Abstract:
In 1994 a new political dispensation came into effect in South Africa with the Constitution as the highest authority. The question that is being asked here is : "How does church law and church governance fit into this constitutional dispensation?"
Throughout the ages the Church in its creed (see NGB clause 36), its own constitution (read Church Order) as well as in its general participation in judicial processes, has acknowledged the state as governing power (and by implication, the Constitution) as the authority that must be obeyed and respected.
The Constitution in the applicable clause determines that the Bill of Rights is binding on a natural and legal persona. This means that the Church can call upon the Constitution for protection. Together with the rights and privileges that are entrenched in the Constitution, a number of responsibilities are placed on shoulders of the Church. The Church is undoubtedly subject to the Constitution.
In terms of clause 36, the state has the right to decree legislation that in some instances restricts the rights entrenched in the Bill of Rights. The Church will, in the event of its fundamental rights being threatened, have to prove that the restriction does not meet the requirements set out in clause 36 and that the restriction does not meet the proportionality test, in view of the fact that it is unfair, unjust, and unreasonable.
The challenge for the Church in the new constitutional dispensation depends on how it is going to accept and live with the protection of its rights that the Constitution provides. The Church will therefore have to fearlessly and without prejudice embrace to these fundamental rights as the champion of the Truth in an open and democratic society.
