By Adv Nadene Badenhorst, Legal Counsel of FOR SA

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

POLICIES & BILLS

Civil Union Amendment Bill*

Section 6 of the Civil Union Act, 2006 gives marriage officers who are employed by the State, the right – on grounds of conscience, religion and belief – not to solemnise same-sex marriages. The Civil Union Amendment Bill published in the Government Gazette on 1 March 2018, intends to remove this right and force all State-employed marriage officers to solemnise same-sex marriage, regardless of their conscience, religion and belief. (A copy of the Bill is available at http://forsa.org.za/document-library/ – click on the folder “Civil Union Amendment Bill”).

This is a serious violation of marriage officers’ constitutional right to religious freedom, and one that opens the door to the argument that the moment you enter employment by the State, you waive your right to religious freedom – which is simply untenable.  On FOR SA’s request, the deadline for comments on the Bill has been extended to 28 April 2018.

FOR SA will be meeting with COPE MP Deidré Carter, who introduced the Bill as a Private Member’s Bill, soon with a view to discussing our concerns in relation to this Bill.

(For more about the Bill and its threat to religious freedom, click here for the full article).

Prevention and Combating of Hate Crimes and Hate Speech Bill*

The revised Prevention and Combating of Hate Crimes and Hate Speech Bill has been referred to Parliament following approval of the Bill by Cabinet in March 2018.  The Bill will now go through the normal parliamentary legislative process, including (re-)publication in the Government Gazette for public comment and hearings which may result in further amendments before the Bill is tabled in the National Assembly for adoption.

While we have not yet had sight of the revised Bill which is not yet in the public domain, the Department of Justice and Constitutional Development (in a media release) confirmed that, amongst others, the definition of “hate speech” in the Bill has been narrowed down and that a “religious exemption” clause has been included. (A copy of the media release can be viewed at www.forsa.org.za/document-library – click on folder “Hate Speech Bill”, and on file “Media Release”).

While this is certainly good news, it is VITALLY IMPORTANT that all religious organisations and individuals who made submissions in respect of the first Bill AGAIN make submissions in respect of the revised Bill at the appropriate time when comments on the Bill are invited, in order to “secure” what has been gained and comment (challenge) the clauses that remain problematic. (For more, read http://forsa.org.za/religious-exemption-clause-included-in-revised-hate-speech-bill/)

CRL Rights Commission’s proposed regulation of religion*

Following several meetings before the Parliamentary Portfolio Committee on Co-operative Governance and Traditional Affairs (COGTA) with regard to the CRL Rights Commission’s Final Report on the “Commercialisation” of Religion and Abuse of People’s Belief Systems, the COGTA Committee recommended that a National Consultative Conference of Religious Leaders be convened – as proposed by the vast majority of religious organisations who appeared before COGTA – to discuss solutions to the concerns identified by the CRL in their Report. (COGTA’s Final Report can be viewed at www.forsa.org.za/document-library – click on folder “CRL Report on Commercialisation of Religion”, and on file “COGTA’s Report on the CRL Report”).

At a recent meeting before the COGTA Committee in relation to the Ngcobo killings, the CRL seemed to indicate that, due to budget constraints amongst other things, they do not intend to host such a National Consultative Conference. The CRL further indicated that their lawyers are still working on a possible application to the Constitutional Court for a declaration on whether their recommendations for the regulation of religion (as proposed in the CRL’s Final Report) are constitutional or not.

Draft Code of Conduct for Religion in South Africa*

In the meanwhile, the SA Council for the Protection and Promotion of Religious Rights and Freedoms (SACRRF) is preparing a draft Code of Conduct for Religion 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.

The Council will be corresponding with the signatories who have already endorsed the Charter, as well as other religious groupings, communities and leaders who have not yet endorsed the Charter, soon with regards to the draft Code of Conduct for input and endorsement. (In this regard, see http://forsa.org.za/the-charter-of-religious-rights-and-freedoms-and-a-code-of-conduct-for-religion/).

Expropriation of Land issue*

FOR SA is closely monitoring this area which clearly has the potential to impact on the religious community, and will inform our constituency of developments and any opportunity for input in this regard.

In this regard, click here to read the full article.

Films & Publications Amendment Bill*

In March 2018, the National Assembly approved the Films and Publications Amendment Bill (commonly referred to as the “Internet Censorship Bill”) which seeks to regulate the distribution of online content. The Bill must now come before the National Council of Provinces (NCOP) for approval before it can be sent to the President to be signed into law.

Those in favour of the Bill, argued that it will protect children from sexually explicit material, curb hate speech and revenge porn. But opposition Members of Parliament (MPs) have criticized the legislation as a bid to regulate the internet and as such, unenforceable.

FOR SA made submissions in respect of the “hate speech” provisions in the original draft of the Bill, which we believed to be over-broad and therefore unconstitutional. (In this regard, see http://forsa.org.za/for-sa-raises-concern-about-new-hate-speech-legislation/). The definition was subsequently amended to read as follows: “ ‘hate speech’ includes any speech, gesture, conduct, writing, display, or publication, made using the internet, which is prohibited in terms of section 16(2) of the Constitution of the Republic of South Africa, 1996, which propagates, advocates or communicates words against any person or identifiable group, which words could reasonably be construed to demonstrate a clear intention to be harmful, to incite harm and promote or propagate hatred against the said person or identifiable group”.

Other organisations such as Cause for Justice raised concerns regarding the lowering of the bar, and opening up of space on the internet, to (adult) pornography. These aspects, which have not been addressed in the Bill approved by the National Assembly, remain concerning. In this regard, click here to read the full article on porn.

Film & Publication Board Classification Guidelines*

The Film & Publication Board (FPB) also recently invited comments on the FPB’s Classification Guidelines in terms of which all films, games and certain publications are classified by the FPB prior to distribution and exhibition thereof.  These Guidelines are reviewed every five (5) years, including this year. FOR SA has scrutinised the guidelines and our submission, which focuses specifically on opposing the extension of the definition of blasphemy to include cultural blasphemy, is available at http://forsa.org.za/document-library/ – click on the folder “Film and Publication Board.”

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 received 6,000+ submissions from the public and various organisations (including FOR SA) in relation to the Bill.

This Bill radically increases the power of the State (with regard to appointments to senior posts, financial control / procurement, admission and language policy, etc) in schools, and radically diminishes the power of School Governing Bodies (SGBs). Likewise, the Bill radically increases the power of the State with regard to home schooling and takes choice away from parents.

In our submission, FOR SA raised concerns regarding the Bill’s impact on religious freedom and parental rights. In particular also, we pointed out that 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 the SGB itself, is simply unworkable and will directly infringe on the ability of churches  – many of whom do not have their own buildings, and meet in school halls – to gather and exercise their right to freedom of religion / association. (A copy of FOR SA’s submission can be viewed here – http://forsa.org.za/for-sas-submissions-on-the-bela-bill)

We understand from the Department that they are still working through the 6,000+ submissions received (currently about 150 have been processed) and aims to have concluded this process by June 2018.

Draft Western Cape Commissioner for Children Bill*

The Department of the Premier, Western Cape invited comments on the draft Western Cape Commissioner for Children Bill, which establishes a Commissioner for Children to protect and promote the interests of children in the Western Cape.  (A copy of the Bill can be viewed here – https://www.westerncape.gov.za/assets/departments/premier/7825_extra-commissioner-children.pdf).

While we accept that the Bill is a bona fide attempt to protect children, we are concerned 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. In the circumstances, FOR SA made written submissions to the Department, setting out our concerns and recommendations. (A copy of FOR SA’s submission can be viewed in the “MISCELLANEOUS” folder at http://forsa.org.za/document-library).

We understand from the Department that they have now started incorporating the comments into the Bill, and that it is with Legal Services at the moment.

The Cybercrimes and Cybersecurity Bill*

The Parliamentary Portfolio Committee on Justice and Correctional Services invited comments on the Cybercrimes and Cybersecurity Bill. (The Bill can be viewed here – http://www.justice.gov.za/legislation/bills/CyberCrimesBill2017.pdf)

As the Bill contains broad provisions that could potentially be used to curb freedom of (religious) expression, FOR SA made written and verbal submissions on the Bill. (FOR SA’s written submissions can be viewed in the “MISCELLANEOUS” folder at http://forsa.org.za/document-library).

We understand that 40 submissions to the Bill were received, and that the Department of Justice is currently in the process of considering these submissions.

Comprehensive Sexuality Education (CSE) in schools*

Earlier this year, FOR SA met with the Department of Basic Education to discuss the intended roll-out of Comprehensive Sexuality Education (CSE) programmes in public schools. The Department assured us that the focus of CSE will be “sexuality education” (i.e. teaching children basic anatomy; recognising and dealing with abuse; physical and emotional changes during puberty; HIV/Aids and STIs; teenage pregnancy; etc) rather than “sex education” (teaching children how to have sex).

While we were comforted, to some extent, by what we were told, it is important to keep a close eye on the issue and to also keep it in prayer! FOR SA will continue to engage with the Department in this regard to ensure that parents’ right to guide their children’s education in accordance with their own religious or moral views, and children’s own religious and related rights, remain protected. (For more information, see http://forsa.org.za/cse-in-south-african-schools-sexuality-education-or-sex-education/)

Guidelines on Rights and Responsibilities for Religious Conduct in Learning Environments*

In May 2014, the Department of Basic Education commenced a consultative process regarding the increase of harmful religious practices infiltrating our schools. The meeting agreed that there should be a consensus regarding the Departmental response; that a Charter on rights and responsibilities for religious conduct in learning environments be formulated; and that a strategy for community mobilisation should be developed to implement the outcomes.  A Task Team was established to take the process forward.

Having met with the Department in May 2017 when the draft Charter first came our attention, the Department invited FOR SA to join the Task Team and assist in the drafting of the Charter (which has since taken on the form of “Guidelines”, rather than a “Charter”).

We have been advised that the Guidelines are currently subject to internal processes (approval by Senior Management, Head of Departments and thereafter, Council for Education Ministers approval) before it will be made public.

LEGAL CASES

SAHRC vs Jon Qwelane

In March 2018, the Johannesburg High Court (sitting as an Equality Court) received written argument on Jon Qwelane’s application for leave to appeal against its judgment last year, effectively finding him guilty of “hate speech” against homosexuals.  (For more information, see http://forsa.org.za/possible-appeal-against-qwelane-judgment). We understand that judgment on the leave to appeal will only be given in the 2nd term.

Depending on the outcome of the application for leave to appeal, FOR SA may – in order to protect freedom of religious speech – become involved in the matter.

 SAHRC vs Oscar Bougardt

On Monday, 14 May 2018, the Cape High Court (sitting as an Equality Court) will hear a contempt of court application against pastor Oscar Bougardt.

The application relates to previous legal proceedings instituted by the South African Human Rights Commission (SAHRC) against pastor Bougardt, which concluded in a settlement agreement in terms whereof pastor Bougardt undertook not to make certain offensive statements concerning LGBT people (while reserving his right to preach the Word of God and what the Bible directs, but undertaking not to make statements that go beyond that). In terms of the settlement agreement also, which was signed by pastor Bougardt, he agreed that the settlement agreement could be made an order of court, as it subsequently was.

The current contempt of court application follows in the wake of further offensive statements that pastor Bougardt allegedly made, and which the SAHRC believes to be a breach of the settlement agreement. The SAHRC is asking the Court to, upon conviction, give pastor Bougardt a (suspended) prison sentence, alternatively to sentence him to a R500,000 fine.

“Spanking case” before the Constitutional Court*

FOR SA has applied to the Constitutional Court for leave to appeal against the judgment by the Johannesburg High Court in October 2017, that declared all forms of physical discipline of children – regardless of how light or well-intentioned – to be illegal. FOR SA believes this judgment to be a severe threat to and limitation of parental rights, as well as a censorship of the Scriptures relating to discipline of children and therefore also a violation of the constitutional right to religious freedom.

(For more on FOR SA’s reasons for the appeal, see http://forsa.org.za/application-for-leave-to-appeal-constitutional-court/)

We are currently waiting to hear from the Constitutional Court whether they will hear an appeal in this regard.

The State vs “Prophet of Doom”

Following an earlier interdict obtained by the Limpopo Department of Health against Prophet Letheba Moncha Rabalego (the so-called “Prophet of Doom”) who sprayed his congregants with insecticide claiming that it will heal them of their sicknesses, the Mookgophong Magistrate’s Court has now also found him guilty on various counts of assault with intent to do grievous bodily harm, as well as various counts of contravention of the Stock and Agricultural Remedies Act which deals with pest control operators.

The Court sentenced Rabalego to a fine of R6 000 or two years’ imprisonment (in respect of some charges), and to a R30 000 fine or three years’ imprisonment (in respect of other charges), half of which is suspended for a period of three years on condition that he is not convicted of a similar charge during the period of suspension. (For more, see https://citizen.co.za/news/news-cns/1842103/doom-prophet-sentenced/)

After sentencing, Rabalego’s attorney requested that his client be allowed to pay R3 000 monthly until the fine is fully paid. The Court agreed.

Beloftebos wedding venue*:

In or about August 2017, Beloftebos Wedding Venue, Stanford came under fire 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) subsequently, of own accord and not because a complaint was laid with the Commission, issued Beloftebos with a list of questions with regard to the incident, to which Beloftebos has responded.  Beloftebos has also referred the matter to the CRL Rights Commission for intervention, but has not yet had a response from them.

In March 2018, the CGE advised that they are in the process of finalising their report on the matter.

Tameletjie wedding venue*:

At the end of last year, another Christian wedding venue, Tameletjie in Springs, was targeted for refusing, on grounds of conscience and religious belief, to host a same-sex wedding ceremony at the venue. FOR SA assisted the venue in preparing a media statement in this regard.

According to media reports, the same-sex couple lodged a complaint against the wedding venue with the SAHRC who is currently investigating the matter.

Olivier v Afrikaanse Protestantse Kerk

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”.

The case is opposed by the church, who has filed opposing papers.

Gaum & Others vs The Dutch Reformed Church & Others

Legal proceedings have been instituted in the Pretoria High Court to review and set aside the decision of the General Synod of the Dutch Reformed Church (DRC) in November 2016 to reverse their earlier decision of October 2015 (allowing pastors of the DRC to solemnise same-sex civil unions).

The applicants, who are members or allies of the LGBT community, claim that the 2016 decision is procedurally flawed (and therefore reviewable) because the Church failed to comply with certain procedural provisions in the Church Order, the Promotion of Administrative Justice Act (PAJA) and/or the Constitution itself. Significantly, the applicants claim that that 2016 decision should be set aside, because it amounts to unfair discrimination against LGBT people; diminishes the dignity of members of the LGBT community; “deprives them of the opportunity to celebrate the most important event of most individuals’ lives in their own church” and, as such, is also unconstitutional.

With a view to following a “less confrontational” process, a proposal was made for the matter to be referred to arbitration (outside of court) instead.  (For more info, see http://kerkbode.christians.co.za/2017/11/02/hofsaak-lidmate-stel-arbitrasie-voor/) We understand from the DRC that they have indicated their amenability to submit the matter to arbitration, but have not yet heard anything further from the other side.

SAHRC vs Gretha Wiid

Following receipt of 63+ complaints, the SAHRC delivered a letter on well-known Christian author and evangelist Gretha Wiid, inviting her response to certain allegations of unfair discrimination and “hate speech” against LGBT people, emanating from her books “Lyfslim vir Meisies” en “Lyfslim vir Seuns”. The letter invited her response, amongst other things, on the question of whether people are “born gay”; whether people can change their sexual orientation; and the appropriateness or otherwise of “gay conversion therapy”.

We understand from Wiid’s legal representatives that they are currently engaged in settlement negotiations with the SAHRC.

Nadene is an Advocate, and practised as a member of the Cape Bar for a number of years. She holds both a BA LLB degree from the University of Stellenbosch and a LLM degree in International Human Rights Law (cum laude) from the University of Essex. She currently serves as a Next Generation Board Member on the Advocates Africa Board, representing Southern Africa.

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