a religion that operates under a common name, tradition and identity (e.g. Catholic, Methodist, Anglican – some Christian denominations) Religious doctrine: The written body of teachings of a religion that are generally accepted by that religion Religious framework: The structure of the religious sector in South Africa Religious institution/s: Place of worship that exists to support and manage the practice of a specific set of religious beliefs (e.g. Church, Temple, Mosque etc.) Religious leader/s: A person who is recognised within a particular religion as having authority within that body and who plays a key role in leading, inspiring and directing the people who belong to that particular religion (e.g. Rabbi, Priest, Imam, Pastor etc.) Religious practice/s: Observances/traditions of a particular religion including inter alia rituals, wearing religious symbols and refraining from certain activities Religious sector: All the religions and their denominations practiced and/or recognised in South Africa Page | 2 LIST OF TABLES AND DIAGRAMS Table 1: Religions/religious denominations included in study Table 2: Internal processes used for malpractices in ‘organised formal’ religious denominations Table 3: Penalties imposed for malpractices in ‘organised formal’ religious denominations Table 4: Ways in which regulations are documented and/or publicised in ‘organised formal’ religious denominations Table 5: Internal processes used for malpractices in ‘unorganised informal’ religious denominations Table 6: Penalties imposed for malpractices in ‘unorganised informal’ religious denominations Table 7: Ways in which regulations are documented and/or publicised in ‘unorganised informal’ religious denominations Table 8: Regulations relating to sexual assault of an adult Table 9: Regulations relating to sexual assault of a minor Table 10: Regulations relating to misappropriation of funds of a religious institution by a religious leader Table 11: Extent to which religious denominations advocate for reporting of criminal malpractices to external bodies such as the police Table 12: Rights and powers of male versus female religious leaders within religious denominations Table 13: Rights and powers of heterosexual versus homosexual religious leaders within religious denominations Table 14: Regulations relating to harmful acts committed by a religious leader Table 15: Regulations relating to the practice of tithing and non-compliance with tax obligations by a religious leader Table 16: Opinions from participants regarding their informal regulation process and any weaknesses within it Table 17: Bodies within preliminary proposed model by CRL Table 18: Bodies within revised proposed model by CRL and differences/additions to preliminary model _________________________ Diagram 1: Preliminary proposed regulatory model by CRL Diagram 2a: Revisions to the preliminary proposed model by CRL Diagram 2b: Revised proposed regulatory model by CRL Page | 3 Chapter 1 INTRODUCTORY OVERVIEW This chapter provides an overview of the collective role and importance accorded to religion within the South African context, evidence of malpractice within the religious sector and the resultant need for a consideration of the existing regulatory framework and potential alternatives. My earliest religious memory is of going to our local Catholic church, dressed in my Sandton Sunday best, holding my granny’s hand. From this initial exposure, I drew conclusions, perhaps naively conceived, that religion provided a loving, protective, affirming, and uplifting dome, an all-good association, beyond reproof, questioning or critique. Fast forward from circa 2005 to 2021 – now a young adult, an aspiring lawyer, a conscious and conscientious citizen – I approach questions of religion with a wider perspective, one still steeped in my personal religious convictions, but with the capacity and interest to examine such with a wider lens. As it does for me, religion plays a fundamental role in the lives of the vast majority of South Africans.1 A community survey conducted in 2016 on the religious beliefs of the population revealed that 88% of South Africans hold a religious belief.2 Only 10.72% of the population do not have a religious belief and 1.27% are unsure about their belief.3 The importance that South Africans accord to religion is articulately expressed in Prince v President:4 ‘For many believers, their relationship with God or creation is central to all their activities. It concerns their capacity to relate in an intensely meaningful fashion to their sense of themselves, their community, and their universe. For millions in all walks of life, religion provides support and nurture and a framework for individual and social stability and growth. Religious belief has the capacity to awake concepts of self-worth and human dignity which forms the cornerstone of human rights. It affects the believer’s view of society and founds the distinction between right and wrong. It expresses itself in the affirmation and continuity of powerful traditions that frequently have an ancient character transcending historical epochs and national boundaries.’5 1 David Bilchitz & Shaun de Freitas ‘Introduction: The right to freedom of religion in South Africa and related challenges’ (date) 28 South African Journal on Human Rights 141 at 141. 2 Statistics South Africa Community Survey on Religious belief by sex for person weight (2016). Is this the title? 3 Ibid. 4 2002 (2) SA 794 (CC). 5 Ibid para 48. Page | 4 Although religion holds a dominant and influential position within South African society and serves a multitude of self-fulfilling functions; in recent times the religious sector has been shown to be in disarray. Evidenced with uncomfortable regularity, escalating incidents of religious leaders implicated in a myriad of repugnant malpractices, which often violate people’s constitutional rights, arguably raise questions: What happens when things go wrong? Who is responsible for oversight? How does this all square up with our all-important constitutional dispensation? The nature of these malpractices is multifaceted and includes harmful acts, forms of abuse and discriminatory practices perpetrated by religious leaders acting both within and outside the confines of religious doctrine. Occurrences of malpractice are criminal, civil, and constitutional in scope. Criminal malpractices include, inter alia, sexual abuse, child abuse, theft, extortion, and the enforced use of harmful substances as a healing medium. To cite a few examples: three Catholic priests were defrocked for sexually abusing children in their parishes; a South African Rabbi was reported to be wanted in Israel for molesting two women – one a minor; a Pastor sprayed Doom into congregants’ faces as a means of ‘healing’ and ‘delivering’ them; title deeds of religious properties were registered in the name of religious leaders; and money was collected from members of religious institutions and banked into religious leaders’ accounts.6 Civil malpractices include practices which equate to the commercialisation of religion7 and the failure of religious leaders to comply with licensing, registration, visa application, and tax obligations.8 Examples include: religious leaders making it mandatory for members of their congregations to make payment to them before meeting with them for purposes of inter alia seeking advice; selling religious symbols to members of religious institutions at elevated 6 Lee Gancman ‘Fugitive rabbi threatens life of South African chief rabbi’ available at https://www.timesofisrael.com/fugitive-rabbi-threatens-life-of-south-african-chief-rabbi/, accessed on 28 March 2019; Tebogo Monama ‘Three SA priests defrocked over child abuse claims’ available at https://www.iol.co.za/the-star/news/three-sa-priests-defrocked-over-child-abuse-claims-17494206, accessed on 28 March 2019; CRL Rights Commission Preliminary Report of The Hearings on Commercialisation of Religion and Abuse of People’s Belief Systems 1 at 26-27; Peter Ramothwala ‘‘Prophet of Doom’ asks to serve his sentences concurrently’ available at https://www.timeslive.co.za/news/south-africa/2018-02-27-prophet-of- doom-asks-to-serve-his-sentences-concurrently/, accessed on 28 March 2019; Queenin Masuabi ‘’Prophet’ of Doom: Pastor claims he can heal people with insecticide’ available at https://ewn.co.za/2016/11/21/pastor- claims-he-can-heal-people-with-doom, accessed on 28 March 2019. 7 Examples of commercialisation of religion include blessed water and oils being sold to congregants at a high marked-up price, access to the spiritual leader or traditional healer only being guaranteed by payment of fixed amount of money and bank speed points being used for people to swipe their bank cards during ceremonies. 8 CRL Rights Commission op cit note 6 at 25-26. https://www.timesofisrael.com/fugitive-rabbi-threatens-life-of-south-african-chief-rabbi/ https://www.iol.co.za/the-star/news/three-sa-priests-defrocked-over-child-abuse-claims-17494206 https://www.timeslive.co.za/news/south-africa/2018-02-27-prophet-of-doom-asks-to-serve-his-sentences-concurrently/ https://www.timeslive.co.za/news/south-africa/2018-02-27-prophet-of-doom-asks-to-serve-his-sentences-concurrently/ https://ewn.co.za/2016/11/21/pastor-claims-he-can-heal-people-with-doom https://ewn.co.za/2016/11/21/pastor-claims-he-can-heal-people-with-doom Page | 5 prices9; and religious institutions failing to declare their annual turnover to South African Revenue Services (SARS).10 Constitutional malpractices include rights-based harms which amount to unfair discrimination prohibited under section 9(3) of the Constitution of the Republic of South Africa, 1996 (the Constitution)11 and/or the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act), such as employees being prohibited from working for a religious institution on the basis of them being female and/or homosexual;12 and the violation of other rights and freedoms afforded to individuals in the Bill of Rights. Given the importance that so many South Africans accord to religion and the adverse consequences that such acts have on so many South Africans; the apparent proliferation of religious leaders committing criminal, discriminatory and harmful acts has heightened the need to understand the reasons for such misconduct and to explore the development of effective methods to regulate and combat such practices. Although there are both formal and informal regulatory mechanisms13 that exist within South Africa’s religious and legal frameworks14 to address instances of malpractice, they are arguably insufficient and ineffective in achieving their desired outcome. In response, the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL)15 formulated a regulatory model that could be implemented across all religious institutions to address the absence of oversight structures within religious institutions and, in turn, hopefully to reduce the opportunities for malpractice and their escalation within the religious sector.16 The publication of this model generated varied responses from members of the public and religious institutions. Many criticised it for 9 Ibid 25. 10 Ibid 26. 11 The grounds on which unfair discrimination is prohibited in terms of section 9(3) of the Constitution include race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. Other freedoms and rights include dignity, expression and association. 12 Strydom v Nederduitse Gereformeerde Gemeente, Moreleta Park 2009 (4) SA 510 (EqC). 13 Formal regulatory mechanisms are those that are established by law. They include inter alia legislation, precedent, policies and proposals. Informal regulatory mechanisms are those that are formulated and implemented by religious bodies themselves. 14 The legal framework refers to the laws that govern religion in South African society. 15 The CRL is a Chapter Nine institution supporting South Africa’s constitutional democracy. Chapter Nine institutions are State institutions who execute their functions independently of government and other organs of State. They are also intermediary institutions which enable members of the public to articulate their needs via an independent forum. 16 CRL Rights Commission op cit note 6 at 26. Page | 6 exceeding its mandate in drafting a model of such a nature and for subjecting the religious sector to too much state interference, which is an attack on constitutional rights to religious freedoms. Overall, it was argued that problems within the religious sector ought to be resolved within the religious sector.17 In consequence of the controversy generated by the proposed regulatory model, a number of religious leaders attended a summit in February 2019 to discuss their concerns and recommendations in relation to the regulatory model proposed by the CRL.18 At the summit, it was decided that a task team, which had been put together to prepare for the summit, should continue its work.19 A steering committee was accordingly formed, which comprised the members from the initial task team. It was tasked with the responsibility of preparing for prospective national conference and working on strengthening existing measures and the implementation of new measures to reduce the incidents of malpractice within the religious sector.20 While there has been a notable response to the CRL’s initiatives from religious leaders, organisations, and other related bodies; few academics have evaluated the CRL’s regulatory model and its appropriateness within the South African setting. Within this context, this dissertation seeks to fill this gap by: (i) interrogating the nature, scope and efficacy of the current regulatory framework which seeks to regulate incidents of malpractice within the religious sector, as well as the CRL proposals and the debates around them; and (ii) making recommendations as to how current laws and existing responses to such laws can be developed to address the issue of malpractice within the religious sector in ways that best align with constitutional rights and values. Accordingly, the research questions of this dissertation are: (1) What are the current informal and formal regulatory mechanisms in South Africa to combat incidents of malpractice by religious leaders and how effective are they in achieving their desired outcome? 17 CRL Rights Commission Report of the Hearings on the Commercialisation of Religion and Abuse of People’s Belief Systems 1 at 28; Anglican Position Paper The Report on the Regulation of Religion in South Africa: An Anglican Response (2017). 18 Thabile Mbhele ‘CRL commission, religious sector meet over “abuse scandals”’ available at www.sabcnews.com, accessed on 7 June 2019. 19 Steering Committee Discussion Document National Consultative Conference of the Religious Sector of South Africa (2019). 20 Ibid. http://www.sabcnews.com/ Page | 7 (2) What are the alternative modes of regulation to combat instances of malpractice by religious leaders in South Africa, including proposals by the CRL? (3) Which of the alternative modes of regulation to combat instances of malpractice by religious leaders are practically, constitutionally and legally feasible in a South African setting, if any? The dissertation will answer these research questions by: (1) Setting out a theoretical framework to explain the relationship between religion, the state and the law. This is intended to create the foundation through which to understand the regulatory framework. (2) Exploring the existing regulatory framework, which comprises the overarching theoretical underpinnings of regulation (State-regulation and self-regulation) and the South African regulatory framework which comprises formal regulations (those established by law) and informal regulations (those developed by religious denominations themselves). (3) Exploring the alternate modes of regulation to combat incidents of malpractice, with a specific focus on the most prominent alternate being the CRL’s proposed amendments to the existing regulatory framework, and the responses from various branches within society in relation to such proposed amendments. (4) Analysing the existing regulatory framework and its proposed amendments in terms of both substantive and procedural considerations. (5) Proposing recommendations for both the existing and alternate regulatory frameworks (from the analysis) that could be practically, constitutionally and legally feasible within a South African setting. Page | 8 Chapter 2 METHODOLOGY This chapter explains and assesses the chosen methods adopted to answer the research questions and fulfil the research objectives. Research Process I began my research by reading extensive literature relating to my topic, much of which has been included in my dissertation. This literature included journal articles explaining the relationship between the state and religion, constitutional provisions relating to religious freedom and its associated limitations, various scholars' opinions on the relationship between freedom of religion and the right to equality, and the extent of state intervention in religious matters, cases relating to a conflict between freedom of religion and other constitutional rights, the preliminary and revised reports issued by the CRL, and the various responses to the reports. It soon became evident that South Africa has a series of regulations which directly and indirectly emanate from legislation, case law and religious institutions themselves. While one can make inferences about regulations from prevailing legislation, case law and scholarly opinions; there is minimal desktop research on the regulations of religious institutions. Accordingly, I decided that the most appropriate method to research religious institutions’ regulations would be to conduct interviews with representatives from religious institutions who have knowledge of their regulations. I decided on interviews because I believed they would provide me with a first-hand, insightful, and holistic account of the regulations. When reading the reports issued by the CRL and the responses to it, it appeared that various religious institutions are opposed to the model of regulation set out in the report, and instead advocate for self-regulation. I, therefore, decided also to ask the participants about their opinions on the CRL, police and court intervention in religious matters, to elicit a personal account of the extent to which they advocate for state and CRL intervention. Attached as an annexure to this dissertation is an example of the interview schedule I used, marked “A”. The following religions and religious denominations were identified and included within the study: Page | 9 Table 1: This table illustrates the religions and religious denominations that have been included in the study and illustrates which religions constitute the majority and minority in terms of the religious demography in South Africa. Name of Religion Name of Religious Denomination MAJORITY CHRISTIANITY Catholicism Anglican Methodist Rhema Greek Orthodox Zionist Christian Church (ZCC) MINORITY TRADITIONAL AFRICAN RELIGION Traditional African Healing JUDAISM Orthodox Judaism Reform Judaism ISLAM Sunni HINDUISM Shaivism BUDDHISM Tibetan The primary reason for the selection of these religions and religious denominations is that they are all practised and prevalent within South Africa. This enables the findings to be holistic and reflective of the informal regulations of religious denominations practised in South Africa. A study conducted on the religious demography in South Africa in 2015 revealed that approximately 80% of South Africans are Christian.21 The reason for the inclusion of six religious denominations within Christianity is because the majority of the South African population is Christian. The same study revealed that approximately 1% identified with ancestral or Traditional African Religions; 1,65% identified as Muslims; 1,1% as Hindu; 0,16% as Jewish and 0,36% as Buddhists.22 The presence of the aforesaid minority religions in South Africa illustrates the reason for their inclusion in the study. 21 The Association of Religion Data Archives ‘South Africa’ available at https://www.thearda.com/international/Data/countries/Country_207_2.asp, accessed on 9 December 2021. 22 Ibid. https://www.thearda.com/international/Data/countries/Country_207_2.asp Page | 10 It is a point of contention and, therefore, necessary to address whether Traditional African Healing can be defined as a religion. In an online article in the Harvard Gazette, Anthony Chiorazzi acknowledges that the term ‘religion’ is problematic for many Africans when speaking about their religions because religion is considered separate from culture, society and environment.23 However, an opposing view is that religion co-exists with constructs such as culture and society and can never be separated from them.24 Religion informs multiple aspects of traditional African culture including, inter alia, dress, marriage and diet and therefore, should not be considered separate from it.25 Moreover, Traditional African Healing is pluralistic and inclusive in nature, in that parts of it adopt Christian religious beliefs, reinforcing the notion that it is pragmatic and regards the incorporation of other faiths as adding ‘spiritual potency’ to its own spiritual practice.26 Hence, while it is not conclusive that Traditional African Healing is a religion, there is literature to suggest that it falls within the scope of the definition of religion. It is also a pertinent and relevant consideration within the South African context and has, therefore, been included in this study. I also believed it was necessary to interview a commissioner from the CRL regarding its proposed model of regulation, to have a personal account and understanding of the functioning of the model beyond the confines of the reports, and to enable me comprehensively to assess the benefits and shortcomings of the model. I also wanted to ask the commissioner about the relationship the CRL enjoys with religious institutions so as to assess impartially CRL-religious institutions relations, and to hear from both interviewees of religious institutions and the CRL. Attached as an annexure to the dissertation is the interview schedule I used for the commissioner, marked “B”. Interview Process After applying for and obtaining ethics approval from the University of the Witwatersrand, I commenced searching for participants for the study. I went about identifying the participants by an internet search of the contact details of the religious institutions and religious denominations that I intended to interview. I contacted the religious institutions telephonically and briefly explained my research. I asked for an email address to send my participant 23 Anthony Chiorazzi ‘The spirituality of Africa’ available at https://news.harvard.edu/gazette/story/2015/10/the-spirituality-of-africa/, accessed on 11 December 2021. 24 Ibid. 25 Ibid. 26 Ibid. https://news.harvard.edu/gazette/story/2015/10/the-spirituality-of-africa/ Page | 11 information sheet so that the religious leader could read it and decide whether he/she wanted to be a participant in the study. Attached as an annexure to the dissertation is a copy of the participant information sheet I used for religious leaders, marked “C”. The above method was successful with eight of the religious institutions. However, with four of the religious institutions, I was unsuccessful in contacting their offices telephonically, either because they were not on the internet or were unreachable after contacting them numerous times. In such instances, I asked people, who I know belong to such religious institutions, to give me names and contact details of the religious institutions. I was aware that this could pose a challenge to the anonymity of participants, so I asked for a few names and contact details. As an additional measure, I requested the people who had furnished me with the contact details of the religious institutions to sign a non-disclosure form. A similar process of obtaining an interview with a commissioner from the CRL was followed. I contacted the offices of the CRL telephonically, briefly explained my research and asked for an email address to send my participant information sheet for the CRL to view. A copy of the participant information sheet I used for the CRL is annexed to this dissertation, marked “D”. The offices of the CRL sent me a permission letter to conduct the interview, in accordance with the rules governing CRL interviews, annexed hereto marked “E”. Most interviews were in person – either conducted at the offices of the participants or in private meeting rooms. A hard copy of the participant information sheet that was emailed to the religious leaders and commissioner was given to the participants to read through to keep and agree to before the interview commenced. A written consent form was also completed by the interviewee and signed by him/her and me before commencing the interview. A copy of the consent form for religious leaders is annexed hereto marked “F” and for the commissioner of the CRL, marked “G”. Some interviews were conducted telephonically due to Covid-19 and/or geographical constraints. In this case, the contents of the participant information sheet and consent form were read out to the participants and verbal consent was obtained before commencing the interview. Page | 12 Reflection of the research – Challenges and limitations The nature of the research gives rise to considerations of positionality, ethics, and limitations. (1) Pre-conceived opinion As a woman who has grown up in a staunch Catholic home and been exposed to Catholicism for 25 years, I may well have subconsciously formed an opinion about what I think should happen within the religious sector and use the research to make recommendations that confirm my belief. I could also find myself in a conflicting position, deciding whether to be true to my faith and accordingly, make recommendations in respect of the religious sector that would be pleasing to my faith; or to assess the religious and legal regulatory frameworks impartially and, in turn, make recommendations that, in my opinion, best align with our constitutional dispensation. To address these, I have re-evaluated my response to the research by constantly referring to the basis and objectives of the research when conducting my analysis and revisiting it after writing, always seeking to ensure that my findings are based on the research and not on my pre-existing opinions relating to the topic. I have also often reminded myself that I am writing in my capacity as a researcher, and not as a member and/or advocate of the Catholic church. (2) Limited application Although it was intentional only to include religious institutions from an urban setting, the research has limited application for religious institutions within a rural context. The informal regulations are not representative of all religious denominations across South Africa, because a religious leader from every religious denomination was not interviewed (e.g. Jehovah’s Witnesses, Nazareth Baptist Church). In addition, no controversial religious leaders that have engaged in harmful practices (such as spraying Doom on the congregation to ‘heal them’) have been interviewed. It is apparent that such acts committed by these religious leaders have prompted the discussions and proposals around the regulation of the religious sector. I attempted on numerous occasions to establish contact with a religious leader who could provide an in-depth, first-hand account of such practices, but I was unable to do so. Nonetheless, notwithstanding the non-inclusion of controversial religious leaders committing harmful practices and the limited application to the rural context; the sample of the participants Page | 13 is large and diverse enough to assess and gain a relatively holistic understanding of the current and proposed regulatory frameworks of the religious sector in South Africa. This study is also important and relevant for the religious sector in South Africa. Many incidents of malpractice within religious institutions, which have been the subject of media scrutiny and prompted discussions relating to proposals of regulating the religious sector, have formed the basis of the interview questions. (3) Consent from intended participants Not all religious institutions consented to the proposed interview. This limits the representation of religious institutions and, in turn, the assessment of the regulatory framework. Nonetheless, only one of the thirteen religious institutions did not agree to participate and, therefore, the representation within the constraints of the sample was limited only to a slight extent. (4) Subjectivity of responses The information that the participants disclosed may not have been entirely objective and factual, taking into consideration the internal biases that religious leaders and people associated with religious institutions display towards them and which a commissioner would display towards the CRL. Nonetheless, the interview questions were structured in a hypothetical way to elicit factual and objective responses and to guard against the incrimination of participants. The hypothetical structure prompted factual responses from participants and, when asked, the participants provided an honest opinion, highlighting both strengths and weaknesses of their religions and religious institutions. (5) Accuracy/quality of information It cannot be guaranteed that the information which the participants conveyed to me during the interview is completely accurate and reliable. However, I ensured that I interviewed the religious leaders at the offices of the religious institutions. These were all located on the same premises as the religious institution so that I was certain that they were religious leaders for their religions and/or religious denominations. Furthermore, I only used participants whose names and positions were listed on the websites of their religious institutions. If a website was not available for the religious institution, I used the names and contact details that I was given by people whom I know belong to such religious institutions. All participants were religious leaders. Some participants held positions within their various institutions that were regarded as more senior than religious leaders, but they were nonetheless religious leaders. By utilising the Page | 14 above methods, I ensured that the participants were sufficiently knowledgeable and had insight and exposure to the topic under consideration. It is also worth noting that the interviewees reserved comment for some questions. Some responses which the interviewees provided were also not clear and relevant to the question being asked. Nonetheless, most responses were detailed, relevant and enabled me to gain a holistic insight into the informal regulatory structures underpinning the religious denominations which form part of this dissertation. (6) Verification of information Another limitation under consideration is the methods of verifying the information conveyed during the interviews. In all interviews, both in-person and telephonic, the participants provided me with varying forms of supporting evidence as verification of their responses. Some participants furnished me with a copy of the documents to which they were referring, either during the interview or via email after the interview, and other participants referred to the supporting documents whilst conducting the interview. I also conducted my own research to verify the information conveyed to me, where desktop research was available. Another method of verification could have been cross-checking the information with other religious leaders from the same religions and/or religious denominations however, this could pose a risk to the anonymity and confidentiality of participants. This method would have also been challenging to pursue, as there were a limited number of suitable participants to interview for several of the religious denominations. The restrictive nature of the Covid pandemic further limited access and participation relating to the research. (7) Anonymity/confidentiality The participants needed to remain anonymous and confidential for them to feel comfortable to answer honestly and objectively, and to know that they would not be subject to scrutiny from their religious institutions and the CRL. While the participants are not anonymous to me, I implemented steps before, during and after the interviews to guarantee anonymity and confidentiality in this dissertation. Nobody, except the offices of the religious institutions and myself, have knowledge of the participants. All in-person interviews were conducted in meeting rooms, where anonymity and confidentiality could be assured. All telephonic interviews were conducted in my study, where anonymity and confidentiality could be assured by me. I password protected all interviews after recording them and locked away transcripts of the interview recordings in a safe place. All references to the participants in the dissertation are Page | 15 either by way of their religious institution or, in the case of the commissioner of the CRL, by his/her title. Page | 16 Chapter 3 THEORETICAL FRAMEWORK This chapter sets out the theoretical framework of the dissertation. As such it describes the legal and conceptual framework, which serves as the backdrop to the investigation and informs the conclusions. Broadly, this framework consists of the triad between the state, religion, and the law. More specifically, it comprises the relationship between the state and religion, and between religion and the law; various state-religion models; competing understandings of religious freedoms; the nature of the relationship between religious freedoms and other constitutional rights; the extent to which religious freedoms can be limited; and the extent to which the state and the law is willing to intervene in religious matters. Emanating from competing understandings of religious freedoms and the degree to which religious freedoms can be limited, are considerations of whether and to what extent people can waive their rights and consent to harmful practices. State, religion, and society There is no legislation that sets out the relationship between the South African state and religion, but various theoretical models of state-religion relations assist in understanding this relationship. David Bilchitz and Alistair Williams describe and evaluate three models that have been adopted in different societies to govern state-religion relationships: the theocracy, separation, and accommodation/cooperation models.27 In the theocracy model, the state and religion are interrelated and dependent on each other.28 A particular religion enjoys supremacy and the laws of the state are entirely reflective of the laws of that religion.29 As such, all individuals residing in such a state are compelled to follow the dictates of the religion adopted by the state. For Van Schalkwyk, this model is advantageous in countries where many citizens follow the religion adopted by the state.30 This enables the citizens to be governed in accordance with their religious beliefs, and to fully experience the ambit of their religious convictions.31 However, this model presents several challenges. It stifles individuals’ ability to follow the religious path that they choose and, in so doing, hinders 27 David Bilchitz & Alistair Williams ‘Religion and the public sphere: Towards a model that positively recognises diversity’ (2012) 28 South African Journal on Human Rights 146 at 148-158. 28 Ibid 148. 29 Ibid. 30 Cecile van Schalkwyk The constitutionality of religious observances in South African public schools (unpublished LLM thesis, Stellenbosch University, 2016) 1 at 17. 31 Ibid. Page | 17 the accommodation of diversity within such a society and the ability of the state to accord equal treatment to all people.32 It can also result in political instability, alienation and ostracisation among minority religious groups which may ultimately lead to a defiance of state laws by these groups and violence, persecution and alienation of such groups.33 As Van Schalkwyk accurately concludes, based on the constitutional rights to religious freedom, equality before the law and freedom from unfair discrimination on the basis of religion, a theocratic model is not workable within South Africa. It would hinder all the above constitutional rights unjustifiably.34 On the other hand, the separation model divides the state and religion into two separate entities.35 The laws of the state are independent of religious doctrine and the state is often perceived to be skeptical towards religion in its adoption of a secular stance, which broadly entails people ‘understanding the world by their own efforts’ rather than by ‘mysterious incalculable forces’ such as religion.36 In evaluating this model, Bilchitz and Williams suggest that the separation created between the state and religion, and the fact that a state does not prefer a particular religion, enable equitable treatment and freedom for people to follow and practise their diverse religions.37 However, the state’s complete independence from religion in all circumstances can also violate people’s exercise of religious freedoms and equitable treatment.38 It requires religious people to compartmentalise their identities into the private and public spheres, and to leave behind their religion when they enter the public sphere.39 However, the non-religious in such a society are not confronted with the same problem.40 For example, a strict separation between state and religion would render it problematic for a person to walk out into the town square wearing religious apparel, and might even prohibit such conduct.41 While the choice of the person to wear religious apparel falls within the confines of the private sphere, he/she entering into a public place with the religious apparel falls within the public 32 Bilchitz & Williams op cit note 27 at 148-149. 33 Van Schalkwyk op cit note 30 at 18. 34 Ibid 18-19. 35 Bilchitz & Williams op cit note 27 at 153. 36 Ibid; Maurice North ‘Religion in a Secular Society’ (Winter 1974/75) 9 European Judaism: A Journal for the New Europe 18 at 19. 37 Ibid 154. 38 Ibid 154-155. 39 Van Schalkwyk op cit note 30 at 23. 40 Ibid. 41 Bilchitz & Williams op cit note 27 at 155. Page | 18 sphere.42 Such a situation tampers with the person’s constitutional right to religious freedom and equality. In contrast to the theocracy and separation models, the accommodation and cooperation models treat the state and religion as two distinct entities, but adopt the view that it is necessary for the state to accommodate and cooperate with all religions equally in society.43 More specifically, the accommodation model is premised on the state accommodating the needs of various religions in the form of, inter alia, dietary and holiday exemptions to ensure that people can fully realise their right to religious freedom in the public sphere.44 The cooperation model entails a working relationship between the state and religion.45 The state plays an active role in funding church-related activities which include, inter alia, funding religious officials and education, and collecting religious contributions.46 While the accommodation and cooperation models enable people freely to practise their religions by accommodating and cooperating with all religious denominations equally; state apportionment of religious needs and resources will be unequal across religious institutions in the event of some religions being more resource and exemption-intensive than others.47 The apportionment of needs and resources are often skewed in favour of the dominant religion within a society, resulting in minority religions being alienated and coerced into conforming with the ideals of the dominant religion.48 Scholars differ on which model best fits the relationship between the South African state and religion. Van Schalkwyk maintains that a ‘positive recognition model’ best describes state- religion relations in South Africa.49 For Van Schalkwyk, the accommodation model implies the adoption of a passive approach to religious freedom by the state, which is not reflected in South Africa.50 The state plays a more active role in the realisation of religious freedom. The Constitution creates the framework for all people, regardless of their religion, to be treated equally by the state, and to protect religious institutions from unwarranted state interference and coercion.51 The state must create environments in which people feel comfortable to express their religious identities and provides for religious institutions of the religious community to 42 Ibid. 43 Ibid 156. 44 Ibid 156-157. 45 Van Schalkwyk op cit note 30 at 25. 46 Ibid; Bilchitz & Williams op cit note 27 at 156-157. 47 Ibid 157. 48 Ibid 158. 49 Van Schalkwyk op cit note 30 at 47. 50 Ibid. 51 Ibid 48. Page | 19 come together.52 Van Schalkwyk argues that the relationship between the South African state and religion is not one of complete separation. There has been never been ‘an intention to erect a wall of separation between the state and the church in democratic South Africa’.53 There is no establishment clause which creates a strict separation between religion and the state, and it is clear from multiple constitutional provisions that a culture of interaction exists.54 These constitutional provisions include the ability of religious observances to be conducted at state and state-aided institutions (subject to certain restrictions), the legislative recognition of marriages concluded in terms of religious law, and members of religious communities being able to practise their religion and form, join and maintain religious organs of society.55 These provisions, together with others, illustrate that religious institutions are not prohibited from expressing their religious views in the public sphere. However, a degree of separation is evident in that the South African state accords equal treatment to all religions and does not coerce people into following a particular religion.56 Georgia du Plessis’ view is like that of Van Schalkwyk. There is interaction between the South African state and religion, and the relationship is one of ‘mutual benefit’ where religious institutions are active participants in public life and are involved in the ways in which laws are made and applied.57 Like Van Schalkwyk, Du Plessis maintains that the relationship is not one of strict separation, partly due to the fact that there is no establishment clause.58 However, she goes further in saying that the relationship is not one of control of religion by the state nor control of the state by religion, as such an arrangement would be contrary to the Constitution.59 Annie Leatt maintains that South Africa is a secular state, in which the rule of law and the polity enjoy primacy over religion.60 She deems the South African state to be ‘overtly political and legal’, whose secular status is a direct response to the prioritisation of the sacred over the secular under the apartheid regime.61 Although Leatt regards South Africa as an explicitly secular state, she nonetheless shares similar sentiments to Van Schalkwyk and Du Plessis by 52 Ibid 47. 53 Ibid 43. 54 Ibid. 55 Ibid. 56 Ibid 24. 57 Georgia du Plessis ‘The constitutionality of the regulation of religion in South Africa – Untoward restrictions of the right to religious freedom?’ 136 South African Law Journal 131 at 143. 58 Ibid. 59 Ibid. 60 Annie Leatt ‘Faithfully Secular: Secularism and South African Political Life’ (2007) 20 Journal for the Study of Religion 29 at 29 & 35. 61 Ibid 36. Page | 20 acknowledging the role of religion in South Africa within the state and the importance that South Africans accord to religious beliefs and practices.62 Not only does the South African population attach value to religion, but so too do the state and law. This is evident in the Constitution’s provision for people to practise their religions and for religious observances to be conducted at state or state aided institutions, subject to limitations.63 Bilchitz and Williams, like the aforementioned scholars, are of the view that the Constitution places obligations on the state to have an active role in the right to religious freedom.64 An example of state participation is the state’s ability to enact ‘legislation recognising marriages concluded under any system of religious law or tradition adhered to by persons professing a particular religion’, provided that it is not inconsistent with any other constitutional provision.65 An example of an attempt to give a more expansive meaning to the accommodation model is the South African Charter of Religious Rights and Freedoms (the Charter), which a group of religious organisations sought to develop under s 234 of the Constitution.66 It was drafted by a team of academics, religious leaders and international legal experts in consultation with religious, human rights and media groups.67 It was first signed in 2010 and signatories, including religious bodies and human rights organisations, continue to be added to the Charter.68 The South African Council for the Protection and Promotion of Religious Rights and Freedoms was established to oversee the process of the Charter being formally enacted into South African law by Parliament.69 However, the Charter has not been enacted by Parliament and is, therefore, not legally binding.70 Despite this, it is an important indicator of this constituency’s view of the ‘freedoms, rights, responsibilities and relationship between the “State” of South Africa and her citizens concerning religious belief’.71 62 Ibid 37. 63 Ibid; Constitution of the Republic of South Africa, 1996 ss15(2) & 31(1)(a). 64 Bilchitz & Williams op cit note 27 at 163, 164, 167, 168 & 169. 65 Supra note 63 at s15(3). 66 Section 234 of the Constitution makes provision for the parliamentary enactment of charters formulated by civil organisations. 67 South African Council for Religious Rights and Freedoms ‘South African Charter of Religious Rights and Freedoms’ 1 at 4 available at https://www.strasbourgconsortium.org/content/blurb//files/South%20African%20Charter.pdf, accessed on 28 August 2019. 68 Ibid. 69 Ibid 5. 70 Ibid 5-6. 71 Ibid 2. https://www.strasbourgconsortium.org/content/blurb/files/South%20African%20Charter.pdf Page | 21 The Charter maintains that the South African state has adopted an ‘evolved approach’ to religion.72 While there is a ‘jurisdictional distinction between religion and the State’, a positive duty is placed on the state (in terms of the Constitution) to create an environment in which everyone is free to exercise their rights.73 One can deduct from this constitutional obligation that the state is expected to take action to create a positive and safe environment for the exercise of religious freedoms, rather than to leave those exercising their religious freedoms unprotected.74 Moreover, the state has to be engaged in the religious sector: ‘In order to level the playing field for everybody and ensure, amongst other things, that the principles of accommodation are present and effective. The only condition is that when the State does act, it must act impartially and not favour any religion or discriminate against any other.’75 In reviewing the accounts that scholars and the Charter (as signifiers of the relationship between the religious sector and civil society) have put forward regarding the nature of the relationship between the South African state and religion, it can be said that the relationship is mostly reflective of the accommodation model. While the state and religion are considered separate entities, the state is not a passive or neutral agent in respect to the religious sector. The state has a constitutional obligation to be equally supportive of the needs of all religions, and to play an active role in enabling members within religious institutions to realise their constitutional rights, by accommodating them within a non-hierarchical framework of equality and non-discrimination.76 The state has, to a large extent, created an environment for the exercise of religious freedoms in the public sphere. For example, there are prayer rooms in public shopping centres for Muslims to use at prayer times, the burka is allowed to be worn in public places, there is a choice of Halaal and Kosher foods at restaurants and grocery stores, and some schools allow their pupils to wear religious apparel and symbols which align with their religious beliefs regardless of the dominant religion practised at the school. The South African state-religion relationship is also somewhat reflective of the criticisms associated with the accommodation model. State apportionment of needs is sometimes skewed in favour of the dominant religion in the country, being Christianity. Certain national public holidays coincide with religious days of Christianity such as Good Friday, Easter Sunday and Christmas Day – enabling all Christians to observe their religious days without being subject 72 Ibid 26. 73 Ibid 27. 74 Ibid. 75 Ibid. 76 Supra note 63 at s15(1); S v Lawrence 1997 (4) SA 1176 (CC) para 146. Page | 22 to any disadvantages in any other sectors of their lives. Adherents of other faiths do not however, enjoy the same advantage. Their religious holidays are not considered public holidays. For them to observe religious holidays, they would have to incur disadvantages, such as taking days off school and work, unless the school they attend or company they work for caters for the observance of such holidays. Other examples include the swearing-in of key officials and the State President being accompanied by references to God, the preamble of the Constitution ending with the line ‘May God protect our people’, and the title of the National Anthem translates to ‘Lord Bless Africa’. In summation, the relationship between the South African state and religion is one in which there is neither a complete overlap nor total disconnect, but rather one in which religious freedoms and needs are by and large accommodated by the State. Religion and the law The relationship between religion and the law is wide-ranging and multidimensional. At the constitutional level, it provides for the right to religious freedom and its associated limitations, and the interplay between religious freedom and the constitutional rights to free association, equality, dignity, and protection of children. These rights are interpreted by courts, and the case law explains the application of the right and the extent to which the courts are willing to intervene in religious matters. The doctrine of entanglement is a theory which serves as a prelude to understanding the extent and circumstances of court intervention in religious matters. It suggests that courts should not involve themselves in internal matters relating to religion, which include doctrinal and governance-related issues.77 The reason for the adoption of the doctrine is thought to be that: ‘The closer courts get to personal and intimate spheres, the more they enter into the inner sanctum and thus interfere with our privacy and autonomy. The Constitution also not only leaves, but guarantees space to exercise our diverse cultures and religions and express freely our likes, dislikes and choices, as equals with human dignity.’78 Courts have explicitly referred to this doctrine when justifying their non-intervention in religious cases. By way of example, a High Court judgment, Taylor v Kurtstag NO and 77 Shaun de Freitas ‘Doctrinal Sanction and the Protection of the Rights of Religious Associations: Ecclesia De Lange v The Presiding Bishop of the Methodist Church of Southern Africa (726/13) [2014] ZASCA 151’ (2016) 19 Potchefstroom Electronic Law Journal 1 at 8. 78 De Lange v Methodist Church and Another 2016 (2) SA 1 (CC) para 80. Page | 23 Others,79 which involved an applicant bringing an application to set aside a practice which forms part of Jewish doctrine, succinctly summarises the progression of the court’s use of the doctrine from the inception of the Interim Constitution: ‘Prior to the Constitution, South African courts would not become entangled in religious doctrine ‘unless some proprietary or other legally recognised right was involved’ (Allen and Others NO v Gibbs and Others 1977 (3) SA 212 (SE) at 218A) In Ryland v Edros 1997 (2) SA 690 (C) at 703 (E), Farlam J (as he then was) expressed the view that, in view of s 14 of the Interim Constitution, the ‘doctrine of entanglement’ may have become part of South African law. This doctrine entails a reluctance of the courts to become involved in doctrinal disputes of a religious character.’80 ‘In South Africa, in [Mohamed and Another v Jassiem 1996 (1) SA 673 A], a case decided after the interim Constitution, but without reference to any constitutionally entrenched right, the Appellate Division, having noted the right of a religious organisation to excommunicate in order to 'safeguard what they regard as fundamental and critical tenets of their faith', eschewed any right to comment on the reasonableness and fairness of procedures integral to the Islamic faith.’81 In his minority judgment in Prince v President, Cape Law Society, and Others 2002 (2) SA 794 (CC) (2002 (3) BCLR 231), Ngcobo J said that, 'as a general matter, the Court should not be concerned with questions whether, as a matter of religious doctrine, a particular practice is central to the doctrine. Religion is a matter of faith and belief. The beliefs that believers hold sacred and thus central to their religious faith may strike non-believers as bizarre, illogical or irrational. Human beings may freely believe in what they cannot prove. Yet that their beliefs are bizarre, illogical or irrational to others, or are incapable of scientific proof, does not detract from the fact that these are religious beliefs for the purposes of enjoying the protection guaranteed by the right to freedom of religion. The believers should not be put to the proof of their beliefs or faith. For this reason it is undesirable for courts to enter into the debate whether a particular practice is central to a religion unless there is a genuine dispute as to the centrality of a practice.'82 De Lange v Methodist Church,83 a Constitutional Court decision, explicitly cautions against the Court involving itself in doctrinal matters and suggests that arbitration is the appropriate 79 2005 (1) SA 362 (W). 80 Ibid para 39. 81 Ibid para 40. 82 Ibid para 41. 83 De Lange supra note 78. https://0-jutastat-juta-co-za.innopac.wits.ac.za/nxt/foliolinks.asp?f=xhitlist&xhitlist_x=Advanced&xhitlist_vpc=first&xhitlist_xsl=querylink.xsl&xhitlist_sel=title;path;content-type;home-title&xhitlist_d=%7bsalr%7d&xhitlist_q=%5bfield%20folio-destination-name:%27022794%27%5d&xhitlist_md=target-id=0-0-0-10653 https://0-jutastat-juta-co-za.innopac.wits.ac.za/nxt/foliolinks.asp?f=xhitlist&xhitlist_x=Advanced&xhitlist_vpc=first&xhitlist_xsl=querylink.xsl&xhitlist_sel=title;path;content-type;home-title&xhitlist_d=%7bsalr%7d&xhitlist_q=%5bfield%20folio-destination-name:%27022794%27%5d&xhitlist_md=target-id=0-0-0-10653 Page | 24 forum to decide on matters ‘where the balance between dogma and tolerance should be struck’.84 Moseneke DCJ expressed that ‘it would not be appropriate for the Court to interfere at this stage especially considering that the line is close to the Church’s doctrines and values’.85 The doctrine has been subject to criticism. Ndivhuwo Moleya, for example, is of the view that the doctrine and the courts’ commitment to applying it have been unsuccessful and bear little relevance to our constitutional democratic society.86 While the rationale behind the doctrine is to uphold and respect the right to religious freedoms; religion is an issue embedded as a right within the Constitution and therefore, not only a matter under clerical consideration but also one which requires legal scrutiny.87 Within South Africa’s constitutional democracy, the judicial branch is regarded as the ‘guardian of the Constitution’.88 The judiciary cannot therefore, adequately ‘guard the Constitution’ if it has minimal involvement in religion.89 (1) Freedom of religion The Constitution protects religious freedom.90 Its preamble states that it was enacted to establish a society founded on fundamental human rights, which include freedom of religion, and closes with the line: ‘May God protect our people’. Section 15 guarantees ‘everyone the right to freedom of conscience, religion, thought, belief and opinion’.91 It provides for ‘religious observances to be conducted at state or state-aided institutions provided that [they] follow rules made by the appropriate public authorities; are conducted on an equitable basis; and attendance at them is free and voluntary’.92 It also allows for ‘legislation recognising marriages under any tradition or systems of religious, personal or family law to be concluded [provided it is] consistent with this section and the other provisions of the Constitution’.93 Section 31 provides that individuals who belong: ‘to a cultural, religious or linguistic community [cannot] be denied the right, with other members of that community to enjoy their culture, practice their religion and use their language; 84 Ibid para 43. 85 Ibid para 45. 86 Ndivhuwo Ishmel Moleya ‘Equality for all religions and cultures in the South African legal system’ available at http://www.derebus.org.za/equality-for-all-religions-and-cultures-in-the-south-african-legal-system/, accessed on 8 April 2019. 87 Ibid. 88 Ibid. 89 Ibid. 90 Supra note 63 at ss15 & 31. 91 Ibid s15(1). 92 Ibid s15(2). 93 Ibid s15(3). http://www.derebus.org.za/equality-for-all-religions-and-cultures-in-the-south-african-legal-system/ Page | 25 and to form, join and maintain cultural, religious and linguistic associations and other organs of civil society.’94 However, these rights (like all other rights) are subject to constitutional limitations. The rights in s 31 ‘may not be exercised in a manner inconsistent with any provision of the Bill of Rights’.95 Over and above the internal limitation clause in ss 15 and 31, they are also subject to the general limitation clause in s 36(1) which provides that: ‘the rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including – (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose.’96 Scholars and the judiciary have elaborated on the constitutional rights associated with religion, and the limitations placed on such rights. It is apparent that the scope of the right to religious freedom in the Constitution is wide-ranging. While religious freedom is entrenched and protected in the Bill of Rights; the right to conscience, thought, belief and opinion also forms part of the right to freedom of religion.97 Lourens du Plessis is of the opinion that the broad scope of the right provides for the protection of both adherents of any religious belief as well as those who do not adhere to any religious belief.98 The Constitutional Court in S v Lawrence explains that the right to freedom of religion is: ‘the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination.’99 94 Ibid s31(1). 95 Ibid s31(2). 96 Ibid s36(1). 97 Strydom supra note 12 para 9. 98 Du Plessis LM ‘Religion, law and the state in South Africa’ (1997) European Journal for Church and State Research 221 at 221. 99 Lawrence supra note 76 para 92. Page | 26 This was similarly put in Christian Education South Africa v Minister of Education,100 in which it was said that ‘freedom of religion includes the right to have a belief and express such belief’.101 Van Schalkwyk suggests that the right to religious freedom in the Constitution has both an internal and external component – the internal being the individual’s conscience and beliefs, and the external being the expression of the individual’s conscience and beliefs through publicly worshipping, practising and teaching one’s beliefs.102 The High Court has suggested that the right to religious freedom extends beyond the right to have a belief and express such belief. In Taylor v Kurtstag NO,103 the High Court held that the right to freedom of religion includes ‘religious institutions’ autonomy to set guidelines for the admission of [their] employees’ and to ‘discipline [their members] to enforce conformity and encourage conduct in harmony with religious precepts and teaching’.104 It also includes: ‘religious institutions’ power to promulgate and enforce internal religious laws of order, organisation, and orthodoxy; to train, select, and discipline religious officials; to establish and maintain institutions of worship, clarity and education; to acquire, use and dispose of property and literature used in worship and rituals; to communicate with co-believers and proselytes and many other affirmative acts in manifestation of the beliefs of the institution.’105 For van Schalkwyk, religious freedom includes the right to religious autonomy, and inherent in religious autonomy is the ability of religious denominations to ‘establish their own bodies, regulate their own doctrine and set guidelines for the admission of members to religious organisations’.106 Although the Constitution affords religious freedom a wide level of discretion and affirms the importance of its protection in South Africa’s democratic society; such freedom is not limitless. There is an internal limitation clause in s 31.107 As Christian Education v Minister of Education says, this clause ensures that the freedoms afforded to communities in practising and expressing their religious beliefs: 100 2000 (4) SA 757 (CC). 101 Ibid para 19. 102 Van Schalkwyk op cit note 30 at 52. 103 Taylor supra note 79. 104 Ibid para 37. 105 Ibid. 106 Van Schalkwyk op cit note 30 at 52-53. 107 Supra note 63 at s 31. Page | 27 ‘can’t be used to shield practices which offend the Bill of Rights. The reason for this is to prevent communities from prioritising constitutionally offensive group practices and immunising them from external legislative regulation or judicial control. This is important because abuse of such protection can lead to achieving exclusivity, privilege and domination. It is also necessary to prevent opposition of internal relationships within communities.’108 In addition to the specific limitation clause contained in s 31, the general limitation clause at s 36 is applicable when considering cases concerning religious freedom. Christian Education v Minister of Education says that the standard to be applied when determining whether the right to religious freedom should be limited in terms of s 36 requires a ‘nuanced’ and context- sensitive form of balancing:109 ‘The court must engage in a balancing exercise and arrive at a global judgement on proportionality and not adhere mechanically to a sequential check-list. The question is one of degree to be assessed in the concrete legislative and social setting of the measure, paying due regard to the means which are realistically available in our country at this stage, but without losing sight of the ultimate values to be protected. Each particular infringement of a right has different implications in an open and democratic society based on dignity, equality and freedom. There can accordingly be no absolute standard for determining reasonableness. So, limitations on rights are only acceptable if the court concludes that considering the nature and importance of the right and the extent to which [the right] is limited, such limitation is justified in relation to the purpose, importance and effect of the provision which results in this limitation, taking into account the availability of less restrictive means to achieve this purpose.’110 Van Schalkwyk notes that the general rule is that the more important the right that is being infringed, the more compelling the justification for the limitation must be.111 Where the right has been removed in its entirety, and where the limitation will impact on a vulnerable group in society, a persuasive justification is also required.112 In evaluating the relationship between the limitation and its purpose, a connection between limiting the right and the reason for limiting the right must be established for this requirement to be met.113 Whether less restrictive 108 Christian Education supra note 100 at para 26. 109 Ibid para 30. 110 Ibid para 31. 111 Van Schalkwyk op cit note 30 at 72-73. 112 Ibid 73. 113 Ibid. Page | 28 measures exist to achieve the purpose, requires analysing whether the purpose for limiting the right can still be achieved if less restrictive measures to limit the right were used.114 (2) Equality The right to equality bears relevance to the religious sector in two ways: (1) it serves as a protective mechanism for individuals and communities who are subject to unfair discrimination based on their religion, and against the State engaging in unequal recognition and treatment of religions and (2) it allows protection where the exercise of religious freedoms has been shown to be inconsistent with the right to equality.115 (a) The Constitution Equality is both a value and right in the Constitution.116 The Constitution was enacted as a means to rectify past injustices and to establish a society based on democratic values and social justice.117 At the core of democratic values, social justice and the rectification of past injustices is the attainment of equality.118 Equality is defined as ‘the full and equal enjoyment of all rights and freedoms’.119 Neither the state nor any person may ‘unfairly discriminate directly or indirectly against anyone’ on grounds including but not limited to race, gender, sexual orientation, religion, conscience, belief and culture.120 The Constitution goes further to say that ‘to promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken’.121 (b) The Equality Act The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (‘The Equality Act’) gives effect to the equality clause in the Constitution.122 It provides mechanisms to combat unfair discrimination, measures to promote the position of people who have been subject to unfair discrimination and remedies for victims of unfair discrimination.123 It details the nature of proceedings, powers and functions, and appeal and review procedures when an 114 Ibid 74. 115 Bilchitz & Williams op cit note 27 at 170. 116 Supra note 63 at ss7(1) & s9. 117 Ibid (Preamble). 118 Ibid. 119 Ibid s9(2). 120 Ibid s9(3). 121 Ibid s 9(2). 122 Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 s 2(b). 123 Ibid s 2(c)(f) & (g). Page | 29 equality matter is brought before the court.124 The Equality Act applies to all cases where a constitutional remedy is not required. If section 9 is used, then the right to freedom of religion will factor into the s 36 enquiry. If the Equality Act applies, then it will be part of the determination of whether the discrimination is fair or unfair in terms of s 14 of the Act.125 (c) Religious freedom versus equality The relationship between freedom of religion and equality has been an area of contentious debate in scholarship. This debate comprises two parts: the relationship between religious freedom and equality and the role that courts should play in disputes regarding religion and equality. The debate covers a spectrum of viewpoints, with some scholars on one or the other side of the spectrum and others in the middle. In summation, David Bilchitz is on the left of the spectrum and maintains the view that the state should intervene in any matter concerning unfair discrimination within the religious sector. Patrick Lenta is in the middle and believes that state intervention should occur where the nature of the discriminatory practice inflicts serious physical harms on people, is prejudicial to children and/or jeopardises people’s safety. The state should also intervene where a discriminatory practice falls within the public sector and/or is not part of the doctrinal core of a religion. Stuart Woolman is on the right and is of the view that there should be minimal state intervention in matters relating to the religious sector. However, a declaratory order should be granted by courts in most cases of unfair discrimination and, where suitable, the party perpetuating the act of discrimination should be required to pay damages. This debate highlights the complex, nuanced and intractable nature of the relationship. It also assists in eliciting the circumstances under which the state can intervene in religious matters, creates a better understanding of the benefits and disadvantages of court involvement in these cases, and provides a meaningful lens through which to consider issues surrounding religious malpractice. (d) Scholarly opinions on religious freedom versus equality Bilchitz adopts a contextual approach, which he suggests tends to prioritise equality in South Africa. He believes that history and context should be given primacy when considering the relationship between religious freedoms and equality.126 At the heart of South Africa’s history is apartheid, a regime where unfair discrimination and prejudicial treatment was directed at 124 Ibid ss 19-21 & s23. 125 Strydom supra note 12 para 8. 126 David Bilchitz ‘Why Courts Should not Sanction Unfair Discrimination in the Private Sphere: A Reply’ (2012) 28 South African Journal on Human Rights 296 at 301. Page | 30 people primarily on the grounds of their race (which amounts to an infringement of equality).127 Religion was also used as a means of control by the state.128 The state’s alignment with a particular version of Christianity dictated, amongst others, the education system, public holidays and modes of entertainment.129 As such, the apartheid state suppressed religious freedoms for religious groups other than Christianity. While Bilchitz acknowledges that religious freedom was curtailed within a number of religious groups under apartheid, he holds the view that it is ‘wholly justifiable to recognise a strong presumption in favour of equality and against discrimination’ because equality forms the foundation of the present South African constitutional order.130 The Constitution was drafted with an express intent to achieve social justice and substantive equality. The implementation of the transformation that the Constitution seeks to achieve entails ‘rejecting all forms of treatment that arbitrarily discriminate against individuals, particularly where this is based on a fundamental element of individual identity’.131 Woolman emphasises religious freedom and the autonomy of religious institutions.132 He believes that Bilchitz is ‘fixated with equality’ which, in turn, undermines other constitutional rights and hinders the operations and functioning of religious institutions.133 For Woolman, religious practices, which are ‘designed to further the legitimate constitutional ends of religious associations, and do not have as their aim the denial of access to essential goods’, will survive constitutional scrutiny.134 Granting a religious institution the right to determine its rules creates trust, loyalty and social cohesion among its members and, in turn, enables vulnerable members of society to benefit from the support that it provides.135 The importance, impact and meaning that Woolman accords to religious institutions is evident in the example he gives of Pope Francis dismissing an organist in the Catholic Church who is a homosexual.136 Woolman argues that such an act is constitutionally legitimate, as the organist’s sexual orientation is inconsistent with the Catholic Church’s doctrine.137 Also, the Catholic Church is ‘a literal and 127 David Bilchitz ‘Should Religious Associations be Allowed to Discriminate?’ (2011) 27 South African Journal on Human Rights 219 at 225. 128 Bilchitz op cit note 126 at 302. 129 Bilchitz & de Freitas op cit note 1. 130 Bilchitz op cit note 127 at 227. 131 Ibid 225; Bilchitz op cit note 126 at 300. 132 Stuart Woolman ‘Seek Justice Elsewhere: An Egalitarian Pluralist’s Reply to David Bilchitz’ (2012) 28 South African Journal on Human Rights 273 at 278. 133 Ibid 278. 134 Stuart Woolman ‘On the Fragility of Associational Life: A Constitutive Liberal’s Response to Patrick Lenta’ (2009) 25 South African Journal on Human Rights 280 at 303. 135 Ibid 303-304. 136 Ibid 304. 137 Ibid. Page | 31 figurative home to billions of people’, the source of meaning for many people and has created networks with other institutions which are beneficial for all members of society.138 As such, Woolman’s justification is illustrative of religious freedom taking preference over equality. Lenta assumes a more balanced stance to the religious freedom-equality relationship. Like Woolman, he believes that Bilchitz accords too much weight to equality.139 This results in Bilchitz’s inability to assess the importance of religious freedom and the constitutional need to protect such an interest.140 Woolman, on the other hand, gives religious institutions too much freedom in developing and practising their doctrines.141 This degree of latitude opens the floodgates for religious institutions to engage in practices which are discriminatory and far removed from the ‘doctrinal core’ of the religion.142 For Lenta, when considering the relationship between freedom of religion and equality, one ought to engage in a balancing exercise of the rights: weighing up the interests that each right protects and the importance of each interest in society.143 The prioritisation of equality should prevail where unfair discrimination has occurred in the public sector and/or where the discriminatory act is not part of the ‘doctrinal core’ of the religion.144 Conversely, religious freedom should be prioritised when unfair discrimination occurs in the private sector and/or where the nature of the discriminatory act falls within the ambit of the ‘doctrinal core’ of the religion.145 (e) Scholarly opinions on role of courts in unfair discrimination cases Another important aspect of Bilchitz, Woolman and Lenta’s views is their differing approaches to the involvement of courts in disputes relating to unfair discrimination within the religious sphere. In line with his emphasis on equality, Bilchitz believes that courts have an active role to play in combatting instances of unfair discrimination within the religious sector. They should 138 Ibid. 139 Patrick Lenta ‘The Rights of Religious Associations to Discriminate’ (2012) 28 South African Journal on Human Rights 231 at 256-257. 140 Ibid. 141 Ibid 257. 142 Ibid. The ‘doctrinal core’ of a religion are the key tenets of a religion. For example, part of the ‘doctrinal core’ of the Catholic religion would be prohibitions on the use of contraception and homosexuality. 143 Patrick Lenta ‘Taking Diversity Seriously: Religious Associations and Work-related Discrimination’ (2009) 126 South African Journal on Human Rights 827 at 836; Lenta op cit note 139 at 240. 144 Ibid 257. An example of an act of unfair discrimination in the public sector and not part of the ‘doctrinal core’ of the religion is an Anglican school that does not allow Muslim pupils to wear burkas. 145 Lenta op cit note 139 at 257. An example of an act of unfair discrimination in the private sector and part of the ‘doctrinal core’ of the religion is a Catholic Church which prohibits a divorced woman from getting remarried in the Catholic Church. Page | 32 denounce discriminatory conduct by religious institutions and provide remedies against it.146 This would entail declaring such conduct unconstitutional and imposing suitable remedies on the relevant religious institutions to prevent the recurrence of such conduct.147 For Bilchitz, this remedial approach enables religious institutions to uphold the foundational principles of equality and social cooperation in South Africa’s constitutional democracy and the tenets of diversity which involve a respect for and inclusion of different identities on an equitable basis.148 At the core of Woolman’s ‘remedial-equilibrium’ approach to the relationship between religious freedom and equality is the notion that ‘rights and remedies are inextricably intertwined’, which means that the nature of the right informs the remedy granted.149 For Woolman, a finding of unfair discrimination (i.e. a declaratory order) is sufficient in such cases and need not translate into a remedy.150 To illustrate this point, he gives the example of an Orthodox Shul, where women sit upstairs and men downstairs. The finding of a court of unfair discrimination in such a situation is sufficient in Woolman’s opinion.151 The court imposing a remedy to show its disapproval with the unfair discrimination dealt to Jewish women would amount to the court ‘interfering with the well-established distribution of goods within that community’ and ‘dictating rules that a particular religious community continues to hold sacred’.152 Not only does Woolman believe that courts’ involvement interferes with the dictates of the religious community at hand, but he is skeptical about the courts’ involvement in such cases because allowing them to ‘determine whether religious institutions meet some indeterminate and necessarily ad hoc notion of equality’ results in a ‘politicisation’ of issues relating to religious freedoms and equality.153 Accordingly, Woolman maintains that people ought to ‘seek justice elsewhere’ and not in the courts, in most cases of such a nature.154 Lenta argues that courts’ involvement in cases of unfair discrimination is dependent on the nature of the harm caused by the discrimination. Religious practices which inflict serious harms on people, are prejudicial towards children, and which compromise people’s physical safety 146 Bilchitz op cit note 127 at 228-229. 147 Ibid 229. 148 Ibid 228-229. 149 Woolman op cit note 132 at 291-292. 150 Ibid 292. 151 Ibid 293. 152 Ibid. 153 Ibid 277. 154 Ibid 283. Page | 33 require the imposition of a court remedy.155 On the contrary, less serious harms which are not physical and child-related in nature should survive constitutional scrutiny and should not require court involvement.156 Moreover, ‘the protection of diversity’ requires that acts which fall within the private sector and which are proximal to the ‘doctrinal core’ of the religion at hand should also not be subject to a remedial approach by the courts.157 Bilchitz disagrees with Lenta’s labelling of physical harms as more serious harms.158 He believes that psychological harms are in some instances more serious than physical harms.159 For example, some forms of humiliating punishments are more harmful than corporal punishment is for children.160 Both Bilchitz and Woolman disagree with Lenta’s definitive categorisation of harms within the private and public sectors.161 While harms based on unfair discrimination in religion fall within the private sector, they frequently have a major impact on the public sector.162 They affect the way vulnerable members of a society are treated and can lead to the approval of violence and repression.163 For example, in Uganda, church groups have strongly influenced the homophobic attitudes of many its people.164 In such instances, courts should make a declaratory order that such harms are inconsistent with the Constitution and legislation and, where necessary, require the actor inflicting the harm to pay damages to the aggrieved party.165 (f) Case law relating to religious freedom versus equality In addition to various scholarly opinions on the relationship between religious freedom and equality, and the extent to which courts should intervene; case law also deals with religious doctrine conflicting with the right to equality, more specifically on the basis of sexual orientation. Two cases involve religious institutions’ refusal to allow religious leaders to practise because of their homosexuality, and the third concerns the termination of a contract of a member working at a religious institution, based on homosexuality. Collectively, these cases reveal the reliance that courts place on applicants’ compliance with informal regulations and the need for applicants to first exhaust all informal processes before approaching the courts. They also 155 Lenta op cit note 139 at 251. 156 Ibid. 157 Ibid 257; Lenta op cit note 143 at 833. 158 Bilchitz op cit note 126 at 306. 159 Ibid. 160 Ibid. 161 Ibid 307; Woolman op cit note 132 at 273. 162 Bilchitz op cit note 126 at 307. 163 Ibid. 164 Ibid. 165 Ibid. Page | 34 illustrate that the degree to which the court is willing to intervene in cases of a religious nature is case-specific and subject to the judge’s interpretation. Court intervention is generally acceptable in instances where the effect of the unfair discrimination outweighs the prioritisation of religious freedoms and where the natu