By Daniela Ellerbeck, Legal Advisor to FOR SA
This is the second article in our series that looks at 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. In our first article, we looked at some of the existing laws where a pastor commits a criminal or otherwise illegal act.
In this article, we will look at the legal remedies available where a pastor, often in exchange for money, makes certain fantastical and false claims or promises to his/her congregants. However, this must always be balanced by the freedom of religion rights enjoyed by both the pastor and the congregation to exercise and practice their faith and to believe, even if such belief is “bizarre, illogical or irrational”. As such – and even though this article uses “blessed Vaseline” as an example – it is not intended to draw the conclusion that the selling of “faith products” is necessarily illegal or unlawful. Many churches and denominations sell such products, ranging from rosaries to anointing oil to “holy water”. Rather, it depends on the related claims and promises that are made relating to the properties of such products.
When there’s difficulty in differentiating between your pastor and your local magician:
Extravagant claims by “holy” men is not just a South African phenomenon: A Ghanaian pastor has recently claimed he has performed more miracles that Jesus, while Zimbabwean pastors have made headlines for blessing condoms, talking to God on a cell phone, and even for selling tickets to Heaven.
In South Africa, pastors have made front pages for making all kinds of fantastic claims and promises if you pay money to make use of their (religious) services or products. Some churches even sell various “good luck” or “faith” products that have been prayed over and blessed by the pastor, such as “holy” water, oil or Vaseline (page 31 of the CRL’s Report).
Prayers and blessings are sold with people being asked to pay large amounts of money before a prayer or blessing will be said over them (page 31 of the CRL’s Report), or to watch the pastor perform a miracle. At R5000 a ticket, women who would like to get married are encouraged to attend a conference where the pastor will anoint their ring finger and Mr Right will appear in just 3 months!
Recent media headlines featured exposés on fake resurrections and churches where people were hired to participate in faking miracles, such as a healing, after the pastor prayed for them.
Pastors are persons in an office of trust who are Biblically mandated to be above reproach (1 Timothy 3:2-3). It is therefore disgraceful that any pastor would abuse the trust that they’ve been given to exploit the poor and vulnerable for selfish gain. The question is: can anything be done to stop these pastors from making such (potentially false) claims and promises?
In this regard, it is important to note that when a pastor or church communicates in a way that (a) brings a good or service they are offering (e.g. “good luck” Vaseline, or a guaranteed husband if they anoint your ring finger) to people’s attention and (b) encourages their congregants or the public to make use of it, the pastor or church is in fact, advertising.
This might come as a surprise to some, but such claims are subject to the Code of Good Advertising Practice, the Consumer Protection Act, 2008 and the common law. Whether you are a pastor, a politician or a postman, we are all equal before the law. Everyone lives under the rule of law and the law applies equally to all. This includes the advertising and consumer protection laws.
The Code of Good Advertising Practice:
The Code deals with anything that appears in the media that aims to promote the consumption or use of goods or services, or the support of a cause. It therefore applies to non-commercial organisations (i.e. churches) and individuals (i.e. pastors) promoting their religious services or products too.
The Code requires that all advertising should be legal, honest, decent and truthful, with a sense of responsibility towards the people exposed thereto. Hence, no advertisement may be offensive to the public or abuse the trust, gullibility, lack of knowledge and/or experience, of the person exposed to it.
It requires that if a pastor makes a claim on television, a billboard or a flyer that the Vaseline he has prayed over will bring you good luck, he needs to have documentary evidence to back up that claim. It specifically requires that when it comes to superstition or beliefs, an advert should not imply that a product can affect the user’s circumstances, unless the claim can be substantiated.
The Code is administered by the Advertising Regulatory Board (ARB) which deals with complaints of an alleged breach of the Code. Anyone (including therefore a congregant, another religious organisation, a member of the public or even the CRL itself) can lay a complaint. In the vast majority of instances where advertising is found to contravene the Code, the ARB will require that the advertisement either be withdrawn or that it be corrected. Although the ARB does not have jurisdiction over people and/or entities that are not voluntary members of it, broadcasters (television and radio stations) are bound by its decision and will in all likelihood stop the broadcasting of advertisements that contravene the Code.
The Consumer Protection Act:
The Consumer Protection Act, 2008 goes further than the Code of Good Advertising Practice and defines advertising as any communication by which a person or organisation (including therefore a pastor, or a church) seeks to bring goods or services to people’s attention and promotes the use thereof.
Many of the above instances – selling tickets to Heaven, and promising marriage, wealth or healing in return for money – are acts of advertising that are (potentially) in breach of the Act.
The Act says that no one must advertise any good or service in a way that is in any way deceptive, misleading or fraudulent regarding the advantages of using the good and/or service, or its nature and properties.
This means that if a pastor sells his congregants Vaseline and tells them it will bring them good luck because he has blessed it, the pastor is breaking the law because he is misleading his congregants to believe that using this particular Vaseline has certain advantages and possesses different properties to those typically claimed by Vaseline.
The Act also prohibits what it calls “unconscionable conduct”. This includes the use of undue influence (e.g. the use of fake miracles during a church service) by a supplier (i.e. a pastor) on a consumer (i.e. a congregant) when marketing their goods and/or services (i.e. his miracle working powers).
The Act also prohibits false, misleading or deceptive representations. Stated in another way: a pastor may not (either through his words or conduct) express or imply a false, misleading or deceptive representation concerning a material fact of his product or service that he is marketing. This means that if the pastor exaggerates the benefits of using his Vaseline, which he has prayed for and is trying to sell to his congregants or the public in general, he is breaking the law. The same applies if the pastor can see that someone misunderstands the benefits of using the “blessed” Vaseline, thinking it will cause them to have good luck, and he fails to correct them.
If found guilty of a breach of the Consumer Protection Act, the pastor can face civil remedies such as being ordered by a court to pay someone back their money, and the National Consumer Commission can even refer the matter to the National Prosecuting Authority (NPA).
To lodge a complaint with the National Consumer Commission, visit their website and complete the following form and send it in to the Commission. The National Consumer Commission, after assessing the complaint, may refer it to the provincial consumer protection authorities in the province where the complaint emanates from, for a speedy resolution.
Lastly, there is a case to be made out that, even if the pastor does not charge someone money (i.e. he is not selling his products or services to someone, so neither the Code of Good Advertising Practice nor the Consumer Protection Act applies), but he intentionally causes you to believe something which he knows to be false, he should be prosecuted for the common law crime of Fraud. In the case of Alph Lakau, he has been charged with / is under investigation for fraud for allegedly falsely claiming that he raised a person from the dead.
Fraud is when a person unlawfully and intentionally makes a misrepresentation which causes someone else prejudice. In other words, a pastor intentionally lies to someone (either expressly or impliedly by either his words or conduct) and causes that person to mistakenly believe something which is false, causing them harm. The mere telling of a lie is therefore not fraud, but it is committed when a lie causes the person some form of harm.
By way of example, let us consider a “fake resurrection”, where a person attends a church on a Sunday and the pastor intentionally pretends to successfully raise someone from the dead. Clearly, the pastor is lying and causing his congregants to mistakenly believe that he has resurrected someone, but what harm has he caused them?
When it comes to harm, the Supreme Court of Appeal (SCA) in Bloemfontein has said that: “To constitute prejudice, actual or potential, the false statement must be such as to involve some risk of harm, which need not be financial or proprietary, but must not be too remote or fanciful, to some person, not necessarily the person to whom it is addressed.” (R v Heyne, 1956). In other words, the harm the pastor’s lie causes does not need to be financial – and it does not even need to be that the harm is caused to the congregants themselves.
In the same SCA case, the Court said: “That a charge of fraud may be supported by an allegation of prejudice to the State is clear… The State, on the other hand, has interests peculiar to itself. It is unnecessary in the present case to hold that prejudice to the State’s interest in upholding the law will always be sufficient… State as society’s guardian has a special interest… False representations, calculated to weaken that control by deceiving the police, are also calculated to harm the State really and not only theoretically. The requirement of prejudice is thus satisfied by the risk of harm to the State and it is unnecessary to consider the cases of the other persons and bodies who, it is alleged, might be prejudiced.”
In S v Minnaar, the Durban High Court has also said that harm can be against the State itself: “A misrepresentation which resulted in the subversion or potential subversion of a policy deliberately formulated by the State... was, by virtue of that fact alone, prejudicial or potentially prejudicial to the State or to that public body….The State (and any other public body) had the right to formulate and execute such policies as it saw fit in the public’s best interests and any misrepresentation which caused it to depart from those policies was prejudicial because it hampered it in the exercise of that right”.
The argument to be made therefore, is that the State has explicitly formulated the most pre-eminent public policy of all in the form of the Constitution. It therefore has a special interest peculiar to itself that its citizens are able to exercise their fundamental rights found in the Constitution without being subjected to misrepresentations. (The applicable rights in this context are found in sections 15 and 31 of the Constitution. Section 15 guarantees the right to freedom of religion, belief and opinion. Section 31 guarantees the right of religious communities to practise their religion.) As such, the State suffers prejudice (as society’s guardian) when these rights are abused by a pastor who intentionally misrepresents miracles etc. to their congregants. It is therefore very possible that the National Prosecuting Authority (NPA) will be successful in prosecuting such a pastor for the crime of fraud.
In view of the above, it is clear that the South African legal system
is well developed and that suitable remedies exist that offer a wide range of
solutions to the problem of false advertising and fraudulent promises by some
pastors. False advertising does not
become true because it is the pastor who does so, or because it happens in the
name of “freedom of religion”. The law is the law, and anyone (a congregant,
another religious organisation, a member of the public or even the CRL itself) who
becomes aware of such conduct, has the right to lay a complaint against such a
pastor or church with the relevant authority.
 Section 9(1) of the Constitution of the Republic of South Africa, 1996.
 Section 1 of the Consumer Protection Act.
 Section 29 of the Consumer Protection Act.
 Section 40 of the Consumer Protection Act.
 Section 41 of the Consumer Protection Act.
 Section 52 of the Consumer Protection Act.
 Section 73 of the Consumer Protection Act.
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