Update on Recent or Current Religious Freedom Issues and Cases

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

POLICIES & BILLS

Basic Education Laws Amendment (BELA) Bill*

‍Parliament’s Basic Education Portfolio Committee opened the Bill for public comment until 15 June 2022. The Committee will now have to consider all these public comments and possibly engage in public hearings. FOR SA had made a previous submission on the previous draft of the Bill when it was still in front of the Department of Basic Education, to contest a clause in the, which removed the prerogative from a school governing body (SGB) to rent school venues to external users (often churches) and centralised the authorising of all such rental agreements in the MEC for Education. This concern has been addressed in the current draft of this Bill in front of Parliament, whereby the granting of any lease of less than a 12-month period remains the prerogative of the SGB. FOR SA has, therefore, not made a submission on the version of the Bill in front of Parliament, as there were no identifiable religious freedom concerns.

‍Children’s Amendment Bill (Private Member’s Bill to ban conversion therapy on children)*

‍Last year, a DA Member ofParliament (MP) published her intention to introduce a Bill amending the current Children’sAct, so as to prohibit “conversion therapy” in children (which is not defined in the notice, other than saying it is a “pseudo-science approach to ‘curing’ children of homosexuality”). The published intention was open for public comment until 4 August 2021. However, it is important to note that this is merely a notice of the MP’s intention to introduce a Private Member’s Bill – it is not yet the Bill itself. Without having sight of the text of the Bill, FOR SA is not in a position to advise whether it will infringe on any religious freedom rights – and has therefore also not submitted any comments on the published intention at this stage.

‍Children’s Amendment Bill*

‍Parliament’s Social Development Portfolio Committee is currently busy with a clause-by-clause process to amend, remove or agree on the content of the Bill. The initial Bill aimed to make any form of physical discipline by a parent – no matter how light or well-intentioned – illegal and potentially subject to criminal prosecution for assaulting a child, to which there will be no defence in law.Following submissions by FOR SA and others, the Department removed the clauses proposing the criminalisation of physical correction in the home. It is this Bill that Parliament is considering. However, following the Constitutional Court’s ruling on 18 September 2019 that outlawed any form of physical discipline by parents, various organisations are proposing substantive additions to the Bill that specifically deal with this issue.

‍Department of Home Affairs’ proposed Marriage Policy*

‍The Department of Home Affairs (DHA) has published its new policy on marriage, the White Paper on Marriages in South Africa. This policy contains the DHA’s recommendations regarding the positions that should be adopted in a future single marriage law that will govern all marriages entered into in South Africa. (See this article for more information.) The Department aims to follow the policy with a draft Bill. FOR SA will follow the process closely and, as soon as this Bill opens for public comment, will notify the public should there be any religious freedom concerns.

‍FOR SA participated extensively in this process and made submissions on the draft version of the policy. Our concern was to ensure that the religious freedom of religious marriage officers, and the organisations to which they belong, remain protected – specifically to only conduct marriages that conform to their, and/or their religious organisation’s, religious doctrines and beliefs. This position has been recognised and respected in the new policy.

‍Draft Films & Publications Act Amendment Regulations, 2020*

‍The Minister of Communications and Digital Technologies published Draft Films and Publications Amendment Regulations for public comment until 12 October 2020. The Regulations are to follow the Films and Publications Amendment Act, 2019 (which came into operation on 1 March 2022). The Department has submitted the Regulations to the Chief State Law Advisor in order to obtain their feedback.

‍FOR SA made submissions on the Regulations, specifically on their potential impact on religious content and content distributed (including via the internet) by religious organisations.

‍Draft National Health Act Amendment Regulations, 2022*

‍The Department of Health has gazetted its Draft Amendment Regulations relating to the surveillance and the control of notifiable medical conditions for public comment. The Regulations are open until Friday, 5 August 2022 for public comment.

‍FOR SA views the proposed Regulations as a severe threat to religious freedom. See this video outlining our concerns. See this article containing links to template submissions individuals or organisations can use to make submissions to the Department of Health.

‍Expropriation Bill*

‍The Department of Public Works and Infrastructure tabled the Expropriation Bill in Parliament on 15 October 2020. Parliament’s Portfolio Committee on Public Works and Infrastructure opened the Bill for public comment until 28 February 2021. The Committee thereafter held public hearings, which were concluded on 7 September 2021. The Committee is in the process of deliberating on the Bill.

‍FOR SA made submissions focusing solely on the potential expropriation of church land / land used for religious purposes.

‍Learner Pregnancy Policy*

‍The Department of Basic Education’s policy was gazetted on 3 December 2021 after Cabinet approved it at the end of September 2021. The Department will proceed with national roll-out, the plan of which includes a provincial advocacy drive to finalise the Department’s Implementation Plan.

‍FOR SA made submissions on the draft version of the Policy, to oppose the inclusion of CSE, which has proven itself worldwide to be a highly explicit programme aimed at sexualising children rather than teaching them about sex.

‍PEPUDA Amendment Bill*

‍The Department of Justice and Constitutional Development published proposed amendments to the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (“PEPUDA”) for public comment until the extended date of 30 June 2021. The Department has advised that it is still considering the numerous comments it received.

‍FOR SA made submissions on the radical and detrimental impact that the Bill would have on the right of people and organisations of faith to freely share, and live out, their religious beliefs. As a result of FOR SA’s awareness campaign and partnership with DearSA, an estimated over 153 000 individual submissions were made to the Department.FOR SA also subsequently met with the Deputy Minister of Justice, who undertook to look at making the Bill “clearer” so as to make sure that religious autonomy remains protected in the Bill.

‍Prevention and Combating of Hate Crimes and Hate Speech Bill*

‍Parliament’s Justice and Correctional Services Portfolio Committee held three (3) days of public hearings on the Bill in March and May 2022. (To see FOR SA’s oral submission on the Bill during the public hearings see this video.) The first version of the Bill was first opened for comment by the Department of Justice and Constitutional Development back in 2017. Due to the large public engagement by the religious community, the Department wrote in a religious exemption clause. The Department thereafter tabled the Bill in Parliament on 13 April 2018. Parliament’s Justice and Correctional Services Portfolio Committee then asked for public comments until 15 February 2018. Thereafter the Bill was put on hold (lapsed and was revived) while the Committee awaited the Constitutional Court’s judgment in the Qwelane matter. (Judgment was finally handed down on 30 July 2021). Following the judgment, the Committee re-opened an unaltered version of the Bill for public comment until 1 October 2021.

‍FOR SA made lengthy legal submissions on the Bill, arguing for a strengthening of the religious exemption clause. The submission points out various problems with the Bill, such as the chilling effect of the Bill’s wide definition of, and criminalisation of, hate speech would have on both the right to religious freedom (section 15 of the Constitution) and the right to freedom of expression (section 16 of the Constitution).

‍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 should be amended so as to provide for compulsory disclosure of information to a child regarding his/her conception. The SALRC has advised that there have been no further developments on this issue paper, and it is uncertain when further progress will be made on it. FOR SA raised concerns regarding the mandatory disclosure of information which could violate the best interest of the child principle.

‍South African Law Reform Commission (SALRC): Discussion Paper 152: Single Marriage Statute*

‍In South Africa currently, there is no single law governing the solemnisation and registration of marriages. Instead, there are various pieces of legislation governing different civil marriages, civil unions, customary marriages, etc. The SALRC’s discussion paper investigated the possible adoption of a single marriage law for South Africa governing all types of marriages. The paper opened for public comment until 17 May 2021, and contained the SALRC’s preliminary proposals – including two draft Bills. The SALRC is currently still in the process of considering all the comments received.

‍FOR SA made submissions on the Discussion Paper, particularly to ensure that the religious rights of religious marriage officers (and the organisations to which they belong) to only solemnise marriages that conform to their religious convictions and beliefs, remain protected.The SALRC has advised that they have commenced the collation of comments received, which will keep them busy for a while. Once the collation has been done, an evaluation of the comments will commence, to be followed by an advisory committee meeting to decide on the way forward. This process will also be guided by the White Paper on Marriages in South Africa. This policy contains the Department of Home Affair’s recommendations regarding the positions that should be adopted in a future single marriage law that will govern all marriages entered into in South Africa.

‍Victim Support Services Bill, 2020

‍The Department of Social Development opened the Victim Support Services Bill, 2020 for public comment until 7 October 2020. The Department has screened and considered all the comments received from public consultation. The Bill is currently with the State Law Advisors, whereafter it will be prepared for the Cabinet. Only thereafter will it be tabled in Parliament. No timeline can be given for tabling in Parliament. The Bill seeks to ensure that the rights of victims of violent crime are respected and protected by service providers dealing with (including religious organisations and workers providing “spiritual services” to) such victims.

‍FOR SA has made submissions on the Bill, which includes very broad and intrusive provisions that unduly limit the constitutional rights of religious organisations and workers, and put a massive administrative, financial and practical burden upon these organisations and workers.)

‍Western Cape Guidelines on Sexual Orientation and Gender Identity*The Western Cape Department of Education (WCED) published its draft Guidelines for public input and comment by 19 June 2020. The WCED has advised that the Guidelines are now with the Provincial Minister who has the sole discretion on when to sign it so that it can be rolled out into schools.

‍FOR SA made submissions on the potential impact of the Guidelines on the freedom of conscience, religion and belief of teachers and other learners, and also pointed out the equality, privacy and safety concerns arising from the Guidelines.

‍LEGAL CASES

‍Liberty Fighters Network v Minister of Health; Afriforum NPC and Dear SA NPC v Minister of Health; Solidarity Trade Union v Minister of Health(Pretoria High Court)

‍Various organisations are challenging the Government’s Health Regulations Amendment, 2022 primarily on the grounds of lawfulness, procedural fairness, and rationality, primarily on the basis of the right to just administrative action (section 33 of the Constitution).The Health Regulations Amendment, 2022 were published by the Minister of Health on 4 May 2022 and are separate to the Draft Health Regulations which are open for comment until 5 August 2022. The Department of Health stated that the Health Regulations Amendment, 2022 were published to “ensure that there is no gap in terms of legal instruments to contain the spread of COVID-19 and future notifiable medical conditions” and that the Amendments were “limited regulations” only. The different cases bought by the different organisations are to all be heard together by three judges (i.e. a full bench) of the Pretoria High Court from 26 July through 28 July 2022.

‍FOR SA’s considered view is that the applicants have a strong case – Afriforum’s papers are especially well drafted – and may well succeed. We believe that there is a stronger case to be made out in terms of the right to just administrative action (as protected by the Promotion of Administrative Justice Act, 2000), than purely on religious freedom grounds protected by section 15 right to religious freedom.

‍In re Dr Jacques de Vos (HPCSA)

‍Dr Jacques de Vos, a former military hospital doctor, was subjected to a disciplinary enquiry by the Health Professions Council of South Africa (HPCSA), which accused him of unprofessional conduct for advising a patient that her 19-week-old unborn baby (who she wanted to kill) is a human being. Dr de Vos instructed his attorneys to launch an application in the North Gauteng High Court to compel the HPCSA to reconvene his disciplinary hearing so that it could deliver a verdict. This is after the HPCSA withdrew its case, but without delivering a verdict, even though Dr de Vos already had pleaded not guilty and had filed expert evidence supporting his position in medical science. Dr de Vos was barred from practising medicine from July 2017 until April 2022, due to the HPCSA’s case against him. The Court heard the application on 1 February 2022. The judge has not yet given his judgment.

‍Mthembu v Christian Life Private School (Johannesburg High Court, Equality Court)*

‍The parents of a 9-year old Zulu boy have instituted legal proceedings against an independent Christian school in Johannesburg, after the school – based on its Biblical convictions and beliefs – refused to allow the child to wear an isiphandla (a traditional bracelet signifying a connection with the ancestors) at school. The parents allege that the school’s refusal amounts to unfair discrimination based on culture and, amongst other things, is asking for R300,000-00 damages for the impairment of their and their child’s dignity and emotional pain and suffering.

‍FOR SA has been admitted as an amicus curiae (“friend of the court”) in the matter, which has now been set down for hearing on 25 & 26 July 2022.

‍SAHRC vs Beloftebos (Cape High Court, Equality Court)*

‍In March 2020, the South African Human Rights Commission (SAHRC) instituted legal proceedings against Beloftebos, a Christian-owned wedding venue near Stanford, in the Cape Town High Court (sitting as an Equality Court). The SAHRC accuses Beloftebos of unfair discrimination on grounds of sexual orientation after the venue refused – on grounds of the owners’ religious conviction that marriage is between a man and a woman – to host and be actively involved in celebrating a same-sex wedding at the venue, back in 2017. Beloftebos has filed opposing papers, and also instituted a counter-application against the SAHRC for the bias and hostility with which they have acted against Beloftebos. The SAHRC, the Commission for Gender Equality (CGE) and the Minister of Justice and Constitutional Development are opposing Beloftebos’ counter-application. The Women’s Legal Centre has indicated that they have applied to be a “friend of the court”. The matter is currently still pending.

‍Heekes & Watling v Beloftebos (Cape High Court, Equality Court)*I

n the meanwhile, a second same-sex couple has filed an application to intervene in the SAHRC’s case against Beloftebos. The couple is asking, amongst other things, that Beloftebos be ordered to pay R2 million in damages for refusing to host their same-sex wedding. Importantly, they are also asking the Court for a broad order, declaring that “the expression of religious beliefs as a basis on which to refuse to associate with or conduct business with a same-sex couple, constitutes hate speech and/or discrimination” in terms of the Equality Act. The matter is currently still pending.