The church-state relationship in South Africa was severely challenged in the
wake of the 1994 constitutional dispensation. An analysis of the relationship
between the church and the constitutional state reveals the unique position of
church law in terms of the churchâs self-understanding and the possibilities of the
self-rule of the church, within the context of entrenched religious rights and a
sound church-state relationship. This study sets out to contribute to a framework
of understanding that provides the impetus necessary for the autonomy of the
church in South African society, notably of the churches of Reformed descent
and theology.
Major events in the general history of the relationship between church and state,
church-state relationships in other legal systems, and the relationship between
the church and the judiciary in South Africa, have shaped church governance
and influenced the self-expression and legal status of churches. The study
investigates the impact of these influences on church law.
The right to freedom of religion (buttressed by related rights and the diversity
demands of a pluralistic society), as a quintessential fundamental right,
essentially warrants a strong presumption in favour of the church. To disregard
the uniqueness of church law may even be contra bonos mores.
The pertinent issue is the status of church law as a ius sui generis and the
freedom of religious institutions (including churches) to promulgate and enforce
their own rules, standards, and regulations. The influence the inimitability of
church law has on churchesâ right to regulate their own affairs pertaining to focus
areas such as doctrine, offices, authority of church assemblies, ecclesiastical
tribunals, property, membership, discipline, and labour relations is examined in
this study. Internal arrangements contained in church books of order ought to
survive constitutional analysis â provided they conform to the churchâs own
tenets and are officially endorsed. The legal position of churches in South Africa
and the consequence of this position in terms of the Constitution were reviewed
critically and the content, application, and limitation of religious rights, as far as
these issues pertain to church law, were explored and evaluated. It is shown that the state and civil courts should not become entangled in
matters of religious doctrine. The concept of âdoctrineâ should of necessity be
extended to include interpretation of church orders and constitutions, and indeed
be construed to include the whole body of established church law. The courts, in
general, must accept the churchâs analysis of its own statutes and the state
should not be involved in matters of church law at all, owing to the contiguity
between doctrine and church order. As the church is the embodiment of
exercised fundamental rights, church law is shown to be an interest worthy of
protection.
The doctrine of positive neutrality is considered as a feasible model for a sound
church-state relationship. Churches have both rights and responsibilities vis-Ã vis
the state, while the stateâs minimum duty towards the church is to afford it
ample opportunity to function without being burdened by limitations and coercion
relating to its core tenets and practices. The courts and authorities need to be
mindful of the churchâs self-understanding as elucidated by its self-definition in
terms of the Bible and its settled tenets. Churches, as associations sui generis,
have a reciprocal duty to act within the dictates of human dignity, public policy,
and the law, while maintaining the right to claim their Biblical-prophetic
autonomy and constitutional sanction. In drawing all the observations and
conclusions together it is revealed how church and state can exist
complementary alongside each other â each sovereign in its own domain â
pursuing the same goals of advancing justice and the common good.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:ufs/oai:etd.uovs.ac.za:etd-08042014-161049 |
| Date | 04 August 2014 |
| Creators | van Staden, Johannes Hendrik |
| Contributors | Prof PJ Strauss |
| Publisher | University of the Free State |
| Source Sets | South African National ETD Portal |
| Language | en-uk |
| Detected Language | English |
| Type | text |
| Format | application/pdf |
| Source | http://etd.uovs.ac.za//theses/available/etd-08042014-161049/restricted/ |
| Rights | unrestricted, I hereby certify that, if appropriate, I have obtained and attached hereto a written permission statement from the owner(s) of each third party copyrighted matter to be included in my thesis, dissertation, or project report, allowing distribution as specified below. I certify that the version I submitted is the same as that approved by my advisory committee. I hereby grant to University Free State or its agents the non-exclusive license to archive and make accessible, under the conditions specified below, my thesis, dissertation, or project report in whole or in part in all forms of media, now or hereafter known. I retain all other ownership rights to the copyright of the thesis, dissertation or project report. I also retain the right to use in future works (such as articles or books) all or part of this thesis, dissertation, or project report. |
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