Cape Town - Chief Justice Mogoeng Mogoeng has proposed that divorce, adultery and fornication be “frowned upon” by the law.
He made the comments at the Second Annual African Law and Religion Conference at the University of Stellenbosch on Tuesday night.
He began by reiterating his utmost support for religious freedom, and decrying religious intolerance, but added: “I believe that there are sound principles that cut across the religious divide, which blend well with the existing legal architecture and philosophy that could further improve our legal systems.
“To buttress my belief that there really cannot be laws in place, designed to advance the best interests of a nation, that run against the essence religion, I refer to Romans 13:8-10 which says:
“8. Owe no man anything, but to love one another: for he that loveth another hath fulfilled the law.
“9. For this, thou shalt not commit adultery, thou shalt not kill, thou shalt not steal, thou shalt not bear false witness, thou shalt not covet; and if there be any other commandment, it is briefly comprehended in this saying, namely, thou shalt love thy neighbour as thyself.
“10. Love worketh no ill to his neighbour: therefore love is the fulfilling of the law.”
The chief justice then offered this specific suggestion: “If a way could be found to elevate the role of love and the sensible discouragement of divorce, through legal mechanisms, marital and family sanctity, and stability would be enhanced. A legal framework that frowns upon adultery, fornication, separation and divorce… (would) help us curb the murders that flow from adultery, help us reduce the number of broken families and the consequential lost and bitter generation that seems to be on the rise, which in turn causes untold harm to society.”
Chris Oxtoby, a researcher at the Democratic Governance and Rights Unit in the Department of Public Law at UCT, said in response: “This seems to be a very particular vision of morality, which is grounded in particular religious views. Any laws have to be consistent with a constitutional framework which contemplates a diversity of religious belief, including non-belief. I’m not sure, for example, what a legal framework ‘frowning’ on ‘fornication’ would look like in a secular constitutional state.”
Dr Dion Forster, a senior lecturer at the faculty of theology at Stellenbosch University, said: “South Africa remains a largely religious society. However, it is dangerous to think that this gives us license to let our religion change our nation’s laws.
“While almost 80 percent of our citizens indicated that they are Christians of some form or another in the last census that asked this question, it would be naive to think that this label means the same thing to all of our people. There is as much diversity among ‘religious South Africans’, as there is diversity among South Africans in general,” Forster said.
Paul Hoffman SC, director of the Institute for Accountability in Southern Africa, said: “South Africa is a secular state in which freedom of association and freedom of religious belief are guaranteed to all. Our judiciary is ‘independent and subject only to the constitution and the law’.
“What is expected of our judges is that they act with integrity, impartiality and independence in applying the law “without fear, favour or prejudice” as section 165 of the constitution puts it.
“Showing favour for the legal imposition or ‘infusion’ of religious values in the law is not a judicial function.
“Presumably the chief justice was speaking in his personal capacity.”