Abstract:
Since the decision by the court in Johan Daniel Strydom v Nederduitse Gereformeerde
Gemeente Moreleta Park, there has been a rise in advocacy on the need to ensure
strict protection of human rights, specifically with reference to religious freedom,
equality, and freedom of association. The core issue in this case was the accepted
forms of intimate relationships allowed within the church in relation to the leadership
roles the individuals play within the same church. Relationships involving same sex
persons were not allowed. Furthermore, women were only allowed to undertake
certain limited church based activities such as cleaning and the safety of the church,
while men’s activities within the same church were not limited. The court in Ecclesia
De Lange v the Presiding Bishop of the Methodist Church of Southern Africa attempted
to resolve the problems emanating from the religious doctrine and the expected
conduct of the members ascribed to a certain religion, by answering the question on
how the dispute within the religious context should be dealt with. However, the court
failed to address the implications of the developed jurisprudential perspective that
courts should not interfere with religious doctrinal matters.
The main purpose of this study is to critically assess the doctrine of entanglement with
religious matters adopted by the courts, and its implications on the protection of the
right to freedom of religion, culture, and equality in an open democratic South Africa.
A doctrinal method of research will be employed. The doctrinal method of research
allows access to information remotely through desktop research. A doctrinal approach
allows for the analysis of materials to support the hypothesis. As this study requires
analysis of the doctrine of entanglement and the manner in which the doctrine is
interpreted and applied in South Africa, analysis of its historical background and
development, case laws and opinions of other scholars will be essential, as it all forms
part of the doctrinal perspective to research. The hypothesis states that the
interpretation and the application of the doctrine of non-entanglement leave a gap in
ensuring the effective protection of human rights by the judiciary.
