PROTECTING SOUTH AFRICANS’ CONSTITUTIONAL RIGHTS AND FREEDOMS(DECEMBER 2021)
A SHORT OVERVIEW OF SOME OF CAUSE FOR JUSTICE’S STRATEGIC ACTIVITIES DURING THE SECOND HALF OF 2021
The responsible exercise and enjoyment of constitutional freedoms – such as freedom of religion, freedom of expression and freedom of association – is one of our core values. That is why Cause for Justice (CFJ) is committed to promoting and protecting these precious freedoms.
MARRIAGE LAW REFORM
Marriage is not a ‘state institution’: the state cannot prescribe what marriage is (or is supposed to be) or is not (or may not be). Marriage is both highly personal, intimately intertwined with religious (or secular) beliefs and cultural traditions and practices, and at the same time is the most important public institution in society. Cause for Justice is committed to ensuring that South African marriage laws accommodate, protect and promote true diversity.
Department of Home Affairs Green Paper on Marriage in South Africa
The values of a constitutional democracy (founded on human dignity, the achievement of equality and the advancement of human rights) requires minimum state interference and maximum recognition and protection of marriage.
The Department of Home Affairs is busy with an extensive South African marriage law reform project in order to determine what the official state policy position on marriage should be. During July and August, we ran a public awareness campaign – alerting and encouraging the public to raise their voice about marriage – by completing a questionnaire circulated by the Department.
Cause for Justice also attended consultative stakeholder workshops and the Department’s National Colloquium on Marriage, in addition to delivering written submissions. We relied on case law and legal arguments to show some of the policy proposal put forward by the Department are acceptable while others would not withstand constitutional scrutiny – especially those that violate marriage officers’ fundamental right to freedom of religion, conscience, belief and opinion.
The Department is considering all the public comments it received, in order to produce a White Paper setting out its official policy position.
- United in matrimony and diversity (blog article)
- No room for the state in a marriage (Mail & Guardian op-ed)
- Human rights organisation takes stand for ‘unity in diversity’ amidst marriage law reform (press release)
South African Law Reform Commission Project 144: Single Marriage Act
The South African Law Reform Commission is considering the possibility of adopting a single piece of marriage legislation. We support the Commission’s view that the state has no legitimate mandate (i.e. no right) to define or impose its views on ‘marriage’ on cultures and groups within society.
Cause for Justice participated in Project 144 by delivering written submissions and participating in consultative stakeholder workshops. Our contributions focused on protecting diversity in a pluralistic society (such as South Africa) and the importance of the state recognising and giving legal protection to different marriage relationships for sound public policy reasons. This is state’s only lawful concern and accompanying duty, and will ensure that constitutional rights such as equality and freedom of religion are upheld.
The Commission is compiling its final report, which takes into consideration all the public inputs received.
HATE CRIMES AND HATE SPEECH BILL (AND THE IMPACT OF THE QWELANE JUDGMENT)
The Prevention and Combating of Hate Crimes and Hate Speech Bill seeks to create two new criminal offences, namely ‘hate crime’ and ‘hate speech’, coupled with sentences in the form of stiff fines and/or imprisonment. In written submissions (to Parliament’s Portfolio Committee on Justice and Correctional Services) during a previous round of public consultations, we pointed out that the Bill’s many over-broad and subjective definitions are likely to have severely detrimental implications for freedom of speech and freedom of religion.
Cause for Justice does not condone the advocacy of hatred or incitement to harm others – neither do we condone imprisonment merely for expressing ‘politically incorrect’ views. We are concerned that the current version of the Bill risks prohibiting South Africans from communicating their sincerely held and/or objectively supported convictions, thoughts and opinions.
Impact of Qwelane judgment
On 31 July 2021, the Constitutional Court handed down judgment in the matter of Qwelane v South African Human Rights Commission and Another [2021 ZACC 22]. The judgment holds direct and major implications for both the Hate Crimes and Hate Speech Bill and the PEPUDA Amendment Bill (see further below).
While containing positive aspects, some parts of the judgment are a cause for concern.
On a positive note, the highest South African Court confirmed that:
- Determining whether speech is non-protected “hate speech”, requires an objective assessment (i.e. not a subjective determination based on personal feelings, tastes, or opinions).
- To qualify as hate speech, the speech in question needs to demonstrate a clear intention to be harmful or incite harm – as well as promote or propagate hatred.
- Private communications or conversations are excluded from the ambit of ‘hate speech’.
However, of concern (or problematic) is the interpretation of hate speech adopted by the court and its application of this interpretation to the facts of the Qwelane case:
- Potentially legally prohibiting ideas, non-verbal expressions, the meaning behind words, ideologies, beliefs, etc.
- Failing to differentiate between speech which itself harms or causes harm, and speech that incites others to cause harm (to bring harmful speech that does not incite others to cause harm into the ambit of hate speech, requires a careful and comprehensive constitutional analysis in terms of the ‘limitations clause’ – i.e. section 36 of the Constitution).
- Incorrectly stating that the Constitution obliges Parliament to enact legislation to prohibit hate speech.
- Expanding the prohibited grounds (i.e. grounds on which discrimination is presumed to be unfair) as well as grounds for hate speech, beyond what the Constitution requires and/or without providing sufficient judicial reasons.
Promotion of Equality and Prevention of Unfair Discrimination (PEPUDA) Amendment Bill
The South African Constitution does not recognise a so-called ‘hierarchy of rights’: all fundamental rights are equally important. That is why, when rights conflict, it is crucial to balance them in a reasonable and justifiable manner. This achieves the constitutional purpose of ensuring the widest possible protection of all – and not only some – persons’ rights.
Our written submissions on the PEPUDA Amendment Bill emphasised the importance of protecting freedom of expression and freedom of religion in a pluralistic and democratic society. Despite ostensibly laudable objectives, the current version of the Bill contains proposals that are likely to have a chilling effect on the enjoyment of fundamental rights and freedoms. Absurdly, this is likely to lead to more inequality and unfair discrimination (in addition to rendering the amendments unconstitutional) – which is exactly the opposite of what the Bill purportedly seeks to achieve.
The Department of Justice and Constitutional Development now needs to reconsider (and redraft or scrap) the Amendment Bill – in light of objections and submissions received from the concerned public and in the light of the Constitutional Court judgment in the Qwelane matter (see Hate Crimes and Hate Speech Bill above).
- Proposed amendments to ‘Equality Act’, absurdly, may increase inequality and unfair discrimination (press release)
Beloftebos (Equality Court case)
The Beloftebos case holds far-reaching consequences for all businesses in South Africa. The wedding venue faces legal action for its owners’ decision to only host marriage ceremonies based on their sincerely held religious belief that marriage is a union between one man and one woman.
If the door is opened for South African private businesses being forced to act contrary to their sincerely-held beliefs just to be able to continue making a living, it will have a devastating impact on (and be major violation of) the right to freedom of religion, belief and opinion. It will also have a chilling effect on the health and vibrancy of our constitutional democracy.
If the South African Human Rights Commission proceeds with legal action against Beloftebos, Cause for Justice is poised to apply to be admitted to the case as an amicus curiae party (‘friend of the court’) in order to assist the court in its adjudication of the matter by presenting evidence and legal arguments.
Children’s Amendment Bill, 2021 (conversion therapy ban)
During July 2021, a Democratic Alliance Member of Parliament (MP), issued notice of her intention to introduce a new Bill amending the Children’s Act. The purpose of the Bill will be to ban conversion therapy – a practice aimed at addressing unwanted same sex attraction – for children, even making it a criminal offence. To date, no Bill has been published.
In the meanwhile, Cause for Justice wrote to the MP (and the Speaker of Parliament), pointing out that inviting public comments without publishing a draft Bill, is a contravention of the Rules of Parliament.
Cause for Justice condemns all forms of child abuse, including so-called conversion therapy – which is a coercive form of therapeutic intervention aimed at the desistance of same-sex attraction. Yet we are concerned that a blanket ban on clinical therapies, other than so-called conversion therapy, will result in some vulnerable children being prevented from accessing and receiving the very therapeutic services they want and need most. In addition, it is likely to lead to the unfair restriction of religious freedoms and even prosecuting well-meaning persons of faith.
Official Identity Management Policy
The Department of Home Affairs’ draft Official Identity Management Policy contains certain proposals, which if adopted, risk enforcing a particular ideological view about the nature of human identity, on the whole of South African society. Proposals include legislative amendments to the Identification Act as well as the Alteration of Sex Description and Sex Status Act.
Cause for Justice delivered written submissions to the Department early in 2021 and have been following the Policy’s progress since. The Department has indicated that it expects the Policy to reach the Cabinet by early 2022.
Our objective remains to prevent radical ideological views finding their way into official government policy – especially views not grounded in objective reality (medical/biological science) nor held (or supported) by the majority of South Africans.
LEARN MORE ABOUT HOW WE PROTECT YOUR RIGHTS
Want to learn more about how Cause for Justice has protected your fundamental freedoms during 2021? Read our –
HELP US TO CONTINUE TAKING ACTION TO PROTECT FUNDAMENTAL FREEDOMS
The free and responsible enjoyment of constitutional rights is important to us; we believe everyone should be able to live out their sincerely held beliefs in our diverse and pluralistic society. For this reason, Cause for Justice will continue taking up causes and making a stand to defend fundamental freedoms in South Africa.
If you are also passionate about protecting the above freedoms, we invite you to support our work by way of regular or ad-hoc donations. Without your contribution, we will not be able to continue taking up worthy causes such as these.
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