Doctoral Degrees (Public Law)

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Browsing Doctoral Degrees (Public Law) by Author "Gildenhuys, J. L."

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    An assessment of constitutional guarantees of religious rights and freedoms in South Africa
    (Stellenbosch : Stellenbosch University, 2002-03) Gildenhuys, J. L.; Du Plessis, L. M.; Stellenbosch University. Faculty of Law. Dept of Public Law.
    ENGLISH ABSTRACT: The central issue which is considered in this thesis is the meaning of the constitutional guarantees of religious rights and freedoms in South Africa. In other words, it is concerned with the functions of the state, through its laws or conduct, in respect of religion and with its relationship towards the institutional church or religious community. It is argued that religious freedom is, in fact, a bundle of rights and freedoms. The "essential rights and freedoms of religion" which constitute this "bundle" are identified in the context of the historical development of religious rights. It is shown that religious rights theories have developed in the West which include concepts of freedom of conscience, the right to freely exercise religion, accommodation of pluralism of a confessional and institutional nature, equality of all religions before the law, nondiscrimination on the grounds offaith, institutional separation of church and state and some separation of state (or law) and religion. It is maintained that no single principle could by itself guarantee religious freedom and that these rights and freedoms are mutually. supportive of and mutually subservient to the highest goal of guaranteeing religious freedom. These essential rights and freedoms are therefore treated as constituting minimum standards for the protection of religious freedom and it is argued that religious freedom as protected in the South African Constitution should be interpreted to incorporate these multiple principles. It is shown that, prior to the promulgation of the interim Constitution the essential rights and freedoms of religion were not adequately protected in South Africa and that the constitutional entrenchment of these essential religious rights was necessitated by various factors in the preconstitutional South African society. The position with regard to religious rights and freedoms in post-Constitutional South Africa is considered by briefly sketching the broader constitutional context and by assessing the constitutional clauses protecting religious rights to determine whether the essential rights are protected. The religious rights provisions in the Constitution are analysed in detail in order to determine how they should be interpreted and implemented to ensure adequate protection of the essential rights and freedoms of religion in South Africa.