Can divorcing parents compel their young child to belong to their church and adhere to its dictates?
In Kotze v Kotze the Court declined to include in a settlement agreement in respect of divorce proceedings between the parents a clause that read:
Both parties undertake to educate the minor child in the A… Church and undertake that he will fully participate in all religious activities of the A… Church.
In granting the divorce order the Court declined to make this clause a part of the settlement agreement. In coming to that decision the Court had regard to, and examined, the best interests of the child (in this case a 3 year old boy) as the Court was required to do by S 28(2) of the Constitution of The Republic of SA Act and the right to freedom of religion, belief and opinion enshrined in S 15 of the Constitution.
The Court concluded that the clause in question did not afford the child the freedom he was entitled to; that it was not in the best interests of the child and, in the context of religious activity, it predetermined his future and placed him in constraints from which he might never be freed.
On that basis this clause was deleted from the settlement agreement.