Methodist Church of Southern Africa (Private) Act Repeal Bill [B68-2008];Dutch Reformed Churches Union Act Repeal Bill;Bible Society of South Africa Act Repeal Bill; Apostolic Faith Mission of South Africa (Private) Act Repeal Bill: public hearings
Arts and Culture
02 September 2008
Chairperson: Mrs TJ Tshivhase
The Committee discussed the Dutch Reformed Churches Union Act Repeal Bill, the Bible Society Of South Africa Act Repeal Bill, and the Apostolic Faith Mission Of South Africa (Private) Act Repeal Bill. The representative from the Dutch Reformed Church expressed the support of the DRC for the repeal of the bills, but wished to set out the full historical context. He concluded that the Bill of 1911 in fact had no relevance, as it had not established a unified Church as it had intended. He described the current process towards unification, which was ongoing. The Church understood that the Constitution had altered the relationship between Church and State, and there was no further need for private church legislation. He also noted that the names of the churches were incomplete, and the unification would be between four churches, not three. He also corrected the reference to the membership policy, noting that the discriminatory portion of the 1911 legislation did not apply in theory or in practice. The motivation for repeal should rather be the irrelevance of the Act itself. Members asked questions of clarity around the structures and the current unification processes.
A member of the Apostolic Faith Mission of South Africa raised various issues in his submission and was thanked and asked that he convey his views to the senior members of the Apostolic Faith Mission, who had previously given their submission to the Committee on Private Members’ Legislative Proposals.
The legal representative of the Bible Society of South Africa accepted that it was no longer necessary to have separate legislation for religious organisations, but wished to ensure that when the relevant legislation was repealed there would not be any adverse effect upon existing rights. It was indicated that the Society had already, in anticipation of its changed status, set up a Section 21 company and had applied for tax relief as a Public Benefit Organisation. It would need to transfer all existing property to the company before the Act was repealed, and would also need to ensure that the current tax exemptions were declared applicable to the new entity. Therefore this would need to be written into the Repeal Bill. It was suggested that the Parliamentary Legal Advisers and the Society’s legal advisers should meet to agree on new draft wording for further consideration by the Committee, so as not to cause them prejudice.
Dutch Reformed Churches Union Repeal Bill (the Bill): Presentation by the Dutch Reformed Church (the DRC)
Dr Ben du Toit, Parliamentary Desk, Dutch Reformed Church, expressed the support of the DRC for the repeal of the Dutch Reformed Churches Union Act 23 of 1911, proposed by the Bill. He said that the original Act must be seen within its historical context, explaining that at that stage the federated DR Churches (synods) were divided according to the provincial borders of South Africa, which were the Cape Church, the Transvaal Church, the Free State Church and the Natal Church. This Act empowered the four churches or synods to unite as one church, while retaining the four provincial synods. It also protected the rights of the coloured members of the synod to remain members of a united church, although if they moved to another province they would forfeit their rights. That unification was never in fact realised. Only in 1962 did the churches unite as one church, by virtue of the Private Act on the Dutch Reformed Church in South Africa, Act no 22 of 1961. Merely on historical grounds the Act of 1911 could thus be seen to be irrelevant and should be repealed.
Further to that, however, since the acceptance of the new Constitution, the relationship between church and state was determined particularly in terms of sections 15, 18 and 31, which guaranteed freedom of religion, free association, and the rights of cultural, religious, and linguistic communities to practise. The organisational functioning of the DR Church was determined by the Church’s own constitution. Therefore its own rights were protected.
However, although the Church was grateful to the Member introducing this Private Bill, he thought that the Memorandum on the Objects of the Bill was not appropriate. The intention of the repealing included removing obstacles in the way of the unification process, which, as he had now pointed out, was irrelevant. He also noted that the names of the churches were incomplete, and offered a corrected version. The suggested unification would be between four churches, not three. He pointed out that today the Dutch Reformed Church, in all its various structures, had an explicit open membership policy, and therefore the discriminatory portion of the 1911 legislation did not apply in theory or in practice. The motivation for repeal should rather be the irrelevance of the Act itself. Finally the comment was made that the Dutch Reformed Church was not mentioned as one of the bodies consulted.
The final provision for supporting the repeal was that it should not affect the previous operation of any law so repealed or anything done under it, nor any rights accrued.
Mr G Lekgetho (ANC) was concerned that congregations were still worshipping separately and asked what the DRC was doing to integrate the churches.
Mrs Tshivhase said discrimination was not a bygone event as far as racial issues were concerned and the DRC was not changing society.
Prince B Zulu (ANC) asked for clarity on the four names of the churches.
Dr du Toit responded that he was an official representative of the Executive of the General Synod of the DRC (Parliamentary Desk) and also responsible in terms of the General Synod and of the leadership body of the Church. This was an official submission with authority to represent 1.3 million members of the church.
The DRC had for decades been in the process of unifying the whole DRC family.
He explained that the oldest Reformed Church in South Africa; the NG Sending Kerk, was established in 1861. Then the NG Sending Kerk, which was a coloured church, was established in 1881. The black members attended Mission Church locations all over the country and were only organised later in terms of the DRC in Africa. In 1911 the four churches covered were the Dutch Reformed Church in the Transvaal, the Free State Church, the Natal Church and the Cape Church Synods, all of which were white. In 1996 the NG Sending Kerk and the NG Kerk merged and formed the United Reformed Church in Southern Africa.
He said that the DRC was in the process of uniting across cultural and language, had open membership and were striving with all sorts of programmes to have an integrated church. While there were still congregations meeting separately, they were working very hard towards unification of all the churches, including churches in Zimbabwe, Malawi, Zambia and Namibia. He noted that there were congregations and synods over the whole of Southern Africa.
Mr S Opperman (DA) said as a member of the Sending Kerk he was asked how he was, and he had said he was healed. It was possible those obstacles would be overcome in the next decade.
Mr M Bhengu (IFP) understood the Church was working very hard towards unification, and asked what the guiding principle or ideology around that.
Dr du Toit said he had tried to say in his presentation that the repeal of the Act had no relevance for the current unifying process. For the record, the Act of 1911 was about four synods of the then white Churches uniting. The current process was about unifying the family of all Dutch Reformed Churches, being the Dutch Reformed Church, the United Reformed Church, the NGKA (the Dutch Reformed Church in Africa) and the Reformed Church in Africa. 1911 was after the Union of South Africa so it applied to that, but it didn’t work, it only became one Church in 1963.
One of the members had asked about the Confession of Belhar, which was at the centre of discussions in terms of the unification process. In 2006 the United Reform Church and the Dutch Reformed Church executives came together at Esselen Park. They embarked on a way forward to incorporate the Confession of Belhar into the basis of the national established Church. The executive of the four Churches in South Africa came together and established unifying processes to go forward.
Subsequently two of the four role players in the uniting process, the Dutch Reformed Church in Africa and the Reformed Church in Africa totally rejected the Confession of Belhar. The DRC was still in the process of trying to accommodate the Confession of Belhar in a way acceptable to all members of the Church. It was a very difficult situation, but they were working on that.
The meeting at Esselen Park had envisaged that in three years the churches would have become unified. Due to the complexity of the issue all the parties in the Church then agreed three years would not be possible. They were looking forward to the General Synod of the United Reform Church in Hammanskraal in October to see if they could make resolutions to take this process forward.
Prince Zulu asked whether, when the Church was unified, it would have one leader.
Dr du Toit responded that there was not a church leader. There was a chairperson called the Moderator, but this only applied to his assignment for a particular meeting. The legal persona of the Church was vested in the local congregation. It was not a democratic institution but a decentralised institution, so the question of one leader was irrelevant in terms of how the Church was governed.
Dr du Toit quoted the example of Wynberg where the Dutch Reformed Church and the United Reformed Church congregations in the same geographical area became one integrated congregation.
Mr Lekgetho understood the DRC was working towards a non-racial Church, but noted without a time frame that would become meaningless. He asked whether there was a programme.
Dr du Toit said that there were complexities, but there was a very strong will for the unifying process to proceed. The DRC did support the repeal of the 1911 Act.
A Member asked for clarity on item 14 of the presentation. He noted that he was not sure whether these churches were for whites only.
Dr du Toit responded that in the Memorandum on the Objects there had been a typing error, which had in fact left out the reference to the DRC having been consulted.
Mr Lekgetho said that if the 1911 Act had not brought all the parties together then it had been irrelevant. He had expected that the Church should be at the forefront of the democratising process of bringing people together and dealing with poverty and unemployment. He asked whether there was a programme for bringing black and white churches together.
Dr du Toit responded that there was a very definite programme. It was a very complicated, ongoing process with many problems but the DRC was very determined to go forward. The Confession was rejected by two parties, the Dutch Reformed Church in Africa, which was predominantly a black Church, and the Reformed Church in Africa, which was predominantly Indian.
He emphasised that the DRC understood the relationship between State and Church, and also understood that since the advent of the Constitution there was no need for Private Church legislation, because the separation between church and State was addressed in the Constitution, and the rights as a religious body were vested. It was understood that their rights as a religious body were vested in terms of the Constitution and so was actually irrelevant. The process now was about bringing together the whole family of the Churches in one united Church. The 1911 Act had no relevance for the current process and the programme of unifying the churches.
A Member asked when the DRC had started that process of unifying the groups.
Dr du Toit explained that the current process started with the resolution of the General Synod of the DRC in 1989, and in the following years there was a process of bringing the four Churches together. The 1962 process was between the then white synods in the Cape, the Transvaal, the Free State, and Natal, with Namibia, and Zimbabwe. The Exco established in 2006 comprised all the Churches, including the former Dutch Reformed Church in Africa. The Uniting Reformed Church in Africa was already a united Church in terms of coloured and black, and was the sharpest critic of the Confession. He stressed, however, that the current process was not concerned with questions of race, but was about vested interests. There were a number of issues that the Church was not proud about, but it wanted to find a way forward.
The Chairperson thanked Dr du Toit for his presentation, and agreed that the ideal was for all Churches to become one.
The Apostolic Faith Mission Of South Africa (Private) Act Repeal Bill [B71—2008] Submission by Mr J Festers
Mr J Festers, Member of the church of the Apostolic Faith Mission of South Africa made his submission, which was given in his personal capacity only, in response to an advertisement in the media. It became apparent that there was some confusion over the objects.
Mr Opperman pointed out that this was a public hearing and everyone had a right to be heard.
Mr P Gerber (ANC, proposer of the repeal bills) thanked Mr Festers for his interest, and explained the reason for the proposed repeal. He noted that a delegation from Apostolic Faith Mission (AFM) had made a presentation to the Committee on Private Members Legislative Proposals and Special Petitions, and had in broad terms raised no objections. He asked that Mr Festers take all relevant documents to senior members of the AFM for their submission.
Bible Society Of South Africa Act Repeal Bill [B70—2008] (the Bill)
Mr Christof Pauw, Attorney, Jan S de Villiers and Son, said he was instructed to make submissions on behalf of the Bible Society. He noted that the Committee on Private Members Legislative Proposals and Special Petitions had considered the desirability of the Bill in principle, when the Bible Society’s delegation had given their views. There had been some debate as to whether it was really necessary to repeal the Bill, but the motivation advanced by Mr Gerber this morning to previous speakers illustrated that it was considered not necessary to have separate legislation.
The present statutory Society had many assets and liabilities, with a turnover last year of some R76 million, apart from donations received. This income was from the sale of Bibles, and the Society therefore wanted to ensure that when the repeal Bill came into effect there must be orderly transition to the new and non-statutory entity.
The Bible Society had already informed the Committee on Private Members Legislative Proposals and Special Petitions that they would need some time to make transitional arrangements. On 29 August 2008 the Bible Society approved the Memorandum and Articles of Association of a Section 21 Company, which was being incorporated, and which would continue the work of the Bible Society after the repeal of the Act. The Memorandum was attached to correspondence dated 01 September 2008, addressed to the Chairperson, and set out the sort of provisions that would have to be made to ensure smooth transition from the existing statutory body to the new Section 21 Company.
Section 5 of Act 15 of 1970 referred to the Bible Society’s property. Mr Pauw said that all that property would have to be listed, and all assets would need to be transferred into the new Section 21 company, and something to this effect should be included in the Bill. He noted that the Bible Society also enjoyed certain tax exemptions in terms of the Income Tax Act No 58 of 1962, and asked that the correct measures in this regard also be written into the Repeal Bill, as they could not be transferred to the Section 21 company if the repeal in fact also repealed those exemptions. He noted that the Society had applied for registration as a Public Benefit Organisation.
Mr Opperman asked whether the request was for the Bill to be referred back.
Mr Pauw responded that he was not familiar with procedures, but he thought that if the submissions were noted and agreed to by the Committee, it should probably merely need drafting of amendments to the Bill.
Adv Zuraya Adhikarie, Parliamentary Legal Adviser, commented that it was important to take into account what the submission sought to address. If the Committee made that policy decision, then the Legal Advisers would be instructed to do what emanated from the policy decision. There was not a legal issue at stake here; it was an interim concern in respect of the transitional period around tax issues, and the reasons why the Committee was being requested to make a policy decision. The Legal Advisors needed guidance from the Committee.
Another legal advisor suggested that the Committee would need to make a decision whether or not the requests of the Bible Society to amend the Bill could be acceded to, and then the legal advisers would express their opinion on the legality of the request, and draw up a draft if the Committee instructed them to do so.
Mr Pauw reiterated that Mr Gerber said during a previous presentation that it had always been the express intention of the Bills that no existing rights should be taken away. If that was so, then the transitional provisions must be addressed to ensure there was no loss of existing rights. The Bible Society was doing its work on the tax exemption side as far as they could. However, Parliamentary intervention would be needed to ensure that there was no gap and no loss of exemptions by a repeal of the Bill on one hand before the coming into effect of the new arrangement on the other.
A legal adviser queried the reference to tax exemptions.
Mr Pauw responded that he would check up on the issues raised. He noted that the Bible Society, as a statutory body, was receiving certain tax exemptions, but South African Revenue Services had confirmed that after the repeal of this Bill the exemptions would not apply in the same way, but the Society would apply to SARS independently for exemption as a public benefit organisation.
Mr Lekgetho felt the presentation was of a highly technical nature. He proposed that the legal representatives of the Committee and the Bible Society should get together as soon as possible to ensure that nobody was disadvantaged in this process, and also that there be time frames so that the process would not be delayed.
Mr H Maluleka (ANC) felt the Committee should play its part in ensuring that the Society was not adversely affected in the transition.
Mr Pauw felt it could be dealt with in a matter of days. He noted that urgent representations had been made to SARS, and he had every reason to believe that SARS would accommodate the Bible Society if properly provided for in the repeal Bill, by reference to transfer of assets to an identified entity, with the name and number stated. SARS should then recognise that the exemption must be in place before the legislation could take effect and should be able to see the urgency of the matter.
Mr Gerber proposed that the two attorneys and he should discuss the draft, to make smooth transitional arrangements. It was not the intention of the legislation that existing rights be taken away.
The Chairperson agreed that the legal advisers should come up with an amended version.
The meeting was adjourned.
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