WHAT started as a routine divorce action has ended with a High Court judge making legal history by refusing to play the role of nanny to the soul of the child whose parents were splitting up.
The divorce was not opposed and the couple reached an agreement about their separation that they wanted made an order of court.
It was a legal action typical of those seen thousands of times a year in the courts, usually of interest only to the couple involved and their families.
But then the judge noticed this paragraph, and the case suddenly acquired significance for everybody in South Africa: "Both parties undertake to educate the minor child in the Apostolic Church and undertake that he will fully participate in all the religious activities of the Apostolic Church."
Acting Judge Hans Fabricius refused to incorporate this paragraph into the court order, saying he would explain why later. Now he has handed down his reasons, and they are strongly based on the constitutional right to freedom of religion, belief and conscience.
In terms of the contested paragraph, both parents and the child, then not yet three years old, would have duties.
The parents would have to educate the child in the beliefs and practices of their denomination, and ensure that he participates in the religious life of the church. The child, for his part, would have an undertaking made on his behalf - that he will "fully participate" in the religious activities of the Apostolic Church.
Judge Fabricius, giving his reasons for refusing to include this paragraph as part of the divorce order even though both parents had agreed to it, stresses that he would have had the same problem with the agreement whatever religious denomination or creed was involved.
In other words, his criticisms of the proposed settlement have nothing to do with the fact that the parents and child are members of the Apostolic Church.
The judge says the Constitution guarantees freedom of thought and of religion, and that if he were to make the paragraph an order of court, he would effectively be sanctioning the removal of the child's rights to freedom of thought.
He also points out that the High Court is the upper guardian of all children and must make decisions about them based on what is in their best interests. No agreement between the parties could encroach on this authority of the court.
He speculates that someone might perhaps be able to agree to waive his or her right to freedom of religion. But no one could do so on behalf of someone else.
The question of religious freedom has not often been examined in the courts since the passing of the Constitution.
But before religious zealots start complaining to the Judicial Service Commission about Judge Fabricius, they should remember that he did not prevent the parents from bringing up the boy as a member of their church.
He simply refused to make this an order of court.
The difference is significant.
What if the child, at say 14, decided to convert to another denomination, even another faith?
The order originally proposed by the parents would effectively have meant that the court became a bar to the child being able to exercise his freedom of conscience by changing his belief. For as the agreement stood, the court was a guarantor that the boy would "fully participate" in the religious activities of a particular denomination and by implication could not join in those of any other.
Someone who wants to change religions often faces enormous pressure from family and community, in addition to guilt and confusion. It would surely be unconstitutional to add court pressure into the equation.
By refusing to lend High Court weight to the couple's choice of religion for their son, the judge has given a salutary reminder: children too have the right to exercise freedom of religion even if they opt out of their family's creed. And it is this right that the Constitution protects, rather than the right of parents to force children into following the "faith of their fathers".