NGO seeks order declaring adherence to one religion at schools as unconstitutional

The right of public schools to single out one religion to foster at school will come under the spotlight in the Johannesburg High Court next month in what is being described as a watershed case.

Non-governmental organisation, Organisasie vir Godsdienste-Onderrig en Demokrasie (OGOD), is seeking an order declaring that it is unconstitutional for any public school to promote adherence to only one or predominantly one religion during its religious school activities.

OGOD is asking the court to interdict six schools from participating in Christian religious observances at school assembly, including reading sacred texts, opening assembly and closing the school day with a prayer, as well as holding a prayer before exams or before and after sports matches.

The NGO, which vows on its website to eradicate religious indoctrination at public schools, is also seeking a ban on the singing of hymns or other religious songs as well as including Christian symbolism in the school badge or coat of arms.

The schools cited in the court case are Laerskool Randhart, Laerskool Baanbreker, Laerskool Garsfontein and Hoerskool Linden – all in Gauteng – and two schools in Oudtshoorn in the Western Cape.

Represented by the Federation of Governing Bodies of South African Schools (Fedsas), the schools which are opposing the application, have admitted having a Christian ethos and promoting Christian values because the overwhelming majority of their pupils belong to the Christian faith.

In heads of argument, the schools describe OGOD as a “radical atheist organisation”, whose leader “deliberately offends individuals who hold religious beliefs”.

“The applicant [OGOD] denigrates and mocks religion and those who are religious on its Facebook page. In the name of the right to freedom of religion, the applicant seeks to remove all religion and religious observances from all public schools.”

The schools argue that the relief sought is “designed to sterilise South African public schools of religion and create an environment that suits only learners who are atheist or religiously indifferent.”

They argue that if OGOD’s application is granted, it will have the effect of eliminating religious observances from all schools in the country.

OGOD has been battling with the schools since 2014 when its founder, Hans Pietersen, tried to interdict the schools from advertising themselves as Christian.

They, however, argued in court documents that participation in the religious observances at school assembly and other venues was voluntary and that those learners wishing not to participate were accommodated in “supervised classes” or were allowed to arrive late at school.

Significantly, the schools have made a counter application, seeking an order declaring parts of the National Policy on Religion and Education unconstitutional. The policy – advocating multi-faith religious observances – took effect in 2003 during the late Professor Kader Asmal’s tenure as education minister.

They maintain that the policy is not binding in law on them or their school governing bodies.

“Insofar as the minister [Kader Asmal] purported to make binding policy outside the confines of his powers, the policy provisions are invalid. The sections of the policy on religious instruction and religious observances are for that reason alone unconstitutional and invalid.”

The schools say that the education minister “cannot prescribe multi-faith religious observances”.

“No learner or educator can be required to lead or participate in a religious observance that is not of their own chosen faith or belief. To require a learner or educator to do so offends the core of the right to freedom of religion.”

According to their court papers, they state: “On a practical and concrete level, at public schools such as the respondent schools, it would be confusing, if not distressing, for educators and learners to have conducted religious observances that were not Christian but multi-religious in nature.”

In response, basic education minister Angie Motshekga has asked the court to dismiss the schools’ constitutional attack on the religion and education policy.

In her heads of argument she states that the schools’ contention that the policy was inconsistent with the constitution was “ill-conceived”.

The schools believe that the governing body is the “appropriate public authority” to determine a school’s religion policy, but Motshekga’s counsel, Matthew Chaskalson SC, argues that the rules made by the governing body must be informed by the policy.

“The state, however, cannot allow public schools to be governed purely in the interests of their current learners and their parents. Public schools are public assets, which must ultimately serve the broader public interest.”

There is no imposition of religiously diverse observances on a school community where the majority belonged to a single religious faith, argues the minister.

“We point out that to allow a notionally uniform school religious community to decide that religious observances at the school would not be diverse would serve to discourage other learners from joining that school.”

Motshekga adds: “The contention that schools, as juristic persons, have a fundamental right to religion is simply unfounded.”

Freedom of Religion South Africa (FOR SA), a non-profit Christian organisation aimed at protecting and promoting religious freedom, say it would mean the end of scripture reading and prayer as well as other Christian activities in public schools if OGOD won the court battle.

FOR SA’s executive director, Michael Swain, says the question the court will have to determine is not whether religion has a place in public schools, but what the boundaries are, especially in the context of the six schools all of whom have a learner population that is virtually 100% Christian.

Paul Colditz, chief executive of Fedsas, says the case was extremely important not only for education but for the country as a whole.

“It will determine the kind of country we want to live in; a country where courts are used to suppress the freedom of the people to express and manifest their beliefs and religions or a country where people are free to be what they want to be.”

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