ISSN: 1996-2126
Affiliations: Senior Researcher, Private Security Industry Regulatory Authority (PSIRA)
Source: South African Journal on Human Rights, Volume 28 Issue 2, 2012, p. 351 – 357
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ISSN: 1996-2126
Affiliations: Advocate of the High Court of South Africa and Senior Lecturer, School of Law, University of the Witwatersrand
Source: South African Journal on Human Rights, Volume 28 Issue 2, 2012, p. 328 – 350
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ISSN: 1996-2126
Affiliations: History Workshop and NRF chair in Local Histories and Present Realities, University of the Witwatersrand
Source: South African Journal on Human Rights, Volume 28 Issue 2, 2012, p. 316 – 327
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ISSN: 1996-2126
Affiliations: Associate Professor, University of Johannesburg; Director, South African Institute for Advanced Constitutional, Public, Human Rights and International Law
Source: South African Journal on Human Rights, Volume 28 Issue 2, 2012, p. 296 – 315
This article addresses the question as to whether religious associations should be granted an exemption from legal anti-discrimination provisions relating to their employment practices. It focuses on responding to criticisms mainly by Patrick Lenta of my position that, in general, no such exemptions should be granted. The key issues I address are the following. Firstly, I shall consider the relationship between South Africa’s particular context and the approach to be adopted towards interpreting and balancing fundamental rights in South African constitutional law. Secondly, I shall contend that religious associations do violate liberal reciprocity when seeking such an exemption and respond to Lenta’s argument in this regard. Thirdly, I shall consider the harms of discrimination by religious communities upon the equal citizenship of vulnerable groups and distinguish these from the distress caused by refusing members of religious associations exemptions from anti-discrimination legislation. Finally, I shall discuss the question of remedies and the possibilities they allow for encouraging religious associations to act in ways that are consonant with South Africa’s constitutional democracy.
ISSN: 1996-2126
Affiliations: Elizabeth Bradley Chair of Ethics, Governance and Sustainable Development, University of the Witwatersrand; Academic Director, Symposia and Colloquia, South African Institute for Advanced Constitutional, Public, Human Rights and International Law
Source: South African Journal on Human Rights, Volume 28 Issue 2, 2012, p. 273 – 295
This response to Professor David Bilchitz attempts to put the two of us back on square. It advances our ‘roughly’ common conception as to how our constitutional order ought to address conflicts between equality and liberty that surface in cases that turn on differentiation and discrimination within religious orders and traditional communities. To that end, this article first clears up any previous misunderstandings, establishes our common ground and adumbrates a (largely) shared paradigm as to when our basic law should identify cognisable harms to the dignity of fellow South Africans and the broad array of remedies at the disposal of our courts. This article then reminds us that we possess a well-developed body of South African jurisprudence that distinguishes the public from the private, and why constitutions are invariably committed to a defence of pluralism and some degree of private ordering. Thereafter, I advance the idea that one might ‘seek justice elsewhere’ as a response to domination and tyranny: either by peregrinations around the globe or by exiting one sub-public and entering or constructing another more felicitous community within one’s birth-state. With respect to the latter form of exit, the community responsible for the expulsion and the impairment of an individual’s dignity should, along with the state, bear some form of material obligation in order to make the creation of a more commodious sub-public a reality. Thereafter, the article relies heavily on theses laid out in Michael Walzer’s Spheres of Justice. Spheres of Justice, which enables us to make critical distinctions between differentiation and domination, as well as between legitimate distributions of social goods and tyrannical abuses of economic, social and political power that invariably lead to the kind of stratified society that we inhabit in South Africa. The article then draws on Walzer’s distinction between differentiation and domination in order to demonstrate how a commitment to remedial equilibration can assist us in developing a sliding scale of ‘interdependent and interrelated’ rights and remedies by which the rules that govern various non-state publics, communities or associations might be measured when charges of discrimination are laid. A court order based upon remedial equilibration possesses a number of distinct virtues. Where differentiation rises to the level of unfair discrimination, remedial equilibration allows a court to: (a) acknowledge the constitutional infirmity of the conduct; (b) appropriately remonstrate the association responsible for such conduct without necessarily eviscerating the power of the association to continue to determine its rules for membership, voice and exit; (c) require the association, and where appropriate the state, to bear the pecuniary costs of the dismissal (or expulsion); and (d) assist the person harmed to secure employment (or some other good) in a more congenial environment and thereby find justice elsewhere.
ISSN: 1996-2126
Affiliations: Associate Professor, Department of Constitutional Law & Philosophy of Law, University of the Free State
Source: South African Journal on Human Rights, Volume 28 Issue 2, 2012, p. 258 – 272
In Strydom v Nederduitse Gereformeerde Gemeente, Moreleta Park the applicant was appointed as an independent contractor by the respondent (a church) to teach music to its students. The respondent terminated the services of the applicant when it was discovered that he was involved in a same-sex relationship. However, it was decided that the respondent had discriminated unfairly against the applicant. This decision has prompted earnest debate regarding the parameters of appointments by (and membership of) religious associations in South Africa. This investigation contributes to such debate arguing that appointments by (and membership to) a church may require an adherence to the core tenets of such a church, irrespective of the functions emanating from such an appointment. Also, the view that same-sex sexual conduct should not be used as a discriminatory ground in appointments (membership) by a religious association is critically analysed, hereby presenting some insights as to the relationship between the right to equality and religious rights and freedoms, especially in the context of diversity and identity in a pluralist and democratic society.