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 (*).

POLICIES & BILLS

Prevention and Combating of Hate Crimes and Hate Speech Bill*

On 28 August, the Parliamentary Portfolio Committee for Justice published the latest version of the Bill for public comment. The call for comment was withdrawn shortly thereafter however. It is anticipated that the Bill could be published for comment quite soon again.

 Films & Publications Amendment Bill*

On 12 September, FOR SA appeared before the Parliamentary Select Committee on Communications and Public Enterprises to make submissions on the Bill, and more particularly on the “hate speech” provisions in the Bill which we believe to be over-broad and therefore unconstitutional. 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.

Film & Publications Board Classification Guidelines*

FOR SA 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. The new draft Guidelines have now been gazetted and are open for public comment until 24 October 2018 with public hearings to follow. (A copy of the new draft Guidelines are available at www.forsa.org.za/document-library in folder “Film and Publication Board”, “Latest – Classification Guidelines – dated Aug2018”.)

Children’s Third Amendment Bill*

FOR SA recently made submissions on the Department of Social Development’s draft Children’s Third Amendment Bill, which proposes the removal of the common law defence of reasonable and moderate chastisement from South African law. As a result, any form of physical discipline by parents of their children – regardless of how light or well-intentioned – will be regarded as assault, potentially with criminal consequences for the parents.

CRL Rights Commission’s proposed regulation of religion*

The CRL has advised that they are pressing forward with the proposed regulation of religion, including an application to the Constitutional Court in due course. The Commission also advised that they will be convening a National Consultative Conference for religious leaders at the end of the year, which will include the proposing of a Code of Ethics for adoption by the Conference. FOR SA will continue to engage with relevant stakeholders to avert (State) regulation of religion in South Africa.

Draft Code of Conduct for Religion in South Africa*

In the meanwhile, the SA Council for the Protection and Promotion of Religious Rights and Freedoms (SACRRF) is processing comments received on 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.

Civil Union Amendment Bill*

The Civil Union Amendment Bill, which will compel State-employed marriage officers to – potentially against their conscience, religion and belief – solemnize same-sex marriages, seems to be at an advanced stage. The Bill, proposed by COPE MP Deirdre Carter, apparently enjoys overwhelming support before the Parliamentary Committee on Home Affairs. FOR SA will continue to monitor developments relating to this Bill.

National Health Amendment Bill (“End of Life Bill”)*

FOR SA recently made submissions on the above Bill, proposed by COPE MP Deirdre Carter. The Bill provides that a person may appoint an agent with durable power of attorney, and also draw up a living will to cater for the event of that person no longer being able to express their refusal for any future potentially life-sustaining medical treatment or procedure. FOR SA’s concern is that the Bill does not cater for the situation where the treating doctor has a conscientious objection to giving effect to such living will. To this end, we have recommended the insertion of a clause to protect doctors in such instances. FOR SA will continue to monitor developments relating to this Bill.

Draft Learner Pregnancy Policy*

FOR SA recently made submissions on the Department of Basic Education’s Draft National Policy on the Prevention and Management of Learner Pregnancy In Schools, which includes Comprehensive Sexuality Education (CSE) as a key component of the Policy. Internationally, CSE has proven itself as a highly explicit programme aimed at teaching children how to have sex, and it has not been successful in reducing teenage pregnancy. FOR SA will continue to engage with the Department in this regard, and in particular to advocate that parents should be able to “opt out” and withdraw their children from being taught CSE in school.

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.  In our submission, FOR SA raised concerns regarding 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 by the SGB.  This is simply unworkable and will directly infringe on the ability of churches  – many of whom do not have their own buildings and therefore 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 – http://forsa.org.za/for-sas-submissions-on-the-bela-bill). We understand from the Department that they are currently working through the 6,000+ submissions received.

Draft Western Cape Commissioner for Children Bill*

The revised draft Western Cape Commissioner for Children Bill will establish a Commissioner for Children to protect and promote the interests of children in the Western Cape.  The Department of the Premier will be holding public hearings in relation to the Bill. FOR SA again made comments on the revised Bill, highlighting our concern 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.

The Cybercrimes and Cybersecurity Bill*

FOR SA made comments on the above Bill which contains broad provisions that could potentially be used to curb freedom of (religious) expression. We understand that 40 submissions to the Bill were received, but that there has been no further movement on the Bill since the last Parliamentary Portfolio Committee meeting on 7 June 2018.

LEGAL CASES

“Spanking case” (Constitutional Court)*

On 29 November 2018, the Constitutional Court will hear FOR SA’s application for leave to appeal against the judgment by the Johannesburg High Court in October 2017, 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 a violation of the constitutional right to religious freedom. (For more on FOR SA’s reasons for the appeal, see http://forsa.org.za/application-for-leave-to-appeal-constitutional-court/)

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

On 21 August, the Pretoria High Court heard 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 pertaining to same-sex relationships in the Church. 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. As such, FOR SA joined the Alliance Defending the Autonomy of Churches in South Africa (ADACSA), who was admitted as a “Friend of the Court” with a view to defending the autonomy of churches in the case. Judgment has been reserved.

SAHRC vs Jon Qwelane (Supreme Court of Appeal)

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

Beloftebos wedding venue* (CGE, and SAHRC):

The Beloftebos Wedding Venue, Stanford came under fire in August 2017 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), who initially investigated the matter of own accord, has now advised that they – together with the South African Human Rights Commission (SAHRC) – consider this to be a “perfect test case” to be referred to the Courts for determination. The CGE is currently awaiting the CRL Rights Commission’s attitude in this regard.

R.E. Wilson vs African Enterprise & Theuns Pauw (Grahamstown Equality Court)*

An unfair discrimination case has been opened up in the Grahamstown Equality Court against African Enterprise (AE) and their director Theuns Pauw, following a recent sermon delivered by Pauw at St Andrew’s College in Grahamstown and wherein he touched on issues of divorce and human sexuality. The SAHRC has indicated that it acts as the attorneys for the Complainant.

SAHRC vs Gretha Wiid (SAHRC)

A settlement agreement has been concluded between the South African Human Rights Commission (SAHRC) and Christian author Gretha Wiid, following 63+ complaints that certain passages in Wiid’s books amounted to unfair discrimination on grounds of sexual orientation. In terms of the settlement agreement, Wiid agreed inter alia to amend all future editions of the books; to not ever again write any texts to children that suggest that homosexuality is “a result of sexual abuse or parental neglect, a practice that should be eschewed, or depraved and worthy of censure”; and not to raise the subject of homosexuality at any future workshops. (A copy of the signed settlement agreement is available at https://www.sahrc.org.za/home/21/files/Gretha%20Wiid%20SAHRC%20Conciliation%20Agreement%2018%20July%202018.pdf).

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 contested by the church, which has filed opposing papers.

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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