On the morning of 1 July 2020, the National Council of Provinces adopted the Civil Union Amendment Bill (“the Bill”). The Bill proposes the removal of civil marriage officers’ right to conscientious objection.

The right to conscientious objection protects marriage officers employed by the state from being forced to preside over same sex marriage unions if it would violate their conscience or sincerely held beliefs.

Having been approved by Parliament, the Bill was sent to the President for final consideration. Cause for Justice (“CFJ”) wrote to the President, setting out the problematic procedural and substantive aspects of the Bill – and requesting him to send the Bill back to Parliament for reconsideration.

Despite the existence of serious and significant concerns, the President signed the Bill on 21 October 2020, and it became enacted – and commenced on the same day – as the Civil Union Amendment Act, 2020 (“the Act”).

DEMOCRACY AND DIVERSITY AT ‘WATERSHED’ MOMENT

The Bill has major implications for human rights in general as well as the rights to equality, human dignity and freedom of conscience, religion, and belief, in particular.

Properly understood, the right to conscientious objection is an important legal mechanism by which the values of South Africa’s constitutional democracy are upheld.

While the Constitution prohibits unfair discrimination, it also recognises the principle of reasonable accommodation,ⁱ whereby tolerance is allowed for people’s sincerely held beliefs.

In the matter of Minister of Home Affairs v Fourie,ⁱⁱ the Constitutional Court addressed the important issue of recognising and accommodating different intensely-held world views and lifestyles in the public square, calling it the “hallmark of an open and democratic society” and emphasising the need for “government to function in a way that shows equal concern and respect for all”.ⁱⁱⁱ

It must be emphasized that the purpose of the conscientious objection clause is to protect the fundamental rights of state-employed marriage officers – and not to discriminate against same sex couples. The right to conscientious objection is not only constitutionally defendable, but also constitutionally desirable.

DEFENDING CONSCIENTIOUS OBJECTION – AND CONSTITUTIONAL VALUES – GOING FORWARD

When the Civil Union Act commenced, civil marriage officers did not automatically loose their right to conscientious objection. The Act contains certain “transitional provisions”. State-employed marriage officers who were granted an exemption to solemnising same sex marriage unions prior to the commencement of the Act, will retain their right to conscientious objection for 24 months after commencement of the Act (after which any exemption granted will lapse).

An important question arises as to what these marriage officers stand to do after 21 October 2022, as well as new or prospective marriage officers employed by the state after 21 October 2020.

In order to obtain clarity, CFJ has engaged the services of Senior Counsel to render a legal opinion on the likely impact of the Act on the fundamental rights of civil marriage officers who are religious and/or conscientious objectors.

[i] Minister of Home Affairs vs Fourie at paragraph [159].

[ii] Minister of Home Affairs and Another v Fourie and Another (CCT 60/04) [2005] ZACC 19; 2006 (3) BCLR 355 (CC); 2006 (1) SA 524 (CC) (1 December 2005).

[iii]Minister of Home Affairs v Fourie at paragraph [95].

A YEAR OF CHILD PROTECTION

During the course of 2020 – despite the challenges of the Covid-19 lockdown regulations and restrictions – Cause for Justice (“CFJ”) continued to seek out and seize opportunities to promote child protection and prevent child exploitation. We may have been physically “locked down” for a couple of months, but we definitely did not allow that to stop us from attending virtual meetings and webinars; engaging with fellow child protection stakeholders; and contributing to child protection forums.

ENGAGING KEY LOCAL AND PROVINCIAL FORUMS AND STAKEHOLDERS

We are proud to be a member of the Helderberg Child Protection Forum. It is an honour and privilege to work alongside dedicated organisations that protect children on “grass roots level”, working hard in our local communities, in the Helderberg area. The Forum is a meeting place where we share can our concerns, provide each other with support, and brainstorm strategic collaboration opportunities. We know that together, we can make a positive impact in our immediate environment and local communities.

In August, we had the privilege of meeting Ms Christina Nomdo, the newly appointed Western Cape Children’s Commissioner. The Commissioner is tasked with the mandate to provide oversight (i.e. act as a watchdog) for children’s rights and children’s voices in the Western Cape.

We have also been invited to apply for membership of the Western Cape Provincial Children and Families Forum and are in the process of finalising our application. We look forward to joining and contributing to the Forum in the new year.

CHILD PROTECTION WEEK 2020

This year we celebrated national Child Protection Week by honouring organisations who work passionately and tirelessly to protect children and to prevent and respond to child exploitation.

WORKSHOPS AND WEBINARS

In February, we were invited to a Child Exploitation Empowerment Workshop presented by Ezrah Training and Development in partnership with Valcare. Attendees learnt about the dynamics of sexual offending; how to guide the internet generation through the digital landscape; how to work together to find solutions to trafficking in children and child labour; and cyberbullying and internet safety.CFJ Legal Advisor, Liesl Pretorius, gave a presentation on the “Legislative Framework of Online Child Exploitation in South Africa” at the Jelly Beanz and Child Trauma Training Online Sexual Exploitation of Children two-day training event. The event was attended by social workers, psychologists and medical doctors; and covered topics such as understanding the many faces of online sexual exploitation; how to talk to children about online sexual exploitation; legislative changes related to pornography, sexting and grooming of children; and interventions for children addicted to pornography.

In October, we attended the two day African Child Trauma Conference (ACTC). The ACTC “provides a unique and accessible platform for child protection stakeholders to connect with investors, scientists, technical experts, development partners, government organisations and civil society to share and consolidate their vision, building consensus and forging new and innovative partnerships to accelerate change in the landscape of child protection in Africa”.

The two days were filled with informative and insightful presentations by a diverse range of experts on important issues such as connectedness during lockdown; prevention and response to sexual exploitation; the role of fathers in breaking cycles of violence; and psycho-social interventions to trauma.

We have been attending the National Department of Social Development 365 Days of Child Protection Webinar Series which covers topics such as creating safety nets for exploited children, creating awareness on online and child trafficking risks, and online safety of children. During October, CFJ Legal Advisor, Liesl Pretorius, gave a presentation on “Pornproofing Children’s Spaces: Necessity and Practical Steps” which included an easy-to-use tool on how to pornproof your home or school, and introduced the attendees to our #ParentTalk on the Unspoken Epidemic of Pornography and Children and other useful resources

LAW AND POLICY MAKING

We have also been participating in numerous law and policy-making forums. Good laws and policies play a crucial role in – and provide the legislative framework necessary for – effective child protection.

This year, CFJ became a member of the newly founded South African National Child Rights Coalition, a coalition of child protection organisations passionate about promoting and protecting children’s rights in South Africa. We were able to contribute to a joint submission to the United Nations Committee of Experts on the Rights of the Child concerned with identifying issues the South African government should report on to the United Nations. CFJ’s contribution was specifically concerned with and highlighted the need for the government to report on the harmful impact of pornography on children.

We are also currently preparing and finalising our substantive written submissions on the Children’s Amendment Bill, 2020. During 2018, we submitted written commentaries on two previous versions of the Bill.

Our submissions focus primarily creating a legislative obligation to protect children from exposure to potentially disturbing or harmful materials and from premature exposure to adult experiences, and to give content to such obligation in so far as it applies to the media, parents, caregivers, guardians and other accountable persons in relation to the well-being and best interest of children.

STANDING TOGETHER TO PROTECT CHILDREN FROM EXPLOITATION
The year is not yet over, and we are looking forward to continue engaging stakeholders and taking up opportunities to contribute to and strengthen the child protection sector.

A new legal challenge was instituted in the Johannesburg High Court in August 2017 in an attempt to legalise physician assisted suicide (PAS) and active voluntary euthanasia (PAE). In terms of current South African law, these acts are prohibited and are treated either as murder or culpable homicide.

During 2015 and 2016, Cause for Justice (CFJ) acted as a friend of the Court in the ‘first euthanasia-case’ (the first case of its kind to be heard under South Africa’s Constitution), the Stransham-Ford matter. In that case, the Supreme Court of Appeal (SCA) ruled that PAS and PAE are rightfully treated as criminal acts in terms of South African law and in terms of the Constitution.

NEW DEATH IS NOT THE SOLUTION TO HUMAN PAIN AND SUFFERING

Any form of legalised active killing is a grave matter with consequences for society, reaching far beyond individuals whose lives are ended as a result of this practice.

The legalising of killing as a means of (medical) treatment or legitimate response to human sickness and suffering due to physical or psychological illness/medical condition, would represent a departure from the bedrock principle that all human lives have inherent worth / inestimable value (sanctity of life), which requires respect and protection.

No matter the extent to which a person may experience loss of quality of life, because each human life has inherent worth, we cannot allow third parties (and especially not doctors) to kill a person because of diminished quality of life, and pain and suffering they may experience.

To depart from this principle, will result in a cultural shift and slippery slope towards acceptance of death as a solution to human pain and suffering. We must guard against this at all cost.

TAKING A STAND FOR THE SANCTITY OF HUMAN LIFE

CFJ has been admitted to the case as an amicus curiae party (a friend of the court). Friends of the court assist the court in the interpretation and application of the constitutional rights, values and interests implicated by the facts of a case. Our aim is to adduce strong evidence and sound arguments to convince the court that euthanasia (in whichever form) is an impermissible violation of the fundamental rights to human dignity and life – and can therefore never be legalised or decriminalised under South African constitutional law.

This would be a major “win” for the sanctity of human life cause.

STATUS OF COURT PROCEEDINGS

The main parties (plaintiffs and defendants) are in the process of delivering summaries of the evidence their respective expert witnesses will present at the trial. After all the main parties’ expert summaries have been received, we will decide what expert evidence we need to present at the trial (if any). In addition to possibly contributing expert evidence to the case, our main contribution will be by way of legal arguments presented to the court, both by way of written submissions (heads of argument), as well as by way of oral submissions at the court hearing.

The case is expected to proceed to trial in early 2021. In the meanwhile, and leading up to the trial, we will continue with all necessary preparations to present a strong case in court.

NEW SCHOOL POLICY ON SEXUAL ORIENTATION AND GENDER IDENTITY

In June 2020, Cause for Justice (“CFJ”) issued a press release concerning a new school policy that is setting the Western Cape government on a collision course with parents.

The Western Cape Education Department (“WCED”) contends that the purpose of its draft Guidelines on Sexual Orientation and Gender Identity in Public Schools of the WCED (“the Guidelines”) is to prevent discrimination in schools. However, a closer inspection of its contents exposes several significant concerns – the most important and problematic are that the Guidelines:

• Pose a real threat to the best interests of children;
• Contain controversial ideological content;
• Is likely to have a detrimental impact on parent-child relationships;
• Allow for unfair discriminatory treatment; and
• Constitute an unlawful intrusion into decision-making purview schools and the national executive.

NEW DEVELOPMENTS (SINCE JUNE 2020)

During October 2020, the WCED circulated a re-worked version of the Guidelines to persons (individuals and organisations) who previously had delivered substantive submissions, and also invited them to a virtual stakeholder meeting. Due to the short notice, none of our team was available to attend the general stakeholder meeting, and the WCED agreed to meet with us separately on a mutually suitable date.

Our diverse team of professionals and experts scrutinised the re-worked Guidelines, and prepared and delivered further written commentary to the WCED. With gratitude, we noted that the WCED incorporated some of our suggestions (included in our formal written commentary submitted in June 2020) in the new version.

We had an encouraging meeting with the WCED. Our team was able to air and discuss our concerns frankly and respectfully. We trust that the WCED will take our contribution and comments seriously.

CONVERSION THERAPY (DR DE VAAL MATTER)

An unfortunate and extremely disquieting development, is the unfounded complaints lodged against Dr Sybrand de Vaal with the Health Professions Council of South Africa and the University of Cape Town (UCT), after the general virtual stakeholder meeting held in October 2020 (in which he participated).

Dr De Vaal is a registered family physician who previously worked in private practice and addiction care. He recently completed four years of psychiatry training through UCT (but has yet to write the final psychiatry examinations – in January and May 2021 – required to register as a specialist psychiatrist). He has a special interest in gender and sexuality from a Christian point of view. While he does not currently work with children with gender dysphoria, he does read widely and is able to critically assess research on this topic.

During the stakeholder meeting, Dr De Vaal was fully transparent when he presented his credentials and was fully within his constitutional rights to speak at the meeting.

He presented a valid scientific argument questioning the efficacy of gender affirming therapies (a position that is valid and rational and should not be supressed because it conflicts with that of a particular pressure group). He did not promote any therapy that could be considered harmful (what he in fact did, was draw attention to the danger that uncritically accepting gender affirming therapies poses for vulnerable children). Neither has Dr De Vaal “adopted practises that would be a danger to his clients” (what he in fact did during the meeting, was to draw attention to the need for additional research into the role of psychotherapy to help resolve gender dysphoria).

Despite this, the baseless complaints against Dr De Vaal include that he misrepresented his experience and level of expertise; presented poorly informed clinical and research evidence; advocated for a framing of a version of reparative therapy or “conversion therapy”; suggested harmful therapeutic processes; is not following clinically and evidence informed practice; and has adopted practices that would be a danger to clients.

The lodging of these complaints should be of great concern to all who value academic freedom.

THE ROAD AHEAD (WHAT IS EXPECTED TO HAPPEN NEXT)

The WCED now needs to consider the further stakeholder comments and inputs it received. It will have to decide, considering the additional submissions and suggestions that were delivered, whether and how the current version of the Guidelines must be amended. The WCED may decide to hold further meetings with some (or all) stakeholders on certain aspects of the Guidelines.

Once this process is completed, and the Guidelines has gone through the WCED’s internal approval structures, the final version of the Guidelines will be published in the Provincial Gazette.

Since our “Comprehensive Sexuality Education Update” article of March this year, and our first “Knowledge Baseline” article of May last year, we have been working hard to bring parents, schools, and educators encouraging news about what they can do in response to the Department of Basic Education (“DBE”) Comprehensive Sexuality Education (“CSE”) Scripted Lesson Plans (“SLPs”).

PARENTS, SCHOOLS AND EDUCATORS HAVE A CHOICE

Parents, schools, and educators need to know that they may choose which learning content to use to teach sexuality education and life skills in the classroom.

The DBE has confirmed that public schools may use alternative learning content and/or programmatic material – i.e. other than the CSE SLPs – to teach Life Skills (“LS”) and Life Orientation (“LO”) as long as it meets the learning outcomes of the Curriculum and Assessment Policy Statement (“CAPS”) for each learning phase and grade.

ALTERNATIVE PROGRAMMES TO DBE CSE

In the past couple of months, we have engaged various owners and/or developers of programmes and learning materials that can be used as alternatives to the DBE CSE SLPs.

Some of these programmes are either fully or partially CAPS compliant for certain grades, while the CAPS alignment of others has not yet been considered (yet still provide useful resources to either substitute or supplement existing LS and/or LO learning materials).

After our consultations, we prepared a summary of alternative programmes. In it, we provide an overview of certain aspects of each, including – content, format of learning material, applicable age groups, cost, and training opportunities. We also checked the extent of each programme’s CAPS compliance with its owners.

If you want to use alternative sexuality education and life skills learning materials in your school, church or other community – and are interested to learn more about alternative programmes – please let us know!

Send us an email at info@causeforjustice.org.

KEEP YOURSELF AND OTHERS INFORMED

• Share this information – that alternative programmes and/or learning materials exist that can be used instead of the DBE CSE SLPs – with other parents and educators, and your school
• Watch our five video shorts – learn why many South African parents, schools and educators have serious and valid concerns with the DBE CSE SLPs.  We answer the following questions:
  1. What is the CSE issue about?
  2. Is there cause for concern?
  3. Is CSE effective at addressing social ills associated with sexual behaviour?
  4. Are the CSE SLPs compulsory for Schools?
  5. What can we do?