By Ndivhuwo Ishmel Moleya
South Africa (SA) is a religious and culturally diverse country where all cultural, religious and other belief systems are accorded equal constitutional protection. However, it can hardly be gainsaid that, in practice, certain religious beliefs and practices enjoy more protection and privileges than others. Against this backdrop, this article questions the relevance of the doctrine of entanglement in our religious and cultural pluralistic society. Loosely defined, the doctrine entails that the courts should refrain from adjudicating internal disputes of religious associations (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’ PER 2016 (19) at 9). This article argues that the doctrine does not neatly fit in our pluralistic society and that it may engender veiled discrimination against cultural practices, which are not considered ‘religious’ by the courts.
Equal constitutional protection to religious and cultural practices
The Constitution accords both culture and religion equal recognition and protection.
Section 9(3) of the Constitution prohibits the state from unfairly discriminating against anyone on one or more grounds, including, among others, ‘religion, conscience, belief, [and] culture’ (my italics).
Section 15(1) bestows everyone the right to ‘freedom of conscience, religion, thought, belief and opinion’ (my italics) but excludes culture.
Section 30 confers every person the right to ‘use the language and to participate in the cultural life of their choice’ but only to the extent consistent with the Bill of Rights. The provision excludes religion.
Section 31 entitles persons belonging to a cultural, religious or linguistic community –
‘(a) to enjoy their culture, practise their religion and use their language; and
(b) to form, join and maintain cultural, religious and linguistic associations and other organs of civil society’ (my italics).
Culture also enjoys special constitutional recognition and protection by virtue of ss 211 and 212 and 181(1)(c) of the Constitution. It is clear from the foregoing that neither culture, nor religion enjoy elevated constitutional protection. The mere fact that culture is not included in s 15(1) does not, in itself, point to its insignificance. If that were so, the same would be said of the exclusion of religion under s 30.
The doctrine of entanglement: An anachronism unbefitting to a democratic SA?
The doctrine of entanglement was defined as the ‘reluctance of the courts to become involved in doctrinal disputes of a religious character’ (Taylor v Kurtstag NO and Others 2005 (1) SA 362 (W) at para 39). It was observed in Singh v Ramparsad and Others 2007 (3) SA 445 (D) at para 50 that: ‘Our courts have tried assiduously not to get entangled in doctrinal issues and it can be safely accepted that “the doctrine of non-entanglement” is part of our law.’ In De Lange v Presiding Bishop, Methodist Church of Southern Africa and Another 2015 (1) SA 106 (SCA) at para 39 the SCA pointed out that: ‘A court should only become involved in a dispute [involving religious doctrine] where it is strictly necessary for it to do so. Even then it should refrain from determining doctrinal issues in order to avoid entanglement.’ It reasoned that ‘a proper respect for freedom of religion precludes our courts from pronouncing on matters of religious doctrine’. The difficulty that comes with adjudicating religious disputes was highlighted in Prince v President, Cape Law Society, and Others 2002 (2) SA 794 (CC) at para 42 where Ngcobo J (as he then was) observed that: ‘Human beings may freely believe in what they cannot prove’ and that although ‘their beliefs are bizarre, illogical or irrational to others, or are incapable of scientific proof, [this] 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’ and they ‘should not be put to the proof of their beliefs or faith.’ The doctrine also draws from the widely accepted principle that a state (and its organs) should be a-religious to ensure religious freedom and equality.
However, the doctrine is premised on the understanding that there is a clear divide between secular and ecclesiastical matters. Thus, the difficulty in applying the doctrine lies in defining that which is purely ‘religious’. In SA, religion is also a constitutional matter. The right is guaranteed by the Constitution itself. Religious practice is, therefore, not a purely ecclesiastical issue from which our courts may be excluded. As the guardians of the Constitution, our courts cannot effectively discharge their mandate if they remain strictly faithful to the doctrine of entanglement. Moreover, in SA, some cultural practices have a religious significance to those who practise them. But the courts may not accord them the same measure of adjudicative restraint – as they would to mainstream religious practices – because they do not fit into the orthodox definition of religion. This misconceived ‘hierarchical relationship between religion and culture’ was acknowledged by Amoah and Bennett when they stated that ‘[t]he same deference [by the courts to religious disputes] is not to be shown to systems of culture’ (Jewel Amoah and Tom Bennett, ‘The freedoms of religion and culture under the South African Constitution: Do traditional African religions enjoy equal treatment?’ (2008) 8 AHRLJ 357 at 359).
Similarly, Professor Pierre De Vos makes serious charges against the approach of our courts to religious disputes. He questions why certain religious beliefs and practices ‘so often get a free pass from society and the courts’ and why they should not ‘be evaluated in the same manner that all other beliefs and practices are evaluated’ (www.dailymaverick.co.za, accessed 6-6-2018). These are serious questions that need to be interrogated.
The Constitution and Bill of Rights or the doctrine of entanglement: Which is the yardstick?
The application of the doctrine raises the question of the appropriate standard for adjudicating disputes emanating from both religious and cultural practices. Applying the doctrine presupposes that certain religious practices are adjudged separately (in line with the doctrine) and in some way shielded from constitutional scrutiny, while all cultural practices are expected to be constitutionally compliant. But such hierarchical treatment lacks a constitutional basis and should not be countenanced, especially by the judiciary. As we have seen, the Constitution does not accord religion special protection. If anything, the significance of culture in our democratic society is buttressed by special provisions of the Constitution. Section 31(2) of the Constitution subjects the rights of both religious and cultural adherents to practice in fellowship in terms of s 31 to the same requirement of consistency with the Bill of Rights. Therefore a principle, which prefers or elevates religion, as does the doctrine of entanglement seems to do, negates the spirit and letter of the Constitution. Indeed, Mokgoro points out that ‘[d]ivergent cultural norms have been elevated from subordination and obscurity to a status of equality with the previously hegemonic western cultural norms’ (Yvonne Mokgoro ‘The Protection of Cultural Identity in the Constitution and the Creation of National Unity in South Africa: A Contradiction in Terms’ (1999) 52 SMU L. Rev. 1549 at 1556). She observed that these constitutional provisions make it clear ‘that South Africa is now bound to respect the cultural tradition of those of its people who choose to live according to a way of life or culture of their choice, subject, of course, to the standards set in the Constitution’ (Mokgoro (op cit) at 1557). The Constitution and the Bill of Rights should, therefore, be the judicial entry to and exit from religious disputes of whatever nature. It is the appropriate yardstick against which all religious and cultural practices should be tested, not the doctrine of entanglement. Religious doctrine ‘cannot influence what the Constitution dictates’ nor should it be used as judicial guide to religious disputes (National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1999 (1) SA 6 (CC), at para 38).
The doctrine of entanglement: A veiled judicial protection of mainstream religious practices?
It may be that the doctrine of entanglement is necessary for augmenting religious freedom, but then, its application may have the effect of discriminating against cultural practices, which are also religious in nature. The doctrine applies to orthodox religious practices. It does not necessarily take into account the deep and broad meaning that the term ‘culture’ connotes. As Mokgoro points out, although culture broadly refers ‘to a way of life or a system of socialising’, it also includes religious experience. Most African cultural practices are religious in nature. They, therefore, serve the same purpose to their adherents as religion does to believers. As Kofi would put it, almost ‘[e]very aspect of life in traditional African society had a religious connotation.’ (Kofi Quashigah ‘Religion and the republican state in Africa: The need for a distanced relationship’ (2014) 14 AHRLJ 78 at 84). Thus, although the practices are usually branded cultural, they are also religious as they involve the spiritual relationship of some sort between the performer and a certain deity. It is to these cultural practices that the term ‘African Traditional Religion’ refers. It is lived, practised and is believed to have been handed down from generation to generation (Nokuzola Mndende ‘Law and religion in South Africa: An African traditional perspective’ (2013) 54 Dutch Reformed Theological Journal 74 (http://ngtt.journals.ac.za, accessed 8-3-2018)).
It was accordingly pointed out in Minister of Home Affairs and Another v Fourie and Another (Doctors for Lifer Internation and Others, Amici Curiae); Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Others 2006 (1) SA 524 (CC) at para 90, that: ‘Religion is not just a question of belief or doctrine. It is part of a people’s temper and culture and … way of life.’ This was again observed in MEC for Education KwaZulu-Natal, and Others v Pillay 2008 (1) SA 474 (CC) at para 47, that religion and culture may overlap as ‘religious practices are frequently informed not only by faith but also by custom … . Therefore, while it is possible for a belief or practice to be purely religious or purely cultural, it is equally possible for it to be both religious and cultural.’
Once it is accepted that there is a religious ingredient in some cultural practices, it follows that the same measure of reluctance or deference that our courts exercise in respect of disputes involving orthodox religion should, as a matter of principle be exercised when resolving disputes involving cultural practices. That the application of the doctrine favours mainstream religious practices may be implied from the Prince case. Although the case dealt with a marginalised religion, indeed worthy of heightened constitutional protection, the doctrine was not invoked by the court. Yet, in the Minister of Home Affairs case (op cit), the court opted to accommodate same-sex marriages without interfering with the traditional institution of a marriage which, it is accepted, has a religious foundation. Whatever reason may have influenced the court, the approach it adopted displays a certain measure of deference to mainstream religious practices.
In my view, applying the doctrine presupposes that religion enjoys a more special space in the courtroom than culture and other forms of belief systems. The effect is that, unlike cultural praticices, certain religious practices may be shielded from constitutional permeation. We have seen cultural practices being imbued with constitutional ethos in cases like Bhe and Others v Magistrate, Khayelitsha, and Others (Commission for Gender Equality as Amicus Curiae); Shibi v Sithole and Others; South African Human Rights Commission and Another v President of the Republic of South Africa and Another 2005 (1) SA 580 (CC), Shilubana and Others v Nwamitwa 2009 (2) SA 66 (CC) and MM v MN and Another 2013 (4) SA 415 (CC). There is, therefore, no principled reason for our courts not to utilise the same constitutional standards when adjudicating religious disputes of whatever nature.
Conclusion
A pluralistic country, which is both religious and culturally diverse like ours, can only flourish where all religions, cultures and other systems of belief are accorded an equal measure of protection and recognition by all organs of state, in particular the judiciary. Exercising deference when adjudicating religious disputes, but not in respect of cultural practices and other belief systems is a form of judicial discrimination. The practice perpetuates the inferior treatment that these practices and belief systems endured before they were afforded constitutional protection. I agree with Prof De Vos that our courts should ‘move away from their bias in favour of religious beliefs and practices’ and adopt the same adjudicative approach to all religious, cultural practices and other belief systems. Such an approach would undoubtedly pay homage to s 9(3) and s 31(2) of the Constitution.
Ndivhuwo Isheml Moleya LLB (Univen) is a candidate attorney at Adams & Adams in Pretoria.
This article was first published in De Rebus in 2018 (July) DR 30.
