DANIELA ELLERBECK'S CULTURAL, RELIGIOUS AND LINGUISTIC RIGHTS REPORT CARD LAUNCH ADDRESS

Introduction

Thank you, Lusanda for very aptly taking us through the different linguistic rights assessed in the report card. Ladies and gentlemen, we now turn to the remainder of the rights – those affecting religion and culture.

Let’s tackle religion first:

Section 15 of the Constitution provides that entrenches the right to freedom of conscience, religion, thought, belief and opinion. This right protects all people (the religious and irreligious) and ensures that everyone has the freedom to not only believe (or not) internally, but to manifest their beliefs externally^[1] (even if others think these beliefs are irrational, illogical or bizarre[2]). This is fundamentally intertwined with other constitutional rights, such as dignity, equality, freedom of expression, freedom of association, etc.

To reiterate, because section 15 also explicitly protects thought, belief, conscience and even opinion. This means belief systems including, but not limited to, for example, atheism and agnosticism are also included in the ambit of the right to religious freedom and, importantly, they are also constitutionally protected.

It also becomes immediately obvious, given that the right to religious freedom extends to thought and opinion, that a very close relationship exists between the right to religious freedom and the right to freedom of expression^[3] (the latter expressly includes the “freedom to receive or impart information or ideas”^[4]).

It is also important to point out that South Africa, unlike the United States of America, is not a secular state:^[5] Section 15 expressly provides for the conducting of religious observances at state and state-aided institutions^[6] (such as our public schools). This allows, even welcomes, civil servants, learners and teachers to practise their religion in these public places, subject to certain rules to ensure fairness.

Finally, the Constitution goes one step further than just section 15 and even entrenches the right of religious communities to practise their religion together and to form, join and maintain religious associations in section 31.

So, what did the Foundation’s CRL Rights Report Card find were the positive developments regarding the right to religious freedom?

Well, the version of the BELA Act which was signed into law no longer proposed removing school governing bodies’ (or “SGBs”) power to manage school assets. As many religious communities rent or use school facilities for meetings, etc. this would have affected their exercise of their religious rights (both individually and as communities) due to affecting the renewal and/or granting of these religious communities’ lease contracts.

Similarly, the version of the General Intelligence Laws Amendment Act which was signed into law no longer contained the overbroad definitions and failure to protect “lawful political activity, advocacy, protest or dissent.” Its initial version had triggered massive concern from the religious community due to its, because many religious institutions and leaders who oppose government policies may have found the South African Intelligence Agency subjecting them, their leaders and/or members, to security vetting investigation for purposes of either issuing or denying a security clearance certificate. The implied risk was that those religious institutions denied a certificate would be forced to close.

It is imperative to point out that due to the public’s comments Parliament significantly amended the law before passing it, effectively removing all religious freedom concerns. I cannot stress enough how much public participation in our law-making process matters.

What about negative developments?

Unfortunately, there were several incidents of religious intolerance occurred over the course of the last year, covered in the Report.

However, what is important to not here is that these instances show how international conflicts, such as the conflict between Israel and Palestine, negatively impacts the relationship between religious groups (e.g. Jews and Muslims) in South Africa.

In this regard, the Foundation urges the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (or “CRL Rights Commission”) – who has, as part of its constitutional mandate, to promote and develop peace, friendship, humanity, tolerance and national unity among different religious communities^[7] – to engage with both groups to find ways of resolving tensions in their relationship arising from the international conflict.

There seems to be renewed interest from the CRL Rights Commission to revive its previous recommendations for peer-review mechanisms^[8] in religious communities. The Commission established a section 22 Committee to develop and implement the peer-review mechanism and draft recommendations for oversight in the religious sector. This is fully covered in the Report.

However, what is important to not here is that should religious communities’ beliefs and their expression thereof, be regulated, this will directly impact on:

The individual believers who make up that religious community’s section 15 right to religious freedom;
The section 31 right of that religious communities to practise their religion together and to form, join and maintain religious associations; and
Its section 18 right to freedom of association.

Thus, any oversight of the religious sector in the form of peer-review mechanisms of religious leaders (or their doctrine) must pass the justification test to limit any of these rights, which requires amongst other things, that there are no other less restrictive means available.

Lastly, the Expropriation Act is concerning in the context of religious freedom, because land owned by religious organisations and/or used for religious purposes may still be subject without compensation (“nil compensation” as per the Act) by the state.

In light of both the above, the right to religious freedom was graded a C- (Moderate, but showing signs of regression).

Turning to the right to participate in the cultural life of one’s choice (entrenched in section 30):

At the start of the 2025, National government had reaffirmed its commitment to ensuring safer customary initiation and its COGTA Department launched the Safe Customary Initiation Awareness Campaign for the 2025 initiation season to eliminate initiate deaths and injuries. Similarly, the CRL Rights Commission stated that it will work with key stakeholders to address the various issues leading to initiate deaths. Prior to the winter initiation season, the Limpopo COGTA department put stricter measures, such as the vetting of traditional surgeons and principals, in place to try and ensure a safer initiation season with no deaths. The North West Provincial Government rolled out awareness campaigns on the provisions of the Customary Initiation Act, 2021 (the Act sets out the norms and standards within which the customary practice of initiation must take place). The campaign comes in response to a surge of illegal initiation schools, which had resulted in the loss of six lives and the rescue of over 100 initiates.

Last year, the enjoyment of this right in practise was graded as good, with signs of improvement – a B+. While in 2025, government campaigns to ensure safer initiation practices addresses the need for proactive public education regarding initiation and the law. Accordingly, the right is graded B=, reflecting good enjoyment with no change.

IN CONCLUSION

Overall, the report card found that between September 2024 to September 2025:

The enjoyment of five CRL Rights regressed;
The enjoyment of four CRL Rights improved; and
There was no change in the enjoyment of two CRL Rights.

Thank you for your attentive consideration. I now yield the floor to the Foundation’s Executive Director, Christo van der Rheede, who will provide the concluding remarks for today’s launch.

[1] S v Lawrence, S v Negal; S v Solberg 1997 (4) SA 1176 (CC) at para 92.

[2] Prince 2 at para 42: “Human beings may freely believe in what they cannot prove. Yet that their beliefs are bizarre, illogical or irrational to others, or are incapable of scientific proof, does not detract from the fact that these are religious beliefs for the purposes of enjoying the protection guaranteed by the right to freedom of religion.”

[3] Section 16 of the Constitution.

[4] Section 16(1)(b) of the Constitution.

[6] Section 15(2) of the Constitution.

[7] Section 185(1)(b) of the Constitution.

[8] At page 39.