Guarding against the Quiet Erosion of Freedom

Guarding against the Quiet Erosion of Freedom

When a family loses a loved one, the last thing they want to worry about is whether the law will let them grieve in peace. Yet in a recent objection to the Department of Home Affairs, Freedom of Religion South Africa (FOR SA) had to point out something obvious. For many Muslim families, burial as soon as possible after death is understood as a religious obligation. Deaths do not wait for office hours. A proposal requiring an electronic death certificate before burial risks placing grieving families in a difficult position: comply with the law or stay faithful to their convictions. That objection was not unusual. It was one of several submissions FOR SA has made in recent months. Each concerned a different matter before a different department, but all raised a similar constitutional concern. Taken together, they point to a quiet and important question about how freedom can be eroded.

Freedom is rarely limited through a single dramatic law. It is more often narrowed, clause by clause, in many ordinary ones. None of the legislative measures FOR SA has commented on sets out to suppress religious freedom. Each pursues a legitimate purpose. The death certificate proposal aims to modernise civil registration. The draft Labour Law Amendment Bill seeks to widen access to dispute resolution. The Regulations on Management of Learner Pregnancy in Schools set out to protect pregnant learners from exclusion and stigma. The draft White Paper on Audio and Audiovisual Media Services and Online Safety wants to shield children from genuine harm. The Hate Speech Act Regulations seek to operationalise the Prevention and Combating of Hate Crimes and Hate Speech Act, which in turn seeks to combat real and serious hatred. These are not bad goals. Most are good ones.

The constitutional question is not whether the State may act, but how, and at what cost to other rights. A worthy purpose must be achieved through a proportionate method. The Constitution requires that any limitation of rights must be reasonable and justifiable. A central part of the inquiry is whether less restrictive means are available to achieve the same legitimate end.

What emerges across these submissions is a concern about method rather than design. Rights can be eroded indirectly, through breadth, vagueness, and the absence of safeguards, rather than through open prohibition.

Consider the learner pregnancy regulations. Their aim is plainly good. A pregnant learner should never be punished, shamed, or pushed out of school. But the draft appears to activate schools, district structures, social workers, and external service providers early and routinely. Parents appear later, sometimes only after key referrals are already in motion. A child facing pregnancy is ordinarily a child within a family. A framework that treats parental involvement as an afterthought, rather than the ordinary starting point, risks displacing parents from decisions that are properly theirs to share, including decisions that touch on deeply held moral and religious convictions. Schools are not being asked to disregard their duties of care, support and appropriate referral, but to recognise parental involvement as the default, with carefully defined exceptions where a child is genuinely at risk.

The labour law submission raises a related concern from a different direction. Faith communities run schools, charities, and ministries. They employ people while doing so. As dispute forums widen and definitions broaden, there is a risk that ordinary decision-makers may be drawn into questions such as whether a particular religious teaching is correct or whether a specific role genuinely requires adherence to a particular faith. South African law has long recognised the doctrine of entanglement, which cautions the State against adjudicating internal religious doctrine while still allowing it to apply laws of general application. Religious institutions are not above the law, but there should be clear legal safeguards so that adjudicators can decide civil and constitutional questions without being drawn into deciding matters of theology.

The online safety White Paper and the hate speech regulations show a similar difficulty in the language of regulation itself. When key terms such as harm, offensive, or hatred are left undefined or loosely defined, the concern is not only misapplication but self-censorship. People may begin to police their own speech, unsure of where the line lies.

The Constitutional Court has been clear that expression which merely offends, shocks, or disturbs remains protected. A democracy depends on that protection. Where religious views on contested moral questions could be reported, investigated, or prosecuted under broad standards, the space for honest public conversation risks narrowing. Weak exemptions may offer little practical protection to those who would have to defend themselves after the fact.

Running through all of this is a constitutional commitment South Africa made deliberately: unity in diversity, not uniformity. The Constitutional Court treats reasonable accommodation as part of equality law and not a mere favour. It assumes that people will differ. It builds room for that difference into the structure of law. The concern in each of these matters is the gradual narrowing of pluralism in favour of administrative uniformity until difference is treated as a problem to be managed rather than worthy of protection.

This is why public participation and submissions matter. These are opportunities for ordinary citizens to help shape a law before it hardens into something difficult to undo. The details of laws are often precisely where freedom is either protected or quietly lost.

FOR SA's recent work across burial practices, labour relations, schools, online expression, and hate speech regulation reflects a single steady conviction. The State is free to pursue its legitimate aims but must do so by the means least likely to burden the freedoms on which a constitutional democracy rests. That is not an obstacle to good governance. It is part of the discipline that keeps governance sound.

A free society is measured not only by the laws it rejects, but by the restraint and care it brings to every law it enacts.