The constitution provides for freedom of religion and belief, including the right to form, join, and maintain religious associations. It prohibits religious discrimination and specifies freedom of expression does not extend to advocacy of hatred based on religion. The constitution permits legislation recognizing systems of personal and family law to which persons professing a particular religion adhere. It also allows religious observances in state or state-supported institutions, provided they are voluntary and conducted on an equitable basis. These rights may be limited for reasons that are “reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom” and take account of “all relevant factors.” Cases of discrimination against persons on the grounds of religion may be taken to equality courts, the South African Human Rights Commission, and the Constitutional Court. The constitution also provides for the promotion and respect of languages used for religious purposes, including, but not limited to, Arabic, Hebrew, and Sanskrit.
The constitution establishes and governs the operation of the Commission for the Promotion and Protection of the Rights of Cultural, Religious, and Linguistic Communities (CRL), which has the mission of fostering the rights of communities to freely observe and practice their cultures, religions, and language. The CRL is an independent national government institution whose chair is appointed by the President and whose commissioners include members of the clergy, scholars, and politicians, among others.
The law does not require religious groups to register; however, registered religious and other nonprofit groups may qualify as public benefit organizations, allowing them to open bank accounts and exempting them from paying income tax. To register as a public benefit organization, groups must submit a nonprofit organization application, including their constitution, contact information, list of officers, and documentation stating they meet a number of prescribed requirements that largely ensure accounting and tax compliance, to the provincial social development office. A group registers once with the local office and its status then applies nationwide. Once registered, the group must submit annual reports on any changes to this information, important achievements and meetings, and financial information, as well as an accountant’s report.
The government allows but does not require religious education in public schools but prohibits advocating the tenets of a particular religion.
The law recognizes civil, customary, and same-sex unions, but does not recognize religious marriages. Civil marriages do not allow polygamy. The law allows for marriages to be conducted under customary law; however, it applies only to “those customs and usages traditionally observed among the indigenous African people.”
The constitution grants detained persons visitation rights with their chosen religious counselor.
The country is a party to the International Covenant on Civil and Political Rights.
The government’s strict lockdown, imposed in March in response to the COVID-19 pandemic, included bans on religious gatherings. Police stringently enforced the lockdown, which lasted through Easter and Ramadan, prompting complaints from some religious groups. Police broke up several Ramadan gatherings and made arrests, during which they were filmed making disrespectful remarks to worshippers. The Police Minister later apologized for the remarks. In May, the President eased restrictions on houses of worship following consultation with the South African Council of Churches. The revised regulations limited gatherings to 50 persons. Some church leaders said the limit was too small. Bishop Bheki Ngcobo of the South African Zionist Church demanded “compensation” from the state for the months of closure. Police arrested Ngcobo in May for violating the lockdown; he also called on Christians to disobey the President’s order regarding the size of religious gatherings. Authorities released Ngcobo after he admitted guilt and paid a fine of 1500 rand ($100).
Home Affairs Minister Aaron Motsoaledi said in June that he would not put in place interim measures to legalize the religious marriages of Muslims who died of COVID-19. As the state does not recognize religious marriages, the law particularly impacts Muslims who do not undertake civil marriages because of the prohibition against polygamy in civil unions. Women’s rights organizations, human rights advocates, and some Muslim leaders stated they had sought legislation to provide legal recognition of Muslim religious marriages for many years, but the problem became acute during the COVID-19 pandemic. They noted that the Muslim Marriages Bill has not made any progress in parliament since it was introduced in 2010. Some individuals said the Minister’s declaration that he could not legally recognize Islamic religious marriages meant that death certificates issued for decedents married under Islamic religious rites listed them as “never married,” which they said caused both insult as well as hardship to survivors with regard to their benefits and inheritance. Following Motsoaledi’s remarks, the Supreme Court of Appeal in December upheld a 2018 ruling of the Western Cape High Court that declared unconstitutional the nonrecognition of Muslim marriages. The court said the nonrecognition violated women and children’s constitutional rights and gave the government 24 months from its ruling to either enact new legislation or amend the existing legislation to ensure recognition of Muslim marriages as valid marriages.
In August, a Durban man who publicly acknowledged he opposes Islam won a court case restricting the call to prayer from being heard inside his house. The complainant told the court that the Madrasah Taleemuddeen Islamic Institute, which is situated approximately 65 feet from his house, sounded its call to prayer five times a day, with its first call at 3:30 a.m. The judge at the KwaZulu-Natal High Court ordered the mosque to reduce the volume of its call to prayer to ensure it was not audible inside the neighbor’s house. The complainant argued that the prayer call deprived him of enjoyment of his property rights and gave the neighborhood a “distinct Muslim atmosphere.” The Islamic Institute stated its intention to appeal the ruling. Several academics, human rights advocates, and leaders of Muslim organizations described the ruling as “shocking” and in conflict with constitutionally protected rights. City authorities in Pretoria issued a notice on August 28 ordering a mosque to stop broadcasting the call to prayer through loudspeakers. Faisal Suliman, chairman of the South Africa Muslims Network, urged the Muslim community to challenge both orders.
In January, the South African National Defense Force (SANDF) withdrew charges against Major Fatima Isaacs, who in 2019 was charged with disobeying a lawful instruction for refusing to remove the hijab she had worn under her military beret for more than a decade. Isaacs had previously been granted interim relief while the SANDF reviewed its dress code.
In July, the new CRL chair stated, “The issue of regulation of religion is still on the plate….Parliament will have to take a position on whether religion is regulated or not.” Several groups, including the Southern Africa Catholic Bishops’ Conference, the nonprofit Christian organization Freedom of Religion South Africa, and the International Institute for Religious Freedom, stated their continued opposition to a 2016 CRL legislative proposal requiring religious groups to register, on the grounds that it would restrict their religious freedom. The proposal would require religious groups to register formally with the government and would create a peer review council, consisting of representatives from various religious groups, which would grant organizations and individual religious leaders’ permission to operate. The proposal remained with the parliamentary Portfolio Committee on Cooperative Governance and Traditional Affairs at year’s end.
Throughout the year, CRL examined allegations of sexual abuse, cult-like practices, and financial malfeasance against leaders of various religious organizations in a continued push to protect congregants from abuse and fraud. In December, the Johannesburg High Court dismissed an application by Bishop Stephen Zondo of the Rivers of Living Waters Church to stop the CRL Commission from holding public hearings on allegations of sexual abuse against him. The CRL also launched an investigation into the KwaSizabantu Mission after media outlet News24 documented allegations of sexual assault, psychological and physical abuse, and financial crimes. The self-proclaimed Malawian prophet and owner of an international investment company, Shepherd Bushiri, and his wife faced charges of defrauding congregants of the Enlightened Christian Gathering. After they fled to Malawi in November, South Africa served Malawi with an extradition request for the couple that included charges of theft, fraud, forgery, rape, and failing to comply with bail conditions in South Africa.
In November, a district court judge in Randburg sentenced Matome Letsoalo, a freelance writer, to three years’ imprisonment, suspended for five years, for threatening and abusive social media messages sent to the Jewish community and the SAJBD. According to media reports, this was the first criminal conviction resulting from an anti-Semitism case in the country. The tweets included swastikas, burning Israeli flags, and text, including, “@SAJBD The #Holocaust Will be like a Picnic When we are done with all you Zionist Bastards. [Expletive] All of You.” The judge noted that the sentence was the maximum term allowed by law and the suspension was due to Letsoala’s guilty plea. The judge further stated that his messages were “hateful” and against the constitution, and anti-Semitic messages were becoming all too prevalent in the country. The SAJBD national director welcomed the outcome as an important precedent and said the verdict sent a “strong message that threatening and hate-filled attacks on the Jewish community” would not be tolerated.
During the year, the draft Prevention and Combating of Hate Crimes and Hate Speech Bill, first introduced in 2018, remained stalled in the justice committee, and no debates occurred. A ruling by the Constitutional Court concerning the definition of hate speech as it relates to the decade-old John Qwelane case was expected in 2021 and observers said it would have a bearing on parliamentarian deliberations. The hate speech bill would criminalize any action or statement motivated by bias or hatred towards an individual based upon a number of categories, including his or her ethnicity, nationality, religion, sexual and gender identity, health status, employment status or type, or physical ability. The bill would provide law enforcement officials and courts increased authority to arrest and punish offenders, and it would mandate prison sentences of up to three years for first-time offenses. Opponents to the bill, including religious figures, media representatives, civil society groups and NGOs, stated the bill’s definition of hate crimes and speech was too vague and could potentially restrict freedom of religion and speech.