CRL Commission Moves Quickly to Regulate Religion in South Africa

by Daniela Ellerbeck
13 October 2016

by Adv Nadene Badenhorst – Legal Counsel, FOR SA

On Tuesday (11 October), Freedom of Religion South Africa (FOR SA) joined 50+ religious and traditional leaders invited to a meeting at the CRL Rights Commission, to discuss the Commission’s findings and recommendations following its recent controversial investigation into the ‘commercialisation’ of religion and abuse of people’s belief systems in South Africa.

According to the CRL, the investigation has produced “evidence” of ‘commercialisation’ of religion and “non-compliance with the law”, including no bank accounts, annual financial reports, proper governance structures, or visas (for foreign religious leaders).  As a result, the CRL will recommend to Parliament (amongst other things) that legislation be adopted, providing for “peer review mechanisms, registration of religious and traditional healers institutions, clearance and registration of religious practitioners and workers”.

In essence, the CRL proposes the establishment of “accredited umbrella organisations”, who will have the power and authority to monitor (including to investigate and discipline) its members.  While churches will be free to decide which umbrella body they want to belong to, by law, everyone will have to belong somewhere. In addition, the CRL proposes a “peer review mechanism” which, it explained, will take the form of “a board or whatever who understands the religion itself, or how it should be working” and who will be able to say “this [particular belief, teaching or practice] is normal for us, and this is unusual”. In addition, every religious organisation (church) and every pastor will have to be registered / licensed in order to practice, and will require them having a basic knowledge of running a bank account, running a meeting, governance structures etc.

Not surprisingly, the CRL’s findings and recommendations were met with a number of questions and concerns by those present, particularly with regard to the detail of what is being recommended (including what exactly is meant by “peer review”, “accreditation”, “umbrella organisations”, “registration”, “licensing” and “de-licensing”, “punitive measures”, etc).  Leaders were also pressing the Commission for clarity on the way forward in terms of process and timelines involved, which the CRL explained were “very tight”.  Elaborating on the urgency, the CRL said that the matter has already been raised with the Deputy Minister of Justice and that it will be “fast-tracked”.

In the circumstances, the CRL agreed to make its preliminary report available to leaders within 2 – 3 days, whereafter leaders will have 3 weeks to consult with their constituencies and make comments to the CRL.  The Commission will then reconvene with religious and traditional leaders to finalise the Report, whereafter it will be sent to Parliament. Once Parliament has given the go ahead, the South African Law Reform Commission (SALRC) will be tasked with the drafting of the relevant legislation, which will involve a process of public consultation.

Commenting on the Commission’s proposed regulation of religion, CRL Chairlady Mrs Thoko Mkhwanazi-Xaluva said as follows: “People must be held accountable for the things they do, so that religion gets back its dignity and respect”.


Urgent need to mobilise

As publicly stated at the meeting on Tuesday also, FOR SA is grateful to the CRL for engaging stakeholders, including ourselves, in a consultative process with regard to this matter of national importance and concern. As an organisation, we remain committed to working with the Commission in finding solutions that are both legal and practical, and that will ultimately protect (rather than curtail) religious freedom and freedom of association.

Following the meeting, we have quite a few questions regarding the practical outworking of what is being recommended, which we hope the impending Report will clarify so as to place religious leaders in a position where they know exactly what they are in for and can give an informed response. At this stage, we remain concerned however about the effect of the proposed recommendations on the freedom to form, maintain and govern religious organisations (including churches) autonomously, according to one’s own interpretation of the Bible and understanding of God’s will, and without prescription or interference by the State.

While the Commission sought to emphasise that it was not proposing “State review” or “State intervention” in any way at any time, the fact remains that it is proposing regulation of religion (by the State, by means of law), which necessarily will have legal (and in the event of non-compliance, punitive) and practical implications for every church, and every pastor, in South Africa. Even “self-regulation” in the proposed form of “accredited umbrella organisations”, will of necessity entail a degree of State control or interference, in that some department or functionary of State will be given the power to decide who qualifies as an “accredited” organisation, as well as the power to withdraw any “accreditation”. Likewise, a body backed by the authority and power of the State, will have the power to issue a pastor with a “licence” to practice, as well as the power to withdraw any such “licence”.

As soon as the CRL’s Report is released this week, FOR SA will advise its members of the contents thereof and the practical and legal implications of the Commission’s recommendations, and invite religious leaders’ input so that we can speak as a strong and united voice on this issue of regulation which will radically affect and alter the religious landscape of our country. As the proposals of the Commission will affect (the institutional freedom of) every church, and every pastor, in South Africa, we need every church and every pastor to stand with us for freedom (from State interference).

As mentioned in previous articles (see, FOR SA believes that, instead of ‘regulating religion’ and in the process burdening churches with even more laws they have to comply with, unscrupulous pastors who swindle money or place people’s health or lives in danger (for e.g. by telling them to drink petrol), should be caught using the existing (tax, immigration, criminal, etc) laws.

CALL TO ACTION: Given the tight timelines involved in this matter, and the urgent need for religious leaders to mobilise on this issue, we would appreciate it if you were to contact us at [email protected]  and let us have your contact details (your name, the name of the religious organisation that you are representing, telephone number and e-mail address) as soon as possible, so that we can send you a copy of the CRL’s Report as soon as we receive it and engage you in the discussions thereon.

This is a time to be wide awake, and for the Church to act – not only for the sake of our generation, but for generations to come!

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Having obtained a BA LLB degree from the University of Stellenbosch, Nadene was awarded a scholarship to study a LL M degree in International Human Rights Law at the University of Essex, United Kingdom which she obtained cum laude.

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