Update On Recent or Current Religious Freedom Issues and Cases

Update On Recent or Current Religious Freedom Issues and Cases

09/19/2018
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 (*).

Prevention and Combating of Hate Crimes and Hate Speech Bill*

On 28 August, the Parliamentary Portfolio Committee for Justice published the latest version of the Bill for public comment. The call for comment was withdrawn shortly thereafter, however. It is anticipated that the Bill could be published for comment again soon.

Films & Publications Amendment Bill*

On 12 September, FOR SA appeared before the Parliamentary Select Committee on Communications and Public Enterprises to make submissions on the Bill—particularly on the “hate speech” provisions, which we believe to be over-broad and therefore unconstitutional.

Other organisations, such as Cause for Justice, raised concerns regarding the lowering of the bar and the expansion of space on the internet for (adult) pornography.

Film & Publications Board Classification Guidelines*

FOR SA made submissions on the Film and Publications Board (FPB) Classification Guidelines, in terms of which all films, games, and certain publications are classified prior to distribution and exhibition.

The new draft Guidelines have now been gazetted and are open for public comment until 24 October 2018, with public hearings to follow.

(A copy of the new draft Guidelines is available at forsa.org.za/document-library in the folder “Film and Publication Board”, “Latest – Classification Guidelines – dated Aug2018”.)

Children’s Third Amendment Bill*

FOR SA recently made submissions on the Department of Social Development’s draft Children’s Third Amendment Bill, which proposes the removal of the common law defence of reasonable and moderate chastisement from South African law.

As a result, any form of physical discipline by parents—regardless of how light or well-intentioned—would be regarded as assault, potentially with criminal consequences.

CRL Rights Commission’s Proposed Regulation of Religion*

The CRL has indicated that it is proceeding with the proposed regulation of religion, including a possible application to the Constitutional Court.

The Commission also plans to convene a National Consultative Conference for religious leaders later in the year, which will include the proposal of a Code of Ethics.

FOR SA will continue engaging stakeholders to oppose State regulation of religion.

Draft Code of Conduct for Religion in South Africa*

The SA Council for the Protection and Promotion of Religious Rights and Freedoms (SACRRF) is currently processing comments on a second draft of the Code of Conduct.

This Code represents the “responsibility” side of religious rights and freedoms outlined in the SA Charter for Religious Rights and Freedoms, which has already been endorsed by many religious groups.

Civil Union Amendment Bill*

The Civil Union Amendment Bill—proposed by COPE MP Deirdre Carter—appears to be at an advanced stage.

The Bill would compel State-employed marriage officers to solemnise same-sex marriages, potentially against their conscience, religion, and beliefs.

It reportedly has strong support within the Parliamentary Committee on Home Affairs. FOR SA will continue monitoring developments.

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

FOR SA made submissions on this Bill, also proposed by Deirdre Carter.

The Bill allows individuals to:

• appoint an agent with durable power of attorney
• create a living will regarding life-sustaining treatment

FOR SA’s concern is that the Bill does not protect doctors who may have conscientious objections. We have recommended adding a clause to safeguard such medical professionals.

Draft Learner Pregnancy Policy*

FOR SA made submissions on the Department of Basic Education’s Draft National Policy on the Prevention and Management of Learner Pregnancy in Schools.

This includes Comprehensive Sexuality Education (CSE), which FOR SA argues is:

• highly explicit
• ineffective in reducing teenage pregnancy

FOR SA continues to advocate for parental rights, including the ability to opt out.

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

The Department of Basic Education received over 6,000 submissions on the BELA Bill.

FOR SA raised concerns about proposals requiring provincial approval for lease agreements between schools and third parties (e.g. churches using school halls).

This could severely impact churches that rely on school facilities.

(Read submission here – https://forsa.org.za/articles/for-sas-submissions-on-the-bela-bill)

Draft Western Cape Commissioner for Children Bill*

This Bill proposes establishing a Commissioner for Children in the Western Cape.

FOR SA raised concerns that it may unintentionally override or limit parental rights to raise children according to their religious and moral beliefs.

The Cybercrimes and Cybersecurity Bill*

FOR SA submitted comments on this Bill, noting that its broad provisions could restrict freedom of (religious) expression.

Although around 40 submissions were received, there has been no further progress since June 2018.

LEGAL CASES

“Spanking case” (Constitutional Court)*

On 29 November 2018, the Constitutional Court will hear FOR SA’s application for leave to appeal a High Court judgment declaring all forms of physical discipline unlawful.

FOR SA argues that this ruling:

• limits parental rights
• censors Scriptural teachings
• infringes religious freedom

Gaum vs The Dutch Reformed Church (Pretoria High Court)*

On 21 August, the Court heard a case reviewing the Dutch Reformed Church’s 2016 decision on same-sex relationships.

The outcome may affect the autonomy of all religious organisations in South Africa.

FOR SA joined ADACSA as a Friend of the Court. Judgment has been reserved.

SAHRC vs Jon Qwelane (Supreme Court of Appeal)

Jon Qwelane has been granted leave to appeal a High Court ruling that found him guilty of hate speech.

The appeal will be heard in the Supreme Court of Appeal in Bloemfontein.

Beloftebos Wedding Venue* (CGE and SAHRC)

The Beloftebos Wedding Venue in Stanford refused to host a same-sex wedding based on religious beliefs.

The CGE and SAHRC consider this a “test case” for the courts. Proceedings are pending.

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

A discrimination case has been brought against African Enterprise and Theuns Pauw following a sermon addressing divorce and sexuality.

The SAHRC is acting as attorneys for the complainant.

SAHRC vs Gretha Wiid

A settlement was reached after 63+ complaints regarding Wiid’s books.

She agreed to:

• amend future editions
• avoid certain teachings on homosexuality
• refrain from addressing the topic in workshops

(Settlement: https://www.sahrc.org.za/home/21/files/Gretha%20Wiid%20SAHRC%20Conciliation%20Agreement%2018%20July%202018.pdf)

Olivier v Afrikaanse Protestantse Kerk (Pretoria High Court)

A former pastor has filed a case alleging unfair discrimination based on sexual orientation.

He also claims systemic discrimination against gay ministers.

The church disputes the claims and has filed opposing papers.

Author

Adv Nadene Badenhorst, Legal Counsel of FOR SA

Nadene is an Advocate and former member of 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 currently serves as a Next Generation Board Member on the Advocates Africa Board, representing Southern Africa.

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