Methodist Church of Southern Africa (Private) Act Repeal Bill [B68-2008]; Dutch Reformed Churches Union Act Repeal Bill; Bible Society of SA Act Repeal Bill; The Apostolic Faith Mission of SA(Private) Act Repeal Bill: Continuation of public hearings

Arts and Culture

03 September 2008
Chairperson: Ms T Tshivhase (ANC)
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Meeting Summary

The Committee continued with the public hearings on the repeal of the three repeal Bills concerning the churches, but did not discuss the Bible Society Bill, which was still being redrafted, following concerns at a previous meeting. The South African Council of Churches noted that its submission also encompassed the views of the Methodist Church. It supported the repeal as desirable within a country governed now by a constitutional and democratic framework that guaranteed the exercise of the practice of freedom of religious belief, expression and association. However, it proposed amendments to the Memorandum of Objects, to the effect that the first paragraph should reflect the constitutional principles, the second should state that the objects included removal of legislation that was anachronistic and redundant, and the third should combine all the legislation to be repealed in one clause. Furthermore it suggested that there should be a savings clause to ensure that all decisions and actions taken under the old Acts should not fall away once those were repealed. The Committee noted that this latter point was already covered under the Interpretation Act. In regard to the other suggestions, the Committee agreed that the suggested paragraphs (a) and (b) could be included, but that the references to discrimination on a racial or gender bias, as contained in the separate Memorandum of Objects for each Bill, should not be removed, as that was a factual observation. The proposed clause (c) would not be appropriate for inclusion, since each Bill sought only to repeal its relevant principal Acts and therefore had no place to mention other legislation. A final draft incorporating the amendments would be prepared for further discussion on 10 September.

Meeting report

South African Council of Churches Submission on the repeal Bills
The Chairperson welcomed representatives of the South African Council of Churches (SACC), led by Sister Angelene Swart, President of the Moravian Church in South Africa. She introduced Rev Keith Vermeulen, Parliamentary Officer for SACC and representative of the South African Council of Church Leaders Forum. Dr Ben du Toit, Dutch Reformed Parliamentary Officer, also attended in support of the submission as member of the SACC, and also one of the affected churches. The apologies of Bishop Ivan Abrahams, Methodist Church of Southern Africa and Leader of all Church Leaders in the SACC, and of the General Secretary, Mr Eddie Makeu, were noted.

Sr Swart noted that the Council of Church Leaders had met on Thursday 28 August to discuss the repeal bills with the affected churches, and the Apostolic Faith Mission, and also had input from the Bible Society although the Bible Society was not a member of the South African Council of Churches.

Sr Swart then tabled a document containing the submissions and some proposed amendments to the Memorandum of Objects. These would be stated in three subparagraphs as follows:
”(a) to give effect to the constitutional principles of human dignity, freedom or religion and association, equality and the advancement of human rights and freedoms, non-racialism and non-sexism;
(b) to remove legislation that is anachronistic and redundant”
Paragraph (c) would list all the Acts to be repealed, in one provision.

The SACC further submitted that there should be a new clause 7, headed “Implications for Churches and Organisations affected”, which contained savings provisions.

Rev Vermeulen added that the submissions resulted from consultation with the many churches affected within the SACC. The SACC represented twenty-six denominations, not all governed by private legislation, and there was a genuine sense of cooperation to present the proposal. There would be no separate presentation from the Methodist Church of Southern Africa as its views were included in the previous submission.

Mr G Lekgetho (ANC) asked whether the SACC represented all the churches in this country and if not, which were not represented.

Mr Lekgetho asked what the SACC was doing to advance human rights, in particular in eradicating unemployment and poverty, as it did not seem visible in advancing the aspirations of the communities it represented, nor sufficiently outspoken when communities attacked foreigners.

Ms D van der Walt (DA) interjected that the purpose of the meeting was to repeal Bills, not to tell the SACC how to conduct its affairs.

The Chairperson asked Mr Lekgetho to ask relevant questions.

Mr Lekgetho insisted it was relevant, as this aspiration was mentioned in their document and had to be addressed.

Rev Vermeulen responded that the SACC did not claim to represent all churches in South Africa. It represented twenty-six denominations and membership was estimated at between fifteen and sixteen million members.

He took the point that this was not the time and place to deal with the issues of the operations of the church or of its history or context. However, that question was being answered elsewhere, as the SACC had been discussing, at national level, xenophobia and issues around poverty eradication, justice and so forth. It only spoke with a unified voice on matters of common agreement. There were times when SACC had to express that different churches were not agreed on some issues.

The SACC agreed fully that this legislation was being produced under the context of the Constitution that provided for religious freedom, equity, and promotion of religious and human rights.

He agreed that the legislation put before this Committee was correctly put, and that this was the right time to express its relationship with the State in terms of religion and politics and to deal with questions.

Mr H Maluleka (ANC) asked for clarity on the suggested amendment. He had thought that it was not necessary to state in legislation where the headquarters of the church should be, or what constituted a quorum. This amendment, by way of the savings clause, was now asking the Committee to allow the arrangements under the legislation to stay in place until the highest decision making body of the affected churches had decided on these issues. He thought that effectively this would simply still dictate to the churches how they should run.

Ms van der Walt asked for clarification of item 3 of the proposed amendment. Paragraph (c) asked that all the Acts be repealed in one “omnibus” clause. She could not see that this could be done, as each Bill dealt only with the relevant Act that it was to repeal, and should not mention all the other Acts.

Sr Swart explained that it was necessary to have a savings clause because decisions around appointments, property being bought or sold and other issues had affected the churches over the years. The SACC were asking for savings to ensure that the decisions and actions would still be regarded as valid, unless the Church authorities wanted to change them.

Rev Vermeulen added that the proposal was not to retain the Bills as such, but merely to have a savings clause, similar to any other piece of legislation, so that in the event of any legal action around what had been in the legislation previously, the organisations would be indemnified.  Such a clause would accept the validity of decisions legally taken. 

With regard to the question of the one clause repealing all Bills, Rev Vermeulen said that the affected churches had thought this could be done by an “omnibus” clause, as stated in the proposed clause (c), but would not object to this being revised and applied separately to each case.

Mr P Gerber (ANC, Proposer of the Repeal Bills) asked for an opinion from the State Legal Advisor regarding the savings clause.

The Legal Adviser explained that the repeal would not undo the Act as if it had never existed, but would meant that whatever was done in terms of the Act whilst it was in effect would remain valid, notwithstanding the repeal. It was not necessary to put in such a clause, as this was in any event covered by the Interpretation Act.

Sr Swart stated that SACC’s legal advisers had suggested a savings clause, but SACC would accept what was said.

Dr du Toit explained that in a previous round of discussions and submissions it was pointed out by the South African Law Reform Commission that there might be a need for such a clause in terms of vested interests of the parties acquired over the years, but if it was not necessary he too would be happy to abide by that.

The Legal Advisor said that this matter had been discussed on the previous day with the legal advisers for the Bible Society, and subsequently an e-mail proposal with an amendment was received, which the advisers had not yet had a chance to study in detail. She would do that after the meeting and comment on the proposal being made, or come up with another amendment to cover their concerns, and would incorporate that into a new draft for the Committee to approve at the next meeting.

Dr du Toit clarified that, for instance, the proposed objects (a) and (b) would be applicable to all three of the affected Churches, but they would accept if point (c) could not be made as an “omnibus” declaration. 

The legal adviser asked for guidance from the Committee. She reiterated that not all the repeals could be stated in one. She asked whether the Committee was accepting the proposal in general, subject to the technical changes being made.

Mr Gerber commented on the concept of an “omnibus” combining the five pieces of legislation. He said that the fact that the Churches had their own legislation was part of the history of churches in South Africa, and was covered in Hansard from the 1800s right through to 1978. There had been lively debates and separate histories. He felt it would be unfair to the churches if they were simply lumped together and that each Act should rather be repealed separately and in a dignified way.

Rev Vermeulen asked for clarity on that explanation as he thought the SACC’s position was for a dignified solution. The SACC thought that the three amendments proposed were central to the reasons for the repeal. It was important that that was really the context in which the repeal was taking place, and he did not think this was connected to the histories of the churches. If the proposals could not be dealt with in an “omnibus” then SACC recommended that the three parts be incorporated into the Bills for each of the churches, to ensure that there was even-handed treatment. The dignity concerned the agreement to repeal in view of the Constitution’s provision of religious freedom and human rights.

Ms van der Walt suggested the Legal Advisor assist. She noted that objective 1(a) – giving effect to Constitutional principles - was not stated under the Dutch Reformed Church Bill. Paragraph (b) addressed the racially discriminatory legislation, which the SACC now wished to be in all four Bills. The proposed wording was different. Paragraph (c) could only cover the relevant Act for the relevant repealing Bill.

Rev Vermeulen said that the SACC did not believe what they were proposing ran counter to anything that the repealing Bills were doing. It was essential to deal with matters in a dignified way. The Dutch Reformed Church (DRC) was present and could accede to this. The SACC had discussed the wording showing racism and discrimination, and, on the advice of their legal advisers, suggested that the aim and object of the Bills should be to remove legislation that was no longer necessary, as under the current Constitution such provisions were redundant and would also be in conflict with the Constitution. That was central to the reasons for the repeal. SACC simply felt that this was preferable wording. 

The Legal Advisor noted that her understanding was that the SACC were taking issue with the references to discrimination – racial and gender – and would prefer to focus on the fact that the legislation was redundant. That was not a legal question. This was a policy decision that would have to be taken by the Committee as to whether it felt the proposals accurately reflected the reasons for repeal.

The Chairperson said the Committee would hear more from the Legal Advisors after drafting.

She thanked the presenters, and excused them from the meeting. She announced that the Committee would be debating the matter on 10 September.

Further Deliberations by Committee
After the presenters were excused, the Committee continued to debate the Bill.

Ms D Ramodibe (ANC) asked the Legal Advisor if there was a reason why the objects of the bill were worded

The Legal Advisor said that Mr Gerber would be better able to respond, but she assumed it was because the Acts that were being repealed dealt with different matters, and therefore the objects were not all stated in the same way.

Mr Gerber said that the DRC had serious problems with the stated objects of the repeal bill, which had been to remove obstacles in the unification process, and to remove racial discrimination. It was a fact that the racial discrimination was still contained in the DRC legislation, and therefore it should be a specific objective of the Bill to remove it. He suggested that it would be possible to add in proposal (a) from the SACC proposals, which effectively said that the Bill was intended to “give effect to the constitutional principles of human dignity, freedom of religion and association, equality and advancement of human rights and freedoms, non-racialism and non-sexism”. However, he said that the racial discrimination in the DRC was a very real thing. He did not think it would be right for the Committee to come with an “omnibus” objective, as Members would be failing in their duty as leaders of the country not to say something about the racially discriminatory legislation in the objectives. It was something that that the specific church family must address, because after fourteen years of democracy it was totally unacceptable that this should still be in the statutes.

Insofar as the Bible Society was concerned, he saw the proposal as quite straightforward and there was nothing wrong with that objective.

The Apostolic Faith Mission also had racial and gender discriminatory rules contained in their specific legislation, and although the Church itself had changed, the wording in the legislation had not, and needed to be addressed. .

The Methodist Church legislation also showed gender discrimination.

For this reason, Mr Gerber concluded that he did not believe that the Committee should remove the references to discrimination from the objectives of the Bills as drafted, although he thought that the proposal (a) from the SACC could be added in to the Bill relating to the DRC.

He proposed dealing with the four bills on a clause by clause basis and take an informal decision, to be confirmed later, in relation to the adoption.

Ms van der Walt supported Mr Gerber’s proposal not to remove anything from the objectives as drafted, but to add in to them. She agreed that there could not be a general “omnibus” application, because each of the Acts had been drafted differently. She did not quite understand the savings clause proposal.

The Legal Advisor said that in fact the proposal had misplaced the savings clause. It should not be included in the objects of the Bill, but should be included in the clause before the Short Title, and in the Bill itself, since the Memorandum on the Objects would not be part of the final legislation. 

Mr Maluleka felt very strongly that the proposals by the SACC that everything should remain in place until rescinded by the highest body of the Church should not be included.

The Legal Advisor said that most of the Acts being repealed had empowered the churches to own property or properties transferred to them, and the SACC had been concerned that when the repeal was effected, those property rights would fall away. This fear was not correct. The repeal would not undo what had already been done under a valid piece of legislation, but would merely stop that Act from the date of repeal forward. This was already covered by the Interpretation Act.

Mr Gerber proposed that, although the Committee would have to meet again for the Bible Society Bill, it should in the meantime go through the other Bills.

Methodist Church Repeal Bill
Mr Gerber noted that on page 3, under item 3, dealing with the bodies consulted, there should be addition of two further bullet points to clarify that the Dutch Reformed Church and the Apostolic Faith Mission were also consulted, and the list of the bodies consulted be in alphabetical order.

Bible Society Repeal Bill
Mr Gerber noted that on page 2 there should be reference to the repeal of the Bible Society Act of 1970,  and also the Bible Society Amendment Act of 1985. In addition, also on page 2, under “Repeal of Laws” there should be a reference added to “The Bible Society Amendment Act, 1985 (Act No. 97 of 1985) is hereby repealed.” On page 2, under item 3, dealing with the bodies consulted, there should be addition of two further bullet points to clarify that the Dutch Reformed Church and the Apostolic Faith Mission were also consulted, and the list of the bodies consulted be in alphabetical order.

Dutch Reformed Church Repeal Bill
Mr Gerber noted that on page 2 the wording should read : “To provide for the repeal of the Dutch Reformed Union Act, 1911, and the Dutch Reformed Church in South Africa (Repeal of Laws) (Private) Act, 1961; and to provide for matters connected therewith.”

Also on page 2, he noted that under “Repeal of Laws” there should be a reference added to the repeal of  The Dutch Reformed Church in South Africa (Repeal of Laws) (Private) Act, 1961.

On page 3, under the Objects of the Bill, paragraph (a) should read “Vereenigende Gereformeerde Kerk”.

On page 3, there should also be the addition of the SACC proposal (a), and a renumbering of the other points.

The Legal Advisor intervened to say that the DRC had previously indicated that the particular clause did not correctly reflect what the bill was about, because it identified the four churches from the different provinces as opposed to the three different congregations within the Dutch Reformed Church family. She asked whether this should not be changed.

Mr Gerber responded that the DRC was happy with that wording, and the proposal was to retain this clause as worded, because it would be impossible to unify the church if such legislation was still on the statute books.

The Legal Advisor thought the issue, around the proposal (a) was not so much to do with the fact that the legislation had been discriminatory, but that there was reference to forming one synod, which, as it was explained, had not happened under the 1911 Act, but only in 1961.

Mr Gerber said it was very sensitive, but it was impossible to ignore history. If the DRC wanted to unify the Church, they should not have any piece of legislation that contained racially discriminatory provisions. Therefore he thought that (a) was relevant. 

Mr Gerber noted that on page 3, under item 3, dealing with the bodies consulted, there should be addition of two further bullet points to clarify that the Dutch Reformed Church and the Apostolic Faith Mission were also consulted, and the list of the bodies consulted be in alphabetical order.

Apostolic Faith Mission Repeal Bill
Mr Gerber noted that there should be an addition to page 2, so that it read “To provide for the repeal of The Apostolic Faith Mission of South Africa (Private) Act, 1961 and The Apostolic Faith Mission of South Africa (Private) Amendment Act No. 4 of 1970; and to provide for matters connected therewith.”

The reference to both the Acts must also be added in to the Repeal of Laws clause.

On page 3, he said that “ The Apostolic Faith Mission of South Africa (Private) Act, 1961 (Act No. 24 of 1961) and The Apostolic Faith Mission of South Africa (Private) Amendment Act No. 4 of 1970” should also be stated.

On page 3, there should be a further two bullet points added, similar to the other legislation, adding the Dutch Reformed Church and The Apostolic Faith Mission in to the list of bodies consulted, and that list must be placed in alphabetical order.

It was agreed that the Legal Advisors should attend to the necessary re-drafts, and that the Bills be considered again for formal adoption on 10 September.

The meeting was adjourned.


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