Over the five-year lifespan of the current Government, wherever we identified a potential threat to religious freedom, FOR SA has engaged different Departments concerning various instruments (policies, bills, regulations, guidelines, protocols, toolkits, etc).
FOR SA’s approach is to engage the Government amicably yet earnestly to highlight our concerns and put forward constructive proposals to uphold freedom of religion within the framework of our Constitutional and democratic order.
The Scorecard is a summary of instruments on which FOR SA engaged the Government. It sets out why each instrument is of concern from a freedom of religion viewpoint and indicates how Government Departments have responded to the issues we raised. It also shows to what extent the Government provided for meaningful public participation in respect of each instrument and whether the views of the public were given sufficient weight.
Please select the plus signs for more details on the different instruments.
Status: Draft Bill before Department of Justice and Constitutional Development (status unclear).
FOR SA’s concerns:
The draft Bill raises serious freedom of religion concerns. The proposed amended definition of discrimination is so subjective and overbroad that the word loses its ordinary meaning. The proposed expanded definition of equality is likewise vague and overbroad. The removal of the intention requirement for unfair discrimination, the imposition of vicarious liability on employers, and the extension of liability to third parties is non-sensical, impractical and goes against normal legal principles.
Cumulatively, this not only opens the Bill to abuse which may lead to absurd consequences (including being weaponised against persons of faith) but also the door to State regulation of religion.
Departmental response:
After some public consultation, the Department is holding over the Bill (presumably until after the May 2024 elections).
Public participation:
The Department invited interested parties to submit written comments. Almost 90 000 submissions were made via the DearSouthAfrica platform. The Department specifically met with religious leaders and FOR SA.
Status: Draft Guideline of Department of Basic Education (status unknown).
FOR SA’s concerns:
By adopting a specific ideological position (to the exclusion or marginalisation of others), the Guidelines depart from the Constitutional framework and ignore the State’s obligation to uphold all the rights in the Bill of Rights.
The Guidelines also open the door to alienating, silencing, and unfairly discriminating against learners, parents, and school staff who adhere to different (including religious) worldviews. In this way, the Guidelines do not promote true diversity and inclusivity and fail to reasonably accommodate difference. This undermines the Constitutional value of unity in diversity.
Departmental response:
Not clear as the status of the Guidelines is unclear.
Public participation:
Initially, the Department indicated there would be a formal public engagement process. Later, the Department decided against it, deeming it unnecessary and unprocedural (since the Guidelines are not legally binding). Limited stakeholder consultations were held but it is unclear whether these consultations were representative and meaningful.
The Department also invited some stakeholders (including FOR SA) - but not the general public, which includes parents - to submit written comments.
To date, there has been no broad-based (i.e. meaningful) public engagement. FOR SA is concerned that parents have not been given an adequate (or any) opportunity to give their input on the Guidelines.
Status: Draft Protocol of Department of Basic Education (status unknown).
FOR SA’s concerns:
The Protocol fails to recognise that the law requires public schools to be ideologically neutral. It does not provide an effective mechanism for the reasonable accommodation of difference. Per extension, it undermines rather than celebrates true tolerance and diversity. Because it fails to protect the rights and freedoms of all learners equally, ironically, the Protocol opens the door to unfair discrimination based on religion, conscience, and belief.
The Protocol also has a direct and detrimental impact on parental rights. It goes against domestic and international law by regularly overstepping into the realm of parental authority by adopting a specific ideological approach which teaches children values and attitudes not necessarily aligned to their parents'. The Protocol fails to recognise that families are the custodians of morals and cultural values. It neglects the State's duty to ensure that education is directed at the preservation and strengthening of positive African morals, traditional values, and cultures.
The legal nature - i.e. whether it is legally binding on and enforceable against schools - is unclear.
Departmental response:
Not clear as the status of the Protocol is unclear.
Public participation:
Initially, the Department indicated there would be a formal public engagement process. Later, the Department decided against it, deeming it unnecessary and unprocedural (it is unclear whether the Protocol is legally binding). Limited stakeholder consultations were held but it is unclear whether these consultations were representative and meaningful.
The Department also invited some stakeholders (including FOR SA) - but not the general public, which includes parents - to submit written comments.
To date, there has been no broad-based (i.e. meaningful) public engagement. FOR SA is concerned that parents have not been given an adequate (or any) opportunity to give their input on the Protocol.
Status: The ECE Toolkit is finalised and being rolled out (in at least five provinces).
FOR SA’s concerns:
The ECE Toolkit introduces transgender ideology into pre-primary and primary schools (children aged 0 to 9 years) to the exclusion or marginalisation of traditional worldviews (religious, cultural, and scientific) on sex and gender.
The Toolkit conflicts with the beliefs and values about sex and gender that many parents hold and have the legal right to pass on to their own children. It undermines parental authority and rights, because parents were not consulted during the development or ongoing rollout of the Toolkit.
Teaching the Toolkit to young children may also violate the conscience of many teachers who hold different convictions on sex and gender. Thus, the Toolkit undermines teachers' right to religious freedom in the workplace.
Departmental response:
A coalition of leaders representing various faith groups (Christian, Muslim, and traditional African Spirituality) with a combined membership of millions - and FOR SA - amicably yet earnestly engaged the Department.
The Coalition put forward practical solutions to help ensure the best interest of all children, parental rights and religious freedom are upheld.
The Department rejected the proposals, including the call for meaningful public engagement, and asserted that it will proceed with rolling out the Toolkit.
Public participation:
To date, the Department has not held any broad-based public consultations - indeed, it has indicated that it does not intend to. It is very concerning that parents were not consulted in any meaningful way (if at all).
To give parents and the general public a voice, FOR SA has worked with DearSouthAfrica to provide a platform to raise their views and concerns.
Status: The CSE curriculum is finalised and being implemented.
FOR SA’s concerns:
The Department's controversial CSE curriculum adopts an ideologically biased view on sex and sexuality that is at odds with the values of many religious parents. CSE is also regarded CSE as radical, unscientific, unproven and age inappropriate.
Other concerns include the lack of transparency and public consultation, the lack of recognition and respect for parental rights, and the existence of research evidence showing CSE is not only ineffective but harmful to children.
Departmental response:
Despite its controversy and lack of public consultation, the Department has proceeded to roll out CSE (intensifying and expanding its scope over the years).
After public outcry and some pressure, the Department confirmed that schools are not obliged to use the CSE teaching and learning materials (i.e. they can use alternative materials that meet the CAPS requirements for LS and LO) - which includes parents' right to opt out their child from such lessons.
Public participation:
To date, the Department has not held any broad-based public consultations. Basically, the public's (including parents') comments and concerns have been dismissed or ignored.
Status: The Policy has been approved and promulgated. A guide for its implementation is being finalised.
FOR SA’s concerns:
The Policy's goal is to reduce learner pregnancy through the provision of CSE and sexual and reproductive health information and services, which include contraceptives and abortion. The Policy is not clear on parental consent.
It overrides parents' right and responsibility to raise their children according to their religious and moral convictions. It also undermines the function and power of school governing bodies by limiting their role to facilitating the implementation of the Policy.
Departmental response:
The Policy was approved in September 2021 and launched in February 2022 despite parents' concerns about CSE and sexual and reproductive health rights, information and services not being addressed. The guide for its implementation is still being finalised and will be made available to schools in due course.
Public participation:
The Department invited interested parties to submit written comments. However, it’s debatable whether the public engagement was meaningful as parents' concerns remain unaddressed.
Status: The final version of the Bill was tabled in Parliament in December 2023.
FOR SA’s concerns:
The draft Bill fails to protect expressly religious marriage officers’ right to refuse to solemnise any marriage that goes against their or their institutions' beliefs and views on marriage. It also fails to recognise and protect the conscientious objection right of state-employed and ex officio marriage officers.
The Bill does provide for more equal legal recognition and protection of all (including religious) marriages. It expands the categories of persons who can become marriage officers, allowing different religious, cultural, and secular groups to have their own marriage officers.
Departmental response:
Following concerns raised by the religious sector, the Department included a provision in the draft Bill that specifically precludes designated (which includes religious) marriage officers from being compelled to solemnise any marriage that is against their conscience, religion, or belief. The conscience rights of civil marriage officers remain unprotected.
Public participation:
The Department invested in an extensive public engagement process and gave serious consideration to stakeholder input and concerns.
Status: The marriage policy development process has progressed from Green Paper to White Paper. The White Paper has been adopted and provides the official government policy position on which the Marriage Bill is based.
FOR SA’s concerns:
The Green Paper (a government policy discussion document) considered the option of requiring all marriage officers to solemnise all marriages indiscriminately. If this proposal was adopted, it would have been a serious violation of religious marriage officers' and institutions' right to religious freedom.
The Green Paper does not recommend protecting the rights of civil marriage officers.
On the plus side, it recommended that all religious marriages must be legally recognised. It also recommends that all social groups have their own marriage officers to solemnise marriages in line with their value systems while observing marriage legislation.
Departmental response:
The Department gave serious consideration to stakeholder input and concerns. The White Paper (a broad statement of a government policy position) recommends that all religious formations have their own marriage officers to solemnise marriages according to their particular religious rights while observing marriage legislation.
Public participation:
The Department invested in an extensive public awareness campaign and engagement process.
Status: Not clear but seemingly the Amendment Regulations are on hold indefinitely.
FOR SA’s concerns:
The Regulations will give the Government sweeping powers to control almost every aspect of life and society subject to very little accountability (basically, the same as it had during the Covid state of national disaster). As such, it represents a massive Government overreach. Since the Regulations are promulgated under an existing Act, Parliamentary oversight is not required.Of particular concern, are provisions that require proof of vaccination and mandatory medical examination, hospitalisation, quarantine, isolation, and treatment.
Departmental response:
The Regulations came into effect in May 2022 (to amend but not replace the existing 2017 Regulations). In June 2022, certain provisions were repealed (relating to mark-wearing, social distancing, gatherings, movement, vaccination certificates, quarantine, etc.). The Regulations were reopened for public comment until August 2022. The Regulations have not been finalised but seem to have been put on hold indefinitely (since South Africa returned to pre-pandemic normality in the second half of 2022).
Public participation:
The Department invited interested parties to submit written comments. In addition, FOR SA ran a public participation campaign on the DearSouthAfrica platform, which drew over 325 000 submissions from religious communities (and many other groups), severely criticising the sweeping and unaccountable powers the Regulations would give the Minister.
Status: The draft Bill is awaiting Cabinet approval (status unclear).
FOR SA’s concerns:
The draft Bill includes broad and intrusive proposals that could negatively impact the operations and work of religious organisations and workers. These include strict and problematic requirements for offering spiritual guidance (pastoral counsel and care) to survivors of gender-based violence. The additional administrative and financial burden could not only undermine the good work done by these organisations (and workers) but even their institutional autonomy.
Departmental response:
The Bill is awaiting Cabinet approval to be introduced in Parliament. It is unclear whether and when the Cabinet will approve (or reject) the draft Bill.
Public participation:
The Department invited interested parties to submit written comments.
Status: Public consultation has concluded, and the input must now be considered.
FOR SA’s concerns:
The draft Regulations fail to define "social work sector", making it unclear whether religious organisations are included. If the Regulations apply to religious organisations, the State will be given intrusive powers to prescribe who these organisations should employ. Religious organisations often employ their own members or non-members whose views and values are compatible with the organisation. The Regulations open the door to undermining religious organisations' right to self-govern in line with their convictions and free from State interference.
Departmental response:
The public consultation process has been concluded. The Department must now consider all the input it received to produce the final Regulations.
Public participation:
The Department invited interested parties to submit written comments.
Status: Unclear, but presumably, the Regulations are in the process of being finalised.
FOR SA’s concerns:
The draft Regulations fail to define "social work sector", making it unclear whether religious organisations are included. If the Regulations apply to religious organisations, the State will be given intrusive powers to prescribe who these organisations should employ. Religious organisations often employ their own members or non-members whose views and values are compatible with the organisation. The Regulations opens the door to undermining religious organisations' right to self-govern in line with their convictions and free from State interference.
Departmental response:
The public engagement process has been concluded and the final Regulations have not been published. The status of the Regulations is unclear.
Public participation:
The Department invited interested parties to submit written comments.
Status: The Regulations came into operation in September 2022.
FOR SA’s concerns:
The Regulations do not clarify whether religious organisations fall within the ambit of “distributors” and “commercial online distributors” or whether sermons are "films", etc. If the Regulations apply to religious organisations (and the religious content they produce), it will impose an additional governance and financial burden on them.
Departmental response:
The Regulations were promulgated in September 2022. The position of religious organisations and content remains unclear as no document reflects the Films and Publications Board's (FPB) formal position.
Public participation:
The Department invited interested parties to submit written comments. The FPB hosted consultative hearings and also engaged FOR SA specifically on the issue of religious organisations and content.
A BIG “Thank you!”
FOR SA staged multiple public awareness campaigns to help South Africans understand the potential detrimental impact on freedom of religion (and parental rights) of instruments being produced by Government Departments. In some instances, we even created opportunities for the public to “have your say” and voice concerns.
Your voice has been instrumental in adding weight to the submissions FOR SA made. In some instances, this resulted in significant improvements to the final versions of some instruments.
Thank you to the tens of thousands who “had your say”. Know that you have helped protect and promote freedom of religion in South Africa!
Note on Government responses
FOR SA has endeavoured to the best of our ability to accurately reflect Government Departments’ responses on the various instruments listed above. If we have inadvertently captured any response inaccurately, we the relevant Departments to contact us immediately to rectify any inaccuracies.
