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

Basic Education Laws Amendment (BELA) Bill

Parliament’s second house, the National Council of Provinces (“NCOP”), has opened the Bill for public comment until 19 January 2024.  FOR SA will peruse the Bill and will consider whether the version opened by the NCOP for public comment poses any (new) threats to religious freedom.

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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]*‍

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 Anti-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 Anti-Discrimination Protocol 1) to recognise that religion, conscience and belief are all grounds on the basis of which one cannot be unfairly discriminated against; 2) to recognise parental rights; and 3) 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 most recent engagements with the DBE, the Department confirmed that it has concluded its stakeholder consultations and will not be holding general public consultations despite earlier assurances that it will. According to the DBE, this decision to forgo broad public engagement was taken based on an internal legal opinion that it was unnecessary and unprocedural. FOR SA does not agree as 1) freedom of religion, belief and opinion is a fundamental constitutionally protected right; and 2) the law recognises that parents have an inalienable right to choose the form of education they consider best for their children (including the religious and cultural basis of that education) as well as the right to be consulted by the State in this regard. We have already taken steps, together with other stakeholders including faith leaders, to further engage with the Department concerning the protection of freedom of religion and parental rights in the basic education sector.

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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*

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 out the Guidelines in all public schools – it 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 most recent engagements with the DBE, the Department confirmed that it has concluded its stakeholder consultations and will not be holding general public consultations despite earlier assurances that it will. According to the DBE, this decision to forgo broad public engagement was taken based on an internal legal opinion that it was unnecessary and unprocedural. FOR SA does not agree as 1) freedom of religion, belief and opinion is a fundamental constitutionally protected right; and 2) the law recognises that parents have an inalienable right to choose the form of education they consider best for their children (including the religious and cultural basis of that education) as well as the right to be consulted by the State in this regard. We have already taken steps, together with other stakeholders including faith leaders, to further engage with the Department concerning the protection of freedom of religion and parental rights in the basic education sector.

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Department of Home Affairs’ proposed Single Marriage Bill*

The Department of Home Affairs (DHA) has advised that the Bill was approved by Cabinet on 29 November 2023 allowing the Minister to submit the Bill to Parliament. At the time of this article, the Minister was still to table the Bill. The Bill aims to bring all South Africa’s existing different marriage laws under one legislative umbrella. The Bill follows the DHA’s White Paper on Marriages in South Africa (see this article for more information on the White Paper). (The DHA had opened its first draft of the Marriage Bill for public comment until 31 August 2023. From a religious freedom point of view, FOR SA made submissions and panel discussions on the draft Marriage Bill that emphasised the importance of expressly protecting the religious freedom of religious marriage officers.)

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SALRC Discussion Paper 160: Review of Aspects of Matrimonial Property Law

The South African Law Reform Commission (SALRC) has invited public comments on its Discussion Paper 160. The purpose of the Discussion Paper is to review and update the law on matrimonial property distribution to ensure that it is not discriminatory (for example, based on gender or religion). From a religious freedom point of view, FOR SA is preparing a submission which will focus on giving equal legal recognition and protection of all bona fide religious marriages when compared with civil marriages, including when it comes to the patrimonial consequences of such marriages.

Draft Employment Equity Regulations 2023*‍

The Department of Employment and Labour published its Draft Employment Equity Regulations 2023 for public comment until 11 June 2023. From a religious freedom point of view, FOR SA made submissions on the draft regulations’ failure to define who will be seen as performing social services insofar as this failure may unintentionally affect religious organisations.

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Expropriation Bill*

Parliament’s second house, the National Council of Provinces (NCOP), opened the Bill for public comment until 6 March 2023. The Western Cape Provincial Parliament (WCPP) also opened the Bill for public comment until 9 July 2023. FOR SA made written and oral submissions to both the NCOP and WCPP. On 24 November 2023, the NCOP Committee tasked with considering the Bill met to receive the nine provincial legislatures’ negotiating mandates. It will now proceed with considering the provinces’ proposed amendments to the Bill. 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 and/or land used for religious purposes.)

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General Intelligence Laws Amendment Bill, 2022 (“GILAB” or “the Spy Bill”)*

The Bill was submitted to Parliament’s Ad Hoc Committee on General Intelligence Laws Amendment Bill for consideration. At the time of writing, FOR SA was informed that the Committee intends to open the Bill for public comments from approximately 16 December 2023 to end January 2024. We were also informed that the Committee intends to hold provincial hearings on the Bill from approximately 22 January 2024 onwards. FOR SA will keep monitoring the Spy Bill as it progresses through Parliament and alert the public to any opportunities to comment on it.

The Bill will allow South Africa’s intelligence agencies (“spies”) to conduct security competence tests (for purposes of issuing a security clearance certificate) on any person or institution deemed to be of “national security interest”.  This would be anyone whose actions the spies see as being inconsistent with section 198 of the Constitution (which would include affecting South Africans’ resolve to seek “a better life”). The unintended consequences of such an overbroad definition could potentially be that any person or institution (including religious organisations and their employees since they affect, and indeed reflect, South Africans’ resolve to seek a better life) could be deemed a national security interest. See this article for more information on the top religious freedom concerns relating to the latest version of the Bill.

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Learner Pregnancy Policy*

The Department of Basic Education’s (DBE) Policy on the Prevention and Management of Learner Pregnancy in Schools 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 is still in the process of finalising its Implementation Guide which will be shared with schools to provide support with implementing the policy. (From a religious freedom and parental rights 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 to abstain from sex while being ineffective at protecting children from harmful sexual behaviour. The message of CSE is at odds with the views and values in which many religious parents want – and have the right – to raise their children.)

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PEPUDA Amendment Bill*

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 (DOJ) would not be tabling the draft 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. The DOJ has said that it is not its intention that the Bill interferes 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 of sanction.)

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Prevention and Combating of Hate Crimes and Hate Speech Bill*‍

The Prevention and Combating of Hate Crimes and Hate Speech Bill (commonly known as the “Hate Speech Bill”) was Bill passed by Parliament during its plenary on 5 December 2023. Only the DA, FF+ and ACDP voted against the Bill. The Bill will now go to the President to be signed into law. Once President Ramaphosa signs the Bill, it will become law and will be enforceable. (See this update video for more information.)

The Bill is notorious, not only for its wide definition of “hate speech” (some would say it even fails to clearly define what hate speech is) but also for proposing a five-year maximum jail sentence for those found guilty of “hate speech".

From a religious freedom point of view, FOR SA made written and oral submissions arguing that a definition for “hate” be inserted and for a strengthening of the religious exemption clause.

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Registration of Muslim Marriages Bill

The Bill was withdrawn on 28 November 2023.  The Bill was a private member bill aimed at regulating the recognition, registration, proprietary consequences and dissolution of Muslim marriages.

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 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*

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 South African marriage law 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 in November 2022. This report is now awaiting handover by the Minister of Justice and Constitutional Development to the Minister of Home Affairs. The report is not yet publicly available. From a religious freedom point of view, 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*

The Department of Social Development opened the Victim Support Services Bill, 2020 for public comment until 7 October 2020. The Department is waiting for the Cabinet to invite it to present the Bill. Only once Cabinet has approved the Bill will it be tabled 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. From a religious freedom point of view, 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*

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

The World Health Organisation (WHO) is revising its International Health Regulations (IHR), 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 joined amendment proposals with the other African WHO member states. In-depth discussions on the proposed amendments will continue in December 2023 onwards. During a plenary meeting of Parliament on 5 December 2023, the ACDP filed a formal objection to the amendment of the IHR (see at approximately 01:10:00). FOR SA will follow the amendment process to identify any potential threats to religious freedom in South Africa. For more information see this article.

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WHO Draft Pandemic Treaty

The World Health Organisation (WHO) is busy drafting a first-of-its-kind ‘pandemic treaty’ to strengthen 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. For more information see this article.

LEGAL CASES

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

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 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 R300,000-00 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)*

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)*

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 R 2 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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LS v School Governing Body of Hoërskool Stellenbosch (Cape High Court, Equality Court)

In June 2023, LS (a former learner born a biological male who identifies with the female gender) instituted legal proceedings against Hoërskool Stellenbosch and others, in the Cape Town High Court (sitting as an Equality Court). LS claims that the school unfairly discriminated against and harassed LS while LS was a learner at the school. Amongst other things, LS is asking the Court to declare that the term “gender” in the Constitution and Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (“PEPUDA” or the “Equality Act”) includes “gender identity” and “gender expression”.

OTHER

‍CRL Rights Commission Religious Freedom Survey

The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL Rights Commission) launched a Religious Freedom Survey for public comment until Tuesday, 31 October 2023. The purpose of the Survey is to determine how the faith communities of South Africa experience religious freedom in day-to-day life, and if religious freedom is sufficiently protected. A critical component of the Survey entails identifying areas where religious freedom is (or has been) in danger of erosion.

FOR SA prepared a substantive response to the Survey questions, detailing where existing as well as upcoming laws and policies fail to protect and/or undermine the right to religious freedom. Our submissions also listed 1) threats to parents’ right to raise their own children in accordance with their own beliefs and values, and 2) real life examples of where person in South Africa were unfairly discriminated against on the ground of their religion.

FOR SA is following up with the CRL Rights Commission regarding the results of the Survey.