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

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Basic Education Laws Amendment (BELA) Bill*

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Parliament’s Basic Education Portfolio Committee opened the Bill for public comment until 15 June 2022. The Committee held public hearings throughout November 2022 which are set to continue in 2023.  (While FOR SA engaged with the Bill when it was still in front of the Department of Basic Education, we did not participate in Parliament’s call for comments, due to the Bill no longer posing identifiable religious freedom threats). FOR SA will monitor the progress of the Bill. If an amended version of the Bill is considered by the National Council of Provinces (the second house of Parliament), we will reconsider whether such a version includes any (new) threats to religious freedom.

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Children’s Amendment Bill*

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The Bill was adopted by both houses of Parliament and sent to the President for his assent on 6 December 2022. The President signed the Bill into law on 22 December 2022. The Children’s Amendment Act, 2022 was gazetted on 5 January 2023.  (Note, 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 has considered.)

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Criminal Law (Sexual Offences and Related Matters) Amendment Bill, 2022

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The Criminal Law (Sexual Offences and Related Matters) Amendment Bill, 2022 (or “Prostitution Bill”) was published for public comment on 9 December 2022 through 31 January 2023. The Bill proposes to amend South African law to fully decriminalise the system of prostitution.  While this Bill does not directly pose any threat to religious freedom (and thus falls outside FOR SA’s mandate), many religious leaders and other organisations have expressed serious concern about the implications of this action. FOR SA published this short comment, in order to provide religious leaders oversight of the Bill and guidance on how to participate in the public participation process.

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Department of Basic Education draft Protocol for the Elimination of Discrimination in and through Schools [Draft 3 of 9 May 2022]*

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The Department of Basic Education (DBE) has produced a draft Protocol for the Elimination of Discrimination in and through Schools [Draft 3 of 9 May 2022] (draft Discrimination Protocol). The DBE allowed FOR SA to submit comments on this draft (FOR SA’s submission focussed, amongst other things, on the need for the Discrimination Protocol to recognise that religion, conscience and belief are all grounds one cannot be unfairly discriminated against; to recognise parental rights; and to recognise the State’s obligation to ensure that education must be directed at the preservation and strengthening of positive African morals, traditional values and cultures.)  In FOR SA’s engagements with the DBE, they promised a full public participation process to allow for comment and input on the Discrimination Protocol in early 2023. FOR SA is following up closely with the Department on when this call for comments will commence.

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Department of Basic Education draft Guidelines for the Socio-Educational Inclusion of Diverse Sexual Orientation, Gender Identity, Expression and Sex Characteristics (SOGIESC) in Schools*

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The Department of Basic Education (DBE) has produced draft Guidelines for the Socio-educational Inclusion of Diverse Sexual Orientation, Gender Identity, Expression and Sex Characteristics (draft SOGIESC Guidelines). The DBE allowed FOR SA to submit comments on this draft (FOR SA’s submission focussed on the need for the Guidelines to respect all learners’ rights to equality, freedom of expression and religious freedom.)  The DBE has expressed its intention to roll these out in all public schools and they will therefore apply to grades R through 12. According to the DBE, these materials have been developed to “create an enabling environment for United Nations, African Union, ESA and Southern African Development Community Member States to carry out diversity and inclusion work in education and training.” In FOR SA’s engagements with the DBE, they promised a full public participation process to allow for comment and input on the SOGIESC Guidelines in early 2023. FOR SA is following up closely with the Department on when this call for comments will commence.

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Department of Home Affairs proposed Single Marriage Bill*

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The Department of Home Affairs (DHA) is due to publish a draft Single Marriage Bill following its White Paper on Marriages in South Africa (its new marriage policy). (See this article for more information on the policy.) The Department has advised that the draft Bill is with Cabinet for approval whereafter it will be opened for public comment. 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. From a religious freedom point of view, FOR SA made submissions on the draft version of the policy 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 right has been respected and protected in the White Paper.

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Draft National Health Act Amendment Regulations, 2022*

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The Department of Health gazetted its Draft Amendment Regulations relating to the surveillance and the control of notifiable medical conditions for public comment until 5 August 2022. See this video for the reasons why FOR SA viewed the proposed Draft Amendments to the Regulations as a severe threat to religious freedom. FOR SA ran a public participation campaign on the DEAR SA platform which saw over 325 000 public submissions made. The Draft Amendments seem to have been put on hold indefinitely, with South African society having returned to pre-pandemic normality since the second half of 2022.

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Expropriation Bill*

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Parliament’s second house, the National Council of Provinces (NCOP) opened the Expropriation Bill for public comment from 6 February 2023 to 6 March 2023. Parliament’s first house, the National Assembly passed the Bill on 28 September 2022. Should the Bill pass the NCOP it will go to the President to be signed into law. (From a religious freedom point of view, FOR SA made submissions focusing solely on the potential expropriation of church land / land used for religious purposes.)

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Films & Publications Amendment Regulations, 2022*

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The Minister of Communications and Digital Technologies gazetted the amended regulations to the Films & Publications Act on 2 September 2022. (The Department first published the draft version of the regulations, following the Films and Publications Amendment Act, 2019 which came into operation on 1 March 2022, for public comment until 12 October 2020.) To understand what the updated regulations mean for religious organisations, read this article. (FOR SA made submissions on the Regulations, and continually engaged with the Films and Publications Board (“FPB”), to limit any potential impact of the regulations on religious content and its distribution (including via the internet) by religious organisations. For an in-depth interview with the FPB, see this interview.)

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General Laws (Anti-Money Laundering and Combating Terrorism Financing) Amendment Bill*
The President signed the General Laws (Anti-Money Laundering and Combating Terrorism Financing) Amendment Bill (now the “Amendment Act”) into law on 21 December 2022. The Bill was introduced to Parliament in 2021 to avoid South Africa from being “grey-listed” by the Financial Action Task Force (“FATF”), an international body responsible for setting the international standards that countries should implement to prevent money laundering and terrorist financing. (The FAFT still grey-listed South Africa on 24 February 2023.) The initial version of the Bill provoked an uproar from the non-profit sector, because it proposed amongst other things, mandatory registration with the Department of Social Development (“DSD”) and criminal sanctions for non-compliance with the NPO Act. FOR SA’s submission put forward legislative proposals to prevent blanket mandatory registration, the imposition of criminal sanctions for non-compliance with the NPO Act, and the state regulation of religion. (For more information on the practical implications of the Act on religious organisations, read this article.)

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Learner Pregnancy Policy*

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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 launched the policy in February 2022. The Department conducted a provincial advocacy drive, where the Department’s draft Implementation Plan was discussed to finalise it. The Department will be finalising this plan in March 2023 and will be shared with critical stakeholders for review and inputs. (From a religious freedom point of view, FOR SA made submissions on the draft version of the Policy, to oppose the inclusion of Comprehensive Sexuality Education (“CSE”), which has proven itself worldwide to be a highly controversial and explicit programme that sexualises children rather than teaching them about sex while being ineffective at protecting children from harmful sexual behaviour.)

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PEPUDA Amendment Bill*

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FOR SA met with the Deputy Minister of Justice and Constitutional Development on 21 February 2023.  The Deputy Minister advised FOR SA that the Department of Justice would not be tabling the Promotion of Equality and Prevention of Unfair Discrimination Act Amendment Bill (“PEPUDA Amendment Bill”) in Parliament until after the 2024 election. The Department had opened the Bill for public comment until the extended date of 30 June 2021 and engaged with stakeholders who had made substantive comments (of which FOR SA was one) during October 2022. FOR SA was allowed to make a further submission to the Department, who has said that it is not the Department’s intention that the Bill interfere with religious autonomy or doctrinal interpretation and that the Department will consider potentially including specific clauses to protect the right to religious freedom in a future draft of this Bill. (From a religious freedom perspective, 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 without fear.)

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Prevention and Combating of Hate Crimes and Hate Speech Bill*

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On 2 March 2023, the Prevention and Combating of Hate Crimes and Hate Speech Bill (commonly known as the Hate Speech Bill) was approved by Parliament’s Justice and Correctional Services Portfolio Committee (except for the DA and ACDP members on the Committee who voted against the Bill). The Bill will now go to Parliament’s second house, the National Council of Provinces (NCOP) for consideration.

The Bill is notorious, not only for its wide definition of “hate speech” (some would say it even fails to clearly define it at all) but also for proposing an eight-year maximum jail sentence for those found guilty of “hate speech". (FOR SA made both lengthy legal written and oral submissions on the Bill to the Committee, 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, 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). The initial version of the Bill that was first opened for comment by the Department of Justice and Constitutional Development back in 2017 contained no exemption for religious expression. Due to the large-scale public engagement by the religious community, the Department wrote in a religious exemption clause. FOR SA will continue to follow the progress of the Bill in the National Council of Provinces (Parliament’s second house) and will concentrate specifically on having the religious exemption clause strengthened.

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Protection of Constitutional Democracy Against Terrorist and Related Activities Amendment Bill*

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The President signed the Protection of Constitutional Democracy Against Terrorist and Related Activities Amendment Bill (now the “Amendment Act”) into law on 23 December 2022. The Bill was introduced to Parliament in 2021 to avoid South Africa from being “grey-listed” by the Financial Action Task Force, an international body responsible for setting the international standards that countries should implement to prevent money laundering and terrorist financing. (South Africa was in any event grey-listed on 24 February 2023). The initial version of the Bill proposed the criminalisation of possession and distribution of whatever is deemed to be “terrorism-related content”, a new crime for which the Bill proposed a jail sentence of up to five (5) years.  Given the role that the religious community plays in keeping the State accountable, FOR SA’s submission focussed on the potentially muzzling effect or even sanctioning of religious organisations and communities who may criticise Government actions and/or its decisions. (For more information read this article.)

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Registration of Muslim Marriages Bill

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Hon Mr Ganief Hendricks (the founder and leader of Al Jama-Ah, a political party intended to uphold Muslim rights and interests) has tabled a private members bill in Parliament. The Bill aims to regulate the recognition, registration, proprietary consequences and dissolution of Muslim marriages. At the time of writing, the Bill was yet to be allocated to a specific committee that will work on the Bill and call for public comments on it. 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.

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South African Law Reform Commission (SALRC): Issue Paper 32: The Right to Know One’s Biological Origins*

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This Paper asks the question of 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. (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).

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

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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 January 2021 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 submitted its report on this investigation to the Department of Justice and Constitutional Development for promotion to the Minister of Justice and Correctional Services in November 2022. (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.)

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Victim Support Services Bill, 2020

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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 State Law Advisors gave their input on the Bill, which is currently still being debated at the National Economic Development and Labour Council (“NEDLAC”), 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.)

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Western Cape Guidelines on Sexual Orientation and Gender Identity*

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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 on hold with the Provincial Minister (who has the sole discretion on when to sign it so that it can be rolled out into schools) pending the finalisation of the National Department’s SOGIESC Guidelines. (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).

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WHO Amendment of International Health Regulations, 2005

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The World Health Organisation (“WHO”) is revising its International Health Regulations, which is a legal framework that sets out member states’ rights and duties when handling cross-border public health events and emergencies. South Africa has submitted joint amendment proposals with the other African WHO member states). In-depth discussions on the proposed amendments will continue in April 2023. FOR SA will follow the amendment process to identify any potential threats to religious freedom in South Africa.

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WHO Draft Pandemic Treaty

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The World Health Organisation (“WHO”) is busy drafting the first of its kind ‘pandemic treaty’ for the purpose of strengthening pandemic prevention, preparedness and response. Currently, it intends to submit the final draft to the 77th World Health Assembly in 2024. South Africa is a WHO member state and (in principle) the Government seems supportive of an international health treaty. FOR SA will follow the treaty development process to identify any potential threats to religious freedom in South Africa.

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LEGAL CASES

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

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The parents of a 9-year-old Zulu boy 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 connected to ancestral worship) 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 was heard in July 2022. During the court hearing, the parties agreed to resolve the matter by mediation. The court postponed the hearing without a date, to allow the parties to pursue mediation.

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

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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.

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

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In the meanwhile, a second same-sex couple 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.

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State v Timothy Omotoso (Gqeberha High Court)

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The ongoing trial against pastor Timothy Omotoso (who stands accused on numerous charges of sexual assault and human trafficking) continues. The latest development is that he applied in February 2023 to have his matter terminated and declared a mistrial. Arguments will be heard in March 2023.