C Rautenbach THE SOUTH AFRICAN CONSTITUTIONAL COURT ' S USE OF FOREIGN PRECEDENT IN MATTERS OF RELIGION : WITHOUT FEAR OR FAVOUR ?

Since its establishment in 1994, the South African Constitutional Court has been quite fearless in its citation of foreign precedents in its reasoning. Compared with that of similar adjudicative institutions elsewhere, the constitutional reasoning of the South African Constitutional Court is still in its infancy, but it has nevertheless earned itself high praise among observers worldwide. The Court has in particular been commended for some ground-breaking and courageous judgments which it handed down without casting either argumentative rigour or judicial self-restraint to the winds. Since its establishment in 1994 the Constitutional Court has cited foreign cases quite extensively. Although these cases deal with all matters of the law, especially human rights issues, the Constitutional Court's use of foreign cases in the area of religion is noteworthy.Against this background, this contribution remarks on the propensity of the Constitutional Court to look beyond its borders to deals with issues of religion within South Africa. The ultimate question is whether the notion of transjudicialism in the case of religion is detrimental to the reputation of the South African Constitutional Court or whether it is a characteristic of a court which is confident enough that its independence will remain intact in spite of its looking elsewhere for answers.

C RAUTENBACH PER / PELJ 2015 (18)5   1547 South Africa's re-entry into the global community after the abolition of its notorious Apartheid laws and the birth of a new democratic political dispensation in 1994, coupled with the judiciary's continued willingness to engage themselves in global judicial debates, 3 remains a prominent feature of constitutional adjudication in South Africa. It is trite that South Africa's two consecutive constitutions 4 have introduced a new constitutional dispensation based on the supremacy of the Constitution, 5 the rule of law 6 and a Bill of Rights. It is believed, ostensibly without foundation, that the most important catalyst for judicial comparativism in South Africa today is the (almost) unique interpretation clause in the Constitution (section 39(1)), which stipulates: 7 When interpreting the Bill of Rights, a court, tribunal or forum- The wording of subsections (b) and (c) suggests a difference in approach to international and foreign law. In the case of international law the court must consider it, and in the case of foreign law the courts may consider it. Though there is a clear difference between the two auxiliary verbs "may" and "must", both of them are linked with the verb "consider", which has a variety of meanings such as to "think carefully about (something)"; to "regard (someone or something) as having a specified quality"; to "take 3 See Rautenbach "South Africa: Teaching an 'Old Dog  Constitution of the Republic of South Africa 200 of 1993 (the interim Constitution) was in operation from 27 April 1994 to 3 February 1997; and the Constitution of the Republic of South Africa 1996 (the Constitution) has been in operation since 4 February 1997. 5 See ss 1(c) and 2 of the Constitution. 6 The rule of law is a founding value of the Constitution, see s 1(b). 7 Section 11(2) of the Constitution of the Republic of Malawi, 1997 contains a similar provision. It reads: "In interpreting the provisions of this Constitution a court of law shall -(a) promote the values which underlie an open and democratic society; (b) take full account of the provisions of Chapter III and Chapter IV; and (c) where applicable, have regard to current norms of public international law and comparable foreign case law." 8 Emphasis added. Also see the discussion of Dugard 1997 EJIL 85 with regard to the role of international law in the interpretation of the Constitution. something into account when making a judgement"; and to "look attentively at". 9 As will be illustrated, these types of actions are all employed by the Constitutional Court in one way or another during its reasoning process.
In the case of international law, the courts are obliged to go through (ie "must consider") this considering process, whilst in the case of foreign law there is no such obligation (ie "may consider"). 10 In other words, the courts have the discretion to consider foreign law in terms of section 39(1)(c), but an obligation to consider international law in terms of section 39(1)(b). In addition, international law may include binding and non-binding law. 11 Both forms may be used in the interpretation process. 12 There is no similar distinction in respect of foreign law and the statutory permission to consider foreign law during the interpretation process authorises courts only to "'have regard to' such law"; there is "no injunction to do more than this". 13 Thus, foreign law, in the domestic context, can never have more than persuasive force, while some international law may well be as binding on or prescriptive to domestic law. 14 This sets international and foreign law apart, and this distinction has to be reckoned with in constitutional interpretation, and as a matter of fact in the interpretation and application of all law. 15 Although section 39(1)(c) has seeped into South Africa's constitutional jurisprudence beyond the interpretation of the Bill of Rights, 16 it has been regarded by some scholars 9 See the definition of "consider" in the Oxford Dictionaries (Oxford University Press 2015 http://www.oxforddictionaries.com).

11
Binding international law will be international law ratified and acceded to in terms of s 231 of the interim Constitution, which is similar to s 231 in the final Constitution. Also see s 232 regarding the position of customary international law and s 233, which obliges courts to give preference to international law when alternative interpretation outcomes exist. as the main catalyst for judicial comparativism in South Africa. 17  Notwithstanding the fact that the South African judiciary were comparing foreign law on an ongoing basis even before 1994, they did it with the necessary discretion and circumspect. As eloquently put by Chaskalson: 20 In dealing with comparative law we must bear in mind that we are required to construe the South African Constitution, and not an international instrument or the constitution of some foreign country, and that this has to be done with due regard to our legal system, our history and circumstances, and the structure and language of our own Constitution. We can derive assistance from public international law and foreign case law, but we are in no way bound to follow it.
Kriegler J also warned in Sanderson v Attorney-General, Eastern Cape 21 that "the use of foreign precedent requires circumspection and acknowledgment that transplants require careful management". As already explained, the author collected and captured the results in a database hosted on the website of the North-West University. The methodology followed in capturing the data is explained in detail at http://www4-win2.p.nwu.ac.za/dbtw-wpd/textbases/ccj.htm. 28 These words were uttered by Klug Constitution of South Africa 79 as a comment on the Court's use of foreign law in the Makwanyane case. The overall statistics reveal that this is indeed what the court 2

Constitutional provisions protecting freedom of religion
The aim of my contribution is not to discuss the content given to freedom of religion in South African law, but to comment on the propensity of the Constitutional Court to engage in foreign law in the context of religion. In order to do so, it is necessary to refer to the most important constitutional provisions dealing with religion. Most importantly, the right to freedom of religion, belief and opinion is protected as an individual right in section 15, which provides as follows: (1) Everyone has the right to freedom of conscience, religion, thought, belief and opinion.
(2) Religious observances may be conducted at state or state-aided institutions, provided that-(a) those observances follow rules made by the appropriate public authorities; (b) they are conducted on an equitable basis; and (c) attendance at them is free and voluntary. The right to freedom of religion, belief and opinion is also protected as a group right in section 31(1), which stipulates: Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community-(a) to enjoy their culture, practise their religion and use their language; and (b) to form, join and maintain cultural, religious and linguistic associations and other organs of civil society.
The relationship between these two provisions has been explained by Justice Ngcobo in Prince v President, Cape Law Society 29 as follows: This Court has on two occasions considered the contents of the right to freedom of religion. On each occasion, it has accepted that the right to freedom of religion at least comprehends: (a) the right to entertain the religious beliefs that one chooses to has been doing on an ongoing basis even though the citation rate of foreign cases seems to be in decline. In 2011 (the last year of the empirical results), only 106 foreign citations were counted, whilst the amount was 645 in 1995. Results obtainable at http://www4-win2.p.nwu.ac.za/dbtwwpd/textbases/ccj.htm.

29
The Prince case paras 38-39. The case is discussed at 3.3. entertain; (b) the right to announce one's religious beliefs publicly and without fear of reprisal; and (c) the right to manifest such beliefs by worship and practice, teaching and dissemination. Implicit in the right to freedom of religion is the "absence of coercion or restraint". Thus "freedom of religion may be impaired by measures that force people to act or refrain from acting in a manner contrary to their religious beliefs".
Seen in this context, ss 15(1) and 31(1)(a) complement one another. Section 31(1)(a) emphasises and protects the associational nature of cultural, religious and language rights. In the context of religion, it emphasises the protection to be given to members of communities united by religion to practise their religion.
Other provisions, such as the right to equality (section 9), the right to freedom of expression (section 16), the right to freedom of assembly (section 17) and the right to freedom of association (section 18) are all relevant in the context of religion but will not be discussed here.

3
Judicial engagement with foreign religion cases: making sense of statistics

S v Lawrence, S v Negal, S v Solberg 1997 4 SA 1176 (CC) (the Lawrence case)
The first judgment of the Constitutional Court that dealt with religious issues was the Lawrence case. The three cases were dealt with as one, because they were concerned with a contravention of the Liquor Act by three employees of what used to be known as the Seven Eleven stores. The three appellants were employees who had been convicted in separate cases in the Magistrate's court. The appeal case was concerned with, amongst other issues, the constitutionality of certain provisions of the Liquor Act, 30 especially those preventing the selling of liquor after hours, 31 at a particular place 32 or on closed days. 33 One of the contentions was that the prohibition imposed on the selling of wine on closed days (Sundays, Good Friday and Christmas Day) is inconsistent with the constitutional 30 Liquor Act 27 of 1989. The case was decided when the interim Constitution was still in operation. right to freedom of religion, particularly the free exercise of religion. 34 One of the appellants contended that: ... the purpose of prohibiting wine selling by grocers on "closed day(s)" was "to induce submission to a sectarian Christian conception of the proper observance of the Christian Sabbath and Christian holidays or, perhaps, to compel the observance of the Christian Sabbath and Christian holidays". This, so the argument went, "coerced individuals to affirm or acquiesce in a specific practice solely for a sectarian Christian purpose", and was inconsistent with the freedom of religion of those persons who do not hold such beliefs and do not wish to adhere to them. 35 The majority held that the connection between the Christian religion and the restriction against grocers selling wine on Sundays was too tenuous to be characterised as an infringement of religious freedom, because Sundays in South Africa have required a secular as well as a religious character. 36 The judgment was delivered when the interim Constitution was still in operation. Section 35(1) allowed the Court to "have regard to comparable foreign case law" in interpreting the provisions of the Bill of the Rights. 37 Three of the nine presiding judges cited 21 cases from four countries at least 57 times (Canada, 38 USA, 39 UK 40 and India 41 ) in the course of their reasoning. 42 Justice Chaskalson, who delivered the majority judgment, cited foreign cases 23 times.
He did so in the absence of any hint from the text of the judgment that he was doing 34 Interim Constitution s 14: "Every person shall have the right to freedom of conscience, religion, thought, belief and opinion, which shall include academic freedom in institutions of higher learning." 35 Lawrence case para 85. 36 Lawrence case paras 84-105. At para 96 the court explained: "Amongst those who observe Sundays as rest days, are many who do so because it has become the most convenient day for such purpose, and not because of any wish to observe the Christian Sabbath. The secular nature of Sundays is evidenced by the ways in which many people spend their Sundays, engaging in sport and recreation rather than in worship." 37 Section 35(1) of the interim Constitution was the counterpart of s 39 (1)  The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest belief by worship and practice or by teaching and dissemination.
According to Chaskalson he could not "offer a better definition than this of the main attributes of freedom of religion". 47 Since its approval by Chaskalson, the Canadian definition of freedom of religion has been accepted on a few other occasions by the Constitutional Court, and it would be safe to conclude that the contribution of the Canadian case in providing a workable definition for religion seems to be a given. 48 The purposive (teleological) approach followed by the Constitutional Court to determine the meaning of freedom of religion is also a transplantation from the Canadian court in the Drug Mart case based on the following passage: 49 The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect. In my view this analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter. The interpretation should be, as the judgment in Southam emphasizes, a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter's protection. Our solutions to all these problems and difficulties will, of course, be found not in the complex and often contradictory North American jurisprudence on the subject but in the text and context of our own Constitution. In Prinsloo v Van der Linde and Another this Court cautioned against simplistic transplantation into our jurisprudence of formulae, modes of classification and legal doctrine developed in other countries where the constitutional texts and socio-historical situations were different from ours. At the same time we stated that in developing doctrine we had to take account both of our specific situation and of problems which we shared with all humanity. … If I draw on statements by certain United States Supreme Court Justices, I do so not because I treat their decisions as precedents to be applied in our Courts, but because their dicta articulate in an elegant and helpful manner problems which face any modern court dealing with what has loosely been called church/State relations. Thus, though drawn from another legal culture, they express values and dilemmas in a way which I find most helpful in elucidating the meaning of our own constitutional text. 50 In accordance with this rule, a South African court is bound to former precedents when the same points arise again in litigation. See Du Bois "Part 1: General" 76-92 for a detailed discussion.

Christian Education South Africa v Minister of Education 2000 4 SA 757 (CC) (the Christian Education case)
Whereas Cases which involve children's rights are undeniably hard to adjudicate, especially where the likelihood of a tug-of-war between seemingly self-same rights and freedoms exist.
Justice Sachs was well aware of this tension. 61 In essence, he agreed that the provisions 57 Schools Act 84 of 1996. The offending provision, s 10 reads: "(1) No person may administer corporal punishment at a school to a learner.

Prince v President, Cape Law Society 2002 2 SA 794 (CC) (the Prince case)
The third case dealing with freedom of religion was the Prince case. The appellant had a law degree and had satisfied all the academic requirements to be admitted as an reason by analogy to extrapolate the appropriate course from existing principles of law, custom, and 'social utility'. These forces allow the judge to fashion the law from workable principles that will be tested over time by their application to real controversies. The more novel the question faced, the more resourceful the judge will have to be." attorney. The Law Society refused to register him as a candidate attorney, because he had two previous convictions for the possession of cannabis and also a declared an intent to continue using it for religious purposes as required by the Rastafarian religion. Prince put his legal education to good use, and he first approached the High Court to challenge the decision of the Law Society, but failed. 68 Then he appealed to the Supreme Court of Appeal, where the appeal was dismissed, 69 and finally he lodged an appeal with the Constitutional Court. 70 The Constitutional Court delivered two judgments. The first judgment was an interim judgment 71 to allow the litigants to adduce additional evidence, because -as explained by Justice Ngcobo, the right to freedom of religion in the "open and democratic society contemplated by the Constitution is important", and because the appellant belonged to a minority group 72 [t]he constitutional right asserted by the appellant goes beyond his own interest -it affects the Rastafari community. The Rastafari community is not a powerful one. It is a vulnerable group. It deserves the protection of the law precisely because it is a vulnerable minority. The very fact that Rastafari use cannabis exposes them to social stigmatisation. … Our Constitution recognises that minority groups may hold their own religious views and enjoins us to tolerate and protect such views. However, the right to freedom of religion is not absolute. While members of a religious community may not determine for themselves which laws they will obey and which they will not, the state should, where it is reasonably possible, seek to avoid putting the believers to a choice between their faith and respect for the law. 73 The Court in the second and final case was divided five to four against Prince. 74 The ratio underlying the majority's decision was that the use of cannabis by Rastafari could not be sanctioned without impairing the state's ability to enforce its statutes in the public interest. The failure to make provision for an exemption to accommodate adherents of the Rastafari religion was thus a reasonable and justifiable limitation under the The interim Prince case.

72
The interim Prince case para 25. 73 The interim Prince case para 26. 74 The final Prince case. 75 The final Prince case para 139.
The record of the final Prince case contains 29 foreign case citations. The Drug Mart was mentioned once again for its definition of freedom of religion (and is by now firmly entrenched in South African law). 76 A number of the foreign cases cited in the judgment of the majority had to do with Prince's contention that he accepted the fact that the legislation prohibiting the possession and use of cannabis served a legitimate government purpose, but that an exemption had to be made in favour of the use for religious purposes. 77 The Court compared some of the approaches in the judgments of the US Supreme Court and distinguished them from the facts in casu. 78 The tendency of the Court to use foreign case law to support its role as comparative jurists is illustrated in phrases such as ".... I do not believe that read as a whole his judgment is inconsistent with the granting of a narrowly tailored religious exemption in South Africa for the sacramental use by Rastafari of dagga …". 79 Comparing foreign cases is not the same as being bound to foreign precedents in accordance with the principle of stare decisis followed in South Africa. Thus, it is not extraordinary that some of the Constitutional Court judges have referred to, and occasionally followed, an approach of the minority of a foreign court. As suggested by the majority in the final Prince case: 80 "… the approach of the minority of the Court in Smith's 81 case is more consistent with the requirements of our Constitution and our jurisprudence on the limitation of rights than the approach of the majority", although, in the end, the Court also did not follow the approach of the minority but developed its own proportionality analysis in dealing with the limitation of rights. The Smith's case was 76 The final Prince case para 38. Although the Pillay case did not deal with freedom of religion per se, it dealt with the Hindu culture which, in this context, is broad enough to include religion, especially in the context of religious and cultural beliefs and practices in a school setting. In this case Sunali, a Hindu learner, was forbidden by her school to wear a nose stud because the wearing of jewellery was banned by the School's Code of Conduct. Sunali and her mother were not satisfied with the ban and initiated legal steps against the school, which commenced in the Equality Court 84 and reached a conclusion in the Constitutional Court.
The Constitutional Court found that a combination of the school's refusal to grant Sunali an exception to wear her nose stud and the provisions of the Code of Conduct, which did not provide for an exception to allow for a reasonable accommodation of religious or cultural beliefs, resulted in unfair discrimination. 85 The facts of the case were the first of a kind, and extensive reference to alternative approaches by foreign jurisdictions were made by the litigants. Justice Langa, who delivered the majority decision, emphasised the usefulness of foreign jurisprudence but cautioned against the dangers of careless judicial comparativism by emphasising that "the context in which a particular pronouncement was made needs to be carefully examined". 86 In all, he cited foreign cases 19 times. 87 Foreign case citations were used, inter alia, with the purpose of proving that "even there" a certain measure was adopted, 82 The final Prince case paras 47, 119-123, 128, 129, 152, 155 and 163. 83 The final Prince case para 129. 84 The Pillay case para 10. 85 The Pillay case para 119. 86 The Pillay case para 49. 87 Canada -7 citations; European Court of Human Rights -1 citation; Germany -1 citation; UK -2 citations, the USA -7 citations; and Zimbabwe -1 citation.
which the court intended to adopt "even here". 88 For example, in order to determine whether a practice or belief qualifies as religious, Justice Langa remarked that it is "accepted both in South Africa and abroad that in order to determine if a practice or belief qualifies as religious a court should ask only whether the claimant professes a sincere belief", thus performing a subjective enquiry. 89 There was, however, no such consensus concerning culture, and arguments were raised that because culture is "an associative practice, a more objective approach should be adopted". 90 The difference between the two approaches were not greatly important to Justice Langa -according to him it was difficult anyway to distinguish between Hindu religion and culture -and the conclusion was that Sunali "held a sincere belief that the nose stud was part of her religion and culture". 91 The usefulness of foreign jurisprudence in the absence of South African authority was also recognised by Justice Langa in dealing with the question of whether or not Sunali's wearing of the nose stud should be protected in terms of the Constitution and the Equality individual's religion, whilst the Canadian Supreme Court has specifically declined to adopt that standard and has stressed that 'more than mere negligible effort is required to satisfy the duty to accommodate.' The latter approach is more in line with the spirit of our constitutional project which affirms diversity. However, the utility of either of these phrases is limited as ultimately the question will always be a contextual one dependant not on its compatibility with a judicially created slogan but with the values and principles underlying the Constitution. Reasonable accommodation is, in a sense, an exercise in proportionality that will depend intimately on the facts. Whilst the rest of the world is debating the pros and cons of judicial comparativism, 102 the South African Constitutional Court has been developing, without much ado, an impressive reference list of foreign precedents, without fear or favour. This presentation has dealt with the propensity of the Constitutional Court to look beyond its borders in matters of religion, which we have seen has happened quite often in the few cases discussed. Never considering foreign precedents to be binding or persuasive, the Court has been protecting its independence. It does not share the fears of some that transjudicialism would endanger the sovereignty of courts. In the words of Ackermann: 103 One may be seeking information, guidance, stimulation, clarification, or even enlightenment, but never authority binding on one's own decision. One is doing no more than keeping the judicial mind open to new ideas, problems, arguments and solutions.
And also: The fact that in a particular case, the caution which should accompany the use of foreign constitutional law 104 is not explicitly repeated, does not warrant the inference that due care was not taken. 105 Transjudicialism, or comparative judicialism as I prefer to call it, enriches judicial reasoning and promises an escape from that which has been described by Ackermann as a "tunnel vision" towards judicial problem solving. 106 A comparative approach enhances one's legal thinking, which may become unimaginative after a few years on the bench.
To this end, Ackermann explains, and I fully agree: 107 One often ends up rehearsing the same line of reasoning or -in a type of inductive process -by trying to find additional authority for the provisional conclusions one has already reached. It is in this context that foreign law can play a particularly valuable role. It may be that, when one commences the enquiry into foreign law, one is (psychologically) hoping to find confirmation for one's hypotheses, but if one remains alive to falsifying possibilities, the foreign law can be of particular value. In any event,