Is South African society tolerant of religious diversity? 

Author: 

Radley Henrico

Summary: 

The constitutional and legislative regime governing religious freedoms in a diverse and pluralistic South African secular society gives rise to a myriad of questions when seeking to balance religious rights against other rights in the Bill of Rights. An employee who converts to the Seventh Day Adventist Faith may refuse to continue to work on a Sabbath Saturday. If an inherent requirement of the job (IROJ) demands of the employee to work on a Saturday, does this automatically entitle the employer to dismiss the employee due to the IROJ? Must the employer seek ways in which to reasonably accommodate the employee? When applying to become a marriage licensing officer, can one’s religious beliefs be permitted to interfere with your task to perform the necessary formalities of a same-gender union under the Civil Union Act 17 of 2006? Refusal to solemnize same-gender marriages is statutorily permitted if the officer is a minister of a religion or holds a responsible position in a religious denomination not recognising same-gender marriages. Hence, religious beliefs can sometimes trump rights to equal treatment. Competing fundamental rights begs the question of how far an employer must go to reasonably accommodate an employee. Case law in South Africa indicates our courts have adopted a flexible test when assessing conflicting fundamental secular and religious rights. The so-called ‘nuanced context-sensitive approach’ evinces a more equitable means by which our courts seek to balance competing interests arising from the expression of religious liberties in a secular society. Will this test evolve into also recognising that the employee should cooperate with the employer to seek a solution, namely mutual accommodation?

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