Update on Recent or Current Religious Freedom Issues and Cases

by FOR SA
6 December 2022

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

POLICIES & BILLS

Basic Education Laws Amendment (BELA) Bill*
Parliament’s Basic Education Portfolio Committee opened the Bill for public comment until 15 June 2022. The Committee held public hearings throughout November 2022.  (While FOR SA engaged with the Bill when it was still in front of the Department of Basic Education, we did not participate in Parliament’s call for comments, due to the Bill no longer posing identifiable religious freedom threats).

Children’s Amendment Bill*
The Bill has been adopted by both the National Assembly’s Social Development Portfolio Committee and the National Council of Province’s Select Committee on Health and Social Services. The Select Committee suggested certain technical amendments that were adopted by the Portfolio Committee on 30 November 2022. All that remains now is for the National Assembly to consider the Bill, which it is scheduled to do on 6 December 2022. (Note, the initial Bill aimed to make any form of physical discipline by a parent – no matter how light or well-intentioned – illegal and potentially subject to criminal prosecution for assaulting a child, to which there will be no defence in law. Following submissions by FOR SA and others, the Department removed the clauses proposing the criminalisation of physical correction in the home. It is this Bill that Parliament has considered. However, following the Constitutional Court’s ruling on 18 September 2019 that outlawed any form of physical discipline by parents, various organisations proposed substantive additions to the Bill that specifically deal with this issue. However, the last version of the Bill that was public did not incorporate any of changes.)

Department of Home Affairs’ Marriage Policy*
The Department of Home Affairs (DHA) has published its new policy on marriage, the White Paper on Marriages in South Africa. This policy contains the DHA’s recommendations regarding the positions that should be adopted in a future single marriage law that will govern all marriages entered into in South Africa. (See this article for more information.) The Department aims to follow the policy with a draft Bill. FOR SA will follow the process closely and, as soon as this Bill opens for public comment, will notify the public should there be any religious freedom concerns. From a religious freedom point of view, FOR SA made submissions on the draft version of the policy to ensure that the religious freedom of religious marriage officers, and the organisations to which they belong, remain protected – specifically to only conduct marriages that conform to their, and/or their religious organisation’s religious doctrines and beliefs.  This right has been respected and protected in the White Paper.

Draft National Health Act Amendment Regulations, 2022*
The Department of Health gazetted its Draft Amendment Regulations relating to the surveillance and the control of notifiable medical conditions for public comment until 5 August 2022. See this video for the reasons why FOR SA viewed the proposed Draft Amendments to the Regulations as a severe threat to religious freedom. FOR SA ran a public participation campaign on the DEAR SA platform which saw over 325 000 public submissions made. The Draft Amendments seem to have been put on hold indefinitely, with South African society having returned to pre-pandemic normality since the second half of the year.

Expropriation Bill*
The Department of Public Works and Infrastructure tabled the Expropriation Bill in Parliament on 15 October 2020. Parliament’s National Assembly’s Portfolio Committee on Public Works and Infrastructure opened the Bill for public comment until 28 February 2021. The Committee thereafter held public hearings, which were concluded on 7 September 2021. Parliament’s first house, the National Assembly passed the Bill on 28 September 2022. The Bill will now go to Parliament’s second house, the National Council of Provinces (NCOP). (From a religious freedom point of view, FOR SA made submissions focusing solely on the potential expropriation of church land / land used for religious purposes.)

Films & Publications Amendment Regulations, 2022*
The Minister of Communications and Digital Technologies gazetted the amended regulations to the Films & Publications Act on 2 September 2022. (The Department first published the draft version of the regulations, follow the Films and Publications Amendment Act, 2019 which came into operation on 1 March 2022, for public comment until 12 October 2020.) To understand what the updated regulations mean for religious organisations, read this article. (FOR SA made submissions on the Regulations, and continually engaged with the Films and Publications Board (“FPB”), to limit any potential impact of the regulations on religious content and its content distribution (including via the internet) by religious organisations. For an in-depth interview with the FPB, see this interview.)

Learner Pregnancy Policy*
The Department of Basic Education’s policy was gazetted on 3 December 2021 after Cabinet approved it at the end of September 2021. The Department will proceed with national roll-out, the plan of which includes a provincial advocacy drive to finalise the Department’s Implementation Plan. (From a religious freedom point of view, FOR SA made submissions on the draft version of the Policy, to oppose the inclusion of CSE, which has proven itself worldwide to be a highly explicit programme aimed at sexualising children rather than teaching them about sex.)

PEPUDA Amendment Bill*
The Department of Justice and Constitutional Development published proposed amendments to the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (“PEPUDA”) for public comment until the extended date of 30 June 2021. The Department engaged with stakeholders who had made substantive comments (of which FOR SA was one) during October 2022. FOR SA was allowed to make a further submission to the Department, who has said that it is not the Department’s intention that the Bill interfere with religious autonomy or doctrinal interpretation and that the Department will consider potentially include specific clauses to protect the right to religious freedom in a future draft of this Bill. (From a religious freedom perspective, FOR SA made submissions on the radical and detrimental impact that the Bill would have on the right of people and organisations of faith to freely share, and live out, their religious beliefs.)

Prevention and Combating of Hate Crimes and Hate Speech Bill*
Parliament’s Justice and Correctional Services Portfolio Committee held three (3) days of public hearings on the Bill in March and May 2022 and has been considering the Bill as a Committee from September 2022. (To see FOR SA’s oral submission on the Bill during the public hearings see this video.) The first version of the Bill was first opened for comment by the Department of Justice and Constitutional Development back in 2017. Due to the large-scale public engagement by the religious community, the Department wrote in a religious exemption clause. The Department thereafter tabled the Bill in Parliament on 13 April 2018. Parliament’s Justice and Correctional Services Portfolio Committee then asked for public comments until 15 February 2018. Thereafter the Bill was put on hold (lapsed and was revived) while the Committee awaited the Constitutional Court’s judgment in the Qwelane matter.  (Judgment was finally handed down on 30 July 2021). Following the judgment, the Committee re-opened an unaltered version of the Bill for public comment until 1 October 2021. FOR SA made lengthy legal submissions on the Bill, arguing for a strengthening of the religious exemption clause. The submission points out various problems with the Bill, such as the chilling effect of the Bill’s wide definition of, and criminalisation of, hate speech would have on both the right to religious freedom (section 15 of the Constitution) and the right to freedom of expression (section 16 of the Constitution).

South African Law Reform Commission (SALRC): Issue Paper 32: The Right to Know One’s Biological Origins*
This Paper asks the question whether SA law should be amended so as to provide for compulsory disclosure of information to a child regarding his/her conception. The SALRC has advised that there have been no further developments on this issue paper, and it is uncertain when further progress will be made on it. (From a religious freedom point of view, FOR SA raised concerns regarding the mandatory disclosure of information which could violate the best interest of the child principle). The SALRC advised that they would be able to give a status update during August 2021.

South African Law Reform Commission (SALRC): Discussion Paper 152: Single Marriage Statute*
In South Africa currently, there is no single law governing the solemnisation and registration of marriages. Instead, there are various pieces of legislation governing different civil marriages, civil unions, customary marriages, etc. The SALRC’s discussion paper investigated the possible adoption of a single marriage law for South Africa governing all types of marriages. The paper opened for public comment until 17 May 2021, and contained the SALRC’s preliminary proposals – including two draft Bills. The SALRC submitted a report to the Minister of Justice in November 2022 for referral to the Minister of Home Affairs. (FOR SA made submissions on the Discussion Paper, particularly to ensure that the religious rights of religious marriage officers, and the organisations to which they belong, to only solemnise marriages that conform to their religious convictions and beliefs, remain protected.)

Victim Support Services Bill, 2020
The Department of Social Development opened the Victim Support Services Bill, 2020 for public comment until 7 October 2020. The Department has screened and considered all the comments received from public consultation. The State Law Advisors gave their input on the Bill, which is currently being debated at the National Economic Development and Labour Council (NEDLAC), whereafter it will be prepared for the Cabinet. Only thereafter will it be tabled in Parliament. No timeline can be given for tabling in Parliament. The Bill seeks to ensure that the rights of victims of violent crime are respected and protected by service providers dealing with (including religious organisations and workers providing “spiritual services” to) such victims. (FOR SA has made submissions on the Bill, which includes very broad and intrusive provisions that unduly limit the constitutional rights of religious organisations and workers, and put a massive administrative, financial and practical burden upon these organisations and workers.)

Western Cape Guidelines on Sexual Orientation and Gender Identity*
The Western Cape Department of Education (WCED) published its draft Guidelines for public input and comment by 19 June 2020. The WCED has advised that the Guidelines are now on hold with the Provincial Minister (who has the sole discretion on when to sign it so that it can be rolled out into schools) pending the finalisation of the National Department’s SOGI Guidelines. (From a religious freedom point of view, FOR SA made submissions on the potential impact of the Guidelines on the freedom of conscience, religion and belief of teachers and other learners, and also pointed out the equality, privacy and safety concerns arising from the Guidelines).

LEGAL CASES

In re Dr Jacques de Vos (HPCSA)
Dr Jacques de Vos, a former military hospital doctor, was subjected to a disciplinary enquiry by the Health Professions Council of South Africa (HPCSA), which accused him of unprofessional conduct for advising a patient that her 19-week-old unborn baby who she wanted to kill, is a human being. The HPCSA withdrew its case, but without delivering a verdict, even though Dr de Vos already had pleaded not guilty and had filed expert evidence supporting his position in medical science. Dr de Vos was barred from practising medicine from July 2017 until April 2022, due to the HPCSA’s case against him. The HPCSA granted Dr de Vos a Medical Practitioner number after nearly five years of delay. This means he can now proceed with his community service.

Mthembu v Christian Life Private School (Johannesburg High Court, Equality Court)*
The parents of a 9-year old Zulu boy instituted legal proceedings against an independent Christian school in Johannesburg, after the school – based on its Biblical convictions and beliefs – refused to allow the child to wear an isiphandla (a traditional bracelet signifying a connection with the ancestors) at school. The parents allege that the school’s refusal amounts to unfair discrimination based on culture and, amongst other things, is asking for R300,000-00 damages for the impairment of their and their child’s dignity and emotional pain and suffering. FOR SA has been admitted as an amicus curiae (“friend of the court”) in the matter, which was heard in July 2022. During the court hearing, the parties agreed to resolve the matter by mediation. The court postponed the hearing without a date, to allow the parties to pursue mediation.

SAHRC vs Beloftebos (Cape High Court, Equality Court)*
In March 2020, the South African Human Rights Commission (SAHRC) instituted legal proceedings against Beloftebos, a Christian-owned wedding venue near Stanford, in the Cape Town High Court (sitting as an Equality Court). The SAHRC accuses Beloftebos of unfair discrimination on grounds of sexual orientation after the venue refused – on grounds of the owners’ religious conviction that marriage is between a man and a woman – to host and be actively involved in celebrating a same-sex wedding at the venue, back in 2017. Beloftebos has filed opposing papers, and also instituted a counter-application against the SAHRC for the bias and hostility with which they have acted against Beloftebos. The SAHRC, the Commission for Gender Equality (CGE) and the Minister of Justice and Constitutional Development are opposing Beloftebos’ counter-application. The Women’s Legal Centre has indicated that they have applied to be a “friend of the court”. The matter is currently still pending.

Heekes & Watling v Beloftebos (Cape High Court, Equality Court)*
In the meanwhile, a second same-sex couple filed an application to intervene in the SAHRC’s case against Beloftebos. The couple is asking, amongst other things, that Beloftebos be ordered to pay R2 million in damages for refusing to host their same-sex wedding. Importantly, they are also asking the Court for a broad order, declaring that “the expression of religious beliefs as a basis on which to refuse to associate with or conduct business with a same-sex couple, constitutes hate speech and/or discrimination” in terms of the Equality Act.  The matter is currently still pending.

State v Timothy Omotoso (Gqeberha High Court)
The ongoing trial against pastor Timothy Omotoso (who stands accused on numerous charges of sexual assault and human trafficking) continues, with the latest development being that Omoto’s legal team have filed papers with the Supreme Court of Appeal regarding the removal of the judge hearing Omoto’s case in the High Court.

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