Update on Recent or Current Religious Freedom Issues and Cases

By Freedom of Religion of South Africa (FOR SA)

* 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*

The Bill is currently still making its way through the internal processes of the Department of Basic Education (DBE), whereafter it will be submitted to Cabinet, and once approved, tabled in Parliament. (From a religious freedom point of view, FOR SA raised concerns regarding the proposal that all lease agreements between schools and third parties for the hiring of the school’s property / facilities – e.g. by a church, for use of the school hall on a Sunday morning – in future be approved by the provincial government rather than by the SGB).

Children’s Amendment Bill*

The Bill has been tabled in Parliament and opened for public comment until 27 November 2020.  The relevant Parliamentary Portfolio Committee has been briefed by the Department of Social Development on the Bill on 6 October 2020. (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 will be presented before Parliament. However, following the Constitutional Court’s ruling on 18 September 2019 that outlawed any form of physical discipline by parents, it is expected that the Bill will undergo substantive changes during the Parliamentary process.)

City of Cape Town By-Laws*

FOR SA made submissions on the proposed amendments to “Streets, Public Places, and the Prevention of Noise Nuisances By-Laws of the City of Cape Town”. We are concerned that the amendments give certain officials sweeping powers that may well impacts on the rights of religious communities to practise their religion and belief. We have been advised that all the comments received, had been captured and the record of comments submitted to the Line Department who is in the process of responding to all submissions, and that the City is waiting on legal opinions regarding the comments.

Civil Union Amendment Act (Formally the Civil Union Amendment Bill)*

The President signed the Bill into law on 21 October 2020. The Bill became law with immediate effect and is now known as the Civil Union Amendment Act, 2020. In terms of this Act, State-employed marriage officers and magistrates no longer have the right, for reasons of conscience or belief, to “opt-out” of solemnising same-sex marriages. Any “opt-out” that was previously granted to such State-employed marriage officers and magistrates lapses 24 months after the Act commenced – i.e. on 21 October 2022. (Importantly, the Act does not compel all religious marriage officers to solemnise same-sex marriages).

Comprehensive Sexuality Education (CSE)*

FOR SA has been actively engaged in discussions both with Parliament and the Department of Education (DBE) regarding the proposed implementation of CSE in our schools. In a written response to a question asked by a Member of Parliament (MP), the Minister confirmed earlier this year that the Department’s SLPs will not be compulsory for teachers / schools to use.  Public schools are, therefore, free to choose alternative materials from which to teach sexuality education, to achieve the outcomes defined in the CAPS curriculum set for Life Orientation and Life Skills. Schools need to choose their resources / learning material by the end of this year, so as to ensure that same is bought and available for learners by the start of the 2021 school year.

As such, there is an opportunity for parents and teachers now to recommend particular resources / material from which they would want Sexuality Education (as a mandatory component of the Life Orientation and Life Skills subjects) to be taught, to their SGB. There are indeed various programmes that comply with CAPS, while at the same time promoting (more conservative) family and community values. For a list in this regard, see here and here for Cause for Justice’s summary of alternative programmes / books and whether they are CAPS compliant.

CRL Rights Commission’s proposed regulation of religion*

In March 2020, the COGTA Parliamentary Portfolio Committee held a two-day Indaba with religious leaders (mainly from the Christian faith) with regards to the CRL’s Report on the Commercialisation of Religion and Abuse of People’s Belief Systems (and in particular to hear the Christian community’s views on harmful religious practices, and what they were doing to combat “social ills”. This Indaba was supposed to be followed by a Colloquium with the leaders of other faiths and structures on 17 – 18 March 2020, which has subsequently – due to the COVID-19 health crisis – been postponed to a date still to be determined.). Effectively, this Indaba and Colloquium will be the second round of consultation with the religious sector (the first round having taken place before the previous COGTA Portfolio Committee in 2017). FOR SA has developed alternative proposals which address the problems identified by the CRL in their Report, which require no further legislation and which allow the religious community to remain truly self-regulatory. FOR SA is urging the religious community to give proper attention to this matter and to FORMALLY submit alternative solutions (to those proposed by the CRL) to the COGTA Parliamentary Portfolio Committee.

Cybercrimes Bill*

This Bill was adopted by the National Council of Provinces (NCOP) on 1 July 2020, and returned to the National Assembly to consider the amendments proposed by the NCOP. (From a religious freedom point of view, FOR SA made comments on the Bill which, in its original version, contained broad provisions on “malicious communications” that could potentially be used to curb freedom of (religious) expression.)

Domestic Violence Amendment Bill, 2020*

The Minister of Justice and Constitutional Development has published the Domestic Violence Amendment Bill, for public comment by 9 October 2020. The Bill’s purpose is to address the practical challenges, gaps and anomalies which have become obvious since the Act’s initial implementation, as well as to align the Act with the Protection from Harassment Act, 2011.  From a religious freedom point of view, FOR SA made submissions on the Bill’s inclusion of “spiritual abuse” in the definition of “domestic violence”.

Draft Films & Publications Act Amendment Regulations, 2020*

The Minister of Communications and Digital Technologies has published Draft Films and Publications Amendment Regulations for public comment by 12 October 2020. The Regulations follow the adoption of the Films and Publications Amendment Act last year. (The Act has not come into operation yet, as the Regulations first need to be finalised). FOR SA has made submissions on the Regulations, and the potential impact thereof on religious content and content distributed (including via the internet) by religious organisations.  The FPB is currently engaging in its internal processes to consider all the inputs received and whether/how to further amend the Regulations, before submitting these to the Minister for her consideration.

Learner Pregnancy Policy*

The Department of Basic Education (DBE) has advised that due to some internal processes, the revised draft Policy on Learner Pregnancy (which includes Comprehensive Sexuality Education (CSE) as a key component) was still to be finalised and thereafter submitted to Cabinet for final ratification. After Cabinet has approved the Policy, provincial meetings will be held regarding its implementation in schools. (From a religious freedom point of view, FOR SA made submissions on 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.)

Lockdown Regulations, and Directions for religious gatherings*

FOR SA has been actively involved in making submissions to, and engaging with Government (including the COGTA Minister and President), the Nerve Centre, and Parliament with regard to the impact of COVID-19 on religious communities, and Government’s response thereto – including the Lockdown Regulations and/or any Directions issued from time to time across Alert Levels 5 to 1.  The most recent is that FOR SA has had no substantive response from the COGTA Department to our letters dated 30 September 2020 and 16 October 2020, and as a result approached Parliament for assistance in obtaining a response.

Prevention and Combating of Hate Crimes and Hate Speech Bill*

The Department of Justice and Constitutional Development has advised that they have informed the Justice Parliamentary Portfolio Committee that judgment is awaited in the Qwelane matter (to be heard before the Constitutional Court on 22 September 2020), and that it may have a significant impact on the Bill. As such, the matter will probably not progress until then.  FOR SA made lengthy legal submissions on the Bill regarding the chilling effect it 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).

Proposed policy on marriage in SA*

The Department of Home Affairs (DHA) is developing a new policy on marriage, that will set the platform for the possible adoption of a single “Marriage Act” governing all marriages entered into in South Africa. The DHA aims to submit the new policy to Cabinet in 2020/2021, open a draft Bill for public consultation in 2021/2022, and submit the Bill to Parliament in 2022/2023. (From a religious freedom point of view, FOR SA has raised with the Department the increasing pressure experienced by religious marriage officers – many of whom believe that, according to Scripture, marriage is the permanent union of one man and one woman – to solemnise same-sex marriages. Many of them have already expressed the sentiment that, should they be forced by law to do so, they would rather hand in their marriage 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 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 has been no further developments on this issue paper, and it is uncertain when further progress will be made on it. (From a religious freedom point of view, 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): Issue Paper 35: 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 is thus recommending (to the DHA, as part of its process to develop a new Marriage Policy for South Africa) a single marriage law governing all types of marriages. The issue paper is available here. The discussion paper (which typically follows the issue paper) is still being developed and is expected to be published for comment in 2021. (From a religious freedom point of view, FOR SA raised concerns regarding the increasing pressure experienced by religious marriage officers – many of whom believe that, according to Scripture, marriage is the permanent union of one man and one woman – to solemnise same-sex marriages. Many of them have already expressed the sentiment that, should they be forced by law to do so, they would rather hand in their marriage licence than to act against their religious convictions and beliefs.)

Victim Support Services Bill, 2020*

The Department of Social Development is currently reviewing the comments received on the Victim Support Services Bill, 2020, which was open for public comment until 7 October 2020. 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 these draft Guidelines for public input and comment by 19 June 2020. A meeting with relevant stakeholders was held on 16 October 2020, where FOR SA presented. FOR SA invited Dr de Vaal to present the WCED with a medical viewpoint, based on his reading of various international academic and medical research studies on the medical response to gender dysphoria generally, and in children specifically. Dr de Vaal has since been the subject of complaints and investigations by transgender activists.  Should the Guidelines be passed, they will apply to all public schools in the Western Cape, and will likely set precedent for similar Guidelines or policies to be adopted by all Provinces. The Department is currently in the process of considering which of the comments received, to incorporate in the draft guidelines. No timeline can be given on when this process would be finalised. (From a religious freedom point of view, 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

Jon Qwelane versus SAHRC (Constitutional Court)

On 22 September 2020, the Constitutional Court will hear argument in the above matter concerning the legal definition (and scope) of “hate speech”. The Constitutional Court will be asked to confirm the judgment of the Supreme Court of Appeal (SCA) in November 2019, in terms of which the definition of “hate speech” in the Equality Act of 2000 was found to be broader than s 16(2)(c) of the Constitution and therefore unconstitutional.

SAHRC vs Bongani Masuku (Constitutional Court)

In the meanwhile, judgment is still pending in this case which was heard by the Constitutional Court in August 2019. The question before the Court is whether certain statements by COSATU’s Bongani Masuku in 2009 in the aftermath of the Gaza War amounted to “hate speech” against Jews or were constitutionally protected political speech. The case (like the Qwelane case) concerns the constitutionality the “hate speech” definition in the Equality Act of 2000 and will determine the boundary between free speech and “hate speech”.

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, Minister of Justice and Constitutional Development, and Commission for Gender Equality (CGE) have all indicated that they oppose Beloftebos’ counter-application but are yet to file their opposing papers in this regard. The SAHRC’s papers replying to Beloftebos answers to the SAHRC’s allegations of unfair discrimination remain outstanding.

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

In 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.  Beloftebos has filed its response to this application and is now awaiting the couple’s reply.

Marion Stevens v Dr Sybrand de Vaal (HPCSA)

A transgender activist has laid a complaint with the Health Professions Council of South Africa (HPCSA) against Dr Sybrand de Vaal, a medical practitioner, following his participation – on invitation of FOR SA – in a recent discussion with the Western Cape Education Department (WCED) on their draft Guidelines on Sexual Orientation and Gender Identity in public schools. The matter is also under investigation by the University of Cape Town (UCT), where Dr De Vaal is currently in the process of completing his psychiatry training.

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 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 damages for the impairment of their and their child’s dignity and emotional pain and suffering. FOR SA is likely to get involved as a “friend of the court” in the case.

Muhammed Bin Hassim Mohomed & Others v the President of the RSA & Others (Pretoria High Court)

In this case, a qualified Aalim challenged certain provisions of the Disaster Management Act, 2002 which impacted negatively on the right of Muslims to attend and gather at the mosque for daily prayers. The application, which was brought on an urgent basis during Lockdown Level 5, was dismissed by the Court on the basis that it was reasonable and justifiable for the State to refuse to allow an exemption to permit congregational worship.

Chandra Giri Ellaurie v Madrasah Taleemuddeen Islamic Institute & Another (Durban High Court)

In this case, the High Court recently ordered a mosque to “tone down” the call to prayer after a resident in the area complained that the mosque’s call to prayer (five times a day) impairs her right to dignity. The Court ordered that the call to prayer should not be heard within the buildings of Ellaurie’s property, which is situated about 20m away. Since the judgment on 21 August 2020, various other mosques have been instructed by their local municipalities to “tone it down”.

SAHRC vs Chris van Wyk (P.E. Magistrate’s Court, Equality Court)*

The SAHRC, on behalf of various complainants, has instituted a case of unfair discrimination against Chris van Wyk (a pastor of the Dutch Reformed Church) in the P.E. Equality Court, following his 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 he would have to include all sexual orientations and that would include something like paedophilia.”  In October 2020, the SAHRC confirmed in writing that it would withdraw its case against Van Wyk. Van Wyk’s attorneys are still awaiting the formal notice of withdrawal however.

In re Dr Jacques de Vos (HPCSA)

Dr Jacques de Vos, a former military hospital doctor, who was subjected to a disciplinary enquiry by the Health Professions Council of South Africa (HPCSA) who accused him of unprofessional conduct for advising a patient that abortion is the killing of an unborn human being, has instructed his attorneys to launch an application in the North Gauteng High Court to compel the Health Professions Council of South Africa (HPCSA) to deliver a verdict. This is after the HPCSA withdrew its case, but without delivering a verdict. Dr de Vos had been barred from practising medicine since July 2017, due to the HPCSA’s case against him.

The South African Hindu Dharma Sabha vs Rev. Joseph and Revival Ministries (Chatsworth Magistrate’s Court, Equality Court)*

The South African Hindu Dharma Sabha (SAHDS) has instituted legal proceedings in the Chatsworth Magistrate’s Court (sitting as an Equality Court), against Rev. Llewellyn Joseph and the Revival Ministries Church in Chatsworth, Kwa-Zulu Natal.  This follows from a Facebook video showing Rev. Joseph making certain statements during a Revival Ministries church service, which the SAHDS views as “Hindu bashing” and hate speech. The SAHDS is asking, amongst other things, that the statements be declared as ‘hate speech’ in terms of the Equality Act, that Rev. Joseph complete 200 hours’ community service, never make such statements again, and pay R1 million in damages. FOR SA has written to the parties to indicate its likely involvement as a “friend of the Court” in this matter, as it concerns both the right to freedom of religion and to freedom of expression.  The Court has referred the matter to the CRL Rights Commission for mediation.

The South African Hindu Dharma Sabha vs Mr Chetty and Revival Ministries (Chatsworth Magistrate’s Court, Equality Court)*

The South African Hindu Dharma Sabha (SAHDS) has instituted legal proceedings in the Chatsworth Magistrate’s Court (sitting as an Equality Court), against Mr Simeon Chetty and the Revival Ministries Church in Chatsworth, Kwa-Zulu Natal.  This follows from a video showing Mr Chetty making certain statements while evangelising, which the SAHDS views as “Hindu bashing” and hate speech. The SAHDS is asking, amongst other things, that the statements be declared hate speech in terms of the Equality Act, that Mr Chetty complete 200 hours’ community service, never make such statements again, and pay R1 million in damages. At least one other party has applied to join the application. FOR SA has written to the parties to indicate its likely involvement as a “friend of the court” in this matter, as it concerns both the right to freedom of religion and to freedom of expression.

State v Timothy Omotoso (P.E. High Court)

The ongoing trial against pastor Timothy Omotoso (who stands accused on numerous charges of sexual assault and human trafficking) continues, with the latest development being that his bail application has been dismissed by the Court.

Olivier v Afrikaanse Protestantse Kerk (Pretoria High 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”.