By FOR SA
* 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*
The Department of Basic Education (DBE) has advised that there were meetings with the Minister to discuss the latest amendments to the Bill. Further meetings with stakeholders are in the pipeline. A decision on whether the Bill will be published for comment, will be taken at a later stage. (From a religious freedom point of view, 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).
Children’s Amendment Bill*
The Secretary of the Parliamentary Portfolio Committee on Social Development has advised that the Bill has not yet been referred to the Committee. The initial Bill drafted by the Department of Social Development (DSD) 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 will be presented before Parliament. However, following the Constitutional Court’s ruling on 18 September 2019 that outlawed any form of physical discipline by parents, it is expected that the Bill will undergo substantive changes during the Parliamentary process.
Civil Union Amendment Bill*
This Bill was adopted by the National Assembly last year, but has now been sent to the National Council of Provinces (NCOP) (the second house of Parliament) to pass the Bill before the President signs it into law. In terms of the Bill, State-employed marriage officers will no longer have the right, for reasons of conscience or belief, to “opt out” of solemnising same-sex marriages. The NCOP opened the Bill for public comment for 18 days until 29 November 2019, but after FOR SA requested an extension to allow wider public participation, extension was granted to Friday, 6 December 2019.
Comprehensive Sexuality Education (CSE)*
FOR SA has been actively engaged in discussions both with Parliament and the Department of Education (DBE) regarding the proposed implementation of CSE in our schools. After much public pressure, including from FOR SA, the DBE released the CSE content on their website. Most recently, FOR SA wrote an open letter to the DBE to demand that parents have the right to “opt out” of a particular lesson plan, should they not want their children to be exposed thereto; and that the possibility of schools and provinces as a whole choosing an alternative curriculum be considered. We are yet to receive a formal reply from the Department regarding any of our communication.
CRL Rights Commission’s proposed regulation of religion*
During a recent media interview, the new CRL Chair made it clear that the CRL remains intent on pushing for compulsory licencing of all religious practitioners. In the meanwhile, the Steering Committee of the Religious Leaders Summit is making arrangements for a follow-up Summit to take place within the second quarter of 2020. The CEO of the CRL, Mr Edward Mafadza, stated that there has been NO input from the religious community of South Africa to propose alternative solutions to those presented by the CRL in its report on the Commercialisation of Religion and Abuse of People’s Belief Systems (the Report). As such, the only solutions currently before parliament are those proposed by the CRL, which effectively amount to State regulation of religion.
FOR SA has developed alternative proposals which address the problems identified by the CRL in their Report, which require no further legislation and which allow the religious community to remain truly self-regulatory. FOR SA is urging the religious community to give proper attention to this matter and to FORMALLY submit alternative solutions to those proposed by the CRL.
This Bill was adopted by the National Assembly last year and sent to the National Council of Provinces (NCOP) (the second house of Parliament) to pass the Bill before the President signs it into law. FOR SA made oral presentations to the NCOP on 13 November 2019. (From a religious freedom point of view, 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.)
Learner Pregnancy Policy*
The Department of Basic Education (DBE) has advised that due to some internal processes the revised draft Policy on Learner Pregnancy (which includes Comprehensive Sexuality Education (CSE) as a key component) was still to be finalised and thereafter submitted to Cabinet for final ratification. (From a religious freedom point of view, FOR SA made submissions on the inclusion of CSE which has proven itself worldwide to be a highly explicit programmes aimed at sexualising children rather than teaching them about sex.)
National Health Amendment Bill (“End of Life Bill”)*
We have been advised by COPE that this Bill (originally introduced as a Private Member’s Bill by Deidre Carter MP), which provides for “living wills” refusing any future potentially life-sustaining medical treatment or procedure, has not been tabled again for discussion in Parliament or the relevant committee. It is still where it was at end of last year, namely at the end of the submission period – no further progress has been made. (From a religious freedom point of view, FOR SA proposed that the Bill be amended to protect doctors who have a conscientious objection to giving effect to a “living will”).
Prevention and Combating of Hate Crimes and Hate Speech Bill*
The Bill lapsed with the election of the new Parliament. On 29 October 2019, the new National Assembly adopted a resolution “reviving” the Bill, allowing the new Parliament’s Portfolio Committee on Justice and Constitutional Development to continue work on the Bill. The Secretary of the Committee has advised that the Committee is yet to discuss the Bill and has not yet resumed its work on the Bill.
Proposed amalgamation of Chapter 9 institutions
FOR SA has been advised that the final report containing the recommendations in this regard, is as yet not in the public domain. The Speaker will decide on how best to take the matters forward. For now, it seems that amalgamation will not be considered.
Proposed policy on marriage in SA
The Department of Home Affairs (DHA) is in the initial stages of developing a new policy on marriage in South Africa. This policy will set the platform for the possible adoption of a single “Marriage Act”, governing all marriages entered into in South Africa. FOR SA has participated in various public dialogues that the DHA has had with the religious and academic communities. (From a religious freedom point of view, FOR SA has raised with the Department the increasing pressure experienced by religious marriage officers – many of whom believe that, according to Scripture, marriage is the permanent union of one man and one woman – to solemnise same-sex marriages. Many of them have already expressed the sentiment that, should they be forced by law to do so, they would rather hand in their marriage licence than to act against their religious convictions and beliefs.)
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 they hope to resume research and consultations in this year still, with a view to drafting a discussion paper that can be considered and approved for publication by the Commission which may only be sometime in 2020 at the earliest. (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).
South African Law Reform Commission (SALRC): Issue Paper 35: 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 is thus recommending a single marriage law governing all types of marriages. The issue paper is available at https://www.justice.gov.za/salrc/ipapers.htm (From a religious freedom point of view, FOR SA raised concerns regarding the increasing pressure experienced by religious marriage officers – many of whom believe that, according to Scripture, marriage is the permanent union of one man and one woman – to solemnise same-sex marriages. Many of them have already expressed the sentiment that, should they be forced by law to do so, they would rather hand in their marriage licence than to act against their religious convictions and beliefs.)
FOR SA vs Minister of Justice & Others (Constitutional Court)*
On 18 September 2019, the Constitutional Court declared that the common law defence of reasonable and moderate parental chastisement is inconsistent with the provisions of sections 10 and 12(1)(c) of the Constitution, thereby making all forms of physical discipline of children by parents – regardless of how light or well-intentioned – illegal.
SAHRC vs Jon Qwelane (SCA)
On Friday, 29 November 2019, the Supreme Court of Appeal (SCA) in Bloemfontein handed down judgment in Jon Qwelane’s favour in his appeal against the Johannesburg High Court (sitting as an Equality Court) judgment which had effectively found him guilty of “hate speech” against homosexuals. The SCA’s judgment is an important decision for the right to freedom of expression, because it decided that hurtful speech is not hate speech.
In re Dr Jacques de Vos (HPCSA)
Dr Jacques de Vos, a former military hospital doctor, is being charged with unprofessional conduct after advising that abortion is the killing of an unborn human being. The hearing is taking place in front of the Health Professions Council of South Africa (HPCSA) and is set to continue on 9 December 2019.
Queers without Borders and others vs Chris van Wyk (SAHRC)*
A complaint of unfair discrimination and hate speech has been laid against Chris van Wyk (a pastor of the Dutch Reformed Church) following his statement that “if all sexual orientations are a gift of God, as argued by Rev Nelis Janse van Rensburg, to be consistent in his argument he would have to include all sexual orientations and that would include something like paedophilia.” Following submission of his reply to the SAHRC, pastor van Wyk has not het heard from the SAHRC. The SAHRC has however stated in the media that it will be opening up a case against pastor van Wyk in the Equality Court.
Olivier v Afrikaanse Protestantse Kerk (Pretoria High Court)
A former pastor of the 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”.
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