Update on Recent or Current Religious Freedom Issues and Cases

by FOR SA
29 November 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 Department of Basic Education (DBE) has advised that it has presented the Bill at the Cabinet Committee and will now proceed to presenting the Bill to Cabinet.  Once the Bill has been approved by Cabinet, it can 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 (Private Member’s Bill to ban conversion therapy on children)*
A DA Member of Parliament (MP) has 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 Bill, FOR 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 considering the numerous comments received, and is also currently conducting public hearings, on the Bill. Once this process is completed, the Department of Social Development will be invited to respond on the inputs and proposals made. The Committee may also invite other relevant departments.  Thereafter, the Committee will consider and deliberate on all the inputs it received and proceed with changing the Bill as it deems fit. 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, various organisations are proposing substantive additions to the Bill that specifically deal with this issue. 

Department of Home Affairs’ proposed Marriage Policy*
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. Most recently, the DHA circulated a questionnaire to be completed 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*
The Bill seeks to increase Parliament’s oversight over the State’s decisions during a state of disaster. The Bill is currently with Parliament’s Cooperative Governance and Traditional Affairs Committee, and was opened for public comment until 26 August 2021.  The Committee will continue with the stakeholder engagement in the new year. Thereafter, the Committee will consider and deliberate on all the inputs received and proceed with changing the Bill as it deems fit. (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 Bill, 2020*
The Bill was adopted by both houses of Parliament and sent to the President for assent (to be signed into law) on 10 September 2021.  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. From a religious freedom point of view, FOR SA made submissions on the Bill’s inclusion of “spiritual abuse”, and proposed an alternative definition which was accepted and incorporated into the Bill by Parliament. The President is still to sign the Bill into law at the time of writing this article.

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 follow the Films and Publications Amendment Act (which was signed into law by the President last year, but has not yet come into operation, as the Regulations first need to be finalised). The Regulations are in the final stages, and the Film and Publication Board (FPB) has advised that it proposed to the Department of Communications and Digital Technologies that it would be helpful to ensure that both the Act and the Regulations come into operation simultaneously during the beginning of 2022. (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.) 

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 considering all the public input received. (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*
Cabinet approved the Department of Basic Education’s draft policy at the end of September 2021. The final policy will shortly be gazetted, whereafter the Department will proceed with national roll-out. (From a religious freedom point of view, FOR SA made submissions 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. FOR SA’s court case against the COGTA Minister, challenging the complete ban on religious gatherings during December 2020 / January 2021, was heard on 22 – 24 November 2021.  Judgment has been reserved.

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 by the extended date of 30 June 2021, and is now considering the numerous comments received. 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 currently considering the numerous comments received 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 and pointing out the chilling effect of the Bill’s 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 Committee)
Chief Justice Mogoeng Mogoeng has appealed the recent decision by the Judicial Conduct Committee (JCC) to the effect 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. 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). The appeal is currently pending.

FOR SA v Minister of COGTA and others (Johannesburg High Court)*
The Court heard FOR SA’s case against the COGTA Minister 22 through 24 November 2021.  Judgment has been reserved.  FOR SA instituted the case against the 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 were 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 asked 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.

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 most recently 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 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)*
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)*
Following a complaint against him by transgender activists more than a year ago, Dr Sybrand de Vaal was this week vindicated by the Health Professions Council of South Africa (HPCSA). The HPCSA found that Dr de Vaal did NOT misrepresent his credentials when he (at FOR SAs invitation) made submissions as part of the Western Cape Education Department’s consultation process around their Draft Guidelines for Sexual Orientation and Gender Identity in public schools.

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 was recently formally admitted as an amicus curiae (“friend of the court”) in the matter, which has now been set down for hearing on 19 January 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)
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 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 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. Two other parties have since joined the application against Mr Chetty.  FOR SA has been admitted as an amicus curiae (“friend of the court”) in the matter.  The matter is set down to be heard on 17 and 18 February 2022.

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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