From: Mr Jerome Veldsman

SUBMISSION TO THE JOINT COMMITTEE OF THE NATIONAL ASSEMBLY AND THE NATIONAL COUNCIL OF PROVINCES ESTABLISHED IN TERMS OF SECTION 45(1)(C) OF THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA, 1996 TO REVIEW THE CONSTITUTION
DATE OF SUBMISSION: 20 JULY 2009

DETAILS OF SUBMITTER
	I am a practicing attorney, but I make this submission to the
	Constitutional Review Committee in my personal capacity.
	This submission is in response to the Invitation for Public Submissions
	with closing date 19 August 2009.

2 SECTIONS TO BE REVIEWED
I feel the following sections and schedule of the Constitution need to be reviewed: sections 6(5)(b)(ii), 15(2), 16(2)(c), 35(2)(f), and 37: the first item in the Table of Non-Derogable Rights, and Schedule 2.

3 CONTEXTUALISA TION
3.1	I feel the content of the Constitution itself must be consistent with respect for the values of human dignity, the achievement of equality and the advancement of human rights and freedoms. In order to achieve the foregoing, the Constitution ought to be sanitised of bias in favour of religious persons to the disadvantage of persons who do not hold supernatural/deity beliefs.
	
3.2	A solution could have been, for example, 
3.2.1	to construe the word "religion" in the Constitution also to include "not having supernatural/deity beliefs"; or
3.2.2	to construe "freedom of religion" also to include "freedom from religion", but the Constitutional Court has followed the opposite approach.

3.3 Accordingly, the sanitisation ought to be achieved by textual amendments.

4 SECTION 6(5)(b)(ii)

4.1 Section 6(5)(b)(ii) currently reads as follows:
6(5) A Pan South African Language Board established by national legislation must:
	a) ...; and
	b) promote and ensure respect for
	i) ...; and
	ii) Arabic, Hebrew, Sanskrit and other languages used for religious purposes in South Africa.

4.2 The Pan South African Language Board is an organ of state and is funded from the National Revenue Fund.

4.3 The use of an organ of state and/or public resources for the promotion of and ensuring respect for languages used for religious purposes is repugnant to the rule of separation of State and Church.

4.4 Section 6(5)(b)(ii) ought to be deleted in its entirety.

5 SECTION 15(2)
5.1 Section 15(2) currently reads as follows:
15(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.

5.2 Section 15(2) is logically inconsistent.

5.3 It is common practice at many state or state-aided institutions, such as public schools, for religious observance to be integrated into meetings/activities at which attendance is not free and voluntary.

5.4 As an example, I quote from the draft National Policy on Religion and Education:

63.
A school assembly has the potential for affirming and celebrating unity in diversity, and should be used for this purpose. Public schools may not violate the religious freedom of pupils and teachers by imposing religious uniformity on a religiously diverse school population in school assemblies. Where a religious observance is included in a school assembly, pupils may be excused on grounds of conscience from attending a religious observance component, and equitable arrangements must be made for these pupils.

5.5 The policy item under discussion is intellectually dishonest. It is not possible to make an "equitable arrangement" in such circumstances if the arrangement requires the singling out of a person who does not have supernatural/deity beliefs.

5.6 A sizable portion of the South African population does not have supernatural/deity beliefs, so promoting the different religions "equitably" at a meeting/activity at which attendance is not free and voluntary is the problem and not the solution.

5.7 Placing a person in a position where he or she must leave a meeting/activity at which attendance is not free and voluntary in order to avoid having religion foisted upon him or her can never be an "equitable arrangement"; it per se constitutes unfair discrimination by being repugnant to the right to freedom of conscience, religion, thought, belief and opinion. Indeed, putting a child in such a position constitutes child abuse.

5.8 Section 15(2) ought to be amended to read:
15(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[.]; and
d) no religious observances may be conducted at state or state-aided institutions at any meeting or activity at which attendance is not free and voluntarv.

6 SECTION 16(2)(c)
6.1	Section 16(1) deals with the right to freedom of expression.

6.2 Section 16(2)( c) currently reads as follows:
16(2) The right in subsection (1) does not extend to
a) ...;
b) ...; or
c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

6.3	In section 15(1), the terminology "conscience, religion, thought, belief and opinion" is used to communicate the ambit of human contemplation.

6.4	Similar terminology ought to be used in section 16(2)(c).

6.5	There are too many examples in history of the advocacy of and
manifestation of hatred that is based on "conscience, thought, belief and opinion", other than on "religion".

6.6	The advocacy of hatred that is based on "conscience, thought, belief and opinion" is as repulsive as the advocacy of hatred that is based on religion.