Court rules against single-religion schools

28 June 2017 - 11:28 By Ernest Mabuza
Image: Thinkstock

Neither a public school nor a school governing body may lawfully hold out that it subscribes to only a single particular religion to the exclusion of others.

The high court made this order in an application brought by a non-governmental organisation known as Organisasie vir Godsdienste-Onderrig en Demokrasie (OGOD) against six public schools which are predominantly Christian schools.

OGOD wanted an order restraining the schools from partaking in an identified set of 71 instances of circumscribed conduct with a religious theme‚ some of which are identified with the Christian faith.

These range from “holding itself as a Christian school” and “having a value that includes learners to strive towards faith”.

However‚ the full bench‚ comprised of Judges Colin Lamont‚ Willem van der Linde and Namhla Siwendu‚ refused to grant an interdict to OGOD based on the 71 instances of circumscribed conduct at schools.

The court held that these were matters for regulation at the school governing body-level.

It said the principle of subsidiarity required that a constitutional attack must be made on the regulations by governing bodies (SGBs)‚ and not directly on the Constitution itself.

“Accordingly‚ by the principle of subsidiarity‚ in this matter an applicant who contends that religious conduct at a public school is unconstitutional…‚ must either found its case on a contravention of an applicable SGB rule or… it must attack the relevant SGB rules as being unconstitutional.”

The judges said this finding was not just a technical point.

“Consider the myriad of detailed instances of conduct that the applicant attacks … and consider concomitantly the myriad of detail arrangements covered by the schools’ religious policies.”

The court said it was not capable of fishing through those policies to find out whether any of the conduct complained of was actually covered by those policies.

Despite the dismissal of the interdictory relief sought by OGOD‚ the court said it was concerned about the issue of single faith branding‚ or that of holding out that a public school endorsed one particular religion to the exclusion of others.

“The question may be put this way: May a public school‚ through rules laid down by its SGB relative to say its heraldry‚ hold out that it is exclusively a Jewish‚ or a Christian‚ or a Muslim‚ or a Buddhist‚ or an atheist school.”

The court said the answer was no.