The Gauteng Court ruled last month that schools were no longer allowed to favour one religion over another. Advocate Muhammad Zakaria Suleman explained this judgement at the invitation of the Women’s Cultural Group.
Many in the Christian community were worried when the Organisasie vir Godsdienste-Onderrig en Demokrasie (“OGOD”) challenged the practices of six public schools for promoting a Christian ethos that it claimed was unconstitutional.
There were three issues in the judgment. The first was whether a public school can hold itself out as a Christian school, and if so, to what extent. Secondly, whether a public school itself may conduct religious observances at public schools and the extent to which they may be religion specific. The third was whether a learner may be asked to convey whether or not they adhere to a particular religious faith.
The judgment ruled that public schools are public entities and organs of State that give effect to a Constitutional history. Neither the Constitution nor the South African Schools Act makes provisions for the adaptation of a single religious ethos, but allows public schools, through their School Governing Bodies (“SGB”) to make policies for religious observances on an equitable basis. Further, it must be free and voluntary for learners and educators to partake in these practices. Simply put, religion may be practiced at school but NOT by schools.
The reasons why the Court made this ruling was because firstly, feeder communities continually evolve and must be encouraged to evolve. Given an unnatural residential demographic configuration that has resulted from historic laws, communities are historically racially skewed.
The forcing of a learner (of a minority religion) to be part of a religious practice that is not congruent to her own religious practices may inculcate an inferiority complex within herself when not being given the opportunity to explore her own religious practices in schools. She is thus only placed in that school as a result of not having any other choice but to attend that school. Further, school codes of conduct must provide for all faiths given these present and evolving demographics. This provision must be done on an equitable basis.
The Constitution gives us rights such as the right to freedom of religion, to practice religious observances at State institutions, provided that they are conducted on an equitable basis and the attendance at these observances are free and voluntary.
We also have the right to be equally treated to freely express ourselves, and for the best interests of the child to be of utmost importance. It is this background that the Constitution recognises religion, religious practices and the role of faith in unlocking the potential of each child and each person.
It is important to note that this judgment does not promote “scrupulous secularism” as noted by the Constitutional Court or complete neutrality in religion but makes an attempt for the free and voluntary, equitable access to religious observances which are regulated by public authorities. This means that the Constitution recognises the role and value religion plays in the lives of people and in their communities. This means that it would be equitable if religious observances are practiced at a school that teaches for the entire community however, at a national level, no religious practice or faith can take preference over another.
This judgment only provides positive effects on children. Your child cannot be coerced into practicing a dominant religion or partake in a religious practice at their public school. There ought to be scope for them to practice their religious practices. Further, it nurtures and entrenches the idea and culture of plurality and diversity within the mind and practices of the school. It also gives public schools the opportunity to creatively think about how to make learners aware of broader society and how to accommodate various other cultures and religions in their catchment area and broader community. It also, and more importantly, breaks away from the apartheid insular superiority/inferiority complex.
Children that observe the beard, the head scarf, various beadwork and jewellery and other religious practices ought to be identified, recognised and respected and not be faced by the wrath of the code of conduct.
It is important to note however that this judgment is not a policing mechanism. It is unlike legislation that would place a duty on each SGB to revise their code of conduct. However, this judgment would inform the development and the drafting and revision of future codes of conduct.
This judgment does expressly note that codes of conduct will offend the Constitution and the South African Schools Act if a public school promoted or allowed its staff to promote that it, as a public school, adheres to only one predominant religion to the exclusion of others, and if that school holds out that it promotes the interests of one religion in favour of others.
Going forward it would be interesting to monitor the development of this judgment when observing public schools that hold out as Muslim schools as well as public schools that have Muslim learners attending them.