Picture: Andrew Selley (Founder & CEO of FOR SA) with Ms Thoko Mkhwanazi-Xaluva (Chairlady, CRL Rights Commission) (front right).
by Advocate Nadene Badenhorst,
Legal Counsel for Freedom of Religion South Africa (FOR SA)
On Tuesday 17 November, Freedom of Religion South Africa (FOR SA), along with leaders from various religions and faith communities, participated in a meeting convened by the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (“CRL Rights Commission”, a state institution established in terms of Chapter 9 of the Constitution) to discuss the Commission’s controversial investigation into the “commercialization” of religion and abuse of peoples’ belief systems.
The meeting followed requests by FOR SA and other religious organisations, including the South African Council of Churches (“SACC”, currently led by Bishop Zipho Siwa of the Methodist Church) and the National Religious Leaders Council (“NRLC”, currently led by Rev. Ray McCauley of the Rhema Family of Churches), for an audience with the Commission to raise clarifying questions and discuss certain concerns regarding the process followed by the Commission in the investigation, as well as the scope and anticipated outcome thereof (including particularly also the Commission’s proposed regulation of religion).
Background to the investigation
The Commission’s investigation follows reports (to the Commission, and in the media) about two pastors in Gauteng who make their congregants eat grass, snakes and rats, and drink petrol. Instead of calling these two pastors only to a hearing, the Commission decided to launch a full-scale investigation into the way religious groups are being run.
To this end, it issued subpoenas to leaders of different faiths, religious organisations and churches (including the major denominations), calling them to appear before the Commission and produce a host of documents, including certificates of accreditation / ordination, annual financial statements as well as bank statements of all bank accounts of the church, governance documents and statements of faith. According to the subpoena, the Commission would require evidence about the income of the church (how it is generated, and how it is utilized), and particularly also whether the church is involved in the selling of goods in the church and on what basis (incl. for e.g. holy water, candles, T-shirts, mealie meal, tea, coffee, prayers, etc).
Hearings have already taken place in KwaZulu/Natal, and are currently underway in Gauteng. Following an unopposed application by the Sowetan early November for the hearings to be opened up to the media, the South Gauteng High Court ordered that it was in the public interest for the media to attend and report on the hearings. (For more information about the investigation, see a previous article in GATEWAY NEWS – https://gatewaynews.co.za/crl-apologises-to-pastors-over-summonses-on-commercialisation-of-religion/).
The issuing of subpoenas
At the meeting on Tuesday, the Chairlady of the Commission commenced her address by explaining why the Commission chose to issue subpoenas to religious leaders threatening with fines and/or imprisonment should they not cooperate in the investigation – an act which has been perceived by a number of religious leaders (none of which have a complaint against them) as “hostile” and created a sense of confusion, disappointment, anger and mistrust towards the Commission.
The Chairlady explained that the subpoenas were lawful as the CRL Rights Commission Act gives the Commission the power to subpoena anyone to appear before them (even where no complaint has been laid against such person). The reason why the Commission chose to go the subpoena route (rather than extending friendly invitations to a meeting with the Commission), was to secure religious leaders’ attendance at the hearings held in various provinces around the country and ensure that taxpayers’ money is not wasted by having “no shows”.
The need for investigation and regulation
The Chairlady then explained the purpose of the investigation, and the need ultimately for the religious sector to be regulated. She said there were many challenges in the religious and traditional healing sectors including “the mushrooming of independent and charismatic churches and traditional healers in the country”, “healing and miraculous claims made by religious leaders and traditional leaders”, “the ‘supermarket approach’ in places of worship” and “unemployment, inequality and poverty, which make us more desperate”. The purpose of the investigation would be to find out why people believe what they believe, and what it is that makes them so “vulnerable and gullible” (to, for e.g., claims of healings, miracles and financial blessing).
Commenting further on the need for the investigation, the Chairlady stated that “anything is possible in this country” and that the Commission needed better answers than “God made me do it”. She explained that the Commission could not just stop the investigation, because “there is too much unhappiness in the country” and “we need to make the pain go away as South Africans”.
While the Commission is “willing to listen to suggestions within the Constitution and the law”, it believes that the religious sector needs to be regulated (like lawyers or doctors). This could be done through “an umbrella body with chapters of religion”, for e.g. a Council of Elders in the case of Christianity “who would [be able to] say ‘you’re doing something out of the ordinary’”. What this will look like, is however ultimately up to Parliament to decide. If Parliament agrees with their proposal, a legislative process will follow: Parliament will hold hearings and come to the religious sector, province by province, to obtain their input.
FOR SA’s comments at meeting
At the end of the Chairlady’s almost two hour long address, there was great upset amongst religious leaders when the meeting was adjourned without giving them an opportunity to comment. A decision was then made to give each organisation 3 minutes to address the Commission.
On behalf of FOR SA, Andrew Selley (Founder & CEO) stated that while FOR SA shares the Commission’s concerns about unscrupulous pastors who abuse their positions to manipulate the poor out of money for selfish gain and appreciates what the Commission is trying to do, we are concerned that the scope of the investigation, and intended regulation of religion following the investigation, are overbroad and touch on matters of religious doctrine which are protected from State interference or regulation.
The Constitution guarantees religious freedom, and the Constitutional Court has already found that people should be free to believe and to practise their beliefs without interference or punishment by the State, no matter how “bizarre, illogical or irrational” those beliefs may seem (Prince v President of the Law Society of the Cape of Good Hope, 2002). Doctrine (including, for e.g., the qualifications for leadership) cannot be regulated by the State, or even by a State-recognised church group (i.e. self-regulation), and to do so, would be unconstitutional . This has been confirmed also by various other constitutional lawyers whose perspective FOR SA has asked with regard to the issue.
Selley stated further that there are already a great number of laws that apply to and regulate the financial and administrative affairs of the church. Instead of creating more regulatory laws churches have to comply with, pastors who swindle money or place people’s health or lives in danger under the guise of “religion”, should be caught using the existing tax, immigration, criminal and other laws. Selley said that the State should empower the Commission to, within the framework of the existing laws, bring charlatans to account.
Selley’s standpoint was supported by a number of religious leaders present, including also the SACC and NRLC who commented in similar vein. According to the SACC, “we all have a problem with rogue pastors. However, self-regulation might have some challenges and problems passing constitutional muster”. (A fuller explanation on why State or even self-regulation is so dangerous for religious freedom and autonomy, and FOR SA’s proposed solutions to the problem, will appear in a follow-up article in GATEWAY NEWS).
In her reply to the comments, the Chairlady singled out and thanked FOR SA for its valuable contribution and the alternative solutions proposed by the organisation. The Commission also asked FOR SA and its Legal Counsel, Adv Nadene Badenhorst, to work with the Commission in the hope to present workable solutions that are also constitutional, i.e. that respect people’s right to freedom of religion and freedom of association. The Commission wants to protect religion and the church (as it has repeatedly done in the past, when religious freedom has been under threat), not persecute her and FOR SA is grateful that we are able to draw alongside and assist so that they do just that!
Warning to religious leaders
At the meeting, the Chairlady sternly warned religious leaders “to be careful of what [they] say in the media”, as she felt that her life was in danger. She explained that the Commission has “had to get armed guards with big guns, only because we have asked religious people to come tell their story”.
In conclusion, the Commission invited religious leaders to approach them and say what will work, but to do so in an orderly fashion. According to the Chairlady, “we’re willing to talk, but not willing to stop”.
*FOR SA is a non-profit Christian organisation that protects and promotes religious freedom and autonomy in South Africa. To join FOR SA (at no cost) and/or sign up to our newsletter, visit our website at forsa.org.za Also follow us on Facebook at “Freedom of Religion SA” for regular updates on religious freedom and related issues locally and worldwide.