Intervening in Case Against “Christian Schools”

by Daniela Ellerbeck
2 March 2016

In 2014, a secular group by the name of OGOD instituted legal action against six public schools with a Christian ethos, in the Johannesburg High Court. In its court papers, OGOD is asking the Court to find that the schools, by promoting or associating with a particular religion, are breaching the National Policy on Religion and Education. According to OGOD, the schools are abusing the constitutional rights of learners to freedom of religion and conscience, as well as access to knowledge, by rendering religious instruction; referring to a deity in the school badges and mottos; opening assemblies or class with Scripture and prayer, and allowing religious singing; teaching creationism; allowing Christian activities, evangelism and testimonies, at school, etc.

In newspaper reports and in social media recently, OGOD has claimed that their aim is equality of religions in schools (rather than removing Christianity from schools). When regard is had to their court papers however, and the relief they are asking for, it is clear that their aim is exactly that!

This is a very important case for religious freedom and education in SA. FOR SA (along with other signatories to the SA Charter of Religious Rights and Freedoms, and under the banner of the SA Council for the Protection and Promotion of Religious Rights and Freedoms), has obtained the consent of the parties to be admitted as “Friend of the Court” in the matter and will be filing its application for admission with the court, this week.

The parties are still in the process of exchanging papers, and the matter is not yet ripe for hearing. As a result, no date has been determined for the hearing of the matter yet.

Section 15(2) of the Constitution provides that religious observances may be conducted at state or state-aided institutions (including therefore public schools), provided that –

  • those observances follow rules made by the appropriate public authorities (in this instance, as the schools will argue, the school governing bodies);
  • they are conducted on an equitable basis; and
  • attendance at them is free and voluntary.

It is thus clear that the Constitution does not prohibit religion in schools, but rather sets certain conditions for the practicing thereof. In this case, much will turn on the Court’s interpretation of “equitable” – does it mean that every school must accommodate every religion equally, or something else?

In S v Lawrence (1997), the then Chief Justice of the Constitutional Court (with reference to the same provision in the interim Constitution) held that “I doubt whether this means that a school must make provision for prayers for as many denominations as there may be within the pupil body;  rather, it seems to me to require education authorities to allow schools to offer the prayers that may be most appropriate for a particular school, to have that decision taken in an equitable manner applicable to all schools, and to oblige them to do so in a way which does not give rise to indirect coercion of ‘non-believers’”.

The implication thus is that the school governing body of each particular school must have the freedom to decide for itself, what would be fair and equitable in the context of the religious demographic of that particular school.

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