Organisasie vir Godsdienste-Onderrig en Demokrasie v Laerskool Randhart and Others (29847/2014) [2017] ZAGPJHC 160; [2017] 3 All SA 943 (GJ); 2017 (6) SA 129 (GJ) (27 June 2017)

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[2017] ZAGPJHC 160
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Organisasie vir Godsdienste-Onderrig en Demokrasie v Laerskool Randhart and Others (29847/2014) [2017] ZAGPJHC 160; [2017] 3 All SA 943 (GJ); 2017 (6) SA 129 (GJ) (27 June 2017)

REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
29847/2014
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED.
Date:
27/6/17
In
the matter between:
ORGANISASIE
VIR GODSDIENSTE-ONDERRIG
EN
DEMOKRASIE
Applicant
and
LAERSKOOL
RANDHART
First
Respondent
LAERSKOOL
BAANBREKER
Second
Respondent
LAERSKOOL
GARSFONTEIN
Third
Respondent
HOERSKOOL
LINDEN
Fourth
Respondent
HOERSKOOL
OUDTSHOORN
Fifth
Respondent
LANGEHOVEN
GYMNASIUM
Sixth
Respondent
MINISTER
OF BASIC
EDUCATION
Seventh
Respondent
MINISTER
OF JUSTICE AND CORRECTIONAL
SERVICES
Eighth
Respondent
NATIONAL
ASSOCIATION OF SCHOOL
GOVERNING
BODIES
Ninth
Respondent
and
COUNCIL
FOR THE ADVANCEMENT OF THE
SOUTH
AFRICAN
CONSTITUTION
First
Amicus Curiae
CAUSE
FOR
JUSTICE
Second
Amicus Curiae
COUNCIL
FOR THE PROTECTION AND
PROMOTION
OF RELIGIOUS
RIGHTS
Third
Amicus Curiae
AFRIFORUM
Fourth
Amicus Curiae
SOLIDARITY
Fifth
Amicus Curiae
JUDGMENT
The
Court:
Introduction
[1]
The applicant is called "Organisasie vir Godsdienste-Onderrig en
Demokrasie". It is a voluntary association which
assists its
members and children in public schools when those schools infringe
the learners' constitutional rights. The first six
respondents are
public schools as envisaged
in
the
South African Schools Act 84 of 1996 ("the Schools Act"),
three of them primary schools and three secondary schools
("the
schools"). Four of the schools are in the Gauteng province, and
two in the Western Cape. The seventh respondent
is the Minister of
Education in the National Government, the eighth respondent the
Minister of Justice and
Correctional
Services, and the ninth respondent, the National Association of
School Governing Bodies.
[1]
[2]
Five parties were admitted as friends of the court, being the Council
for the Advancement of the South African Constitution,
Cause for
Justice, the South African Council for the Protection and Promotion
of Religious Rights and Freedoms, Afriforum and Solidarity.
[2]
The
seventh
respondent (the Minister of Education} was joined as a third party by
the schools for
declarations
of invalidity
[3]
of certain
portions of the National Policy on Relig
i
on
and Education
[4]
("the
National Religion Policy"). She abided the judgment of the court
in respect of the central dispute between the
applicant and the
schools, and limited her interest in the proceedings to opposing the
declaration of unconstitutionality sought
in respect of the National
Religion Policy. The eighth respondent (the Minister of Justice and
Correctional Services} made no submissions.
[3]
The relief claimed in the amended notice of motion falls into two
sets of prayers. Prayer 1 and its subparagraphs are for declarations,

and prayer 2 and its subparagraphs are for seventy-one final
interdicts. Prayer 1 sets out six main declarations, and ends by
incorporating all seventy-one interdicts listed in prayer 2 against
the respondent schools as part of the prayer 1 declarations.
The
declarations are sought not only against the six respondent schools,
but against
"any public school, as
defined in terms of the
South African Schools Act 84 of 1996
."
[4]
The six main declarations seek to have declared as a breach of the
National Religion Policy and as unconstitutional a range
of defined
propositions, including promoting only one religion in favour of
others; associating itself with any particular religion;
requiring of
a learner to disclose (to the school} adherence to any particular
religion; and permitting
religious observances
during school programs on the basis that a learner may elect to opt
out.
[5]
The declarations that incorporate by reference the seventy-one
interdicts listed in prayer 2, mirror-image against
"
any
public school"
the
set of prayers for interdictory relief sought in prayer 2 against
only the six schools here joined. To this extent then there
is
over-lap: an aggregate of seventy-one interdicts are sought against
the six schools; but each one of these interdicts is sought
in the
form of declarations against all public schools, including also the
six respondent schools.
[6]
T
he
interdictory relief is to restrain the six respondent schools each
from partaking of an identified set of the seventy-one instances
of
circumscribed conduct with a religious theme,
some
of which are identified with the Christian faith
.
These
range from the more contentious
("holding
itself out as a Christian school"
[5]
)
to
the possibly more neutral
(
"
having
.
a
value that includes learners to strive towards faith”
[6]
).
[7]
In
between are interdicts against endorsing the school as having a
Christian character; recording that its school badge represents
the
Holy Trinity; recording as part of its mission statement that
"
we
believe"; having religious instruction and singing; handing out
Bibles; opening the school day with Scripture and explicit
prayer
dedicated to a particular God; referring to any deity in a school
song; having a value that includes learners to strive
towards faith;
working with learners to understand and self-discover in what
relationship they stood with Jesus; teaching creationism;
and having
children draw pictures depicting Bible stories. As is evident, the
conduct ranges from the very generalised to the very
specific.
[7]
Declaratory relief is discretionarily granted in terms of s
.
2l(l)(c)
of the Superior Courts Act
,
10 of 2013 (emphasis
supplied):
"21
Persons over whom and matters in relation to which Divisions have
jurisdiction
(1)
A Division has jurisdiction over all persons residing or being in,
and in relation to all causes arising and all offences triable

within, its area of jurisdiction and all other matters of which it
may according to law take cognisance, and has the power-
(a)
…
(c)
in its
discretion, and at the instance of any interested person, to enquire
into and determine any existing, future or contingent
right or
obligation, notwithstanding  that such person cannot claim any
relief consequential upon the determination
."
[8]
The requirements for a final interdict are a clear right, an injury
actually apprehended, and no alternative remedy.
[8]
[9]
In cases where a court is appropriately seized with a constitutional
matter, additional considerations apply. S.172(1)(b) of
the
Constitution provides that in deciding constitutional matters, a
court
"may
make any order that is just and equitable".
In
Head of Department, Department of Education, Free State Province v
Welkom High School and Another; Head of Department, Department
of
Education, Free State Province v Harmony High School and Another,
[9]
Froneman J and Skweyiya J (with whom Moseneke DCJ and Van der
Westhuizen J concurred) said (emphasis supplied):
"[130]
This Court in Ermelo113 observed that when deciding constitutional
matters, courts have an "ample and flexible
remedial
jurisdiction
.
.
.
[which]
permits
a court to forge  an order that would place substance above mere
form by identifying the actual  underlying
dispute
between the parties and by requiring the parties to take steps
directed at resolving the dispute in a manner consistent
with
constitutional requirements".114 Cases involving children are
pre-eminently of the kind where one must scratch the surface
to get
to the real substance below."
[10
]And in Doctors for Life International v Speaker of the National
Assembly and Others,
[10]
Ngcobo,
J (then not yet Chief Justice) said:
"[201]
The provisions of s 172(1)(a) are clear, and they admit of no
ambiguity; '(w)hen deciding a constitutional matter within
its power,
a court . . . must declare that any law or conduct that is
inconsistent with the Constitution is invalid'."
The
issue
[11]
The unlawfulness relied on both for the declarations and for the
interdicts is that the identified conduct is
offensive
to
the Constitution and to the National Religion Policy
.
[11]
Although
the applicant referred also to the
National Education Policy Act 27
of 1996
in argument, non-compliance with the provisions of that Act
did not found its case.
[12]
The lengthy affidavits of the schools, supported by lengthy experts'
testimony, challenge some of the applicant's facts, particularly
that
the schools' practices are coercive and abusive,
[12]
but mostly the applicant's contentions concerning the application of
the law to
those
practices. If the schools' case were to be captured in a nutshell, it
would be that the
schools
too have a right of freedom of religion; that the schools are
entitled by law to have an ethos or character; and that the
school
governing bodies ("SGBs") envisaged in s
.
16
of the Schools Act are entitled to determine this ethos or character
with reference to the religious make-up of the feeder community
that
serves
the
particular school.
[13]
The schools accepted that this last proposition is subject to the
proviso that any religious observances that may be conducted
at the
schools pursuant thereto are conducted - as required by s.15(2) of
the Constitution -
"under
rules issued by the governing body", "on an equitable
basis",
and
that
"attendance
at them by learners and members of staff is free and
voluntary.
"
[13]
But they submitted that their practices complied with these measures.
[14]
As might have been expected, there was considerable debate as to the
meaning and reach of the concepts of
"equitable"
and “
free
and voluntary"
in
this context
.
The
applicant submitted that since it offended s.15(1) of the
Constitution for a public school to adopt any religion(s), the
adjective
"equitable"
can by
definition
never
justify the
adoption by the school of a single religion,
even
if the learners
from the feeder community of that school were all adherents to that
religion
.
[15]
The applicant's central subm
i
ssion
was therefore that the provisions of s
.
15(1)
of the Constitution stood in the way of the adoption by a public
school of any religion at all; all that was permitted - and
then
limited to
"religious
observances"
-
was the window opened under s.15(2) of the Constitution.
[16]
As to the notion of
"free
and voluntary",
the
applicant submitted that indirect coercion was equally proscribed,
and that even if a learner were required to disclose whether
she
subscribed to a faith, and if so, which or what faith; or even if a
learner were given the
choice
to "opt out" of attending religious observances conducted
by a school, that would impinge on her fundamental right
to religious
freedom.
[17]
Central to the applicant's submission concerning the permissive
window afforded in terms of s.15(2) of the Constitution, was
the
proposition that those provisions merely permitted someone else, and
not the school itself, to conduct religious observances
"at"
the school. If
the school itself were so permitted, the Constitution framers would
have used the preposition
"by"
instead,
according to the argument
.
[18]
Taking the lead from Welkom
[14]
in the Constitutional Court, it would seem -
i
n
amongst the
myriad
of specific instances of allegedly unlawful conduct set out in the
notice of motion - that the substantive issues between
the parties
are really threefold: first, there is the question whether a public
school may hold itself out as a Christian school,
and if so to what
extent;
[15]
second, there is the issue of religious observances at public schools
- whether a
public
school itself may conduct these, and the extent to which these may be
religion-specific; and third, there is the issue whether
a learner
may be asked to convey whether or not she adheres to a particular
(religious) faith.
[16]
The
Constitution and religion
[19]
The Constitution is the starting point of both the applicant's case
and the schools' case.
[17]
Both main protagonists referred to the Preamble, the applicant
stressing the equality of all and the schools stressing the
concluding
portion with its multiple references to
"God".
S.
15 of the Constitution, conferring freedom of religion, belief and
opinion, was the centrepiece
of
the debate, and it is useful to quote both s.15(1) and s.15(2) here:
"15.
Freedom of religion, belief and opinion.
(1)
Everyone has the
right to freedom of conscience, religion, thought, belief and
opinion.
(2)
Religious
observances may be conducted at state or state-aided institutions,
provided that-
(a)
those observances
follow rules made by the appropriate public authorities;
(b)
they are conducted
on an equitable basis; and
(c)
attendance at them
is free and voluntary.”
[20]
The content and meaning of the notion of
"religious
observances"
play an important role in
this application. It will be appreciated that if the schools'
allegedly unlawful conduct really comprises
no more than varying
forms of
"religious observances"
then s.15(2), perhaps more than s.15(1),
would provide a relatively circumscribed constitutional threshold
against which the conduct
would have to be measured. We revert to
this below.
[21]
The parties referred also to the s.7(2) constitutional obligation of
the State to promote the rights in the Bill of Rights,
the applicant
submitting that schools and SGBs as organs of state had concomitant
obligations. The equality provisions of s.9 (and
especially s
.
9(3))
were pertinent, as were s.10 (human dignity), s.12 (freedom and
security of the person), s.14
(privacy), s. 16 (freedom
of expression) and s.18 (freedom of association). The schools relied
too on s
.
31
(cultural, religious and linguistic communities)
.
[22]
Since this case is concerned with the right to freedom of conscience,
religion, thought, belief and opinion, it is apposite,
before
proceeding, to remind oneself of the approach that our courts, and
specifically the Constitutional Court, has adopted in
such matters.
As a general proposition it is suggested that the approach is - in
view of the diversity
[18]
of
our nation - one of neutrality and even-handedness; the State should
not be seen to be picking sides in
matters
religion, neither vis-a-vis "non-believers", nor vis-a-vis
other religions.
[23]
In S v Lawrence; S v Negal; S v Solberg
[19]
Chaskalson, P (then) said (with reference to s.14 of the interim
Constitution, for present purposes the same as s.15) (emphasis

suppled):
"[103]
Section 14(2) does not, in my view, provide justification for giving
an extended meaning to s 14(1).
Compulsory
attendance at school prayers would infringe freedom of religion
.
In the context of a school community and the pervasive peer pressure
that is often present in such communities, voluntary school
prayer
could also amount to the coercion of pupils to participate in the
prayers of the favoured religion
.
To guard against
this, and at the same time to permit school prayers, s 14{2} makes
clear that there should be no such coercion.
It is in this context
that it requires the regulation of school prayers to be carried out
on an equitable basis. 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 the 'non-believers
'.
But whatever s 14{2} may mean, and we have heard no argument on this,
it cannot, in my
view, be elevated to a constitutional principle incorporating by
implication a requirement into s 14(1) that the
State abstain from
action that might advance or inhibit religion.
"
[24]
In the same case, O'Regan, J said:
"[116]
I shall commence by considering the purpose and meaning of s 14 in
our Constitution. Unlike the Constitution of the
United States, our
Constitution contains no establishment clause prohibiting the
'establishment' of a religion by the State
.
Nevertheless, the
interim Constitution contains a range of provisions protecting
religious freedom. In s 8, the interim Constitution
prohibits 'unfair
discrimination' on grounds of religion. In s 3(c), every person is
given the right 'to
establish, where practicable, educational institutions based on a
common culture, language or religion, provided
that there shall be no
discrimination on the ground of race'. And, of course, s 14 protects
the freedom of religion. It is not
possible to read this array of
constitutional protections without realising that
our
Constitution recognises  that adherence to religion is an
important and valued aspect of the Jives of man y South Africans
and
that the Constitution seeks to protect, in several ways, the rights
of South Africans to freedom of r
eligion.
[117]
The provisions of s 14 themselves are instructive as to the manner in
which the right should be developed in our law. Section
14(1)
protects the right to freedom of religion and conscience. Section
14(2) then provides that religious observances may be conducted
at
State or State-aided institutions provided that they are conducted on
an equitable basis and attendance at them is free and
voluntary
.
..
.
[118]
…
[
119]
The
provisions of
s 14(2) of the interim Constitution make it clear that religious
observances at public institutions will not give
rise to
constitutional complaint if the observances meet three r
equirements:
the observances must be established under rules made by an
appropriate authority; they must be equitable; and attendance
at them
must be free and voluntary. It seems appropriate to imply from this
provision and from the absence of an express establishment
clause
that a strict separation between religious institutions and the State
is not required by our Constitution.
[120]
…
[121]
The stipulation of voluntariness is not the only precondition
established by s 14(2). The subsection requires that, even where

attendance is voluntary, the observance of such practices must still
be equitable. In my view,
this
additional requirement of fairness or equity
reflects an important
component of the conception of freedom of religion contained in our
Constitution. Our society possesses a
rich and diverse range of
religions. Although the State is permitted to allow religious
observances, it is not permitted to act
inequitably
.
[122]
In determining what is meant by inequity in this context, it must be
remembered that the question of voluntary participation
is a
consideration separately identified in s 14(2). The
requirement
of equity must therefore be something in addition to the requirement
of voluntariness. It seems to me that, at the least,
the requirement
of equity demands the State act even-handedly in relation to
different religions
.
...
Requiring
that the government act even-handedly does not demand a commitment to
a scrupulous secularism, or a commitment to complete
neutrality
.
Indeed, at
times giving full protection to freedom of religion will require
specific provisions to protect the adherents of particular
religions,
as has been recognised in both Canada and the United States of
America.90
The
requirement of even-handedness too may produce different results
depending upon the context which is under scrutiny. For example,
in
the context of religious observances at local schools, the
requirement of equity may dictate that the religious observances
held
should reflect, if possible, the religious beliefs of that particular
community or group. But for religious observances at
national level,
however, the effect of the requirement is to demand that such
observances should not favour one religion to the
exclusion of
others
.
[123]
The requirement of equity in the conception of freedom of religion as
expressed in the interim Constitution is a rejection
of our history,
in which Christianity was given favoured
status by government in
many areas of life regardless of the wide range of religions observed
in our society. Sachs J in his judgment
in this case has provided a
valuable account of the ways in which Christian principles were
endorsed by legislation and its practices
often imposed upon all
South Africans regardless of their beliefs (see paras [148]—[152]).
The
explicit endorsement of one religion over others would not be
permitted in our new constitutional order. It would not be permitted,

first, because it would result in the indirect coercion that Black J
adverted to in Engel v Vitale; and, secondly, because such
public
endorsement of one religion over another is in itself a threat to the
free exercise of religion, particularly in a society
in which there
is a wide diversity of religions. Accordingly, it is not sufficient
for us to be satisfied in a particular case
that there is no direct
coercion of religious belief. We will also have to be satisfied that
there has been no inequitable or unfair
preference of one religion
over others. "
Subsidiarity
[25]
We return below to the issues of diversity and of public schools'
endorsement of one religion over another. Before now dealing
with the
relevant subsidiary legislation, it is necessary first to say that
direct invocation of the Constitution for a cause of
action
inevitably invites a consideration of the principle of subsidiarity.
[26]
In My Vote Counts NPC v Speaker of the National Assembly and
Others,
[20]
the Constitutional
Court
(Cameron, J) wrote in this regard (emphasis supplied):
"[46]
Parliament's argument brings to the fore the principle of
subsidiarity in our constitutional law. Subsidiarity denotes
a
hierarchical ordering of institutions, of norms, of
principles,
or of remedies, and signifies that the central institution, or higher
norm, should be invoked only where the more local
institution, or
concrete norm, or detailed principle or
remedy,
does not avail. The word has been given a range of meanings in our
constitutional law. It is useful in considering the scope
of
subsidiarity, and Parliament's reliance on
it
-
to have them all in mind.
[52]
But it does not follow that resort to constitutional rights and
values may be freewheeling or haphazard.
The
Constitution is primary, but its influence is mostly indirect. It is
perceived through its effects on the legislation and the
common Jaw
-
to which
one must look first
.
[53]
These
considerations yield the norm that a litigant cannot directly invoke
the Constitution to extract a right he or she seeks to
enforce
without first relying on, or attacking the constitutionality of
legislation enacted to give effect to that right
.
This is the form of constitutional subsidiarity Parliament invokes
here. Once legislation to fulfil a constitutional right exists,
the
Constitution's embodiment of that right is no longer the prime
mechanism
for
its enforcement. The legislation is primary. The right in the
Constitution plays only a subsidiary or supporting role.
[54]
Over the past 10 years this court has often affirmed this. It has
done so in a range of cases. First, in cases involving social
and
economic rights, which the Bill of Rights obliges the state to take
reasonable legislative and other measures, within its available

resources, to progressively realise, the court has emphasised the
need for litigants to premise their claims on, or challenge,

legislation Parliament has enacted. In Mazibuko the right to have
access to sufficient water guaranteed by s 27(1)(b) was in issue.
The
applicant sought a declaration that a local authority's water policy
was unreasonable
.
But it did so
without challenging a regulation, issued in terms of the Water
Services Act, that specified a minimum standard for
basic water
supply services. This, the court said, raised 'the difficult question
of the principle of constitutional subsidiarity'.
O'Regan 1, on
behalf of the court, pointed out that the court had repeatedly held
'that where legislation has been enacted to give
effect to a right, a
litigant
should rely on that legislation in order to give effect to the right
or alternatively challenge the legislation as being
inconsistent with
the C
onstitution'.
The litigant could not invoke the constitutional entitlement to
access to water without attacking the regulation and,
if necessary,
the statute."
National
legislation
[27]
Legislation dealing with religious observances at public schools has
been enacted
.
The
legislation concerned includes both national and provincial
legislation; and of course, also the "rules" (whether
in
the form of mission statements or religious policies) made by SGBs
under s.20 (1) of the Schools Act, and in terms of the enabling

provisions of the various provincial Acts. And since the applicants'
case involves no attack on any of these forms of legislation
as being
inconsistent with the Constitution, it is necessary to consider the
originating source and the reach of these laws to
see whether they
were intended to give effect to the protection and enjoyment of s.15
rights at public schools.
[28]Starting
with the national legislation, under s.12 of the Schools Act, the
Member of the Executive Council of a province who
is responsible for
education in the province must from the provincial budget provide
public schools for the education of learners.
S.7 of the Schools Act
deals pertinently with freedom of conscience and religion at public
schools. It provides (emphasis supplied):
"7.
Freedom of conscience and
religion at public schools
Subject
to the Constitution and any applicable provincial l
aw,
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."
[29]
The correlation here with s.15(2) of the Constitution is
self-evident. In principle therefore, certainly as far as
"religious
observances"
are concerned,
the pathway to potential constitutional unlawfulness of the impugned
conduct must, on the principle of subsidiarity,
pass through s.7 of the
Schools Act before s.15(2) of the Constitution may be invoked
directly. The impugned conduct must therefore
either fall foul of s.7
of the Schools Act, in which event that is the basis of the
unlawfulness; or, assuming the conduct is legitimised
by
s.7 but is still alleged to
be constitutionally offensive, the applicant must attack the
constitutional validity of s.7. But as
we shall see below with
reference to the provincial laws,
s7
of
the Schools Act is really just a pass-through of the constitutional
imperative to these.
[30]
Other relevant provisions of the Schools Act include that the
governance of every public
school
is vested in its SGB (s.16(1)), which stands in a position of trust
towards the school (s.16(2)). The professional management,
as opposed
to governance, of the school is given over to the principal under the
authority of the head of the relevant education
department ("HOD")
(s.16(3)).The elected members of a SGB comprise members from parents
of learners, educators, non-educators
staff members, and learners in
the eighth grade or higher at the school (s.23(1),(2)). The number of
parents must comprise one
more than the combined total of the other
SGB members who have voting rights - in other words, the parents hold
statutory sway
over SGBs (s.23(9)).
[31]
A SGB functions in terms of a constitution compliant with minimum
requirements determined by the MEC (s.18(1)), and to be submitted
to
the HOD within 90 days of its election
.
In addition, every
member of a SGB must adhere to a code of conduct determined by the
MEC (s.18A(l),(3)), and this code of conduct
"must
be aimed at establishing a
disciplined
and purposeful school environment dedicated to the improvement and
maintenance of a quality governance structure"
(s.18A(2)).
[32]
In terms of s.20 of the Schools Act, the first four functions of a
SGB are to promote the best interests of the school and
to strive to
ensure its development through the provision of quality education for
all learners; to adopt a constitution; to develop
"the
mission
statement
of
the school";
and
to adopt a code of conduct for learners at the school (s.20 (1)(a) -
(d)).
[33]
Oversight of a SGB rests with the HOD who may withdraw a function of
a SGB (s.22), or when the SGB has failed to perform functions

allocated to it in terms of the Schools Act, appoint someone else to
perform it (s.25).
Provincial
legislation
[34]
Moving on then to the provincial laws, the first observation is that
in the event of a conflict between national legislation
and
provincial legislation falling within a functional area listed
in
sch
4 of the Constitution, provincial legislation prevails.
[21]
Importantly, each of the nine
provinces
has enacted legislation dealing amongst others with religion at
public schools.
[22]
The
relevant provisions of the nine provincial Acts are not identical,
but their essential thrust is, at least for present purposes,
the
same.
[35]
We will focus on the Gauteng Act and refer also to the Western Cape
Act. The Gauteng Act too
[23]
makes provision for the establishment of SGBs.
[24]
In regard to their relationship with matters religious at schools,
s.21A and s.22 are particularly pertinent (emphasis supplied):
"21A.
Religious policy of public schools.
(1)
The governing
body of a public school must determine the religious policy of the
school subject to the Constitution, the South African
Schools Act,
1996 (Act 84 of 1996), and this Act in consultation with the
Department.
(2)
The
religious policy of a public school shall be developed within
the framework
of the following principles:
(a)
The education process should aim at the development of a national,
democratic respect of
our country's diverse cultural and religious
traditions.
(b)
Freedom of conscience and of religion shall be respected at all
public schools
.
(3)
The governing body of a public school must submit a copy of the
school's religious policy to the Member of the Executive Council
for
vetting and noting within 90 days of coming into office, and as may
be required.
(4)
If, at any time,
the
Member of the Executive Council has reason to believe that the
Religious Policy of a public school does not comply
with
the principles set out in subsection
(2)
above or the requirement of the constitution,
the
Member of the Executive Council,
[25]
after
consultation
with the governing body of the school concerned, direct that the
Religious Policy of the school be formulated in accordance
with
subsection (1) and (2).
[S
.
21A inserted
by s. 15 of Act No. 5 of 2011
.
]
22.
Freedom of conscience.
(1)
No person employed at any public school shall attempt to indoctrinate
learners into any particular belief or religion
.
(2)
No person employed at any public school or independent school shall
in the course of his or her employment denigrate any religion.
(3)
(a) (i)
Every learner at a public school, or at an independent
school which  receives a subsidy in terms of section 69,
shall
have the right not to attend religious education classes and
religious practices at that school.
(ii)
In this regard the department shall respect the rights and duties
of parents to provide direction to their children
in the exercise
of their rights as learners, in a manner consistent with the evolving
capacity of the children concerned.
(b)
The right conferred by paragraph (a) on a learner at an independent
school which receives a subsidy in terms of section 69,
may be
limited where such limitation is necessary to preserve the religious
character of the independent school concerned.
(c)
Except
as is provided for in paragraph (b) no person employed at a public
school, or at an independent school which receives a subsidy
in terms
of section 69, shall in any way discourage a learner from choosing
not to attend religious education classes or religious
practices at
that school.
(4)
No person employed at a public school shall be obliged or in any way
unduly influenced to participate in any of the religious
education
classes or religious practices at that school."
[36]The
concept of a
"religious policy"
is defined in the
Gauteng Act:
'"religious
policy
'
of
a public school, as contemplated in section 21, includes matters
relating to-
(i)
the amount, form and content of religious instruction
[26]
classes
offered at the school; and
(ii)
the religious practices which are conducted at the school;
..."
[37]
Some observations concerning the provisions of the Gauteng Act
illustrate how both the constitutional s.15(1) and s.15(2) rights,

certainly as far as they pertain to public schools, have percolated
down from the Constitution, through the national legislation
in the
form of the Schools Act, and down into the provincial legislation.
[38]
First, s.7 of the Schools Act refers to
"religious
observances"
as
does s.15(2) of the Constitution, and subjects such observances to
the Constitution and
"any
applicable provincial law".
The
Gauteng Act does not limit its reach to
"religious
observances",
but
provides that a public school must have a
"religious
policy"
as
defined. This definition is not limiting but inclusive, and apart
from
"religious
practices",
which
is similar to the notion of
"religious
observances",
also
includes
"the
amount, form and content of religious instruction classes offered at
the school".
The
point is, the Gauteng Act does not, as with s.7 of the Schools Act,
deal only with
"religious
observances",
but
also with other aspects of relig
i
on
at public schools in the province.
[39]
Second, the religious policy must be determined by the SGB, subject
to the Constitution, the Schools Act, and the Gauteng Act,
but
importantly,
"in
consultation with the Department.
"
[27]
It
is worth repeating that it is the SGB, not the school, which is
vested with the governance of the school; the professional management

of the school is given over to the principal, who
does
so under the authority of the HOD.
[28]
[40]
The interface with the department is important. It was observed by
Moseneke, DCJ in Head of Department: Mpumalanga Department
of
Education and Another v Hoerskool Ermelo and Another,
[29]
that education at public schools is the responsibility of a
tripartite partnership made up of the SGBs, the provincial and the

national departments:
"[56]
An overarching design of the Act is that public schools are run by
three crucial partners. The national government is
represented by the
Minister for Education whose primary role is to set uniform norms and
standards for public schools.
37
The
provincial government acts through the M EC for Education who bears
the obligation to establish and provide public schools
38
and,
together with the Head of the Provincial Department of Education,
exercises executive control over public schools through principals.
39
Parents
of the learners and members of the community in which the school is
located are represented in the school governing body
40
-
which exercises defined autonomy over some of the domestic affairs of
the school.
41
”
[41]
This interface is evident not only in the MEC's oversight function
relative to the contents of the religious policy, but also
in the
oversight function generally conferred on the HOD in respect of
SGBs.
[30]
[42]
Third, the Gauteng Act anticipates that there would be
"religious
education classes and
religious practices"
at a school.
These must be incorporated in the religious policy of the school,
which will include
"the
amount, form and contents of religious instruction classes offered at
the school",
as
well as of the
"religious
practices"
that
are there conducted.
[43]
Fourth, the religious policy must be developed having due regard to
the need to develop a national, democratic respect for
this country's
diverse cultural and religious traditions; and it must respect
freedom of conscience and of religion. And the fifth
observation is
that the relevant MEC must vet the policy. If at any time the MEC has
reason to believe that the
policy
does not comply with the principles laid down in s
.
21A(2),
she may - after consultation with the SGB - direct its reformulation.
[44]
Reverting then to the principle of subsidiarity: whatever the full
ambit of the notion of
"religious
observances"
in s.7 of the Schools Act,
a topic to which we return below, it is suggested that it is similar
to the concept of
"religious practices"
as features in the Gauteng Act. But it is
suggested that the concept of a
"religious
policy ",
as will have been seen, goes
further. It includes also the amount, form and contents of religious
instruction classes offered at
the school. This implies that the
Gauteng Act reaches beyond s.15(2) of the Constitution and also
regulates the application of
at least certain aspects of s.15(1) of
the Constitution at public schools.
[45]
If this is correct, as we believe it is, then again the applicant's
pathway to potential constitutional unlawfulness of the
impugned
conduct - whether the conduct is classed as
"religious
observances"
or
not
-
must,
on the principle of subsidiarity, in principle also pass through the
Gauteng Act, at least as far as the province of Gauteng
is concerned.
[46]
The Western Cape Act also provides for the establishment and
government functions of a SGB
.
[31]
S.44
of that Act provides as follows:
“
44.
Subject to the provisions of sections 6 and 7 of the South African
Schools Act, 1996 (Act 84 of 1996), the language policy and
the
religious observances at a public school shall be determined by its
governing body: ...".
So
in that province too
"religious
observances"
must
be determined by the SGBs
.
This section of the
Western Cape Act too, it is suggested, as with the Gauteng Act,
having received the baton of responsibility
for formulating
"religious
observances"
from
the Constitution through the Schools Act, passes it on to the SGB of
each particular school. But the Western Cape Act appears
not to go as
far as does the Gauteng Act
.
[47]
The final level of laws that govern religious matters, including
religious observances, at public schools then repose within
the rules
made by the SGBs, as s.7 of the Schools Act
already
expressly envisages, and as the two provincial Acts with which we are
most concerned, readily acknowledge and circumscribe
(although in
Gauteng more so than in the Western Cape). These rules may be laid
down as part of the "governance" function
of the SGBs as
founded in s
.
16
of the Schools Act; or they may take the form of a mission statement
developed under s.20(1)(c) of that Act; or the code of conduct

adopted under s
.
20(1)(d)
of that Act; or the religious policies determined under (say) s.21A
of the Gauteng
Act
.
[32]
These
laws were annexed by the schools to their answering affidavits, but
they did
not
found the applicant's case.
[48]
The conclusion on this part of the judgment is therefore that there
exists in this country a body of laws dealing with religious
matters,
including religious observances, at schools, starting with s.15 of
the Constitution as its pinnacle, and thence devolving
down through
national legislation to provincial legislation and ultimately to a
patchwork of laws at individual school level, increasing
in
specificity of focus and application as the reach descends. We return
below to the consequence of this conclusion for the applicant's
case.
The
National Religion Policy
[49]
The second main strut of the applicant's case was the applicability
of the National Religion Policy as generally applicable
law, directly
enforceable against the schools.
[33]
[50]
The schools argued in this regard that, in principle, a policy laid
down by the Minister cannot constitute law
.
Here they relied on
the judgment of Harms, JA in Akani Garden Route (Pty) Ltd v Pinnacle
Point Casino (Pty) Ltd, for the following
principled position
(emphasis supplied)
:
"[7]
The word "policy" is inherently vague and may bear
different meanings. It appears to me to serve little purpose
to quote
dictionaries defining the word
.
To draw the
distinction between what is policy and what is not with reference to
specificity is, in my view, not always very helpful
or necessarily
correct. For example, a decision that children below the age of six
are ineligible for admission to a school, can
fairly be called a
"policy" and merely because the age is fixed does not make
it less of a policy than a decision that
young children are
ineligible,
even
though the word "young" has a measure of elasticity in it.
Any course or program of action adopted by a government
may consist
of general or specific provisions. Because of this I do not consider
it prudent to define the word either in general
or in the context of
the Act. I prefer to begin by stating the obvious, namely that laws,
regulations and rules are legislative
instruments whereas policy
determinations are not. As a matter of sound government, in order to
bind the public, policy should
normally be reflected in such
instruments. Policy
determinations
cannot override, amend or be in conflict with laws (including
subordinate
legislation).
Otherwise the separation between legislature and executive will
disappear. Cf Executive Council, Western Cape Legislature,
and Others
v President of the Republic of South Africa and Others {1995] ZACC 8
[1995] ZACC 8
; ;
1995 (4) SA 877
(CC) par 62. In this case, however, it seems that the
provincial legislature intended to elevate policy determinations to
the level
of subordinate legislation, but leaving its position in the
hierarchy unclear: does it have precedence above ministerial
regulations
and Board rules where these form part of the definition
of "the Law"? The inadvisability of having yet another
level
of subordinate legislation is immediately obvious; its legality
was not debated and need not be decided and I shall assume its
propriety for purposes of this judgment.
One
thing, however, is clear: policy
determinations cannot
override the terms of the provincial Act for the reasons already
given.
Where,
for instance, the provincial Act entrusts the minister with the
responsibility of determining the maximum permissible number
of
licences of any particular kind that may be granted in a particular
area (s 81(1)(d)), the cabinet cannot regulate the matter
by means of
a policy determination, something it did. Likewise, where s 37 (1)(1)
empowers the Board to impose conditions relating
to the duration of
licences, the cabinet cannot prescribe to the Board by way of a
policy determination that, for instance, casino
licences shall be for
a period of ten years, something else it did.
In
other words, the cabinet cannot take away with
one hand that which the
lawgiver has given with another.
"
[51]
The Minister, to whom the applicant deferred on this issue, in turn
submitted that whether or not such a policy was enforceable,
depended
on whether or not it was intended, in its terms, to be enforceable.
She referred here specifically to paragraphs 54 to
57 of the National
Religion Policy for the proposition that clearly those
provisions,
[34]
but the others
not, were intended to be enforceable. Assuming that constitutional
separation of powers is
not
compromised if empowering legislation expressly authorised policy
formulation, much like regulation, the enquiry reverts to
the terms
of this policy.
[52]
And here it seems that the policy expressly disqualified itself from
being regarded as enforceable law. To the contrary, Prof
Asmal, the
then Minister of Education in the National Government, expressly
spelled out in the foreword that the policy was intended
merely to
establish broad parameters within which people of goodwill could work
out common ground (emphasis supplied):
"What
we are doing through this Policy is to extend the concept of equity
to the relationship between religion and education,
in a way that
recognises the rich religious diversity of our land. In the Policy,
we do not
impose any narrow prescriptions or ideological views
regarding
the relationship between religion and education.
Following
the lead of the Constitution and the
South African Schools Act, we
provide a broad framework
within
which people of goodwill will work out their own approaches. "
[53]
That approach is echoed in the policy itself (emphasis supplied):
"1.
In this document we set out the policy on the relationship between
religion and education that we believe will best serve
the interests
of our democratic society. The objective is to influence and shape
this relationship, in a manner that is in accordance
with the values
of our South African Constitution. In recognising the particular
value of the rich and diverse religious heritage
of our country,
we
identify the distinctive contribution that religion can
make
to education, and that education can make to teaching and learning
about religion, and
we
therefore promote the role of religion in e
ducation.
In doing so we work from the premise that the public school has an
educational responsibility for teaching and learning
about religion
and religions, and for promoting these, but that
it
should do so in ways that are different from the religious
instruction and religious nurture provided by the h
ome,
family, and religious community.
2.
We do so also in the recognition that there have been instances in
which public education institutions have discriminated on
the grounds
of religious belief, such that greater definition is required. In
many cases pupils of one religion are subjected to
religious
observances in another, without any real choice in the matter.
The
policy is not prescriptive, but provides a
framework for schools
to determine policies, and for parents and communities to be better
informed
of their rights and responsibilities in regard to religion and
education. The policy genuinely advances the interests of
religion,
by advocating a broad based range of religious activities in the
school."
[54]
In the result, in our view, it must be concluded that the National
Religion Policy affords no direct basis of unlawfulness
of the
impugned conduct. This is not to say that it has no role or
legitimacy in the current debate. Clearly it has intra-governmental

force as a policy direction, and in that regard
it
will legitimately
inform the MEC and HOD in their assessment of SGB's
laws insofar as they deal
with religious policies, mission statements, and codes of conduct.
The ample reach of its language appropriately
affords accommodation
of the potentially wide variety of religious practices that could
legitimately be permitted at public schools.
The
implication of subsidiarity for the applicant's case: conclusion
[55]
Accordingly, by the principle of subsidiarity, in this matter an
applicant who contends that religious conduct at a public
school is
unconstitutional in that it offends s.15 of the Constitution, must
either found its case on a contravention of an applicable
SGB rule
or, if it contends that the conduct is unconstitutional despite being
consonant with the SGB rules, it must attack the
relevant SGB rules
as being unconstitutional.
[56]
The policies of the SGBs made for the six respondent schools are
attached to the papers.
[35]
The
applicant did not suggest that any provision of any of the rules in
these policies was unlawful. It rested its case for unlawfulness

solely on two overarching grounds: a direct call on the
Constitution
[36]
and a direct
call on the National Religion Policy.
[37]
Its case therefore contended for unlawfulness of the conduct,
irrespective of whether national legislation, provincial legislation,

or the SGB rules might have provided validation of the impugned
conduct.
[57]
If these subsidiary legislative instruments were then intended to
provide embodiment, lower down, of the relevant primordial

constitutional rights, then subsidiarity requires that the applicant
makes it pathway bottom up through those. Does the set of
national,
provincial and school specific local legislation referred to above
provide embodiment of the s.15 religious freedom rights
at public
schools?
[58]
In our view those instruments do, for the following reasons. First,
taking the Gauteng Act as a lead, it obliges in specific
terms the
SGBs to determine religious policies that will deal with the amount,
form and content of religious instruction classes
offered at schools,
as well as the religious practices, or
"religious
observances",
that
are conducted at the school. Those
must
be developed within the framework of certain principles,
[38]
and these principles stress
the
development of a national, democratic respect of our country's
diverse cultural and religious traditions, as well as respecting

freedom of conscience and of religion.
[59]
Although the Western Cape Act does not come with the same detailed
provisions, it does - as was to be expected given the broad

significance of "governance"
[39]
- locate the responsibility for the religious observances at a public
school within the SGBs
.
Granted,
that is not yet of itself an embodiment of the right, but both the
5th and the 6th respondents'
SGBs
have formulated religious policies,
[40]
and they expressly deal head on with religious matters at the
schools. Since the SGBs were statutorily empowered to determine those

policies, if only by dint of their governance powers, they stand
until set aside.
[60]
Second, in our view, the framers of the Constitution, the originators
of the notion of
"religious
observances"
in
s.15(2) of the Constitution that also found its way into s.7 of the
Schools Act, in any event intended an expansive meaning to
be given
to that notion, intending that subsidiary and more specific laws
would provide on the ground execut
i
on
of the principles there captured.
[61]
For one, s.15(2) applies to all state or state-aided institutions.
That includes many very differing institutions, and the
scope for
differing applications of the standard would therefore have to be
wide. Applied to the public school milieu, those legitimately

interested include not only learners and their parents, even if the
focus is on them; but also educators and society, both
microcosmically
and nationally.
[62]
What about the applicant's argument that s.15(2) is limited to
religious observances, not religious branding, and specifically
not
the all-embracing freedom conferred under s.15(1) of the
Constitution? And allied to that, what about its argument its
argument
that s.15(2) affords only entitlement to conduct religious
observances "at", not "by", public schools?
[63]
In our view, s.15(1) of the Constitution sets, as the applicant
submits, the all-embracing right. But first, and certainly
in the
case at least of Gauteng, the provincial legislation has explicitly
gone further than conferring on SGBs merely the power
to make rules
dealing only
with
"religious
observances",
as
has been pointed out above. Second, in our view s.15(2) of the
Constitution focusses on all forms of external manifestations
[41]
of freedom of religion, conscience and belief at state (and
state-aided) institutions.
[64]
And specifically, it appreciates that where in a single state
institution there may be many individuals, and many differing

religious or non-religious belief systems, a local authoritative
power is best situated to regulate those necessary interactions.

Applied to the statutory tripartite partnership management of public
schools, the primary power vests in the SGB, but of course
it is
exercised consultatively bottom up, through the HOD, MEC and
ultimately the Minister in the National Government through the

National Religion Policy.
[65]
And so, the concept of
"religious
observances"
embraces,
particularly at public schools, all external manifestations of belief
systems, and so at these schools at least, its regulation
devolves
down through the Schools Act, through the provincial Acts, and into
the rules of SGBs
.
[66]
That approach also answers the
"by"
or
"at"
debate
:
in our view, to seek
to differentiate in this respect is to take too narrow a view of the
constitutional appreciation for practicalities.
The SGBs in their
tripartite partnership, but no-one else, govern public schools. If
outside religious instructors were to be permitted
on the school
premises, it will occur only if the SGBs laid down the conditions
under which this would occur. So s.7 of the Schools
Act refers to
"religious
observances"
at
a public school, whoever conducts them
at
the public school acting on
authority of the SGB.
[67]
What about the notion that any religious observances at public
schools may, irrespective of the SGB rules, legitimately tested
under
the second and third measures set out in s.7 of the Schools Act,
namely
"equitable"
conducting
of such observances, and “
free and
voluntary"
attendances at the
observances?
[68]
The first answer is that the applicant did not found its case on s.7
of the Schools Act. But second, we believe that the rules
envisaged
under the first measure
("rules issued by
the governing body")
of s.7 are actually
required to comply with the second and third measures
("equitable",
and “
free and
voluntary "),
for the following reason.
[69]
It is difficult to conceive of an unlawfulness attack that says
irrespective of what the SGB rules may provide, the impugned
conduct
- measured without any reference to any of the SGB rules - offends
standards of equitability and voluntariness. Surely
the answer, on
the principle of subsidiarity, is that the SGB has considered and
dealt with what may be equitable, or free and
voluntary, within the
particular facts set; and it has laid down a rule that legitimises
the conduct. It is different, of course,
if the SGB rules have not
dealt with the topic, but no such case is mounted here.
[70]
It follows that in our view the principle of subsidiarity applies,
and that the applicant's cause of action has not been framed
on the
basis of a recognition of its reach
.
Relief?
[71]
It will have become apparent from the above that the true actors on
the respondents' side, the bodies in which the governance
of the
schools repose, are the relevant SGBs. Not one has been joined in the
application
.
The
response that they signed confirmatory affidavits does not assist in
making them parties against whom, if the applicant were
right, orders
could issue. It would follow that, from the perspective of
interdictory relief, a clear right against the schools
themselves has
not been shown, and the interdicts sought are, apart from anything
else, not available against the schools.
[72]
More fundamental, however, is the issue whether, even if the SGBs had
been joined, relief could have been granted against them,
whether
interdictory or otherwise. We defined at the outset the true issues
as being threefold
:
whether a public
school may hold itself out as a Christian school and if so, to what
extent; second, whether a public school itself
may conduct religious
observances and the extent to which these may be religion-specific;
and whether a learner may be asked to
convey whether or not that
learner adheres to a particular (religious) faith.
[73]
We have concluded that in principle these are matters for regulation
at grass roots, SGB level; and that the principle of subsidiarity

requires that in this case a constitutional attack must be founded on
the level of that regulation, and not directly on the Constitution

itself. The schools' policies did form part of the applicant's
founding affidavits, but of the schools' answering affidavits. No

cause of action was formulated on such regulation, and consequently
no analysis of the policies was done. No particular clause
or
paragraph in them was lifted out for scrutiny.
[74]
This is not just a technical point. Consider the myriad of detailed
instances of conduct that the applicant attacks in its
amended notice
of motion; and consider concomitantly the myriad of detail
arrangements covered by the schools' religious policies.
A court is
not capable of fishing through those policies to discern whether any
of the conduct complained of is actually covered
by those policies
.
Nor is it
appropriate to do; our system of civil
procedure is adversarial
for good
r
eason:
so that opposing positions can properly be taken and evolved, thereby
better assisting a court in arriving at an appropriate
conclusion.
[75]
Quite apart from this consideration, there is the following
.
It will be recalled
that the SGBs' religious policies must, at least in the case of
Gauteng, be submitted to the MEC for vetting
and noting within 90
days of an SGB coming
i
nto
office. Assuming that that requirement had been complied with in this
case, those policies will have been approved by the middle
partner in
the management of public schools
.
[76]
But it goes further. As pointed out, again at least in Gauteng, the
MEC has the power in given circumstances to direct that
the religious
policy of a school be reformulated
.
And so, had the
policies properly come up for adjudication, the provincial government
wou
l
d
have had a direct and substantial interest in the matter. It is not a
party to this litigation
.
[77]
These considerations lead to the conclusion that interdictory relief
cannot be granted, whether or not it is dressed up as
declaratory
relief.
Diversity
[78]
We remain concerned nonetheless about the first issue, that of single
faith branding; or, perhaps less secularly put, that
of holding out
that a public school endorses one particular religion to the
exclusion of others
.
This issue is
pertinently raised in those terms in the very first two declarations
sought by the applicant.
[79]
The question may also be put this way: May a public school
,
through rules laid
down by i
t
s
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? Or
:
accepting a notional
feeder community of 100% single religion parents, could it ever pass
the muster of the need for a national,
democratic respect for our
country's d
i
verse
cultural and religious traditions, for that school to brand itself as
adhering to that particular single faith to the exclusion
of others?
[80]
The respondent schools accept that in given instances they, the
schools, have adopted Christianity as the basis for their ethos.
In
particular, the respondent schools accept that they endorse
Christianity insofar as they have adopted it as the basis for their

ethos
.
[42]
The
schools
submitted:
"The
substance of the aforesaid is that in each of the respondent schools,
human interaction in the education process is conducted
on the basis
of Christian values and Christian values are imparted to
learners
.”
[43]
In
argument, the schools did not accept that
their acceptance of a
single faith in this way was to the exclusion of others.
[81]
Their central submission was said to be justified by the respondents'
expert submissions that leaners are more susceptible
to absorbing
universally accepted good values such as honesty and hard work, if
these were taught as integrated within the ethos
of a particular
religion.
[82]
In considering this question, something more needs to be said about
diversity, particularly in the context of public schools.
Public
schools are juristic entities and organs of State.
[44]
The Constitution recognises that the society within which public
schools function is diverse. The relevant portion of the Preamble
to
the Constitution has been referred to above, but is
quoted
again here:
"We
the people of South Africa ... Believe that South Africa belongs to
all who live in it united in our diversity."
The
need to celebrate this diversity has been emphasised in our
judgments.
[45]
The concept of
the unity of our nation from this diversity is well-known and has
often been recognised.
[46]
[83]
The Constitution provides
in
its
Preamble that it lays the foundations for a democratic and open
society in which every citizen is equally protected by law and

establishes a society
based
on democratic values, social justice and fundamental human rights.
Everyone is equal before the law and entitled to fully
and equally
enjoy all rights and freedoms.
[47]
[84]
Paragraph 31 of the Constitution reads as follows:
"31
Cultural, religious and linguistic communities
(1)
Persons belonging to a cultural, religious or linguistic community
may not be denied the right, with other members of that community-
(a)
to enjoy their culture, practise their religion and use their
language; and
(b)
to form, join and maintain cultural, religious and linguistic
associations and other organs of civil society.
(2)
The rights in subsection (1) may not be exercised in a manner
inconsistent with any provision of the Bill of Rights".
[85]
The Constitution requires the freedom with which it deals to be
exercisable by any person in society irrespective of whether
or not
s/he resides in a particular smaller community or not. The fact that
a smaller community may coincidentally as a result
of history or
otherwise have a particular character does not entitle that community
to legislate interests in conflict with the
interests legislated for
the greater community of which it forms an integral part
.
[86]
The Schools Act provides for a uniform system for the organisation,
governance and funding of schools. It records in the preamble
that
the achievement of democracy in South Africa has consigned to history
the past system of education which was based on racial
inequality and
segregation. It states that the country requires a new national
system for schools which will address past injustices
in educational
provision, provide an education of progressively high quality for all
learners
.
[87]
In doing so this new national system will lay a strong foundation for
the development of all the country's peoples, talents
and
capabilities and advance the democratic transformation
of society, combat racisms
and sexism and all other forms of unfair discrimination and
intolerance. It will contribute to the eradication
of poverty and
economic well-being of the society and protect and advance the
country's diverse, cultures and languages while upholding
the rights
of learners, parents and educators and promoting their acceptance of
responsibility for the organisation, governance
and funding of
schools in partnership with the State.
[88]
Inherent in the establishment of public schools is that all share in
and participate fully in the schooling system as individual
schools
comprising that system. All children in the Republic are
required
to
attend school up to the age of 15 years.
[48]
[89]
At the level of principle then, the overarching constitutional theme
is that our society is
diverse,
that that diversity is to be celebrated, and that specific rights are
conferred and dealt with in pursuance of that principle.
Within this
context, public schools are public assets which serve the interests
of society as a whole.
[90]
The SGBs are required to respect this.
[49]
In Fedsas it was said:
[50]
"Public
schools are not
rarefied spaces only for the bright well-mannered and financial well-
yield learners. They are public assets which
must advance not only
the parochial interests of its immediate learners but may, by law,
also be required to help achieve universal
and non­discriminatory
access to education".
[91]
Neither the Constitution nor the Schools Act confers on a public
school or SGB the right to adopt the ethos of one single religion
to
the exclusion of others. Rather, the Constitution authorises and the
subsidiary laws to which we have referred provides for
appropriately
representative bodies that are required to make rules that provide
for religious policies and for religious observances
that are to be
conducted on a
"free
and voluntary"
and
on an
"equitable"
basis.
And, as we have seen,
"this
requirement of equity demands the State act even-handedly in relation
to different religions. "
[51]
[92]
Returning then to the question posed at the outset of this section,
namely whether a public school may hold out that it has
adopted one
religion to the exclusion of others, we suggest the answer is No, for
these reasons. First, feeder communities continually
evolve, and must
be encouraged to evolve, given an unnatural residential demographic
configuration that has resulted from historic
laws that were racially
skewed.
[93]
Second, take the case of the minority religion (or non-religion)
affiliated learner who, driven by economic and other circumstances
to
have no choice in the matter, attends a school that has adopted an
ethos based on a religion not only other than her own, but

exclusionary of her own. Even accepting the existence of SGB rules
that make non-attendance at religious observances voluntary
and
substantively free and fair, does the fact that the school holds
itself out as subscribing to the ethos of a religion different
from
and exclusionary of hers, likely inculcate a
_
sense
of inferior differentness in her? Not always and not necessarily,
depending on the learner; but we think it could
.
[94]
But whether or not a particular learner could be or is affected, the
Gauteng Act expressly provides that the religious policy
of a public
school must be developed within a framework that accepts that the
education process should aim at the development of
a national,
democratic respect of our country's diverse cultural and religious
traditions, and that accepts that freedom of conscience
and of
religion must be respected at all public schools.
[52]
[95]
This fits a twin theme often raised during argument, and accepted by
all, namely first, that we are not a secular State and,
second, that
in this country our diversity is celebrated, not tolerated.
[96]
Third, accepting as one must, that the SGB rules must provide
equitably for all faiths (given present and evolving future
demographics), would the adoption of a single faith brand that
excludes others not misrepresent the legally required position? That

learners of all faiths are (should be) welcome? We think it would.
[97]
The question is then whether it would be appropriate for this court
to issue a declaratory order, acting under the power afforded
under
s.172(2)(b) of
the
Constitution, read
with s.21(1)(c) of the Superior Courts Act? In our view it would,
principally for these reasons. First, the issue
was fully canvassed
before us over a period of three days, with nine parties putting up
comprehensive submissions. Second, the
issue is of considerable
importance to many parents, educators, and learners.
[98]
And third, we are reminded of the passage of Froneman J and Skweyiya
J in Welkom quoted above, that s.172(2)(b)permits a court
to identify
the real dispute between the parties and would place substance over
form. Granted, here - given the absence of the
SGBs as joined parties
- this court would not be able to make an order against them, such as
requiring them to resubmit their religious
policies to the MEC. And
given the principle of subsidiarity, the issue of religion at public
schools is a matter dealt with in
the subsidiary laws to which we
have referred, and causes of action should, in principle, be founded
there.
[99]
But it is suggested that the protagonists here are plainly interested
parties and declaratory relief, without any concomitant
consequential
orders, may legitimately serve as a gu
i
de
to them.
[100]There
is the question of the reach that such a declaratory order should
assume. The applicant's list of allegedly unlawful
conduct is
comprehensive, as we have remarked at the outset. We have found that
the principle of subsidiarity could conceivably
legitimise,
depending on the peculiar
circumstances pertaining at a particular school, some of the conduct
targeted in the notice of motion,
but that whether it does, is a
matter for the SGS and the department in the first instance
.
We have found too
that if such conduct is considered unlawful, the principle of
subsidiarity required either that the appropriate
SGS rule be
attacked as unconstitutional or that the conduct must be attacked as
offending the appropriate SGS rule.
[101]
We have however also found, at the level of principle, that neither
an SGS nor a public school may lawfully hold out that
it subscribes
to only a single particular religion to the exclusion of others. In
these circumstances a declaratory order should
not, in our view,
extend any further than what we have concluded at the level of
principle, nor any further than the first two
prayers of the
applicant's amended notice of motion.
[102]
In the circumstances we issue the following order:
(a)
It is declared that it
offends s.7 of the Schools Act, 84 of 1996 for a public school –
(i)
to promote or allow its
staff to promote that it, as a public school, adheres to only one or
predominantly only one religion to
the exclusion of others; and
(ii)
to hold out that it
promotes the interests of any one religion in favour of others.
(b)
The remainder of the relief
claimed is refused
.
(c)
There is no order as to
costs.
_______________
CG
Lamont
Judge,
High Court
Johannesburg
______________
WHG
van der Linde
Judge,
High Court
Johannesburg
______________
NTY
Siwendu
Judge
High Court
Johannesburg
For
the applicant: Adv. H.B. Marais, SC
Adv.
H.P. Van Nieuwenhuizen
Adv.
N. Nxumalo
Instructed
by:
Kevin
Hyde Attorneys
210
Matagorda Avenue
Berario
Johannesburg
Tel:
011678 1493
Ref:
KJH/OGOD001
For
the first - sixth respondents: Adv. J.I. Du Toit, SC
Adv.
A.J. D'Oliviera
Adv.
J. Merabe
Adv.
J
.
Raizon
Instructed
by:
Hurter
& Spies Inc
151
Floor Afriforum Building
Cnr
Union and DF Malan Drive
Kloofsig
Centurion
Tel:
012 664 0708
Ref:
W.G. Human/W1451
For
the seventh and eighth respondents: Adv. M. ChaskaIson, SC
Adv
.
B.D. Lekokotla
Instructed
by:
The
State Attorney
10
th
Floor, North State Building
95
Market Street
Johannesburg
Tel:
011330 7635
Ref:
R Nemakonde/jev
5709/14/P43/jev
For
the ninth respondent: Adv. S. Yacoob
Adv.
L. Zikalala
Adv.
J. Griffiths
Instructed
by: Farah Parker
46
Paddocks Crescent
Bluehills
Country Estate
(c/o
Les Cohen Attorneys)
4
Fricker Road, Sandton
For
the first amicus: Adv. A. Hassim
Adv.
N. Stein
Instructed
by:
Section
27
5th
Floor Braamfontein Centre
23
Jorissen Street
Braamfontein
Johannesburg
Tel:
011356 4100
Ref:
Ms K Paterson
For
the second amicus: Adv
.
G. Engelbrecht
Adv.
A
.
Montzinger
Instructed
by
:
Smit
& Viljoen Attorneys
c/o
Nelson Borman & Partners
17th
Floor Schreiner Chambers
94
Pritchard Street
Johannesburg
Tel:
011333 1083
Ref:
J. Kruger
For
the third amicus: Adv. R.S
.
Willis
Adv.
N. Badenhorst
Instructed
by
:
Motla
Conradie Incorporated
c/o
Uys Jordaan Attorneys
Room
1718 Scheiner Chambers
94
Pritchard Street
Johannesburg
Tel:
011 333 2136
Ref:
U. Jordaan/T. Conradie
For
the fourth amicus: Adv. A.J. Lauw, SC
Instructed
by:
Kriek
Wassenaar & Venter Incorporated
Tel:
012 803 4719
Ref:
P Wassenaar/js/QB0035
c/o
Glynn Marais Attorneys
2
nd
Floor, The Place
1
Sandton Drive
Johannesburg
Ref:
R January/ B Bester/14255-0001
For
the fifth amicus: Adv. A.T. Lamey
Instructed
by:
Serfontein,
Viljoen & Swart
165
Alexander Street
Brooklyn
Pretoria
Tel:
012 362 2556
Ref:
SP Swart/ Nanje
Date
argued: 15, 16 & 17 May, 2017
Date
judgment: 28 June, 2017
[1]
The ninth respondent was admitted
without objection on the first day of a three day hearing.
[2]
We express our gratitude to them for
their helpful assistance.
[3]
Conditional on the National Religion
Policy being interpreted in a particular way.
[4]
Determined by the Minister of
Education in terms of
s.3(4)(1)
of the
National Education Policy Act
27 of 1996
, Gov Notice No.1307, 12 September 2003, published in
Government Gazette No 25459 of 12 September 2003.
[5]
Prayer 2.1.2 .
[6]
Prayer 2.3.5.
[7]
The detailed relief sought would take
up too much space to be set out here. The amended notice of motion
comes to some thirteen
and a half pages, and it lists detailed
practices alleged to be conducted at the schools.
[8]
Setlogelo v Setlogelo, 1914 AD 221.
[9]
2014 (2) SA 228 (CC).
[10]
2006 (6) SA 416 (CC).
[11]
Applicant's heads of argument, paras
Dl.1 and Dl.2. The applicant referred in para A2.2 of its heads to
s.7 of the Schools Act
in the context of its own objectives, but it
did not found its case on it.
[12]
Schools' heads, para 49.
[13]
This provision effectively mirrors
s.15(2) of the Constitution .
[14]
Welkom supra, para [130].
[15]
Prayers 1.1 and 1.2 are for
declarations that it is a breach of the National Religion Policy and
unconstitutional for any public
school to "promote or to allow
its staff to promote that it, as a public school, adheres to only
one or predominantly one
religion"; and "hold out that it
promotes the interests of any one religion in favour of others."
But there are
many other forms of declarations and interdicts that
go to this issue; see for example prayers 2.1; 2.2; 2.3.4; 2.3.6;
2.3.9;
2.3.11; 2.3.18; 2.3.20; 2.3.22; 2.4.2; 2.4.7; 2.4.8; 2.4.9;
2.4.10; 2.5.1; 2.5.5.3; 2.6.1.1; 2.6.1.2; 2.6.3; and 2.6.5.1.
[16]
Prayer 1.4 is for a declaration that
it is a breach of the National Religion Policy and unconstitutional
for any public school
to "require any learner, either directly
or indirectly, to disclose whether or not such learner adheres to
any religion";
and "to which religion, if any, the learner
adheres."
[17]
In terms of sch 4 of the
Constitution, the functional areas of concurrent national and
provincial legislative competence include
"Education at all
levels, excluding tertiary education."
[18]
The constitutional preamble records
that "We, the people of South Africa ... Believe that South
Africa belongs to all who
live in it, united in our diversity."
[19]
1997 (4) SA 1176
(CC}. The lengthy
quotation is regretted but unavoidable.
[20]
2016 (1) SA 132 (CC).
[21]
See s.146(5) of the Constitution,
provided s.146(2) or (3) do not apply, and it is suggested that they
do not. See also Federation
of Governing Bodies for South African
Schools v Member of the Executive Council for Education, Gauteng and
Another
2016 (4) SA 546
(CC) at para [25] to [29].
[22]
Gauteng School Education Act 6 of
1995 ("the Gauteng Act"); the Western Cape Provincial
School Education Act 12 of 1997
("the Western Cape Act");
the Eastern Cape Schools Education Act 1of 1999 ("the Eastern
Cape Act"); the KwaZulu-Natal
School Education Act 3 of 1996
("the KwaZulu-Natal Act"); the Free State School Education
Act 2 of 2000 ("the
Free State Act"); the Limpopo School
Education Act 9 of 1995 ("the Limpopo Act"); the Northern
Cape School Education
Act 6 of 19996 ("the Northern Cape Act");
the North-West Schools Education Act 3 of 1998 ("the North-West
Act");
and the School Education Act (Mpumalanga) 8 of 1995
("the Mpumalanga Act").
[23]
As with s.16 to s.20 of the Schools
Act.
[24]
5.26.
[25]
Note that the verb is incomplete in
the published version of the Gauteng Act. In s.21 before its
deletion the missing word was
"may".
[26]
One of the prayers sought in the
notice of motion, prayer 2.1.6, is an interdict against any school
"rendering religious
instruction". This provision of the
Gauteng Act requires that the religious policy to be determined by
the SGB must include
detail about the religious instruction classes
offered at schools.
[27]
This is a reference to the provincial
education department.
[28]
Compare s.16 of the Schools Act.
[29]
2010 (2) SA 415 (CC).
[30]
S.30 of the Gauteng Act.
[31]
Compare s.5, s.6, s.8, s.13, s.21,
and s.24 of the Western Cape Act.
[32]
The references to the relevant
provisions of the other Provincial Acts are these: s.19 of the
Eastern Cape Act; s.62 of the Kwazulu-Natal
Act; s.18 of the Free
State Act; s.19 and s.20 of the Limpopo Act; s. 19 and s.20 of the
Northern Cape Act; s.9 and s.10 of the
North-West Act; and s.18 and
s.19 of the Mpumalanga Act. The detailed provisions vary.
[33]
See applicant's head of argument, p24
para 76 ff.
[34]
The Minister actually referred to
selected portions from within those paragraphs.
[35]
"AA3.2;3.3" Vol 5 p 470-471
(Randhart); "AA4.2; 4.3; 4.5" Vol 6 p 527-537
(Baanbreker); "AA5.2; 5.3"
Vol 7 p 580-586 (Garsfontein);
"AA6.3; 6.4" Vol 7 p 638-641 (Linden); "AA7.3; 7.4"
Vol 7 p 693-696 (Oudtshoorn);
"AA8.3; 8.4" Vol 7 p 740-748
(Langenhoven Gimnasium)
[36]
Applicant's heads paras 12 to 75.
[37]
Applicant's heads paras 76 to 95.
[38]
S.21A(2)(a) and (b) of the Gauteng
Act.
[39]
In Welkom supra, Khamphepe J said :
"61. In Hoerskool Ermelo this
Court explained that "governance" in the context of the
Schools Act entails that
"in partnership with the State,
parents and educators assume responsibility for the governance of
schooling institutions.
. . . [A governing body's) primary function
is to look after the interest of the school and its learners."
The Court went
on to hold that "[s]chool governing bodies are a
vital part of the democratic governance envisioned by the Schools
Act.
The effective power to run schools is indeed placed in the
hands of the parents and guardians of learners through the school

governing body."
62. "Governance" in the
context of the Schools Act should also be understood in contrast to
"professional management",
the two being distinct
categories of responsibilities set out in the statute. As is evident
from section 16A{2)(a), the professional
management of a public
school consists largely of the running of the daily affairs of a
school by directing teachers, support
staff and the use of learning
materials, as well as the implementation of relevant programmes,
policies and laws. “55
[40]
Respectively vol 7 p693 and p740.
[41]
Compare Lawrence supra, para [92].
[42]
Answering affidavit vol 4 p337 - 339,
paras 618 - 621. Hoerskool Linden (Linden affidavit vol 7 p606,
"AA6.4" vol 7,
p639, para 2.1), and Hoerskool Oudtshoorn
(Oudthoorn affidavit p671 vol 7, para 50, "AA7.3" vol 8,
p671) have expressly
adopted a Christian ethos. Langenhoven
Gimnasium states (Langenhoven affidavit vol 8 p713 para 36.7,
"AA8.5" vol 8,
p749) that it provides Christian based
education. Several of the primary schools have vision and mission
statements that are
explicitly Christian in character and purpose
(Randhart affidavit para 41 vol 5 p449, "AA3.6" para B vol
5 p476; Baanbreker
affidavit para 185 vol 6 p521, "AA4.5"
vol 6 p537; Garsfontein affidavit para 15.4 vol 6 p550, "AA5.3"
para
3 vol 7 p585.
[43]
Respondents' schedule submitted in
answer to the applicants' schedule provided in response to a request
from the court to identify
the facts (common cause and otherwise)
relied on for the relief claimed, p4.
[44]
S. 15 of the Schools Act provides:
""Every public school is a juristic person, with legal
capacity to perform its functions
in terms of this Act".
[45]
See for example, De Lange v Methodist
Church and Another
2016 (2) SA 1(CC)
at para [31]; Tshwane City v
Afriforum and Another
2016 (6) SA 279
(CC) at paras [7] to [16];
Gumede v President of RSA
2009 (3) SA 152
(CC) at para [22]; Hassan
v Jacobs NO
2009 (5) SA 572
(CC) at para [22].
[46]
See for example Minister of Home
Affairs and Another v Fourie and Another (Doctors for Life
International and Others, Amicus Curiae);
Lesbian and Guy Quality
Project and Others v Minister of Home Affairs and Others
[2005] ZACC 19
;
2006 (1) SA
524
(CC), para [95]; Lawrence supra, (para [147]).
[47]
S.9 of the Constitution.
[48]
See Minister of Education, Western
Cape and Others v Governing Body, Mikro Primary School and Another
2006 (1) SA 1(SCA)
paras [18] to [21] and [25].
[49]
Ermelo supra, at para [8]; Welkom
supra, at para [141]; MEC for Education Gauteng Province and Others
v Governing Body, Rivonia
Primary School and Others
2013 (6) SA 582
(CC) at para [70]; Fedsas supra, at para [44].
[50]
Op cit.
[51]
As appears from the dicta of O'Regan,
J in Lawrence supra, quoted above.
[52]
These legislative provisions find
resonance in an earlier portion of Prof Asmal's foreword to the
National Religious Policy (emphasis
supplied):
"I have great pleasure in
publishing this Policy on Religion and Education, as approved by the
Council of Education Ministers
on 4th August 2003. The Policy is
necessary and overdue to give full expression to the invocation of
religion in our Constitution
and the principles governing religious
freedom. As a democratic society with a diverse population of
different cultures. languages
and religions we are duty bound to
ensure that through our diversity we develop a unit y of purpose and
spirit that  recognises
and celebrates our diversity. This
should be particularly evident in our public schools where no
particular religious ethos should
be dominant over and sup press
others. Just as we must ensure and protect the equal rights of all
students to be at school, we
must also appreciate their right to
have their religious views recognised and respected."