By Adv Nadene Badenhorst, FOR SA Legal Counsel

Religious freedom, in essence, is the right to not only believe in your heart whatever you choose to believe (or not to believe) – but also the right to say what you believe, and to live out your beliefs, freely and without fear of punishment or persecution by the State or anyone else.  Increasingly, however, religious beliefs are seen as “fundamentalist”, “narrow-minded”, “bigoted”, and “politically incorrect”, with a strong warning being sent to people of faith to believe in their hearts whatever they want to believe – just don’t speak it, or live it!

Increasingly, policies and laws are passed that threaten not only our freedom to say what we believe, but also our freedom to live our beliefs – particularly in the public space. Increasingly, legal cases are opened up against people and religious organisations – simply for living out what they believe the holy texts and/or their innermost convictions demand. These cases typically come in the form of ‘unfair discrimination’ cases opened up before the Chapter 9 institutions or the Courts, in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act, 2005 (PEPUDA or “the Equality Act”).

Discrimination (i.e. to treat different people differently) in itself is, of course, not a problem in South African law. What is legally problematic, however, is “unfair” discrimination (i.e. treating people differently for no good reason in law). The ‘million-dollar question’ then, is “can a person or organisation’s religious convictions and beliefs ever be a ‘fair’ reason in law to treat different people differently?”

COURT CASES

SAHRC v Beloftebos

This is the very question which the Cape High Court (sitting as an Equality Court) will have to grapple with in the “Beloftebos case”. In this case, the South African Human Rights Commission (SAHRC), a Chapter 9 institution, is asking the Court to find that Beloftebos wedding venue cannot refuse – on grounds of the owners’ Christian conviction that marriage (according to the Bible) is between a man and a woman – to host and participate in the ceremony and celebration of a same-sex wedding on their property. In other words, an institution of State is asking the Court to find that the Beloftebos owners are free to believe in their hearts whatever they want to believe, but are not allowed to live out their beliefs in the public space.

The Commission for Gender Equality (CGE), which is another Chapter 9 institution, and also the Minister of Justice and Constitutional Development, have since teamed up with the SAHRC against Beloftebos. These organs of State are using taxpayers’ money to force Beloftebos to compromise on their deeply held beliefs, or face the penalty of the law. State institutions have bottomless pockets, whereas Beloftebos must defend themselves at their own cost. In addition, a same-sex couple is asking the Court to order R2 million in damages against Beloftebos, stating in their court papers that “had the Beloftebos owners kept their opinions and beliefs to themselves, there would be no concern. The problem arises because they brought their opinions and beliefs into the public sphere …”.

This case places everyone’s religious freedom firmly in the cross-hairs.  If the Court can force Beloftebos to perform work that goes against their conscience, religion and belief – and fine them massively if they will not, or even close them down – then anyone (of whatever conviction or belief) can be forced in the same way or made to suffer the consequences!

Mthembu vs Christian Life Private School (the “isiphandla case”)

Another case that could potentially have major implications for the freedom to live out religious convictions, particularly in the context of an independent faith-based school, is the so-called “isiphandla case” before the Johannesburg High Court (sitting as an Equality Court). In that case, Christian Life Private School, an independent Christian school, refused – on grounds of the school’s Christian ethos and beliefs to which all parents with children at the school specifically subscribe – to allow a 9-year old Zulu boy to wear the isiphandla (i.e. a traditional wristband made of goatskin that signifies a connection with the ancestors) to school. As a result, the boy’s parents have sued the school for R300,000 in damages for the violation of their and their child’s dignity.

The case, again, is a direct challenge to the ability of faith-based independent schools (and the parents who send their children to the school because of its religious ethos and character) to practically live out their faith in the context of a school. If the Court decides against the school, it could set a dangerous precedent for all faith-based independent schools (of whatever faith), who may be forced to act against the religious convictions and beliefs of the school.  This would completely undermine and defeat the raison d’etre (i.e. their very reason for existence) and objective of independent faith-based schools.  It also goes directly against the constitutional right to establish and maintain independent faith-based schools (section 29(3) read with sections 15, 16 and 31 of the Constitution).

GOVERNMENT POLICY / REGULATIONS

Lockdown Regulations

Since the declaration of a national state of disaster mid-March, Government has from time to time – and with a view to curbing the spread of the COVID-19 virus – issued Regulations to regulate the activities that are (or are not) permitted at each of the Alert Levels 5 to 1. These Regulations have, to a greater or lesser extent, limited South Africans’ fundamental rights to freedom of movement, privacy, assembly and association. They have also limited our fundamental right to religious freedom and in particular, our right as religious communities to corporately gather in order to exercise (i.e. live out) our religious convictions and beliefs.

At Level 1, churches and religious organisations can currently meet in up to 50% of their venue’s capacity, but subject to a maximum number of 250 people for an indoor meeting and 500 people for an outdoor meeting and provided there is 1.5 metres social distancing between people. While this certainly brings a great measure of relief to many churches and religious organisations, it does not, however, assist the larger churches and organisations who could otherwise comfortably and responsibly accommodate thousands of people in their venue at one time while adhering to all the sanitisation, hygiene and social distancing protocols.

A further complication is that the Directions (issued under Level 3) by the Minister of Education prohibit schools from renting out their facilities to churches. The result is that many churches and religious organisations, who do not have their own buildings, are still not able to meet and will not be able to do so for as long as these Directions remain in place.  Furthermore, the continuing prohibition on physical touch makes it impossible for various churches to perform certain religious rituals (including baptism, the ordaining of leaders, etc) the way they believe the Scriptures command them to. 

What Lockdown has shown, is that we cannot take our constitutional rights for granted. The mere fact that they are written into the Constitution does not mean that Government will necessarily, and at all times, respect and protect those rights. If it was not for FOR SA and other groups who continued to press Government on this issue, it is very possible that churches and other religious organisations would still remain closed, even at Level 1.

(DRAFT) LEGISLATION

Civil Union Amendment Act, 2020

On the legislative side, likewise, there are increasing threats to our freedom as people of faith to live out our religious convictions and beliefs. An example of this is the Civil Union Amendment Act, 2020.This was signed into law by the President last month and has the effect of forcing all State-employed marriage officers – potentially against their conscience and belief – to personally solemnise same-sex marriages.

Importantly, the Amendment Act only affects State-employed marriage officers (i.e. marriage officers in the employ of the Department of Home Affairs, and magistrates), and does not affect religious organisations or leaders who are not (at this stage) compelled by law to perform any ceremony that goes against their religious convictions and beliefs.

At the same time, it is important to note that there is a push to force religious organisations and leaders to perform same-sex marriages, even if it goes against their religious convictions and beliefs. This push is coming both from the outside (i.e. through Government policy and draft legislation), and from the inside (i.e. through same-sex activists who, from inside their own churches or religious organisations, apply pressure on their leadership to recognise and endorse same-sex unions.) 

Conclusion

While everyone should be free to live as they deem fit, it is a direct infringement of the right to religious freedom when people are forced to violate their conscience by doing and/or participating in something that goes against their beliefs.  In our democractic society, where we are to celebrate and live peacefully in our diversity, it should not be the goal of anyone and/or section of society to force others to do things that go against their fundamental beliefs.

FOR SA remains committed to ensuring that the rights of religious organisations and persons in this regard remain firmly protected.

Nadene is an Advocate, and practised as a member of the Cape Bar for a number of years. She holds both a BA LLB degree from the University of Stellenbosch and a LLM degree 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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