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South Africa (SA) is a diverse country which embraces various religious communities, including traditional African religions, Jews, Christians, Muslims, Hindus and others. It follows that legal practitioners and the law makers in SA are members of different and various religions.
The right to freedom of religion and expression is entrenched in our South African Constitution. In this regard, s 15(1) reads that ‘everyone has the right to freedom of conscience, religion, thought, belief and opinion.’ Not all countries in the world offer this right to freedom of religion. Iran, for instance, is an Islamic republic where the constitution mandates that the official religion is Islam.
On 26 January 2024, the South African government made history by obtaining a ruling by the International Court of Justice (ICJ) against Israel in terms of the Genocide Convention following Israel’s military retaliation against an attack on civilians by Hamas in Israel on 7 October 2023. ‘The ICJ ruled that Israel’s actions in Gaza are plausibly genocidal and indicated provisional measures on that basis’ (South African Government News Agency ‘Pandor reiterates stance on Israel’ (www.sanews.gov.za, accessed 1-7-2024)).
This legal action by the South African government attracted wide local and international reactions, as the Gaza-conflict has many layers, including historic, political, economic, legal and religious. The ICJ court case, in particular, polarised religious groups, as many evangelical Christians and Jews disagreed with this action. This case changed international law, SA’s foreign relations and sets a precedent, which future law students will study. It also sets an example of how the law and religious views can conflict.
The purpose of this article is not to discuss the religious conflict relating to the ICJ case, as most practising legal practitioners do not have time or interest to consider legal actions taken on government levels. This article aims to reflect on how legal cases involving religious aspects can stir conflict in individual legal practitioners and law firms and to give practical tips. For example, if you, or your law firm, are instructed to represent clients involved in matters that are contrary to your religious beliefs.
A landmark Constitutional Court case which illustrates this conflict was the matter by the Women’s Legal Centre Trust v President of the Republic of South Africa and Others 2022 (5) SA 323 (CC) in 2022. Prior to this ruling, Muslim marriages in terms of Sharia law, which were not also civil marriages, did not provide the same legal rights, protections and benefits for Muslim women and children of such marriages. The conflict was resolved on the basis that Muslim marriages are now legally recognised by our law and some sections of the Divorce Act 70 of 1979 and the Marriage Act 25 of 1961 were declared unconstitutional.
As first year law students were taught that the law represents the rules the people of a country must follow in order to regulate society. Religions differ from the law on the basis that religion is a belief system based on faith in a supernatural power. As most lawyers are considered to be logical thinkers, some people unfairly generalise that it may be more difficult for lawyers to be or become religious or spiritual, as they generally require physical evidence to make their cases. As it is part of the human condition, every lawyer has their own beliefs relating to spirituality and religion, whether they share it or not.
Our Constitution, including the Bill of Rights, is the supreme law of SA. Following the emphasis on the protection of human rights, some jurists may naturally lean towards supporting humanism as an approach to life without also following a religion. Humanists often believe that you can live a good life without a traditional religion or teachings from a holy book or master. Many religions also align with humanism on some level, which means that most religious jurists have no conflict being religious and following the law.
In the 1960s, the global doctrine ‘spiritual but not religious’ (SBNR) developed in the United States (US) referring to persons who are unaffiliated with any religion but identify as being spiritual in some way. Persons who further regard respect and accept all types of religions are called omnists. Omnists generally believe that every religion encompasses different aspects of a shared truth.
Although the majority of SA associate with Christianity as religion, most religions in the world are present and currently practised peacefully in SA. Since 1994, in favour of reconciliation, and anchored by our Bill of Rights, South African culture generally is tolerant and embraces diversity.
However, there are certainly close connections between the law, our cultures and religions. In this regard, RB Mqeke, author of Customary Law and the New Millennium (Lovedale Press 2003), for instance, takes the view that ‘there is no separation between culture, law and religion’ in African legal systems, as ‘customary law is reputed as being the law that was handed down from … the ancestors’ (Pieter Coertzen ‘Constitution, Charter and religions in South Africa’ (2014) 14 AHRLJ 126).
Most South African legal practitioners are not primarily involved in creating, reviewing or challenging the law, as legal practitioners are creatures of mandate. This means legal practitioners should generally only follow instructions from their clients. Only a few lawyers get cases and sponsors to be ‘activists for justice’ or change the law! Most legal practitioners only have capacity and instructions to work on their own practices and apply the law as it is.
In practice, in my view, legal practitioners are rarely involved in the developments of the ‘macro’ laws of our country due to the separation of powers between the judiciary, executive and legislative authorities provided for in our Constitution. Legislation which sets policies and aims to execute the objectives of our Constitution are mostly championed by politicians (motivated by different ideologies) and processedby Parliament. Legal processes take very long to change the law.
In my experience, to uphold an image of a non-emotional charged workspace, some colleagues may regard it irrelevant, or even unprofessional, for legal practitioners to share or display their own or any specific religious orientation. However, in my opinion, this is an unnecessary limitation of expression, and some clients may on the other hand be attracted to certain legal practices because of the religious or political associations they promote. An example is some black firms catering for traditional black clients based on their intricate knowledge of African customary law practices as a decision to complement their business models.
In addition to civil courts, some religious groups may also depend on religious tribunals or courts in the event of conflicts between members of the same religion. An example is the Court of Jewish Law based in Johannesburg, which can assist Jewish members in areas of family law, divorce or financial disputes, parallel with civil procedures. Traditional leaders and authorities observing customary law (following traditional African religions) are further recognised and governed by chapter 12 of our Constitution.
According to Christa Rautenbach, author of Introduction to Legal Pluralism in South Africa (Durban: LexisNexis 2010), the phenomenon where ‘members of cultural and religious communities … observe certain aspects of their own religious laws which are generally not recognised by South African law’, is referred to as ‘deep legal pluralism’ (Christa Rautenbach ‘Deep Legal Pluralism in South Africa: Judicial Accommodation of Non-State Law’ (2010) 60 Journal of Legal Pluralism and Unofficial Law 143).
Lawyers are progressive learners. Legal pluralism compels us to remain curious and continue to learn about the different cultures and religions, global developments and the law. The question arises what action to take if a conflict ensues between your religion and the law.
Below are my five tips on how to try balance the conflict between religion and the law if you are a practising legal practitioner:
Be mindful of diversity and educate yourself on different preferences of certain religious groups to be informed and comfortable. Do not judge others by their race, language or appearance. First wait for people to share their beliefs and boundaries, if relevant, for instance about food preferences, before you jump to conclusions based on language preference or outward presentations. It is also acceptable to inquire about preferences and to indicate your own. Embrace the fact and expect that everyone does not share your beliefs or the same morals.
To legally respect all religions, does not mean that you have to personally believe that all religions are correct and spiritually equal. You are human and on your own journey exploring development of your own spiritual and religious levels. The big questions of life relating to ‘where did we all come from’, ‘why are we here’ and ‘what happens after death?’ visit every person and you are allowed to make up your own mind.
However, when publicly expressing your religious views, keep in mind that your conduct as a legal representative may set an example for others who may not know how to navigate conflicts or respect the law. Legal practitioners who make themselves guilty of hate speech, violent protests or gross discrimination may bring the profession into disrepute, alienate clients and expect complaints.
If your law firm has members of different religions, for instance, there may be behaviours of members of certain beliefs that you must learn to tolerate and respect. Examples relate to members demanding to honour prayer times, religious holidays or diet restrictions based on religious beliefs. If religious activities or demands start to interfere with work obligations, or offend others, it may in some instances be necessary to negotiate and set boundaries to keep the workplace comfortable and emotionally safe for all members.
Although as legal practitioners we have to respect and apply the law, it does not mean that we have to believe that the law is right. Examples of laws, which were clearly, wrong are the apartheid laws and Hitler’s anti-Jewish laws.
However, the purpose of the law is ultimately not to protect the morals of all people, but to order society. The fact that we have a Constitution protecting democratic rights, does not mean that our Parliament is not able to pass laws which implementation may unfairly limit rights of certain religious individuals and groups.
Legal practitioners should help guide and represent their religious groups, participate in processes available and give feedback on draft laws as they become open for discussion.
Our Constitution also expressly provides for the protection of freedom of association. It is rare that religion is exercised in isolation. This is evident by the numerous church buildings, mosques, synagogues and other holy gathering places, which are in use by organised groups. Although religion is a personal choice and protected as a human right, due to the potential of conflict, and for support, it is best to join a group sharing your religious views. When weighing human rights in case of conflicts, our Constitution is likely to favour the rights of groups above individual rights to serve the broader society. When joining an organised group, accept that such groups have rights to also limit some rights of members who join voluntarily.
Throughout history, and even now, people are prepared to be martyred, persecuted or die for their religious beliefs, despite conflicts with the law. This article merely aims to create some awareness of conflicts, which exist or could continue to rise.
Due to the close connection between religions, cultures and the law in SA, legal practitioners will benefit from learning strategies to navigate their way in the deep sea of legal pluralism.
To look forward to the next 30 years of our democracy, it will benefit legal practitioners to learn more about the needs and preferences of their target markets and to make strategic decisions relating to the positioning of their values, internal cultures and policies.
On an individual level, if a religious objection arises, which could interfere or prohibit you from representing a client or advocate a matter, you should allow yourself to follow your conscience and exercise your own freedoms.
It is recommended that legal practitioners are involved and represented in all religious groups and that all legal practitioners do their part to help SA grow as democracy and legal state to help keep order in our diverse society.
Emmie de Kock BLC LLB (cum laude) (UP) SA Business Coach is a Business Coach and legal practitioner at LawyerFirst – Coaching Lawyers in George.
This article was first published in De Rebus in 2024 (Aug) DR 41.
