Update on Recent or Current Religious Freedom Issues and Cases

by FOR SA
17 March 2021

* 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 is currently still making its way through the internal processes of the Department of Basic Education (DBE), whereafter it will be submitted to Cabinet, and once approved, 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 Bill is has been tabled in Parliament, and is currently being considered by the Social Development Parliamentary Portfolio Committee. (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. We have been advised that the City has received a legal opinion and is busy considering it.  No decisions on how to proceed with the by-law have yet been taken (in light of the legal opinion).

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 passed by both houses of Parliament, and sent to the President for assent on 2 December 2020. (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.)

Domestic Violence Amendment Bill, 2020*

The Bill was introduced to Parliament on 7 September 2020, and opened for public comment until 9 October 2020. The Bill’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.  Parliament’s Justice and Correctional Services Portfolio Committee is currently considering the Bill. (From a religious freedom point of view, FOR SA made submissions on the Bill’s inclusion of “spiritual abuse” in the definition of domestic violence which we believe unnecessary, as the harm that it is trying to prohibit, is already prohibited by a multitude of existing laws which ought to be enforced.)

Draft Films & Publications Act Amendment Regulations, 2020*

The Minister of Communications and Digital Technologies has published Draft Films and Publications Amendment Regulations for public comment by 12 October 2020. The Regulations follow the adoption of the Films and Publications Amendment Act last year. (The Act has not come into operation yet, as the Regulations first need to be finalised).  The FPB’s revised version of the draft Films and Publications Amendment Regulations was submitted to the Office of the Minister of Communications and Digital Technologies on 28 January 2021. (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.) 

Learner Pregnancy Policy*

The Department of Basic Education (DBE) has advised that it presented the revised draft Policy on Learner Pregnancy (which includes Comprehensive Sexuality Education (CSE) as a key component) to the Social Protection, Community and Human Development Cluster Technical Working Group.  The DBE has also received approval to present to the Social Cluster prior to presenting to Cabinet. (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 (including the COGTA Minister and President), the Nerve Centre, and Parliament with regard to the impact of COVID-19 on religious communities, and Government’s response thereto – including the Lockdown Regulations and/or any Directions issued from time to time across Alert Levels 5 to 1.  The most recent is that FOR SA instituted a case in the Johannesburg High Court against the COGTA Minister, asking amongst other things, for a finding that it is unconstitutional to place more stringent restrictions on religious gatherings than the limitation of 50% of the floor space applied to other gatherings of a similar nature.  Also, on behalf of various senior religious leaders, FOR SA sent yet another letter to the President on 11 March 2021, asking for an opportunity to consult with Government (whether such consultation takes place directly with the various senior religious leaders, or through FOR SA as their appointed representative), with a view to working with Government to prevent any unnecessary further spread of the virus.

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 (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.  FOR SA made lengthy legal submissions on the Bill regarding the chilling effect it 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).

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 this year, 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 there has 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). 

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 was requested by the Minister of Home Affairs in 2013 already to investigate the possible adoption of a single marriage law for South Africa governing all types of marriages. The SALRC’s discussion paper dated January 2021, contains the SALRC’s preliminary proposals – including two draft Bills. The discussion paper is currently open for public comment until 17 May 2021. The discussion paper is available here.

Victim Support Services Bill, 2020

The Victim Support Services Bill, 2020 was open for public comment until 7 October 2020.  The Department of Social Development has screened and considered all the comments received from public consultation.  The Bill is now being prepared for the Cabinet.  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. A meeting with relevant stakeholders was held on 16 October 2020, where FOR SA presented. FOR SA invited Dr de Vaal to present the WCED with a medical viewpoint, based on his reading of various international academic and medical research studies on the medical response to gender dysphoria generally, and in children specifically. Dr de Vaal has since been the subject of complaints and investigations by transgender activists.  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. The Department is currently in the process of finalising the 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

Africa 4 Palestine v Chief Justice Mogoeng Mogoeng (JSC’s Judicial Conduct Committee)

On 4 March 2021, the Judicial Conduct Committee (JCC) delivered its decision in the respective complaints by Africa 4 Palestine, SA BDS Coalition and Women’s Cultural Group against Chief Justice Mogoeng Mogoeng (CJ), following certain “pro-Israel” comments made by the CJ in a webinar hosted by The Jerusalem Post. The case revolves around the single issue of whether (or not) the CJ had breached the Code of Judicial Conduct (the Code) in that he became involved in “political controversy” in circumstances where it was not necessary for the discharge of judicial office (article 12(1)(b)). The JCC’s decision was that the CJ did breach the Code and as a result, they directed him to (within 10 days) apologise for becoming involved in political controversy and to further retract his subsequent statement that he stands by his refusal to retract or apologise for anything he had said “even if 50 million people were to march every day for 10 years for him to do so”. 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 this matter, see here). In terms of the Judicial Services Commission Act of 1994, an appeal against the decision can be lodged within one (1) month.

FOR SA v Minister of COGTA and others (Johannesburg High Court)*

FOR SA instituted a case against the COGTA Minister in the Johannesburg High Court on 25 January 2021, asking that Government’s complete ban on faith-based gatherings (initially imposed for 14 days from 28 December 2020, but then extended indefinitely on 9 January 2021) be lifted with immediate effect. (Similar applications have been instituted by the South African National Christian Forum, Solidariteit Helpende Hand NPC and the Muslim Lawyers Association). Although the President lifted the ban one day prior to the hearing of the matter on 2 February 2021, certain key ‘in principle’ issues remain and the court case (on all four applications which have been consolidated for hearing) is thus going ahead. FOR SA is asking the Court, amongst others, to find that Government’s complete ban on religious gatherings was unconstitutional; that it is unconstitutional to place more stringent restrictions on religious gatherings than on other gatherings of a similar nature; that the Regulations must specifically recognise religious workers as “essential workers”; and that FOR SA be included in the Government’s consultations with religious stakeholders concerning COVID-19 and the Lockdown Regulations. No hearing date has been determined yet.

In re Dr Jacques de Vos (HPCSA)

Dr Jacques de Vos, a former military hospital doctor, who 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, has 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. Dr de Vos had been barred from practising medicine since July 2017, due to the HPCSA’s case against him.

Jon Qwelane versus SAHRC (Constitutional Court)

On 22 September 2020, the Constitutional Court heard argument in the above matter concerning the legal definition (and scope) of “hate speech”. The Constitutional Court was 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. 

Lincoln Jacobs v Pickard Henn (SAHRC)*

In July 2020, the SAHRC advised Pickard Henn, an evangelist, that a complaint had been 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. Mr Henn replied to the SAHRC’s letter, but has not heard from the Commission since.

Marion Stevens v Dr Sybrand de Vaal (UCT Psychiatry Department, and the HPCSA)*

In October 2020, transgender activists lodged complaints with the Health Professions Council of South Africa (HPCSA) and University of Cape Town (UCT), to investigate and sanction Dr Sybrand de Vaal, a medical doctor, for allegedly “promoting harmful psychiatric practices with respect to Trans (including non-binary) children.” In addition, a Petition to “Protect Trans Kids:  Bar Dr Sybrand De Vaal from Psychiatric Practice” was circulated on social media with the aim of pressurising the HPCSA and UCT into acting against Dr de Vaal. The complaints follow Dr de Vaal’s participation – on invitation of FOR SA – in a meeting with the Western Cape Education Department (WCED) who invited input on their Draft Guidelines for Sexual Orientation and Gender Identity in public schools. The complaints are currently still pending before the HPCSA and UCT. 

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 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 obtained the consent of the parties to become involved as a “friend of the court”, and filed its application to be formally admitted as such with the Court on 5 March 2021. 

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 have filed their opposing papers to Beloftebos’ counter-application.  Beloftebos still has to reply to the Minister’s opposing papers, but has replied to the others. Various organisations, such as the Women’s Legal Centre, have indicated that they are considering intervening as a “friend of the court” 

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.  Beloftebos has filed its response to this application and the couple has filed their reply. 

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 of the “hate speech” definition in the Equality Act of 2000 and will determine the boundary between free speech and “hate speech”.

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

The SAHRC, on behalf of various complainants, 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 SAHRC subsequently advised in writing that it was withdrawing its case against van Wyk in October, 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 Van Wyk and Janse van Rensburg. The SAHRC’s Andre Gaum now alleges however that the case has not been withdrawn.

The South African Hindu Dharma Sabha vs Rev. Joseph and Revival Ministries (Chatsworth Magistrate’s Court, Equality Court)*

The South African Hindu Dharma Sabha (SAHDS) instituted legal proceedings in the Chatsworth Magistrate’s Court (sitting as an Equality Court), against Rev. Llewellyn Joseph and the Revival Ministries Church in Chatsworth, Kwa-Zulu Natal.  This followed a Facebook video showing Rev. Joseph making certain statements during a Revival Ministries church service, which the SAHDS views as “Hindu bashing” and hate speech. The SAHDS asked the Court, amongst other things, to declare the statements ‘hate speech’ in terms of the Equality Act, that Rev. Joseph be ordered to complete 200 hours’ community service, to never make such statements again, and also to pay R1 million in damages. The Court referred the matter to the CRL Rights Commission for mediation on 22 September 2020. This mediation took place on 17 February 2021 and it is FOR SA’s understanding that it was successful. 

The South African Hindu Dharma Sabha vs Mr Chetty and Revival Ministries (Chatsworth Magistrate’s Court, Equality Court)*

The South African Hindu Dharma Sabha (SAHDS) also instituted legal proceedings in the Chatsworth Magistrate’s Court (sitting as an Equality Court), against Mr Simeon Chetty and the Revival Ministries Church in Chatsworth, Kwa-Zulu Natal.  This follows from a video showing Mr Chetty making certain statements while evangelising, which the SAHDS views as “Hindu bashing” and hate speech. The SAHDS is asking, amongst other things, that the statements be declared hate speech in terms of the Equality Act, that Mr Chetty be ordered to complete 200 hours’ community service, to never make such statements again, and to pay R1 million in damages. At least two parties have been joined to the application, but it is FOR SA’s understanding that there are numerous interested organisations who wish to be joined. FOR SA has written to the parties to indicate its likely involvement as a “friend of the court” in this matter, as it concerns both the right to freedom of religion and to freedom of expression.   The matter was heard again on 8 March 2021 and postponed to 21 April 2021.

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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