This is an appeal against the whole judgment of the High Court handed down on 24 January 2020. The appeal seeks to impugn the court a quo's order awarding custody of the parties' three minor children to the respondent upon the separation of the parties.

The appellant also challenges the jurisdiction of the court a quo, and the urgency and validity of the interdict granted against him in respect of the parties' disputed properties.

Although the parties were also quarrelling about the respondent's right to access the matrimonial home, that dispute has since been resolved by the court a quo in the appellant's favour. That issue consequently falls away.

The respondent has, in turn, abandoned her claim that the appellant be barred from being heard until he has purged his dirty hands. That issue has also fallen away for the reason that it has been abandoned by the respondent.

Although the parties were married under Customary Law, they have both elected to have their matrimonial rights and obligations regulated and determined in terms of General Law; section 3(b) of the Customary Law and Local Courts Act [Chapter 7: 05].

It is convenient that their dispute be regulated and determined in terms of General Law because of their sophisticated way of life and ownership of immovable private property.

As the concept of private ownership of immovable property is unknown at Customary Law, it is virtually impossible to determine rights and obligations pertaining to privately owned immovable property in terms of any law other than General Law. Thus, the appropriate applicable law in this case is the General Law. See Mandava v Chasekwa 2008 (1) ZLR 300…,.

The appellant is the Vice President of Zimbabwe whereas the respondent is his estranged wife. The two were married under an unregistered customary law marriage also known as a customary law union. The marriage was blessed with three minor children. The eldest, Tendai Dominique Chiwenga, is aged 9 years whilst Christian Tawanazororo Chiwenga is 8 years, and Michael Alexander Tadisiswa Chiwenga is 6 years old respectively.

During happier times, the parties resided at their matrimonial home situate at Number 614 Nick Price Drive, Borrowdale Brooke, Harare together with their three minor children. During the subsistence of the marriage, the parties acquired both movable and immovable property either jointly or in their personal capacities. The acquired property includes the matrimonial home, a fleet of cars, immovable business premises known as Orchid Gardens, along the Domboshava Road, personal effects, and other paraphernalia.

It however so happened that the marriage later fell on turbulent times resulting in the appellant initiating divorce procedures under customary law. In those proceedings he alleged that he had given her a divorce token known as 'gupuro'.

In her papers before this Court, and in paragraph 8.1 of her heads of argument, the respondent continues to hold herself out as the appellant's wife. The divorce issue therefore appears not to have been resolved.

The appellant has nevertheless now issued summons against her in the court a quo under case number HC9837/19 claiming custody of the three minor children in terms of section 4 of the Guardianship of Minors Act [Chapter 5:08] and division of the matrimonial property acquired during the subsistence of the marriage.

The current proceedings and the parties' relationship are severely strained, acrimonious, and discordant. This is mainly because of the respondent's arrest on multiple charges of attempted murder of the appellant, fraud, money laundering, and contravention of the Exchange Control Regulations.

Upon her arrest, the respondent was detained in custody for a period spanning three (3) weeks, from 14 December 2019 to 6 January 2020. She went to prison without making proper provision for the custody of their three minor children, possession, and administration of her personal property and effects.

At the time of her arrest and detention, the appellant had voluntarily moved out of the matrimonial home. He avers that he returned to the matrimonial home to fill in the void occasioned by the respondent's arrest and detention in custody. In the absence of the respondent, he then assumed de facto custody of their three minor children and possession of their matrimonial property including the fleet of cars, Orchid Gardens, personal effects, and other paraphernalia.

His conduct in this respect was perfectly lawful and undisputed at the material time.

On 6 January 2020, the court a quo granted the respondent bail and ordered her to reside at the matrimonial home at her specific instance and request. Upon her release from prison, on bail, she returned to the matrimonial home to assume residence as ordered by the court a quo. State security guards stationed at the home denied her access to the matrimonial home.

The same scenario played out when she sought access to Orchid Gardens which was also guarded by State security guards. They also denied her access to the premises.

She further alleges that she claimed custody of her three minor children without success, a fact denied by the appellant.

Under the circumstances, the respondent submits that she had no option but to approach the appropriate court, on an urgent basis, for relief. To that end, she lodged an urgent application in the court a quo for a 'provisional spoliation order' directing the appellant to grant her the following interim relief on a prima facie basis pending the return date for a final order:

1. Access to the matrimonial home.

2. Access to and use of her personal motor vehicles.

3. Access to her clothing, personal goods and effects.

4. Return of her safes containing her personal property.

5. An order directing the appellant to return the three (3) minor children of the marriage to the respondent.

6. An order compelling the appellant to return to the respondent all furniture, goods and effects removed from the business premises at Orchid Gardens.

7. An order denying the appellant access to the court until he has purged his dirty hands.

8. An order directing the Sheriff, with the assistance of the police, to execute the court a quo's order forthwith.

In the final order, the respondent sought the following relief:

9. That the appellant be interdicted and restrained from interfering with the respondent's use and enjoyment of the matrimonial home and her business premises at Orchid Gardens pending the conclusion of the matrimonial proceedings under case number HC9837/19.

10. That the appellant be restrained from removing the three (3) minor children of the marriage from the applicant's custody.

11. That the appellant be ordered to pay costs at the punitive scale as between legal practitioner and client scale.

Though the terms of the provisional and final orders sought are somewhat worded differently, the import and effect of the two orders are materially the same. This is because they both seek to wrestle custody of the three minor children and possession of the disputed property from the appellant and confer them on the respondent.

Basically, the respondent's complaint was that the appellant had abused his office as Vice President of Zimbabwe using soldiers to despoil her of access to the matrimonial home, her children, and property.

The appellant objected to the respondent's claim that the matter was urgent.

He further questioned the assumption of jurisdiction by the court a quo as usurping the function of the Children's Court which is specifically conferred with the jurisdiction in terms of section 5 of the Guardianship of Minors Act [Chapter 5:08] to determine the question of custody of minor children when spouses begin to live apart.

He vehemently denied abusing his office as alleged or at all. He denied that the respondent had custody of the minor children and possession of the disputed property when he assumed de facto custody of the children and possession of the disputed property while she was in prison.

The appellant denied having given the guards at the matrimonial home, and Orchid Gardens, any orders to deny the respondent access to the premises.

His submission, to the effect that he had no control over the guards, was not rebutted.

Placing reliance on the South African case of Fraser v Children's Court, Pretoria North 1997 (2) SA 261, the appellant argued that it was wrong to discriminate against fathers in matters pertaining to the custody of their minor children.

It was his further submission that throughout the whole episode, he acted lawfully as a diligent pater familias. At paragraph 3(c) of his opposing affidavit, in the court a quo, the appellant makes the valid point that, as a responsible parent, he was obliged and duty bound to move into his home and take care of his minor children and family property when the respondent was detained in prison. He averred, further, that, as the father of the children, he was best suited to have their custody because the respondent was a drug addict and a psychiatric patient.

On the basis of the above summation of evidence and arguments, the court a quo found that:

(a) The matter was urgent mainly because of the welfare of the minor children. It also found that the matter was urgent because the respondent was arbitrarily evicted from the matrimonial home without a court order. It also found that spoliation matters are, by nature, urgent; and

(b) Notwithstanding that the respondent was in prison, she was unlawfully despoiled of the custody of her children and property.

The court a quo proceeded to make the following final order despite the fact that the respondent had asked for a provisional order on a prima facie basis:

“1. The respondent (Constantino) is hereby ordered to restore custody of the minor children, namely, Tendai Dominique Chiwenga (born 4 November 2011), Christian Tawanazororo Chiwenga (born 5 November 2012), and Michael Alexander Tadisiswa Chiwenga (born 13 February 2014) to the custody of the applicant (Marry) within 24 hours of this order.

2. The respondent (Constantino) is hereby interdicted and restrained from interfering with applicant's (Marry) access to, use and enjoyment of the property known as 614 Nick Price Drive, Borrowdale, Harare.

3. The respondent (Constantino) is hereby interdicted and restrained from interfering with applicant's (Marry) access to, use and enjoyment of the property known as Orchid Gardens, Domboshawa, Harare.

4. The respondent (Constantino) is hereby interdicted and restrained from interfering with applicant's (Marry) access to, use and enjoyment of the motor vehicles, namely, Toyota Lexus, Mercedes Benz S400, Mercedes Benz E350 (Black).

5. Respondent (Constantino) is interdicted and restrained from interfering with applicant's (Marry) access and/or possession of her clothing.

6. The respondent (Constantino) is ordered to pay applicant's (Marry) costs of suit.”

Aggrieved by the above order, the appellant appealed to this Court on ten (10) grounds of appeal which in fact raise only three issues for determination by this Court on appeal. It is cumbersome to regurgitate all the ten (10) grounds of appeal. It is however convenient to dwell on the three issues raised by the grounds of appeal. These are;

1. Whether the court a quo correctly determined that the matter was urgent.

2. Whether or not it was competent for the court a quo to grant a final interdict when the respondent had asked for a 'provisional' spoliation order.

3. Whether the court a quo had jurisdiction to determine the question of custody of the three (3) minor children in light of the provisions of section 5 of the Guardianship of Minors Act [Chapter 5:08]....,.

The appellant questioned the jurisdiction of the court a quo to entertain the issue of custody given that section 5 of the Guardianship of Minors Act [Chapter 5:08] ('the Act') specifically confers jurisdiction on the Children's Court in matters of this nature.

It is however pertinent to note that, although the Children's Court is conferred with the jurisdiction to determine the question of custody, upon separation of a child's parents, the High Court, as the upper guardian of all minors; section 81(3) of the Constitution as read with section 9 of the Guardianship of Minors Act [Chapter 5:08] has overall inherent jurisdiction at every stage during the child's minority. This is because the section does not expressly oust the jurisdiction of the High Court. Ordinarily it retains its inherent jurisdiction to hear and determine matters of this nature at its discretion.

Where, however, the proceedings before the court are a nullity, the court is stripped of its jurisdiction over the matter. It cannot therefore use the supremacy of the best interests of the children to found jurisdiction to grant spoliatory relief as happened in this case.

Section 86 of our Constitution prescribes the manner in and extent to which fundamental human rights and freedoms may be subjected to limitation or derogated from. Section 86(1) stipulates that rights and freedoms “must be exercised reasonably and with due regard for the rights and freedoms of other persons.”

Section 86(2) states that rights and freedoms “may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society.” Section 86(2) also delineates the relevant factors that are to be taken into account in determining the fairness, reasonableness, necessity, and justifiability of any such limitation. The list of these relevant factors is not exhaustive.

Additionally, section 86(3) enumerates those rights enshrined in Chapter 4 that may not be limited by any law or violated by any person.

The right of access to housing or shelter is not specifically included in the rights so enumerated.

Counsel for the appellants, relying on Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC), submits that socio-economic rights generally are justiciable and that the State must formulate and implement reasonable policies and programmes to achieve those rights in accordance with section 19 of the Constitution.

The response of the State, in casu, is to deny its obligations and its attitude is cavalier and unacceptable.

It has simply asked the appellants “to join the queue for land” - even though they have been settled on Haydon Farm since 2000 in tandem with the Land Reform Programme.

The draft order prayed for by the appellants is designed to achieve the progressive realization of the appellants' right to shelter.

Counsel for the first and fourth respondents contends that the appellants are not entitled to the relief that they seek. They are illegal settlers and their actions cannot be sanitised. They should, like any other citizen seeking shelter, apply to the relevant authorities to be allotted other land for their settlement. She further argues that, if the appellants are poor and cannot provide shelter for themselves, the children will be institutionalised and the State will take over and provide for their welfare.

When questioned by the Court, counsel for the first and fourth respondents reluctantly conceded that it would be preferable to leave children with their parents as this option would be more practicable and less costly for the State.

Counsel for the appellants, in his replying submissions, also agreed that children should not be taken away from their family and parents and that it would clearly be more expensive for the State to institutionalise children. Furthermore, to remove children from their family would be socially damaging and give rise to their proclivity towards crime and violence.

Section 25 of the Constitution enjoins the State and its institutions and agencies, inter alia, “to protect and foster the institution of the family.”

The National Objectives pertaining to children are captured in section 19 of the Constitution.

In particular, section 19(1) calls upon the State to “adopt policies and measures to ensure that, in matters relating to children, the best interests of the children are paramount.” More specifically, section 19(2)(b) requires the State to “adopt reasonable policies and measures, within the limits of the resources available to it, to ensure that children…, have shelter and basic nutrition, health care, and social services.”

The obligation of the State, to adopt reasonable policies and measures subject to the limitation of available resources, was extensively canvassed in Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) in considering the right of access to adequate housing. It is instructive to highlight the principal observations of the court in that case, at paras. 41-44:

“The measures must establish a coherent public housing programme directed towards the progressive realisation of the right of access to adequate housing within the State's available means. The programme must be capable of facilitating the realization of the right. The precise contours and content of the measures to be adopted are primarily a matter for the legislature and the executive. They must, however, ensure that the measures they adopt are reasonable….,.

It is necessary to recognise that a wide range of possible measures could be adopted by the State to meet its obligations. Many of these would meet the requirement of reasonableness. Once it is shown that the measures do so, this requirement is met.

The State is required to take reasonable legislative and other measures. Legislative measures by themselves are not likely to constitute constitutional compliance. Mere legislation is not enough. The State is obliged to act to achieve the intended result, and the legislative measures will invariably have to be supported by appropriate, well-directed, policies and programmes implemented by the executive…,.

An otherwise reasonable programme that is not implemented reasonably will not constitute compliance with the State's obligations.

In determining whether a set of measures is reasonable, it will be necessary to consider housing problems in their social, economic and historical context and to consider the capacity of institutions responsible for implementing the programme. The programme must be balanced and flexible and make appropriate provision for attention to housing crises and to short, medium, and long term needs. A programme that excludes a significant segment of society cannot be said to be reasonable. Conditions do not remain static, and, therefore, the programme will require continuous review.

…,. To be reasonable, measures cannot leave out of account the degree and extent of the denial of the right they endeavour to realize. Those whose needs are the most urgent, and whose ability to enjoy all rights therefore is most in peril, must not be ignored by the measures aimed at achieving realisation of the right. It may not be sufficient to meet the test of reasonableness to show that the measures are capable of achieving a statistical advance in the realization of the right.

Furthermore, the Constitution requires that everyone must be treated with care and concern. If the measures, though statistically successful, fail to respond to the needs of those most desperate, they may not pass the test.”

The court proceeded to examine the reasonableness of the measures adopted by the State.

It noted that the housing programme in question was not haphazard but represented a systematic response to a pressing social need by seeking to build a large number of houses for those in need of better housing. Furthermore, appropriate legislative measures had been undertaken at both the national and provincial levels, through the Housing Act, so as to produce a workable legislative framework for the delivery of houses nationally [paras. 54 and 55].

Nevertheless, the court questioned, and found lacking, the adequacy of the national housing programme in relation to those in desperate need of shelter. The sentiments of the court, at paras. 56-69, are particularly germane to the circumstances in casu:

“This Court must decide whether the nationwide housing programme is sufficiently flexible to respond to those in desperate need in our society and to cater appropriately for immediate and short-term requirements. This must be done in the context of the scope of the housing problem that must be addressed….,.” [para. 56]

“Section 26 requires that the legislative and other measures adopted by the State are reasonable. To determine whether the nationwide housing programme, as applied in the Cape Metro, is reasonable within the meaning of the section, one must consider whether the absence of a component catering for those in desperate need is reasonable in the circumstances….,.” [para. 63]

“…,. The housing development policy, as set out in the Act, is in itself laudable. It has medium and long term objectives that cannot be criticised. But, the question is whether a housing programme that leaves out of account the immediate amelioration of the circumstances of those in crisis can meet the test of reasonableness established by the section.” [para. 64]

“…,. The desperate will be consigned to their fate for the foreseeable future unless some temporary measures exist as an integral part of the nationwide housing programme. Housing authorities are understandably unable to say when housing will become available to these desperate people. The result is that people in desperate need are left without any form of assistance with no end in sight…,.” [para. 65]

“…,. The nationwide housing programme falls short of obligations imposed upon national Government to the extent that it fails to recognise that the State must provide for relief for those in desperate need. They are not to be ignored in the interests of an overall programme focused on medium and long-term objectives….,.” [para. 66]

“In conclusion, it has been established in this case that as of the date of the launch of this application, the State was not meeting the obligation imposed upon it by section 26(2) of the Constitution in the area of the Cape Metro. In particular, the programmes adopted by the State fell short of the requirements of section 26(2) in that no provision was made for relief to the categories of people in desperate need identified earlier….,.” [para. 69]

The related question that arises in the context of the broader realization of the right to housing is whether it is always unreasonable to order the eviction and relocation of persons, even if this would entail their temporary or short-term homelessness.

Approximately nine years after Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC), in the case of Residents of Joe Slovo Community, Western Cape v Thubelisha Homes 2010 (3) SA 454 (CC), this question was answered in the negative. It was held, at paras. 115 and 116:

“The applicants are being evicted and relocated in order to facilitate housing development. In the circumstances, their eviction constitutes a measure to ensure the progressive realisation of the right to housing within the meaning of section 26(2) of the Constitution….,.

Eviction is a reasonable measure to facilitate the housing development programme. In addition, all the factors discussed in relation to the question whether it is just and equitable to grant the eviction order also justify a conclusion that the eviction is, in the circumstances, reasonable.”

This decision brings to the fore the perennial tension between the rights of the community at large and those of its less privileged segments.

While it is always desirable to reconcile and accommodate the interests of all sections of the community, this may not always be realistic or practicable. Each unique situation must be considered on its own peculiarities and subjected to the governing test of reasonableness, regarded as between groups or individuals and as between the State and its citizens. Ultimately, the criterion of flexibility in balancing competing interests comes into play so as to determine whether or not it is just and equitable to order the eviction of the persons concerned in all the relevant circumstances of the case.

In the particular context of eviction, I have already observed that the eviction of people living in informal settlements may take place, even if this results in the loss of their homes. See Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC)…,. Nevertheless, it remains imperative in that situation that eviction and relocation should take place in conformity with justice and equity. This was emphasised in Joe Slovo Community, Western Cape v Thubelisha Homes 2010 (3) SA 454 (CC)…,:

“I have come to the conclusion that, provided that the order for the eviction and relocation of the applicants makes appropriate provision for the safe, dignified, and humane relocation of all the people involved, the eviction and relocation of the applicants will be in accordance with justice and equity. I would propose an order that would, as far as possible, achieve this.”

Section 175(6)(b) of our Constitution empowers every court, “when deciding a constitutional matter within its jurisdiction”, to “make any order that is just and equitable.”

In framing an appropriate order that is just and equitable, the courts are at large to take into account all the relevant circumstances of the case, including the nature of the right infringed and the nature of the infringement. Moreover, whilst being attuned and sensitive to the doctrine of separation of powers, they should be astute not to be unduly constrained or intimidated by considerations of Governmental policy.

This was emphatically spelt out in Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC)…,:

“This Court has made it clear, on more than one occasion, that, although there are no bright lines that separate the roles of the legislature, the executive, and the courts from one another, there are certain matters that are pre-eminently within the domain of one or other of the arms of Government and not the others. All arms of Government should be sensitive to and respect this separation. This does not mean, however, that courts cannot or should not make orders that have an impact on policy.” [para. 98]

“…,. Where State policy is challenged as inconsistent with the Constitution, courts have to consider whether, in formulating and implementing such policy, the State has given effect to its constitutional obligations. If it should hold in any given case that the State has failed to do so, it is obliged, by the Constitution, to say so. In so far as that constitutes an intrusion into the domain of the executive, that is an intrusion mandated by the Constitution itself….,.

Even simple declaratory orders against Government or organs of State can affect their policy and may well have budgetary implications. Government is constitutionally bound to give effect to such orders whether or not they affect its policy and has to find the resources to do so….,.” [para. 99]

“…,. Section 38 of the Constitution contemplates that where it is established that a right in the Bill of Rights has been infringed a court will grant 'appropriate relief'. It has wide powers to do so, and, in addition to the declaration that it is obliged to make in terms of section 172(1)(a), a court may also 'make any order that is just and equitable.'” [para. 101]

“We thus reject the argument that the only power that this Court has in the present case is to issue a declaratory order. Where a breach of any right has taken place, including a socio-economic right, a court is under a duty to ensure that effective relief is granted. The nature of the right infringed and the nature of the infringement will provide guidance as to the appropriate relief in a particular case. Where necessary, this may include both the issuing of a mandamus and the exercise of supervisory jurisdiction.” [para.106]

“What this brief survey makes clear is that in none of the jurisdictions surveyed is there any suggestion that the granting of injunctive relief breaches the separation of powers. The various courts adopt different attitudes to when such remedies should be granted, but, all accept that within the separation of powers they have the power to make use of such remedies – particularly when the State's obligations are not performed diligently and without delay.” [para. 112]

It is necessary to set out the approach adopted by the court a quo in its interpretation of section 81(1)(f) of the Constitution and its application to the circumstances before the court. The learned judge held as follows:

“Section 81(1)(f) creates the right to shelter but does not create an absolute, independent, and separate justiciable right to shelter for children. Section 81(1)(f) does not place a primary obligation on the State and its agents to provide shelter to children who are in the care of their parents on demand….,.

The State is obliged to take reasonable legislative and other measures within the resources available to it to ensure progressive realisation of the right and ensure that children enjoy parental care….,. The parents have a primary obligation to ensure that their children have shelter. The children are not in the care of the State nor have they been removed from their parents. These children are different from those who are in the care of State institutions who are the primary responsibility of the State and hence there is no primary obligation on the State to provide them with shelter.

All the State is required to do is to create an enabling environment by putting in place a legislative framework, and other measures, for parents to ensure that they are able to provide their children with shelter. Section 81(1)(f) does not create an absolute right to shelter for children.”

The gravamen of these findings is twofold;

(a) The first is the proposition that section 81(1)(f) of the Constitution does create a right of shelter for children but not one that is absolute, independent and justiciable, and, by implication, not one that is legally enforceable.

(b) The second is the conclusion that section 81(1)f) does not place any primary obligation on the State to provide shelter for children who are in the care of their parents. In that situation, the State is enjoined to take reasonable legislative and other measures, which are to be progressively realized, so as to enable parents to provide their children with shelter.

I take the view, with great respect, that the first proposition is contradictory and questionable, albeit not in its entirety, and that the second cannot be sustained on a proper purposive construction of section 81, taken as a whole and as read with other relevant provisions of the Constitution.

As I have endeavoured to demonstrate earlier, the paramountcy principle enunciated in section 81(2) of the Constitution is conceived to secure the best interests of the child. It is a self-standing, independent right and operates to fortify the rights entrenched in section 81(1).

However, the best interests of the child do not necessarily override or trump other rights and interests.

The concept of “best interests” is an indeterminate and flexible one that must take its shape and content from the particular circumstances of each given case. To this extent, it is correct to take the view that the paramountcy principle embodied in section 81(2) as well as the right to shelter guaranteed by section 81(1)(f) are not unfettered or absolute but are subject to reasonable qualification and limitation where this is necessary and justified.

Nevertheless, although the parameters of the rights set out in section 81(1)(f) may not necessarily be unlimited, I have no doubt in my mind that they are justiciable.

Section 81 appears in Part 3 of the Declaration of Rights. That part is designed to elaborate the rights particularised in their application to certain classes, including children, so as to configure them with greater certitude. In addition, the right to shelter conferred upon children by section 81(1)(f) is further enhanced by section 19(2)(b) of the Constitution. The latter provision enjoins the State to adopt reasonable policies and measures, within the limits of available resources, to ensure that children have shelter. As I have already concluded earlier, it is incontrovertibly clear that the right to shelter for children, as entrenched in section 81(1)(f), and as bolstered by section 19(2)(b), is eminently justiciable and legally enforceable.

The more problematic area of concern relates to the respective roles of the State and parents vis-à-vis children who are under parental or familial care.

In this situation, there can be no doubt that the primary duty to afford shelter to children reposes in their parents. The obligation of the State, in this context, is probably best described as being essentially secondary and supportive in nature, to wit, to assist parents in the provision of shelter and nutrition to their children. However, as was acknowledged even in Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC), this does not mean that the State incurs no obligation in relation to children under the care of their parents or families.

In my view, in certain circumstances, section 81(1)(f) may be invoked to impose a direct duty on the State, despite budgetary or other material constraints. This duty was unreservedly recognised in Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC) as regards the provision of urgent and essential health care for children born in public hospitals and clinics to mothers who are mostly indigent.

I fully endorse the rationale of that decision and would cautiously extend it beyond incapacity due to penury to that arising from any other insuperable disability.

The direct duty of the State towards children under parental care is also affirmed in the two international instruments that I have adverted to earlier, viz. the United Nations Convention on the Rights of the Child (1989) and the African Charter on the Rights and Welfare of the Child (1990). Zimbabwe is a party to both of these instruments, and, consequently, our courts are constitutionally bound to take them into account in interpreting the Declaration of Rights.

Both instruments recognise that the primary responsibility to secure the conditions of living necessary for the development of children lies on their parents. At the same time, however, they also declare that member States are obligated to take appropriate measures to assist parents, and provide material assistance and support programmes in cases of need, as regards nutrition, clothing, and housing.

To conclude on this aspect, the obligations of the State, in terms of section 81(1)(f), are not contingent upon the absence of parental or familial care. Those obligations are not counterposed but complementary to the primary duty of parental care envisaged in section 81(1)(d). In particular, the State must fulfil its own obligation to provide shelter to children whose parents are financially or otherwise incapacitated from fulfilling their parental obligations.

In short, the primary duty of parental care does not absolve the State of its direct obligation to secure and provide for the best interests of the child.

In arriving at its decision to dismiss the application before it, the court a quo reasoned as follows;

(i) Firstly, the appellants had no legal right to be on the land, having settled there illegally without any lease, permit or offer of the land concerned. In short, their stay on the land had not been regularised.

(ii) Secondly, the respondents had other plans for the land and the appellants could not demand alternative land as a condition to vacate Haydon Farm. The court could not compel the respondents to allocate land to the appellants as that was a function that was purely in the domain of the State.

(iii) Thirdly, the appellants could not insist on being allocated land in an urban setting. Section 81(1)(f) of the Constitution did not impose on the State an obligation to provide housing, land, or shelter to anyone on demand.

(iv) Finally, the court found that the respondents were pursuing a legitimate aim. The development of the area was necessary for urban development and expansion in a properly planned and orderly fashion. There was a pressing social need for housing and urban development. The interference with the appellants' occupation of the land was in the general public interest and was for a good cause.

In the event, the court concluded that the forced eviction of the appellants was justified.

I fully appreciate that in making the above findings the court a quo was engaged in the process of exercising its discretion in the matter.

It is also trite that an Appellate Court will not interfere with the exercise of judicial discretion by a lower court unless that court is found to have proceeded on some material mis-appreciation or mis-application of the law and/or the facts or where it has relied on some extraneous or irrelevant consideration or has failed to take into account some particularly relevant matter.

In casu, I am of the considered view that the learned judge a quo critically misdirected herself in the following respects;

(a) First and foremost, any proper analysis of a matter involving the possible eviction of persons necessitates, apart from the purely procedural requirement of a court order, a detailed and substantive consideration of all the relevant circumstances.

As was elaborated in Zuze v Trustees of Mlambo & Anor SC69-19…, this entails a balancing exercise between the rights and interests of all the parties involved in or affected by the eviction dispute. This would include not only the prospective evictees and the landowner but also the State and its agents and institutions.

(b) Secondly, and in any event, as was emphasised in Zuze v Trustees of Mlambo & Anor SC69-19…, the ambit of the protection accorded against arbitrary eviction is not confined to strictly legal occupants of the land or property concerned. Additionally, the rights of the landowner, whether public or private, may have to be temporarily circumscribed so as to obviate the possibility of homelessness. And, if that is found to be impracticable, the State or relevant local authority may have to be imposed upon in order to temporarily accommodate the evictees.

In casu, the court a quo appears to have concentrated on the rights and interests of the respondents and the fact that they were pursuing the legitimate aim of urban development to address the pressing social need for housing and urban development.

While these considerations are very laudable, there is very little on record, apart from bald and sketchy assertions, to substantiate the supposed housing development programme and the pressing social need therefor.

More significantly, the court paid minimal regard to the rights and interests of the appellants themselves. It focused, instead, quite erroneously, on the illegality of their occupation and their failure to regularise the same. It pointedly failed to take into account the facts that the appellants did not have the luxury of any alternative accommodation and that the minor appellants have been attending school in the informal settlement. It also disregarded the significant and critical reality that the appellants had been in occupation of their permanent homes on the farm since the year 2000, until those homes were demolished in 2005, and have since occupied their impermanent homes thereafter. Lastly, but equally importantly, the court did not consider possible alternative measures that could have been taken by the respondents to accommodate the appellants elsewhere, either temporarily or permanently. It simply chose to distance itself from the appellants' predicament and consigned them to the ravages of impending homelessness.

To conclude, I take the view that the court a quo erred in failing to correctly evaluate and apply the considerations calling for determination under section 74 of the Constitution apropos the potential eviction of any person from his or her home. The court further erred in its interpretation of section 81(1)(f) of the Constitution and consequently failed to appreciate the proper scope and extent of the right to shelter conferred upon children in terms of that provision.

It follows that the appeal must succeed, in the main, in respect of the second, third and fifth grounds of appeal. The first ground of appeal, as I have already concluded, is un-meritorious and is therefore dismissed.

The fourth ground of appeal invokes section 81(5) of the Constitution, a manifestly non-existent provision, and is obviously quite superfluous. It is accordingly struck out.

What remains is to formulate the appropriate relief that should be granted in favour of the appellants. In that regard, it seems useful to restate the principles that should guide this Court in framing an order that is just and equitable in the circumstances of this case.

As is expressly enjoined by the Constitution, fundamental rights and freedoms must be exercised reasonably and with due regard for the rights and freedoms of others. In this respect, it is imperative not to lose sight of the rights and interests of the respondents. Consequently, they cannot be called upon to adopt much more than reasonable policies and measures, within the limits of the resources available to them, to secure the rights and interests of the appellants.

In any event, it must be borne in mind that the appellants are relatively destitute and in desperate need of shelter. Moreover, in furtherance of the institution of the family, in conformity with section 25 of the Constitution, it would be more practicable and preferable for the minor appellants to stay with their parents instead of being institutionalised under State care.

Ultimately, as I have stated earlier, it is necessary to apply the pivotal criteria of reasonableness and flexibility in balancing competing interests so as to arrive at an appropriate order that is just and equitable having regard to all the relevant circumstances of this case.

The draft order prayed for in casu has three distinct components;

(i) The first is an interdict against eviction from the informal settlement on Haydon Farm.

(ii) The second is a dectaratur, relative to the right of children to shelter.

Both of these prayers, with appropriate modifications, are quite compatible with the rationes decidendi expounded in this judgment.

The more problematic component is the substantive relief that is sought by the appellants.

(iii) The principal prayer in this respect is that the first and fourth respondents be ordered to set up a joint committee, inclusive of the appellants, to allocate serviced residential Stands to the appellants on the informal settlement presently occupied by them, and, thereafter, within a period of 12 months, to construct minimum core houses on such Stands for and on behalf of the appellants.

In the alternative, the first respondent is to be ordered to provide alternative land on which it must allocate residential Stands in compliance with the abovementioned undertakings and specifications.

Apart from the logistical minutiae involved in the delivery of what the appellants seek, there is a glaring paucity of factual data on record as to the larger elements of the relief prayed for. This relates, inter alia, to the relevant development plans, cost implications, and scope of coverage of the works envisaged.

One assumes that there might be in existence specific development plans, possibly incorporating some form of housing programme, not only for Haydon Farm but also in respect of the Zvimba Rural District Council area as a whole.

The second element is equally critical in assessing the budgetary and financial capacities of the first, second, and fourth respondents, qua institutions of the State, to provide the requisite land, infrastructure, and building material.

Lastly, one cannot discount the probability that there are other destitute families and children in need of shelter, both on Haydon Farm and within the District area. It would be highly remiss and unreasonable to selectively focus on the appellants' needs without having regard to the housing needs of other persons in the area who are similarly situated. All of these larger elements are issues that should have been properly raised and thereafter thoroughly canvassed and ventilated in the proceedings a quo.

In my considered opinion, without this larger picture, this Court is not in any informed position to command the first, second, and fourth respondents to comply with their underlying constitutional obligations in terms of sections 19(2)(b) and 28 of the Constitution, viz. to adopt and take reasonable measures, within the limits of the resources available to them, to ensure that the appellants have access to adequate shelter.

In short, the Court is critically hamstrung in its ability to afford the particular substantive relief that is craved by the appellants.

On the other hand, as I have already stated, they remain entitled to the more specific declaratory and interdictory relief that they seek. As regards the latter, it may be necessary to add a further injunction to secure their stay on Haydon Farm against any interference with their homes and agricultural activities for the duration of their stay on the farm.

The grant of the aforestated relief affords to the appellants the requisite respite in the short term against the possibility of being rendered homeless in the immediate future. However, it does not address their housing situation thereafter. Equally importantly, it does not concretize the precise scope and nature of the respondents' obligations in casu, nor does it take into account or resolve their long term developmental concerns in respect of Haydon Farm.

These are matters which, as I have already stated, should have been thoroughly and meaningfully addressed a quo but remain unresolved at this stage.

In the event, it seems to me that the most judicious way forward is to remit this matter to the court a quo to enable it to fully adjudicate and definitively determine these outstanding issues. In this respect, it will be necessary for all the parties to present the requisite additional evidence in such form and manner as the court a quo may direct as being best suited to achieve that purpose.

Without attempting in any way to be exhaustive, I consider that the principal issues that should be canvassed and determined in the proceedings a quo would be the following:

(i) The specific housing requirements to adequately accommodate the appellants;

(ii) The material and financial resources available to the appellants themselves;

(iii) The possibility of voluntary or assisted relocation of the appellants to a different locality;

(iv) The availability of temporary accommodation elsewhere pending the provision of permanent housing;

(v) The requisite material and financial resources allocated for housing development purposes that may have been budgeted for and are available to the first, second, and fourth respondents;

(vi) The technical and financial implications for the third respondent of modifying or delaying the housing development project in question.

As for costs, I see no compelling reason to deviate from the usual path that costs should follow the cause. The appellants, having succeeded in the main, are entitled to their costs on the ordinary scale.

It is accordingly ordered that:

1. The appeal is partially allowed with costs.

2. The judgment of the court a quo is set aside.

3. It is declared that the right of children to shelter, enshrined in section 81(1)(f) of the Constitution, is justiciable and enforceable as an independent right of all children, including children under parental care, subject to reasonable qualification and limitation where necessary and justified.

4. The matter is remitted to the court a quo to determine, following the adduction of further evidence by the parties, and having regard to the principles and guidelines set out in this judgment, the respective obligations of the respondents as regards the rights and interests of the appellants, subject to such reasonable qualifications and limitations as may be necessary and justified in the circumstances of this case.

5. Pending the final determination of the court a quo, pursuant to paragraph 4 above, the respondents and all those claiming authority through them be and are hereby interdicted from ejecting the appellants from the New Park Farm informal settlement situated on Haydon Farm, Old Mazowe Road, Mt.Hampden, Harare, or from interfering in any way with the homes and agricultural activities of the applicants within that informal settlement.

This is an application made in terms of section 85(1)(a) of the Constitution of Zimbabwe Amendment (No.20) Act, 2013 (“the Constitution”) for appropriate relief based on a freedom of religion claim.

The application raises questions of the constitutionality of the policy and the actions of the education authorities of compelling school children to salute the national flag and to say the words “Almighty God, in whose hands our future lies” in the process of reciting a pledge of allegiance to the country.

(i) The first question is whether the policy and the actions of compelling the applicant's children, who hold a religious belief that saluting a flag is “worshipping a graven image”, contrary to a fundamental doctrine of their faith, infringed their right to freedom of religion.

(ii) The second question is whether the policy and the actions of the education authorities, of compelling the applicant's children to salute the national flag, infringed the applicant's parental right to determine the upbringing of his children according to his religious belief.

(iii) The third question is whether the policy and the actions of the education authorities, of compelling all schoolchildren, regardless of religious affiliation, to say the words “Almighty God, in whose hands our future lies” infringed the right to freedom of religion of children who do not belong to religions that embrace the belief in the existence of God or in the existence of a god at all.

The Court holds that, the policy and the actions of the education authorities, of compelling all school children, regardless of religious affiliation, to salute the national flag and to say the words “Almighty God, in whose hands our future lies” as part of the recitation of the schools' national pledge of allegiance (“the pledge”) infringed the right to freedom of religion of the applicant's children, enshrined in section 60(1) of the Constitution; the applicant's parental right, enshrined in section 60(3) of the Constitution; and the right to freedom of religion of children who belong to faiths that do not embrace the belief in the existence of God or in the existence of a god at all, enshrined in section 60(1) of the Constitution.

The saluting of the national flag and the saying of the religious words in the pledge are not, per se, unconstitutional. They are made to be so by the effect of the compulsion on the school children.

The Court holds, further, that no justification which met the requirements of an acceptable limitation of a derogable fundamental right or freedom, prescribed under section 86(2) of the Constitution, was advanced by the respondents in respect of any of the cases of infringement of the fundamental rights concerned. The detailed reasons for the decision of the Court now follow.

Sometime in 2016, the first respondent introduced the pledge, which all school children were compelled to memorise and recite at assemblies every school day - there is no provision for exemption.

The avowed primary purpose and objective of the pledge is the inculcation into school children of feelings of patriotism and other ethical precepts, such as honesty and dignity of hard work. The primary objective pursued by the pledge is secular in nature. Included in the essential elements of the pledge, as a means for the achievement of the secular objective, are acts, the commission of which would have a direct effect on the religious beliefs of the reciters of the pledge.

Compulsory recitation of the pledge, in the current form, by children at private and public infant, primary, and secondary schools was the chosen means by which the governmental policy behind the pledge is enforced.

Two versions of the pledge were designed. There is the pledge for primary schools and secondary schools, and another for infant schools.

The pledge for secondary and primary schools reads as follows:

“Almighty God, in whose hands our future lies: I salute the national flag United in our diversity By our common desire For freedom, justice and equality Respecting the brave fathers and mothers who lost lives in the Chimurenga/Umvukela. We are proud inheritors of the richness of our national resources. We are proud creators and participants in our vibrant traditions and cultures. I commit to honesty and dignity of hard work.”

The formulation of the pledge for infant schools is as follows:

“Almighty God, in whose hands our future lies: I salute the national flag. I commit to honesty and the dignity of hard work.”

The applicant says he is a devout Christian, who is a member of the Apostolic Faith Mission (“AFM”). All the members of his family are members of the religious sect and hold and practice the religious beliefs of the sect.

On 15 May 2016, the applicant approached the Court alleging that the versions of the pledge, as formulated, violate his children's fundamental right to freedom of religion, in that they are compelled to salute the national flag contrary to their religious belief. The applicant and his children hold a belief that it is a compelling precept of their faith that a secular object must not be saluted. He also alleged that the compulsion, on his children, to salute the national flag, violates his parental right to determine, in accordance with his religious belief, his children's moral and religious upbringing. The applicant also alleged that by compelling all school children, regardless of religious persuasion, to say the words “Almighty God, in whose hands our future lies” in the recitation of the pledge the first respondent violates the fundamental right to freedom of religion of the school children who do not share the religious belief embodied in the words.

The objection by the applicant, to his children being forced to salute the national flag as being contrary to their religious belief, is based on a literal interpretation of the “Holy Scriptures”, particularly the book of Exodus. Chapter 20 verses 3-5 of the Book of Exodus is in these words:

“3. You shall have no other gods before me.

4. You shall not make for yourself a graven image or any likeness of anything that is in heaven above, or that is in the earth beneath or that is in the water under the earth….,.

5. You shall not bow down to them or serve them, for I the LORD Your God am a jealous God…,.”

Based on the literal interpretation of the above excerpt from the Bible, the applicant and his children hold the belief that worship must be reserved for God only. They believe that the national flag, as a secular object or symbol, is a graven image and that to salute it is to worship the flag.

According to the applicant, being compelled to salute the national flag is to coerce his children to perform an act contrary to their religious belief. He argued, on account of his religious belief, that his conscience remains tormented and gives him no rest or peace when his children take part, under compulsion, in the recitation of the pledge in the current form, which includes pronouncement of the act of saluting the national flag. The applicant, without desire to show disrespect for the national flag and the country, interprets the Bible as commanding, at the risk of God's displeasure, that his children must not go through the form of a pledge of allegiance that involves saluting a secular object such as a flag.

The significance of a symbol lies in what it represents.

The applicant does not challenge what the national flag, as a symbol, represents. He challenges the constitutionality of the policy and the governmental action of compelling all school children, regardless of religious persuasion, to salute the national flag as part of the pledge of allegiance to the country. His objection to the use of compulsory recitation of the pledge to inculcate the virtues of patriotism and national identity in school children is notwithstanding the legitimacy of the secular objective pursued.

The applicant does not reject the national flag. He respects it.

His case is that the use of the national flag, as symbolism for the legitimate secular purpose, does not have to take the form of a coerced salutation of the flag, which he says he genuinely believes is a form of worshipping of the flag. The applicant's complaint is that the policy and the governmental action of compelling all school children to salute the national flag, as a symbol for inculcating feelings of good citizenship, infringe his children's right to freedom of religion enshrined in section 60(1) of the Constitution.

The applicant argued that the community interest in ensuring that school children are imbued with the virtues of the value of patriotism or good citizenship would not be prejudiced by the protection of freedom of religion of the children.

The applicant alleged that the religious words “Almighty God, in whose hands our future lies”, forming part of the pledge, embody a religious belief in the existence of God, who is a supernatural being with supreme power, capable of controlling and directing human life and entitled to reverence and obedience.

The contention, by the applicant, was that the religious belief embodied in the words the school children are compelled to say, in reciting the pledge, is characteristic of monotheistic religions.

The applicant averred that the first respondent gave a State endorsement to monotheistic faiths.

The applicant said the alleged conduct of the State infringes the right of freedom of religion of those school children who do not share the faith based on the belief in the existence of God. There are schoolchildren who believe in polytheism.

He said the pledge also violates the freedom of religion of those school children whose religious beliefs do not recognise the existence of any form of a deity or supreme being or who are non-committal on the question of the existence of a higher being. In this regard, the applicant stated the following:

“As such, the national pledge effectively casts those…, with a contrary faith as outsiders…,. This is because the State has formulated a pledge to be recited on matters, including religious matters.

The mere recitation of the national pledge will thus amount to a repudiation of their religious values, and, in essence, will amount to a public announcement that they do not belong to the political community.

Concordantly, those…, who do not share the faith, as formulated in the pledge, will be cast as unpatriotic even though they respect the culture and national heritage but only do not wish to do so in a religious context. This is needless and unnecessary exclusion, marginalisation which will effectively make them feel like second class citizens and is discriminatory on religious grounds.”

The application was opposed by the first, the second, and the third respondents (“the respondents”).

The first respondent, who was responsible for the formulation of the policy which gave rise to the Governmental action requiring the compulsory recitation of the pledge, deposed to the opposing affidavit.

He admitted that the pledge, as formulated, forces a school child, at the time of its recitation, to acknowledge the existence of “Almighty God” and to exalt Him as a supernatural being capable of controlling and directing human life and entitled to individual reverence and obedience. He averred that the applicant's objection to the pledge, on religious grounds, was misplaced because the pledge was not a prayer but simply “a pledge or commitment which begins by exalting 'Almighty God'”. He said there was nothing wrong in acknowledging God at the beginning of the pledge.

The first respondent said:

“There is no other God that is acknowledged in the school pledge, neither does the school pledge demand worshipping or bowing to any other god…,. The school pledge is part of appropriate education.”

The respondents characterised the pledge as a “creed” which testifies to the religious, cultural, and historical beliefs of the people of Zimbabwe. They contended that the pledge is necessary for nation-building. They averred that the pledge is a way of inculcating feelings of patriotism. The respondents further averred that there was no endorsement of monotheism by the State. The contention was that the words “Almighty God, in whose hands our future lies” were of a ceremonial and patriotic nature. They did not constitute an attempt to officially promote a particular religious belief.

Regarding the salutations pertaining to the national flag, the first respondent averred that the flag “is an important symbol of national unity and referring to it in the pledge is part of initiatives designed to promote knowledge of the institutions and symbols of the country.”

The relief sought by the applicant was couched in the following terms:

“WHEREUPON after reading papers filed of record and hearing Counsel, IT IS DECLARED THAT:

1. The policy requiring all children in schools to recite the national pledge, as formulated, is constitutionally invalid in that it violates the rights enshrined in sections 60(1) and 60(3) of the Constitution of Zimbabwe.

CONSEQUENTLY, IT IS ORDERED THAT:

2. There shall be no recitation of the national pledge, as formulated, in any schools or by any school children in Zimbabwe.

IN THE ALTERNATIVE:

3. The first respondent be and is hereby barred from compelling schools, and all children in schools, to recite the national pledge, as formulated, or requiring any punitive consequences on those that elect not to recite the pledge.

4. Consequently, the second and third respondents shall not compel school children, including the applicant's children, to recite the national pledge, as formulated, or require any punitive consequences on those that elect not to recite the pledge.

5. The first respondent to pay the costs of this application.”

It is important to note that the pledge, in the current form, met with criticism from parents and religious groups on the ground that it was an attack on religious freedom. The recitation of the pledge was suspended by the education authorities pending the decision of the Court on the application.

Section 60 of the Constitution contains the right to freedom of conscience. It provides as follows:

“60 Freedom of conscience

(1) Every person has the right to freedom of conscience, which includes —

(a) Freedom of thought, opinion, religion or belief; and

(b) Freedom to practise and propagate and give expression to their thought, opinion, religion or belief, whether in public or in private and whether alone or together with others.

(2) No person may be compelled to take an oath that is contrary to their religion or belief or to take an oath in a manner that is contrary to their religion or belief.

(3) Parents and guardians of minor children have the right to determine, in accordance with their beliefs, the moral and religious upbringing of their children, provided they do not prejudice the rights to which their children are entitled under this Constitution, including their rights to education, health, safety and welfare.

(4) Any religious community may establish institutions where religious instruction may be given, even if the institution receives a subsidy or other financial assistance from the State.”

The fundamental right to freedom of conscience, as asserted by the applicant, is of vital importance in an open and democratic society. It is essentially the seal of a free society based on human dignity and equality. A person's ability to formulate beliefs and express them is central to social stability, and his or her growth and self-worth.

The importance of the right to freedom of religion is not only shown by the constitutional guarantee. It is also shown by the fact that almost all international human rights instruments require States Parties who subscribe to them to guarantee the right to freedom of religion as an aspect of freedom of conscience.

The special treatment of religion and the protection of matters of belief and practice related to it under the rubric of freedom of conscience arise from the fact that they deal with the innermost convictions of the human being.

If religion were not singled out for special treatment, under section 60(1) of the Constitution, beliefs and practices protected under religious freedom would have been reduced to aspects of other rights such as freedom of expression (section 61), personal liberty (section 49) and freedom of association (section 58).

Freedom of religion inspires other provisions of the Constitution, such as section 56(3) which prohibits discrimination based on religion.

Section 60(1) of the Constitution is based on the universal principle that every person has inherent fundamental rights and freedoms by virtue of being human. The principle is derived from Article 1 of the Universal Declaration of Human Rights (1948), which states that “all human beings are born free and equal in dignity and rights.”

Freedom is one of the underlying values of the Declaration of Rights.

Courts must interpret all rights to promote the underlying values of human dignity, equality and freedom. Human dignity has little value without freedom; for without freedom personal development and fulfilment are not possible. Without freedom, human dignity is little more than an abstraction. See Ferreira v Levin N.O. and Ors [1995] ZACC 13.

The Constitution recognises and embraces the fundamental principle that every person has a conscience.

Conscience is to be understood as an experiential and spiritual phenomenon that compels a person to commit himself or herself unreservedly to an ideal. It is an inner moral command, force or sense that touches the very depths of a person's personality, steering him or her away from evil and toward good. The inner scruples of a person's conscience have the power to dictate his or her actions on matters falling within the area of the influence of conscience. The person is bound to act in accordance with the dictates of his or her conscience on matters of conscience, as such actions or beliefs are not governed by positive law.

The Constitution guarantees, and protects, the legal status of the person and his or her actions in accordance with the dictates of conscience to the extent that it recognises, under section 60(1), the right to freedom of conscience and imposes on the State, or any other person, the negative obligation not to interfere with the person in the exercise of the freedoms included in the freedom of conscience.

Freedom of conscience must be interpreted broadly to reflect the true meaning of the concepts used to denote the area of its operation. Within the broad ambit of freedom of conscience falls freedom of religion. This means that the right to freedom of religion is a guarantee to every person of positive freedom to act on matters of religion without interference from the State or any other person. It also means that the right to freedom of religion is a guarantee to every person of negative freedom not to act on matters of religion at all or not to perform acts which are contrary to or in conflict with his or her religion or religious belief.

The principle is that the acts done or things said in accordance with matters of religion should be done or said freely and voluntarily by a person without hindrance, impediment or prohibition by the State or any other person.

Religion or faith is that system of fundamental doctrines and principles which provide to a person, as comprehensive truth, without need for proof, answers to the fundamental question of the origin and purpose of the universe and human life. The right of every person, at an appropriate stage of physical and intellectual development, to indulge in the contemplation of answers to the fundamental question about the source of origin of humanity, and to settle the question on the basis of an answer that takes the form of a religious belief which satisfies his or her spiritual needs, is a fundamental right which section 60(1) of the Constitution protects and guarantees to the person.

The matters to which freedom of religion applies include choice, adoption, change of religion, entertainment of religious belief, and free exercise, practice, or giving expression to religion or religious belief through activities of one's choice such as worship, observance and teaching. The person is free to exercise his or her right to freedom of religion alone or together with others.

In R v Big M. Drug Mart Ltd [1985] 1 SCR 295, 78 DLR (4ed) 321, DICKSON CJC, writing for the Supreme Court of Canada…, said:

“The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses; the right to declare religious beliefs openly and without fear or hindrance or reprisal, and the right to manifest belief by worship and practice or by teaching and dissemination.”

The exercise of religion has a central significance for every religious belief. Freedom of religion, as a right, is not guaranteed in the abstract for its own sake. It is guaranteed in relation to acts by which its existence is manifested. It is guaranteed in respect of acts that form the essential and integral aspects of the religion or religious belief. In other words, the act, on its own, may not be a religious matter. It becomes a religious matter when its nature, purpose, and effect are assessed.

The right to freely choose, hold, change religion and entertain religious belief, and the right to freely practice, exercise and give expression to religion or religious belief, are inextricably linked. That means that acts that are directly connected with or are an essential or integral aspect of religion or religious belief are protected by the right to free exercise or practice of religion guaranteed under section 60(1) of the Constitution.

In that sense, freedom of religion is relative, in that it must relate to matters connected with religion or religious belief. Religious freedom, under section 60(1) of the Constitution, therefore, guarantees to the individual a legal sphere in which he or she may adopt the lifestyle in respect of spiritual matters that corresponds to his or her convictions. This encompasses not only the internal freedom to choose, adopt, change religion, entertain, and hold religious belief. It also encompasses the individual's right to align his or her faith with, and to act in accordance with, the dictates of his or her conscience.

Section 60(1) of the Constitution, as an expression of human dignity, protects those infrequently occurring convictions which diverge from the teachings of the churches. It is not possible to properly establish the scope and purpose of the right to freedom of conscience, as entrenched in the Constitution, without reference to the inherent dignity of the person entitled to exercise the right. The two are not mutually exclusive, as the principle of inherent dignity forms the basis upon which other fundamental rights can properly be understood.

Section 3 of the Constitution provides that Zimbabwe is founded upon respect of the nation's diverse cultural, religious and traditional values. It also states that the country is founded upon the recognition of the inherent dignity and worth of all human beings.

In S v Chokuramba CC10-19…, the Court commented on the inter-dependence between human dignity and human rights. The Court said:

“Section 46 of the Constitution is the interpretative provision. It makes it mandatory for a court to place reliance on human dignity as a foundational value when interpreting any of the provisions of the Constitution which protect fundamental human rights and freedoms. This is because human dignity is the source for human rights in general. It is human dignity that makes a person worthy of rights. Human dignity is therefore both the supreme value and a source for the whole complex of human rights enshrined in Chapter 4 of the Constitution.

This interdependence between human dignity and human rights is commented upon in the preambles to the International Covenant on Economic, Social and Cultural Rights (1966) and the International Covenant on Civil and Political Rights (1966).

The preambles state, in express terms, that human rights 'derive from the inherent dignity of the human person'. They all refer to '…, the inherent dignity…, of all members of the human family as the foundation of freedom, justice, and peace in the world'.

The rights and duties enshrined in Chapter 4 of the Constitution are meant to articulate and specify the belief in human dignity and what it requires of the law.”

In Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC) the Constitutional Court of South Africa…, said:

“There can be no doubt that the right to freedom of religion, belief, and opinion in the open and democratic society, contemplated by the Constitution, is important. The right to believe or not to believe, and to act or not to act, according to his or her beliefs or non-beliefs, is one of the key ingredients of any person's dignity.

Yet, freedom of religion goes beyond protecting the inviolability of the individual conscience.

For many believers, their relationship with God or creation is central to all their activities. It concerns their capacity to relate, in an intensely meaningful fashion, to the sense of themselves, their community, and their universe.

For millions, in all walks of life, religion provides support and nurture and a framework for individual and social stability and growth. Religious belief has the capacity to awaken concepts of self-worth and human dignity which form the cornerstone of human rights. It affects the believer's view of society and founds the distinction between right and wrong. It expresses itself in the affirmation and continuity of powerful traditions that frequently have an ancient character transcending historical epochs and national boundaries.”…,.

The protection and the guarantee of freedom of religion, under section 60(1) of the Constitution, prescribe the nature of the relationship between religion and secularism or Church and State.

The nature of the relationship between the State and religion, defined by section 60(1) of the Constitution, is gleaned from the consideration of the following underlying principles:

They derive from the fundamental principle that the individual, and not the State, is the subject and centre of the right to freedom of conscience which includes freedom of religion. The right to freedom of religion, and its exercise, as protected and guaranteed under section 60(1) of the Constitution, is an intimately or deeply personal matter. Freedom of religion attaches to an individual. The State is not an individual. As such, the State has no liberty or right to freedom of religion.

Freedom of religion, and its exercise, should not depend on the attitude of the State towards a particular religious creed in a democratic society based on the values of openness, justice, human dignity, equality and freedom.

Whilst the Constitution recognises and protects the right to freedom of religion as being inherent in every person, by virtue of being human, it considers the State as a creation of the people, who vest in it powers to be used for their own interests in accordance with the rules prescribed by the Constitution and laws consistent with the Constitution.

The State represents governmental power, which the people conferred on those in Government to act in the public interest. Under section 44, the Constitution imposes a positive obligation on the State to respect, protect, promote and fulfil every person's right to freedom of religion and to ensure the same conduct by individuals towards each other.

The constitutional protection and guarantee of every person against interference by the State or any other person with the exercise of his or her religion or religious belief according to the rules of his or her faith imposes a negative obligation.

The purpose of the creation of the State is to ensure the protection and promotion of the fundamental rights and freedoms guaranteed to the individual under the Constitution. The State cannot control the exercise of the right to choose, have, adopt, change religion or entertain a religious belief because the contents of the exercise of the right, and their effects, remain embedded in the conscience of the individual.

The State may pass laws of general application to limit the exercise of the right to manifest, express or propagate religion or religious belief in the interests of the common good. The actions of the State are regarded, by the Constitution, as an exception, because the primary constitutional duty on the State is to respect, protect, promote, and fulfil the fundamental rights and freedoms guaranteed to every person under section 60(1) of the Constitution.

Underlying the constitutional order is the unity of the fundamental values and principles of human dignity, equality, justice, and freedom which every Governmental institution, in a democratic society, is required to protect and promote.

Every person is equal to the other by virtue of being human and having the right to freedom of religion.

The State must not treat an individual, or groups of individuals, differently because of his or her or their religion. This means that, although Zimbabwe has not been constitutionally declared to be a secular State, the relationship between the State and religion, as defined under the Constitution, is based on the principle of State neutrality.

The relationship between the State and Church is based on the principle that the State cannot have a religion of its own. Neither can the State choose a religion for people; nor can it force people to adopt a particular religion or religious belief.

The establishment of an official religion or State church would be in contravention of section 60(1) of the Constitution. The State must therefore adopt a position of neutrality in its relationship with individuals in respect of matters of religion.

Neutrality embraces the principles of non-identification and non-intervention.

From the principle of non-identification, embodied in section 60(1) of the Constitution, it follows that there cannot be a State church in Zimbabwe. The principle of neutrality governing State and religion applies to public officials acting in their official capacities to guard against letting their own religious beliefs influence decision-making in the execution of public duties.

The power entrusted by the people to a constitutional State, in a democratic society, is conditional upon it being used for the purposes of protecting the freedoms of everyone enshrined in section 60(1) of the Constitution, including those who belong to minority religions or those who hold what may be considered unorthodox religious beliefs or non-religious beliefs. In other words, the State must let the individual live his or her own way insofar as spiritual matters are concerned.

There may not be any orthodoxy in matters of spiritual beliefs. Monotheists, polytheists, atheists and agnostics are all protected in equal measure under section 60(1) of the Constitution.

It is the constitutional duty of the State to provide equal protection of the law to believers and non-believers alike.

The principle of State neutrality towards religion derives from the principles of pluralism and diversity of religions and religious beliefs which in turn derive from the recognition that an individual is the subject and centre of the fundamental right to freedom of conscience.

Zimbabwe is a religiously pluralistic society.

There is bound to be pluralism and diversity of religions and religious beliefs in a democratic society based on the fundamental values of openness, justice, human dignity, and freedom.

The principles of non-interference and neutrality by the State, in matters of religion, do not create a rigid wall of separation between the State and Church. As the constitutional obligation of the State is to ensure the respect, protection, promotion, and fulfilment of the fundamental right to freedom of religion, in a substantive sense its neutrality is not an abstract. It is a substantive neutrality which takes into account the fact that the exercise of the right to freedom of religion can be abused to the detriment of the common good or welfare of the community as a whole or to the injury of the fundamental rights and freedoms of others.

Whether the State has breached the principle of neutrality in its relationship with religion depends on the nature of the relationship and its effects on the exercise of the fundamental right to freedom of religion.

The principle of neutrality, in its regulation of how the State should relate to religion, is a relative principle. It derives from the realisation that absolute or complete separation of the State from religion or Church in a democratic society is impossible. The reason is that the constitutional obligation on the State, to protect and promote the right to freedom of religion inherent in the individual, is not just in respect to itself as a potential violator of a fundamental right; it is also in respect of the State as the protector of the individual in the exercise of the fundamental right against the actions of others which cause or threaten injury to his or her right or harm or threaten harm to the public interest.

Whilst Government must not forbid religious beliefs nor discriminate against them, it must also go further to create a positive atmosphere of religious tolerance within society.

The primary idea of freedom means that all religious creeds are tolerated and are free to flourish.

WOOLMAN and BISHOP, Constitutional Law of South Africa, Vol 3…, say:

“There is no reason why State involvement with religion, or Government actions that have a religious purpose or effect, would necessarily be coercive (even indirectly or subtly) and thus be inconsistent with the penumbra of the right to religious freedom.

There is, furthermore, no simple correlation between separation of church and State and total religious freedom. While complete identification of church and State clearly undermines religious freedom, a rigorous policy of State non-identification with religion would likely be violative of freedom of religion.

The apex of religious freedom therefore lies somewhere between positive identification and negative identification.”

The learned authors proceed to conclude…, as follows:

“An accommodationist approach would also appear to be preferable to a separationist stance because it would permit a Government, in certain circumstances, to enact laws that have the primary or incidental purpose of benefiting a particular religion (but do not constitute endorsement). Such measures may well be required for the full protection of religious liberty.

Worship or expressions of faith can have a public, as well as a private, dimension. Refusing to permit religious observances or other expressions or manifestations of faith in public fora can therefore constitute an infringement of the religious faith of certain adherents.

Stated differently, a policy banning all worship or religious instruction from State institutions is not neutral vis-à-vis different religions (or even all adherents of one religion), or between religious adherents, atheists and agnostics.”

The principle that matters of religion are deeply personal matters regulated by rules of faith means that the meaning of a religious belief, on the basis of which a person claims constitutional protection for his or her conduct, should be understood from the point of view of the individual not of the State.

The effect of the recognition of the existence in every person, as a human being, of freedom of conscience as the root of moral judgment, and its expression in the right to freedom of religion guaranteed under section 60(1) of the Constitution, is that no positive law regulates matters of religion.

Matters of a free conscience are not compellable by positive law.

Religion becomes a source of regulation of conduct. Human laws do not grant a court power to judge the efficacy of religious doctrine. It is not for a court of law to decide whether the matters which constitute the content of the individual's belief are, as a matter of fact, commanded by the fundamental doctrines or tenets of his or her faith. It is not for a court of law to ascertain the correctness or otherwise of the belief held by the person by measuring it against its understanding of the fundamental doctrines concerned. Every member of a church or religious faith must, as a believer, concern himself or herself with the fundamental doctrines or tenets of the faith. A court of law must defer to him or her in regard to the understanding of the fundamental doctrines or tenets by which his or her faith is governed.

Religion is, after all, a matter of self-definition. It is the self-definition of the believer that the court of law must rely upon, as there would be no positive law setting out an objective standard by which it can measure the conformity of the conduct of a believer on matters of religion.

The test to be applied is whether the individual genuinely, or, conscientiously, believes that the matters he or she believes in are in accordance with the fundamental doctrines or tenets of his or her faith. Where the issue is the objection by an individual to performance of acts required by governmental action, the test to be applied, consistent with the constitutional protection of the right to freedom of religion, is one that asks whether the claimant genuinely or sincerely believes that what he or she is being compelled to do is contrary to the fundamental doctrines or tenets of his or her faith as he or she understands them.

Freedom of religion, guaranteed under section 60(1) of the Constitution, includes the right to freely elect not to do any act that is prohibited by or is contrary to one's religion or religious belief.

As long as a court of law finds, as a matter of fact, that the person claiming constitutional protection genuinely holds the belief that the matters to which his or her belief relates are commanded by the fundamental doctrines, tenets or rules of his or her faith, the belief would fall within the ambit of section 60(1) of the Constitution as a religious belief.

It is not for a court of law to second-guess the believer by deciding the question whether he or she has correctly interpreted and understood the fundamental doctrine or tenet or rule of his or her faith. To do so would be to seek to provide an authoritative interpretation of the fundamental doctrines or tenets of a religion and to apply it to the belief held by the individual. That would be tantamount to the substitution of the court's conscience for that of the individual.

A belief is internal to an individual, being a product of the dictates of his or her free conscience.

Pure matters of faith, such as religious belief, give effect to moral values. A court of law should resist the temptation to impose a secular objective perspective on the matter.

The purpose of assessing the genuineness of a religious belief held by an individual is to prevent mis-use of freedom of religion.

In Bijoe Emmanuel and Ors v State of Kerala and Ors 1986 SCR (3) 518 the Supreme Court of India…, said:

“In Ratilal's case (Ratilal Panachand Gandhi v The State of Bombay & Ors 1954 SCR 1035) we also notice that MUKHERJEA J quoted as appropriate DAVAR J's following observations in Jarnshedji v Soonabai 23 Bombay ILR 122:

'If this is the belief of the community, and it is proved undoubtedly to be the belief of the Zoroastrian community, a secular Judge is bound to accept that belief; it is not for him to sit in judgement on that belief, he has no right to interfere with the conscience of a donor who makes a gift in favour of what he believes to be the advancement of his religion and the welfare of his community or mankind.'

We do endorse the view suggested by DAVAR J's observation that the question is not whether a particular religious belief or practice appeals to our reason or sentiment but whether the belief is genuinely and conscientiously held as part of the profession or practice of religion.

Our personal views and reactions are irrelevant.”…,.

In, The Church of the Province of Central Africa v The Diocesan Trustees for the Diocese of Harare 2012 (2) ZLR 392 (S), the Court held as follows…,:

“The Court does not discuss the truth or reasonableness of any of the doctrines of the religious group. It does not decide whether any of the doctrines are or are not based on a just interpretation of the language of the Holy Scriptures.

Whilst the Court does not take notice of religious opinions with the view to deciding whether they are right or wrong, it might notice them as facts pointing to whether a person has withdrawn his or her membership from the Church and who should possess and control Church property.”…,.

In United States v Ballard 322 US 78 (1944), the United States Supreme Court held in this regard…,:

“The Fathers of the Constitution were not unaware of the varied and extreme views of religious sects, of the violence of disagreement among them, and of the lack of any one religious creed on which all men would agree.

They fashioned a charter of government which envisaged the widest possible toleration of conflicting views. Man's relation to his God was made no concern of the State. He was granted the right to worship as he pleased, and to answer to no man for the verity of his religious views.

The religious views espoused by respondents might seem incredible, if not preposterous, to most people. But if those doctrines are subject to trial before a jury charged with finding their truth or falsity, then the same can be done with the religious beliefs of any sect.

When the triers of fact undertake that task, they enter a forbidden domain.”…,.

In Re G (Education: Religious Upbringing) [2013] 1 FLR…, SIR JAMES MUNBY said:

“It is not for a judge to weigh one religion against another. The court recognises no religious distinctions, and, generally speaking, passes no judgment on religious beliefs or on the tenets, doctrines or rules of any particular section of society. All are entitled to equal respect, so long as they are 'legally and socially acceptable' and not 'immoral or socially obnoxious' or 'pernicious'.”

Section 60(1) of the Constitution addresses impediments to the exercise of the right to freedom of religious belief. The fact that the acts performed in the exercise of freedom of religion or religious belief must be related to or connected with the religion or religious belief adopted or held by the actor means that compelling a person to perform acts not related to or contrary to or forbidden by the religion or religious belief he or she holds violates the person's freedom to manifest or practice his or her religion or religious belief.

In other words, forcing a person to perform acts that are related to a religion or religious belief which is not the one he or she holds coerces and torments the person's conscience.

Freedom to practise one's religion or religious belief encompasses the right to perform acts which are in conformity with the individual's faith.

The application of the principle against coercion or compulsion on a person on matters of religion gives substantive value to the principle of voluntarism embodied in the concept of freedom of conscience. Freedom of conscience demands that every person must be permitted to be his or her own master in respect of matters of choice, adoption, change of religion, entertainment of and adherence to religious belief and the exercise, practice, manifestation and propagation of religion or religious belief.

It is universally understood that rights protect a right-holder's self-determination and personal integrity.

In our legal system, one generally has no right to control the life of another. This is a principle derived from the nature and meaning of the concept of right.

The religious liberty protected by the free practice provision of section 60(1)(b) of the Constitution is the right of every person to freely choose his or her own course with respect to religious practice. It is a liberty to worship according to the dictates of one's own conscience. Section 60(1)(b) of the Constitution does not entitle anyone, nor can it be construed to entitle anyone, to force others to espouse certain religious beliefs or engage in particular practices or otherwise to control the life of another person in accordance with the dictates of that other person's own religion.

People simply do not claim a right under the freedom of religion provision to force another person to profess their beliefs.

The provisions protect the right-holder's control over his or her own person.

At the heart of liberty is the right to define one's own concept of existence, of the meaning of the universe, and of the mystery of human life; see Planned Parenthood v Casey 112 SCT 279 (1992).

In S v Lawrence; S v Negal; S v Solberg 1997 (4) SA 1176 (CC) CHASKALSON P remarked as follows…,:

“…, freedom implies an absence of coercion or constraint and that freedom of religion may be impaired by measures that force people to act or refrain from acting in a manner contrary to their religious beliefs. This is what the Lord's Day Act did; it compelled believers and non-believers to observe the Christian Sabbath.”

Section 60(3) of the Constitution acknowledges the importance of parents and guardians in the survival and development of children.

Section 46(1)(c) of the Constitution provides that in interpreting a provision of Chapter 4 which relates to the Declaration of Rights a court “must take into account international law and all treaties and conventions to which Zimbabwe is a party.”

The Court has taken into account the relevant provisions of the Convention on the Rights of the Child (1990) (“the CRC”) in interpreting the provisions of section 60(3) of the Constitution.

Zimbabwe is a party to the Convention on the Rights of the Child (1990) (the CRC).

The rights of parents and guardians, to determine, in accordance with their beliefs, the moral and religious upbringing of the children in their custody derives from the principle that the care and the upbringing of children are duties primarily incumbent on parents and guardians.

Article 18(1) of the Convention on the Rights of the Child (1990) expressly provides that parents or guardians have the primary responsibility for the upbringing and development of the child.

Article 5 of the Convention on the Rights of the Child (1990) requires the State to respect the rights, responsibilities, and duties of parents and guardians.

The Special Rapporteur on Freedom of Religion observed, in a report to the United Nations General Assembly, that:

“The rights of parents to freedom of religion or belief include their rights to educate their children according to their own conviction and to introduce their children to religious rites.”

See: Special Rapporteur on Freedom of Religion's Report to UN General Assembly A/70/286 http:ap.ohchr.org/documents/d page-e.aspx?m-86).

The spiritual needs of a child are bound to be nourished by the religious belief of the parent or guardian, depending on the age and maturity of the child.

Section 60(3) of the Constitution is clear, in that it requires that the parental right be exercised subject to the duty on the parent or guardian to protect, promote and fulfil the fundamental rights and freedoms of the child. That includes the child's right to freedom of religion or religious belief.

Article 14 of the Convention on the Rights of the Child (1990) emphasizes the importance of the role of the rights of the child in the parent-child relationship.

According to the provisions of section 60(3) of the Constitution, a person must have the legal status of being a parent or guardian to be possessed of the right conferred on him or her. Not every person can be a parent or guardian. The rights and responsibilities prescribed by section 60(3) of the Constitution are therefore functions of parenthood or guardianship until the child is capable of exercising those rights on his or her own behalf.

Not only does section 60(3) of the Constitution identify and protect the primary responsibility of parents and guardians in the upbringing and development of a child, it also underlines the principle that a child is an individual with a right to be heard on matters affecting him or her commensurate with his or her age and maturity.

Constitutional liberties pertain to individuals.

Parents and children do not possess unitary interests. Whatever considerations may justify protecting the right of adults to control their own lives, they do not validate an unqualified right of adults to deprive the children in their custody of the right to decide, as free and rational persons, what kinds of lives they will choose to lead. The parent-child relationship is a relationship of two individuals, each with a separate intellectual and emotional makeup.

Children are distinct persons with rights of their own under the Constitution.

A child is a subject of his or her own rights. The parent or guardian is entitled to decide that the child in his or her custody shall be brought up in accordance with the values of his or her own religion. Section 60(3) of the Constitution uses the word “determine”, which implies the making of a decision on matters affecting the child after careful consideration of the interests of the child.

Section 60(3) of the Constitution should not be interpreted to mean that the parental right authorizes one person to dominate or control the life of another to satisfy his or her own religious interests. To do so would be contrary to the fundamental principle and value of equality. A child is a human being with inherent dignity, deserving of respect from others - including those acting as his or her custodians. Section 60(3) of the Constitution cannot be construed to mean that the parental right endows a parent or guardian with the power to indoctrinate the child with his or her religious belief notwithstanding the harm such conduct would have or has on the well-being of the child.

No-one, including a parent or guardian, would have a right to subject a child to coercion or compulsion which would impair his or her freedom to have or adopt a religion or religious belief of his or her own choice.

Parental rights and responsibilities are not unbounded.

There are provisions in the Constitution and the Convention on the Rights of the Child (1990) which set out principles which guide a parent or guardian on the factors he or she has to take into account when making decisions on matters affecting the spiritual development of the child. The guiding principles set certain boundaries on the upbringing and development of children in terms of section 60(3) of the Constitution.

(i) The first guiding principle is that the parent or guardian must proceed on the basis that a child is a separate person with inherent dignity as a human being, entitled to respect and protection from harm to his or her religious interests.

The parent or guardian must accept that under section 60(3) of the Constitution a child has his or her own right to freedom of religion, entitling him or her to decide, if he or she has the ability to form a view and express it on matters affecting him or her, on what to do in the exercise of religion.

Honouring the agency and inherent dignity of children, by according them meaningful participation in decision-making on matters affecting them, is an important way of showing children that they are valued.

In a document titled “Faith and Children's Rights” produced by Arigatou International New York in 2019 (arigatouinternational.org)…, the authors make the observation that children are “subjects of rights” with individual identities that must be respected.

The right of a parent or guardian, to guide the spiritual development of the child, and the right of the child to practice his or her own religious belief, are both indispensable.

(ii) The second guiding principle, as set out in Article 3(1) of the Convention on the Rights of the Child (1990), provides that in all actions concerning children the best interests of the child shall be a primary consideration.

Article 18(1) of the Convention on the Rights of the Child (1990) requires parents and guardians to have the best interests of the child as their basic concern when discharging the primary responsibility of the upbringing and development of the child.

So, in determining matters relating to the upbringing of the child, in accordance with his or her religious belief, a parent or guardian must ensure that the best interests of the child, and not his or her own interests, are promoted as a result.

It is clear that the overriding principle that the best interests of the child shall be a primary consideration in all actions concerning the child has become universally acceptable. It is expressly provided for under section 81(2) of the Constitution, which provides that “a child's best interests are paramount in every matter concerning the child.”

A parent or guardian is bound, by the Constitution, when performing the primary responsibility of bringing up a child. There is, however, no fixed standard of what will be in the best interests of the individual child. The law does not start from a prior assumption about what is best for any individual child. It looks at the child and weighs a number of factors in the balance, depending on the circumstances of the case; see In Re J (Child Returned Abroad: Convention Rights) [2006] 1 AC 80…,.

Religious norms are brought into focus by section 60(3) of the Constitution, which recognises that they should be taken into account by a parent or guardian and be the determinant factor in his or her decision on matters affecting the upbringing of the child according to his or her religious belief. If a religious norm is, by its nature, harmful to the best interests of a child or what it commands the parent or guardian to do in the practice of his or her religious belief is harmful or poses a substantial threat of harm to the best interests of the child, the Constitution mandates intervention by the State, through the courts, for the protection of the best interests of the child.

The interests underlying the rule of law that a parent or guardian has a right to determine the upbringing of the child in his or her custody in accordance with his or her religious belief are those of the child. The rule merits constitutional protection because its purpose, and primary object, is the protection and promotion of the best interests of the child. Like any other human being, every child is unique. The principle is that the activity to which the parent or guardian subjects the child in accordance with his or her religious belief should, on the whole, be conducive to the well-being of the child. Such a matter is of paramount consideration and is not rendered irrelevant by the religious motivation of the parent or guardian.

The approach is based on the personhood and distinct interests of children.

The special protection of the principle of the best interests of the child is guaranteed to all children who are subject to the exercise of the parental right until they have their own opportunity to make life's religious decisions for themselves upon the attainment of the age of reason.

The Convention on the Rights of the Child (1990) establishes a direct relationship between the child and the State. It renders the child visible as a subject of rights, entitled to protection on his or her own behalf. It empowers the State to intervene, when necessary, to protect the rights of the child in recognition that the best interests of children are not always protected by parents or guardians.

(iii) The third guiding principle is that the parent or guardian is under a duty to direct the spiritual development of the child in his or her custody in terms of section 60(3) of the Constitution in a manner that is consistent with the evolving capacities of the child.

Article 14(2) of the Convention on the Rights of the Child (1990) recognises the right and duty of a parent or guardian to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. Article 5 of the Convention on the Rights of the Child (1990) imposes an obligation on the State to respect the responsibilities, rights, and duties of parents or legal guardians “to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child” of the rights recognised in the Convention on the Rights of the Child (1990).

The use of the words “appropriate direction and guidance” is clearly intended to set an objective standard by which the decision of the parent or guardian can be measured.

As subjects of rights, children's voices must be heard and given due weight in matters that concern them, in keeping with their evolving capacities. The Special Rapporteur on Freedom of Religion has observed that parents or legal guardians have the right and duty to direct the child in the exercise of his or her freedom of religion or belief. He said “such direction should be given in a manner consistent with the evolving capacities of the child in order to facilitate a more and more active role of the child in exercising his or her freedom of religion or belief thus paying respect to the child as a rights-holder from early on.”

The principle of evolving capacities of the child, by which a parent or guardian is required, by Article 14(2) of the Convention on the Rights of the Child (1990), to be guided when providing appropriate direction and guidance to the child in the exercise of his or her right to freedom of religion was discussed in a document titled “Evolving Capacities” prepared for UNICEF and SAVE THE CHILDREN. The author of the document said:

“The concept of evolving capacities is central to the balance embodied in the Convention between recognising children as active agents in their own lives, entitled to be listened to, respected, and granted increasing autonomy in the exercise of rights, while also being entitled to protection in accordance with their relative immaturity and youth. This concept provides the basis for an appropriate respect for children's agency or their capacity to act and make decisions without exposing them prematurely to the full responsibilities normally associated with adulthood. As children grow up, they have evolving capacities and a growing understanding and maturity.”

The author of the document also states that the concept of evolving capacities recognises that children in different environments and cultures, who are faced with diverse life experiences, will acquire competencies at different ages. Their acquisition of competence will vary according to circumstances. Children, therefore, require varying degrees of protection, participation, and opportunity for autonomous decision-making, in different contexts and across different areas of decision-making.

The words “in a manner consistent with the evolving capacities of the child”, used in Article 14(2) of the Convention on the Rights of the Child (1990), suggest that the degree to which a parent or guardian can influence a child's religious formation is universally proportional to the age of the child. In other words, parents or guardians may be able to bring up the children in their custody in accordance with their own religious faith and practice, but they should gradually grant the children more freedom on religious matters as they mature into adulthood.

Recognition of the agency of children avoids the conflation of the religious freedom of parents and guardians with that of the children.

In summary, the principle underlying section 60(3) of the Constitution is that the responsibility of involving a child in matters of religion and bringing him or her up to be a good citizen lies with the parent or guardian. The State will not interfere with the performance of parental duties in the absence of clear and affirmative evidence of harm or “substantial threat of harm” to the best interests of the child.

The parental right provided for under section 60(3) of the Constitution, and the attendant duties, come to an end when, in terms of section 80(1) of the Constitution, the child attains the age of eighteen years.

When the boy or girl attains the age of eighteen years, he or she becomes an adult and is deemed, at law, to have acquired full capacity for self-autonomy and self-determination as a holder of fundamental rights and freedoms.

That recitation of the pledge is made compulsory in schools has not been disputed by the respondents. The applicant, in his founding affidavit, made a positive allegation to the effect that he had been informed that his children were required to memorise and recite the pledge at the beginning of the next school term on 3 May 2016.

The respondents did not deny the allegation in their opposing affidavit.

The applicant and his children hold the belief that saluting a flag is an act of worshipping a secular object prohibited by what the applicant considers, on the literal interpretation of the Bible, in Exodus 20:3-5, to be a fundamental doctrine of his faith. He does not object to the use of the national flag in the pledge and its symbolism. He accepts and respects the national flag and what it symbolises as a secular object. What the applicant objects to, on religious grounds, is the Governmental action of compelling his children to perform the act of saluting the flag as part of the recitation of the pledge.

The Court does not have to involve itself with the question whether the compulsory recitation of the pledge, in the current form, amounts to worshipping the national flag as alleged by the applicant. The question is whether the applicant sincerely believes that the recitation of the pledge, in the current form, including in particular the reference to the act of saluting the national flag, is worshipping a secular object which offends against his and his children's deeply held religious belief that worship is reserved only for God.

The applicant genuinely believes that saluting a flag is prohibited by the relevant Scripture, which declares that worship must be solely reserved for God. The matters of worship, and who should be worshipped, are matters of religious conscience. They are matters covered by the relevant rules of the applicant's faith. The matter of saluting a national flag, being believed to be an act of worshipping a secular object and therefore forbidden by the fundamental doctrine of the applicant's religion, is a matter of belief internal to the applicant.

Whether the applicant has correctly interpreted the fundamental doctrine or tenet of his faith is not for the Court to decide. The Court only has to decide whether the applicant genuinely holds the belief, on the literal interpretation of Exodus 20:3-5, that saluting a flag is an act of worship forbidden by the rule of his faith to the effect that worship should be solely reserved for God.

The fact that the belief held by the applicant has a basis in the literal interpretation of the wording of the Scripture is evidence in itself of the genuineness of the belief held by the applicant.

The State may not evaluate its citizens' religious convictions or characterize their religious beliefs as right or wrong. The applicant and his children have a right to act according to his understanding of his faith. He and his children have a right not to be forced to commit an act contrary to this understanding.

The respondents did not proffer evidence to contradict the fact that the applicant truly and conscientiously believes what he says.

He does not hold his belief idly and his conduct is not the outcome of any perversity.

The claim by the applicant is not qualified by the fact that he accepts that he belongs to the Christian faith, which is a monotheistic religion. The applicant's claim for religious freedom is based on a practice deeply rooted in the religious belief shared by members of his church. In other words, the religious objection to his children being compelled, by the State, to recite the pledge with the pronouncement of the act of saluting the national flag would have been raised even if the words “Almighty God, in whose hands our future lies” had not formed part of the wording of the pledge.

The argument, by the first respondent, that the applicant believes in the “Almighty God” referred to in the pledge and that no other God is referred to misses the point.

The respondents did not put in issue the allegation by the applicant that his religious belief is that worship, as an act of expressing religion, must be reserved only for God. The first respondent's contention was that the recitation of the pledge is not worship in the religious sense of the word. Whether the ceremony for the compulsory recitation of the pledge is a form of worship is not for the Court to decide. There is no doubt that the recitation of the pledge, in the current form, has a religious character. If this were not the case, there would be no need to include, in the language of the pledge, the words “Almighty God, in whose hands our future lies.”

The belief was held, by the applicant and his children, before the pledge was imposed. It was not raised in an attempt to avoid participating in the recitation of the pledge.

There are decided cases, from other jurisdictions, involving members of the Jehovah's Witnesses sect objecting to taking part in the compulsory salutation of national flags on the ground that saluting the flag is against their religious belief that worship must be reserved only for God: see West Virginia State Board of Education v Barnette 319 US 624; Donald v The Board of Education for the City of Hamilton 1945 Ontario Reports 518.

The approach adopted by those courts has not been to impose, on the claimant, an objective definition of religion for the purposes of constitutional protection of the right to freedom of religion. The approach has been to decide whether the claim by the applicant was based on a sincerely held religious belief. Once the court decided that the belief was religious and that the applicant genuinely believed the ideas espoused, a finding that his or her right to freedom of religion has been infringed followed.

An approach to the concept of religion must therefore adequately dovetail with an appropriate test of sincerity.

It is rarely necessary to determine the religiousness of beliefs, since the State may not compel persons to believe anything. A belief is what an individual believes, not what the State compels him or her to believe as it cannot do that under the Constitution. Whether a belief is religious would depend on whether the individual genuinely believes it is religious. In other words, whether what is believed relates to religion is assessed in the light of the nature of the belief and its sincerity.

The sincerity of the applicant's religious belief is beyond question.

There is a shared interest in regarding the conscience as sacred and inviolable and as the core governing unit of society located within the individual. In a state of freedom of conscience, the individual is expected to act in accordance with the dictates of his or her conscience. There is no positive law governing conduct in respect of the matters relating to religion. The Constitution requires that the manner in which the individual handles matters relating to religion be left to the dictates of his or her conscience, the freedom of which it guarantees under section 60(1).

The presumption is that what a free conscience dictates is good for the individual and the community at large.

Whether an individual is able to exercise the freedom to act in accordance with the manner dictated by his or her conscience will depend on the circumstances in which he or she finds himself or herself at the time he or she is confronted with the matter relating to religion. If, for example, he or she is exposed to a matter relating to religion at a time when he or she is under subordination of authority or he or she is at a place where his or her presence is required by law he or she would have his or her freedom to act according to his or her conscience compromised.

A school child, whose conscience dictates that he or she should not salute the national flag during the recitation of the pledge because doing so is contrary to his or her religious belief, would find it difficult to act in accordance with the dictates of his or her conscience because of the position of subordination to authority in which he or she is placed. He or she would also find it difficult to act in accordance with the dictates of his or her conscience because of the compulsion imposed on him or her by the policy and the Governmental action to recite the pledge and to salute the flag. The school child is then forced to act contrary to his or her conscience.

No constraint of conscience can be appropriate.

Any dominance of a faith would be unjust, for faith ought to be free of all subjection to humans. Faith knows subjection only to its own rules or fundamental doctrines.

In MEC for Education, Kwazulu-Natal v Pillay 2008 (1) SA 474, the Constitutional Court of South Africa emphasized the fact that entitlement to respect for one's voluntary religious practices is a necessary element of freedom and inherent dignity of any individual. The court said:

“A necessary element of freedom and of dignity of any individual is an entitlement to respect for the unique set of ends that the individual pursues. One of those ends is the voluntary religious…, practices in which we participate. That we choose, voluntarily rather than through a feeling of obligation, only enhances the significance of a practice to our autonomy, our identity, and dignity…,.”

The compulsion imposed on the applicant's children, by the education authorities, to salute the national flag during the recitation of the pledge infringed the children's right to freedom of religion protected and guaranteed by section 60(1) of the Constitution.

The circular or directive, to the effect that it was compulsory for every school child to recite the pledge and to salute the national flag, had no legal sanction behind it in the sense that it was not issued under the authority of any statute.

The Education Act [Chapter 25:04] does not empower education authorities to compel a child to do anything which is against his or her religion or religious belief.

Without a provision under the Education Act, in terms of which the legality of their conduct could be tested, the education authorities adopted a position that accepted that their conduct was a direct infringement of the right to freedom of religion.

They sought to justify the conduct by saying that it is authorised by the preamble to the Constitution.

The benefits alleged to accrue to society, from the compulsory flag salute, do not justify the correlative violation of an individual's freedom. Loyalty and unity cannot be demanded in violation of fundamental rights; they can only be attained by the exercise of an individual's volition.

In West Virginia State Board of Education v Barnette 319 US 624, MURPHY J…, said:

“Official compulsion to affirm what is contrary to one's religious beliefs is the antithesis of freedom of worship…,. I am unable to agree that the benefits that may accrue to society from the compulsory flag salute are sufficiently definite and tangible to justify the invasion of freedom and privacy that is entailed or to compensate for a restraint on the freedom of the individual to be vocal or silent according to his conscience or personal inclination…,.

Any spark of love for country which may be generated in a child, or his associates, by forcing him to make what is to him an empty gesture; recite words wrung from him contrary to his religious beliefs, is overshadowed by the desirability of preserving freedom of conscience to the full."

In Zylberberg v Sudbury Board of Education (Director) (1988) 65 OR (2d) 641, quoted with approval by the Supreme Court of Canada in S.L. v Commission Scolaire des Chênes 2012 SCC 7 [2012] 1 SCR 235, the court struck down a regulation under the Education Act, RSO 1980 c129, which made the recitation of Christian prayers compulsory in public schools unless an exemption was granted. The court…, said:

“On its face, [the regulation] infringes the freedom of conscience and religion guaranteed by s.2(a) of the Charter….,.

The recitation of the Lord's Prayer, which is a Christian prayer, and the reading of Scriptures from the Christian Bible, impose Christian observances upon non-Christian pupils and religious observances on non-believers.”

Insofar as the nature of the compulsory recitation of the pledge, in the current form, encroaches on the religious freedom, it is primarily the constitutional position of the child, who must participate in the recitation of the pledge, which is directly affected.

Fundamental human rights are, however, inter-related and inter-dependent. Not only are certain rights dependent on the realization of other rights, the rights of individuals are deeply inter-connected with the rights of others.

If parents' or guardians' rights are violated, the children in their custody are at greater risk of harm. The fulfilment of children's rights depends, in part, on securing the rights of parents or guardians.

The applicant's parental right, enshrined in section 60(3) of the Constitution, is affected when he is compelled to expose his school-age children to a recitation of the portion of a pledge of allegiance which offends his religious belief. The protection of the religious belief of his children, demanded by the applicant, is an inseparable part of the parent-child relationship.

The Constitution specifically protects the right of the applicant to demand the protection of his children's freedom of religion by guaranteeing the parental right to determine the bringing up of his children in accordance with his faith. Considering the special weight to which the religious element of the bringing up of a child is entitled, under the Constitution, a school activity exposing the child to a possible affirmation of the truth of a different religious belief would severely tax the entire parent-child relationship.

Participation by the applicant's children in the recitation of the pledge, in the current form, could be interpreted to be an affirmation by his children of the religious belief held by other Christians that saluting the national flag is not prohibited by the Scripture relied upon by the applicant.

There is, therefore, an inseparable connection between the task of the applicant, as the up-bringer of his children, and his religious belief.

The burden on the parent-child relationship brought about by the compulsory recitation of the pledge and the salutation of the national flag by the applicant's children brings him into conflict with his own religious convictions. The conflict infringes the protected sphere of the applicant's fundamental right to freedom of religion enshrined in section 60(1) of the Constitution. The fundamental right to freedom of religion includes the right of the applicant, as a parent, to pass on to his children the kind of religious convictions he considers right. Compelling the applicant to allow his children to be exposed to religious influences which contradict his own convictions would adversely affect his parental right under section 60(3) of the Constitution.

As a parent charged with the primary responsibility of bringing up his children in accordance with his religious belief, the applicant is entitled to protect himself against Governmental action which adversely affects his right.

The parental right under section 60(3) of the Constitution does not set forth an affirmative right of control on the basis of which a parent can demand that the education authorities should not formulate a pledge of allegiance with reference to the salutation of the national flag and the saying of the words “Almighty God, in whose hands our future lies”.

The applicant does not claim such a right.

Certain ideas, such as belief in the existence of God, His nature, and His relationship with humans, are inherently religious. Anyone saying the words “Almighty God, in whose hands our future lies” makes a claim to what he or she considers to be comprehensive truth