An assessment of constitutional guarantees of religious rights and freedoms in South Africa

[摘要] ENGLISH ABSTRACT:The central issue which is considered in this thesis is the meaning of the constitutionalguarantees of religious rights and freedoms in South Africa. In other words, it is concernedwith the functions of the state, through its laws or conduct, in respect of religion and with itsrelationship towards the institutional church or religious community.It is argued that religious freedom is, in fact, a bundle of rights and freedoms. The essentialrights and freedoms of religion which constitute this bundle are identified in the context ofthe historical development of religious rights. It is shown that religious rights theories havedeveloped in the West which include concepts of freedom of conscience, the right to freelyexercise religion, accommodation of pluralism of a confessional and institutional nature,equality of all religions before the law, nondiscrimination on the grounds offaith, institutionalseparation of church and state and some separation of state (or law) and religion.It is maintained that no single principle could by itself guarantee religious freedom and thatthese rights and freedoms are mutually. supportive of and mutually subservient to the highestgoal of guaranteeing religious freedom. These essential rights and freedoms are thereforetreated as constituting minimum standards for the protection of religious freedom and it isargued that religious freedom as protected in the South African Constitution should beinterpreted to incorporate these multiple principles.It is shown that, prior to the promulgation of the interim Constitution the essential rights andfreedoms of religion were not adequately protected in South Africa and that the constitutionalentrenchment of these essential religious rights was necessitated by various factors in thepreconstitutional South African society.The position with regard to religious rights and freedoms in post-Constitutional South Africais considered by briefly sketching the broader constitutional context and by assessing theconstitutional clauses protecting religious rights to determine whether the essential rights areprotected. The religious rights provisions in the Constitution are analysed in detail in order todetermine how they should be interpreted and implemented to ensure adequate protection ofthe essential rights and freedoms of religion in South Africa.

[发布机构] Stellenbosch University