Constitutional matters [trends & prospects]: exploring issues related to the constitution, democracy & the South African Jewish community
In the third of our three inaugural articles, Adv. Anton Katz looks at some inherent tensions between certain Constitutional rights and the implications of these for the Jewish community.
IN 2007 the Nederduitse Gereformeerde Gemeente (NG Kerk) in Moreleta Park, Pretoria fired a Mr Strydom, the congregation’s music teacher. The reason for his dismissal was his sexual orientation and that he was in a same-sex relationship. According to the prescripts of the church, marriage can only exist between one man and one woman. For the church, persons of homosexual orientation must be celibate and cannot be involved in a homosexual relationship. This would amount to a cardinal sin in view of the church’s teachings.
Mr Strydom challenged the church’s decision to fire him in the Equality Court in Pretoria. His argument was that the decision infringed his constitutional right to equality and to not be discriminated against on the grounds of sexual orientation. The church took the view that to have Mr Strydom work at the church was an affront to their right to freedom of religion.
" ... recent events in the Jewish community, highlight tensions in the Constitution ..."
Because Mr Strydom was not seen by the Court to be a religious or spiritual leader, but only a contractor who worked there on an occasional basis to teach music, the Court ultimately found in his favour. According to the Court’s judgment, the “impact on religious freedom of [keeping Mr Strydom there] is minimal”. In other words, the Court judged that in this particular case Mr Strydom’s right to equality and to not be discriminated against on the grounds of his sexual orientation outweighed the church’s claim that its religious freedom had been impinged upon.
The Equality Court case of Mr Strydom, and recent events in the Jewish community, highlight tensions in the Constitution -- the supreme law and the guiding values of South Africa -- between the right to freedom of religion and the right to full equality. These tensions have presented interesting, and sometimes difficult, challenges for the Jewish community. Such challenges are likely to continue.
In this article, I suggest that the Constitution imposes certain minimum obligations on all Jewish individuals who are and regard themselves as part of the South African community. I argue that with rights comes responsibilities. As South Africans who have and will continue to invoke our constitutional rights and who have been -- and will be --- faced with constitutional tensions and challenges, we have certain basic responsibilities. Understanding both our rights and responsibilities, moreover, will go a long way towards navigating tensions between competing rights. The Constitution, and its attendant rights, is not only predicated on creating a just and democratic South Africa, but serves as a blueprint for redress. As such, as a first step, community members must educate themselves and become conscious of the broader society in which they live and the privileges which have accrued to us as individuals and a community. This includes appreciating the history of Jewish responses to apartheid. Many in the National Party sympathised with Nazi Germany during World War II leaving the Jewish community feeling vulnerable. Even so, Jews were co-opted by being classified ‘White’ or ‘European’ under the harsh race classification laws. Some Jews actively participated in the enforcement and implementation of apartheid law and policy. Some stood up for human rights and tried to crush apartheid. Jews were influential, even if not directly involved in politics. It was no accident that of the eleven first Constitutional Court judges appointed by Nelson Mandela in 1994/1995 three were Jewish. But most Jews opted to remain apolitical and ‘keep their heads down’.
"... how can one appropriately complain about hate speech (such as racist or antisemitic utterances) without a proper understanding of the text of the Constitution?"
Second, having understood, even superficially, the role of Jews during apartheid, it is then our responsibility to read the text of the Constitution. It is not a difficult document to understand. It sets out values underpinning the society it is geared towards serving. It entrenches certain rights for everyone. It also explains how and when elections are to occur, how governance must function, and the role, powers and obligations of the President and all other organs of State. How can one legitimately hold a Shabbat dinner conversation about the powers of the President and how to remove him or her without ever having read the relevant portions of the Constitution? More importantly, how can one appropriately complain about hate speech (such as racist or antisemitic utterances) without a proper understanding of the text of the Constitution?
Thus, a third, critical, step is for all South African Jews to seek to understand the lived experience of their fellow South Africans. Many of our experiences are radically different to that of the majority of other people in South Africa. For example, consider how different the life of a domestic worker (employed by many Jewish homes) is to her or his employer on an economic and social level. Domestic workers, like many South Africans, must travel nearly two hours to get to work and two hours to get back home. They must experience opulence at the employer’s home, only to be faced with all the regular family chores at a humble home. These three responsibilities, however, are individual and passive, involving thought and education rather than outward-focused action. What are our obligations beyond the home?
"Questions of religion and equality will always be difficult, and will be perennial in the Jewish community."
We must ensure that Jewish community organisations, such as the South African Jewish Board of Deputies, not only act in accordance with the law and the Constitution internally, but also seriously advocate and advance constitutional and societal values externally wherever they can.
Two recent examples demonstrate this principle in action.
The first is the issue of Kol Isha. In this matter, a member of the Jewish community took the Cape Jewish Board of Deputies to the Equality Court to challenge an alleged violation of the right to equality in relation to the solo singing by a woman at a Yom HaShoa memorial. This case could arguably promote Constitutional values. The complainants were members of the Jewish community who asserted that they were acting not only in their own name but also in the public interest. Almost any individual in South Africa may legitimately approach the courts claiming they are acting in the publics’ interest on constitutional matters. A second example is how, externally, the South African Jewish Board of Deputies successfully litigated for almost 10 years against a radio station which broadcast holocaust denialism. The Board’s challenge was on the basis that holocaust denialism constituted hate speech and was not protected as freedom of expression under the Constitution. These are two simple examples of courts activity giving life to the constitutional project and how it has impacted on us as a minority community. How freedom of religion and equality should be balanced (and how constitutional values should manifest) will depend on the facts of each case. As was clear in Strydom vs NG Kerk, had the complainant been a preacher the court may have upheld the dismissal. Questions of religion and equality will always be difficult, and will be perennial in the Jewish community. But, what I have tried to argue here is that the process of balancing these (at times) competing interests cannot happen without an appreciation of history and context. It also cannot happen without good faith engagement that is committed to upholding Constitutional values, particularly respecting the dignity of all persons. There are no easy answers to these questions. But being conscious of the difficulty of these tensions is the first step to resolving the frequent competition between legitimate interests.
Anton Katz is a senior advocate at the Cape Town Bar. His work involves a range of human rights issues, principally concerning international law and constitutional law. He consults and represents clients that include international organisations, States, government, NGOs and individuals. He has worked as a consultant to the United Nations Office on Drugs and Crime. He also presides a as a High Court judge in Cape Town on a temporary basis.