The case‚ brought by father of triplets Hans Pietersen‚ was heard before a full bench of three judges at the Johannesburg High Court.
Much of the three days of court hearings was very technical‚ but here is a quick read of main issues raised.
1. Some parties asked if there is even a case as it is not clear which law was broken.
Solidarity‚ Afriforum and the South African Council for the Protection and Promotion of Religious Rights and Freedom asked which law had been broken.
The case states the single nature of religion at schools breaches the policy on religion in schools.
Many parties said this policy was not a law.
Advocate Reg Willis for the SA Council said the issue belonged at the equality court.
2. What does the constitution say on religion in state institutions?
Unlike in North America‚ Section 15 of the South African constitution allows the public expression of religion in state institutions. These religious observances have to be “voluntary” and “equitable”.
3. Does having a majority religion equal “coercion” to minority pupils?
Judges asked whether allowing the minority to opt out of assembly would be discriminatory?
Judge Collin Lamont pointed out: “By creating a system at school and requiring them [pupils] to opt out [of assembly]‚ you require that person to say I am different. How is that not a violation of other issues – in the constitution?”
Later Judge Willem van der Linde pointed out being different could make a child “feel like an outcast”.
4. If this case is successful‚ state schools celebrating other religions will be affected.
On Tuesday the case was changed from stopping six Christian schools from having Christian assemblies or badges to stopping all schools from having any Christian meetings at break or during school time.
The National Association of SA Governing bodies argued that this would stop schools with multi-faith prayers and schools that have multiple assemblies for different religions.
5. How is having voluntary break-time Christian meetings violating the rights of other pupils who choose not to attend?
Advocate Margaretha Engelbrecht‚ for Cause for Justice‚ argued that voluntary Christian meetings should be allowed.
She asked how a voluntary chess club violated the rights of pupils who didn’t play chess and concluded it couldn’t.
She said break meetings for Christians or Muslims did not violate other pupils’ rights.
6. What do the kids say?
Some Afrikaans schools tried to interview 808 pupils from Grade R to 12 to hear their views on religion. This is something the applicant did not do.
A handful of children said they were not comfortable with Christian ethos and teachings. But many were happy with religion at schools.
7. Does making a school secular exclude religious people?
Fedsas CEO Paul Colditz said that in every scenario someone is excluded: “Each system is exclusionary. If you make a school become secular‚ it is discriminatory against learners who want a Christian or Muslim school. If you have a Muslim or Christian school‚ it is discriminatory against those who want a secular school.”
8. Many parties argued there is “no one-size-fits-all solution” for 24‚000 schools.
This means that the school governing body needs to continue making rules for schools’ values and needs.
9. How do homogeneous religious schools celebrate or promote religion?
Judge Lamont said in court: “The whole point to open up and rejoice in diversity is not to perpetuate ring-fenced groups.”
He suggested allowing a single school “to adopt a particular religion as its own” did not encourage diversity.
This was raised by Advocate Adila Hassim‚ who was representing the Council for the Advancement of the South African Constitution.
She said the constitution and case law do not promote single religions. Schools must ensure that religious policy doesn’t favour only the majority and create “insiders who belong and outsiders who are tolerated” Hassim said‚ quoting the former constitutional court justice Albie Sachs.