Judgment No. CCZ 7/16 27
Const. Application No. CCZ 17/15
the School Head, whose decision was final and binding. Thus, the applicants were
cognisant of the fact that any previous latitude or exemption granted in relation to chapel
attendance was subject to being reversed and that they and their daughters would be
obliged to comply with any such change in policy. In short, there can be no doubt that
they willingly consented to the implementation and enforcement of the School’s rules and
regulations, even if they were altered after the admission of their daughters into the
School.
In the Wittmann case (supra), the facts of which involved the enforcement
of an enrolment contract in circumstances which are are very similar to those herein, van
Dijkhorst J, at 454-455, opined as follows in relation to parochial community schools:
“In respect of these educational institutions the fundamental freedom of religion
of ‘outsiders’ is limited to the freedom of non-joinder. Outsiders cannot join on
their own terms and once they have joined cannot impose their own terms.
This indicates that the waiver of the freedom of religion (for the limited duration
of one’s membership and within the limits of the institution’s constitution) is not
contrary to the provisions of the Constitution in the case of private educational
institutions. Waiver per se of that freedom is therefore not unconstitutional.”
I note that this decision was premised on specific provisions of the South
African Constitution which are not identical to the corresponding provisions in our
Constitution and that, as far as I am aware, it has not been followed or applied by the
Constitutional Court of South Africa. I also note, with the utmost respect, that the
sentiments expressed by the learned judge might be criticised as being somewhat
exclusivist, having been pronounced in the peculiar post-apartheid milieu of that country.
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