'The brouhaha about the alleged ‘‘blasphemous artworks’’ reveals how difficult many South Africans find it to deal with difference and diversity. Instead of asking hard questions about their own position of economic, social and (in the case of religion) political dominance, and privilege and about the harm caused by their demand for special rights, some groups revert to the inappropriate language of rights to assert their dominance – ‘‘rights’’ for us, but no ‘‘rights’’ for those we disagree with.’

Constitutional law expert Professor Pierre de Vos points out that the Constitution does not protect the right to have your faith (or lack of faith) respected – and argues that the common law crime of blasphemy is ‘obviously’ unconstitutional; and that the provisions of the 1974 Publications Act would today not pass constitutional muster.

This is because it would be in conflict with the right to freedom of religion as well as the right to freedom of expression protected in the Bill of Rights.

In an analysis on his Constitutionally Speaking blog, De Vos notes section 15(2) of the Constitution provides that religious observances may be conducted at state or state-aided institutions, provided that this is done in terms of pre-announced rules, it is conducted on an equitable basis, and attendance at them is free and voluntary.

‘The primary purpose of this provision,’ he says, ‘is to ensure that schools and other state institutions respect and accommodate diverse forms of religious and non-religious beliefs.’ This is why the Gauteng High Court (Johannesburg) held in Organisasie vir Godsdienste-Onderrig en Demokrasie v Laerskool Randhart and Others that it is unconstitutional for a state-aided school to embody a ‘Christian ethos’.

De Vos adds that section 15(1) and 16(1) illustrates that the Constitution contains no right for Christians (or any other belief) to ‘have their faith respected’ and that these sections would be infringed by any law, rule, policy or action that requires society not to disrespect the religious or other beliefs of others. Section 15(1) guarantees for everyone ‘the right to freedom of conscience, religion, thought, belief and opinion’.

The Constitutional Court held in State v Lawrence; State v Negal; State v Solberg that the section protects the right of believers and non-believers to entertain their religious or other beliefs, the rights to declare those beliefs openly and without fear of hindrance or reprisal and the right to manifest such beliefs through practice. De Vos notes section 15(1) does not protect either believers or non-believers from having their belief (or absence of belief) ‘disrespected’, because this would potentially coerce believers or non-believers to act or refrain from acting contrary to their beliefs.

He adds a ban on disrespecting religion would also infringe on the right to freedom of expression guaranteed in section 16(1) of the Constitution.

This right includes freedom of artistic creativity, and academic freedom and freedom of scientific research. In De Reuck v Director of Public Prosecutions (Witwatersrand Local Division) and Others, the Constitutional Court held that freedom of expression should not be construed narrowly. ‘All forms of expression not explicitly excluded from protection by section 16(2) are protected expression and can only be limited in terms of the limitation clause,’ says De Vos, adding that prohibiting expression – in order to protect either believers or non-believers from having their belief ‘disrespected’ – would therefore be constitutionally impermissible.

Full analysis on the Constitutionally Speaking blog

Organisasie vir Godsdienste-Onderrig en Demokrasie v Laerskool Randhart and Others

State v Lawrence; State v Negal; State v Solberg

De Reuck v Director of Public Prosecutions (Witwatersrand Local Division) and Others