By Daniela Ellerbeck, Legal Advisor to FOR SA
The CRL Rights Commission’s report on the “Commercialisation” of Religion and Abuse of People’s Belief Systems identified certain abuses and malpractices that are taking place in the religious sector, and particularly in the Church.
This is the first in a series of articles that will look at the legal remedies that are available in South African law to address these abuses and malpractices. Since the vast majority of the abuses and malpractices identified by the CRL in their report and also reported on by the media, amount to acts that are already criminal or otherwise illegal in terms of existing law, we will start the series by looking at some of these instances.
A crime is a crime.
Whether you are a pastor, a politician or a postman, everyone lives under the rule of law and the criminal justice system applies equally. A crime – even when committed under the cloak of “freedom of religion” – remains a crime. Churches and pastors have to operate under the rule of law, and if they contravene existing laws, they commit a crime.
It is also important to note that if one pastor commits a crime, it is possible that another pastor can be charged as a co-accused if that pastor for e.g. enabled the first pastor to commit the crimes (much like the person who drives the get-away car in a bank robbery, is also criminally charged as an accomplice), or if that pastor knew about the other pastor’s crime but said nothing or covered it up. Depending on the particular criminal or illegal act, it is also possible that the church itself can be criminally charged (e.g. for employing foreigners illegally, tax evasion etc).
Can I give someone permission to commit a crime against me?
One of the common statements is that: “It is not a crime if the victim is a willing participant”. This is misleading because criminal law protects the public’s interests too, not just the interests of the “consenting” person. This means that the State has an interest in prosecuting all activities that are against the law, i.e. crimes.
By way of analogy, our law says that even if you specifically ask someone to kill you in the event of an assisted suicide, the person who kills you is still guilty of the crime of murder. The State (because it has a duty to protect the public interest) has an interest in bringing all criminals to justice for all crimes, even where your consent (e.g. to be killed) was to your own detriment.
In most cases, consent is not true consent because it is not given voluntarily. Rather, it is given as a result of coercion, for example where rogue pastors abuse their power and authority or commit fraud by misleading congregants about the results which will follow the act they are agreeing to. None of this is considered legally to amount to consent.
A dangerous superstitious practice does not become lawful simply because of consent. The general rule is that injuries (in e.g. initiation or religious ceremonies) may only be justified by consent where the injuries are small and/or inconsequential, and do not conflict with society’s generally accepted concepts of morality, known as the boni mores.
An example of this would be male circumcision, a religious and cultural practice which is performed routinely in South Africa and (generally speaking) only inflicts small, inconsequential injuries that do not conflict with our society’s boni mores. This can be contrasted with female circumcision – known as “female genital mutilation” or FGM – which is specifically prohibited by s12(3) of the Children’s Act, 2005.
By now everyone knows of the infamous “Prophet of Doom”, who sprayed his congregants with the pesticide Doom. Pastor Lethebo Rabalago was found guilty of four counts of assault with intent to do grievous bodily harm (“assault GBH”). (In addition, he was also found guilty of contravening the Fertilizers, Farm Feeds, Agricultural Remedies and Stock Remedies Act, 1947.) After due process of law, he was sentenced to an effective fine of R21 000,00.
Although his congregants had consented to let him spray them with Doom, this did not “immunise” him from being found guilty of having committed the crime of assault.
Other instances of assault (or potential assault) that have been documented in the media include the placing of heavy speakers on congregants’ abdomens as they lie on the floor or locking people in deep freezers.
Intimidation is a crime punishable with up to 10 years’ imprisonment. The Intimidation Act, 1982 makes it a criminal offence to force someone to do (or not to do) something, by intimidating them with violence or threats of violence. This does not change if the person who is doing the intimidating is the pastor.
Drinking rat poison and other noxious substances:
Pastor Light Monyeki allegedly told worshipers at the Grace Living Hope Ministries to drink water laced with the rat poison Rattex. Similarly, Prophet Bongani Maseko of Daveyton’s Breath of Christ Ministries allegedly made his congregation drink engine cleaning fluid. When a pastor gives someone a poisonous substance to consume, he commits the crime of administering poison.
Eating live snakes and other animals:
Many will also remember the controversial “snake pastor”, Penuel Mnguni, who fed live snakes to his congregants. The Animals Protection Act, 1962 makes animal cruelty a crime and imposes a prison sentence of up to 1 year.
When congregants go on a wild rampage:
When a number of people commit serious violent acts that disturb the public’s peace and security, they commit the crime ofpublic violence. This year saw 23 congregants of the International Pentecostal Holiness Church in Limpopo arrested, after they went on a violent rampage where they assaulted each other and damaged vehicles. They were arrested for various offences, including the crime of public violence which carries a minimum prison sentence of 5 years.
When stopping medicine causes death:
When a pastor tells someone to stop taking their (e.g. anti-retroviral) medicine without advising the person to first verify with their doctor that they have been healed, and the person subsequently dies, the pastor was negligent because he owes a reasonable duty of care to his congregation because of his position of perceived authority. If this negligence subsequently causes their death, this is the crime of culpable homicide.
Keeping children from school:
Everyone will remember the “Seven Angels” tragedy in Ngcobo, Eastern Cape, where children were reportedly not allowed to attend school. This is a crime punishable by up to 6 months’ imprisonment in terms of the South African Schools Act, 1996. It is also worth mentioning that this case also involved sex trafficking, possession of illegal firearms, armed robbery and murder. This was evidently not anything that even vaguely resembles a church, but was in fact a criminal organisation.
“But she said ‘yes’ to sex”:
Recently, numerous pastors have made headlines for allegedly committing sexual crimes such as rape or human trafficking. Amongst them are James Thubakgale, Angel Bazuuka and Timothy Omotoso of Jesus Dominion International Church. Irrespective of who commits a rape, it remains a crime. As explained above, unless someone voluntarily consents to something (in this case sexual intercourse) it is not true consent. In such cases, the issues of coercion and abuse of power are paramount. If someone “consents” to sex because they believe that if they don’t, something bad will happen to them, it is not true consent. It is then a case of rape, which carries a minimum sentence of 10 years.
Unwanted sexual acts that fall short of penetration (which would be rape) are known as the crime of sexual assault. Instances of prosecution for sexual assault include the prosecution of pastor Timothy Omotoso for allegedly sexually assaulting Cheryl Zondi, one of his congregants.
Laws against Abuse:
If a pastor (or certain other persons identified by s 110 of the Children’s Act, 2005) on reasonable grounds believes that a child is being abused (e.g. that a member of his congregation is sexually assaulting a minor), and he/she fails to report this suspicion to the police, he/she is breaking the law and guilty of an offence.
The Domestic Violence Act, 1998 deals with domestic abuse, i.e. abuse that takes place where parties are in a “domestic relationship” with one another. In terms of the Act, a “domestic relationship” includes where people share(d) the same residence (e.g. where the pastor and one/more of his congregants stay under the same roof). The Act protects not only against physical abuse (which would be the crime of assault), but also includes amongst other things, emotional, verbal and psychological abuse, intimidation (which is already a crime as discussed above), harassment (i.e. a pattern of conduct that induces the fear of harm) and controlling behaviour that causes imminent harm to the safety, health or wellbeing of the person.
The Domestic Violence Act allows for the issuing of a protection order (a type of interdict) by the Court, and for a warrant of arrest (to be used by the police if the abuser breaks the protection order). The Act also gives the police the power to remove any weapons the abuser may have. Should an abuser decide to break the protection order, they can face up to five (5) years’ imprisonment.
Laws against Commercial Crimes:
Pastors have also been in the headlines for commercial crimes. A recent example is the arrest of Prophet Bushiri and his wife by the Hawks on charges of money laundering.
Money laundering is the crime of trying to make “dirty” money (i.e. money you obtained from illegal activities) appear “clean” (i.e. as if it was obtained legally). An example would be where the Mafia recorded the money they made from selling drugs (dirty money) in the books of a laundromat they owned, as if the money was the proceeds of dry cleaning (clean money).
Similarly, just being in the possession of proceeds of unlawful activities is a crime, as is assisting someone to benefit from the proceeds of crime.
All of these commercial crimes are punishable by up to 30 years in jail under the Prevention of Organised Crime Act, 1998.
Equally, the same legal principle that applies when a pastor fails to report the suspected abuse of a minor also applies when someone fails to report a commercial crime such as theft, fraud and forgery to the Police. Such failure to report is also an offence.
Failure to pay taxes:
The Tax Administration Act, 2011 deals with the penalties imposed for various forms of tax offences and understatements (e.g. misrepresentation made in your tax return).
Pastors, like every other person who earns enough to qualify as a tax payer, must pay income tax (PAYE). Should a pastor misrepresent to SARS regarding his/her annual income, he/she becomes liable to pay not only the tax he/she rightfully owes, but also a penalty. If he/she is guilty of intentional tax evasion, this penalty can be up to 200% of the difference between the correct amount of tax he/she should have paid, and the amount of tax the pastor would have paid had he/she not been caught.
To be tax exempt, churches must be registered as public benefit organisations (PBOs) with SARS’ tax exemption unit, otherwise they are taxed like normal companies.
No, or the wrong, visa:
A foreign pastor who leads a church i.e. works while being in the country on a visa that does not allow him/her to work (e.g. a visitor’s visa only without an endorsement to work), contravenes the Immigration Act, 2002. This contravention can land him/her in jail for up to 7 years, or be deported back to his/her country of origin.
As can be seen from the above, South Africa has well-developed existing laws to deal with criminal or otherwise illegal acts committed in the name of “religion”. In such instances, the State has a duty to intervene and would indeed be remiss in its duty if it does not.
Anyone (a congregant, an outsider,
another church or religious organisation, even the CRL Rights Commission
itself) who is aware that such acts are being committed, or who has reasonable
grounds to believe that such acts are being committed, can lay a charge with
the Police or relevant authorities. Once the Police are made aware that a crime
has been committed (i.e. when someone make a report), they then have a duty to
investigate the complaint. If the Police has reasonable grounds to believe that
a crime was committed, the matter is handed over for prosecution by the State.
 In R v Sikunyana1961 (3) SA 549 (E) at para 82, X burned Y’s head and body with live coals in order to exorcise an evil spirit. The Court held that “a dangerous practice superstitiously designed to secure the exorcism of an evil spirit cannot be rendered lawful by the consent of the afflicted person”. And in R v Phiri 1963 R&N 395 (SR) where a witchdoctor inflicted “serious and long-lasting injuries” with a razor blade on a whole family in order to make them strong and rich and to heal a sick child, where the sick child was too young to consent, the Court was not prepared to recognise its parents’ consent.
 Section 1(a) of the Intimidation Act 72 of 1982 makes it a crime to intimidate someone by assault, injury or damage to property, or to threaten them with death, assault injury or damage to property.
 Section 1(r) of the Act makes it a crime to unreasonably cause unnecessary suffering to any animal.
 Section 3(6)(b).
 Section 34 the Prevention of Corrupt Activities Act 12 of 2004.
 Section 5(1)(c) of the Income Tax Act 58 of 1962.
 Section 222 of the Tax Administration Act 28 of 2011.
 Section 223 of the Tax Administration Act 28 of 2011.
 Section 49(16)(a) of the Immigration Act 13 of 2002.
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