When one considers the constitutional history of South Africa, two aspects of its legal arrangements of yesteryear always come to mind: the systematic institutionalization by the state of racist structures; and, in the context of religious matters, a distinct bias for (a certain brand of) Christianity. These two seemingly contradictory attributes of the South African social, economic, political, and legal make-up have at least this in common: they denote the fabric of a totalitarian regime both in the sense of the state's interference in the private lives of individuals and of the state's regulation of the internal affairs of nonstate social institutions.
For reasons that will be stipulated later, the meaning and implications of the current constitutional dispensation cannot be fully appreciated without an insight in, and due consideration of, the country's past history. But there is yet a further contingency brought about by the constitutional transformation of South Africa in 1994 which has an impact on the interpretation of legally regulated South African institutions. It can perhaps best be depicted as the Africanization of those institutions. Ever since the first white settlement in Southern Africa in 1652, governmental control and economic power were, by and large, the preserves of the country's minority white elite, and were consequently deliberately designed and executed according to a distinctly Western, and more precisely, European, model. Typically, this system indeed accommodated African social and legal structures, but only for Africans who, through personal choice or the pressures of involuntary circumstances, upheld a "traditional" life-style and were decidedly segregated from the patterns of mainstream living. The "new" South Africa seeks to be of Africa; its institutions must therefore be seen to reflect "typical African values."1
I. THE HISTORICAL PERSPECTIVE
The political and legal system of pre-1994 South Africa was particularly noted for the totalitarian interference of the state in the private sphere of people's day-to-day lives.2 In apartheid South Africa, the state prescribed, with race as the prime criterion, whom one could marry, where one could reside and own property, which schools and universities one would be allowed to attend, and which jobs were reserved for persons of a particular race. The state dictated to sports clubs whom they could admit as members, and against whom they were permitted to compete. The sick had to be conveyed in racially exclusive ambulances, could only receive blood transfusions from donors of their own race, and only qualified for treatment in racially defined hospitals. The state even regulated, with race as the primary criterion, who would be allowed to attend church services in certain regions, and where one could be buried.3 These racist appendices of a totalitarian regime did not reflect the "spirit" of, at least, the victims of their practical impact, which-as everyone knows-constituted a vast majority of the South African nation. Nor were they supported by the religious convictions of the people, or of a majority of the people, or for that matter of any distinct section of the people.
Deliberate attempts to resort to the power of the sword as an instrument for the enforcement of the scruples of a dominant religion was also a distinct feature of the institutionalized structures of South Africa. The law regulating publications control thus provided: "In the application of this Act the constant endeavour of the population of the Republic of South Africa to uphold a Christian view of life shall be recognised."4 The law that regulated the educational system for whites mandated the ideology of Christian-national education,5 while another statute required that education in black (African) schools maintain a Christian characters (without the "national" component that applied in the case of segregated white schools). The commonlaw offence of blasphemy applied to the slandering of the God confessed by Christianity only. …