Review and Update on Legislation and Cases impacting on Religious Freedom and the Autonomy of the Church, since January 2015

by Daniela Ellerbeck
11 June 2015

Cases are in chronological order, starting with most recent:

*The legislation and cases in which FOR SA is involved / may become involved as Amicus Curiae, are marked with a star.

Government Policies and Legislation:


  • Proposed amendments to the Children’s Act, making it illegal for parents to spank their children*
    • Towards the end of 2013, FOR SA collected signatures of leaders representing 8 million people in South Africa to keep the current law (allowing for the “reasonable chastisement” of children by their parents) in tact.
    • Submissions in this regard have been prepared by FOR SA but not yet handed in, as the Department of Social Development (DSD) has since advised that efforts to change the law (which would have commenced in June 2014) have been postponed to 2015/16. (For more information, click here)
  • Proposed new hate crimes legislation, including a broadening of the definition of “hate speech”*
    • The Department of Justice & Constitutional Development is currently in the process of finalising the policy framework for new legislation on hate crimes, hate speech and unfair discrimination, which they hope to open up for public debate towards the end of 2015.
    • According to the Deputy Minister, the proposed legislation will be highly contentious because of the hate speech provisions therein, and a fundamental issue will be the balancing of the prohibition on hate speech with the right of free speech.
    • Once the proposed legislation becomes available, FOR SA will make submissions with a view to protecting religious freedom and the autonomy of the Church.

Legal Cases:

Threats of legal cases:

  • S Hydes v Oakfield Farm, Roodepoort*
    • At the beginning of 2015, a homosexual couple threatened to lay a complaint of unfair discrimination on the basis of sexual orientation, against this wedding venue who refused (on grounds of their Christian conscience, religion and belief) to host a same-sex marriage at the venue.
    • The matter was widely publicized in the media, but no formal complaint was laid.
    • (A formal complaint of unfair discrimination on the basis of sexual orientation, was however laid against this venue by a different homosexual couple in 2014. In that case, the Commission for Gender Equality (CGE) ceased its investigation after Oakfield delivered a written response in relation to the complaint).
  • J de Villiers v Rosebank Union Church
    • In March 2015, a homosexual person complained of unfair discrimination on the basis of sexual orientation, after Rosebank Union Church refused to make their chapel available for a same-sex marriage. (read more)
    • The matter was resolved between the parties, and no formal complaint was lodged against the Church.

Successfully finalised:

  • NJ Coulson v S & M Neethling (Bellville Equality Court)*
    • In 2014, a homosexual couple sued the Christian owners of a guesthouse in Wolseley, for unfair discrimination on the basis of sexual orientation.
    • FOR SA, acting as Amicus Curiae, successfully asked the Court to refer the matter for mediation.
    • At mediation in April 2015, the parties concluded a settlement agreement in terms whereof the parties agreed to respect each other’s beliefs. This agreement was made an Order of Court. (For more information, click here)
  • J Vijoen v Sha-Mani (Alberton Equality Court)*
    • In 2014, a homosexual couple sued this wedding venue for unfair discrimination on the basis of sexual orientation. (This is the 2nd time that this wedding venue has been sued by a homosexual couple).
    • In May 2015, the owners of Sha-Mani advised FOR SA that the couple is no longer proceeding with the case against them.


  • Thorne Godinho v Suné Botha (SAHRC)
    • In May 2015, a complaint of hate speech was laid against this Afrikaans Gospel singer, following a comment made by her on her Facebook page that the practice of homosexuality is against God’s will.
    • The matter is currently being investigated by the HRC. (For more information, click here)
  • Ecclesia de Lange v Methodist Church of South Africa (Constitutional Court)*
    • In this instance, De Lange was discontinued as ordained minister of the Methodist Church after she announced her intention to marry her same-sex partner.
    • Having lost her case against the Methodist Church in the High Court, she appealed to the Supreme Court of Appeal (SCA) who found that courts should not get entangled in doctrinal disputes and thus dismissed her appeal.
    • De Lange has now applied to the Constitutional Court for leave to appeal. The application has been set down for hearing on 27 August 2015.
    • Should leave to appeal be granted, FOR SA will probably be joining the proceedings as Amicus Curiae. (For more information, click here)
  • OGOD v Laerskool Randhart & 5 Others (Johannesburg High Court)*
    • A secular group by the name of OGOD, has instituted legal proceedings against six public schools who hold themselves out to be “Christian schools”.
    • The schools delivered their Answering Affidavits in May 2015, and OGOD now has an opportunity to reply thereto. Once both parties have delivered their Heads of Argument (legal arguments that they will make to the Court), the matter will be enrolled for hearing.
    • In the circumstances, the matter will only be ready for hearing in a few months’ time. No Court date has been set for the hearing yet.
    • FOR SA will probably be joining the legal proceedings as Amicus Curiae.
  • Complainants v Church*
    • Towards the end of 2014, an atheist couple laid a complaint against a large church with one of the Chapter 9 institutions, complaining that certain of its biblical doctrines violate the Constitution. (At request of the church, the names of the complainants and church will not be disclosed at this stage).
    • The matter is likely to end up in Court.
  • Adriaan & Hannah Mostert v Joshua Generation Church (SAHRC)*
    • In 2013, an atheist couple laid a complaint with the HRC, complaining that JoshGen’s teaching that the Bible mentions spanking as one of the ways in which to shape a child’s heart (e.g. Proverbs 13:24), violates the rights of children.
    • The HRC investigated the matter, in spite thereof that “reasonable chastisement” is not unlawful in SA.
    • According to reports in the media, the HRC was expected to finalise their report by end of April 2015.
    • To date, no outcome has been received.
  • J Izaaks v J Downs (SAHRC)*
    • The Complainant alleges that the Chairperson of the ACDP breached his right of equality, when she expressed the ACDP’s (and her personal) views with regard to the practice of homosexuality during an e-TV interview on Mr Gay World in 2012.
    • Ms Downs has delivered a written response to the complaint, and is awaiting a response / the outcome from the SAHRC.

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