Submission to the South African Human Rights Commission

Standing of the SACC

1. The South African Council of Churches (SACC) is the facilitating body for a fellowship of 26 Christian churches and associated para-church organisations. Founded in 1968, the SACC includes among its members Protestant, Catholic, African Independent, Pentecostal and Orthodox churches with a combined constituency of roughly 15 million members and adherents. SACC members are committed to expressing jointly, through proclamation and programmes, the united witness of the church in South Africa, especially in matters of national debate.

All People Worthy of Equal Dignity and Protection under Law

2. The SACC has strongly supported the cultivation of a culture of democracy, equality and respect for human rights in South Africa. To that end, the Council participated actively in national debates around the development and implementation of a new Constitution, including the enactment of the Promotion of Equality and Prevention of Unfair Discrimination Act. In our submission to Parliament on the latter Act, we wrote:

   We believe that such legislation is essential both to the achievement of social and economic justice and to the promotion of reconciliation and unity. Further, we believe that the creation of equal opportunities is consistent with our theological understanding of the equal humanity and dignity of all human beings as children of a loving God, created in God's own image. [SACC Submission to the Ad Hoc Joint Committee on the Promotion of Equality and Prevention of Unfair Discrimination Bill, 17 November 1999.]

3. We believe that the values and philosophy reflected in our current Constitution - and especially those expressed in the Bill of Rights in Chapter 2 - are entirely consistent with our shared understanding of the equal worth of all individuals. We therefore see the Bill of Rights as an appropriate basis from which to derive any rule intended to regulate the membership policies and practices of voluntary associations. Of particular relevance in this regard are:
   • Section 9, which guarantees equality before the law and prohibits unfair discrimination by public or private entities;
   • Section 10, which recognises everyone's right to dignity;
   • Section 15, which protects freedom of religion, belief and opinion;
   • Section 18, which establishes the right to freedom of association; and
   • Section 31, which recognises the right of people to form and maintain cultural, religious and linguistic associations.
   It is important to note that sections 15 and 31 are explicitly qualified by the provision that these rights may not be exercised in a manner inconsistent with other clauses of the Bill of Rights.


4. Our members are therefore distressed when some South Africans continue to suffer indignities and exclusion at the hands of others. We applaud the SAHRC for convening this inquiry into the matter and trust that it will help to clarify the criteria to be applied in assessing the constitutionality of the actions of voluntary organisations. To that end we propose several general principles that we believe should act as guidelines.

Prohibition on unfair discrimination paramount

5. First, we believe that the equality clause of the Constitution must be the primary test of a voluntary organisation's membership policy. It is inherently unfair to exclude an individual from membership of a voluntary organisation simply because of who she or he is (i.e., physical characteristics or aspects of identity that a person is largely unable to change). There is a particular responsibility to uphold this principle with respect to characteristics explicitly identified in Section 9(3) of the Constitution as these have historically been used as grounds for unfair discrimination.


6. Saying an association may not discriminate unfairly against prospective members on any ground, especially those listed in section 9(3) of the Constitution, is not the same as saying that all associations must be open to all people. A professional association, for instance, might reasonably and fairly limit its membership to practitioners of a particular profession. Similarly, membership of a residents' association might be open only to people who reside in a specific locale. We recognise that, given South Africa's political and economic history, this might open the door to de facto discrimination. Eligibility for membership in a professional organisation or a neighbourhood group, for example, is likely to be skewed in terms of race, gender or other factors. However, this is symptomatic of a more deeply-seated problem, in part a legacy of our past, which demands a more comprehensive solution. In spite of our concern about this, we would argue that there is nothing inherently unfair about occupation or locale serving as the basis for a voluntary association.


7. We believe that the criteria set out in section 14 of the Promotion of Equality and Prevention of Unfair Discrimination Act (Act 4 of 2000) remain an appropriate guide for assessing the fairness or unfairness of any particular membership restriction.*

Voluntary organisations may expect members to associate in good faith

8. Second, we take it as given that a voluntary association may not have as a stated purpose any illegal activity or objective. In other words, the state and the courts may not approve, recognise or sanction any organisation that identifies in its founding document a purpose or objective that would, if fulfilled, violate the law. This would include any stated intent to suppress or violate the constitutional rights of any other person.


9. Provided a voluntary association is pursuing a legal objective, it has the right to do so - and to protect its ability to do so in the future - in any way that is legal and that does not compromise anyone else's constitutional rights (including both natural and juristic persons). A voluntary association should therefore be permitted to exclude a new member or to expel or discipline an existing member if it finds sufficient reason to believe that the member (or prospective member) wishes to prevent the organisation from pursuing or achieving an objective that served as the organisation's basis of association. This is not to say that an organisation cannot amend its objectives in a democratic manner in response to changing circumstances. But it does mean that a voluntary organisation has a right to expect its members to join and to act in good faith. It should not be required to admit as members individuals who appear to be motivated by a desire to discredit or "wreck" the organisation or to challenge its reason for existing. Such individuals are, of course, free to oppose the organisation or its objectives as non-members.

Public funds must be used to provide services to the public

10. Government has correctly recognised voluntary associations and other civil society organisations as potential partners in social development and service delivery. As a result, government has placed certain public resources at the disposal of such organisations to support and encourage them in their work. This has occurred not only in the form of grants to specific organisations to finance particular projects, but also through tax concessions and other forms of relief of obligations to the state.


11. Although it may be permissible, in certain circumstances, for voluntary associations to discriminate fairly among prospective members, an association that does so should not be eligible to receive public resources (including tax concessions) if it offers benefits and services to its members only. In order to receive public funds, a "restricted" association must provide services to the public at large or to some segment of the public in a manner that does not discriminate unfairly among potential beneficiaries. In contrast, an "open" association that welcomes anyone who supports its aims and objectives should be able to secure public funds and use them to provide benefits and services to its members only. In this context, we would consider communities of faith to be "open" organisations. Such communities should be eligible to receive public funds to support the provision of services geared primarily for their respective members, provided these are not restricted to a limited segment of the community (such as clergy).

Above principles should be reflected in legislation

12. We believe that this understanding should be reflected in legislation governing voluntary associations. Currently, there are two primary laws governing civil society organisations' access to public resources: the Non-Profit Organisations Act, 1997, and the Income Tax Act, 1962. The former is currently under review. Substantial amendments are likely to be made to the Act, and the findings of this inquiry should be taken into account in that process.
13. The Income Tax Act presently has a more lenient attitude toward the provision of public resources through income tax concessions. Section 30 of the Act provided for an organisation to be recognised as a tax exempt Public Benefit Organisation if it carries out one or more public benefit activities, listed in Ninth Schedule to the Act and if it meets any one of the following criteria:
    • Its activities are widely accessible to or for the benefit of the general public or some non-exclusive segment of the public;
    • Its activities are readily accessible to or carried on substantially for the benefit of the poor and needy; OR
    • It is receives at least 85% of its funding in the form of grants or donations from government, foreign states or international organisations.
    Thus, an organisation that pursues one or more "public benefit activities" but does so only in respect of a narrowly-defined group of beneficiaries could still be eligible for domestic tax exemption if its activities were primarily funded by foreign donors. We submit that the "public character" test should rather focus on the beneficiaries of a prospective PBO's activities.

* Section 14 of the Promotion of Equality and Prevention of Unfair Discrimination Act (Act 4 of 2000) sets out the following criteria for the determination of fairness or unfairness:

1. It is not unfair discrimination to take measures designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination or the members of such groups or categories of persons.
2. In determining whether the respondent has proved that the discrimination is fair, the following must be taken into account:
   1. The context;
   2. the factors referred to in subsection (3);
   3. whether the discrimination reasonably and justifiably differentiates between persons according to objectively determinable criteria, intrinsic to the activity concerned.
3. The factors referred to in subsection (2)(b) include the following:
   1. Whether the discrimination impairs or is likely to impair human dignity;
   2. the impact or likely impact of the discrimination on the complainant;
   3. the position of the complainant in society and whether he or she suffers from patterns of disadvantage or belongs to a group that suffers from such patterns of disadvantage;
   4. the nature and extent of the discrimination;
   5. whether the discrimination is systemic in nature;
   6. whether the discrimination has a legitimate purpose;
   7. whether and to what extent the discrimination achieves its purpose;
   8. whether there are less restrictive and less disadvantageous means to achieve the purpose;
   9. whether and to what extent the respondent has taken such steps as being reasonable in the circumstances to -
      1. address the disadvantage which arises from or is related to one or more of the prohibited grounds; or
      2. accommodate diversity