IN FOCUS: FUNDAMENTAL FREEDOMS - RELIGION, EXPRESSION AND ASSOCIATION(SECOND SEMESTER 2022)
IN FOCUS: FUNDAMENTAL FREEDOMS – RELIGION, EXPRESSION AND ASSOCIATION
(SECOND SEMESTER 2022)
Cause for Justice (CFJ) advocates for the responsible exercise (and enjoyment) of constitutional rights and freedoms. These include, amongst others, freedom of expression; freedom of conscience, religion, belief, thought and opinion; and freedom of association.
The Bill of Rights “enshrines the rights of all people in [South Africa] and affirms the democratic values of human dignity, equality and freedom” (Section 7(1) of Constitution), and confirms that everyone “has inherent dignity and the right to have their dignity respected and protected” (Section 10 of the Constitution).
For many (if not all) persons, the ability to express and live in accordance with their sincerely held beliefs – whether religious or not – and to associate freely with others who believe similarly (and not to be forced to associate with others who believe differently), is inseparable from living a dignified life.
HATE CRIMES AND HATE SPEECH BILL
The Hate Speech Bill seeks to create two new criminal offences in South African law, namely “hate crime” and “hate speech”. Persons convicted of these offences, will face fines and/or imprisonment.
Many definitions in the Bill are overbroad and will have severe implications for freedom of expression and other constitutional freedoms, most notably freedom of religion. The Bill has the potential to prohibit people from communicating their convictions, thoughts and opinions – no matter how sincerely held, respectfully communicated, and objectively supported by facts and research these may be.
Because the Bill purports to criminalise speech, people may end up being imprisoned for merely saying something that some regard as “politically incorrect”, even if they are in fact not advocating hatred or inciting harm against anyone.
Since September 2022, the Bill has been the subject of intense Parliamentary deliberations. CFJ is encouraged by the attention being given to the Bill by the Portfolio Committee.
We have also been collaborating with fellow stakeholders over the past several months in the lobbying of members of Parliament to intervene on the concerning aspects and potential detrimental consequences of the Hate Speech Bill.
- Learn more about the Hate Speech Bill by reading our latest blog on legislative developments affecting fundamental freedoms.
PEPUDA AMENDMENT BILL
The purpose of the PEPUDA Amendment Bill is to improve the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA). The Bill contains several problematic proposals and aspects, including:
- The proposed expansion of the definitions of ‘equality’ and ‘discrimination’ beyond constitutional (and logical) limits; and
- Failing to adequately distinguish between ‘mere’ and ‘unfair’ discrimination (the Constitution only prohibits ‘unfair discrimination’).
CFJ has major reservations about the potentially far-reaching detrimental impact and questionable constitutionality of the Bill, which (ironically) is likely to have an adverse effect on the promotion of equality and prevention of unfair discrimination in South Africa. This is due to the Bill effectively limiting (whether intentional or not) fundamental rights – most notably freedom of religion, freedom of expression and freedom of association.
CFJ delivered supplementary written submissions on the Bill to the Department of Justice and Constitutional Development during October 2022, and participated in their consultative stakeholder workshop.
- Learn more about the PEPUDA Amendment Bill by reading our latest blog on legislative developments affecting fundamental freedoms.
ANTI-MONEY LAUNDERING BILL
The General Laws (Anti-Money Laundering and Combating Terrorism Financing) Amendment Bill seeks to improve measures to address money laundering and terrorism financing – in order to prevent the Republic from being grey-listed by the Financial Action Task Force (FATF; the global anti-money laundering and terrorism financing watchdog). While CFJ supports these laudable objectives, the initial version of the Bill included drastic – and clearly unconstitutional – proposals, such as requiring blanket compulsory registration for all local nonprofit organisations (NPOs) and even imposing criminal sanctions for non-compliance with financial management obligations in the NPO Act. The Bill is currently making its way through Parliament.
During October, we delivered preliminary written submissions and thereafter substantive written submissions on the Bill to the Standing Committee on Finance (a working committee of the National Assembly). We also acted quickly to alert the public to the drastic proposals. Due to concerted stakeholder engagement, these proposals have now been abandoned.
As things currently stand, compulsory registration is only proposed in respect of a limited subset of NPOs that are deemed to be especially ‘at-risk’ for money laundering and financing terrorism. Also, the proposed imposition of criminal sanctions has been replaced with administrative sanctions only.
While we are encouraged by these marked improvements, and support constructive efforts to effectively combat social ills, we believe the current version of the Bill can be improved even further. This will help avoid potential future constitutional challenges to the Bill, as well as detrimental consequences to the NPO sector and the beneficiaries of their welfare work (vulnerable individuals and communities in the Republic).
To the extent that the additional administrative and financial burden contemplated by the Bill will force NPOs to reduce or cease operations, much harm will be suffered by South African society.
Learn more about the Anti-Money Laundering Bill, by reading and listening to:
- Our latest Anti-Money Laundering Bill blog.
- Our written submissions and oral submissions (presentation slide deck).
- Our oral submissions and additional comments to the Select Committee on Finance on:
- Our oral submissions and additional comments to the Standing Committee on Finance on:
TERRORIST AND RELATED ACTIVITIES AMENDMENT BILL
The Protection of Constitutional Democracy Against Terrorist and Related Activities Amendment Bill seeks to update and bolster South Africa’s anti-terrorism laws, including preventing and combating the financing of terrorist activities. Cause for Justice delivered written submissions on the Bill to Parliament’s Portfolio Committee on Police during October 2022.
We are concerned that the proposed amendments will have a chilling effect on the fundamental right to freedom of expression, that is wholly disproportional to the actual threat of domestic terrorism. For example, the vague and overbroad definition of “terrorist activity” creates legal uncertainty, making it susceptible to abuse and likely to invite litigation (i.e. constitutional challenge in court).
The Portfolio Committee adopted a somewhat improved, amended version of the Bill on 18 November 2022. For example, the proposal to introduce a new crime criminalising the publication of so-called terrorism-related content, was abandoned.
If adopted by Parliament’s National Assembly, the Bill will be transferred to the National Council of Provinces for further consideration by the delegations of the nine provinces.
- Learn more about the Terrorism and Related Activities Bill by reading our latest blog on legislative developments affecting fundamental freedoms.
OTHER FUNDAMENTAL FREEDOMS-RELATED LAW AND POLICY DEVELOPMENTS
NPO Amendment Bill
During November 2022, Cause for Justice delivered written submissions on the draft NPO Amendment Bill to the Department of Social Development (DSD), inter alia cautioning that proceeding with the Bill at this time is premature. The Bill seeks to amend some of the exact same provisions of the NPO Act as the Anti-Money Laundering Bill does. What is more, these proposals are at odds with the proposals in the Anti-Money Laundering Bill.
We recommended to DSD, that it would be prudent to hold over the NPO Amendment Bill until after the Anti-Money Laundering Bill has been finalised.
Marriage Law Reform
Cause for Justice has been participating in various marriage law reform processes. These include the Department of Home Affairs’ (DHA) development of its policy position on marriage in the Republic, and the South African Law Reform Commission’s (SALRC) project on the possibility of a single marriage law governing all marriages in South Africa (SALRC Project 144).
The DHA published its White Paper on Marriages in South Africa in May 2022, which will form the basis of any proposed marriage legislation. It has not yet put out any draft marriage legislation. The SALRC is currently preparing its Socio-Economic Impact Assessment System (SEIAS) report which it will submit together with their final report on Project 144 to the Minster of Home Affairs, and eventually the President of the Republic, for approval.
- Read more about South African marriage law reform here.
Official Identity Management Policy
Cause for Justice commented on the DHA’s draft Official Identity Management Policy in February 2021. The policy contains certain proposals, which if adopted ‘as is’, risk enforcing a particular ideological view about the nature of human identity, on the whole of South African society.
We have been following the progress of the policy, and have been advised that it is expected to be submitted for cabinet approval in early 2023.
- Read more about the draft Official Identity Management Policy here.
Beloftebos (Equality Court Case)
Cause for Justice remains poised to formally join the Beloftebos case as a ‘friend of the court party’, if the matter is not resolved out of court. The Beloftebos venue continues to face legal action for their decision to only host marriage ceremonies based on their sincerely held religious belief that marriage is a union between one man and one woman. The Human Rights Commission and a couple who instituted legal proceedings against the owners of the venue have to date not indicated a willingness to withdraw or settle the case.
HELP US TO CONTINUE TAKING ACTION TO PROTECT OUR FUNDAMENTAL FREEDOMS
The free and responsible exercise of constitutional rights is important. In our diverse and pluralistic society, everyone should be able to live their lives in accordance with their sincerely held beliefs, free from fear of reprisal.
Cause for Justice will continue making a stand to defend fundamental freedoms in South Africa, in order to ensure we can all continue to freely, responsibly and fearlessly exercise our beliefs and express conscientious views and opinions in the public interest.
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.
Cause for Justice is a registered public benefit organisation for South African income tax purposes and may issue section 18A receipts, which entitle donors to claim tax deductions in respect of donations made to Cause for Justice.