The South African Constitutional Court’s Developing Conceptualisations of Freedom of Association

Sahara Nankan

University College Cork

Section 18 of the South African Constitution states that, ‘everyone has a right to freedom of association’ (FoA). Over the past 28 years the jurisprudence of the Constitutional Court of South Africa (CCSA) has sought to give meaning to this textually broad right, taking interpretative approaches and employing rationales that are, notwithstanding some limitations and critiques, both richly innovative and conceptually insightful.

Given South Africa’s complex socio-legal history of associational contestations (social, ethnic, racial, legal and political), it is unsurprising that the safeguarding against the repetition of past injustices of the Apartheid regime has been emphasised from early on. Moreover, what can be understood as the Court’s effort to rebalance group rights to freely associate with individual rights (such as choice, agency, and autonomy), has also triggered Section 8 on horizontal application. As with other rights, per Section 39(2), the provision is read in conjunction with the overall purpose and scope of the Bill of Rights in the South African Constitution. FoA is not only a stand-alone right but also serves a functional role in protecting the shared inter-linked values of pluralism and diversity as well as freedom, equality and dignity set out in the Preamble and Chapter 1 founding provisions of the Constitution.

The CCSA, in rejecting the traditional primary (intimate), secondary (voluntary) and tertiary (intermittent, transitory) schematic that offers limited heuristic value, has directly relied on quasi-philosophical theories of association to justify its approach to FoA on several occasions. Ranging from Kant to Woolman, Haysom and others  the Court has shown a willingness to explore the need for free association within several intersecting conceptual dimensions. The first relates to fulfilment of human potential, recently emphasised in New Nation Movement (2020), ‘to realise fully one’s humanity—to interact, combine, make common purpose and enjoy life with other person’s sharing one’s cultural, personal, political or economic interests’ (quoting Newsom at para 27). Whilst FoA is enumerated in positive terms, it also entails a negative unenumerated right to dissociate. The early domestic case of Tloubatla (1999) affirms that Section 18 also protects the right to refrain from associating. This was later then expanded to include a general ‘right to be different’ (at para 134). This emphasises the need to safeguard wishes of those who do not want to be, ‘…assimilated into the dominant culture or forced to live their lives according to dominant norms’.  The relationship with the non-derogable right to dignity under Section 10 is particularly interesting here, as, following Dawood (2000), Section 10 informs constitutional adjudication and the interpretation of all other rights. Dignity is particularly implicated by coercion in the context of Section 18. The right to dissociate is conceptually justified in New Nation Movement as protecting the dignity of one’s ‘inner self’ (at para 60). Whilst the concept requires further refinement, it remains a theoretically promising rationale for FoA protection.

A second purpose underscores the need for a proper and coherent expression and interplay of collective interests in a functioning democracy. Echoing Haysom (at para 24) it endorses the significance of FoA as clearly constitutive of and foundational to maintaining a democratic society. De Tocqueville is also directly referenced to support FoA’s inalienable nature on par with, and necessary, for personal liberty as a foundation of society (New Nation Movement at para 23). The Court couches this rationale in terms of serving democratic pluralism and the autonomous development in society. Where Section 31(1)(b) of the Constitution references the ‘organs of civil society’ the Court adopts Currie and Glendon’s interpretations as denoting ‘the private and unofficial associations of the citizens of a state’ or ‘intermediate structures’ (at para 24) between the citizens and the state. This means people can advance their interests as members of linguistic, cultural and religious communities rather than atomised individuals. The Court recognises  a spectrum of associational spaces, ranging from the most intimate spheres of personal relationships, less likely to attract justifiable state intervention, towards the large group rights of association that can more often yield to interventions. As larger groups can more readily rely on the legislative process, minorities are especially reliant on constitutional protection. For example, FoA must be read in particular conjunction with, ‘freedom of speech, expression and artistic creativity’ which guarantees ‘the development of language free from interference by the state’ (at para 75). The right thereby supports the wish to maintain basic, constitutive attachments as well as emotional, cultural, religious and social-psychological security (the integrity of communal relations).

However, the interest protected by Section 31 read in conjunction with Section 18 is, ‘…a qualitative one based on respect for diversity.’  Section 31(2) ensures that the rights of members of communities that associate on the basis of language, culture and religion does not create an immunity to be ‘used to shield practices which offend the Bill of Rights’.  Associational rights cannot effectively ‘privatise constitutionally offences group practise…to achieve exclusivity, privilege and domination’ (abusing the notion of pluralism) and cannot further ‘oppressive features of internal relationships’ (Section 8 regulates horizontal application in this regard). Indeed, diversity for its own sake, decoupled from democratic plurality and rule of law cannot be regarded as a legitimate function of FoA on its own.

These rationales were, in part, employed to rule in the seminal judgment of Christian Education SA, that the prohibition on corporal punishment in schools intended to promote the respect for dignity and physical and emotional integrity of all children, which trumped independent school’s individual, parental and community rights to freedom of religion and consequently association. FoA is therefore, in large part, designed to protect human dignity—in line with the overall supremacy of the Constitution and Bill of Rights.

Where Section 18 conflicts with other constitutional rights, the Doctors for Life and UDM I harmonisation principle applies. But it noted (De Lange at paras 78-83) that this does mean that courts are the best instruments to balance competing rights and values in intimate contexts where personal emotions and convictions determine choices and association. The CCSA has on several occasions employed the notion of a ‘doctrine of entanglement’ to explain its avoidance stance (especially to religious doctrinal issues such as De Lange concerning a lesbian Methodist minister) yet arguably leaves it somewhat legally unrefined. The doctrine, at best, can be seen as ‘a series of concentric circles’ which ranges from the ‘inner sanctum’ of personal/intimate spheres (the most protected realms of privacy and autonomy, linked presumably to the above concept of the inner self but also beyond the home) to the ‘outer rings’ of communal relations and activities (wider social, religious and business interactions). The further one moves outward, the more the scope of personal space may justifiably yield to the collective interests and the rights of others. The Court’s approach intends to overcome the critique of unenforceable law by affirming that the Constitution is both a legal and moral framework that must guarantee space to exercise diversity, pluralism and personal expression in accordance with human dignity— giving rise to a ‘constitutionally permitted free space’ (at para 83). This, it reasons, can be distinguished from the contention that there are areas of constitutional democracy that are beyond the reach of the Constitution or ‘Constitution-free.’

These instances are more likely to yield to the arbitration processes of the association and other avenues of dispute resolution. In this sense, despite questions around judicial clarity of the doctrine, one may regard an added rationale behind FoA as ensuring democratic pluralism by protecting the complex interplay between varying degrees of relations that arise between group autonomy and individual autonomy. Nonetheless, autonomy and by extension agency themselves alone are not the sole rationales for the Court’s conceptualisations as it recognises that associational choices are both rational and arational in nature. 

Finally, Section 18, on the basis of such normativity, permits the establishment of a wide variety of associational relations: formal and informal, voluntary or ascriptive, public, private or a hybrid between the two. FoA may be subject to limitations if it is deemed reasonable and justifiable in terms of Section 36 of the Constitution. Some associations are, however, arguably subject to categorical exclusions which the Court has at the time of writing left unsettled—it did however note the scholarly debate on limitation between Woolman and Haysom (New Nation Movement at para 22). Where the purpose of the association is criminality or directly threatens the constitutional order, it may be deemed unconstitutional from the onset. Another possible approach is more expansive at the limitation stage, but more restrictive regarding the two instances under the Section 36(1) justification exercise. The former would put these two types of associations beyond the remit of prima facie protection that may be subject to the justification exercise and once again align Section 18 closer with Article 9(2) of the German Basic Law and the Canadian Lavigne threshold. As the Court noted in Manamela, what Section 36 requires is an overall assessment that will vary from case to case. The Court engages in a context-sensitive balancing exercise. It seeks to arrive at a global judgment on proportionality—the more serious the impact on the right, the more compelling justifications must be made with no absolute standard for determining reasonableness.

Dr Sahara Nankan is an Irish Research Council Postdoctoral Fellow at the School of Law, University College Cork

Suggested citation: Sahara Nankan, ‘The South African Constitutional Court’s Developing Conceptualisations of Freedom of Association’,  IACL-AIDC Blog (5 September 2024) The South African Constitutional Court’s Developing Conceptualisations of Freedom of Association — IACL-IADC Blog (blog-iacl-aidc.org)