The Religious Question and The South African Constitutional Court: Justice Ngcobo in Prince and De Lange

Abstract

Justice Ngcobo, an active member of the Constitutional Court early in the post-apartheid years, engaged with the merits of religious freedom and considered the determinations of the faithful and religious organisations as part of appropriate adjudicatory factors. Roughly two decades after the end of Apartheid in Ecclesia De Lange v Presiding Bishop of the Methodist Church for the Time Being and Another there is strong suggestion discernible from De Lange that this position could be abandoned. If this trend is embraced, it would regard the determinations of the faithful and religious institutions as final and dispositive. Consequently, features of religious belief and practice would be immunised from constitutional scrutiny. What makes this trend worthy of evaluation are the decision of the Supreme Court of Appeal leading up to De Lange; the force of the trend evident in De Lange; the persistence and subtle recognition of the religious question in South Africa’s lower courts in the post-apartheid era despite the position of the Constitutional Court in the post-Apartheid years to fully engage with petitions about the right to religious freedom. This article draws attention to the challenges of the resurgence of the religious question in South African law by engaging in a review of the opinion of Justice Ngcobo in Prince v President of the Law Society of the Cape of Good Hope and Others as well as similar cases where the religious question has arisen, including De Lange.