Legal framework on freedom of religion and actual application
Following the end of the apartheid regime in 1994, South Africa adopted a constitution in 1996 that prohibits all forms of discrimination, including discrimination on the grounds of religion (Section 9, 2-5).
Under Section 15 (1), “[E]veryone has the right to freedom of conscience, religion, thought, belief, and opinion.” Section 15 (2) declares, “religious observances may be conducted at state or state-aided institutions, provided that those observances follow rules made by the appropriate public authorities; they are conducted on an equitable basis; and attendance at them is free and voluntary.”
Section 15 (3a) recognises “all marriages concluded under any tradition, or a system of religious, personal or family law; or systems of personal and family law under any tradition, or adhered to by persons professing a particular religion.” This has led the South African parliament to expand the scope of marriage legislation.
In 1998, the parliament passed the Recognition of Customary Marriages Act, which allows for polygamy but only to those “customs and usages traditionally observed among the indigenous African people”. In 2006, a Civil Union Act was adopted allowing same-sex marriage, amended in 2020 to repeal section 6 of the original legislation that allowed civil marriage officers to opt out of solemnising same-sex marriage on grounds of conscience, religion or belief. In 2010, a Muslim marriage bill was proposed but never passed. This has been challenged in court and the case remains pending.
Currently, both the South African Law Reform Commission and the Home Affairs Department are considering legislative proposals that would cover all forms of marriage. The reason is that the non-recognition of religious marriage creates problems for those who refuse to contract a civil marriage on religious grounds, for example Muslims who tend to consider civil marriage un-Islamic.
Some limited protection is granted to people who contract a religious marriage in matters of maintenance in case of a spouse’s death, intestate succession, community of property, and protection against domestic violence.
Section 16 of the constitution guarantees freedom of expression but does not protect “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.”
Although the constitution is largely silent about religion in education, religious education is allowed but not compulsory in public schools, but promoting a single religion is banned.
“Subject to the Constitution and any applicable provincial law,” Section 7 of the South African Schools Act allows religious observances “at a public school under rules issued by the governing body if such observances are conducted on an equitable basis and attendance at them by learners and members of staff is free and voluntary.”
Section 29 (3) of the constitution declares, “Everyone has the right to establish and maintain, at their own expense, independent educational institutions that do not discriminate on the basis of race”. Such establishments must be “registered with the state; and maintain standards that are not inferior to standards at comparable public educational institutions. Subsection (3) does not preclude state subsidies for independent educational institutions.” This has enabled Christian, Islamic and Jewish groups to set up their own schools across the country.
Section 31 (1,5) grants members of religious communities the right to practise their religion and to form or join religious associations. Also under Section 31 (1 and 2), no one can be denied the right to “enjoy their culture, practise their religion and use their language” with “other members of that community”. To this end, they can “form, join and maintain cultural, religious and linguistic associations and other organs of civil society” as long this is not done “in a manner inconsistent with any provision of the Bill of Rights.”
The South African Human Rights Commission (SAHRC) is the agency that upholds the principles of “constitutional democracy” and promotes “respect for, observance of and protection of human rights for everyone without fear or favour”, including religious freedom. Together with the courts, it is responsible for prosecuting suspected violators.
Religious communities are not required by law to register with the authorities, but those that do may benefit from tax-exempt status.
South Africa has a Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistics Communities (CRL Rights Commission), whose members include politicians, clergy, and scholars. Like the SAHRC, its mandate includes the protection of “constitutional democracy,” upholding “cultural, religious, and linguistic community rights” by providing “space for [...] cultural, religious and linguistic communities” while promoting “unity amongst” them.
South Africa has 12 statutory holidays, including two, Christmas and Good Friday, that are Christian in character. Two other public holidays, Family Day and the Day of Goodwill, fall respectively on Easter Monday and Boxing Day. No other religious observance is a public holiday. The country’s Law Reform Commission has denounced this and called for change, while some minority groups are demanding that their main holy days also be recognised as public holidays.
Incidents and developments
During the period under review, there was a sharp deterioration of socio-economic conditions in South Africa with consequences on human rights, prompting religious leaders to express their concerns.
Poverty remains widespread, unemployment is high and inequality is deeply entrenched. Over the past few years, excessive public spending and mismanagement at state enterprises have significantly increased the national debt. Corruption has further weakened the country’s democratic institutions and the credibility of the governing party, the African National Congress. According to the World Economic Forum, South Africa is inching its way towards state collapse. The difficult socio-economic conditions have resulted in a rise in societal tensions, protests, and violence. In July 2022, the United Nations criticised the explosion of xenophobic violence and the threat to social order in south Africa.
In July 2021, the South African Catholic bishops issued a statement condemning the violence, but at the same time called on authorities to address inequalities and urged South Africans to change their mindset, noting that violence and destruction “can never be a just response to the current economic hardships and economic injustice.”
Despite the turmoil, Archbishop Stephen Brislin of Cape Town observed some positive signs in the “outpouring of goodness as people turned out to clean up, to guard sensitive areas and to seek answers for and understanding of what had taken place”. Such seeds of hope must be nurtured together “with people who ask to identify and address the root causes of violence” and demand that “the injustices of inequality and poverty of our country be recognized.”
On 5 August 2021, in his opening address to the Plenary Assembly of the Southern African Catholic Bishops’ Conference (SACBC), Bishop Sithembele Sipuka of Mthatha also asked for accountability for the violence and looting.
One of the effects of the crisis has been the rise of xenophobia, discrimination, and violence against foreign nationals. With unemployment at around 40 percent, and youth unemployment at 65 percent, foreigners have become a scapegoat. Economic migrants entering South Africa arrive mainly from other African countries or Asia, and many of them from Muslim majority countries like Somalia, Bangladesh, and Pakistan.
On 6 May 2022, the Southern African Catholic Bishops’ Conference (SACBC) presented its Guidelines for Pastoral Care of Migrants and Refugees, which arose “from the reflection of how the Church can speak to the needs of Migrants and Refugees living in our Dioceses”.
In June 2022, South Africa’s Constitutional Court declared unconstitutional some sections of the 1961 Marriage Act and the 1979 Divorce Act, noting that parliament’s failure to recognise Muslim marriages in South African law violated the constitutional right of Muslim women and children to equality, dignity, and justice.
On 8 August 2022, the SACBC issued a statement expressing concern over “the high levels of unemployment and the cost of living that are pushing more people into higher levels of household debt and deep poverty.” The Catholic bishops requested that the government “initiate more, robust measures to address the fuel and food price hike” as well as the economic disparities “that impose great risk to the country’s economic growth and national security, creating conditions that could fuel violent unrest and social instability.”
Prospects for freedom of religion
South Africa’s constitution upholds freedom of religion and belief and bans discrimination based on religion. But the protection of freedom of religion in the country is being sorely tested by broader economic and judiciary developments in South African society.
The issue of Muslim marriage remains unresolved, but a solution appears to be in the making. More worrisome is proposed legislation to criminalise hate speech (the Prevention and Combating of Hate Crimes and Hate Speech Bill), which – although it includes a religious exemption clause – could nonetheless have implications for religious freedom as well as freedom of expression. Overall, the prospects for religious freedom remain positive.
South Africa