The implications of judicial non-intervention in religious matters: a South African human rights law perspective A

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.