Why We Cannot Regulate Religion (Part 2)

by Daniela Ellerbeck
2 December 2015

by Andrew Selley (Founder of FOR SA, & Leading Apostle in Four12 global partnership of churches) 
& Advocate Nadene Badenhorst (Legal Counsel, FOR SA)

In Part 1 of this 3-part series, we discussed the reasons why religion cannot be regulated or even “self-regulated”, as recently proposed by the CRL Rights Commission.

Again, it is important to understand that “self-regulation of the Church” in the sense proposed by the Commission, does not mean that churches will be free to regulate (meaning “govern”) their own internal affairs, free from interference or restriction by the State or anyone else. Instead, what the Commission has proposed and what it means by “self-regulation of the Church”, is that there should be a central oversight body, made up of representatives of the Christian faith, but which body is recognised by the State and has the power of the State behind it (by reason of the legislative regulations creating such body, and giving it its powers, functions and responsibilities, in the first place). It is “self-regulation of the Church” in THIS sense that we are concerned about for the reasons set out in our earlier article (Part 1).

In this article (Part 2), we present an alternative, and constitutionally permissible, solution to the problem of “rogue pastors”. (In the final article (Part 3), we will discuss from a Scriptural point of view, how the Church should be responding to this problem).

An alternative to “self-regulation

As an alternative to “self-regulation” (which we do not believe to be a constitutionally permissible or workable solution), we believe that 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 laws.

Implement and police existing laws

Churches are already “over-regulated” in the sense that there are already numerous administrative and financial laws they have to comply with, incl. the Non-Profit Organisations Act (if a church is registered as a non-profit organisation (NPO) with the Department of Social Development (DSD)); the Companies Act (if a church is registered as a non-profit company (NPC) with the CIPC); the Trust Property Control Act (if a church is registered as a living trust with the Master of the Court); the common law provisions relating to voluntary associations (“VAs”, if a church is not registered as a NPO, NPC or trust in terms of the aforementioned legislation); the Income Tax Act dutifully managed by SARS (particularly also if a church is registered as a Public Benefit Organisation (PBO) for purposes of enjoying tax benefits); FICA regulation through banks; visa and immigration legislation (in the event of foreign pastors or employees); labour legislation; health and safety legislation; the Consumer Protection Act; measures for the prevention of animal cruelty; etc.

Instead of creating more laws and legislative regulations in the hope to “catch” unscrupulous pastors, they should be caught using the existing laws. So for e.g. where a pastor or a church does not pay tax on income received, or is registered as a PBO but in fact operates as a business making profit over and above the threshold allowed for PBOs, SARS has the power and responsibility to deal with them. Likewise, if a church is registered as a NPO (as they often are, given that donors often require religious / charitable organisations to have a NPO number) and fails to comply with the rather onerous requirements in terms of the NPO Act (to have a Constitution; keep accounting records and regularly submit financial statements; regularly submit narrative reports of the church’s activities and office-bearers, etc), DSD may cancel the church’s registration as a NPO and, in certain circumstances, even refer the church to the Police for criminal investigation. Under the Companies Act, NPCs are subject to strict governance to ensure that members and directors do not benefit from NPC income or surpluses and remain focused on achieving the stated (public benefit) objective, and provides for criminal sanctions and the possibility even of personal liability in case of contraventions of the Act. Under the Immigration Act, foreign pastors who do not have the necessary visas to reside or work in the country, can be arrested, deported, fined and/or imprisoned etc. A similar framework of obligations and penalties in the event of non-compliance, appear in all the aforementioned Acts which churches have to comply with.

In terms of the common law, churches or pastors who make themselves guilty of fraud, or misappropriation of funds, can be prosecuted by the Police and be held liable in terms of the criminal law. Likewise, pastors who place congregants lives or health in danger by forcing or unduly influencing them (in the name of religion) to do certain things, could have criminal charges pressed against them (for e.g. for assault or causing serious bodily harm, or attempting to do so) and if found guilty, be fined and/or imprisoned. Where emotional or psychological abuse takes place, and/or a congregant’s dignity is impaired (for e.g. where a pastor rides a congregant like a donkey), such pastor can likewise be charged with “crimen inuiria” under the criminal law. Where “churches” in fact operate as drug cartels, they should be prosecuted in terms of the drug trafficking, money laundering and/or organised crime legislation.

The same principle would apply in respect of unlawful activities conducted by members or leaders of other religions. For example, Satanic rituals involving human sacrifice, rape, child pornography, ritual abuse (of for e.g. children) etc should be prosecuted under the criminal law. Likewise, terrorism and/or the killing of innocent people in the name of religion (e.g. by ISIS, being a jihadist Islamic extremist group), should be prosecuted under the various existing terrorism and criminal laws.

It should thus be clear that the laws and legislative regulations to prevent and/or address the problems caused by “rogue pastors” are already in place. Instead of creating more laws and legislative regulations, the existing laws should be better implemented and policed! There is no reason why the CRL Commission itself cannot report a church or pastor who it reasonably believes is contravening any of the laws that applies to it, to the relevant government authority (including pressing criminal charges itself against the pastor or church where applicable).

In any event, there is no need for further regulation by the State (or indeed a State-recognised, central regulatory / oversight body over all churches) if indeed the purpose of such regulation would solely be for administrative and financial accountability and not to regulate doctrine, as the CRL Commission has repeatedly assured religious leaders.

A specialised investigation unit

Rather than creating another regulatory body, we proposed to the CRL Commission that government be called upon (as we ourselves will do) to strengthen the Commission by providing resource and funding for the establishing of a Specialised Investigation Unit within the CRL Commission, to whom religious leaders that are suspected of criminal activity can be reported and which Unit will work with the relevant authorities and the Police to investigate and ‘clamp down’ on such persons or organisations.

Educate and assist pastors and churches

In addition, we believe that the Commission has a major role to play in educating pastors and/or churches with regard to the various laws that apply to them, and assisting them to some degree in complying therewith for e.g. by making available example Constitutions and Memorandums of Incorporation (MOIs), helping them to apply for marriage licences in terms of the Marriage Act etc. The Commission can encourage (but not force) pastors to undergo theological training, and even point them to different accredited institutions and/or Bible schools for this purpose. Ideally, the Commission would function as a “one stop shop” for pastors and/or churches on issues affecting them, and to this end also we would support any proposals to government for resource and funding that will further empower the Commission to serve the religious community in South Africa.

As mentioned earlier, this article is Part 2 in a 3-part series on why religion cannot and should not be regulated (or even “self-regulated” as proposed by the CRL Rights Commission). In Part 3, we discuss, from a Scriptural point of view, how the Church should be responding to this problem.

*FOR SA is a non-profit Christian organisation, working to protect and promote religious freedom and autonomy in South Africa. To join the organisation (at no cost) and/or to sign up to its newsletter, visit forsa.org.za Also follow us on Facebook @FreedomOfReligionSA for regular updates on religious freedom and related issues locally and worldwide.


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Adv Nadene Badenhorst

Adv Nadene Badenhorst is an Advocate of the High Court of South Africa. She serves as FOR SA’s full-time Legal Counsel.

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