Update On Recent or Current Religious Freedom Issues and Cases

by Daniela Ellerbeck
30 May 2019

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


Prevention and Combating of Hate Crimes and Hate Speech Bill*

The deadline for public comments on the revised draft of the Bill closed on 15 February 2019.  According to ACDP MP Steve Swart, who is a member of the Parliamentary Portfolio Committee on Justice, the Bill and the consideration of the public’s submissions thereon will stand over to the next Justice Committee that will be formed after a new Parliament is established following the national election that took place on 8 May.

Children’s Amendment Bill*

The deadline for comments on the revised Children’s Amendment Bill was on 29 November 2018. Amongst other things, the Bill proposed the outlawing of any form of physical correction (regardless of how light or well-intended) in the home. This proposal has been removed from the latest version of the Bill which will be tabled before Parliament.

Cybercrimes Bill*

This Bill was adopted by the National Assembly last year, but only after substantial changes were made such as removing the “cybersecurity” section that would have given the State far-reaching monitoring powers. The second house of Parliament, the National Council of Provinces (NCOP) invited public comment on a drastically revised version of the Bill by 8 March 2019. 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. The Bill is currently suspended until after the new Parliament is sworn in.

Civil Union Amendment Bill*

On 6 December 2018, the National Assembly adopted the Civil Union Amendment Bill. 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. FOR SA made submissions on the Bill to COPE MP Deidre Carter, who initially proposed the Bill as a Private Member’s Bill, and to the Parliamentary Portfolio Committee on Home Affairs. The Bill has now been handed over to the NCOP whose Select Committee on Social Services was supposed to have a meeting (to be briefed on the Bill) during February, but this was postponed until further notice.

Films & Publications Amendment Bill*

The Films & Publications Amendment Bill, which includes certain broad provisions on “hate speech”, has been passed by both houses of Parliament and sent to the President for assent on 19 March. FOR SA made submissions on the Bill to the Parliamentary Portfolio Committee on Communications, and the Select Committee of the NCOP.

Film & Publications Board Classification Guidelines*

FOR SA made submissions on the Film and Publications Board (FPB) Classification Guidelines, in terms of which all films, games and certain publications are classified prior to distribution and exhibition thereof. Public consultations closed on 30 November 2018. The Final proposed guidelines were submitted to the FPB Board for recommendation to the Minister, and the guidelines were gazetted on 5 April.

Draft Western Cape Commissioner for Children Bill*

FOR SA made (written and verbal) comments on the Bill that sought to establish a Commissioner for Children to protect and promote the interests of children in the Western Cape.  FOR SA’s submission to the Western Cape Provincial Parliament highlighted our concern that the Bill may have some unintended consequences and override, or severely limit, the rights and responsibilities of parents to raise their children in accordance with their religious, moral or philosophical convictions and beliefs. The Bill was assented by the Premier on 29 March, becoming law.

CRL Rights Commission’s proposed regulation of religion*

At its 4th National Consultative Conference (NCC) in Pretoria on 25 and 26 February 2019, the CRL Rights Commission (CRL) asked the approx. 500 delegates – largely made up of community councils, traditional leaders, traditional healers (but only a handful of religious leaders) –  to adopt a resolution that the CRL should “continue with a process to control religious practitioners” and to “push for the proposals that the CRL has placed before Parliament”, including a peer review mechanism. The CRL’s decision conflicts with the COGTA Parliamentary Portfolio Committee’s report, which effectively rejected the CRL’s proposals for (State) regulation of religion. Furthermore, the adopted resolution also ignores the Rhema Summit in February 2019 which started a process of self-regulation that is due to culminate in a further three-day summit in October 2019, and which was a key part of COGTA’s recommendations. FOR SA will continue to engage with relevant stakeholders to propose alternative solutions to (State) regulation of religion in South Africa, but which will bring greater levels of accountability and compliance to the religious sector.

Draft Code of Conduct for Religion in South Africa*

The SA Council for the Protection and Promotion of Religious Rights and Freedoms (SACRRF) has been working on a draft Code of Conduct for Religions in South Africa, as the “responsibility” side of the “religious rights and freedoms” detailed in the SA Charter for Religious Rights and Freedoms, which has already been endorsed by most religious groupings, communities and leaders in South Africa. As the process for finding solutions to the problems in the religious sector has now been handed over to the National Religious Leaders Forum (NRLF) under pastor Ray McCauley, the SACRRF handed over the draft Code to him for their consideration and further process. The Code, which could assist in establishing a form of self-regulation of religious communities, should therefore form part of the consultations that will take place at local, provincial and national level following the Rhema Summit in February 2019.

National Health Amendment Bill (“End of Life Bill”)*

Last year, FOR SA made submissions on the above Bill, proposed by COPE MP Deidre Carter. The Bill provides that a person may appoint an agent with durable power of attorney, and also draw up a living will to cater for the event of that person no longer being able to express their refusal for any future potentially life-sustaining medical treatment or procedure. FOR SA’s concern is that the Bill does not cater for the situation where the treating doctor has a conscientious objection to giving effect to such living will. To this end, we have recommended the insertion of a clause to protect doctors in such instances. According to Ms Carter’s office, they have received feedback on the Bill from Parliament’s legal advisors, but are still to consider these. There have been no mention of further dates or times for discussion or deliberation for the Bill, or of tabling the Bill with the relevant Portfolio Committee.

Draft Learner Pregnancy Policy*

FOR SA made submissions on the Department of Basic Education’s Draft National Policy on the Prevention and Management of Learner Pregnancy In Schools, which includes Comprehensive Sexuality Education (CSE) as a key component of the Policy. Internationally, CSE has consisted of highly explicit programmes aimed at sexualising children rather than teaching them about sex.  It has also not been successful in reducing teenage pregnancy or preventing the spread of STDs. The Department is currently in the internal process of finalising the Policy before it is handed over to Cabinet for ratification. Once Policy has been finalised and approved by Cabinet, it will then be shared with external stakeholders.

Draft Basic Education Laws Amendment Bill (so-called “BELA Bill”)*

Following their invitation for comments on the draft Basic Education Laws Amendment Bill (the so-called “BELA Bill”), the Department of Basic Education reportedly received 6,000+ submissions from the public and various organisations (including FOR SA) in relation to the Bill. In our submission, 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.  We understand from the Department that they are in the final phases of working through the 6,000+ submissions received and amending the Bill on the strength of comments that have merit. The public will be informed when there is new information about the status of the Bill.

Draft Land Expropriation Bill, 2019:

The call by the Department of Public Works for comments on the draft Land Expropriation Bill closed on 22 February 2019.  The Department has confirmed that they received over 50 000 comments from the public and that they are in the process of processing these.  In our submission, FOR SA recommended that land that is owned and used in connection with the exercise of the constitutional right to religious freedom and the rights of religious communities, be exempted from expropriation without compensation.


FOR SA vs Minister of Justice & Others (Constitutional Court)*

On 29 November 2018, the Constitutional Court heard FOR SA’s application for leave to appeal against the judgment by the Johannesburg High Court in October 2017, declaring all forms of physical discipline of children – regardless of how light or well-intentioned – to be illegal. FOR SA is still awaiting judgment from the Court.

Gaum vs The Dutch Reformed Church (Pretoria High Court)*

On Friday, 10 May, the Pretoria High Court refused the application by the Alliance Defending the Autonomy of Churches in South Africa (ADACSA), asking the Court to clarify its judgment. More particularly, ADACSA wanted clarity on whether the Court’s judgment, which declared the 2016 decision of the Dutch Reformed Church on same-sex relationships to be unlawful and invalid, was made only on procedural grounds or also on substantive (constitutional) grounds. The Court dismissed ADACSA’s application on the basis that it – being a “Friend of the Court” in the original proceedings, rather than a party – did not have a right to bring the application. FOR SA formed part of the Alliance Defending the Autonomy of Churches in South Africa (ADACSA), who was admitted as a “Friend of the Court” with a view to defending the autonomy of churches in the case. FOR SA’s Legal Counsel, Adv Nadene Badenhorst, also appeared as one of the Counsel for ADACSA in the case.  FOR SA (and ADACSA) are now considering their position on whether (or not) to appeal the High Court’s dismissal of their application for clarification on the ground of their lack of “legal standing”.

SAHRC vs Jon Qwelane (Supreme Court of Appeal)

The Johannesburg High Court (sitting as an Equality Court) has granted Jon Qwelane leave to appeal to the Supreme Court of Appeal (SCA) in Bloemfontein against the High Court’s judgment last year, which effectively found him guilty of “hate speech” against homosexuals.  

Complaint against Chris van Wyk (SAHRC)*

The SAHRC received complaints from Queers without Borders and others against Dr Chris van Wyk, a pastor in the Dutch Reformed Church, following certain comments that he had made regarding same-sex conduct being sinful in light of Scripture, on social media. According to the SAHRC, dr Van Wyk’s statements appear to be “hate speech” as defined in s 16(2) of the Constitution and they invited him to submit a response by 10 May, which he did.

R.E. Wilson vs African Enterprise & Theuns Pauw (Grahamstown Equality Court)*

The unfair discrimination case against African Enterprise (AE) and their director Theuns Pauw, is still pending. The case arises out of a sermon delivered by Pauw at St Andrew’s College in Grahamstown and wherein he touched on issues of divorce and human sexuality. AE’s legal representatives are engaging with the SAHRC, acting for the complainant, in the hope to resolve the matter outside of court.

Beloftebos wedding venue* (CGE, and SAHRC)

The Beloftebos Wedding Venue, Stanford came under fire in August 2017 for refusing, on grounds of conscience and religious belief, to host a same-sex wedding ceremony at the venue.  The Commission for Gender Equality (CGE), who initially investigated the matter of own accord, has now advised that they – together with the South African Human Rights Commission (SAHRC) – consider this to be a “perfect test case” to be referred to the Courts for determination. The CGE is currently awaiting the CRL Rights Commission’s attitude in this regard.

Olivier v Afrikaanse Protestantse Kerk (Pretoria High Court)

A former pastor of the Afrikaanse Protestantse Kerk (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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