The starting point must, of course, be section 15(2) of the Constitution which states that ”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”. This must be read with section 7 of the South African Schools Act which states that:
Subject to the Constitution and any applicable provincial law, religious observances may be conducted 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.
But what does this actually mean? Our Constitutional Court’s jurisprudence on freedom of religion and conscience has been far from satisfactory, so the answer to this question is not as clear as it could have been.
The Court seems to have some difficulty with the interpretation and application of section 15 and then often reverts to the limitation clause to “solve” the problem. In one case – Christian Education - Justice Sachs even declined to make a finding on whether the ban on corporal punishment at Christian schools infringed the right to freedom of religion (spare the rod and spoil the child, and all that). He merely assumed that it did infringe on the right before deciding that even if it did, the ban would still be justifiable in terms of the limitation clause.