Update on Recent or Current Religious Freedom Issues and Cases

by Daniela Ellerbeck
6 July 2020

By Freedom of Religion of South Africa (FOR SA)

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


Basic Education Laws Amendment (BELA) Bill*

The Bill is currently still making its way through the internal processes of the Department of Basic Education (DBE), whereafter the finalised Bill will be tabled in Parliament. (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 tabled in Parliament, and is between Cabinet and Parliament at this stage. Once Cabinet has finalised its processes, the Bill will be submitted to Parliament for tabling and introduction. (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 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.)

City of Cape Town By-Laws*

FOR SA made submissions on the proposed amendments to “Streets, Public Places, and the Prevention of Noise Nuisances By-Laws of the City of Cape Town”. We are concerned that the amendments give certain officials sweeping powers that may well impacts on the rights of religious communities to practise their religion and belief.

Civil Union Amendment Bill*

In terms of this Bill, State-employed marriage officers and magistrates will no longer have the right, for reasons of conscience or belief, to “opt-out” of solemnising same-sex marriages. The Bill was adopted by the National Council of Provinces (NCOP) on 1 July 2020, and will now go to the President to sign it into law.

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. In a written response to a question asked by a Member of Parliament (MP), the Minister recently confirmed that the Department’s SLPs will not be compulsory for teachers / schools to use.  Public schools are therefore free to choose alternative materials from which to teach sexuality education, to achieve the outcomes defined in the CAPS curriculum set for Life Orientation and Life Skills.

CRL Rights Commission’s proposed regulation of religion*

In March 2020, the COGTA Parliamentary Portfolio Committee held a two-day Indaba with religious leaders (mainly from the Christian faith) with regards to the CRL’s Report on the Commercialisation of Religion and Abuse of People’s Belief Systems (and in particular to hear the Christian community’s views on harmful religious practices, and what =they were doing to combat “social ills”. This Indaba was supposed to be followed by a Colloquium with the leaders of other faiths and structures on 17 – 18 March 2020, which has subsequently – due to the COVID-19 health crisis – been postponed to a date still to be determined.). Effectively, this Indaba and Colloquium will be the second round of consultation with the religious sector (the first round having taken place before the previous COGTA Portfolio Committee in 2017). 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) to the COGTA Parliamentary Portfolio Committee.

Cybercrimes Bill*

This Bill was adopted by the the National Council of Provinces (NCOP) on 1 July 2020, and will now go to the President to sign it into law. (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 programme aimed at sexualising children rather than teaching them about sex.)

Lockdown Regulations, and Directions for religious gatherings*

FOR SA has been actively involved in making submissions to, and engaging with, Government and Parliament with regard to the impact of COVID-19 on religious communities, and Government’s response thereto – including the Lockdown Regulations and/or nay Directions issued from time to time across Alert Levels 5 to 1.

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 the end of 2018, namely at the end of the submission period – no further progress has been made, and may well have fallen away (particularly as Ms Carter is no longer an MP) (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 Department of Justice and Constitutional Development has advised that they have informed the Justice Parliamentary Portfolio Committee that judgment is awaited in the Qwelane matter (to be heard before the Constitutional Court on 22 September 2020), and that it may have a significant impact on the Bill. As such, the matter will probably not progress until then.

Proposed policy on marriage in SA*

The Department of Home Affairs (DHA) is developing a new policy on marriage, that will set the platform for the possible adoption of a single “Marriage Act” governing all marriages entered into in South Africa. The DHA aims to submit the new policy to Cabinet in 2020/2021, open a draft Bill for public consultation in 2021/2022, and submit the Bill to Parliament in 2022/2023. (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 (to the DHA, as part of its process to develop a new Marriage Policy for South Africa) a single marriage law governing all types of marriages. The issue paper is available here. The discussion paper (which typically follows the issue paper) is still being developed and is expected to be published for comment in or about September 2020, although COVID-19 and the national lockdown may well have an impact on the original planned timelines. (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.)

Western Cape Guidelines on Sexual Orientation and Gender Identity*

The Western Cape Department of Education published the above draft Guidelines for public input and comment by 19 June 2020. Should the Guidelines be passed, they will apply to all public schools in the Western Cape, and will likely set precedent for similar Guidelines or policies to be adopted by all Provinces. (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).


Jon Qwelane versus SAHRC (Constitutional Court)

On 22 September 2020, the Constitutional Court will hear argument in the above matter concerning the legal definition (and scope) of “hate speech”. The Constitutional Court will be asked to confirm the judgment of the Supreme Court of Appeal (SCA) in November 2019, in terms of which the definition of “hate speech” in the Equality Act of 2000 was found to be broader than s 16(2)(c) of the Constitution and therefore unconstitutional.

SAHRC vs Bongani Masuku (Constitutional Court)

In the meanwhile, judgment is still pending in this case which was heard by the Constitutional Court in August 2019. The question before the Court is whether certain statements by COSATU’s Bongani Masuku in 2009 in the aftermath of the Gaza War amounted to “hate speech” against Jews or were constitutionally protected political speech. The case (like the Qwelane case) concerns the constitutionality the “hate speech” definition in the Equality Act of 2000 and will determine the boundary between free speech and “hate speech”.

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.

Watling / Heekes v Beloftebos (CGE)*

In the meanwhile, the Commission for Gender Equality (CGE) has written to Beloftebos to advise that they are investigating the venue following a similar incident in January 2020.

SAHRC vs Chris van Wyk (P.E. Magistrate’s Court, Equality Court)*

The SAHRC, on behalf of various complainants, has instituted a case of unfair discrimination against Chris van Wyk (a pastor of the Dutch Reformed Church) in the P.E. Equality Court, 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.”  The case, which is opposed by Van Wyk, has been referred for mediation.

Hindu Dharma Association of SA vs Revival Ministries*

The Hindu Dharma Assocation of SA has written a legal letter of demand to Revival Ministries, following a Facebook video wherein Rev. Llewellyn Joseph made certain statements that the Hindu Dharma Association views as “Hindu bashing”. The letter demands an undertaking to desist from speaking “negative, hurtful and hateful statements” relating to the Hindu faith and community, failing which they will approach the Equality Court, the SAHRC and/or CLR Rights Commission for relief.

In re Dr Jacques de Vos (HPCSA)

Dr Jacques de Vos, a former military hospital doctor, is facing a disciplinary enquiry by the Health Professions Council of South Africa (HPCSA), who is accusing him of unprofessional conduct for advising a patient that abortion is the killing of an unborn human being. Dr de Vos has been barred from practising medicine since July 2017, while the case against him has been delayed repeatedly by the HPCSA (and most recently, by COVID-19). Most recently, Dr de Vos’ legal representatives sent another letter to the disciplinary committee, asking for a response to their previous letters wherein they made a case for the dismissal of the remaining two charges.

State v Timothy Omotoso (P.E. High Court)

The ongoing trial against pastor Timothy Omotoso (who stands accused on numerous charges of sexual assault and human trafficking) which was due to proceed on 14 April 2020, has been postponed again – this time due to COVID-19. The matter was initially remanded until 20 April, but that date was set before the lockdown was extended until the end of April. It is therefore unclear when a new date will be set for the trial to continue.

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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