[notice]Advocate Nadene Badenhorst, Legal Counsel, Freedom of Religion South Africa (FOR SA) provides an overview of the Religious freedom cases and issues that are in the pipeline for 2016. Watch this space…[/notice]
Religious freedom is one of the most pressing issues facing Christians in SA today. Increasingly, Christian pastors, churches, ministries, political parties, schools, businesses, families and individuals are being harassed and threatened with legal action because of their Christian convictions and beliefs, which are seen as “fundamentalist”, “bigoted”, “narrow-minded”, “offensive”, even “hate speech”.
Since the start of the organisation in 2014, Freedom of Religion South Africa (FOR SA) has been at the forefront of the fight for religious freedom and the autonomy of the Church in SA. We have been involved in almost every case where Christians have been summoned before the Courts or Chapter 9 institutions (including the SA Human Rights Commission (SAHRC) and the Commission for Gender Equality (CGE)), to defend their beliefs. We have made submissions to government and Parliament on various policies and legislation potentially affecting religious freedom, and have had some wonderful victories for which we are truly grateful to the Lord.
To date, religious leaders, organisations and individuals representing approx. 5 million people in SA have joined as members of FOR SA. Our rallying point is that while, as Christians, we may disagree with each other on issues of theology, interpretation of the Bible, etc, we can agree on this: it is not for the State to tell us what we may and may not believe, teach and preach, or how we should live our lives according to the Word of God. People should be free to believe, to say and to live, what they believe. It is their constitutional, and human, right.
This article is an overview of the cases and issues in which FOR SA is currently involved, and the legislation in the pipeline for 2016, together with a “Call To Action” to support and partner with us on these issues. Together, we can make a difference – for the good of our country, and to the glory of God!
A Mostert v Joshua Generation Church (SAHRC)
In 2013, an atheist couple laid a complaint with the SAHRC against Joshua Generation Church (“JoshGen”), a well-known church in the Western and Southern Cape. The couple’s complaint was not based on any actual incident of child abuse, but targeted the Biblical teaching (based on Scriptures such as Proverbs 13:24; Proverbs 22:15; Proverbs 23:13-14) that parents have a duty to give their children appropriate guidance, including at times to spank them (at times, when necessary, always in love, and always within the legal bounds of “reasonableness” and “moderation”) for their education and benefit.
In its Report released in January 2016, the SAHRC found that spanking in the home violates children’s and other constitutional rights, and is for that reason unconstitutional and unlawful. As a result, the SAHRC recommended that:
-JoshGen furnishes the SAHRC with a written undertaking that it will desist from advocating spanking as a means of disciplining of children;
-The Church removes all references to physical punishment / chastisement or correction from its teaching materials;
-The Church’s trainers and pastors involved in presenting its parenting course, take a course in alternative forms of non-violent discipline of children (“sensitisation training”);
-The remaining recommendations were directed at the Department of Social Development (DSD) and Parliament, with a view to initiating amendments to the Children’s Act so as to ban spanking in the home.
Importantly, contrary to what the SAHRC’s Report suggests, JoshGen does not actively “promote” or “require” members to spank their children. The Church does however believe, teach and preach (the whole of) the Bible, as it has every right to do, including therefore the Scriptures on child correction. How those Scriptures are interpreted and applied by parents however, is up to each parent to decide for themselves because every child is unique. In this, JoshGen is supported by religious leaders representing 12 million people in SA.
The SAHRC’s Report is greatly concerning. It crosses the sacred line of family, and interferes with the freedom of parents to raise their children according to their own moral or religious convictions. Should the Report remain unchallenged and be accepted by Parliament, potentially responsible parents who love their children and only want what is best for them, could find themselves arrested and prosecuted on charges of assault, and have their children removed from them and placed in foster care (as is already happening in countries like Sweden where spanking is forbidden). One can only imagine that damage that this will do to children and families in SA!
The Report further violates freedom of religion (s 16), free speech (s 16), as well as the rights of religious communities to practice their faith (s 31). As such, it impacts and affects not only JoshGen, but all churches and Christians, and in fact believers across different faith groups, in SA.
It is not the place of the SAHRC, as a secular institution, to tell believers how to read and interpret their sacred texts. That is between them and God alone. The Report puts believers before the choice of obeying the law, or obeying their faith (with legal consequences should they choose to obey their faith instead). This is unconscionable and unconstitutional. Should the SAHRC’s recommendations remain unchallenged, it would open the door to the SAHRC censoring any religious belief and speech in SA, leaving any sacred text they disagree with, vulnerable and at risk of being banned.
In the circumstances, JoshGen has no choice but to appeal the findings and recommendations of the HRC, which is due end March – for the sake of protecting families, and religious freedom in SA.
CALL TO ACTION: Since 2013, JoshGen has expended a great deal of time, effort and money on litigation in this matter. As this matter which is likely to end up in Court, affects not only JoshGen but all churches and indeed believers in SA, FOR SA invites you to stand with us in protecting religious freedom and free speech in SA, by:
-Joining FOR SA (at no cost), and giving us your mandate to stand with JoshGen on this issue;
-Let us have your details so that we can inform you of any protest marches that may take place; and
-Making a contribution to the legal fees in this matter. Details of FOR SA’s bank account can be found at the end of this article (deposit reference: Spanking).
OGOD v Laerskool Randhart & 6 Others
In this case, a secular group by the name of OGOD instituted legal action against six public schools with a Christian ethos, in the Johannesburg High Court in 2014. OGOD is asking the Court to find that the schools, by promoting or associating with a particular religion, are breaching the National Policy on Religion and Education. It also claims that the schools are abusing the constitutional rights of learners to freedom of religion and conscience, as well as access to knowledge, by rendering religious instruction; referring to a deity in the school badges and mottos; opening assemblies or class with Scripture and prayer, and allowing religious singing; teaching creationism; allowing Christian activities, evangelism and testimonies, at school, etc.
This is a very important case for religious freedom and education in SA. Should the Court find in favour of OGOD, Christianity could potentially be banned from schools. As a result, schools could become sterile environments for the Gospel.
FOR SA (along with other signatories to the SA Charter of Religious Rights and Freedoms, and under the banner of the SA Council for the Protection and Promotion of Religious Rights and Freedoms), has obtained the consent of the parties to be admitted as “Friend of the Court” in the matter.
The parties are still in the process of exchanging papers, and the matter is not yet ripe for hearing. As a result, no date has been determined for the hearing of the matter yet.
Investigation into the “commercialisation” of religion and abuse of people’s belief systems
In 2015, the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (the CRL Rights Commission) launched an investigative study into the “commercialisation” of religion and abuse of people’s belief systems. To this end, the Commission subpoenaed a number of churches (along with representatives of other religions in SA) to appear before them. Investigations have been concluded in Natal and Gauteng, and are currently underway in Cape Town.
While FOR SA shares the Commission’s concerns about unscrupulous pastors who abuse their positions to manipulate the poor out of money for selfish gain, we are concerned that the scope of the investigation is overbroad and touches on matters of religious doctrine which are protected from State interference. In similar vein, we are concerned that the Commission’s proposed solution to the problem, namely “self-regulation” of religion (including the Church), is not a workable or constitutionally permissible solution. (Note that “self-regulation” of the Church in the sense proposed by the Commission, does not mean that churches will be free to regulate, or govern, their own internal affairs, free from interference or restriction by the State or anyone else. Instead, what the Commission has proposed and what it intends by “self-regulation”, is that there should be a central oversight body, made up of representatives of the Christian faith, but which body is recognised by the State and has the power of the State behind it).
Last year already, FOR SA met with the Commission to share our concerns and propose alternative solutions, which were welcomed by the Commission. The Commission has been a great friend to FOR SA and to religious communities, and our hope is to work with them in finding practical, and constitutionally permissible, solutions that will protect religious freedom and the autonomy of the church in SA. To this end, FOR SA has been invited to address the Commission again in Cape Town on Friday, 12 February.
CALL TO ACTION: Please share FOR SA’s concerns regarding the proposed regulation of the Church, with your pastor and encourage them to join FOR SA so that we may speak as a united voice, on behalf of the Church in SA, to the CRL Commission on this pressing issue. (For more information about “Why We Cannot Regulate Religion”, see the FOR SA website).
Outlawing spanking in the home
One of the first matters expected to come before Parliament this year, is the proposed ban on spanking in the home (as proposed by the SAHRC in its Report against Joshua Generation Church, referred to above). Spanking in the home is currently legal in SA, provided that it is “reasonable” and “moderate”, does not leave an injury, and is solely for the child’s education and correction. This is the position until the Court rules otherwise, or Parliament amends the Children’s Act so as to criminalise spanking in the home.
The Department of Social Development (DSD) has confirmed that it is currently in the process of developing the policy framework that will inform the proposed amendments to the Children’s Act (including on the issue of child discipline). While there is no Bill as of yet, all indications are that the proposed amendments to the Children’s Act will make it a crime for parents to spank their children – in all circumstances, even when non-injurious.
As a result, good parents who love their children and only want what is best for them, could find themselves arrested, and have their children removed from them and placed in foster care. This is already happening in Sweden (the first country to legally ban spanking in the home), where the criminalisation of spanking has resulted in hundreds of normal parents being harassed by the police and social authorities, prosecuted and sentenced, because they have employed mild spanking for bad behaviour. For e.g. in November 2010, a Swedish district court sentenced a couple to 9 months each in prison and fined them the equivalent of R125,000 after they admitted to spanking three of their children as a normal part of parenting. There was no indication of abuse by the parents in the court documents, with the court specifically noting that the parents “had a loving and caring relationship with their children”. Nevertheless, the parents were sent to prison and fined. The children were remanded to State-sponsored foster care, and it seems extremely unlikely that they will be returned to their family home.
Readers may be interested to know that in South Africa, children are already being removed from parents whose Christian belief is regarded as a threat to their children! In Pietermaritzburg last year, homeschool children were removed from their Christian parents and placed in foster care, because the social worker was concerned that the children were suffering “religious indoctrination” from their parents. The children were only reconciled with their parents months later, after a battle in Court! If this is already happening on account of homeschooling, one can only imagine what would happen on a charge of assault (in the event of spanking being criminalised)!
Since 2014, FOR SA has consulted with various legal and psychological experts, locally and abroad, with a view to putting comprehensive research and arguments before Parliament in support of retaining reasonable and moderate chastisement in the home. We believe that, instead of creating another law, government should rather spend its time and our taxpayers’ money on implementing the existing laws, which already firmly protect children against child abuse.
FOR SA is in close contact with DSD, and keeping a watchful eye on developments in this regard. As soon as the proposed amendments to the Children’s Act are in the public domain, we will inform the public of the proposed amendments and when, where and how to submit written comments thereon to Parliament.
CALL TO ACTION: FOR SA encourages you to stand with us in protecting parental, and religious, freedom in SA, by:
-Joining FOR SA (at no cost), and giving us your mandate to speak on your behalf to Parliament on this issue;
-Let us have your details so that we can inform you of any protest marches that may take place; and
-Making a contribution to the professional fees (lawyers, psychologists, etc) in this matter. Details of FOR SA’s bank account can be found at the end of this article (deposit reference: Spanking).
The SA Law Reform Commission (SALRC) is currently reviewing the Witchcraft Suppression Act, 1957. In terms of the current Act, all forms of witchcraft (including Wicca and traditional healers) are criminalised.
In its Discussion Paper, the SALRC recommends that the current Act be repealed, but be replaced with a modern law that concerns itself with prohibiting conduct that is harmful to society, including specifically:
-Crimes associated with harmful witchcraft; and
CALL TO ACTION: The SALRC has invited public comment on its Discussion Paper and proposed recommendations, which can be read here (http://forsa.org.za/comment-invited-on-proposed-review-of-witchcraft-suppression-act/). The deadline for comments is 30 April.
New Hate Speech Legislation
Also in the pipeline this year, is the new hate crimes legislation. This legislation is expected to be highly contentious because of the hate speech provisions therein. The fundamental issue will be the balancing between rights, i.e. the constitutional prohibition on hate speech, against the constitutional right to free speech.
This legislation will have a direct impact on the ability of the church and indeed of Christians, to freely speak, preach and teach their Christian beliefs (particularly in relation to issues of sexual morality, Biblical marriage, the fact that God created us male and female, etc). If not careful, the legislation could potentially result in Christians being harassed by those who hold to a liberal worldview, and being prosecuted and sentenced for “hate speech”.
In January, the Department of Justice & Constitutional Development (DOJ&CJ) released the Draft National Action Plan against Racism and Other Intolerance (including intolerance against LGBTI people), that will help inform the new hate crimes legislation.
CALL TO ACTION: The DOJ&CJ has invited public comment on the NAP, which can be read here (http://www.justice.gov.za/docs/other-docs/nap.html). The deadline for comments is 30 June.
SUPPORTING AND PARTNERING WITH FOR SA:
As an organisation, we greatly value and appreciate the ongoing support, encouragement and prayer from Christians in SA and around the world, without which we could not fulfil the mandate God has given us to protect religious freedom and the autonomy of the Church in SA. May we also encourage you to partner with us financially, so that we keep on defending Christian pastors, churches, ministries, businesses, schools and families in SA.
As a non-profit organisation, FOR SA does not generate any income and at this stage is carried almost completely (from a resource and funding point of view) by one of the member churches. Having more finances at our disposal however, will enable us to be more effective in our work. In particular, we are trusting for finances to employ another full-time lawyer in our FOR SA office this year, as the case load is already great and increasing by the day!
Please help us to keep our faith free, by making a once-off or regular financial donation to FOR SA. We appreciate every gift, big or small. Every gift makes a difference! FOR SA’s bank account details are:
Account: FOR SA
Bank: ABSA (Branch code 632005)
Account number: 406 211 4352.
*FOR SA is a non-profit organisation, working to protect and promote religious freedom and the autonomy of the Church in SA. To join the organisation (at no cost) and/or sign up to the Newsletter, visit www.forsa.org.za Also follow us on Facebook at “Freedom of Religion SA” for regular updates on religious freedom issues, locally and abroad.