* The cases andissues in which FOR SA is / has been involved, are marked with a star (*).
POLICIES & BILLS
Basic Education Laws Amendment (BELA) Bill*
In January 2020, the Department of Basic Education(DBE) met with school governing body associations to discuss the Department’slatest amendments to the BELA Bill. The DBE has committed to meeting withteacher unions and other stakeholders, before tabling the finalised Bill inParliament. (From a religious freedom point of view, FOR SA raised concernsregarding the proposal that all lease agreements between schools and thirdparties for the hiring of the school’s property / facilities – e.g. by achurch, for use of the school hall on a Sunday morning – in future be approvedby the provincial government rather than by the SGB).
Children’s Amendment Bill*
The Secretary of the Parliamentary PortfolioCommittee on Social Development has advised that the Bill has not yet beenreferred to the Committee. The initial Bill drafted by the Department of SocialDevelopment (DSD) aimed to make any form of physical discipline by a parent –no matter how light or well-intentioned – illegal and potentially subject tocriminal prosecution for assaulting a child, to which there will be no defencein law. Following submissions by FOR SA and others, the Department removed theclauses proposing the criminalisation of physical correction in the home. It isthis Bill that will be presented before Parliament. However, following theConstitutional Court’s ruling on 18 September 2019 that outlawed any form ofphysical discipline by parents, it is expected that the Bill will undergosubstantive changes during the Parliamentary process.
Civil Union Amendment Bill*
This Bill was adopted by the National Assembly lastyear, but has now been sent to the National Council of Provinces (NCOP) (thesecond house of Parliament) to pass the Bill before the President signs it intolaw. In terms of the Bill, State-employed marriage officers will no longer havethe right, for reasons of conscience or belief, to “opt-out” of solemnisingsame-sex marriages. The NCOP opened the Bill for public comment for 18 daysuntil 29 November 2019, but after FOR SA requestedan extension to allow wider public participation, an extension was granted toFriday, 6 December 2019.
Comprehensive Sexuality Education (CSE)*
FOR SA has beenactively engaged in discussions both with Parliament and the Department ofEducation (DBE) regarding the proposed implementation of CSE in our schools. InJanuary 2020, FOR SA attended a meeting with religious and traditional leadersat the DBE. At this meeting, the DBE was clearly clear that there would be no“opt-out” for parents / teachers who are not happy with the proposed ScriptedLesson Plans (SLPs). At a meeting with teacher unions and school governing bodyassociations the very next day however, the DBE indicated that schools wouldhave a choice whether or not they want to teach the proposed SLPs. Given themixed messages by the DBE, FOR SA has written to the DBE to requestclarification.
CRL Rights Commission’s proposed regulation ofreligion*
In January 2020, FOR SA attended an internationalconference (co-organised by ACLARS and the CRL Rights Commission) on theregulation of religion in Durban. At this conference, the Chair of the COGTAParliamentary Portfolio Committee indicated that they intend having acolloquium with regards to the CRL’s Report on the Commercialisation ofReligion and Abuse of People’s Belief Systems (and in particular the CRL’sproposed recommendations for the regulation of religion) in the first term ofthis year. This would effectively be a second round of consultation with the religioussector (the first round having taken place before the previous COGTA PortfolioCommittee in 2017). FOR SA has developed alternativeproposals whichaddress the problems identified by the CRL in their Report, which require nofurther legislation and which allow the religious community to remain trulyself-regulatory. FOR SA is urging the religious community to give properattention to this matter and to FORMALLY submit alternative solutions (to thoseproposed by the CRL) to the COGTA Parliamentary Portfolio Committee.
Cybercrimes Bill*
This Bill was adopted by the National Assembly in2018 and sent to the National Council of Provinces (NCOP) (the second house ofParliament) to pass the Bill before the President signs it into law. FOR SAmade oral presentations to the NCOP on 13 November 2019. (From a religiousfreedom point of view, FOR SA made comments on the Bill which contains broadprovisions on “malicious communications” that could potentially be used to curbfreedom of (religious) expression.)
Learner Pregnancy Policy*
The Department of Basic Education (DBE) has advisedthat due to some internal processes the revised draft Policy on LearnerPregnancy (which includes Comprehensive Sexuality Education (CSE) as a keycomponent) was still to be finalised and thereafter submitted to Cabinet forfinal ratification. (From a religious freedom point of view, FOR SA madesubmissions on the inclusion of CSE, which has proven itself worldwide to be ahighly explicit programme aimed at sexualising children rather than teachingthem about sex.)
National Health Amendment Bill (“End of LifeBill”)*
We have been advised by COPE that this Bill(originally introduced as a Private Member’s Bill by Deidre Carter MP), whichprovides for “living wills” refusing any future potentially life-sustainingmedical treatment or procedure, has not been tabled again for discussion inParliament or the relevant committee. It is still where it was at the endof 2018, namely at the end of the submission period – no further progress hasbeen made. (From a religious freedom point of view, FOR SA proposed that theBill be amended to protect doctors who have a conscientious objection to givingeffect to a “living will”).
Prevention and Combating of Hate Crimes and HateSpeech Bill*
The Bill lapsed with the election of the newParliament. On 29 October 2019, the new National Assembly adopted a resolution“reviving” the Bill, allowing the new Parliament’s Portfolio Committee onJustice and Constitutional Development to continue work on the Bill. TheSecretary of the Committee has advised that the Committee is yet to discuss theBill and has not yet resumed its work on the Bill.
Proposed amalgamation of Chapter 9 institutions
FOR SA has been advised that the final reportcontaining the recommendations in this regard, is as yet not in the publicdomain. The Speaker will decide on how best to take the matters forward. Fornow, it seems that amalgamation will not be considered.
Proposed policy on marriage in SA
The Department of Home Affairs (DHA) is in theinitial stages of developing a new policy on marriage in South Africa. Thispolicy will set the platform for the possible adoption of a single “MarriageAct”, governing all marriages entered into in South Africa. FOR SA hasparticipated in various public dialogues that the DHA has had with thereligious and academic communities. (From a religious freedom point of view,FOR SA has raised with the Department the increasing pressure experienced byreligious marriage officers – many of whom believe that, according toScripture, marriage is the permanent union of one man and one woman – tosolemnise same-sex marriages. Many of them have already expressed the sentimentthat, should they be forced by law to do so, they would rather hand in theirmarriage licence than to act against their religious convictions and beliefs.)
South African Law Reform Commission (SALRC): Issue Paper 32: The Right to Know One’s Biological Origins
This Paper asks the question whether SA law shouldbe amended so as to provide for compulsory disclosure of information to a childregarding his/her conception. The SALRC has advised that they hope to resumeresearch and consultations in this year still, with a view to drafting adiscussion paper that can be considered and approved for publication by theCommission which may only be sometime in 2020 at the earliest. (From areligious freedom point of view, FOR SA raised concerns regarding the mandatory disclosure of information which couldviolate the best interest of the child principle).
South African Law Reform Commission (SALRC): IssuePaper 35: Single Marriage Statute
In South Africa currently, there is no single lawgoverning the solemnisation and registration of marriages. Instead, there arevarious pieces of legislation governing different civil marriages, civilunions, customary marriages, etc. The SALRC is thus recommending a singlemarriage law governing all types of marriages. The issue paper is available here. (From areligious freedom point of view, FOR SA raised concerns regarding theincreasing pressure experienced by religious marriage officers – many of whombelieve that, according to Scripture, marriage is the permanent union of oneman and one woman – to solemnise same-sex marriages. Many of them have alreadyexpressed the sentiment that, should they be forced by law to do so, they wouldrather hand in their marriage licence than to act against their religiousconvictions and beliefs.)
LEGAL CASES
SAHRC vs Beloftebos*
According to various media reports, the SouthAfrican Human Rights Commission (SAHRC) will be instituting legal proceedingsagainst Beloftebos, a Christian-owned wedding venue near Hermanus, after thevenue refused – on grounds of the owners’ religious conviction that marriage isthe holy union between a man and a woman – to host and be actively involved incelebrating a same-sex wedding at the venue. Beloftebos has not yet receivedany legal papers, but will no doubt be defending any legal proceedingsinstituted against them.
SAHRC vs Bongani Masuku (Constitutional Court)
In August 2019, the Constitutional Court heardarguments on whether the statements made by COSATU’s Bongani Masuku in 2009 inthe aftermath of the Gaza War, amounted to “hate speech” against Jews, orwhether they were constitutionally protected political speech. The outcome ofthis case will consider the constitutionality or otherwise of s 10 of theEquality Act of 2000 (relating to “hate speech”), and will, therefore,determine the boundary between free speech and “hate speech”. Judgment iscurrently pending.
SAHRC vs Jon Qwelane (Constitutional Court)
On Friday, 29 November 2019, the Supreme Court ofAppeal (SCA) in Bloemfontein handed down judgment in Jon Qwelane’s favour inhis appeal against the Johannesburg High Court (sitting as an Equality Court)judgment which had effectively found him guilty of “hate speech” againsthomosexuals. In terms of the SCA’s judgment, s 10 of the Equality Act of 2000(relating to “hate speech”) was declared to be inconsistent with s 16 of theConstitution, and therefore unconstitutional and invalid, and Parliament wasgiven 18 months to remedy the defect. The SCA’s order is now pending before theConstitutional Court for confirmation.
In re Dr Jacques de Vos (HPCSA)
Dr Jacques de Vos, a former military hospitaldoctor, is being charged with unprofessional conduct after advising thatabortion is the killing of an unborn human being. The hearing is taking placein front of the Health Professions Council of South Africa (HPCSA) and is setto continue in April 2020.
SAHRC vs Chris van Wyk (P.E. Magistrate’s Court,Equality Court)*
The SAHRC, acting on behalf of variouscomplainants, has instituted a case of unfair discrimination against Chris vanWyk (a pastor of the Dutch Reformed Church) in the P.E. Equality Court, followinghis statement that “if all sexual orientations are a gift of God,as argued by Rev Nelis Janse van Rensburg, to be consistent in his argument hewould have to include all sexual orientations and that would include somethinglike paedophilia.” The SAHRC claims an unconditional written apologyfrom Van Wyk for his statement. Van Wyk filed his answering affidavit to theSAHRC’s allegations, with the Court in December 2019.
Olivier v Afrikaanse Protestantse Kerk (PretoriaHigh Court)
A former pastor of the APK has instituted proceedings against the church in the Pretoria High Court (Equality Court) after he was found guilty by the church on charges of misconduct and dismissed. The pastor alleges, amongst other things, that he was unfairly discriminated against by the church on grounds of sexual orientation when they terminated his services, and also that the church made itself guilty of an unfair labour practice by “continuously discriminating against gay ministers, which is systemic in nature”.
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Freedom of Religion South Africa (FOR SA) is dedicated to protecting and preserving the freedoms and rights that the South African Constitution has granted to the faith community. If you have found this helpful, please consider supporting the work of FOR SA to protect our constitutional right to enjoy the freedom of religion by:
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NOTE & DISCLAIMER
FOR SA currently has a support base of religious leaders and individuals representing +/- 6 million people across a broad spectrum of churches, organisations, denominations and faith groups in South Africa.
FOR SA is not registered as a law firm and therefore cannot (and does not) give legal advice for which we can attract any legal liability; neither can we charge legal fees for our services.
