What the law says on religion in public schools

What the law says on religion in public schools Picture: iStock/Gallo Images
What the law says on religion in public schools Picture: iStock/Gallo Images

In the article “Disregard for religious diversity” (City Press, August 25), Nuraan Davids voices concern that, “despite reform measures, South Africa’s public schools continue to promote a Christian ethos at the expense of other religions or faiths”.

In this regard, she refers to the practice of “a number of schools ... [conducting] their assemblies preceded by a hymn and a prayer, or the choice of the invited speaker, who is often from the local church”.

This piece responds with a view to bringing legal clarity to some of the issues raised – and these are laws that have already been decided by our courts.

The starting point is section 15(1) of the Constitution, which guarantees “everyone” (including teachers and pupils) the right to freedom of conscience, religion and belief.

This means that they do not leave their religious convictions at the doorstep when they leave home for school in the morning, but take them with them into the public school environment.

This does not, of course, grant a teacher the right to promote a particular religion or religious viewpoint in class. However, it also does not mean that a teacher has no right to express his/her personal convictions on an issue if, for example, he or she is asked about them by a pupil.

While the Constitution is silent on “religious education” and “religious instruction” in public schools, it specifically deals with “religious observances”. Section 15(2) of the Constitution – to which the 2003 National Policy on Religion and Education is subject – states that “religious observances may be conducted at state or state-aided institutions”, subject to three conditions:

  • The observances must follow rules made by the appropriate public authorities;
  • They must be conducted on an equitable basis; and
  • Attendance must be free and voluntary.


The fact that religious observances may take place in public schools was confirmed by the Johannesburg High Court in the case of OGOD v Laerskool Randhart and Others, in which the court essentially decided that:

  • It is for the school governing body to – ideally through a process of consultation, and taking into account South Africa’s diversity of religious beliefs – establish the rules for religious observances in that school;
  • “Equitable” means that a public school must act even-handedly and fairly in relation to pupils of different religions, taking into account that we live in a diverse society where there should be space for all to practise their religious beliefs.

Now, what this will look like may vary from school to school, and even within one school from time to time, depending on, among other things, the pupil make-up and needs of the school.

Importantly, although some schools may choose to go this route, the judgment does not oblige public schools to conduct “multifaith” religious observances, for example, by reading from different religious texts in school assembly, by praying a “universal” prayer and having a “moment of silence”; and

  • “Free and voluntary” means that every pupil has a choice whether or not to attend a religious observance, and should not be made to feel any pressure to attend.

In this regard, it is advisable to clearly and continuously communicate to pupils that they have a choice, and are under no obligation to attend.

What this judgment makes very clear, however, is that no public school may promote one religion over another, or hold itself exclusively or predominantly to a particular religion.

To the extent, therefore, that Davids takes issue with public schools that “continue to promote a Christian ethos at the expense of other religions or faiths”, the same applies to public schools that promote a Muslim, Jewish, Buddhist, atheist or any other religious ethos.


The policy makes a clear distinction between “religion education” (mandatory), “religious instruction” (impermissible) and “religious observances” in public schools.

Religious education is part of the national curriculum, and teaches pupils about the religions of the world and in South Africa.

Religious instruction on the other hand, is defined as “instruction in a particular faith or belief, with a view to the inculcation of adherence to that faith or belief”.

This may not be part of the formal school programme, “although schools are encouraged to allow the use of their facilities for such programmes in a manner that does not interrupt or detract from the core educational purposes of the school. This could include voluntary gatherings and meetings of religious associations during break times”.

In other words, nothing in the policy prohibits a public school from allowing religious instruction on its premises, as long as it does not form part of, or detract from, the formal school programme, and the same allowance should be made for other faiths should they request it.

The Constitution does not guarantee freedom “from” religion, but freedom “of” religion – including in public schools. As the Constitutional Court stated in the case of MEC for Education v Pillay: “The display of religion and culture in public is not a ‘parade of horribles’ but a pageant of diversity which will enrich our schools and, in turn, our country.”

Badenhorst is an advocate with the Legal Counsel of Freedom of Religion SA, a legal advocacy organisation working to protect religious freedom

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