Update On Recent or Current Religious Freedom Issues and Cases

*The cases and issues in which FOR SA is / has beeninvolved, are marked with a star (*).

POLICIES & BILLS

Prevention and Combating of Hate Crimes and HateSpeech Bill*

The deadline for public comments on therevised draft of the Bill closed on 15 February 2019. According to ACDP MP Steve Swart, who is a member of the ParliamentaryPortfolio Committee on Justice, the Bill and the consideration of the public’ssubmissions thereon will stand over to the next Justice Committee that will beformed after a new Parliament is established following the national election thattook place on 8 May.

Children’s Amendment Bill*

The deadline for comments on the revisedChildren’s Amendment Bill was on 29 November 2018.Amongst other things, the Bill proposed the outlawing of any form of physicalcorrection (regardless of how light or well-intended) in the home. Thisproposal has been removed from the latest version of the Bill which will betabled before Parliament.

Cybercrimes Bill*

This Bill was adopted by the National Assemblylast year, but only after substantial changes were made such as removing the“cybersecurity” section that would have given the State far-reaching monitoringpowers. The second house of Parliament, the National Council of Provinces(NCOP) invited public comment on a drastically revised version of the Billby 8 March 2019. FOR SA made comments on the Bill whichcontains broad provisions on “malicious communications” that could potentiallybe used to curb freedom of (religious) expression. The Bill is currentlysuspended until after the new Parliament is sworn in.

Civil Union Amendment Bill*

On 6 December 2018, the National Assemblyadopted the Civil Union Amendment Bill. In terms of the Bill, State-employedmarriage officers will no longer have the right, for reasons of conscience orbelief, to “opt out” of solemnising same-sex marriages. FOR SA made submissionson the Bill to COPE MP Deidre Carter, who initially proposed the Bill as aPrivate Member’s Bill, and to the Parliamentary Portfolio Committee on HomeAffairs. The Bill has now been handed over to the NCOP whose Select Committeeon Social Services was supposed to have a meeting (to be briefed on the Bill)during February, but this was postponed until further notice.

Films & Publications Amendment Bill*

The Films & Publications Amendment Bill,which includes certain broad provisions on “hate speech”, has been passed byboth houses of Parliament and sent to the President for assent on 19 March. FORSA made submissions on the Bill to the Parliamentary Portfolio Committee onCommunications, and the Select Committee of the NCOP.

Film & Publications Board ClassificationGuidelines*

FOR SA made submissions on the Film andPublications Board (FPB) Classification Guidelines, in terms of which allfilms, games and certain publications are classified prior to distribution andexhibition thereof. Public consultations closed on 30 November 2018. The Finalproposed guidelines were submitted to the FPB Board for recommendation to theMinister, and the guidelines were gazetted on 5 April.

Draft Western Cape Commissioner for Children Bill*

FOR SA made (written and verbal) comments onthe Bill that sought to establish a Commissioner for Children to protect andpromote the interests of children in the Western Cape.  FOR SA’ssubmission to the Western Cape Provincial Parliament highlighted our concernthat the Bill may have some unintended consequences and override, or severelylimit, the rights and responsibilities of parents to raise their children inaccordance with their religious, moral or philosophical convictions andbeliefs. The Bill was assented by the Premier on 29 March, becoming law.

CRL Rights Commission’s proposed regulation ofreligion*

At its 4^th NationalConsultative Conference (NCC) in Pretoria on 25 and 26 February 2019, the CRLRights Commission (CRL) asked the approx. 500 delegates – largely made up ofcommunity councils, traditional leaders, traditional healers (but only ahandful of religious leaders) –  to adopt a resolution that the CRL should“continue with a process to control religious practitioners”and to “push for the proposals that the CRL has placed before Parliament”,including a peer review mechanism. The CRL’s decision conflicts with the COGTAParliamentary Portfolio Committee’s report, which effectively rejected theCRL’s proposals for (State) regulation of religion. Furthermore, the adoptedresolution also ignores the Rhema Summit in February 2019 which started aprocess of self-regulation that is due to culminate in a further three-daysummit in October 2019, and which was a key part of COGTA’s recommendations.FOR SA will continue to engage with relevant stakeholders to proposealternative solutions to (State) regulation of religion in South Africa, butwhich will bring greater levels of accountability and compliance to the religioussector.

Draft Code of Conduct for Religion in South Africa*

The SA Council for the Protection andPromotion of Religious Rights and Freedoms (SACRRF) has been working on a draftCode of Conduct for Religions in South Africa, as the “responsibility” side ofthe “religious rights and freedoms” detailed in the SA Charter for ReligiousRights and Freedoms, which has already been endorsed by most religiousgroupings, communities and leaders in South Africa. As the process for findingsolutions to the problems in the religious sector has now been handed over tothe National Religious Leaders Forum (NRLF) under pastor Ray McCauley, theSACRRF handed over the draft Code to him for their consideration and furtherprocess. The Code, which could assist in establishing a form of self-regulationof religious communities, should therefore form part of the consultations thatwill take place at local, provincial and national level following the RhemaSummit in February 2019.

National Health Amendment Bill (“End of LifeBill”)*

Last year, FOR SA made submissions on theabove Bill, proposed by COPE MP Deidre Carter. The Bill provides that a personmay appoint an agent with durable power of attorney, and also draw up a livingwill to cater for the event of that person no longer being able to expresstheir refusal for any future potentially life-sustaining medical treatment orprocedure. FOR SA’s concern is that the Bill does not cater for the situationwhere the treating doctor has a conscientious objection to giving effect tosuch living will. To this end, we have recommended the insertion of a clause toprotect doctors in such instances. According to Ms Carter’s office, they havereceived feedback on the Bill from Parliament’s legal advisors, but are stillto consider these. There have been no mention of further dates or times fordiscussion or deliberation for the Bill, or of tabling the Bill with therelevant Portfolio Committee.

Draft Learner Pregnancy Policy*

FOR SA made submissions on the Department ofBasic Education’s Draft National Policy on the Prevention and Management ofLearner Pregnancy In Schools, which includes Comprehensive Sexuality Education(CSE) as a key component of the Policy. Internationally, CSE has consisted of highlyexplicit programmes aimed at sexualising children rather than teaching themabout sex.  It has also not been successful in reducingteenage pregnancy or preventing the spread of STDs. The Department is currentlyin the internal process of finalising the Policy before it is handed over toCabinet for ratification. Once Policy has been finalised and approved byCabinet, it will then be shared with external stakeholders.

Draft Basic Education Laws Amendment Bill(so-called “BELA Bill”)*

Following their invitation for comments onthe draft Basic Education Laws Amendment Bill (the so-called “BELA Bill”), theDepartment of Basic Education reportedly received 6,000+ submissions from thepublic and various organisations (including FOR SA) in relation to theBill. In our submission, FOR SA raised concerns regarding the proposalthat all lease agreements between schools and third parties for the hiring ofthe school’s property / facilities (e.g. by a church, for use of the schoolhall on a Sunday morning) in future be approved by the provincial governmentrather than by the SGB.  We understand from the Department that they are inthe final phases of working through the 6,000+ submissions received and amendingthe Bill on the strength of comments that have merit. The public will be informedwhen there is new information about the status of the Bill.

Draft Land Expropriation Bill, 2019:

The call by the Department of Public Worksfor comments on the draft Land Expropriation Bill closed on 22 February2019.  The Department has confirmed that they received over 50 000comments from the public and that they are in the process of processing these. In our submission, FOR SA recommended that land that is owned and used inconnection with the exercise of the constitutional right to religious freedomand the rights of religious communities, be exempted from expropriation withoutcompensation.

LEGAL CASES

FOR SA vs Minister of Justice & Others(Constitutional Court)*

On 29 November 2018, the Constitutional Courtheard FOR SA’s application for leave to appeal against the judgment by theJohannesburg High Court in October 2017, declaring all forms of physicaldiscipline of children – regardless of how light or well-intentioned – to beillegal. FOR SA is still awaiting judgment from the Court.

Gaum vs The Dutch Reformed Church (Pretoria HighCourt)*

On Friday, 10 May, the Pretoria High Courtrefused the application by the Alliance Defending the Autonomy of Churches inSouth Africa (ADACSA), asking the Court to clarify its judgment. Moreparticularly, ADACSA wanted clarity on whether the Court’s judgment, whichdeclared the 2016 decision of the Dutch Reformed Church on same-sexrelationships to be unlawful and invalid, was made only on procedural groundsor also on substantive (constitutional) grounds. The Court dismissed ADACSA’sapplication on the basis that it – being a “Friend of the Court” in the originalproceedings, rather than a party – did not have a right to bring theapplication. FOR SA formed part of the Alliance Defending the Autonomy ofChurches in South Africa (ADACSA), who was admitted as a “Friend of the Court”with a view to defending the autonomy of churches in the case. FOR SA’s LegalCounsel, Adv Nadene Badenhorst, also appeared as one of the Counsel for ADACSAin the case.  FOR SA (and ADACSA) are nowconsidering their position on whether (or not) to appeal the High Court’sdismissal of their application for clarification on the ground of their lack of“legal standing”.

SAHRC vs Jon Qwelane (Supreme Court of Appeal)

The Johannesburg High Court (sitting as anEquality Court) has granted Jon Qwelane leave to appeal to the Supreme Court ofAppeal (SCA) in Bloemfontein against the High Court’s judgment last year, whicheffectively found him guilty of “hate speech” against homosexuals.  

Complaint against Chris van Wyk (SAHRC)*

The SAHRC received complaints from Queers without Borders and others against Dr Chris van Wyk, a pastor in the Dutch Reformed Church, following certain comments that he had made regarding same-sex conduct being sinful in light of Scripture, on social media. According to the SAHRC, dr Van Wyk’s statements appear to be “hate speech” as defined in s 16(2) of the Constitution and they invited him to submit a response by 10 May, which he did.

R.E. Wilson vs African Enterprise & Theuns Pauw(Grahamstown Equality Court)*

The unfair discrimination case againstAfrican Enterprise (AE) and their director Theuns Pauw, is still pending. Thecase arises out of a sermon delivered by Pauw at St Andrew’s College inGrahamstown and wherein he touched on issues of divorce and human sexuality.AE’s legal representatives are engaging with the SAHRC, acting for thecomplainant, in the hope to resolve the matter outside of court.

Beloftebos wedding venue* (CGE, and SAHRC)

The Beloftebos Wedding Venue, Stanford cameunder fire in August 2017 for refusing, on grounds of conscience and religiousbelief, to host a same-sex wedding ceremony at the venue.  The Commissionfor Gender Equality (CGE), who initially investigated the matter of own accord,has now advised that they – together with the South African Human RightsCommission (SAHRC) – consider this to be a “perfect test case”to be referred to the Courts for determination. The CGE is currently awaitingthe CRL Rights Commission’s attitude in this regard.

Olivier v Afrikaanse Protestantse Kerk (PretoriaHigh Court)

A former pastor of the Afrikaanse Protestantse Kerk (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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