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2018-12-13
Cape Town, South Africa
Two “dangerous laws” – an update on the Civil Union Amendment Bill, and the Hate Speech Bill
By Daniela Ellerbeck, Legal Advisor for FOR SA



Civil Union Amendment Bill:

On Thursday, 6 December, the Civil Union Amendment Bill was adopted by the National Assembly. As a result, State-employed marriage officers who have a “conscientious objection” to same-sex marriage, no longer have a statutory right to “opt out” of solemnising same-sex marriages and are legally compelled to do so – even if it goes against their religious convictions and beliefs.

The Bill does provide for a transitional arrangement however, whereby State-employed marriage officers who have already been exempted from solemnising “same-sex marriages”, will remain exempted (i.e. be able to “opt-out”) for the next two years. In the meanwhile, the Minister must ensure that there is a marriage officer available to solemnise same-sex marriages at every Department of Home Affairs office.

From the outset, FOR SA raised concerns (both with COPE MP Deidre Carter who initially proposed the Bill as a Private Member’s Bill, and with the Parliamentary Portfolio Committee on Home Affairs which considered the Bill) regarding the Bill’s violation of the fundamental right to religious freedom. We specifically pointed out that proposed Bill was in direct conflict with the Constitutional Court’s statement in Minister of Home Affairs v Fourie (the case which legalised same-sex marriage in 2005). This landmark judgment precipitated the drafting and passing into law of the Civil Union Act, but it specifically stated that “the principle of reasonable accommodation could be applied by the state to ensure that civil marriage officers who had sincere religious objections to officiating at same sex marriages would not themselves be obliged to do so if this resulted in a violation of their conscience”.

Recognising the practical problem that the Bill sought to address (namely a shortage of State-employed marriage officers who are prepared to solemnise same-sex marriages, particularly in the rural areas), FOR SA proposed a number of practical solutions to what is clearly a practical problem. The fact that these solutions were hardly given any consideration by Ms Carter and indeed the Parliamentary Portfolio Committee, shows that the driving force behind the Bill is indeed ideological rather than practical.

FOR SA also wrote to the Committee Chairperson, Honourable Chauke MP, to note our procedural concerns in relation to the Bill, in particular the failure to hold any public hearings with regard to the Bill. Given the controversial nature of the Bill and the fact that it effectively eradicates the religious freedom of State marriage officers, one would have expected public hearings to be held. Unfortunately, we never received a reply to our request and do not know whether it was even considered by the Committee before adopting the Bill and referring it to the National Assembly.

Following the Bill’s adoption by the National Assembly, the Bill will now be referred to the National Council of Provinces (NCOP) for consideration.



Hate Speech Bill:

The controversial Hate Speech Bill, which will criminalise certain forms of speech, is now open for public comment until 15 February 2019. Comments can be sent to Mr Vhonani Ramaano at vramaano@parliament.gov.za. (A copy of the revised draft of the Bill is available here).

The revised Bill contains a much narrower definition of “hate speech” than the original draft of the Bill. However, even with the revised definition, the concern remains that the Bill unnecessarily and unjustifiably violates freedom of speech (including religious speech) – particularly since existing legislation already prohibits and deals with unacceptable forms of speech.

We are encouraged that a “religious exemption clause” has been included in the draft Bill – which is the direct result of the more than 75,000 public submissions received on the previous version of the Bill! Many of these submissions were from the religious community in South Africa, who expressed their deep concern about the dangers the Bill posed to freedom of (religious) expression and requested the inclusion of such a “religious exemption clause”.

However, we are not out of the woods yet! The revised Bill still poses a serious threat to the religious community, because at a recent parliamentary briefing, the Deputy Minister of Justice said that the religious exemption clause would probably only protect speech from the pulpit – not speech by individuals! The revised Bill therefore exposes Christians to prosecution for “hate speech” for simply professing the Bible and expressing their sincere religious convictions and beliefs (as is already happening overseas e.g. Christian street preachers in the United Kingdom).

In summary, since the Bill still poses a serious threat to freedom of speech which is the bedrock of a truly democratic society, FOR SA encourages all – including persons who previously made submissions on the Bill to the Department of Justice – to make our voices heard on this very controversial and dangerous Bill to the Committee on Justice by 15 February 2019.
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