The right to freedom of religion is of fundamental significance in an open and democratic society. The right to freedom of religion enjoys eminence among the rights entrenched in the Bill of Rights in the Constitution. The issue that has to be determined in this case is whether the Regulations limit the constitutional right to freedom of religion. The purpose of this paper is to argue that there is an infringement of the right to freedom of religion. Moreover, it will be argued that such limitation with regard to the refusal to grant exemption for a religious special diet and to stop fumigation is unreasonable and unjustifiable in terms of section 36 of the Constitution.
Section 15(1) and 31(1)(a) place emphasis and protect religious rights. Section 31(1)(a) is implicit of the freedom of religion, thus it is impaired by measures that force people to refrain or act in a certain manner which is contrary to their beliefs. In this case, it is clear that the regulations forces members of the Day of Judgment faith to eat animal products. This can be said to be contrary to their religious beliefs. As of consequence, the provision limits the member’s right to practice his religion. It is then necessary to consider whether such limitation is justifiable in terms of section 36 of the Constitution.
When applying the limitation analysis, it is crucial to weigh up the competing values as well as the assessment based on proportionality. Moreover, it is important to measure the three elements of the government interest when weighing and assessing proportionality. The elements of government interest include, the importance of the limitation, the relationship between the limitation and the underlying purpose of the limitation as well as the impact that the exemption for religious reasons have on the overall purpose of the limitation. In casu, it can be argued that the prison regulations to fumigate ensure the maintenance of a hygienic and a clean environment...
Constitution of South Africa, 1996.
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