Individual vs collective rights: the approach taken by SA courts

Associate Professor Simon Rabinovitch

By Bonny Feldman

In his keynote address at the opening of the renovated Old Shul at the Gardens Shul complex, visiting Fulbright scholar Simon Rabinovitch discussed an interesting legal issue that reached the courts in South Africa.

The concept of ‘equality before the law’ may be something most of us would like to see in all countries — after all, it’s about a democratic approach to society and it ensures that the rights of all people are protected.

However, there are situations in which rights may clash — in which case, equality before the law becomes somewhat more difficult to uphold.

A particular area of potential conflict relates to the legal position offered to individuals under the law of the land, as opposed to the legal protection offered by religious law. Can these two types of law co-exist without ever being in conflict?

This question came up in a recent case, its focus being on whether the law of the country could override the law of the Beth Din, i.e., the organisation acknowledged within the Jewish community of South Africa as being the upholders of Jewish religious law. It’s a case that was recently discussed by visiting Fulbright scholar, Simon Rabinovitch, in his keynote address at the opening of the renovated Old Shul at the Gardens Shul complex in Cape Town.

Rabinovitch points out that South African law recognises the rights of people in terms of “religious and tribal self-determination”, and this recognition goes as far as being entrenched in the Constitution, which “recognises traditional law and customary law”.

In his explanation of the legal situation relating to the recognition of customary or religious law, as opposed to the country’s national law, Rabinovitch referred to two cases that reached the courts. In essence, both of the cases dealt with the right of a religious authority to banish a member of their community for their failure to adhere to the laws and practices of their particular community. The argument here relates to whether the rights of an individual to behave in a way they choose — and which may be in line with the protection of individual rights afforded by South Africa’s Constitution — can be subsumed by the rights of a traditional or religious leader to uphold the practices of the collective.

The case of most interest to us is one in which the Beth Din issued an order of excommunication against a man who refused to comply with its pronouncement regarding his obligation to pay maintenance to support his ex-wife and children. The man took the matter to court, arguing that excommunication was humiliating and that it negatively impacted his dignity as a human being. He hoped that the court would uphold his civil legal rights relating to freedom of religion and dignity — in the sense of these rights being applicable to him as an individual.

The court looked to the South African Constitution, interpreting its provisions regarding freedom of religion and freedom of association as being applicable both to an individual and to a collective. The court concluded that, because the ex-husband had initially entrusted the conflict about the terms of his divorce to the Beth Din, he had chosen to “put himself under the authority of the Jewish religious court”. As such, the Beth Din had the right to “actively disassociat[e]…from individuals who break communal norms”. And so, the court upheld the right of the Beth Din to excommunicate the man.

As Rabinovitch argued, the case confirmed that the rights provided to the individual in our Constitution may, at times, be secondary to communal authority. However, it cannot be assumed that this is always going to apply. In the Beth Din case, an important consideration for the court was to prevent the infringement of another right, in this instance the right to equality for women. 

Rabinovitch concluded that, “Modern liberal democratic states will always have difficulty balancing between collective and individual rights when…[these rights]…are in conflict. The cases…illuminate…the degree to which democratic states can find ways to prioritise communities’ cohesion without sacrificing individual freedoms.”

• Published in the July 2023 issue – Click here to start reading.

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