COMMENT TO STANDING COMMITTEE
ON MEMBERS’ PRIVATE LEGISLATIVE PROPOSALS AND SPECIAL PETITIONS
1. Purpose
1.1 The
purpose of this memorandum is to provide a comment by the Secretariat of the
South African Law Reform Commission (SALRC) to the Standing Committee on
Private Members’ Legislative Proposals and Special Petitions on the following
six Private Bills being considered by the Standing Committee, namely:
(a) The Dutch
Reformed Churches Union Act, 1911 (Act No 23 of 1911);
(b) The Bible
Society Act of
(c) The Bible
Society of
(d) The Apostolic Faith
(e) The Apostolic Faith Mission of South Africa (Private)
Amendment Act, 1970 (Act of1970);
(f) The
2. Background
2.1 Mr D Rudman, Deputy
Director-General of the Department for Justice and Constitutional Development
and head of the branch Legislative and Constitutional Development initially
attended the meetings of the Standing Committee on these Bills. In 2004 the
SALRC included in its programme project 25 which deals with statutory law
revision. The Secretariat of the SALRC was therefore requested to attend the
meetings of the Standing Committee with a view to rendering assistance. The Standing Committee requested the SALRC at
the Committee’s meeting on 9 November 2007 to provide a comment on the submissions
and concerns raised by the stake-holders.
3. Repeal of the Dutch
Reformed Churches
(a) Comment by the Dutch
Reformed Church
3.1 The Dutch Reformed Church (DRC) expressed
its support for the
repealing of the Dutch Reformed Churches
(b) Evaluation
3.2
In addition to the support expressed
by the Dutch Reformed Church for the
repeal of the 1911 Act, the second reading debate on the Dutch
Reformed Church in South Africa (Repeal of Laws) (Private ) Bill on 3 March 1961 provides further justification
for the repeal of the Dutch Reformed Churches Union Act no 23 of 1911. The following was said during this debate on
3 March 1961:
The repeal of these Ordinances will
not in any way bring about a change in the present composition of the Church.
When the Synod decided to make representations and to introduce the legislation
now before us, they inter alia
reaffirmed their own standpoint, and the Synod passed the following resolution
–
In order to obviate any .misapprehension,
the Synod declares that this step (the repeal of the Ordinances) will not
result in affecting the essence, the doctrine or the Presbyterian form of its government
of the existing Church, but that the Church retains its identity, its historical
character and form of government, and that the repeal of the Ordinances will
not affect the validity of the provisions and rules of the Church for its own
government, as amended from time to time.
It therefore does not make any change
in the existing position. On the contrary, it simply reaffirms the fact that
the NG Church is an autonomous body corporate and as such is entitled to make
laws and regulations for the control and the management of its own affairs.
That is the right which all the Churches in
This wish of the Churches to amalgamate
is not something new. In 1911, shortly after
3.3 Although the DRC
supports the repealing of Act 23 of 1911, they draw attention to the objectives
for the proposed repeal. It is suggested
that these concerns of the DRC be considered and that consideration be given to
their suggestion that the main motivation for the repeal of the 1911 Act be
based on the redundancy of the 1911 Act.
3.4 The DRC also suggests
particular wording be included in the repealing legislation, namely that the
repeal of the 1911 law shall not affect the previous operation of the law so
repealed or anything duly done or suffered under the law so repealed or affect
any right, privilege, obligation or liability acquired, accrued or incurred
under the law so repealed or affect any investigation, legal proceeding or
remedy in respect of any such right, privilege, obligation or liability. This wording is based on section 12 of the
Interpretation Act of 1957 which deals with the effect of repeal of legislation
in general. The inclusion of such a
provision the repeal statutes seems appropriate in respect of all the repeal statutes
under consideration. Such a provision would make clear the effect of the repeal
of these Acts and would safeguard rights, privileges, obligations or
liabilities that existed in terms of the repealed legislation.
4. Comments by the South
African Council of Churches
4.1 In
its submission the South African Council of Churches (SACC) notes that it is clear that the state should neither be seen to be
privileging one religious group over another nor even regulating religious
belief and practice. The SACC also remarks that one is required to take into
consideration the implications such repeal would have on the juristic relations
of these denominations and organizations. The SACC also notes that the implications of the
proposed repeal needs to be explored further.
5. Proposed repeal of the Apostolic
Faith
(a) Historical context
5.1 On 17 March 1961 during
the second reading debate on the Apostolic Faith Mission of South Africa Bill
the following was said in motivation for the adoption of the Bill:
. . . The Apostolic Faith Mission of
South Africa is in essence and in fact and for all practical purposes a church.
In its form, however, and in the eyes of the law it is not a church but a
company. The object of this measure is to remove that anomaly. For that reason,
therefore, the two main provisions contained in the Bill are that the company
under which the Apostolic Faith Mission is incorporated shall be dissolved and
that at the same time the
There are good reasons for this step, and I would like to tell hon.
members briefly what they are. As the result of the preaching of a certain
Mr. Speaker, as the result of the
fact that The Apostolic Faith Mission was registered under the Companies Act,
two important consequences to the
Now I just want to mention certain provisions of the Companies
Act affecting the
Now it is understandable that in
view of the tremendous expansion which has taken place a very large number of
resolutions have to he taken by the church every year, and in view of the fact
that the General Workers’ Council is its highest legislative body, on an equal
footing with the synods of other churches, these resolutions are discussed
there, but when a resolution has been discussed and approved of by almost 500
to 600 delegates who are present there, in order to comply with the
requirements of the Companies Act and with its own constitution, all these
resolutions again have to be submitted to a general meeting of the company.
That is where the difficulty arises for The Apostolic Faith Mission. There is
no interest on the part of its members in the company aspect or the company
transactions, because the members feel that everything has already been
satisfactorily dealt with by the General Workers’ Council. For that reason the
annual meeting of the company has become a farce. In cases where there
are suggestions that the constitution should be changed, for which the
Companies Act and the constitution itself makes provision, a quorum of 25 per
cent of its baptized members is required, and the position has just become
impossible because the baptized members to-day number more than 30,000. As I
said they are spread over the length end breadth of the country, and even in
Coming to the Bill itself, it surely
is not necessary to explain the provisions detail and I merely wish to refer to
them briefly. Clause 1 contains the usual definition. Clause 2, which is really the main provision, dissolves
the company and incorporates The Apostolic Faith Mission as a church,
whilst Clause 3 makes the new church a corporate body with perpetual legal succession.
Clause 4 merely provides where the headquarters of the church would be, viz.
Mr. DURRANT: l too would like to say
a word in support of this measure, because I think all hon. Members on all sides of the House will agree that it is unthinkable that a church that
has reached the proportions as that the
Apostolic Faith Mission has reached in preaching the word of God should
continue to be treated as a private company subject to the normal law of
private companies as we know it. May I also say that perhaps one of the
greatest factors in a democratic society is the complete religious freedom that
it offers to the individual citizen. And I think the introduction of this Bill
and its acceptance by the House can stand as a memorial to that great
fundamental factor of religious freedom in a democratic society. . . . It is
for that reason that would like to have
the comments of the hon. Member for Klerksdorp in respect of three particular
provisions of the articles of association included as a schedule to the Bill and I refer to
Articels 2 and 65(b) and Article 60. They are important articles because
they govern the missionary activities as far as the Apostolic Faith Mission is
concerned. Article 2 –
The
non-European, that is to say, the Indian, Coloured and Bantu
adherents to the teachings, doctrines and practices of the Mission shall be
governed by separate policies and instructions formulated and drawn up for the
aforesaid communities by the executive council in consultation with the
Missionaries in Council and approved by
the General Workers’ Council.
Then Section 65(b) says —
A Council of Missionaries . . . shall be
convened annually for the purpose of discussing matters concerning work in the
missionary departments and advising the Executive Council and General Workers;
Council on missionary matters, referred to in Article 2 hereof.
Now quite
rightly the hon. Member for Klerksdorp referred
to Clause 5 as a most important clause in that it deals wit powers and the constitution
of the church. Now in view of the great expansion of the
. . .
Mr PELSER: I just want to thank hon. Members for their
support of this measure. It proves that freedom of religion is in fact being
enjoyed in this country when a measure like this can be passed with the
unanimous support of all the members in the House. Concerning the question put
by the hon. member for Turfontein (Mr Durrant), it is correct that at the
present moment only the White baptized members are members of the company. It
is also correct that all property purchased was purchased in the name of the
company, and that property purchased
for the use of the lndian congregation or the Coloured congregation and
the Bantu congregation is held in trust. However, I have no instructions in
this regard and therefore cannot say to what extent the rules will probably or
possibly be amended. . . .
(b) Comments by the Apostolic Faith Mission of
5.2 The Apostolic Faith Mission of South Africa (AFM of SA) comments on the proposed
repeal of the Apostolic Faith Mission of South Africa (Private) Act, 1961 (Act
24 of 1961) and the Apostolic Faith Mission of South Africa (Private) Amendment
Act, 1970 (Act of1970). The AFM of SA notes in a preliminary comment that the proposed repeal
has dire consequences for the AFM of SA in terms of its ‘juristic
personality (legal persona)’, its property ownership and its operations as
church in general. The AFM of SA notes that its has a property portfolio in
excess of R 500 million, with an annual turnover in excess of R 300 million. The
AFM of SA explains that the church has since the inception of the Act amended
its constitution in its entirety from time to time, with specific reference to
the contents of the Schedule of the Act –
·
as early as 1 May 1992, the church
amended its constitution to do away with much of the discriminatory references
and also afforded legal persona to all entities within the church;
·
on 3 May 1 996 the church, in
forming a United Church of all cultural groupings within South Africa, adopted a
non-racial and non-sexist constitution for the now united church;
·
minor amendments to this
constitution were adopted during 1997 and 1998, without detracting from the
principle of non-racial and non-sexist;
·
As from 1 October 2000 the church
adopted a new constitution, giving greater freedom and autonomy to local
churches and entities within the church. This constitution is also void of any
racial or gender discrimination.
5.3
The AFM of SA points out that that
the current reference to members (adherents) is void of segregation and that the
current prescripts are void of gender discrimination. The AFM of SA comments on
the proposed repeal of Act 24 of 1961 will negatively impact the operations of
the church. During the meeting of the Standing Committee on 2 November 2007 the
AFM of SA indicated that the church supports the repeal of the 1961 Act. The
AFM of SA highlighted, however, that the church would need time to further
investigate the issue of the legal personality of the church and issues such as
possible conveyancing of church property.
(c) Evaluation
5.4
Section 7 of Act 24 of 1961 confirms
the comment by the AFM of SA that the repeal of Act 24 of 1961 would have an
impact on the title deeds of the properties of the church. This section deals as
follows with the vesting of the company's property in the church:
The whole of the movable and
immovable property which at the commencement of this Act was vested in the
company or registered in its name shall, upon the commencement of this Act,
vest in the church and be deemed to be registered in its name, without payment
of transfer duty or stamp duty or fees of office, and the respective registrars
of deeds in the various Provinces of the Republic shall, upon production to
them of the title deeds of any immovable property so registered, endorse the
same to the effect that such immovable property is deemed to be registered in
the name of the church in accordance with the provisions of this Act, whereupon
the said title deeds shall serve and avail as the title deeds of the church in
respect of such immovable properties. Where any such immovable property is
subject to any bond, mortgage or otherwise, such bond shall be likewise
endorsed, which endorsement shall have the effect of substituting the church as
debtor under the bond and shall make it and the property aforesaid subject to
all the duties and obligations of the said bond and entitled to any rights to
re-advances under the bond exactly as if the said church had originally been
the debtor thereunder.
5.5 The case of Ex Parte Johannesburg Congregation of the
Apostolic Church 1968 (3) SA 377 is noteworthy in respect of the legal
personality of the
This is an application for an order declaring
the Johannesburg Congregation of the
5.6 It is suggested that the
concerns raised by the AFM of SA in respect of the motivation for the repeal of
the Acts be noted.
6. Proposed repeal of the
Methodist
(a) Historical context
6.1 On 16 June 1978 during
the Second reading debate on the
Mr. R. B. DURRANT: . . the Bill has a very long preamble which
broadly sets out the history, development and expansion of the
The history of the
. . . That was the position during
all those years until 1927 when this Parliament enacted the legislation of 1927
which provided for two things as far as the interests of the Church were
concerned. It made the South African Wesleyan Methodist Conference an
autonomous body in
The Act of 1927 did not make
provision for the incorporation of the Primitive Methodist Missions. After 1927
the three great Methodist Churches in the
At the same time it was decided to
drop the prefixes of “Wesleyan” and ‘‘Primitive’’. A further Bill was
introduced in this House in 1932. As an Act of Parliament it gave legality to
these decisions of the South African Conference. For the first time the Church
was then called the Methodist Church of South Africa and there was a consequent
devolution of all the Church’s property being vested in the Conference. Since
that time the work of the Church and its missionary activities in spreading the
word of the Gospel in
(b) Comment by the
6.2 In
its submission to the Standing Committee on 2nd November 2007 by the Methodist
Church of Southern Africa (the “MCSA”) in response to the Bill titled
“Methodist Church of Southern Africa (Private) Repeal Act” it was noted that the submission deals primarily with process. The MCSA states that the Methodist Conference is the supreme legislative
body in the MCSA and this body only meets once a year in September.
Furthermore in terms of the constitution of the MCSA a central part of the
decision making process within the MCSA are local and regional structures,
called quarterly meetings and synods respectively. Any constitutional decision
by the Methodist Conference must involve these structures. The normal process
would be for an issue first to be addressed by these quarterly meetings and
synods. This input would then be laid before the Methodist Conference which
would either adopt a position or refer it back to the said local and regional
structures for more input. This additional input would then be laid before the
following Methodist Conference for final adoption, if such a final position was
possible.
6.3 The MCSA says that accordingly,
if the MCSA is going to be part of the process leading up to a decision about whether
or not the Act should be repealed, that process can only begin fully in
September 2008 where the necessary mandate and brief can be given by the
Methodist Conference. Although it is a possibility that the Methodist
Conference of 2008 could adopt a final position, realistically the said local
and regional structures would have to be given a reasonable opportunity to
digest the full implications of the proposed repeal before they can give
meaningful input. In this regard it must be remembered that a significant
number of the about two million members of the MCSA live in far flung rural
areas. Logistically it is a huge and drawn out task to ensure meaningful
participation by the said local and regional structures.
6.4 An additional concern to
the MCSA of the proposed repeal of the Act is the impact it would have on the
title deeds of the properties of the MCSA. This is a very complex question
which would require extensive research as thousands of properties could be
adversely affected. A further complicating issue is that the MCSA covers six
Southern African countries. The implications of the repeal of the Act for the
MCSA in all these countries would also require very careful research. Thus a
more realistic target for a final decision by the Methodist Conference would be
the Methodist Conference of 2009. Accordingly the MCSA would request that any
time frame for this matter accommodate the particular governance structure of
the MCSA as set out above, not least of
all by the Act itself.
6.5 The MCSA also comments
on the issue whether the Methodist Act permits segregation on religious lines.
The MCSA notes that the Act makes no
reference to race, that the Act makes the doctrine and religious usages
of the people called Methodists supreme and that these doctrines and usages are
set out in the Laws and Discipline of the Church. The MCSA highlights a few
quotes the latter on the issue of racism:
·
“ . . . racially integrated Circuits
and Societies are a natural expression of the true
·
“ . . .the suffering of the majority
of our Members as a result of racial prejudice and Apartheid has necessitated
their solidarity in the ongoing struggle for the justice and liberation which
can lead to reconciliation in
·
The MCSA points out the following resolution - “Conference (as stated
above, the highest legislative body in the MCSA), in denouncing racism, calls
on all Methodists to continue striving against all forms of racism in Church
and Society and commits the Methodist Church of Southern Africa to co-operate
with all agencies working towards similar objectives.” A final example is the
resolution of the Methodist Conference of 1958 which reads as follows: “The Conference declares its conviction that
it is the will of God for the Methodist Church that it should be one and
undivided, trusting to the leading of God to bring this ideal to ultimate
fruition, and that this be the general basis of our missionary policy.”
(c) Evaluation
6.6 Section 4(1) of Act 111
of 1978 confirms the comment by the MCSA on the impact the repeal of Act 111 of
1978 would have on the title deeds of the properties of the MCSA. This section
provides that all movable and immovable property which immediately prior to the
date of commencement of the Act were owned or were held by or vested in The
Church as formerly constituted and designated, shall at the commencement of
this Act continue to vest in and be owned by The Church as constituted by the
Act without the necessity of any transfer, conveyance or other continuing or
connecting title other than the Act.
6.7 The Standing Committee
questioned the fact that Act 111 of 1978 has extra-territorial application. During
the second reading debate on the Methodist Church of Southern Africa (Private)
Bill (of which extracts are quoted below) it was explained that in 1972 the
Conference felt that it was more appropriate that the name of the Church should
reflect the fact that there is a wider area involved rather than simply South
Africa itself. Prof Lourens du Plessis explains in his textbook Re-Interpretation of Statutes that the
presumption that statutes do not obtain extra-territorially or do not have
extra-territorial application or do not strike acts committed beyond the limits
of jurisdiction of the legislature roots in respect for the territorial
integrity of other states. He also notes that the presumption is not explicitly
mentioned in the Constitution, nor is the rationale for its existence
undermined, and therefore it will remain in its common-law form.
6.8 The MCSA raised concern
about the motivation for the repeal of the 1978 Act. It is suggested that the motivation for the
repeal of the 1978 Act be considered in view of these concerns raised.
7. The legal personality of religious bodies
7.1 There is no state church
established by law in
7.2 In the English law
churches do not constitute corporate bodies with legal personality. Church
property of the established church, the Church of England, vests in a statutory
body, the Church Commissioners of England, and in the case of the
non-established churches property rights are, as a general rule, vested in an
ecclesiastical trust. This state of affairs in
7.3 Under the influence of
English law the Dutch Reformed Church was described in legislation of the
British colonial government as a “voluntary association”. This description
carried with it the implication of the church not being a juristic persona, and
the creation of trusts for the purpose of administering church property
consequently also became common practice of the Dutch Reformed Church. The Cape
Provincial Division of the Supreme Court determined that the Dutch Reformed
Mission Church was not a legal person.
In earlier judgments a similar decision was also reached in the case of
certain other denominations.
7.4 The turning point in the
court’s attitude regarding the legal personality of ecclesiastical institutions
was perhaps signified by the obiter dictum in De Vos v Die
Ringskommissie van die Ring van die NG Kerk, Bloemfontein in which it was maintained that there was
“much to be said” for the proposition that the Dutch Reformed Church was a
legal person. Subsequent legislation in fact proceeded on the assumption that
the Dutch Reformed Church was “an autonomous body corporate”. There is nothing
sinister in a “voluntary association” being entrusted with legal personality.
7.5 The criterion laid down
by the courts for identifying a juristic person — the capacity to acquire
rights and obligations and perpetual succession as well as that preferred by
theoretical analysts,’ can apply as much to social entities whose primary
objectives are not economically qualified as to those with a profit-making
motive. Social entities of the former kind, which include religious bodies, can
in fact acquire legal personality without special formalities: all that is
needed is an express or implied statement in their constitutions to the effect
that they will be juristic persons. In
order to establish whether or not a non-profit-making institution is to be
regarded as a legal person, one should therefore simply consider its domestic
articles of association or constitution. Following this approach the courts had
no difficulty in finding that, for instance, the St John Apostolic Faith
Mission, the Bantu Methodist Church of South Africa (as it was then called) and
the African Congregational Church were in fact juristic persons. Legal
subjectivity can thus vest in a denominational institution in the broad sense,
and also in particular congregations of the church.
7.6 In some instances
religious bodies acquired legal personality by means of registration under
companies’ legislation. In other instances the legal personality of certain
churches is specially regulated in a private statute. Formalities are, however, not
essential for a religious body to become a legal person.
8. The
proposed repeal of the Bible Society Act of South Africa Act, 1970 (Act 15
of 1970) and the Bible Society of
8.1
The Bible Society
of South Africa Amendment Act 97 of 1985 amended the principal Act by deleting
the definition of “Republic” and by repealing section 23. If the Bible Society
Act of 1970 is repealed, the basis for the continued existence of the Bible Society
of South Africa Amendment Act would also cease to exist.
(a) Historical context
8.2 The
history of the Bible Society of South Africa (the Bible Society) was set out
succinctly by the Prime Minister at the second reading of the Bible Society of
South Africa Bill on 23 February 1970. The Bible Society of South Africa came
into being on the 23 August 1820 in
8.3 The
promulgation of the Bible Society Act of 1970 was a culmination of various
attempts by the Board of the Bible Society to have it registered as a company.
For example, it appears from the
documentation submitted by the Bible Society to the SALRC that in 1967 the
Board of the Bible Society applied to have the Bible Society registered under
article 21 of the then Companies Act. This application was refused by the
Registrar of Companies because of references in the Constitution of the Bible
Society to the parent society, and the absence of Table A governing annual
general meetings. Although the Bible Society continued to function as a society
with legal status, an application was made to the Director of Welfare Services
to have it registered as a welfare organisation, as an interim measure. It is
not clear from the documentation whether the Bible Society succeeded in getting
it registered as a welfare organisation.
8.4 In
1968, at the meeting of the National Board of the Society one of the members
asked why it was necessary for the Society to be registered as a company if it could
operate as a society with legal personality. Responding, the Treasurer of the
Society explained that a company enjoyed a higher status and that it could add
to the Society’s esteem in the eyes of the public. The General Secretary also
emphasised that the Bible Society was replacing a foreign company which functioned
under a private Bill in
8.5 It is
clear from the submission made by the then Prime Minister at the second reading
of the Bible Society of South Africa Bill on the 23 February 1970 that this Act
was promoted by government because it would promote Christian faith. This was
made clear by the Prime Minister when he said:
“The
fact that the Bible Society felt itself free to address this request to
Parliament, illustrates more than anything else that
8.6 The
Prime Minister added, referring to clause 3 of the Bill, that it was clear that
the Bible Society was not founded and that it did not have as one of its
objects to publish any religious writings other than the Bible, and that it
would solely confine itself to the distribution of the Bible and the Bible
alone. For these reasons, amongst others, the Prime Minister implored
Parliament to set its seal on the Bible Society by granting it an Act of its own.
8.7 In
addition, Sir De Villiers Graaff in supporting the second reading of the Bill
also explained why the Bible Society needed an Act of Parliament and why it
could not be incorporated under the Companies Act. He stated that the Bible
Society was an organisation sui generis that
could not be incorporated under the then Companies Act because it does not have
shareholders, and that it could only be granted legal personality by means of
an Act of Parliament.
(b) Which department administers the Bible
Society Act of 1970?
8.8 The
question arises which department administers the Bible Society Act of 1970. The
Bible Society of South Africa Act 15 of 1970 was originally introduced by the
then Prime Minister. However, the 1985 amendment Bill, which sought to sever
the Bible Society juridically from South West Africa by deleting the definition
of Republic in section 1 of the Act was introduced by the then Minister of
National Education. The Department of Education and the Department of Art and Culture
confirm that do not presently administer this statute.
(c) Submission by the Bible Society
8.9 The
Bible Society in its preliminary submission to the Standing Committee does not
support the proposed repeal. It says it wishes to continue to be incorporated under
the Act for, inter alia, the following reasons:
* all
the functions of the Bible Society are regulated through the Act;
* the
Act makes it possible for the Bible Society to enjoy tax exemption; * the Bible Society’s identity is entrenched
in the Act;
* the Bible Society is not a church but an educational and
religious organisation;
* the
Bible Society is a business industry without a profit objective;
* nothing in the Act is discriminatory;
* should the Act be repealed, registration on any other basis
would involve substantial costs.
(d) Evaluation
8.10 Section
15 of the Constitution guarantees freedom of religion, conscience, thought
belief and opinion. O’Regan J
interpreting a similar provision in the 1993 Constitution stated in S v
“The
requirement of equity in the conception of freedom of religion as expressed in
the interim Constitution is a rejection of our history, in which Christianity
was given favoured status by government in many areas of life regardless of the
wide range of religions observed in our society…The explicit endorsement of one
religion over others would not be permitted in our new constitutional order. It
would not be permitted, first because it would result in the indirect coercion
that Black J adverted to in Engel v Vitale. And secondly because such public
endorsement o of one religion over another is in itself a threat to the free
exercise of religion, particularly in a society in which there is a diversity
of religions. Accordingly it is not sufficient for us to be satisfied in a
particular case that there is no direct coercion of religious belief. We also
have to be satisfied that there has been no unequitable or unfair preference of
one religion over others”.
8.11 It is
clear from the second reading debates alluding to above that the legislature’s
purpose in enacting the Bible Society Act of 1970 was not a secular one. It was
enacted because
8.12 The
question now is what would happen to the Bible Society if the Bible Society Act
of 1970 were to be repealed.
8.13 In 1932
the Appellate Division (as it was called then) in Morrison v Standard Building stated that an organisation does not
require a special sanction of the State in order to enable it to hold property
and to sue in its corporate name in our Courts and that in order to determine
whether an association of individuals is a corporate body which can sue in its
own name, the Court has to consider the nature and objects of the association
as well as its constitution, and that if these show that it possesses
characteristics of a universitas then
it can sue in its own name. Therefore, an organisation does not need a statute
to regulate its affairs and to have legal status, all that an organisation
needs is a constitution and a clause in its constitution that it is a legal
person. This is an option that is still available to the Bible Society of South
Africa. Bodies existing as legal persons in terms of their constitutions also
get tax exemptions provided certain requirements are met.
8.14 The
Bible Society has also submitted that it is a business industry without a
profit objective; that the Bible Society Act of 1970 makes it possible for it
to enjoy tax exemption; and that if the Bible Society Act is repealed,
registration on any other basis would involve substantial costs. These are
difficult issues and the Bible Society should be given the opportunity to
elaborate. Research revealed that there are few options available to the Bible
Society which would enable it to get exemption from income tax and transfer
duty. The first option would be to apply for tax exemption in terms of section
30 of the Income Tax. The other option would be for the Bible Society Act to
register as a non-profit organisation in terms of 71 of 1997. Both these
options are further explored below.
8.15 Following
the Ninth Report of the Katz Commission there is now no automatic exemption for
charities, schools or churches. Instead section 30 of the Income Tax Act has
introduced a new concept of a “public benefit organisation”. A public benefit
organisation is any organisation engaged in one or more public benefit
activities in a non-profit manner. Such an organisation may either be:
● a
section 21 company;
● a
trust; or
● an
association of persons established in terms of a constitution.
8.16 The
public benefit activities include, inter alia, the following activities:
● education;
and
● religion,
belief and philosophy.
8.17 All
that is required for registration as a public benefit organisation is that –
● the constitution or founding document of an organisation
must clearly state that the organisation activities and resources are used for
the furtherance of conducting one or more of the approved public benefit
activity;
● at least three unrelated persons must accept fiduciary
responsibility for the organisation;
● funds must be used solely for the stated objectives and
surplus funds must be invested with a financial institution as define in
section 1 of the Financial Services Board Act of 1990;
● the constitution of an organisation must state that on
dissolution the remaining assets will be transferred to a similar public
benefit organisation; etc
8.18 What
are the benefits of registering as a public benefit organisation?
● exemption
from income tax;
● donor
exemption from the 20% donation tax;
● exemption
from transfer duty;
● exemption
from capital gains tax
8.19 Tax
legislation has been amended further in respect of public benefit
organisations. Few amendments introduced are that it is no longer a
prerequisite that an organisation should be registered under the Non-profit
Organisation Act of 1997 for it to be registered as a Public Benefit
Organisation; public benefit organisations can invest without restrictions; and
the statutory tax for trading activities of all public investment bodies,
irrespective of legal form will be 29%. This option seems worth exploring by
the Bible Society.
8.20 Another
possibility would be to register the Bible Society as a non-profit organisation
under the Non-Profit Organisation Act 71 of 1997. The NPO Directorate
within the Department of Social Development registers organisations under the
Nonprofit Organisations Act No.71 of 1997. The Primary Purpose of this Act is
to encourage and support organisations in a wide range of work they do by:
8.21 The Act provides a voluntary registration
facility for NPOs. A Nonprofit Organisation is defined as: a trust, company or
other association of persons:- (a) established for a public purpose, and (b)
the income and property of which are not distributable to its members or office
bearers except as reasonable compensation for services rendered.
8.22 Any organisation that is not for profit
and is not part of government can apply for registration, namely:
• Non- Governmental Organisations (NGO)
• Community Based Organisations (CBO)
• Faith Based Organisations (FBO)
• Organisations that have registered as
Section 21 Companies under the Company Act 61 of 1973.
• Trusts that have registered with
Master of the Supreme Court under the Trust Property Control Act 57 of 1988.
• any other Voluntary Association that
is not-for-profit.
8.23 The Directorate can only register an
organisation that has a constitution or any other founding document.
How Long
does the Registration Process Take?
8.24 It would take about two months to process
the entire registration. Immediate on receipt of application, an
acknowledgement letter is send to the organisation, thereafter, a registration
certificate follows if application meets the requirement of the NPO Act.
How Much
does it Cost?
8.25 To register a Nonprofit Organisation is
free of charge.
How do
Organisations Register?
8.26 By submitting to the NPO Directorate: A Complete Application Form; and two
copies of the organisation’s founding document i.e. a constitution or a deed of
Trust or Memorandum and Articles of Association.
What are
the Benefits for Registration
8.27 There are many benefits to be gained from
a system of registering nonprofit organisations. It:
9. Relationship
between state and religion and freedom of religion
9.1 Finally
the issue of the relationship between the state and religion needs to be
considered. The Constitution provides as follows on freedom of religion
15 Freedom
of religion, belief and opinion
(1) Everyone
has the right to freedom of conscience, religion, thought, belief and opinion.
(2) Religious
observances may be conducted at state or state-aided institutions, provided
that-
(a) those observances follow rules made by
the appropriate public authorities;
(b) they are conducted on an equitable
basis; and
(c) attendance at them is free and
voluntary.
(3)(a) This section does not prevent legislation
recognising-
(i) marriages concluded under any
tradition, or a system of religious, personal or family law; or
(ii) systems of personal and family law
under any tradition, or adhered to by persons professing a particular religion.
(b) Recognition in terms of paragraph (a)
must be consistent with this section and the other provisions of the
Constitution.
9.2 In the decision of S v
[83] The appellant
contends that the prohibition infringes her right under s 14 of the interim
Constitution to freedom of religion as well as her right under s 26 to free
economic activity.
. . .
[93] I am not unmindful
of the fact that constraints on the exercise of freedom of religion can be imposed
in subtle ways and that the choice of Christian holy days for particular
legislative purposes may be perceived to elevate Christian beliefs above
others; and that as a result adherents of other religions may be made to feel
that the State accords less value to their beliefs than it does to
Christianity.
. . .
[99] In the judgments of
Sachs J and O'Regan J reference is made to decisions of the
Congress shall make no
law respecting an establishment of religion, or prohibiting the free exercise
thereof. . . .'
It is clear from the
[100] The primary purpose
of the 'establishment clause' in the US Constitution is to prevent the
advancement or inhibition of religion by the State. The primary purpose of the
'free exercise' clause is to permit adherents of different faiths to pursue
their religious beliefs without being impeded from doing so by State coercion.
82 Our Constitution deals with issues of religion differently to the US
Constitution. It does so under the equality provisions of s 8, the freedom of
religion, belief and opinion provisions of s 14, and the education provisions
of s 32.
[101] The only provision
relied on by the appellant in the present case is s 14. Section 14 does not
include an 'establishment clause' and, in my view, we ought not to read into
its provisions principles pertaining to the advancement or inhibition of
religion by the State. To do so would have far-reaching implications beyond the
apparent scope and purpose of s 14. If such obligations on the part of the
State are to be read into s 14, does this mean that Christmas Day and Good
Friday can no longer be public holidays, that 'Family Day' is suspect because
it falls on Easter Monday, that the SABC as public broadcaster cannot broadcast
church services (as it does regularly on Sunday mornings, though it does not
regularly broadcast Muslim services on Fridays or Jewish services on Saturdays
or Hindu services on any particular day of the week), that its daily religious
programmes must be cancelled, and that State subsidies to denominational
schools are prohibited? These examples can be multiplied by reference to the extremely
complex
[102] I should add that I
can see nothing in the text of s 14(1) or in the historical background to a
constitution which made no provision for an establishment clause which would
require such a principle to be read into its provisions. The Constitution deals
with unequal treatment and discrimination under s 8. Unequal treatment of
religions may well give rise to issues under s 8(2), but that section was not
relied upon by the appellant in the present case. To read 'equitable
considerations' relating to State action into s 14(1) would give rise to any
number of problems not only in relation to freedom of religion but also in
relation to freedom of conscience, thought, belief and opinion, which would go
far beyond the difficulties raised by the 'establishment clause' of the US
Constitution.
. . .
[104] There may be
circumstances in which endorsement of a religion or a religious belief by the
State would contravene the 'freedom of religion' provisions of s 14. This would
be the case if such endorsement has the effect of coercing persons to observe
the practices of a particular religion, or of placing constraints on them in
relation to the observance of their own different religion. 83 The coercion may
be direct or indirect, but it must be established to give rise to an
infringement of the freedom of religion. It is for the person who alleges that
s 14 has been infringed to show that there has been such coercion or
constraint. In my view, this has not been established in the present case.
Langa DP, Ackermann J and
Kriegler J concurred in the judgment of Chaskalson P.
9.3 Justice
O'Regan remarked, inter alia, as follows in this case:
[116] I shall commence by
considering the purpose and meaning of s 14 in our Constitution. Unlike the
Constitution of the
'to establish, where
practicable, educational institutions based on a common culture, language or
religion, provided that there shall be no discrimination on the ground of
race'.
And, of course, s 14
protects the freedom of religion. It is not possible to read this array of
constitutional protections without realising that our Constitution recognises
that adherence to religion is an important and valued aspect of the lives of
many South Africans and that the Constitution seeks to protect, in several
ways, the rights of South Africans to freedom of religion.
[117] The provisions of s
14 themselves are instructive as to the manner in which the right should be
developed in our law. Section 14(1) protects the right to freedom of religion
and conscience. Section 14(2) then provides that religious observances may be
conducted at State or State-aided institutions provided that they are conducted
on an equitable basis and attendance at them is free and voluntary. And s 14(3)
permits legislation recognising systems of personal and family law shared by
members of a religion.
. . .
[119] The provisions of s
14(2) of the interim Constitution make it clear that religious observances at
public institutions will not give rise to constitutional complaint if the
observances meet three requirements: the observances must be established under
rules made by an appropriate authority; they must be equitable; and attendance
at them must be free and voluntary. It seems appropriate to imply from this
provision and from the absence of an express establishment clause that a strict
separation between religious institutions and the State is not required by our
Constitution.
[120] On the other hand,
it also seems plain from the provisions of s 14(2) that State endorsement of
religious practices is subject to certain qualifications. First, it should not
be coercive. The requirement of free and voluntary attendance at religious
ceremonies is an explicit recognition of the deep personal commitment that
participation in religious ceremonies reflects and a recognition that the
freedom of religion requires that the State may never require such attendance
to be compulsory. It protects the rights to conscience both of non-believers
and of people whose religious beliefs differ from those which are being
observed. Direct coercion, of course, is only half the problem. As Black J
stated in Engel v Vitale:
When the power, prestige
and financial support of government is placed behind a particular religious
belief, the indirect coercive pressure upon religious minorities to conform to
the prevailing officially approved religion is plain.' 88
[121] The stipulation of
voluntariness is not the only precondition established by s 14(2). The
subsection requires that, even where attendance is voluntary, the observance of
such practices must still be equitable. In my view, this additional requirement
of fairness or equity reflects an important component of the conception of
freedom of religion contained in our Constitution. Our society possesses a rich
and diverse range of religions. Although the State is permitted to allow
religious observances, it is not permitted to act inequitably.
. . .
[123] The requirement of
equity in the conception of freedom of religion as expressed in the interim
Constitution is a rejection of our history, in which Christianity was given
favoured status by government in many areas of life regardless of the wide
range of religions observed in our society. Sachs J in his judgment in this
case has provided a valuable account of the ways in which Christian principles
were endorsed by legislation and its practices often imposed upon all South
Africans regardless of their beliefs (see paras [148]--[152]). The explicit
endorsement of one religion over others would not be permitted in our new
constitutional order. It would not be permitted, first, because it would result
in the indirect coercion that Black J adverted to in Engel v Vitale; and,
secondly, because such public endorsement of one religion over another is in
itself a threat to the free exercise of religion, particularly in a society in
which there is a wide diversity of religions. Accordingly, it is not sufficient
for us to be satisfied in a particular case that there is no direct coercion of
religious belief. We will also have to be satisfied that there has been no inequitable
or unfair preference of one religion over others.
. . .
[128] I also cannot agree
with Chaskalson P when he concludes that because the provisions do not
constrain individuals' 'right to entertain such religious beliefs as they might
choose, or to declare their religious beliefs openly, or to manifest their
religious beliefs', there is no infringement of s 14 (at para [97]). In my
view, the requirements of the Constitution require more of the Legislature than
that it refrain from coercion. It requires in addition that the Legislature
refrain from favouring one religion over others. Fairness and even-handedness
in relation to diverse religions is a necessary component of freedom of
religion.
[129] In sum, it is my
view that the focus of s 14 is both purpose and effect. In interpreting s 14,
we must recognise, first, the value accorded to religious beliefs and the
diversity of such beliefs in our society by our Constitution; and, secondly,
the fact that religious beliefs are a matter of personal faith and commitment
which should not be the subject of coercion, whether direct or indirect, by the
State. In this case, the legislation results in a breach of s 14 of the interim
Constitution in that it results in the favouring of one religion over others.
The appellant did not argue that the provision was in breach of s 8(2), the right
not to be discriminated against unfairly on the grounds of religion. It is not
necessary, in view of my conclusion, to consider whether s 90 would constitute
a breach of that constitutional provision as well.
9.3 Justice Sachs held as follows:
[135] . . .
[148] To my mind, read in
the context of all of the above provisions and of the Constitution as a whole,
s 14 was intended at least to uphold the following principles and values: South
Africa is an open and democratic society with a non-sectarian State that
guarantees freedom of worship; is respectful of and accommodatory towards,
rather than hostile to or walled-off from, religion; acknowledges the
multi-faith and multi-belief nature of the country; does not favour one
religious creed or doctrinal truth above another; accepts the intensely
personal nature of individual conscience and affirms the intrinsically
voluntary and non-coerced character of belief; respects the rights of
non-believers; and does not impose orthodoxies of thought or require conformity
of conduct in terms of any particular world-view. 117 The Constitution, then,
is very much about the acknowledgement by the State of different belief systems
and their accommodation within a non-hierarchical framework of equality and
non-discrimination. It follows that the State does not take sides on questions
of religion. It does not impose belief, grant privileges to or impose
disadvantages on adherents of any particular belief, require conformity in
matters simply of belief, involve itself in purely religious controversies, or
marginalise people who have different beliefs.
. . .
[160] My view then is
that the identification of Sundays, Good Friday and Christmas Day as closed
days for purposes of selling liquor does involve an endorsement by the State of
the Christian religion in a manner that is problematic in terms of s 14. The
functional impact of the law may be marginal, and its symbolic effect muted,
yet the communication it makes cannot be disregarded. Even if there is clear
scope for the application of the de minimis rule to the question of some
ancillary economic costs 143 resulting from being true to one's faith, it
should be used with extreme caution when it comes to deciding such sensitive
and not easily measurable questions as freedom of conscience, religion and
belief. 144 One of the functions of the Constitution is precisely to protect
the fundamental rights of non-majoritarian groups, who might well be tiny in
number and hold beliefs considered bizarre by the ordinary faithful. In constitutional
terms, the quality of a belief cannot be dependent on the number of its
adherents nor on how widespread or reduced the acceptance of its ideas might
be, 145 nor, in principle, should it matter how slight the intrusion by the
State is. The objective of s 14 is to keep the State away from favouring or
disfavouring any particular world-view, so that, even if politicians as
politicians need not be neutral on these questions, legislators as legislative
drafters must.
[161] The strength of the
O'Connor J's approach, namely its all-encompassing character which lifts it out
of formulaic reasoning and combines the relationship between purpose and
effect, also appears to be its weakness. It indicates the broad question to be
asked, but not the specific criteria to be used for the answer. More
especially, it does little to establish from whose standpoint the message by
the State should be considered. What comes through as an innocuous part of
daily living to one person who happens to inhabit a particular intellectual and
spiritual universe might be communicated as oppressive and exclusionary to
another who lives in a different realm of belief. 146 What may be so trifling
in the eyes of members of the majority or dominant section of the population as
to be invisible may assume quite large proportions and be eminently real,
hurtful and oppressive to those upon whom it impacts. This will especially be
the case when what is apparently harmless is experienced by members of the
affected group as symptomatic of a wide and pervasive pattern of
marginalisation and disadvantage.
. . .
[170] Of greater
significance is the signal given to the public at large that the State regards
the Christian religion as worthy of special respect above other religions. In
the words of Professor Tribe, government's gratuitous use of a religious means
is likely to convey a message of exclusion to all those who do not adhere to
the favoured religion; when such people learn that government has gone out
of its way to adopt the religion's tools, they may believe that government must
have adopted its tenets as well, and quite reasonably feel, in O'Connor J's
words, as if they are not full members of the political community. 159
[171] This is where the
problem of weighing things of a completely different order arises. The
difficulty which we must overcome is how to assess the intrinsically
intangible, but very real (even if rather reduced) symbolic effect of religious
favouritism as against the very palpable and quite terrible consequences of alcohol
abuse which the State wishes to diminish. I have already indicated the factors
which led me to the conclusion that the selection of days chosen by the State
amounted to endorsement of religion in a manner that breached s 14. I will now
consider in its context how grave that breach is or, to put it another way, how
powerful or weak the exclusionary message is which the State is sending by such
endorsement.
. . .
[174] The overall
consequence is a law that, while indeed offending against s 14, does so in an
indirect and marginal way, imposing relatively little obligatory observance, in
respect of a matter of slight sectarian import, in relation to days that have
become highly secularised. The message of inclusion coupled with exclusion is
accordingly a notably subdued and insubstantial one.
. . .
[179]. . .I must state
that, although in general I support the spirit of realism and common sense
which I find in his judgment, I cannot agree with the observation in para [104]
that coercion, whether direct or indirect, must be established before s 14 can
be said to have been breached. The State as the State is animated by the values
expressed or implied in the Constitution, and by those alone. By endorsing a
particular faith as a direct and sectarian source of values for legislation
binding on the whole nation, it exceeds the competence granted to it by the
Constitution. Even if there is no compulsory requirement to observe or not to
observe a particular religious practice, the effect is to divide the nation
into insiders who belong, and outsiders who are tolerated. 166 This is
impermissible in the multi-faith, heterodox society contemplated by our
Constitution
.
9.4
It follows from what the Constitutional
Court has said in the case above that the State should not take sides on
questions of religion, should not impose belief, grant privileges to or impose
disadvantages on adherents of any particular belief, give inequitable or unfair
preference of one religion over others, require conformity in matters simply of
belief, involve itself in purely religious controversies, or marginalise people
who have different beliefs. Chaskalson
et al in Constitutional Law of
It is not clear from the various judgments in Solberg precisely what the attitude of the Court would be as
regards ‘accommodationism’. However, the
analyses of O’Regan and Sachs JJ display an awareness of the need to tolerate
state involvement with religion, while at the same time restricting displays of
state favouritism.