By Daniela Ellerbeck, Legal Advisor to FOR SA

This is the third article in our series on the legal remedies available in South African law to address the abuses and malpractices identified by the CRL Rights Commission (CRL) in their report on the “Commercialisation” of Religion and Abuse of People’s Belief Systems (the Report).  This article focuses on the strange things that are neither harmful or unlawful, but which have made media headlines repeatedly, such as pastors who make their congregants eat grass and flowers

Significantly, neither of the above practices are harmful (unless the flowers are poisonous), nor are they illegal.  However, they are certainly unusual and do not conform to any traditional practice or expression of evangelical Christianity.  (While such incidents are perpetrated by fringe elements of the Christian faith, it is worthwhile remembering that any solution will be applied to all faiths and all expressions of those faiths, equally!).

Religious freedom includes the “bizarre, illogical or irrational”

It is therefore worthwhile pausing for a moment to consider a very important question: “Should the State intervene and shut down pastors or churches who deviate from ‘acceptable’ religious practices?”.  Many pastors would say “yes” because they are understandably offended by someone who – in the name of their faith and religion – does something which brings the entire Christian faith into disrepute and public ridicule. 

However, it is important to understand that although this may be true, the Constitutional Court (in the case of Prince v President of the Law Society of the Cape of Good Hope) has already ruled that people are entitled to believe something even if that belief is “bizarre, illogical or irrational”, and are further allowed to give expression to such beliefs by being allowed to practise them.  As such, they are protected by section 15(1) of the South African Constitution which declares that “everyone has the right to freedom of conscience, religion, thought, belief and opinion

This decision reinforced and settled a very important legal principle, which is that freedom of religion is doctrinally and theologically neutral.  You are therefore entitled to believe whatever you want to believe (or to believe nothing at all) as long as what you do to express that belief, remains lawful.  So while there may be some beliefs or practices that others do not like, understand, agree with or find deeply offensive – as long as these beliefs and practices are not unlawful, potentially dangerous and / or harmful, people have the right to believe such things and to put their beliefs into practice.  A case in point would be a pastor who claims that since Jesus could turn water into wine, he has been given the power to turn flower petals into chocolate.  Having put our theological lens aside (because this is clearly not a traditional practice of the Christian faith), we need to ask whether what he is proposing is illegal or harmful.  The answer would almost certainly be “no” because even some exclusive restaurants decorate the dishes they serve with flower petals.  So while it may be offensive to the widely accepted understanding of the Christian faith, it would be protected under the Constitution. 

However, let us suppose that the CRL succeeds in having legislation passed empowering them to grant licenses to every religious practitioner, church and organisation.  They would have the power to appoint a group of senior Christian leaders to a top tier structure called the “Peer Review Committee”, who in turn would evaluate all aspects of the practice of the Christian faith to ensure that these are “acceptable”.  It is highly likely in the “flower petals to chocolate” case, this Committee would rule that such a practice is unacceptable and a likely remedy would be that unless the pastor/s concerned stopped this practice, their license/s would be removed and (potentially) their church/es shut down. 

Many might applaud this decision, but the principle behind it and the precedent set by it would then have to be applied to all other similar situations.  For example, if claiming that petals turn to chocolate carries this level of sanction, what about churches who believe that when you take a wafer and a sip of wine at communion it turns into the actual body and blood of the resurrected Christ?  Logic, fairness (and possibly at that point, the law), would dictate that this should also be banned and shut down.  It is therefore vital to consider what has been called “the law of unintended consequences” when dealing with the critically important issue of freedom of religion or there is a grave danger of people’s rights being trampled underfoot.  Once the State (in particular) has been given the power to align and back with the full force of law any particular group of religious belief or expression, history has shown that the results are always disastrous for religious freedom. 

Indecent behaviour

However, when things start to move into areas where they border on the indecent – such as the instance of the Ghanian pastor wrapping his leg around a woman while praying for her, or of a Pretoria pastor telling his congregation to strip, or of people crawling on the floor after their pastor – one has to wonder what can be done. 

The first place to start is to recognise that we cannot protect people from their choices: we cannot tell people who to marry, which political parties to vote for, or not to drink or gamble.  The same goes for what people choose to believe and practice – as long as it does not break the law, it is permissible. 

Nevertheless, there is a point where the law can (and should) intervene because the State has a responsibility to uphold the rule of law, even if an individual has apparently willingly chosen to subject themselves to having an illegal act perpetrated against them.  An extreme example – which makes the point – is that no matter how depressed I may be and no matter how much I may want my life to end, if I give someone permission to shoot me to put me out of my misery and they proceed to do so, they would be unable to use this permission to defend a subsequent charge of murder.  This example also demonstrates that it is not necessary to have a “victim” making the complaint since in the case of a murder, the victim is clearly incapable of doing so.  It is the State that has this duty to enforce the law.  (The legal consequences of when a pastor commits a crime in the name of religion are fully canvassed in our first article in this series.)

When it comes to indecent behaviour that sparks the public’s moral outrage, the common law crime of public indecency may offer a solution.  The crime of public indecency will need to be re-interpreted, but it is possible that behaviour which offends society’s good morals will fit within this crime. The possibility, therefore, exists that even someone who merely saw the behaviour can lay a charge with the SAPS or a complaint with the South African Human Rights Commission (SAHRC).  

To commit the crime of public indecency, you have to intentionally do something in public (this does not require that conduct needs to take place in a public place, as long as it is perceived by members of the public) that outrages the public’s sense of decency. In other words, the perpetrator must know his conduct is public and that it outrages the public’s sense of decency. 

Historically. public indecency has been understood as a crime for indecent exposure and/or having sex in public, and as such, it will need to be reinterpreted. Whether courts would be prepared to re-interpret the crime’s elements to fit the aforementioned examples of a pastor wrapping his leg around a woman or telling his congregation to strip or (as reported in Kenya) where a pastor publicly touched a woman’s breasts etc. is another question.  It can therefore be argued that where conduct infringes the participants’ dignity to such an extreme level that the public is outraged at the infringement and transgression of decency, they can demand that it should be criminally prosecuted and if, after due process the perpetrator is found guilty, he/she should be punished under the law. 

Conclusion

Freedom of Religion South Africa (FOR SA) has consistently argued that there is a highly developed and wide-ranging rule of law which governs all who live in South Africa.  These laws (and the legal system and process which enforces them) therefore have the capacity to deal with any issue where any form of the illegal or harmful act is being perpetrated.  It is worthwhile repeating that you cannot hide an illegal act behind “freedom of religion”.  A crime is a crime and must be dealt with as such, whether it is committed by a pastor, a postman or a politician.  The problem in many cases is that these laws are not being adequately enforced – but where they are (as in the case if the so-called “Prophet of Doom” who was convicted on five counts of assault and sentenced to three years in jail or an R30 000 fine for spraying congregants in the face with dangerous insecticide) they prove effective and they resolve the problems.

When it comes to practices that we may find strange, but that are not of the extremely indecent type discussed above, and which are not harmful or unlawful, it is important to remember that religious freedom means that people should be allowed to practise their beliefs, no matter how “bizarre, illogical or irrational”. No doubt early Christians who practised communion (where the wine represents Jesus’ blood and the bread his body) were seen as very strange. Giving the State the power to limit the religious freedom of such people because their religious practice is not deemed “acceptable”, will only serve to limit your own right to religious freedom when the cultural tides turn to such a point that your own religious practice is seen as being “unacceptable”.

Daniela is a duly qualified Attorney of the High Court of South Africa. She obtained a BCom LLB degree from Rhodes University. Daniela first worked for Médecins sans Frontières before completing her articles of clerkship at G van Zyl Attorneys, where she stayed on after being admitted as an attorney and practised, specialising in litigation. Daniela has loved Jesus since she was young and is a member of a local church in Cape Town where she is actively involved.

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