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CHAPTER
4
ON THE FRAGILITY OF
ASSOCIATIONAL LIFE:
A CONSTITUTIVE LIBERAL’S
RESPONSE TO PATRICK LENTA
Stu Woolman*
You wouldn't want to live in a world where you can't be conned, because if
you were, you would be living in a world with no trust. That's the price you
pay for trust – being conned.
Ricky Jay and Errol Morris
1 Introduction
1.1 The facts and the ‘new’ facts
With his customary wit, elan, and analytical rigor, Lenta's article ‘Taking
diversity seriously’ has (a) critiqued and reconstructed the Equality Court's
judgment in Strydom v Nederduitse Gereformeerde Gemeente Moreleta Park, 1
and (b) in so doing, has put our equality/association jurisprudence on a
somewhat more solid footing. Because Lenta and I share a methodological
predisposition towards the analysis of such cases, it should come as no
surprise that we cover similar philosophical terrain and find ourselves
roughly in agreement. 2
* Professor and Elizabeth Bradley Chair of Ethics, Governance and Sustainable
Development, University of the Witwatersrand; Academic Director, South African
Institute for Advanced Constitutional, Public Human Rights and International Law
(SAIFAC). This paper was previously published in (2009) 25 SAJHR 280.
1 2009 4 SA 510 (T). For a restatement of the facts and holding of this case, see P Lenta
‘Taking diversity seriously: Religious associations and work-related discrimination’
(2009) 125 SALJ 828. See also P Lenta ‘Taking diversity seriously: Religious
associations and work-related discrimination’ in S Woolman & D Bilchitz (eds) Is this
seat taken? Conversations at the Bar, the bench and the academy about the South African
2
Constitution (2012) 75.
Lenta states that the primary ‘purpose [of his article] is to determine the appropriate
domain of anti-discrimination law insofar as government wishes to prevent workrelated
discrimination by, and within, religious associations. Claims by religious
associations that they should be permitted to engage in work-related discrimination on
otherwise illegal grounds give rise to a clash of rights: the rights to freedom of
association and freedom of religion on the one hand, and the right to equality on the
other. My aim is to ascertain, with reference to Strydom, the circumstances in which it is
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