Update On Recent or Current Religious Freedom Issues and Cases

by Daniela Ellerbeck
3 July 2018

By Adv Nadene Badenhorst, Legal Counsel of FOR SA

*The cases and issues in which FOR SA is / has been involved, are marked with a star (*).


Prevention and Combating of Hate Crimes and Hate Speech Bill*

Following publication of the Bill in October 2016, the Department of Justice received almost 76 000 submissions on the Bill. FOR SA – together with other religious organisations – worked hard to ensure the inclusion of a “religious exemption” clause in the Bill, even meeting with the Deputy Minister of Justice and facilitating a meeting between him and religious leaders to discuss concerns.

While we are grateful that such a clause has now been included in the Bill, the threat to religious freedom remains. At a recent briefing to Parliament, the Deputy Minister said that the exemption would probably only apply to sermons and not to statements made by individual believers. This is particularly concerning as, around the world, “hate speech” laws are increasingly used against Christians for simply professing the Bible and expressing their sincere religious convictions and beliefs (including Christian street preachers, Christians in the marketplace, etc).

The revised Bill is currently in front of the Justice Parliamentary Portfolio Committee, and is likely to be published in the Government Gazette for public comment soon. It is extremely important that believers and religious organisations (again) make comments on this revised Bill!

CRL Rights Commission’s Proposed Regulation of Religion*

The Parliamentary Portfolio Committee on Co-operative Governance and Traditional Affairs (COGTA) recently considered the CRL Rights Commission’s Report on the “Commercialisation” of Religion and Abuse of People’s Belief Systems. This Report proposed the compulsory licensing (by the CRL, as an institution of State) of all religious practitioners and organisations in South Africa.

FOR SA, together with many denominations, churches and faith groups in South Africa, made representations to COGTA to avoid State regulation of religion in South Africa. Thankfully, COGTA rejected the CRL’s recommendations and instead recommended that a National Consultative Conference be convened to give the religious community an opportunity to find solutions by the religious community for the religious community.

It has recently come to our attention that the Parliamentary Portfolio Committee for Justice would like a briefing on the CRL Report, and that such briefing is likely to take place in August 2018. FOR SA will be monitoring developments in this regard and engage with the relevant stakeholders.

Draft Code of Conduct for Religions in South Africa*

In the meanwhile, the SA Council for the Protection and Promotion of Religious Rights and Freedoms (SACRRF) is circulating a second draft of the draft Code of Conduct for Religions in South Africa, as the “responsibility” side of the “religious rights and freedoms” detailed in the SA Charter for Religious Rights and Freedoms which has already been endorsed by most religious groupings, communities and leaders in South Africa.

It is of the utmost importance that religious leaders and communities engage in this process and give input on the Code of Conduct, in the hope to establish a consensus amongst ourselves as to the ethical and other responsibilities (in broad) that underlie our freedoms.

Expropriation of Land issue*

In the last week of June 2018, Parliament’s Constitutional Review Committee commenced country-wide public hearings on government’s proposed land expropriation without compensation. The Committee has received more than 800,000+ comments with regards to the issue and will be expected to produce a report after the public hearings which will continue until August.

FOR SA is closely monitoring this area which clearly has the potential to impact on the religious community, and will inform our constituency of developments and any opportunity for input in this regard.

Civil Union Amendment Bill*

The Civil Union Amendment Bill, proposed by COPE MP Deidre Carter, aims to remove the “conscientious objection” clause in the Civil Union Act, in terms whereof State-employed marriage officers can “opt out” of solemnizing same-sex marriages.  Should the Bill be adopted, State-employed marriage officers will be forced – potentially against their religious convictions and beliefs – to solemnise same-sex marriages. This is a severe violation of their right to freedom of religion, particularly as practical solutions exist to address the problem.

FOR SA made submissions on the Bill, and will continue to engage with relevant stakeholders in this regard. (A copy of FOR SA’s submission on the Bill is available here – go to https://forsa.org.za/document-library/, click on folder “Civil Union Amendment Bill” and file “Civil Union Amendment BillFOR SA Submission”).

Films & Publications Amendment Bill*

In March 2018, the National Assembly approved the Film and Publications Amendment Bill (commonly referred to as the “Internet Censorship Bill”) which seeks to regulate the distribution of online content. The Bill must now come before the National Council of Provinces (NCOP) for approval before it can be sent to the President to be signed into law.

Those in favour of the Bill, argued that it will protect children from sexually explicit material, curb hate speech and revenge porn. But opposition Members of Parliament (MPs) have criticized the legislation as a bid to regulate the internet and as such, unenforceable.

FOR SA made submissions in respect of the “hate speech” provisions in the original draft of the Bill, which we believed to be over-broad and therefore unconstitutional. (In this regard, see https://forsa.org.za/for-sa-raises-concern-about-new-hate-speech-legislation/). The definition was subsequently amended to read as follows: “ ‘hate speech’ includes any speech, gesture, conduct, writing, display, or publication, made using the internet, which is prohibited in terms of section 16(2) of the Constitution of the Republic of South Africa, 1996, which propagates, advocates or communicates words against any person or identifiable group, which words could reasonably be construed to demonstrate a clear intention to be harmful, to incite harm and promote or propagate hatred against the said person or identifiable group”.

Other organisations such as Cause for Justice raised concerns regarding the lowering of the bar, and opening up of space on the internet, to (adult) pornography. These aspects, which have not been addressed in the Bill approved by the National Assembly, remain concerning.

The NCOP SC on Communications and Public Enterprise is set to deliberate on the Bill around the start of / during the third term (August and beyond).

Film & Publications Board Classification Guidelines*

FOR SA also recently made submissions on the Film and Publications Board (FPB) Classification Guidelines, in terms of which all films, games and certain publications are classified prior to distribution and exhibition thereof.  These Guidelines are reviewed every five (5) years, including this year. (For the Guidelines, and FOR SA’s submissions, see www.forsa.org.za/document-library/. Click on folder “Film and Publications Board”).

We understand that the FPB will shortly advise whether or not the new draft Guidelines have been approved. If yes, the Guidelines will be published for public comment by July 2018. 

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

Following their invitation for comments on the draft Basic Education Laws Amendment Bill (the so-called “BELA Bill”), the Department of Basic Education reportedly received 6,000+ 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 home schooling 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)

We understand from the Department that they are currently still working through the 6,000+ submissions received.

Draft Western Cape Commissioner for Children Bill*

The Department of the Premier, Western Cape 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).

We understand from the Department of the Premier that they have now started incorporating the comments into the Bill, and that it is with Legal Services at the moment.

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. At the last meeting of the Department with the Parliamentary Portfolio Committee on Justice (on 7 June 2018), it was decided that the Department should be given the opportunity to consult with the Minister to obtain further instructions, and that the Committee will consult with Parliament’s Legal Committee to determine next steps.

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 by the Department that since the establishment of the CRL Rights Commission the Minister has taken the view to allow the Commission space to provide leadership and direction regarding religious practices. The Department however remains the custodians of the Religion Policy in Education.


Mosterts vs Joshua Generation Church (CGE)

The Commission for Gender Equality (CGE) has this month dismissed the Mosterts’ complaint against Joshua Generation Church, to the effect that the church unfairly discriminates against women and homosexuals. In terms of the CGE’s Report, the “doctrine of entanglement” prevents courts (and by implication, government commissions such as the CGE) to get involved in doctrinal matters. The Mosterts now have 30 days to appeal the CGE’s findings to the CGE Chair.

Gaum & Others vs The Dutch Reformed Church & Others (Pretoria High Court)*

On 21 August, the Pretoria High Court will hear an application to review and set aside the decision of the General Synod of the Dutch Reformed Church (DRC) in November 2016, which effectively reversed the Synod’s earlier decision of 2015.

Although the case concerns the DRC’s decision pertaining to same-sex relationships in particular, it will potentially affect the ability of every denomination, church and religious organisation in South Africa to determine their own doctrine and regulate their own affairs according their interpretation of the holy texts.

FOR SA has joined the newly established Alliance Defending the Autonomy of Churches in South Africa (ADACSA), who has applied for leave to intervene as a “Friend of the Court” with a view to defending the autonomy of churches in the case. (For more information see https://forsa.org.za/new-threat-to-autonomy-of-churches-in-south-africa.)

SAHRC vs Jon Qwelane (Supreme Court of Appeal)

The Johannesburg High Court (sitting as an Equality Court) has granted Jon Qwelane leave to appeal against the Court’s judgment last year, which effectively found him guilty of “hate speech” against homosexuals. Qwelane now has to file his appeal with the Supreme Court of Appeal (SCA) in Bloemfontein by 20 June.

“Spanking Case” Before the Constitutional Court

FOR SA is still awaiting the outcome of its application for leave to appeal to the Constitutional Court, following the judgment by the Johannesburg High Court declaring all forms of physical discipline of children – regardless of how light or well-intentioned – to be illegal. FOR SA believes this judgment to be a severe threat to and limitation of parental rights, as well as a censorship of the Scriptures relating to discipline of children and therefore also a violation of the constitutional right to religious freedom. (For more on FOR SA’s reasons for the appeal, see https://forsa.org.za/application-for-leave-to-appeal-constitutional-court/)

SAHRC vs Oscar Bougardt (Cape Equality Court)

The Cape Town High Court (sitting as Equality Court) has found pastor Bougardt guilty of contempt of court, and sentenced him to thirty (30) days in prison suspended for five (5) years on condition that he does not make further denigrating statements towards gay and lesbian people. (For more information, see https://forsa.org.za/pastor-gets-prison-sentence-for-offensive-remarks-towards-gay-and-lesbian-people/)

Beloftebos Wedding Venue* (CGE, and SAHRC):

In or about August 2017, 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, but has not yet had a response from them.

In March 2018, the CGE advised that they are in the process of finalising their report on the matter. Subsequently, the SAHRC has also launched an investigation – based on exactly the same incident, and legal question – against Beloftebos, which is still underway. 

Olivier v Afrikaanse Protestantse Kerk (Pretoria High Court)

A former pastor of the Afrikaanse Protestantse Kerk (APK) has instituted proceedings against the church in the Pretoria High Court (Equality Court), after he was found guilty by the church on charges of misconduct and dismissed.  The pastor alleges, amongst other things, that he was unfairly discriminated against by the church on grounds of sexual orientation when they terminated his services, and also that the church made itself guilty of an unfair labour practice by “continuously discriminating against gay ministers which is systemic in nature”.

The case is opposed by the church, who has filed opposing papers.

SAHRC vs Gretha Wiid (SAHRC)

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”.

We understand from Wiid’s legal representatives that they are currently engaged in settlement negotiations with the SAHRC.

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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