LEGISLATIVE DEVELOPMENTS AFFECTING YOUR FREEDOM OF RELIGION, EXPRESSION AND ASSOCIATION
(November 2022)LEGISLATIVE DEVELOPMENTS AFFECTING YOUR FREEDOM OF RELIGION, EXPRESSION AND 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]
In the Republic, everyone is “equal before the law and has the right to equal protection and benefit of the law”, and is entitled to “the full and equal enjoyment of all rights and freedoms”. [Sections 9(1) and (2)] Neither the state nor any person may unfairly discriminate against anyone on certain grounds, including ‘religion’, ‘conscience’, and ‘belief’. [Sections 9(3) and (4)]
The Bill of Rights confirms that everyone “has inherent dignity and the right to have their dignity respected and protected”. [Section 10]
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, is inseparable from living a dignified life.
This is why Bill of Rights inter alia recognises and defends the rights to:
- Freedom of religion, belief and opinion; [Section 15]
- Freedom of expression; [Section 16]
- Freedom of association. [Section 18]
This blog examines three significant Bills that are set to have a direct impact on the advancement of these three fundamental freedom rights – and per extension, the full enjoyment of the rights to equality and human dignity as well.
Where fundamental rights come into conflict with another, a careful balance must be struck within constitutional parameters to ensure the maximum realisation and enjoyment of all rights. There is no hierarchy of rights and the constitutional approach to conflicting fundamental rights is reconciliatory in nature – requiring the application of the standard of proportionality.
This is especially important in those instances where ‘being different’ relates to sincerely held beliefs that are foundational to who people see themselves to be, informing how they want and are able to live meaningful lives – i.e. where their particular ‘difference’ is inseparable from their human dignity.
HATE SPEECH LEGISLATION
- The Minister of Justice and Constitutional Development introduced the Prevention and Combating of Hate Crimes and Hate Speech Bill [B9-2018] (Hate Speech Bill) in Parliament on 13 April 2018.
- The Department of Justice and Constitutional Development (the Department) published the draft Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill, 2021 (PEPUDA Bill) in the Government Gazette on 26 March 2021.
What is the Hate Speech Bill about and why should I be concerned?
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 over-broad and will have severe implications for freedom of speech and other 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 and objectively supported these may be.
Because the Bill purports to criminalise expression, people may end up being imprisoned for saying something that is not “politically correct”, even if they are in fact not advocating hatred or inciting harm against anyone.
Read more about the Hate Speech Bill here:
- The fundamental rights to freedom of religion, expression and association
- Protecting South Africans’ constitutional rights and freedoms
- Protection of free speech
What has Cause for Justice done to protect my fundamental rights and freedoms?
Cause for Justice delivered written submissions to the Department in January 2017 and to Parliament’s Portfolio Committee on Justice and Correctional Services (the Portfolio Committee) in February 2019, as well as oral submissions to the Portfolio Committee in May 2022.
What is the status of the Hate Speech Bill and what happens next?
The Bill is being considered by the Portfolio Committee. On 4 November, the Department briefed the Portfolio Committee with a view to the commencement of deliberations on the content of the Bill. Members of Parliament (MPs) must now discuss the clauses of the Bill in order to decide whether to adopt, reject or amend each (or the Bill as a whole). Deliberations are expected to take place over the course of several meetings.
What can I do about the Hate Speech Bill?
Have your say by contacting the members of the Portfolio Committee and/or supporting Cause for Justice in protecting your fundamental rights and freedoms.
What is the PEPUDA Bill about and why should I be concerned?
The PEPUDA Bill ostensibly seeks to prevent unfair discrimination and promote equality (both laudable objectives), but unfortunately contains several problematic proposals and aspects, including:
- Expanding the definitions of ‘equality’ and ‘discrimination’ beyond Constitutional (and logical) limits; and
- Generally failing to distinguish between ‘mere’ and ‘unfair’ discrimination (while the Constitution only prohibits ‘unfair discrimination’).
Cause for Justice has serious reservations about the potentially far reaching detrimental impact and questionable constitutionality of the current version 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 due to its limitation (whether intentional or not) of a certain number of fundamental rights – most notably are freedom of religion, freedom of expression and freedom of association.
Read more about the PEPUDA Bill here:
- The fundamental rights to freedom of religion, expression and association
- Protecting South Africans’ constitutional rights and freedoms
- Proposed amendments to ‘Equality Act’ absurdly may increase inequality and unfair discrimination
What has Cause for Justice done to protect my fundamental rights and freedoms?
Cause for Justice delivered written submissions to the Department in June 2021 and October 2022, and participated in consultative stakeholder workshops hosted by the Department in October 2022.
What is the status of the Bill and what happens next?
The Department will now consider the comments received during and pursuant to the October 2022 workshops in order to produce a final draft Bill for submission for Cabinet approval (and eventual introduction in Parliament).
What can I do about the PEPUDA Bill?
Keep updated about developments by signing up to the CFJ newsletter and/or supporting Cause for Justice in protecting your fundamental rights and freedoms.
ANTI-TERRORISM BILL
The Minister of Police introduced the Protection of Constitutional Democracy Against Terrorist and Related Activities Amendment Bill [B15-2022] in Parliament on 19 July 2022.
What is the Bill about?
The Bill seeks to update and bolster South Africa’s anti-terrorism laws, including preventing and combating the financing of terrorist activities.
Why should I be concerned?
Cause for Justice is 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.
The vague and overbroad definition of “terrorist activity” is particularly concerning and problematic, since it creates legal uncertainty, is susceptible to abuse and is likely to invite litigation (constitutional challenge). Also, merely encouraging an act of terrorism is equated with actually committing an act of terrorism – and criminalised. Combined with the flexible and constitutionally indefensible definition of “terrorist activity”, this could lead to absurd consequences – including criminalising and severely punishing conduct that would not otherwise (or logically) constitute terrorism.
What has Cause for Justice done to protect my fundamental rights and freedoms?
Cause for Justice has delivered written submissions to the Portfolio Committee on Police (the Committee) in October 2022.
What is the status of the Bill and what happens next?
The Bill is being considered by the Committee. On 2 November, the Committee commenced deliberating the clauses of the Bill.
What can I do about the Anti-Terrorism Bill?
Have your say by contacting the members of the Committee and/or supporting Cause for Justice in protecting your fundamental rights and freedoms.
COMMITTED TO ADVANCING CONSTITUTIONAL JUSTICE IN SOUTH AFRICA
Where fundamental rights come into conflict with another, a careful balance must be struck within constitutional parameters to ensure the maximum realisation and enjoyment of all rights.
Cause for Justice is committed to defending and advancing rights, values and interests protected and/or promoted in the Bill of Rights as well as related matters affecting the public interest in the context of the foundational constitutional values of human dignity, equality, and the advancement of fundamental human rights and freedoms.
It will continue to diligently pursue its primary objective: advancing constitutional justice in South Africa, primarily through participation in the legislative process and governmental decision-making structures, litigation and through creating public awareness on matters of public importance.
Help Cause for Justice to continue doing its important work – protecting your fundamental rights and freedoms – by supporting us today with a financial contribution of any amount.