Update On Recent or Current Religious Freedom Issues and Cases
By Adv Nadene Badenhorst, Legal Counsel of FOR SA
The cases and issues in which FOR SA is / has been involved are marked with a star ().*
POLICIES & BILLS
Prevention and Combating of Hate Crimes and Hate Speech Bill*
Following publication of the Bill in October 2016, the Department of Justice received almost 76,000 submissions. FOR SA—together with other religious organisations—worked hard to ensure the inclusion of a “religious exemption” clause in the Bill, even meeting with the Deputy Minister of Justice and facilitating a meeting between him and religious leaders to discuss concerns.
While grateful that the clause was included, the threat to religious freedom remains. At a recent parliamentary briefing, the Deputy Minister indicated that the exemption would likely only apply to sermons, not statements by individual believers.
Globally, “hate speech” laws are increasingly used against Christians simply for professing the Bible or expressing sincere religious convictions (e.g., street preachers, Christians in the marketplace).
The revised Bill is currently before the Justice Parliamentary Portfolio Committee and is expected to be published in the Government Gazette for public comment soon. Believers and religious organisations are urged to submit comments again.
CRL Rights Commission’s Proposed Regulation of Religion*
The Parliamentary Portfolio Committee on Co-operative Governance and Traditional Affairs (COGTA) considered the CRL Rights Commission’s Report on the “Commercialisation” of Religion and Abuse of People’s Belief Systems.
The Report proposed compulsory licensing (by the CRL, a State institution) of all religious practitioners and organisations in South Africa.
FOR SA, along with numerous denominations, churches, and faith groups, made representations to avoid State regulation of religion. Thankfully, COGTA rejected the recommendations and instead proposed a National Consultative Conference to allow the religious community to find its own solutions.
The Parliamentary Portfolio Committee for Justice is expected to be briefed on the CRL Report, likely in August 2018. FOR SA will continue monitoring developments and engaging with stakeholders.
Draft Code of Conduct for Religions in South Africa*
The SA Council for the Protection and Promotion of Religious Rights and Freedoms (SACRRF) is circulating a second draft of the Code of Conduct for Religions in South Africa.
This Code is intended to outline the ethical and other responsibilities underlying the freedoms detailed in the SA Charter for Religious Rights and Freedoms, already endorsed by most religious groups and leaders.
Religious leaders and communities are urged to engage and provide input to establish consensus on these responsibilities.
Expropriation of Land Issue*
In June 2018, Parliament’s Constitutional Review Committee began country-wide public hearings on government’s proposed land expropriation without compensation.
The Committee has received over 800,000 comments and will produce a report after hearings conclude in August. FOR SA is closely monitoring developments for potential impact on the religious community and will inform members about opportunities for input.
Civil Union Amendment Bill*
Proposed by COPE MP Deidre Carter, this Bill seeks to remove the “conscientious objection” clause in the Civil Union Act, potentially forcing State-employed marriage officers to solemnise same-sex marriages against their religious convictions.
FOR SA has submitted input on the Bill and will continue engagement.
FOR SA’s submission on the Bill (click on folder “Civil Union Amendment Bill” and file “Civil Union Amendment Bill - FOR SA Submission”).
Films & Publications Amendment Bill*
Approved by the National Assembly in March 2018 (the “Internet Censorship Bill”), the Bill now awaits approval by the National Council of Provinces (NCOP).
While supporters argue it protects children and curbs hate speech, opposition MPs raise concerns about internet regulation and enforceability.
FOR SA submitted concerns about overly broad “hate speech” provisions, which were later refined:
“‘Hate speech’ includes any speech, gesture, conduct, writing, display, or publication, made using the internet, which is prohibited in terms of section 16(2) of the Constitution, propagating or inciting harm or hatred against any person or identifiable group.”
Other concerns regarding pornography and internet freedom remain. The NCOP SC on Communications and Public Enterprise is expected to deliberate on the Bill during the third term (August and beyond).
FOR SA raises concern about new hate speech legislation
Film & Publications Board Classification Guidelines*
FOR SA submitted input on the FPB Classification Guidelines, which review all films, games, and certain publications prior to distribution.
Guidelines are reviewed every five years. Draft Guidelines and FOR SA’s submissions can be found in the FOR SA document library (click on folder “Film and Publications Board”).
The FPB will advise whether the new Guidelines are approved and open for public comment by July 2018.
Draft Basic Education Laws Amendment Bill (BELA Bill)*
The Department of Basic Education received 6,000+ submissions, including from FOR SA, on the BELA Bill.
The Bill increases State power in schools (appointments, finances, admissions, language policy) and reduces School Governing Body (SGB) authority, while also impacting parental rights and homeschooling.
FOR SA highlighted concerns regarding religious freedom, parental rights, and the impact on churches using school facilities.
FOR SA’s submission on the BELA Bill
Draft Western Cape Commissioner for Children Bill*
The Bill establishes a Commissioner for Children in the Western Cape. While intended to protect children, FOR SA raised concerns about unintended consequences on parental rights and religious upbringing.
View the Bill
FOR SA’s submission (Miscellaneous folder)
The Department is currently incorporating comments and the Bill is with Legal Services.
Cybercrimes and Cybersecurity Bill*
The Parliamentary Portfolio Committee on Justice invited comments on this Bill, which could curb religious expression.
View the Bill
FOR SA’s submission (Miscellaneous folder)
The Department received 40 submissions and is considering next steps, including consultation with the Minister and Parliament’s Legal Committee.
Guidelines on Rights and Responsibilities for Religious Conduct in Learning Environments*
Since May 2014, the Department of Basic Education has worked on a framework addressing harmful religious practices in schools.
A Task Team was formed, and FOR SA joined in 2017 to assist with drafting the Guidelines.
The Department remains the custodian of Religion Policy in Education, while the CRL Rights Commission provides leadership on religious practices.
LEGAL CASES
Mosterts vs Joshua Generation Church (CGE)
The Commission for Gender Equality (CGE) dismissed the Mosterts’ complaint against Joshua Generation Church regarding alleged discrimination against women and homosexuals.
The “doctrine of entanglement” prevents courts and commissions from intervening in doctrinal matters. The Mosterts have 30 days to appeal to the CGE Chair.
Gaum & Others vs The Dutch Reformed Church & Others (Pretoria High Court)*
On 21 August, the Pretoria High Court will hear an application to review the General Synod of the DRC’s November 2016 decision, affecting the church’s approach to same-sex relationships.
FOR SA has joined the Alliance Defending the Autonomy of Churches in South Africa (ADACSA) as a “Friend of the Court.”
SAHRC vs Jon Qwelane (Supreme Court of Appeal)
Jon Qwelane has been granted leave to appeal against a previous Equality Court judgment regarding “hate speech” against homosexuals. Appeals must be filed with the SCA by 20 June.
“Spanking Case” Before the Constitutional Court*
FOR SA awaits the outcome of its application for leave to appeal against a judgment that declared all physical discipline of children illegal.
SAHRC vs Oscar Bougardt (Cape Equality Court)
Pastor Bougardt was found guilty of contempt of court for statements towards gay and lesbian people. He received a 30-day suspended prison sentence for five years.
Beloftebos Wedding Venue* (CGE and SAHRC)
In August 2017, Beloftebos refused, on religious grounds, to host a same-sex wedding. CGE and SAHRC investigations are ongoing.
Olivier v Afrikaanse Protestantse Kerk (Pretoria High Court)
A former APK pastor alleges unfair discrimination and labour practices related to sexual orientation. The church opposes the case.
SAHRC vs Gretha Wiid (SAHRC)
Following 63+ complaints, the SAHRC invited Christian author Gretha Wiid to respond to allegations of discrimination and “hate speech” against LGBT people. Settlement negotiations are ongoing.
Author
By Adv Nadene Badenhorst, Legal Counsel of FOR SA
Nadene is an Advocate, previously practising at the Cape Bar. She holds a BA LLB from the University of Stellenbosch and an LLM in International Human Rights Law (cum laude) from the University of Essex.
She serves as a Next Generation Board Member on the Advocates Africa Board, representing Southern Africa.
