Update on Recent or Current Religious Freedom Issues and Cases

by Daniela Ellerbeck
12 December 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*

The Parliamentary Portfolio Committee on Justice has invited comments on the revised draft of the PREVENTION AND COMBATING OF HATE CRIMES AND HATE SPEECH BILL (“the Bill”). Written submissions can be emailed to the Committee Secretary, Mr Vhonani Ramaano ([email protected]parliament.gov.za), and must be received by 15 February 2019.

Children’s Third Amendment Bill*

The deadline for comments on the (revised) Children’s Third Amendment Bill was on 29 November 2018. Amongst other things, the Bill proposes that any form of physical correction in the home should be unlawful. FOR SA has made submissions on the Bill to the Department of Social Development, who is now tasked with considering all the submissions made.

Cybercrimes and Cybersecurity Bill*

The controversial Cybercrimes and Cybersecurity Bill was adopted by the National Assembly on 27 November 2018. FOR SA made comments on the Bill which contains broad provisions on “malicious communications” that could potentially be used to curb freedom of (religious) expression.

Civil Union Amendment Bill*

On 6 December 2018, the National Assembly adopted the Civil Union Amendment Bill. As a result, State-employed marriage officers no longer have the right to, for reasons of conscience or belief, “opt out” of solemnising same-sex marriages. FOR SA made submissions on the Bill to COPE MP Deidre Carer who initially proposed the Bill as a Private Member’s Bill, and to the Parliamentary Portfolio Committee on Home Affairs. The Bill will now be referred to the National Council of Provinces (NCOP) for consideration.

Films & Publications Amendment Bill*

On 5 December 2018, the National Assembly adopted the Films & Publications Bill which includes certain broad provisions on“hate speech”. FOR SA made submissions on the Bill to the Parliamentary Portfolio Committee on Communications, and the Select Committee of the NCOP.

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 FPB has advised that public consultations closed on 30 November 2018, and that they are currently consolidating the inputs received.

Draft Western Cape Commissioner for Children Bill*

The Department of the Premier is currently in the process of collating all the submissions on the revised draft Western Cape Commissioner for Children Bill into one document, for consideration by the provincial legal advisors who will sit in the first week of February 2019. The Bill seeks to establish a Commissioner for Children to protect and promote the interests of children in the Western Cape. FOR SA made (written and verbal) 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.

CRL Rights Commission’s proposed regulation of religion*

The CRL has advised that they are pressing forward with the proposed regulation of religion, including a possible application to the Constitutional Court in due course. The Commission also announced the convening of a national summit of religious and church leaders on 13 February 2019, 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*

The SA Council for the Protection and Promotion of Religious Rights and Freedoms (SACRRF) has been working on a 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. As the process for finding solutions to the problems in the religious sector has now been handed over to the National Religious Leaders Forum (NRLF) under pastor Ray McCauley, the SACRRF has handed over the draft Code to him for their consideration and further process.

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

FOR SA recently made submissions on the above Bill, proposed by COPE MP Deidre 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. According to Ms Carter’s office, they are currently still working through the submissions received and have not yet tabled the Bill with the Portfolio Committee.

Draft Learner Pregnancy Policy*

FOR SA 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.  We understand from the Department that they are currently working through the 6,000+ submissions received and will inform the public if there is any change in the status of the Bill.


FOR SA vs Minister of Justice & Others (Constitutional Court)*

On 29 November 2018, the Constitutional Court heard 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. Judgment has been reserved and may take a few months to come out.

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. 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. The Judge’s Clerk has advised that judgment will be handed down in the first term of 2019.

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. 

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

The unfair discrimination case against African Enterprise (AE) and their director Theuns Pauw, is still pending. The case arises out of a sermon delivered by Pauw at St Andrew’s College in Grahamstown and wherein he touched on issues of divorce and human sexuality. AE’s legal representatives are engaging with the SAHRC, acting for the complainant, in the hope to resolve the matter outside of court.

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.

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 long since filed opposing papers with no further action from the complainant.

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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