Download this publication - PULP

96 Chapter 3
performance of the teaching function, the Court found that 95
[t]he religious or doctrinal aspect of the school lies at its very heart and
colours all its activities and programs. The role of the teacher in this respect is
fundamental to the whole effort of the school, as much in its spiritual nature
as in the academic.
In these circumstances, the requirement of religious conformity was held
to be a bona fide qualification.
The Court ruled further that the dismissal of Mrs Caldwell was a
permitted preference under section 22 of the Code, holding that this
section confers on faith schools 96
the right to preserve the religious basis of the schools and in so doing engage
teachers who by religion and by the acceptance of the church's rules are
competent to teach within the requirements of the school. This involves and
justifies a policy of preferring Roman Catholic teachers who accept and practice
the teachings of the church.
The approach followed in Caldwell would seem to contradict (2), (6) and
(9) of the Equality Court's reasoning in Strydom. Basson J contrives to
distinguish Caldwell for three reasons, but two of these are unconvincing.
The first ground on which he says that Caldwell can be distinguished is that
‘section 22 of the Code permitted the respondent to make preference in
hiring among members of the Catholic community’. 97 Although this is
indeed so, this fact does not have the effect of rendering several of the views
expressed in Caldwell inapplicable to Strydom's case. The issue facing the
Equality Court in Strydom is whether the right to freedom of religion may
be invoked to justify otherwise forbidden discrimination against a teacher
in a faith school. On the view expressed by McIntyre J in Caldwell, such
discrimination is justified. Several of the reasons he provides in support of
this view have application in the circumstances of Strydom.
Secondly, states Basson J, in Caldwell ‘the teaching of doctrine and the
observance of standards by teachers formed part of the contract of
employment of teachers’, 98 whereas Strydom was not involved in religious
instruction, which was carried out by religious leaders in the church. 99
Although Basson J is correct that at the school at which Mrs Caldwell
taught, the teaching of doctrine was included in teachers’ employment
contracts, the teaching of religious doctrine is not an issue that divides the
two cases since (as Basson J neglects to acknowledge) Mrs Caldwell taught
only commercial subjects and mathematics and, like Strydom, ‘did not
95
Caldwell (n 92 above) 624.
96 Caldwell (n 92 above) 628.
97 Strydom (n 8 above) para 27.
98
As above.
99 Strydom (n 8 above) para 28.