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76 Chapter 3
school and the purposes the school uniform was designed to further. 3 The
government's interest in enforcing anti-discrimination legislation without
exception appears far stronger. A claim for an exemption from antidiscrimination
legislation seems in one respect more closely to resemble
the claim in Christian Education South Africa v Minister of Justice 4 than Pillay:
If an exemption were to be granted, individuals' fundamental rights would
be infringed. In Christian Education, the right of pupils not to suffer physical
violence at the hands of teachers was held to trump the wish of teachers in
a religious institution to inflict corporal punishment in accordance with
their religious convictions. Since the purpose behind legislation outlawing
unfair discrimination is to protect all persons' rights to equality (a
fundamental right), an exemption from such legislation would seem to
permit the violation of the right of individuals to be free from unfair
discrimination. 5 Surely the right of individuals not to suffer work-related
discrimination on prohibited grounds should trump the interest of religious
associations in discriminating in accordance with their religious beliefs?
No, not always. Certain instances in which religious associations
engage in work-related discrimination on grounds forbidden to
commercial enterprises attract relatively little opposition. In South Africa,
anti-discrimination legislation proscribes work-related discrimination on
prohibited grounds that include race, gender, sex, sexual orientation and
religion. 6 Yet, in at least one context it is clear that churches should be
permitted to discriminate: Churches should be allowed to apply religious
criteria in their choice of candidates for appointment to sacerdotal office.
No one whose opinion is worth a moment's consideration would insist that
a religious community could not make being counted on the prevailing
criteria as a member of that community a condition of being appointed as
a religious or spiritual leader, even if this constitutes discrimination on the
grounds of religion.
3
Pillay (n 1 above) para 101.
4 Christian Education (n 1 above).
5 The right to equality is protected in sec 9 of the Constitution of the Republic of South
Africa, 1996. Sec 9(3) of the Constitution provides: ‘The state may not unfairly
discriminate directly or indirectly against anyone on one or more grounds, including
race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief, culture, language and birth.’ Sec
9(4) reads: ‘No person may unfairly discriminate directly or indirectly against anyone
on one or more grounds in terms of subsection (3). National legislation must be enacted
to prevent or prohibit unfair discrimination.’
6 Sec 6(1) of the Employment Equity Act 55 of 1998 reads: ‘No person may unfairly
discriminate, either directly or indirectly, against an employee, in any employment
policy or practice, on one or more grounds, including race, gender, sex, pregnancy,
marital status, family responsibility, ethnic or social origin, colour, sexual orientation,
age, disability, religion, HIV status, conscience, belief, political opinion, culture,
language or birth.’ The Promotion of Equality and Prevention of Unfair Discrimination
Act 4 of 2000 forbids unfair discrimination on prohibited grounds listed in sec
1(1)(xxii)(a), which are ‘race, gender, sex, pregnancy, marital status, ethnic or social
origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture,
language and birth’.