Understanding the OGOD judgment

The role of religion in public schools is not settled quite yet

By Safura Abdool Karim
29 June 2017

Image copied for fair use from <a href="http://blog.centerforpubliceducation.org/tag/religion-in-schools/">The Centre for Public Education</a>.

On Wednesday the Gauteng High Court handed down a judgment on the role and place of religion in public schools.

The case was initially brought by the Organisasie vir Godsdienste-Onderrig en Demokrasie (OGOD), an association that deals with constitutional violations concerning religion and public schools, against six public schools in Gauteng and the Western Cape. However, the relief sought by OGOD was to apply to any public school within South Africa, not just the six listed in their application. The Ministers of Education and Justice were also joined in proceedings. Also, a number of civil society organisations, including CASAC (Council for the Advancement of the South African Constitution), the trade union Solidarity and Afriforum were joined as friends of the court.

CASAC, represented by SECTION27, argued that some of the practices adopted by schools are inconsistent with the Constitution. Other amicus, Cause for Justice, the South African Council for the Protection and Promotion of Religious Rights and Freedom and Afriforum argued in favour of maintaining a place for religion within public schools over a secular approach.

In essence, the OGOD’s application asked the court for a declaration confirming that certain types of activity are breaches of the National Religion Policy and also unconstitutional. These include promoting only one religion, associating the school with a particular religion and requiring a learner to disclose adherence to a specific religion. OGOD also sought interdicts against seventy-one different kinds of conduct by schools, including “having a value that learners strive towards faith”, referring to any deity in a school song and prayers dedicated to a specific God, on the grounds that this conduct did not comply with national policies and legislation. OGOD also attempted to interdict the teaching of creationism.

The schools relied on section 15(2) of the Constitution. Under section 15, religious observances may take place at state and state-aided institutions if they are conducted in an equitable manner and that attendance is free and voluntary. The Schools Act makes a similar provision for religious observance provided that it is in line with the Constitution.

The schools argued that they were entitled to the right to freedom of religion under the Constitution and to have an ethos that referenced a particular religion. Also, the schools argued that section 15(2) allowed for religious practices and observances to be conducted at schools, if students and staff attendance is free and voluntary as opposed to compulsory or coerced.

The court found that the interdicts sought by OGOD could not be granted on procedural grounds, namely that the application had been incorrectly formulated to rely directly on the Constitution rather than the specific school policies and rules as formulated by the School Governing Bodies (SGBs). Also, the court found that the provincial governments should have been joined as parties to the application. So the court did not rule specifically on whether the conduct highlighted by OGOD, including the teaching of creationism and the handing out of Bibles was unlawful.

Despite finding that the interdicts could not be granted, the court did decide on a narrower issue, where a public school endorses one religion to the exclusion of others. The six schools joined in the application all based their ethos on Christian values. The question the court considered was whether this adoption and endorsement of Christianity by public schools was in line with the Constitution and the recognition of diversity.

The court found that there was no law or provision in the Constitution which gave public schools and SGBs the right to adopt an ethos from one religion to the exclusion of others. All that the laws provided for was that SGBs could make rules that provided for religious policies and observances to be conducted on an equitable basis. This means that schools must treat different religions with an “even-hand”, which includes not favouring one and excluding other religions.

The court held that public schools may not adopt one religion to the exclusion of all others. The court made a declaratory order confirming that a public school cannot promote that it adheres predominantly to only one religion to the exclusion of others or hold itself out as promoting the interests of one religion over others.

In essence, this means that public schools may still conduct religious observances and promote religious values provided that these observances and values recognise a diversity of religions (including atheism or an absence of belief) and do not place one religion above all others. How this practically impacts the formulation of a school’s ethos remains to be seen.

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Published originally on GroundUp .

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White farmer evicted by heavily armed Zim riot police VIDEO

Under ZUNU PF rule white farmers have been the source of many misfortunes, evictions, land grabs and killings. The latest forceful eviction of another white farmer is reminiscent of the brutal, ugly and often violent removal of white farmers during the 2000 Mugabe land grabs.

Robert Smart, a farmer outside Rusape town, was forcefully evicted from his farm. Several workers and villagers stood in solidarity with the threatened farmer and reports indicate that the police used teargas, and live ammunition to disperse crowds. There are reports of police assaulting people, although no serious injuries are reported.

The police and ZANU-PF youth ransacked the house, and massive looting occurred. The defiant police also instructed laborers to slaughter a goat and prepare a meal for them, while they removed goods from the residence.

At the end of the day, there was nothing left and the life of yet another white farmer ruined through the actions of the obnoxious and defiant Mugabe regime.

While in South Africa farm murders are devasting and on the increase, can the same dreadful and often brutal evictions or land grabs be on the agenda.

WATCH THE VIDEO  - HERE IS THE LINK 

Published on South Africa Today

The Fall of South Africa – VIDEO

The mere mention of South Africa in a discussion provokes deep images of institutional racism, discrimination and violence. Stefan Molyneux is joined by Simon Roche for an in-depth look at the controversial history of South Africa, the untold story of Apartheid, rising criminality, an astronomical murder rate, President Jacob Zuma’s reign of terror, the epidemic slaughter of white farmers, Afrikaner land confiscation and the growing possibility of civil war.

Simon Roche is Head of the Office of the HQ of the world’s largest non-state civil defense organization, Suidlanders of South Africa. Once an ANC activist, Simon Roche now works with Suidlanders to prepare for impending catastrophe in the Rainbow Nation.

WATCH THE VIDEO -  HERE IS THE LINK FOR VIDEO

Published on South Africa Today

Newly repaired community hall torched

City officials to meet with Joe Slovo Park leaders in a bid to end protests that started after shack demolitions

By Barbara Maregele
27 June 2017

Joe Slovo Community Hall was torched by protesters on Monday night. Photo: Barbara Maregele

Joe Slovo Park community leaders and representatives from the City of Cape Town are expected to meet today over the recent spate of protests in the area.
On Sunday afternoon, a group of protesters torched a MyCiTi bus after the City’s Anti-Land Invasion Unit demolished about 20 shacks.

At about 8pm on Monday, protesters burnt the community centre and a small hall on Democracy Way which was being used as a local clinic and church. The Joe Slovo community hall was also gutted.
By Tuesday, City officials had cordoned off the community hall to assess the damage and clear debris. Inside, charred rubble and melted plastic chairs were scattered across the floor; the kitchen was gutted, and the bathrooms badly vandalised.

A female firefighter, who asked not to be identified, said she is traumatised after being caught in a tense standoff between protesters throwing stones and police firing tear gas.

“I was so scared, because it was the first time I experienced this. At one point, I was separated from my team and my eyes started burning. Later, I found out that it was teargas. I’m still coughing,” she said.

Loyiso Nkohla, the City’s community liaison officer, said he could not comment on the matter until officials had met with community leaders. He said for safety reasons a closed meeting would be held at Milnerton police station.

Community leader Cowen Banjatwa said the people whose shacks were demolished are from Ward 4 and that they cannot afford the rents in the area.

Banjatwa said he woke to the sound of people shouting and the smell of teargas. “My eyes and my wife’s eyes were burning in our shack. Now, people don’t have places to stay and they are angry. I don’t encourage what happened, but we need to sit down and discuss with the City to find solutions before this continues.”

“There is a great need for housing here and nothing has been done about it for years,” he said.
Phoenix resident Gavin Williams, whose formal house is directly behind the torched Democracy Way hall, said he feared for the safety of his family on the night of the protest. “We heard something happening outside, people shouting and going on. Then we smelt the smoke and the teargas. The neighbours all came out and started throwing buckets of water on the hall because the fire was about to jump over to our houses.”

“We had to take our four-month-old baby away because of all the smoke. Even the fire brigade was scared to come … We had to go and fetch them. The police also only came when everything was done,” he said.

Lorenzo Hutchinson said protesters started to stone them when he and his neighbours were trying to douse the flames. “We were trying to save our homes, but they started throwing us with stones. We have nothing to do with what they are protesting about, but they attacked us. That’s not right,” he said.

Mayoral Committee Member for Safety and Security JP Smith said the City has spent years transforming the hall into “one the community can be proud of”.

“The hall has been severely damaged and will be closed until further notice. The fire damage is extensive, resulting in almost all of the ceiling boards in the main hall being destroyed. This is hard to swallow when [on Monday] the Recreation and Parks Department finished extensive repairs to all ceilings boards and doors in this facility after years of motivating for funding,” he said.

“The nearest community halls are the Summer Greens Hall and the Milnerton Hall, and the City’s Recreation and Parks Department will accommodate users of the Joe Slovo Hall,” said Smith.

A small hall used as a local clinic and a church on Democracy Way were completed gutted. Photo: Barbara Maragele

Correction: The headline of this article was changed. Originally it incorrectly said the newly repaired hall was on Democracy Way.

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Published originally on GroundUp .

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How South Africa can stop political interference in who gets prosecuted

Shaun Abrahams, Head of the South Africa’s National Prosecuting Authority.
Reuters/Siphiwe Sibeko

South Africa’s National Prosecuting Authority has been embroiled in an almost decade-long battle over the prosecution of President Jacob Zuma on 783 charges that include fraud, racketeering and corruption.

The charges are related to controversial post-apartheid arms deal.

Why has the prosecuting authority failed to prosecute? The reason is that the law has struggled to create the independence necessary for prosecutors to pursue charges against prominent members of the executive. South Africa isn’t alone in this. The US has struggled too.

The real problem is that political pressure can get in the way of prosecution. Members of the executive, including the president, can interfere with the head of the prosecuting authority - the National Director of Public Prosecutions. Two examples stand out: the case brought against South Africa’s former police commissioner Jackie Selebi which eventually resulted in a trial and a prison sentence. The second is the Zuma arms deal case.

My suggestion is to establish a separate special prosecuting office that deals only with political cases – that is, those involving members of the executive and the legislature. The usefulness of a special prosecutor was stress tested in 1973 during the US President Richard Nixon debacle. The purpose is to create a greater measure of independence, although the Nixon case also showed that it can be subject to political interference. He had three removed.

Watergate nevertheless illustrated why a separate prosecuting capacity targeting the executive arm of government is important.

But how would a special prosecutor be appointed in South Africa? There are various options. It could, for example, be left to the Chief Justice or Parliament to decide when a matter demands the appointment of a special prosecutor.

A system like this wouldn’t completely remove the potential for interference, but it would ensure it was minimised. It would also free the director from being embroiled in political battles, enabling them to concentrate on their core job which should be to increase the overall effectiveness of the prosecuting authority as well as public confidence in its abilities.

Room for political interference

In South Africa the efficacy of the entire criminal justice system rests on the ability of the prosecuting authority to do its job properly. This is because it enjoys a monopoly over the prosecution of crime. The constitution mandates it to be the gatekeeper – it alone decides which criminal cases go to trial.

Every year the prosecuting authority receives hundreds of thousands of cases prepared by the South African police service. The bulk of them are ordinary offences, like murder, robbery and assault committed by ordinary people against other ordinary people. Very few involve prominent state officials.

The prosecuting authority does receive cases against members of the executive. But the number of political cases are a drop in the ocean compared to ordinary cases. They nevertheless risk derailing the proper and effective functioning of the prosecuting authority.

In reality, the prosecuting authority is only quasi-independent. This is for two reasons.

The first is that the language describing the independence of the prosecuting authority in the Constitution isn’t very clear.

In terms of the constitution, the Minister of Justice and Constitutional Development has final responsibility over the prosecuting authority. Case law has held that the minister can’t instruct the prosecuting authority to prosecute or not, but is entitled to be kept informed about cases that the public might be interested in or that involve important aspects of legal authority.

Despite this innocuous clarification, ministerial oversight leaves open a gap for interference.

The other major flaw in South Africa’s system is that there’s room for political interference in the way in which the director is appointed. The director is appointed by the president. The president can make the decision without any consultation.

The director is the embodiment of the institutional independence of the prosecuting authority and the incumbent is meant to play an executive role rather than a political one. The director is responsible for determining prosecution directives and prosecution policy. He or she may intervene in decisions to prosecute and may review decisions to prosecute – or not to prosecute – after consulting with provincial directors of public prosecutions.

But given that the president appoints the director, the prosecuting authority is in a difficult position. To perform its functions effectively, it must assert an independence it doesn’t enjoy.

Interference with the director

The office of the director has been the subject of controversy over the past 18 years, with the appointment and subsequent removal of four directors. Some of this controversy has centred on whether the prosecuting authority would, or wouldn’t, prosecute certain political cases. Vusi Pikoli was removed by then President Thabo Mbeki for prosecuting Jackie Selebi.

The fact that these types of cases are within the purview of the director provides grounds for political interference over the office. This interferes with its overall performance.

So far the debate about increasing the independence of the director has centred on how the appointment is made, and how an incumbent can be removed. One suggestion has been that a properly constituted committee made up of different stakeholders does the interviews and shortlists candidates. On the removal of an incumbent, there’s been a suggestion that the president’s right to suspend a director without consultation is removed.

Bolstering the appointment and removal procedures are important and should be done. But it’s not enough to focus on the individual director. South Africa needs to remove the incentive for political interference over the director. That’s the only way the efficacy of the prosecuting authority can be enhanced.

Jameelah Omar, Lecturer in Criminal Justice, Department of Public Law, University of Cape Town

This article was originally published on The Conversation.