PROTECTING OUR CONSTITUTIONAL RIGHTS TO FREEDOM OF RELIGION, EXPRESSION AND ASSOCIATION(JULY 2021)
A SHORT OVERVIEW OF SOME OF CAUSE FOR JUSTICE’S STRATEGIC ACTIVITIES DURING THE FIRST HALF OF 2021
One of Cause For Justice’s (CFJ) core values is the responsible exercise and enjoyment of constitutional freedoms, such as freedom of religion, freedom of expression and freedom of association. That is why CFJ places itself at the forefront of issues concerning the promotion and protection of our most precious freedoms.
MARRIAGE LAW REFORM
Both the South African Law Reform Commission (SALRC) and the Department of Home Affairs (DHA) have initiated processes to review and potentially reform marriage law in South Africa. Both of these institutions speak about the advancement of diversity as a cornerstone for the reforming of South African marriage law. Cause For Justice participates in these processes to ensure that true diversity is in fact accommodated, protected and promoted.
South African Law Reform Commission Project 144: Single Marriage Act
The SALRC published its Discussion Paper on Project 144 in January 2021, which concerns reforming South African marriage law, and specifically considers the possibility of adopting a single piece of marriage legislation (along with several other proposed amendments and updates to the marriage regime).
Cause For Justice participated in the Commission’s consultative stakeholder workshops to clarify some uncertain aspects of the legislative proposals. CFJ also delivered written submissions to the SALRC to provide inputs on what we believe to be the best course of action, and focusing on the protection of diversity in a pluralistic society such as South Africa.
We support the view that the state has no legitimate mandate (i.e. no right) to define or impose its views of what ‘marriage’ is on cultures and groups within society – its only lawful concern (and accompanying duty) is to recognise and give legal protection to such relationships.
The Commission will now consider all the public comments it received and in time produce its final Report. Cause For Justice will keep a close eye on the progress of Project 144 and take up further opportunities to engage the SALRC and others with a view to protect constitutional freedoms in South Africa.
To learn about this important cause, read our detailed blog HERE.
Department of Home Affairs Green Paper on Marriage in South Africa
The DHA published its Green paper on Marriage in South Africa, asking the public to submit comments for its consideration with a view to preparing a White Paper, which will set out the official state policy position regarding marriage law in South Africa.
We focused our comments on the fact that our constitutional democracy is founded on human dignity, the achievement of equality and the advancement of human rights. In the context of marriage, this means minimum state interference and maximum recognition and protection of marriage.
The Department put forward four policy proposals in respect of the solemnisation and registration of marriages. CFJ focused on proving the DHA with case law and legal arguments as to why some of the options would not withstand constitutional scrutiny – because it would infringe on marriage officers’ fundamental right to freedom of religion, conscience, belief and opinion – and why others would be acceptable – because it affirms marriage officers’ constitutional rights.
The DHA will now consider the public comments it received and produce a White Paper setting out its official policy position.
To learn about this important cause, read our Op-Ed in the Mail & Guardian.
PEPUDA AMENDMENT BILL
The Department of Justice and Constitutional Development published proposed amendments to the Promotion of Equality and the Prevention of Unfair Discrimination Act, 2000 (PEPUDA), requesting the public to submit comments.
Cause For Justice delivered written submissions, emphasising the importance of protecting freedom of expression and freedom of religion in a pluralistic society and constitutional democracy such as South Africa. We argued that in the absence of a recognised constitutional hierarchy of rights, where the exercise of fundamental rights results in conflict, rights must be balanced in a reasonable and justifiable manner in order to achieve the widest possible protection of all – and not only some – persons’ rights.
CFJ acknowledged that the purpose of the Bill in preventing “unfair discrimination” and “promoting equality” are both laudable objectives. Unfortunately, even a brief inspection of the proposed amendments reveals that these are likely to have a chilling effect on the enjoyment of fundamental rights and freedoms, and absurdly, is likely to lead to more inequality and unfair discrimination.
Accordingly, we called for the PEPUDA Amendment Bill to be scrapped in its entirety.
To learn about this important cause – read our latest press release.
BELOFTEBOS COURT CASE
The case against the owners of Beloftebos wedding venue in the Equality Court in Cape Town is still ongoing. The case concerns legal action against the owners for refusing to host same sex weddings, based on their sincerely held religious belief that marriage is a union between one man and one woman.
CFJ has been corresponding with the South African Human Rights Commission (SAHRC) – who lodged the complaint against Beloftebos in the Equality Court – over the past twelve months with a view to assisting them in the resolution of the case in a just manner. In our past involvement in similar cases, we argued for outcomes that respect all parties’ rights to live and act in accordance with their conscience and convictions.
The SAHRC is currently considering whether they will be continuing their legal action against Beloftebos. If the SAHRC decides to continue with the litigation, CFJ will apply to be admitted as an amicus curiae party (‘friend of the court’) to assist the court with evidence, legal precedent and arguments in its adjudication of the case.
DEPARTMENT OF HOME AFFAIRS DRAFT OFFICIAL IDENTITY MANAGEMENT POLICY
The DHA published a draft Official Identity Management Policy in December 2020 and asked the public for comments. The draft Policy proposes a number of legislative changes, including amending the Identification Act and Alteration of Sex Description and Sex Status Act.
Cause For Justice delivered written submissions to the DHA, focusing on specific proposals in the draft Policy which if adopted, would have the effect of enforcing a particular ideological view about the nature of human identity on the whole of South African society. CFJ emphasised that the adoption of controversial ideological views into government policy could have profound ramifications for society as a whole and for individuals, families, and communities – especially considering the impact it is having in other countries. CFJ also showed that these viewpoints are not grounded in objective reality (medical/biological science) and importantly, is not held or supported by the majority of the people of South Africa.
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.