Should our courts be interfering with the internal affairs of religious associations?   

Authors:

Radley Henrico

Summary:

Various instances have taken place where religious leaders violate the fundamental human rights of their congregants. Spraying of insecticide in their faces, fondling the genitalia of female congregants and extracting tithing from congregants believing that such acts will bestow untold blessings on them, are but a few examples of many practices carried out under the guise of religion. Beliefs, cultural practices or rituals imbued with spiritual or religious elements can be as harmful as for example female circumcision. The interplay of law and religion is complex. South Africa does have a statutory regulatory framework in place that affords victims an opportunity of vindicating their rights. Perpetuation of such practices, however, continues unabated. Many if not most victims suffer from abject poverty, are unaware of their rights or are illiterate. Moreover, the policing of such practices is poor. When cases of human rights violations are brought before our courts, there is also a limit to what our courts can do. Obvious instances of violations will not preclude our courts from adjudicating upon a matter even if by so doing the court may be seen as interfering in the internal affairs of a religious association. However, where a particular practice is central to a religion or custom imbued with religion, for example prophesies by congregants or the immersion of congregants in water for baptism purposes, the issue for the court to determine may be more complicated due to the doctrine of avoidance. This means our courts refrain from involving themselves with the autonomy and doctrines of religious associations. I find that the regulatory framework cannot be faulted.  Neither can one disregard the effectiveness of the doctrine of avoidance in promoting the protection of individual and associational religious rights. If this is the case, the solution to addressing inimical religious practices may lie elsewhere.

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