Gibbs OR Amin Z Copyright protected.

STUDY UNIT 12: DIVERSITY RIGHTS

 Ensuring that diversity is respected and protected is in line with our

constitutional goal of establishing a diverse society. This in turn also protects
marginalised groups in our society.

Section 18: Everyone has the right to freedom of association

 The right to freedom of association foundational right for any flourishing

democracy; makes participatory politics meaningful and genuinely
representative politics possible.
 This right allows individuals to make a choice about how they want to arrange
their lives and about their identities as people in relationships with others in a
given society.
 It guarantees a degree of autonomy that allows individuals to make both
political and more intimate choices about who to associate with
 New Nation Movement NPC and Others v President of the Republic of South
Africa: Positive right is about the right of an individual to be free to form an
association with whomsoever she or he wishes for whatever purpose. The
negative element is about the freedom not to associate at all if that be the
individual’s choice. This case also highlighted the fact that the right to
freedom of association allows individuals to make both overtly political and
more intimate choices about whom to associate.
 This right recognises the communal nature of the people and the need for
people to exercise some of their rights as individuals in association with
others like disposition.
 People can often only engage in meaningful political action in association with
others.
 The right to freedom of association protects the rights of collective self-
determination.
 In MEC for Education Kwazulu-Natal and others v Pillay, the CC linked the
notion of self-determination with the concept of ubuntu.
Gibbs OR Amin Z Copyright protected.

 Associational rights enable individuals to form associations in order to protect

better and assert more robustly other constitutional rights.
 The right to freedom of association supports and underpins many other
important rights.
 Make political theories
 Form a political party
 Participate in the activities of that part by recruiting, organising, and
campaigning on its behalf
 Campaign for a political party or cause
 Although the right to association has a communal aspect, it is primarily a right
that belongs to the individual rather than the association that has been
established to give better effect to the protection of the rights of the
individual.
 Associational rights do not protect groups as groups- these rights remain
individual rights that protect the rights of individuals to associate or not to
associate with others or groups of others. The CC in the Pillay case stated
that associative rights such as the right to belong to cultural, religious and
linguistic communities are exercised by the individual person. NOT rights that
attach to the group.
 To advance political, social, cultural, religious, recreational, charitable,
educational, and other interests or objectives, individuals’ band together in
organisations. Individual interests are better served if advanced by
associations of like-minded persons.
 An important thing to note is that the right of the individual belonging to that
organisation is being protected not the right of the organisation/ group.
 This is because the right recognises the autonomy of the individual to
advance his or her interests in concert with others.
 The right is related and sometimes overlaps with other rights such as the
right to human dignity and the right to privacy.
 As a result of the problems related to the accommodation of diversity, it must
be noted that difficult questions arise about the scope and content of the
right to freedom of association.
Gibbs OR Amin Z Copyright protected.

 This is because the need to respect this right sometimes clashes directly with
the need to respect other important rights such as dignity, no unfair
discrimination and freedom of movement.
 Associational rights can be used to exclude and marginalise others- holiday
resort catering for white Afrikaans holiday makers. The court must balance
the rights of the holiday makers and of the excluded people to determine
whether the resort can rely on freedom of association to justify discrimination.

The scope and content to freedom of association: general principles

 The right to freedom of association protects the right of individuals:

 To associate with whom, they wish
 To disassociate from whom, they wish
 To form intimate bonds or relationships with others with whom they
share common interests or cultural or religious attitudes and beliefs
 To protect those relationships from untoward infringement by the state
or powerful role players.
 New Nation Movement v President: s19(3)(b) right to stand/ hold public
office- court give effect to interpretation that harmonises with s18.
 Held, right to associate includes right not to associate.
 S18, not only protects rational/ sound reasons for not wanting to join a
political party, but also irrational/ unfounded reasons (or for no reason)
 The right supports the right to form religious, cultural, and linguistic
associations to give greater expression to the protection of cultural liberties
 Individuals draw much more of their emotional enrichment from close ties
with others.
 Providing a degree of protection to these relationships from unwarranted
interference by the state and by powerful private bodies therefore safeguards
the ability of a person to define independently his or her identity that is
central to any concept of liberty.
 The more private/ intimate the relationship, less state intrusion justified. More
public and less intimate, more intrusion may be justified. E.g., Marriage vs
non-discriminatory hiring practices.
Gibbs OR Amin Z Copyright protected.

 When a court has to decide as to the constitutionality of

exclusionary practices, it will consider:
 The nature of the constitutional right a party seeks to enforce and
 The potentially negative effect this has on the other party whose right
the association seeks to enforce.
 Thus, if, on the one hand, the association has been formed for commercial
activities, thus affecting the right to choose a trade, occupation and
profession, the state may have greater latitude in reaching into the domains
of these associations.
 If, on the other hand, the constitutional rights that the association seeks to
protect, promote, and enhance relate to religion, culture, and language, then
the reach of the state may be circumscribed.
 Similarly, if the state seeks to invade the associational rights of an
organisation in a manner that poses a real risk to the organisation’s members
or if such an intrusion would have a detrimental effect on individuals joining
the organisation or association, then courts may well attempt to protect such
rights in a robust fashion.

Societal interests overriding association rights

 The right to freedom of association is not an unqualified right.

 A tension may arise between the right to associate and the important
interests of others and of the broader society.
 Sometimes the state may wish to interfere with the right to freedom of
association to secure the safety of society, to protect the right to dignity of
all citizens and to facilitate greater political participation.
 The state may also interfere with the right to freedom of association to
ensure that certain groups open themselves up to a wider potential
membership because such organisations control access to important social
goods.
 The extent to which the function being fulfilled by the association fulfils a
public function will also play an important role in deciding whether the
association could be limited.
Gibbs OR Amin Z Copyright protected.

 The more the public goods distributed by an association or the more

public its function, the more likely it is to be subject to legitimate state
intervention.
 The state may therefore interfere with the freedom of association in
certain contexts.

Equality

 Certain associations may be required to open themselves up to a wider

potential membership because they control access to important social goods.
 Example: PEPUDA- asserts the primary importance of equality concerns and
presents a challenge to the right of freedom of association.
 PEPUDA seems to challenge control over membership policies and the
internal affairs of every private organisation and institution
 As membership policies and the organisation of internal affairs are
often critical to an association’s identity, PEPUDA could in effect force a
change in these policies.
 PEPUDA therefore represents a severe limitation on the general right to
freedom of association
 Section 6 of PEPUDA: neither the State nor any person may unfairly
discriminate against another person
 Onus: when a private individual or organisation discriminates against an
individual, onus is on the party who discriminated to prove that the
discrimination was fair (unfairness presumed if on listed ground-onus shifts).
 Ss 14(2) and (3) of PEPUDA set out the factors a court must take into account
when determining whether the respondent has proven the discrimination to
be fair
 The organisation may also argue that the discrimination has a legitimate
purpose and as such can be justified.
 In each case the court has to determine whether the discrimination is intrinsic
to the nature of the organisation and its purpose
Gibbs OR Amin Z Copyright protected.

 The association claiming a right to association in potential conflict with

PEPUDA, will have the burden of showing that its associational interests
trump the interest of equality.

Democracy

 The state may also interfere in the right to freedom of association in the
furtherance of the goals of democracy
 This may require organisations in certain contexts to structure their internal
affairs in a more democratic and egalitarian manner
 In each case the question would be to what extent the state’s interest in the
integrity of a democratic society and in the maintenance and protection of a
democratic society justifies the limitation on the association’s right to order its
affairs as it wishes and to pursue the goals it was set to pursue.
 The freedom of political parties to arrange their internal affairs as they wish
and pursue the ends, they were set to pursue will potentially be acutely
affected by the need to safeguard democracy.
 Courts can scrutinise a political party’s constitution to establish whether that
political party has acted in accordance with its own constitution and may set
aside decisions of that party where the party has failed to adhere to its own
constitution.
 Ramakatsa v Magashule: duty on political parties to act lawfully and in
accordance with their own constitution. Courts can assess compliance and set
aside actions if not lawful or in terms of Constitution.

Balancing rights

 It is not uncommon for the right to freedom of association to clash with other
rights and the adjudicating body then has to strike an appropriate balance
between the competing rights.
 Forum for Black Journalists v Katy Katopodis: The Appel Committee of SAHRC
had to consider whether a group of black journalists could constitutionally
exclude white journalists from a meeting of their organisation.
Gibbs OR Amin Z Copyright protected.

 Forum for Black Journalists held imbizo; non-member black journalists

to attend; white journalists refused entry
 Argument regarding ration connection to purpose is invalid; FBJ
entitled to exclude persons whose objectives not the same; but blanket
ban on any non-black members too limiting- egregious impact on those
who support its objectives purely on grounds of race. The more public
an organisation, the more difficult it is to justify exclusions in
furtherance of freedom of association.

Section 15: Everyone has the right to freedom of conscience, religion, thought, belief
and opinion

 (1) Everyone has the right to freedom of conscience, religion, thought, belief
and opinion.
 (2) Religious observances may be conducted at state or state-aided
institutions provided that-
(a) Those observances follow rules made by the appropriate public
authorities.
(b) They are conducted on an equitable basis; and
(c) Attendance at them is free and voluntary.

(3)(a) This section does not prevent legislation recognising-

(i) marriages concluded under any tradition, or a system of religious, personal

or family law; or

(ii) systems of personal and family law under any tradition or adhered to by
persons professing a particular religion.

(b) recognition in terms of paragraph (a) must be consistent with this section
and the other provisions of the Constitution.

 Freedom to hold views about religious and other moral issues; freedom to
practice those beliefs- goes to the heart of what it means to be human in a
modern democracy
Gibbs OR Amin Z Copyright protected.

 In an open and democratic society, both the religious beliefs held by the great
majority of South Africans as well as the beliefs of non-believers and minority
faiths must be fully respected.
 Signals the Constitution’s unique concern with the protection of people with
diverse beliefs and opinions. Recognises the importance of accommodating
the views, opinions, and practices of people with diverse world views and
religious beliefs that will often be in conflict with one another
 Includes right to hold religious beliefs and not (agnostic, atheistic/ other) &
act in accordance with those beliefs/ non

The scope and content of section 15 (1) of the Constitution

 The Constitution does not require a strict separation between the state
and religious bodies (S v Lawrence)
 S15(2) allows for religious observances to be conducted at state or state
aided institutions
 The right of religion will not automatically be infringed every time the
state provides any benefit to a specific religion or all religions in relation to
non-religion groups. State allowed to provide specific benefits to a
religious institution and to engage in activities that demonstrate reverence
or respect of religion in general.
 S v Lawrence: CC agreed that the essence of the right to freedom of
religion involves:
 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
 The right to manifest religious belief by worship and practice by
teaching and dissemination
 The CC: Freedom of religion protected if absence or coercion or constraint-
direct and indirect. Danger when the power, prestige and financial support of
government were placed behind a particular religious belief as it would place
indirect coercive pressure on religious minorities to conform to the prevailing
officially approved religion.
Gibbs OR Amin Z Copyright protected.

 Religious activities often take place in a communal context

 Section 31 of the Constitution adds to the scope and content of the right to
freedom of religion- right of religious communities to practice their religion
together with other members of their community.
 The right to religious freedom, also includes the right to interact with fellow
believers to advance their religion and regulate the affairs of their
organisation.
 Individual religious denominations have the right to the extent that other
rights do not limit this right- to decide for itself on the rules for membership
as well as the rules about the behaviour of all members of the religious
denomination.

The reasonable accommodation of religious beliefs and practices

 Seemingly neutral/universal rules that reflect a particular religious orientation/

belief system applied in manner that may have effect of marginalising or
negating the beliefs and practices of people from minority religions or people
who do not embrace any form of religion at all.
 The way the law deals with such cases is to require the institution reasonably
to accommodate the beliefs and practices of all, regardless of their beliefs or
religious affiliations.
 Reasonable accommodation: sometimes community (state, employer, school),
must take positive measures and possibly incur additional hardship or
expense to allow all people to participate and enjoy all their rights- including
the right to freedom of belief-equally.
 Reasonable accommodation ensures that we do not relegate people to the
margins of society because they do not or cannot conform to certain social
norms.
 Accordingly, believers cannot claim an automatic right to be exempted by
their beliefs from the laws of the land. At the same time, the state should,
wherever reasonably possible, seek to avoid putting believers to extremely
painful and intensely burdensome choices of either being true to their faith or
else respectful of the law.
Gibbs OR Amin Z Copyright protected.

 Because the outcome of most freedom of religion cases turns on the

application of the limitation clause, it is important to note how the notion of
reasonable accommodation indirectly affects the application of the limitation
analysis in freedom of religion cases.
 Governmental conduct limiting the right will only pass constitutional muster if
courts satisfied that importance of the societal objective sought to be
achieved outweighs the adverse effects of the limitation of the right to
freedom of religion.

The right not to believe in God

 Section 15 protects both the right to freedom of religion and the right to
freedom of other beliefs and conscience.
 It protects a person’s right not to believe in a God and to not have to
participate in any religious practices such as prayers and the singing of hymns
 The breadth of section 15 signifies that our society must not act punitively
towards non-believers by withholding benefits or imposing burdens on them
because of their non-belief.

Conducting religious observances at state institutions: section 15(2) of the

Constitution

 SA does not require a complete separation between the state and religion
 The South African Constitution does allow some entanglement between the
state and religion
 Section 15(2) of the Constitution makes it clear that religious observances
may be conducted at state or state aided institutions on the condition that:
(a) These observances follow rules made by appropriate public authorities
(b) They are conducted on an equitable basis
(c) Attendance at these observances is free and voluntary
 Religious observance: acts/ rituals of a religious character usually conducted
at public events such as at school assemblies, at the opening of Parliament or
at the start of a soccer match
Gibbs OR Amin Z Copyright protected.

 Religious education: education that occurs inside the classroom about the
beliefs and teachings of various religions
 It is only religious observances that have to comply with the conditions listed
in s15 (2) if the observances are to be held at state or state aided institutions.
 Organisasie vir Godsdienste-Onderrig en Demokrasie v Laerskool Randhart
(OGOD case): The high court ruled that it was not permissible for a public
school to promote or allow its staff to promote that it, as a public school,
adheres to only one or predominantly only one religion to the exclusion of
others; and to hold out that it promotes the interests of any one religion
above the interests of others.
 The primary purpose of this provision is to regulate equitably the conducting
of prayers at school.
 In Lawrence, the CC held that equitable treatment does not require equal
treatment of all religious affiliations and beliefs in a public institution. A state
or state-aided institution would not be required to provide for religious
observance to be conducted in a manner that would accommodate every
single form of religion, as well as forms on non-religion in such an institution.
 State-aided institutions refer to those institutions, including educational
institutions, which the state funds extensively and regulates heavily.

Legislation recognising religious and traditional marriages: section 15 (3) (a) (i) the
Constitution.

 CL definition of marriage: union of one man and one woman to the exclusion
of all others (applies to marriages concluded in terms of the Marriage Act).
 Couples married under Muslim, Hindu and customary law could not use the
Marriage Act to conclude a valid marriage in terms of the common law.
 The state did not officially recognise, in the same manner as common law
marriages solemnised in terms of the Marriages Act, marriages of couples that
were concluded in accordance with Muslim, Hindu or customary law and who
did not also conclude a marriage in terms of the Marriage Act= discrimination
 However, s15(3)(a)(i) – s15(1) & (2) does not prevent legislation recognising
marriages concluded under any tradition, or a system of religious, personal or
Gibbs OR Amin Z Copyright protected.

family law. S15(3)(a)(i) allows for legislation to be drafted which recognises

marriages concluded under traditional or other religious system such as
Hinduism and Islam.

The rights of cultural and religious communities

 Section 30: Language and culture: everyone has the right to use the language
and to participate in the cultural life of their choice, but no one exercising
these rights may do so in a manner that is inconsistent with any provision of
the Bill of Rights.
 Section 31: Cultural and linguistic communities
(1) Persons belonging to a cultural, religious or linguistic community may not
be denied the right, with other members of that community-
(a) To enjoy their culture, practice their religion and use their language;
and
(b) To form, join and maintain cultural, religious and linguistic associations
and other organs of society
(2) The rights in subsec (1) may not be exercised in any manner inconsistent
with any provision of the BOR.
 Section 6 of the Constitution requires the state proactively to advance the use
of official languages that were previously neglected and to treat various
languages with parity of esteem.
 Like the right to freedom of association, the rights guaranteed in sections 30
and 31 of the Constitution are not group rights, instead they are primary
rights belonging to the individual
 The Constitution protects only the rights of individuals who may best exercise
their rights in association with others

An analysis of the scope and content of sections 30 and 31 of the Constitution

 The CC has described these rights as associational individual rights, namely

those rights which cannot be fully or properly exercised by individuals
otherwise than in association with others of like disposition
 Sections 30 and 31 draw heavily from Article 27 of the ICCPR
Gibbs OR Amin Z Copyright protected.

 Individuals are best able to exercise within the context of the community
 These rights are protected through the double mechanism of enabling
individuals to associate with others of their community and by preventing the
state from denying them the right collectively to exercise their cultural,
religious and linguistic rights.
 The state provides institutional support in the form of the LRC Commission to
assist in the better enjoyment of these rights.
 Christian Education case: the CC held s 31(2) intended to ensure that
practices offensive to the Bill of Rights were not shielded by the protection
afforded by section 31 (1)
 Constitutionally offensive group practice: exclusionary policies, rules or
conduct adopted or applied by a religious, linguistic or cultural
organisation and which are not permitted by the Constitution
 The issue is whether the rules or conduct of the communities are
consistent with the Constitution
 In deciding whether policies or conduct is permitted, regard must be whether
the rule or conduct is reasonable and justifiable.
 This involves a balancing of the rights of the individual being denied access
against the purpose that rule, or conduct is intending to achieve.
 In addition, an assessment needs to be made as to whether the rule or
conduct is proportionate
 Thus, the rights of the organisation or community have to be weighed and
balanced against the infraction of the individual rights.
 The more egregious the violation is, the less likely it is that it will be deemed
fair