FOR SA Addresses Parliamentary Committee on CRL Report

By Freedom of Religion South Africa (FOR SA)

On 17 and 18 August 2017, various major churches, denominations and religious groupings (including FOR SA) appeared before the COGTA Parliamentary Portfolio Committee to give input on the CRL Rights Commission’s Final Report on “Commercialisation” of Religion and Abuse of People’s Belief Systems. This is a copy of the verbal submissions made by FOR SA on 17 August 2017.

Address by Michael Swain (Executive Director, FOR SA):

Good morning and our sincere thanks to the Chairperson and honourable members of this Committee for allowing us to present before you today.

My name is Michael Swain and I serve as the Executive Director of Freedom of Religion South Africa, known as FOR SA.  We represent the views and opinions of over 6 million people from a broad cross-section of the faith community and our mandate is to protect and promote our constitutional rights to enjoy freedom of religion.  Myself and my colleague, Advocate Nadene Badenhorst, will be presenting this morning on the perspectives of FOR SA.

FOR SA have been actively engaged in the process initiated by the CRL since its inception and we were one of the original 85 religious organisations invited to the CRL’s hearings on the “commercialisation” of religion and abuse of people’s belief systems.  We have subsequently made detailed submissions, attended various presentations by the CRL and have met with them at their offices.

It should be noted that we are on record expressing gratitude to the CRL for identifying a range of issues relating to the religious community that need to be addressed.  We have stated in our submissions, in articles we have written and presentations we have made that freedom of religion can never be used as a cloak or as an excuse for abusing or harming people.  Such actions are reprehensible and contrary to the fundamental tenets of all major religions.  We equally have noted that all these abuses identified by the CRL its Report – whether civil or criminal – can (and should) be dealt with by applying the full weight of the law and have expressed concern that these laws are not being properly enforced.

FOR SA is a legal advocacy organisation and our approach has been to conduct a careful legal analysis of all aspects of the CRL’s Final Report on the “Commercialisation” of Religion and Abuse of People’s Belief Systems.   As lawyers, we can only comment on what the CRL’s Final Report actually says – not what the CRL’s intentions may or may not have been. All of our concerns and reservations stem from what the CRL itself has officially stated – in their Report and various presentations made.

In this process, we have engaged broadly and consulted with other legal and constitutional experts to ensure that such analysis is accurate and substantiated.  These include the Christian Lawyers Association (CLA), the International Institute for Religious Freedom (IIRF) and the SA Council for the Protection and Promotion of Religious Rights and Freedoms (SACRRF).  The role of the latter organisation is to oversee compliance with the SA Charter for the Promotion and Protection of Religious Rights and Freedoms, to which the CRL is also a signatory.  Ours is therefore not an isolated position and our initial submission to the CRL’s first draft of their Report was in fact a joint submission with the SACRRF.

As this Committee will recall, when it last convened on this matter on June 27th, the CRL made a long and detailed presentation outlining the issues it had identified and proposing an elaborate structure that would result in every religious practitioner and place of worship being licensed by the CRL. On that day, FOR SA (who happened to attend the meeting as an observer, having been notified of the meeting by the CRL the day before) was given an opportunity to make some impromptu comments on the CRL’s presentation.

However, we are grateful to this Committee for giving us the opportunity to formally address this Committee and specifically also to inform it, that contrary to the assertions of the CRL, there is a high level of concern across a broad spectrum of the religious community regarding the implications of the recommendations made in the CRL’s Report.  We believe that these next two days present an important opportunity for those concerns to be expressed and heard.

I will now hand over to my colleague, Adv Nadene Badenhorst, to highlight some of our concerns regarding the CRL’s proposed recommendations and place an alternative recommendation before the Committee for its consideration.

Address by Adv Nadene Badenhorst (Legal Counsel, FOR SA):

We have sent a copy of the written submission made by FOR SA (jointly with the SACRRF) in response to the CRL’s initial Report, and thereafter their Final Report, to yourself and the Secretary of the Portfolio Committee. The Committee Members can go through that in their own time.

What I would like to do in the remaining time at our disposal, is to highlight our main concerns relating to the CRL’s recommendations – emphasising once again that we agree with the CRL that there are problems and that these need to be addressed. What we do not agree with however, are the proposed solutions offered by the CRL, which we (along with other legal experts) believe to be unnecessary – in light of existing legislation – but also unconstitutional and unworkable.

Why unconstitutional?

Up to now, the relationship between religion and the State has been one of co-operation. Freedom of religion is acknowledged and constitutionally guaranteed – granting individuals, religious institutions and communities maximum freedom to teach, preach and practice their religious convictions and beliefs, and also to operate religious institutions, within the law of the land; while placing a duty on the State to create a positive environment for religion and religious freedom to thrive.

Should the CRL’s recommendations be accepted, it would completely change this historic relationship between State and religion and make the CRL (who, in terms of the Constitution, is an “institution of State”) the head of religion in South Africa.

In this regard, one has to look no further than the organogram on p 42 of the CRL’s Final Report, to see what is being proposed. That the CRL will have final say and control over religion and religious bodies in South Africa, is also made clear from statements such as the following in the Report – that the CRL will be the “final arbiter in all matters” (p 48 of their Final Report) with the “final decision powers” (p 47 of their Final Report). This, with respect, is not “self-regulation”, but (a form of) State regulation of religion.

It was never intended, either in terms of the Constitution or the CRL Act, for the CRL to take up the role of licensing and controlling that it now claims for itself.  The CRL’s mandate is to “promote and protect … the rights of religious communities” – not to licence and control.

What is more: contrary to what the CRL is suggesting, it is inevitable that the Commission will take decisions regarding the acceptability of doctrinal belief and expression. As we know, there is a very fine line between belief and practice, with practice generally being the external manifestation of a belief. For this reason, it may be very difficult (if not impossible) to police external practice, without also touching on doctrinal beliefs.

For these reasons, we are concerned that the CRL’s recommendations are an infringement of the right to religious freedom, as well as freedom of association.

Why unworkable?

The CRL Report proposes the broad-scale regulation of religion through various regulatory bodies (under the final auspices and control of the CRL). So, for example, the Report proposes the registration of various umbrella bodies for each religion, who will then all be represented on one Peer Review Committee (also per religion). Out of the one Peer Review Committee, a single representative, supposedly, will be elected to represent the entire religion on the (multi-faith) Peer Review Council.

It is difficult to see how this will work in practice. Using Christianity as an example, there are literally tens of thousands of denominations, non-denominational and independent churches or church groupings in South Africa. The reason why there are so many, is because they believe differently in relation to church organisation, interpretation of Scripture, practice of their belief, etc. It is, with respect, difficult to imagine a Peer Review Committee that is representative of them all; and impossible, with respect, to imagine how a single Peer Review Committee member could represent all of them at the level of the Peer Review Council.

For this reason, we are concerned that the CRL’s recommendations, though well-intended, are not workable.

An important question which is not addressed by the CRL Report, and which this Committee will have to seriously consider before accepting the CRL’s recommendations, relates to the costs involved in setting up, running and monitoring these regulatory structures. It is evident that what the CRL is proposing, will require a fairly large bureaucracy that is likely to cost millions of Rands per annum. Is this a responsible cost to add to the State fiscus? And if it is to be paid for by religious institutions, is this an appropriate cost for them to bear? Is such an additional State-imposed cost even legal, given that it may prevent institutions from operating at all?

Alternative recommendation:

We have, in our submission to the CRL (and indeed to COGTA) submitted that we believe the CRL’s recommendations also to be unnecessary, in light of existing legislation which is sufficient to deal with each and every problem identified by the CRL. We submit that, instead of creating new legislation, government’s already limited resources and capacity should be directed towards the enforcement, and where necessary strengthening, of existing legislation.

In addition, and in light of the concerns raised in respect of the CRL’s proposed recommendations, we propose that the Report be referred back to the CRL, and that time be given for a broad-based consultation of the religious community of South Africa to propose solutions to the issues the CRL have identified.

As our Executive Director mentioned at the beginning of our presentation, the CRL’s recommendations follow hearings convened with a “random sample” of 85 religious and African traditional religion leaders only. As such, it would be correct to say that the broad and diverse religious community in SA has not been consulted on an issue which directly affects each and every one of them.

We have already been in conversation with other organisations to encourage a National Conference of religious leaders to be held, where the issues can properly be tabled, discussed and proposed solutions proposed by the religious community for the religious community, be adopted. We would call upon the CRL, as a key stakeholder in the religious sector, to support and participate in such forum.

We understand that some of the other organisations present will be sharing more about this in their slot, and will therefore not elaborate on this at this stage, save to say that we fully support and endorse such initiative as a pro-active way of confronting and addressing the legitimate concerns raised by the CRL in their Report.

Thank you, Honourable Chair.



For more information:

Michael Swain
Executive Director, Freedom of Religion South Africa (FOR SA)
Cell: 072 270 1217