Update on Recent or Current Religious Freedom Issues and Cases

by FOR SA
22 March 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*
The Bill was tabled in Parliament on 10 January 2022. The Bill was allocated to the Basic Education Portfolio Committee who received a briefing about the Bill from the Minster of Basic Education on 8 February 2022.  The Committee aims to open the Bill for public comments soonest, whereafter it will engage in public hearings.  (FOR SA engaged with the Bill when it was still in front of the Department of Basic Education.  We raised concerns that the Bill will affect the right to religious freedom due to its 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 (Private Member’s Bill to ban conversion therapy on children)*
Last year, a DA Member of Parliament (MP) published her intention to introduce a Bill amending the current Children’s Act, so as to prohibit “conversion therapy” in children (which is not defined in the notice, other than saying it is a “pseudo-science approach to ‘curing’ children of homosexuality”). The published intention was open for public comment until 4 August 2021. However, it is important to note that this is merely a notice of the MP’s intention to introduce a Private Member’s Bill – it is not yet the Bill itself. Without having sight of the text of the BillFOR SA is not in a position to advise whether it will infringe on any religious freedom rights – and has therefore also not submitted any comments on the published intention at this stage.

Children’s Amendment Bill*
Parliament’s Social Development Portfolio Committee is currently still in a consultation process to get responses from the relevant stakeholder on issues raised in public hearings. Once this process is completed, the Committee will consider a clause-by-clause process to amend, remove or agree on the Bill.  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 is considering. However, following the Constitutional Court’s ruling on 18 September 2019 that outlawed any form of physical discipline by parents, various organisations are proposing substantive additions to the Bill that specifically deal with this issue.

Department of Home Affairs’ proposed Marriage Policy*
On 23 March 2022, Cabinet approved the Department of Home Affairs’ new policy, the White Paper on Marriages in South Africa for implementation.  The policy will set the platform for the possible adoption of a single “Marriage Act” governing all marriages entered into in South Africa and will be gazetted soon. The DHA aims to open a draft Bill for public consultation following the policy, and thereafter submit the Bill to Parliament. The DHA also circulated a questionnaire for completion by, amongst others, religious leaders by end July / beginning August 2021. (From a religious freedom point of view, FOR SA made submissions 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).

Disaster Management Act Amendment Bill*
This was a private member’s Bill which sought to increase Parliament’s oversight over the State’s decisions during a state of disaster. The Bill was considered by Parliament’s Cooperative Governance and Traditional Affairs Portfolio Committee and was opened for public comment until 26 August 2021.  The Committee decided not to proceed with the Private Member’s Bill on 8 March 2022, reporting that majority of Committee members, represented by the ANC and EFF, did not agree with the desirability of the proposed Bill on the basis that the current accountability and oversight mechanisms provided in the Constitution are adequate to address the gaps identified in the Bill. (From a religious freedom point of view, FOR SA supported the Bill and made submissions on how the Bill could be improved to prevent arbitrary decisions by the State as has been the case with certain Lockdown Regulations).

Domestic Violence Amendment Act, 2020*
The President signed the Bill into law on 28 January 2022, whereafter it became the Domestic Violence Amendment Act, 2021.  The Bill was previously adopted by both houses of Parliament on 10 September 2021 before it was sent to the President.  The Act’s purpose is to address the practical challenges, gaps and anomalies which have become obvious since the Act’s initial implementation, as well as to align the Act with the Protection from Harassment Act, 2011. (From a religious freedom point of view, FOR SA made submissions on the Bill’s inclusion of “spiritual abuse”, proposing an alternative definition which was accepted and incorporated into the Bill by Parliament.)

Draft Films & Publications Act Amendment Regulations, 2020*
The Minister of Communications and Digital Technologies published Draft Films and Publications Amendment Regulations for public comment until 12 October 2020. The Regulations are to follow the Films and Publications Amendment Act, 2019 (which came into operation on 1 March 2022). The Department has submitted the Regulations to the Chief State Law Advisor in order to obtain their feedback.  (FOR SA made submissions on the Regulations, and the potential impact thereof on religious content and content distributed (including via the internet) by religious organisations.)

Draft National Health Act Amendment Regulations, 2022*
The Department of Health has gazetted its Draft Health Regulations relating to the surveillance and the control of notifiable medical conditions for public comment.  The Regulations are open until Friday, 15 April 2022 for public comment.  FOR SA views the proposed Regulations as a severe threat to religious freedom. See this video outlining our concerns. As an individual, you can go to DearSA to comment on the Regulations. As a religious organisation, you can download this template submission to be emailed to [email protected].

Expropriation Bill*
The Department of Public Works and Infrastructure tabled the Expropriation Bill in Parliament on 15 October 2020. Parliament’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.  The Committee is in the process of deliberating on the Bill clause-by-clause.  (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.)

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, and aims to engage external stakeholders between April and May before finalising its 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.)

Lockdown Regulations pertaining to religious gatherings*
FOR SA remains actively involved in making submissions to, and engaging with, Government as well as Parliament with regard to the impact of COVID-19 on religious communities.

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 has advised that it is still considering the numerous comments it received. (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. We also subsequently met with the Deputy Minister of Justice, who undertook to look at making the Bill “clearer” so as to make sure that religious autonomy remains protected in the Bill.)

Prevention and Combating of Hate Crimes and Hate Speech Bill*
Parliament’s Justice and Correctional Services Portfolio Committee is still working on the Bill, with the next step being to have public hearings (in addition to the written comments already sent in on the Bill. 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 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 2021FOR 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 (s 15 of the Constitution) and the right to freedom of expression (s 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 is currently still in the process of considering all the comments received. (FOR SA made submissions on the Discussion Paper, particularly so as 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.) The SALRC has advised that they have commenced the collation of comments received, which will keep them busy for a while.  Once the collation has been done, an evaluation of the comments will commence, to be followed by an advisory committee meeting to decide on the way forward.

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 Bill is currently with the State Law Advisors, 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 en route to be approved by the Provincial Minister.  The Minister also has sole discretion on when to sign it so that it can be rolled out into schools, but it is estimated that roll-out could take place early in 2022. (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
Africa4 Palestine v Chief Justice Mogoeng Mogoeng (JSC’s Judicial Conduct Appeals Committee)

Chief Justice Mogoeng Mogoeng lost his appeal in front of the Judicial Conduct Appeals Committee.  He had appealed against the Judicial Conduct Committee’s decision that he had breached the Code of Judicial Conduct (JCC) when he made certain “pro-Israel” comments in a webinar hosted by The Jerusalem Post.  The Appeals Committee ordered Mogoeng to give an unconditional apology for becoming involved in political controversy through his utterances at the online webinar.  Various religious leaders are viewing this matter as an unreasonable and unjustifiable restriction of the CJ’s right to religious freedom, and freedom of expression. (For FOR SA’s legal perspectives on the Judicial Conduct Committee’s decision, see here).

FOR SA v Minister of COGTA and others (Johannesburg High Court)*
FOR SA is not pursuing its appeal against the Johannesburg High Court’s December 2021judgment, wherein the Court dismissed FOR SA’s challenge to the Government’s ban on religious gatherings in December 2020 / January 2021 while other gatherings were allowed to continue.  (To see FOR SA’s reasons for not pursuing the appeal, see here.)

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), who accused him of unprofessional conduct for advising a patient that abortion is the killing of an unborn human being. Dr de Vos instructed his attorneys to launch an application in the North Gauteng High Court to compel the Health Professions Council of South Africa (HPCSA) to deliver a verdict. This is after the HPCSA withdrew its case, but without delivering a verdict. The Court heard the application on 1 February 2022.  The case is still ongoing. Dr de Vos had been barred from practising medicine since July 2017, due to the HPCSA’s case against him.

Lincoln Jacobs v Pickard Henn (SAHRC)*
On 25 January 2022, the SAHRC advised Pickard Henn, an evangelist, that it had determined that the complaint of alleged hate speech laid against him, following certain statements made by him with regard to, amongst others, same-sex relationships during a sermon at De Kuilen High School, were factually incorrect.  The SAHRC found that there were no human rights violations and advised Mr Henn that it the SAHRC would be closing its investigation against him.  (In July 2020, the SAHRC advised Pickard Henn, an evangelist, that a complaint had been laid against.)

Mthembu v Christian Life Private School (Johannesburg High Court, Equality Court)*
The parents of a 9-year old Zulu boy have 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 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 has now been set down for hearing on 25 & 26 July 2022.

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 has 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.

SAHRC vs Bongani Masuku (Constitutional Court)
The Constitutional Court handed down its judgment in this matter on 16 February 2022, finding one of COSATU’s Bongani Masuku’s statements constituted “hate speech against Jews in terms of the Equality Act of 2000.  The Court heard the matter in August 2019.

SAHRC vs Chris van Wyk (P.E. Magistrate’s Court, Equality Court)
The SAHRC withdrew its case against Dr Chris van Wyk (a pastor of the Dutch Reformed Church) on 17 February 2022.  The SAHRC, on behalf of various complainants, had instituted a case of unfair discrimination against Dr van Wyk 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 withdrawal follows after Dr van Wyk’s lawyers threatened to institute a counter-challenge against the SAHRC, who had been repeatedly informed about its flawed case based on an incorrect English translation of a theological exchange in Afrikaans between Dr van Wyk and Janse van Rensburg.

The South African Hindu Dharma Sabha vs Mr Chetty and Revival Ministries (Chatsworth Magistrate’s Court, Equality Court)*
The case between the South African Hindu Dharma Sabha (SAHDS) and Mr Simeon Chetty and the Revival Ministries Church instituted in the Chatsworth Magistrate’s Court (sitting as an Equality Court), was settled by mutual agreement between the parties.

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) continues, with the latest development being that the Supreme Court of Appeal (SCA) has dismissed his application for leave to appeal his ongoing incarceration.

 

 

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