Update On Other Religious Freedom Issues / Cases

by Daniela Ellerbeck
29 November 2017

By Adv Nadene Badenhorst, Legal Counsel of FOR SA


Draft Basic Education Laws Amendment Bill (so-called “BELA Bill”)

Following their recent invitation for comments on the draft Basic Education Laws Amendment Bill (the so-called “BELA Bill”), the Department of Basic Education reportedly received 100,000+ submissions from the public and various organisations (including FOR SA) in relation to the Bill.

This Bill radically increases the power of the State (with regard to appointments to senior posts, financial control / procurement, admission and language policy, etc) in schools, and radically diminishes the power of School Governing Bodies (SGBs). Likewise, the Bill radically increases the power of the State with regard to homeschooling, and takes choice away from parents.

In our submission, FOR SA raised concerns regarding the Bill’s impact on religious freedom and parental rights. In particular also, we pointed out that the proposal that all lease agreements between schools and third parties for the hiring of the school’s property / facilities (e.g. by a church, for use of the school hall on a Sunday morning) in future be approved by the provincial government, rather than the SGB itself, is simply unworkable and will directly infringe on the ability of churches  – many of whom do not have their own buildings, and meet in school halls – to gather and exercise their right to freedom of religion / association. (A copy of FOR SA’s submission can be viewed here – https://forsa.org.za/for-sas-submissions-on-the-bela-bill/)

FOR SA attended a briefing with regard to the Bill by the Department of Basic Education at Parliament on Tuesday, 28 November 2017. The outcome of the briefing was that the deadline for comments on the Bill, was extended to 10 January 2018. To read more about the briefing, see https://forsa.org.za/parliamentary-briefing-and-update-on-the-bela-bill/

Films and Publications Bill

The Parliamentary Portfolio Committee on Communications has now adopted the Films and Publications Amendment Bill which, amongst other things, proposes to legalise online distribution of pornography in South Africa. A specific proposed amendment will also enable broadcasters to broadcast pornography via satellite television. (Up to now, pornography could only be distributed legally within a building licensed as an adult premises).  The Bill will now make its way to the National Assembly, and thereafter to the National Council of Provinces (NCOP), for adoption.

While the issue of pornography does not fall within the mandate of FOR SA (which is to protect and promote religious freedom), FOR SA did make submissions with regard to the proposed definition of “hate speech” in the Bill which, if it were to remain, could have a major chilling effect on religious freedom and free speech. (For FOR SA’s submissions, see https://forsa.org.za/for-sa-raises-concern-about-new-hate-speech-legislation/).

Draft Western Cape Commissioner for Children Bill

 The Department of the Premier, Western Cape has invited comments on the draft Western Cape Commissioner for Children Bill, which establishes a Commissioner for Children to protect and promote the interests of children in the Western Cape.  (A copy of the Bill can be viewed here – https://www.westerncape.gov.za/assets/departments/premier/7825_extra-commissioner-children.pdf).

While we accept that the Bill is a bona fide attempt to protect children, we are concerned that the Bill may have some unintended consequences and override, or severely limit, the rights and responsibilities of parents to raise their children in accordance with their religious, moral or philosophical convictions and beliefs. In the circumstances, FOR SA made written submissions to the Department, setting out our concerns and recommendations. (A copy of FOR SA’s submission can be viewed in the “MISCELLANEOUS” folder at https://forsa.org.za/document-library/).

The Cybercrimes and Cybersecurity Bill

The Parliamentary Portfolio Committee on Justice and Correctional Services invited comments on the Cybercrimes and Cybersecurity Bill. (The Bill can be viewed here – https://www.justice.gov.za/legislation/bills/CyberCrimesBill2017.pdf)

As the Bill contains broad provisions that could potentially be used to curb freedom of (religious) expression, FOR SA made written and verbal submissions on the Bill. (FOR SA’s written submissions can be viewed in the “MISCELLANEOUS” folder at https://forsa.org.za/document-library/).

We understand that 40 submissions to the Bill were received, and that the Department of Justice is currently in the process of considering these submissions.

Guidelines on Rights and Responsibilities for Religious Conduct in Learning Environments

In May 2014, the Department of Basic Education commenced a consultative process regarding the increase of harmful religious practices infiltrating our schools. The meeting agreed that there should be a consensus regarding the Departmental response; that a Charter on rights and responsibilities for religious conduct in learning environments be formulated; and that a strategy for community mobilisation should be developed to implement the outcomes.  A Task Team was established to take the process forward.

Having met with the Department in May 2017 when the draft Charter first came our attention, the Department invited FOR SA to join the Task Team and assist in the drafting of the Charter (which has since taken on the form of “Guidelines”, rather than a “Charter”).

We have been advised that the Guidelines are currently subject to internal processes (approval by Senior Management, Head of Departments and thereafter, Council for Education Ministers approval) before it will be made public.


Dagga case:

On Tuesday 7 November, 10 Constitutional Court judges heard argument by various parties on whether or not to confirm the Western Cape High Court judgement delivered in April this year, which declared that dagga may be cultivated and used at home. (For more information, see https://gatewaynews.co.za/constitutional-court-hears-arguments-on-right-to-use-dagga-at-home/.)

This case had been brought by the well-known Rastafarian Gareth Prince (and others) who last unsuccessfully challenged the prohibition of dagga in the constitutional Court in 2002, on the ground of religious freedom.  In the circumstances, the present case does not again deal with the alleged infringement on the right to religious freedom and instead focuses on the alleged infringement on the right to privacy, which was not considered by the Constitutional Court in the earlier Prince case. (See also https://forsa.org.za/prince-vs-minister-of-justice-and-others-cape-high-court/)

Beloftebos wedding vene:

In or about August, Beloftebos Wedding Venue, Stanford came under fire for refusing, on grounds of conscience and religious belief, to host a same-sex wedding ceremony at the venue.  The Commission for Gender Equality (CGE) subsequently, of own accord and not because a complaint was laid with the Commission, issued Beloftebos with a list of questions with regard to the incident, to which Beloftebos has responded.

Beloftebos has also referred the matter to the CRL Rights Commission for intervention.

SAHRC vs Gretha Wiid:

Following receipt of 63+ complaints, the South African Human Rights Commission (SAHRC) delivered a letter on well-known Christian author and evangelist Gretha Wiid, inviting her response to certain allegations of unfair discrimination and “hate speech” against LGBT people, emanating from her books “Lyfslim vir Meisies” en “Lyfslim vir Seuns”. The letter invited her response, amongst other things, on the question of whether people are “born gay”; whether people can change their sexual orientation; and the appropriateness or otherwise of “gay conversion therapy”.

Following Gretha’s response to the SAHRC, the SAHRC sent further questions to Gretha for response.

Gaum & Others vs The Dutch Reformed Church & Others:

Legal proceedings have been instituted in the Pretoria High Court to review and set aside the decision of the General Synod of the Dutch Reformed Church (DRC) in November 2016 to reverse their earlier decision of October 2015 (allowing pastors of the DRC to solemnise same-sex civil unions).

The applicants, who are members or allies of the LGBT community, claim that the 2016 decision is procedurally flawed (and therefore reviewable) because the Church failed to comply with certain procedural provisions in the Church Order, the Promotion of Administrative Justice Act (PAJA) and/or the Constitution itself. Significantly, the applicants claim that that 2016 decision should be set aside, because it amounts to unfair discrimination against LGBT people; diminishes the dignity of members of the LGBT community; “deprives them of the opportunity to celebrate the most important event of most individuals’ lives in their own church” and, as such, is also unconstitutional.

There is currently, with a view to following a “less confrontational” process, a proposal on the table for the matter to be referred to arbitration (outside of court) instead.  (For more info, see https://kerkbode.christians.co.za/2017/11/02/hofsaak-lidmate-stel-arbitrasie-voor/)

SAHRC vs Jon Qwelane

Jon Qwelane has applied for leave to appeal against the judgment by the Johannesburg High Court (sitting as an Equality Court), effectively finding him guilty of “hate speech” against homosexuals.  (For more information, see https://forsa.org.za/possible-appeal-against-qwelane-judgment/)

We understand that the Judge who delivered the judgment, is on leave until January 2018 and that the application for leave to appeal will only be heard upon his return.

Having obtained a BA LLB degree from the University of Stellenbosch, Nadene was awarded a scholarship to study a LL M degree in International Human Rights Law at the University of Essex, United Kingdom which she obtained cum laude.

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