CRL Rights Commission Report: Commercialisation of Religion & Abuse of People's Belief Systems Day 2 hearing & Commission response

Meeting report

CRL Rights Commission Report: Commercialisation of Religion & Abuse of People's Belief Systems
The Chairperson asked presenters to not repeat submissions they had heard the previous day.

Wesleyan Church of Southern Africa (WCSA) submission
Rev Cheryl Jonck said the church consisted of districts within Zimbabwe, Limpopo, KwaZulu Natal, Eastern Cape and Gauteng with the majority of their churches in rural areas. To date WCSA had never been given an opportunity to partake in any consultations about the proposals made by the CRL Rights Commission Report. The WCSA levels of accountability started from as small a gathering known as a preaching point up to its Southern African regional board accountable to the general board of the WC which sat in North America. Her wish was to ensure that all pastors and practitioners of religion could practise their right of freedom of religion as per the Constitution. Though she agreed with the CRL Rights Commission’s concerns about the excesses and abuses taking place in SA in the name of religion, the proposal before the Committee would punish and limit freedom of religion of the majority as opposed to curbing the excesses and abuses of the minority.

In the second book of Peter, Peter warns the church of false teachers and prophets. False teachers and prophets had always been a part of Christianity which would remain so until, as Christians believed, Jesus’ second coming. Jesus prophesied about false prophets. Based on the scriptures Rev Jonk believed that evil men and women would continue to rise up and declare their heresies.

Section 15 of the Constitution provided the right to freedom of conscience, religion, thought, belief and opinion and section 18 provided the right to freedom of association. The South African Charter for Religious Rights and Freedoms also provided that everyone had a right to the impartiality and protection of the state in respect of religion. Section 72 of the Constitution provided that the state had to create a safe and positive environment for the exercise of freedom of religion; and any form of regulation in Rev Jonck’s opinion spoke directly against that provision.

The mission of the CRL Rights Commission as stated in their mandate was to foster the rights of communities to freely observe and practise their culture, religion and language. Her submission was that ‘regulation’ and ‘freedom’ as terms were oxymoronic.

The Constitutional Court had already held in the Prince case that people had to be permitted to believe whatever they wished even if the beliefs were bizarre, illogical or irrational. The religious practitioners who were determined to practise religion in abusive or illegal ways would continue to do so despite any form of regulations as proposed by the CRL. The Committee had already heard that victims of religious abuse had denied any assistance to participate in abusive acts and had partaken willingly. For example, forcing or instructing congregants to eat grass or hair as a way of bringing them closer to God was not a normal practice of any Christian church following the teachings of Jesus Christ. However, reviewing sections 15 and 18 of the SA Constitution, those that acted believing in such bizarre beliefs were doing so within their constitutional rights of freedom of religion and of association.

She believed the solution was to find a way to deal with the practitioners that practised outside the law or who caused bodily harm to their followers; such as in the case of the prophet of Doom. The Limpopo Health Department had taken the offender to court and the court forbade that prophet from continuing to spray insecticide on his followers.

The religious institutions which had been formed by immigrants from other African countries who used these institutions to launder monies had to be dealt with by the courts, as their sole purpose was to operate illegally. Organs of state such as the South African Revenue Services (SARS), Department of Home Affairs (DHA) and Social Development (DSD) had to take such illegal operators to task. Devious people that wished to operate illegally would find ways to do so no matter how many different laws there were.

Rev Jonk recommended that CRLRC with the help of religious institutions with sound corporate governance educate those who operated within the law but lacked corporate governance. That would be fulfilling the CRLRC mission to monitor and educate institutions within the religious community. Registering all churches would be arduous as many groups met in the open. Having registered Christian schools administered by WCSA, Rev Jonk could only imagine the nightmare it would be for those outdoor gatherings to make such applications.

It was inconceivable that any peer review board could determine the ability of an applicant to become a religious practitioner when such a board could not know the doctrine, beliefs and requirements of all the numerous denominations in SA. Currently there were some religious institutions whose requirements were that women could not be pastors, where would female pastors stand in that review board’s view. The only way such a board could function would be if all religious institutions complied with the same doctrine and requirements for prospective practitioners. That would then deny everybody their rights as envisaged in section 15 of the Constitution.

The day before, the presenters had all agreed that the church had to be given an opportunity to find solutions to the problems brought about by charlatans operating in the name of religion. The Committee had to consider the rest of Africa to see what solutions other countries had found to the same problem. Each religious institution or church grouping had to be permitted to continue with their self-governance as had been the case for many decades in SA; that they continue to appoint religious practitioners according to their requirements, doctrines and beliefs in line with the Constitution.

Christian Science church submission
Mr Phillip de Villiers, Christian Science church, said the church manual of the Christian Science church contained no provision authorising any changes. The CRLRC findings had highlighted egregious problems about the lack of transparency and accountability of religious organisations in SA, which required redress to ensure a peaceful and orderly society. Mr De Villiers respected the authority and the wisdom of the CRLRC to craft solutions for the advancement of SA but he wished to comment on the Report recommendations.

Chapter 2 of the Constitution provided standards for the evaluation of proposed government action to determine if it was reasonable and justifiable in an open and democratic society. He requested that the CRLRC examine its proposed legislative amendment to determine if it would pass constitutional master. The big concerns of members from his denomination was that the amendment would require the Christian religion to adopt a centralised organisational structure which was inconsistent with the Christian Science system of internal governance. Their manual provided that each of its branches was independent, autonomous and a distinctly democratic organisation; and that no branch church could interfere in another church. Each branch was governed by its own bible adopted by its membership as well as the general governing principles established in the Christian Science manual. There was no provision for the creation of an umbrella organisation nor was there any provisions authorising individual members of the Christian Science to discipline other members through participation in a peer review committee. The Christian Science church manual and the bibles of the branch churches contained extensive provisions about discipline, proper financial stewardship and compliance with local and national laws. The Christian Science church was composed of lay churches and there were no ordained ministers or religious officials. Two readers, who were not leaders but elected by their respective congregations, read from the bible and science books at Christian Science church services. Even if an umbrella body could be created to represent the Christian Science church branches and societies, vesting that body with the authority contemplated by the proposed legislative amendment would violate the church manual.

The Christian Science church was asking that the CRLRC to not take the serious step of imposing measures which were inconsistent with internal systems of church governance without thoroughly examining if the measures were constitutionally sound. Though the investigations had uncovered serious problems, the Christian Science church believed that further investigations were required.

Mr De Villiers believed that the CRLRC had used a threshold of the SA population percentage in deciding which religious organisations would be invited to partake in the investigation. Smaller denominations like the Christian Science church had not met that threshold, though they contributed to the religious diversity of SA similarly as larger organisations. Moreover smaller religious organisations were most likely to be more adversely impacted by the proposed legislative amendment because they lacked the centralised structure necessary for compliance with the amendment. For example, board members responsible for the governance of churches served on a volunteer basis. Any proposed solution had to consider the diverse array of religious organisations and the burden they would have to shoulder in implementing the solution.

The Christian Science church was also asking the CRLRC to determine if there were less restrictive means of ensuring transparency and accountability by religious organisations as opposed to the proposed legislative amendment. The amendment proposal would create a further bureaucratic layer by virtue of registration mechanisms in addition to requiring all religious organisations to adopt the same centralised structure. Given the statements throughout the CRLRC Report that existing law contained loopholes and was not being enforced; it was questionable whether the proposed arrangement would solve the problem. In addressing the violations identified in the Report, the Christian Science church proposed correcting the loopholes in the current laws, enhancing reporting requirements, additional requirements for the approval of religious organisations constitutions, civil and criminal sanctions and vesting the CRLRC with the authority to refer cases to the prosecuting authority where people were being harmed or exploited.

The CRLRC interest in gathering more reliable data about the number of denominations and religious organisation in SA could be addressed without interfering with internal systems of church governance and any solution had to be designed to address the very serious actual harms identified in the Report. These violations could be addressed without increased regulation of religious organisations that acted in a law abiding manner and did not engage in the practices as identified as violations.

The Christians Science church welcomed the CRLRC observation that religious organisations were the best arbiters of internal religious disputes; disputes involving theology or internal religious doctrine were not suited to resolution by those that did not have a thorough understanding of the teachings or the importance those teachings played in individual members’ lives. The problems identified in the CRLRC Report had no relation to religious doctrine. Instead they were about non-compliance and disregard of general laws designed to promote an organised peaceful democratic and diverse society. Religious organisations did not have the authority to enforce general laws and to do so would amount to inappropriate use of government power.

Reach SA submission
Bishop Glenn Lyons, Reformed Evangelical Anglican Church of SA (Reach SA), said Reach SA represented about 150 churches with a membership of 70 000 people with a majority of English and Zulu speaking congregation. Reach SA could be found in urban and rural settings. There were about 120 ministers, seven bishops and an accredited theological college. The church had been at work since 1938 in SA. Reach SA though commending the work of the CRLRC Report was going to submit legal comment on its reservations about what had been proposed.

Mr Marius Le Roux, Chancellor, Reach SA, reiterated that the CRLRC had done good work about malpractices in the name of religion where people were evidently being harmed. However; Reach SA submitted that if the CRLRC Report were to translate into law, it would have a devastating effect on freedom of religion and association in SA. Such a law would essentially rewrite the Constitution. Reach SA was opposed to any abuse or exploitation, whether in the name of religion or not, especially of poor and marginalised people.

The Committee was busy with a legal process where a proposed change of law was being discussed; therefore Reach SA’s submission was not theological but legal. The submission was being made in humility; Reach SA would not be able to ventilate fully all it wanted to submit and would welcome an opportunity to fully elaborate its submission at a future time should it be permissible.

The CRLRC was the wrong party before the Committee as it was acting outside its constitutional powers. The Committee had to reject the legislative proposal by the CRLRC to amend the law. The CRLRC was a Chapter Nine institution independent of government subject only to the Constitution and the law. CRLRC had the power to monitor, investigate, research, educate, lobby, advise and report on issues concerning the rights of cultural, religious and linguistic communities, as per the Constitution and the CRLRC establishing Act. The powers of the CRLRC were there for promotional, advisory, investigative and educational. The CRLRC had no regulatory or judicial powers but the Commission was attempting to amend its establishing Act to grant itself regulatory and judicial powers. He referred to the proposed structure and powers as per the CRLRC Report on pages 42 and 47. The judicial powers would include denying registration and licences and dealing with complaints. That meant the CRLRC wanted to become part of the judicial and executive arms of government; which it was not. Therefore the CRLRC proposals were fundamentally unconstitutional as they were beyond the objects and powers of the CRLRC. A regulatory and judicial agency was supposed to be before the Committee about the CRLRC proposal; the CRLRC was not an enforcement organ of state.

He said that section 185(3) states the primary objects of the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities are that it “may report any matter which falls within its powers and function to the South African Human Rights Commission for investigation”. In section 184(2) “The South African Human Rights Commission has the powers, as regulated by national legislation, necessary to perform its functions, including the power- to take steps to secure appropriate redress where human rights have been violated”.

Mr De Villiers said the Report should have been referred to the SAHRC. Reach SA submitted to the Committee that the Report had to be given back to the CRLRC so that the Commission could reassess and reconsider what its course of action had to be.

The CRLRC Report was self contradictory in that the CRLRC wanted to comply with SA law in not wanting to diminish religious freedom and association however the same CRLRC proceeded to do the exact opposite through issuing and denying licences, issue registrations and also wanted to be a judicial authority.

South African Institute for Professional Pastors, Reverends and Ministers (SAIPPREM) submission
Pastor Grant Claassen, SAIPPREM regional representative, said that the objective of SAIPPREM was seeking competency and professionalism of all ministers in SA. SAIPPREM was aligned to the South African Qualifications Authority (SAQA) though it was a non-statutory body. There more than 2 000 ministers already registered with SAIPPREM and the body had regional offices in all major provinces. The importance of a minister to be competent could be ascribed to the Bible’s Timothy II chapter 2; verse 15: “We must study to show ourselves approved”. Second Corinthians chapter 3; verse 6: “God has made us competent ministers”. The term ‘competent’ meant that one would have had sufficient skills, knowledge, ability and qualification. SAIPPREM’s roll out for 2017 had taken the body to all the provinces of SA where it had engaged more than 3 000 pastors and from what the body had heard there was much more going on. For instance, one pastor had asked if SAIPPREM would accept him on its board if he was a spitting pastor. SAIPPREM had inquired what a spitting service meant and the response was that the pastor actually spat on people believing that it would heal people. Such matters had not been covered in digital and print media and SAIPPREM had told the minister that it would not accept him on its board as spitting was no competency and SAIPPREM had to educate the pastor that it was unhygienic for him to spit on people.

Though a lot of mainline churches and institutions were represented at the meeting SAIPPREM had come to understand that a lot of the time where there was one mainline church in one region, there were probably up to 100 independent churches of which the ministers of these churches were unaccountable to anyone. Therefore what the CRLRC had investigated manifested in such an environment and SAIPPREM had a wing where it brought competency back to a minister, as an individual.

 SAIPPREM offered its members board exams and continuous professional development. SAIPPREM agreed with pages 37 and 39 of the CRLRC Report and were recommending that the licensing be done for accountability’s sake and professionalism and that had to be done by a body like SAIPPREM or from the church fraternity and not from government.

Mr K Mileham (DA) proposed that the CRLRC response be moved to the end of all submissions.

The Chairperson asked if the CRLRC would want to intervene as it was scheduled to be the last body to present to the sitting.

Ms Thoko Mkhwanazi Xaluva, CRLRC Chairperson, said the CRLRC had actually asked to be moved up the list instead of being last.

The Chairperson proposed that the CRLRC allow submissions from the religious sector so that it could respond as the Commission would have enough time to respond to all the submissions.

The Committee agreed to keep the agenda as it had been circulated.

National Interfaith Council of South Africa (NICSA) submission
Bishop Daniel Matebese, NICSA President, said he had noted with concern and grief the happenings in SA where some religious leaders behaved in ways that were against their calling and were bringing the name of the church into disrepute and shame. He apologised for the behaviour of some pastors who behaved in a manner that was not befitting of their calling.

NICSA supported the CRLRC recommendations as it had consulted NICSA and some of the religious formations that had presented to the Committee. Bishop Matebese said he had been licensed as a marriage officer by the DHA. NICSA was recommending that there had to be an umbrella body of all the religious formations where registration and licensing would occur. Freedom of religion did not mean lawlessness as had happened in the recent past where some religious leaders had given their followers petrol, sprayed them with insecticide and fed them snakes.

Bishop Matebese said he could not imagine himself attending a national conference of religious leaders to discuss the CRLRC Report but he certainly would attend a national consultative conference for a Bill. The Committee was responsible for making laws.

The CRLRC request for documentation about his church had been complied with by Bishop Matebese as he had not committed any crime. The work of the CRLRC had to be applauded in that it was attempting to assist in bringing order to the divine calling of ministers and pastors.

NICSA was proposing that there be a registrar of churches, as churches were registered as NPOs by DSD. Foreign and domestic pastors had to be licensed and accredited to practise in SA. That was happening in Botswana where Bishop Matebese had firsthand experience of the challenges of registering a church. One had to have more than 500 members that had been born in Botswana and remained citizens of the country. He said that on a recent visit to another African country he had heard at the airport from an official there who had been told that if he wanted to get rich quickly, he simply had to go and open a church in SA.

South African Interfaith Council (SAICO) submission
Mr Thulani Tshabalala, SAICO Secretary General, said as he had heard the previous day from presenters that the CRLRC had been captured. His belief was that the opposite had occurred but he termed it ‘recklessness capturing’. He said SAICO worked mostly in Soweto, Johannesburg, Gauteng. SAICO had seen the proliferation of the recklessness in townships and that could not be ignored as the situation was worsening by the day where everyone was doing as they pleased. If certain religious leaders felt the CRLRC proposal draconian he invited them to go to townships to see the destruction that was unfolding. At a recent SAICO conference in the North West, the SAICO delegation had been approached by a preacher/business man who said he wanted to establish a church in Brits as he appreciated that there were mineworkers in Brits and the business man would make serious money. More shocking the business man proceeded to detail how he had developed three choreographed ideas of miracles which he would use to attract followers to his planned church. What worried SAICO was that there was no legislative prevention which could be enforced to stop the businessman from going ahead with what he planned. Citizens in the townships were being abused.

Throughout all the submissions, Mr Tshabalala had heard no one mention the need for the ferocity needed to deal with charlatan pastors. SAICO was proposing urgent action in dealing with the problem. From his understanding, he had not picked up on any overreach on what CRLRC was proposing as his perception was that the Commission was pushing for the religious sector to self regulate. Parliament had to intervene as South Africans were under siege.

Christians for Peace in South Africa (CPSA) submission
Ms Rhee Khoza, CPSA Secretary General, said that CPSA was not new and was an international organisation that originated in SA and had been registered in 2001 as an NPO. CPSA supported the work that the CRLRC had accomplished in investigating abuses of followers by some religious leaders.

Church Leadership Empowerment Foundation Africa (CLEFA) submission
Pastor Thivha Lidzhade, CLEFA Chairman, said CLEFA was an umbrella body of Independent Pentecostal and Charismatic Churches spread throughout the country. CLEFA like others had submitted its recommendations to the Commission but it had done so proactively without awaiting an invitation. As said in Matthew chapter 24 verse 5: ‘Many will come in my name saying I am the Christ and will deceive many’. CLEFA welcomed the idea of regulation of the Christian faith but that it had to be left to recognised self regulating Christian umbrella bodies and not done by the state. The regulation had to exclude doctrinal matters and be limited to registration of religious organisations and practitioners. There had to be adherence to basic accounting and reporting protocols; foreign ministers had to be barred from operating in SA until a complete background check and vetting had been concluded and these ministers had to operate under an umbrella body on a probationary basis first for a specific period before operating alone. The proposed peer review committees as proposed by the Commission in its proposed structure could not be reporting to a peer review council as it would be comprised of different religions. The reporting lines had to end with the peer review committees so that disputes could be taken to courts of law. There were enough laws that could be used to charge delinquent pastors but there was no policing of contraventions. CLEFA opposed the whole sale rejection of the CRLRC Report as that was indirectly promoting violations and abuses of people’s faith beliefs.

Mr Lidzhade said that CLEFA had represented churches that had been guilty of some of the abuses as Mr Lidzhade came from communities where pastors had abused followers before. However, CLEFA no longer represented such churches. The faith groups present at the Committee hearing were not the culprits in the abuses and therefore it would be unfair for the church to reject government’s attempts to help the church regulate itself.

If it was agreed there was a problem, the questions had to be: Whether the proposal would address the problem; what had been preventing those charismatic pastors guilty of abuses from forming their own umbrella body if that had not already occurred; how would the peer review committees deal with an umbrella body of such charismatic pastors in a constitutional manner? Would the proposed national consultative conference run parallel to the CRLRC Report and who would be facilitating it? Who would be in attendance as Christian umbrella bodies themselves had particular agendas?

Royal House of Eastern Cape (amaXhosa) submission
iNkosi Xolile Ndevu, Royal House of Eastern Cape (amaXhosa), said he had been sent to attend the meeting by King Zwelonke Sigcawu of the amaXhosa whose interest was that it had been long that he had observed the phenomenon of amaXhosa being fed grass, snakes and imbibing petroleum as instructed by men of faith. If Parliament, the CRLRC or the church fraternity was the structure which had the power to develop ways to stop the abuse of faith believers and to develop regulations on how belief and worship had to be conducted, Parliament had the endorsement of King Sigcawu to go ahead. Government had to intervene as it seemed SA was becoming a lawless nation in that regard.

Great Commission Ministers Network (GCMN) submission
Mr S Motaung, GCMN Chairperson, said the GCMN was an amalgamation of formerly independent or non-aligned churches which had been formed to bring a greater level of accountability. The GCMN had been appointed to be the voice of many marginalised churches which in total numbered about 500 affiliates with a following of about 600 000 followers.

GCMN was concerned by the CRLRC statement that its Report had the support of millions of Christians from the major denominations and faith groups including the GCMN. GCMN had not been consulted about this inclusion and had been incorrectly included as supporters of the Report.

GCMN fully supported the condemning of the abhorrent and abusive behaviour of particular pseudo churches and sects and affirmed that the constitutional right to freedom of religion was never a justification for committing illegal and harmful acts against another human being. GCMN commended the CRLRC for highlighting the abuses perpetrated by fringe elements under the guise of religious freedom. However, GCMN believed that there had to be an inclusive, broad based process of consultation within the religious community to look at alternative sustainable, scalable and viable solutions to allow the faith sector to continue self regulation. GCMN supported the South African Council of Churches (SACC) that the mechanism of implementation would need more consultation time before any legislative conclusions.

GCMN rejected the proposal that the CRLRC be granted additional powers to allow it to regulate religion. GCMN agreed with Freedom of Religion SA (FORSA) that the consequences of the proposal would result in CRLRC having control of all religion in SA which was not constitutional and a clear overreach by CRLRC.

South African Religious Forum (SARF) submission
Bishop Selven Govender, SARF, said that religious leaders play a pivotal role in society in addressing the social, moral and spiritual needs of SA. SARF supported the sentiment of self regulation as had been articulated by other submissions.

When religious leaders did wrong, that was a spiritual matter and therefore a spiritual body should correct that wrong and bring about spiritual order. SARF agreed with the proposal for an umbrella body to regulate religious leaders and that body had to have guaranteed powers through legislative establishment.

South African Ministers Fraternal (SAMIFRA) submission
Rev Kagiso Letlape, SAMIFRA & North West Men’s Sector Focal Person, acknowledged the work of the CRLRC as reported in its Report. It was the poor that suffered abuse at the hands of the clergy in their quest to live a better life. Presentations from the previous day had been biased in that they demonised the CRLRC. The religious sector had kept quiet whilst poor South Africans had been abused by men of the cloth. As part of his work for the South African National AIDS Council (SANAC) and because of the abuse of children and women SANAC had adopted a campaign statement as men of SA that: ‘not in our name’ would women and children be abused. The religious sector had not had such a similar campaign statement, but when the CRLRC were wanting to intervene, the religious sector were retaliating which was unfair.

Most of the critical voices of the work of the CRLRC had been from white religious leaders and no white religious leader had been found feeding people snakes, grass or committing any of the investigated abuses.

The Chairperson interjected that many presenters had submitted on the previous day and his suggestion was that Rev Letlape deal with his substantive submission leaving race outside of his content.

Rev Letlape said the abuses and exploitation of the poor happened in townships and there had been no preventive steps taken by most religious formations in curbing or speaking against the atrocities committed against the poor. Persons had been hospitalized with broken ribs and others for imbibing oil until it was coming out of every body orifice having been instructed by pastors as works of miracles.

The trend was escalating instead of decreasing since the CRLRC investigation hearings.

SA borders were porous and abuses were done by both South African and foreign preachers. For example, a religious leader who was deported from Botswana for abusing poor citizens of that country, was currently running a church in Rustenburg, North West and committing the same abuses, because there was no mechanism to stop such things. Rev Letlape said other countries had systems to monitor visitors whereas in SA, visitors entered on visitor visas but ended up settling in the SA as preachers, apostle and even bishops. SAMIFRA recommended that Parliament deal with the porous borders.

University of KwaZulu-Natal (UKZN) Africology Department submission
Prof Nhlanhla Mkhize, UKZN, said the pastors who committed the acts referred to in the CRLRC Report had been making crude experimentations with the human body and mind without submitting themselves to professional codes of conduct that governed such acts. In the same way that there had been Nazi and apartheid abuses of science; there was currently an abuse of the spiritual sciences which needed to be removed root and branch.

On diminished consent and undue coercion, he said that it could be argued that the followers which had eaten snakes and imbibed petrol and other liquids had done so “voluntarily”. Applied psychology scientists, however, were of the view that there were certain conditions that led to the temporary suspension of one’s rational faculties, leading to diminished capacity to consent. That was more so when one was subjected to the authority of a strong spiritual leader in particular whom one trusted. Slavish obedience to authority had been demonstrated in controlled laboratory settings. It was for such reasons that professions that dealt with the human body and mind had to submit to ethics committees and professional codes of ethics to regulate their conduct and protect the participants from undue coercion during experiments, practices or interventions that could be harmful.

Prof Mkhize submitted that the so called pastors were interfering with the workings of the human mind using the powerful principles of psychological suggestion or influence. That was complicated by the complex spiritual nature of African societies who tend to believe in the existence of energies or forces that could be harnessed for and against people or in favour of certain outcomes. Whilst psychological and health related experimentation were guided by the Health Professions Act and subsidiary Acts; abusive pastors were not covered in the Acts thus the need for some form of regulation, monitoring and oversight.

It was possible to use the principles of psychological and spiritual sciences in general to render someone to submit to authority and that was more so in a highly emotionally charged group where individuals tended to suspend their rational faculties to take on the mind of the group. Under such situations people were highly vulnerable to external influence. Simply put, mind capture was a reality.

It was important to highlight the special nature of the relationship between the pastor and his parishioners which was analogous to the doctor-patient relationship. The doctor-patient relationship was privileged and governed by a code of conduct. Something similar could be used within the church.

The psychological fraternity wished to be given an opportunity to assist through research and recommendations which could shed insight into the abuses of the psychologically and spiritually vulnerable. Broader consultation with relevant stakeholders was still necessary to eradicate the problem.

National Unitary Professional Association for African Traditional Health Practitioners of South Africa (NUPAATHPSA) submission
Mr Solly Nduku, General Secretary, said that NUPAATHPSA represented traditional surgeons, diviners, African based faith practitioners, herbalists and bed attendants. NUPAATHPSA had been an evolution of a process to organise African traditional health practitioners which whenever they sought audience at different portfolios of Parliament; there had been a rhetoric that African traditional health practitioners of SA could not be heard because they were not united. The association had chapters in all nine provinces and had structures at local government as well. The association accounted for about 50 000 African traditional practitioners according to its database.

As practitioners in rural areas and townships, NUPAATHPSA had witnesses the extent of exploitation of women and children. Mr Nduku was from Mthatha, Eastern Cape, and it was not far from his residence where poor people had been coerced to drink oil based liquids which had adverse health implications. A number of children had been coerced by a so called spiritual leader to believe that they had to abandon everything including their education and starve themselves to death; in the recent past. It had been saddening that SAPS had exhumed a number of bodies buried in shallow graves around that leader’s house.

NUPAATHPSA noted the barbaric acts of murders of people where their body parts had then been harvested. The latest had been the cannibalism widely covered in broadcast, digital and print media.

NUPAATHPSA’s understanding was that if SA had to import a particular skill there had to be enough evidence that there was a shortage of this skill. This observation related to NUPAATHPSA’s notice of the influx of foreign nationals to SA where it seemed there was a shortage of the men of the cloth. However, NUPAATHPSA wondered if foreign nationals declared on entering SA that they had come to practise as spiritual, religious or traditional health practitioners.

It was saddening that the so called pastors preyed on the most vulnerable of people, women and children. They surrendered their retirement packages and their remaining assets including their homes in the quest of becoming wealthy because of their religious beliefs; which left children homeless and unable to complete their studies.

The issues raised by the CRLRC were not new to NUPAATHPSA as the association had said before that its spiritual calling was not something that could be regulated by Government but the Traditional Health Practitioners Act of 2007 had been enacted anyway. The implementability of that Act had limitations, however, as it resided with the Department of Health and although its regulation of medicines was commendable it could not be used to regulate spirituality.

The Association’s affiliates felt highly discriminated against as a sector in comparison to other religions and faiths in SA. It is alarming how many voices are heard when the CRLRC attempts to have government regulate the Christian religion; when during the enactment of the Traditional Health Practitioners Act, the silence during the hearings leading to enactment had been so loud. Despite democracy being 23 years in SA there remained a litany of legislation which continued to demonise and impede the development and practice of African traditional healing, which was something NUPAATHPSA believed resided with this Committee and the CRLRC. The rights of African traditional health practitioners were being grossly violated by those with means and power as their sacred sites were being bought and their affiliates removed from those sites in favour of commercialising those sacred spaces.

The Association supported the work of the CRLRC to date but a lot remained to be done and it recommended that the Committee and the CRLRC needed to review the Traditional Health Practitioners Act.

South African Union Council of Independent Churches (SAUCIC) submission
Dr Modiri Shole, SAUCIC President, said SAUCIC was an amalgamation of more than 25 independent church federations consisting of pentecostal and charismatic churches. SAUCIC supported the recommendations in the CRLRC Report as the Council felt that order needed to be restored in the spaces it operated in.

Zulu Royal Household (ZRH) submission
Prof Luka Mosoma, CRLRC Deputy Chairperson, read a statement from King Goodwill Zwelithini of the Zulu Royal Household. It stated that the ZRH having observed the abuses of followers by particular religious leaders across the country had noted also that the exploitation happened in townships, inner cities, rural areas where the poor were targeted. Moreover the abuses moved into sexual exploitation of young women as reported in all media platforms. The solution being proposed by the CRLRC as the ZRH understood it, had been that senior religious leaders had to be given powers to discipline those who were bringing the profession into disrepute and that would be similar to other professions that were regulated.

The ZRH fully supported the proposal of the CRLRC on the regulation of religion.

Kingdom Governors SA (KGSA) submission
Dr Convy Baloyi, KGSA President, was thankful that there had been limited casualties so far from the exploitation of congregants by particular religious leaders. Two incidents which had been recorded in the first draft report of the CRLRC involved ministers which Dr Baloyi represented. KGSA had evolved from a discussion amongst qualified ordained ministers around the time when one of the incidencts had occurred.

KGSA had proactively participated in the hearing engagements without invite, by inviting the CRLRC to some of its meetings. The initial engagements had been quite hostile. Dr Baloyi said he represented about 135 young church leaders only around Pretoria, Gauteng. The investigations into abuses and exploitation of followers had actually occurred in Pretoria and KGSA knew the areas were the abuses had occurred. His work forced him to work with the exploited in that region and KGSA were busy assisting those traumatised by statements such as if the parishioners told of the abuses they had endured, “they would be cursed forever”.

The CRLRC was well positioned in doing the work it had undertaken. KGSA believed that one of the causes related to a growing tendency of materialism amongst citizens in SA, which was linked to freedoms and entitlements which South Africans had. Many believed that blessings would just come quick for them if they followed pastors that preached about blessings as people wanted quick fixes to their problems.

There was no gazetted and agreed upon measure to regulate or qualify individuals and continually regulate their operations as church leaders. Unless there was an agreed upon constitutional framework that could regulate the church going forward, then the CRLRC proposal could not just be rejected without an alternative. The modalities of regulation arising from the proposal could then be discussed in workshops.

There was also growing impatience amongst faith believers – if one attended church and said something to a fellow parishioner by mistake or grace which sounded prophetic, one started thinking one was prophetic. The following week one started a church without any spirit of service to the community. The church was established in informal settlements where the most vulnerable citizens resided and enforcement would be difficult to non-existent.  

From his experience and from some of the meetings of independent religious leaders he had attended in Gauteng, he had found the sentiment to be that of anti-good governance and ethical leadership; because the majority of the so called religious leaders did not comply with any law.

A parallel concern compounding the problem was the removal of God in schools which removed morality in society.

Word of Faith Ministries submission
Dr Jimmy Crompton, Senior Pastor, said there was tremendous anger about what the CRLRC was proposing. The fact was that if every preacher was to be registered; Jesus Christ himself had had no theological training and would have not been allowed to preach in his own country and Dr Crompton believed that it was the Old Testament religious leaders that had crucified Jesus. The concept of regulating religion was diabolical. Who would decide what was right and wrong doctrine. There were enough laws to charge those that had broken the law in the name of Christ. Why was the church supposed to be the only non profit orgnaisation (NPO) that had to pay tax when other NPOs did not?

Council of Charismatic Churches (CoCC) submission
Mr Larry Matlala, CoCC chairperson, said that CoCC represented pastors that had been guilty of exploiting poor South Africans and the CoCC had intervened when young pastors had fed people snakes. The response from those pastors had been that if they had been in the wrong, it could have been they had been carried away by the Holy Spirit.

The CoCC, having studied the CRLRC Report, agreed with its findings and that the investigation was warranted. However, the Council rejected the method it planned to use; though some form of regulation was needed. The CoCC appreciated the work of the CRLRC but maintained that the Christian religious sector be allowed to consult and formulate a regulatory framework by itself; away from government intervention.

Afternoon session
CRL Commission Response to submissions
Prof David Mosoma, Deputy Chair of the CRL Rights Commission, said that if one did not understand the opposite views of one’s discussant, then one was likely to not understand one’s own views. As a Commission, it had brought the subject being discussed today to the national consciousness. The Commission had been guided by values from religious, cultural and philosophical perspectives.

He quoted from the Sixth Pope of the Roman Catholic Church on Human Dignity, the Judeo-Christian heritage about vulnerability and uBuntu which had been the elements that had guided and shaped the Commission’s thinking in response to the challenges facing the country. During the second Vatican Council in 1965 Pope Paul VI wrote: "The right to religious freedom is exercised in human society: hence its exercise is subject to certain regulatory norms. In the use of all freedoms the moral principle of personal and social responsibility is to be observed. In the exercise of their rights, individual men and social groups are bound by the moral law to have respect both for the rights of others and for their own duties toward others and for the common welfare of all. Men are to deal with their fellows in justice and civility ".

Society had the right to defend itself against possible abuses committed on the pretext of freedom of religion. It was the special duty of government to provide that protection. Its action was to be controlled by juridical norms which were in conformity with the objective moral order. The norms arose out of the need for effective safeguard of citizens and peaceful settlement of conflicts, out of the need for care and genuine public peace; and out of the need for proper guardianship and public order. If in reading the CRLC Report one had not been able to glean the above basic moral principles; then one would not be able to read from the same hymn sheet as the CRL Commission.

Ms Thoko Mkhwanazi-Xaluva, Chair of the CRL Rights Commission, said that as Chapter Nine institutions were founded on principles of independence and performing their functions without fear, favour or prejudice. It was the Commission's understanding that it needed to treat every individual and organisation with the respect which was inherent in their dignity as espoused in the Constitution.  However, it was not the CRLC objective and responsibility to maintain the good name of any organisation which decided to tarnish its own reputation and good name through positions it took on certain matters or utterances made in public. It was the CRLC belief that it could come before any Portfolio Committee to tell the truth as it knew it and could stand for that under oath. The CRLC believed it unconstitutional to threaten a Chapter Nine institution with fear of a law suit should it come to the truth, as it understood it. The Commission was officially being sued for defamation by FORSA for its response to what FORSA had said about the CRLC Hearing Report. That impacted directly on what the CRLC had been tasked to do as the matter was currently before the Gauteng High Court and would be heard soon.  

FORSA’s court application, insofar as it impacted on the CRLC presentation, today read: “It is vital particularly with a view to the COGTA meetings that will take place in the fourth term of Parliament in 2017 wherein FORSA would be representing its constituencies before Members of Parliament that FORSA’s good name and reputation be maintained”. The CRLC remained committed to ensuring that it defended and would protect the rights of the poor and vulnerable communities in SA when their cultural, religious and linguistic rights were being violated - in spite of any intimidation and threats. CRLC believed in the judiciary and that it would make the right decision when the matter would finally be heard. 

It was important to note that the recommendations had not been simply to regulate religious leaders for the sake of regulating them. Fundamental was the protection and defence of the poor and vulnerable communities from some of the worst financial and human dignity abuses committed by some religious leaders in the name of religion. Also important to note was that religious organisations represented religious leaders by their very nature and not necessarily their congregants. That had been the tight rope that the Commission had had to walk in doing its investigative work.

The CRLC was mindful of the principle of "one cannot be both player and referee" as it went about its work. To create that balance the CRLC had been consulting traditional leaders, especially the monarchs. The Commission felt they were major stakeholders since it was their people that were being exploited and therefore they had to be given an opportunity to give input on how the matter could be resolved; and to avoid religious leaders being both players and referees in situations where the playing field was not level.

Ms Mkhwanazi-Xaluva said that the Commission had the power, as regulated by national legislation, necessary to achieve its primary objects, including the power to monitor, investigate, research, educate, lobby, advise and report on issues concerning the rights of cultural, religious and linguistic communities. Section 5 (1) of the CRLC establishing Act read: The Commission may do all that is necessary or expedient to achieve its objects referred to, including to: (e) monitor, investigate and research any issue concerning the rights of cultural, religious and linguistic communities; (f) educate, lobby, advise and report on any issue concerning the lights of cultural, religious and linguistic communities; (h) receive and deal with requests related to the rights of cultural, religious and linguistic communities; (i) make recommendations to the appropriate organ of state regarding legislation that impacts, or may impact, on the rights of cultural, religious and linguistic communities; (j)establish and maintain databases of cultural, religious and linguistic community organisations and institutions and experts on these communities; and (k) Bring any relevant matter to the attention of the appropriate authority or organ of state, and, where appropriate, make recommendations to such authority or organ of state in dealing with such a matter.

• Practices that are unusual but not harmful or against the law
She quoted Section 1 of the Constitution: The Republic of South Africa was one sovereign democratic state founded on the values of human dignity, the achievement of equality and the advancement of human rights and freedoms" and Section 10: "Everyone had inherent dignity and the right to have their dignity respected and protected: and the things the CRL Commission had seeing had been evidently violations of human dignity a right which was non-derogable and it could never be suspended as a right, in protection of freedom of religion" and Section 39: "When interpreting the Bill of Rights, a court, tribunal or forum - must promote the values that underlie an open and democratic society based on human dignity". Although the Commission agreed that citizens had a right to believe as they wished, but feeding people snakes, grass and petrol and other harmful substances; driving a car over them and spraying or pouring harmful substances over them degraded the value of a person’s human dignity. The Commission recommendations were aimed at having the human dignity of people respected and protected at all times.

Certain submissions had said that harmful or unethical practices had to be dealt with in terms of existing laws.  CRLC was saying if that were so, someone including FORSA, could have laid criminal charges against all the identified violations in the hearing report. However, as Prof Mkhize had explained, it would be difficult to lay charges due to ‘mind capture’. When one dealt with persons whose minds had been captured, one had to protect such individuals in spite of their consent to the abuse, since the laws would not allow one to lay charges against a pastor where the exploited would support and be witnesses for the pastor although they were abused by the very same pastor.

The CRLC remained convinced that interdicting every incident of commercialisation of religion and harmful religious and traditional practises would not be financially prudent as per austerity measures as one interdict could cost up to R500 000. If the CRLC were to interdict every pastor it had concluded was violating human dignity and abusing parishioners, currently there would be ten different interdicts. The CRLC had consistently maintained that matters of doctrine did not belong in courts but rather were matters to be debated within the religious sector itself.

One felt a sense of moral outrage at charlatans who were exploiting the vulnerable. However, unless the commercialisation of religion amounted to "harmful or unlawful activity" there was no legal justification for intervention. CRLC did not understand why pastors referred as charlatans and con artists by FORSA, had to be allowed to continue abusing people. It could not be that charlatans had to be allowed to run riot and exploit the vulnerable and poor. CRLC believed that a tight legal framework had to be in place to protect the poor.

Everyone agreed with the CRLC that there was a problem in communities and the CRLC was proposing a method to address the problem aggressively.

• Non-compliance or non-enforcement of existing laws  
CRLC had noted the gaps in the system and given recommendations to SAPS and Department of Home Affairs (DHA) as a lot of South African pastors had complained to the CRLC. SAPS had to be able to do something when someone laid a charge against a particular pastor accused of doing harmful or illegal things to his congregants. SAPS had said that it could not use what was provided in the criminal justice framework if the complainant is someone who had seen something on television but the actual victim was saying they were okay with the act performed on them. There currently was no law that provided for the registration of religious practitioners, their monitoring and their accountability. What happened in churches was unregulated and there was no accountability for it. If one was poor and unemployed; one became extremely vulnerable especially if one lived in a township, informal settlement, in villages and the inner cities.

CRLC was saying that the church had to be able to say that it did not want to hear about a peer in its sector misbehaving; moreover it was proposing to assist the church through proposing a legal framework which would assist the church to regulate its own.

Currently registering as an NPO, one registered as Thoko’s Church in Christ where Thoko had 500 churches in SA. To register Thoko needed only six people who were on the board of the NPO whereas there were another 400 plus people listed by Thoko whom only she knew; but the Department of Social Development (DSD) would not be able to tell someone else who those people were. DSD would only be able to say that Thoko’s Church in Christ had 500 churches legally registered with DSD with six board members. CRLC was proposing the establishment of a framework that would be able to track a pastor by name, identification document, address of his parish and in what community it was situated in. Main line churches had that. For example, the Methodist church had given the CRLC all the documents the Commission had required including all details of each reverend under the Methodist umbrella anywhere in the country and the church was already licensing its own reverends. Therefore the Commission was not asking the church to do something which was a novelty and had never been done before. 

The current laws were not designed for the current challenges facing the religious sector. Doctrinal matters could be handled by seniors within a particular doctrine and not by the courts as FORSA had suggested.

On the comment that where there was a lack of good governance the CRL Commission would function as a one stop shop for religious institutions and practitioners on issues affecting them, CRLC had recommended an umbrella body had to educate its affiliates and members in areas of good governance which was already happening, as SAUCIC, CLEFA and other umbrella organisations were doing. If CRLC were to be a one stop shop that meant that the Commission would have to take over those responsibilities which were already being carried out. It would affect the umbrella bodies and individual churches’ freedom of religion if the CRLC were to be a one stop shop as it would rule over everyone and had the potential to cause further complications.

On the comment that the CRLC solution was the broad based regulation of all religion in South Africa, Ms Mkhwanazi-Xaluva said the Commission had never even implied that religion had to be regulated but rather religious practitioners had to be regulated because religion was the doctrine. CRLC wanted the people that practised to be regulated as the Constitution in section 22 stated: "Every citizen has the right to choose their trade, occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law". CRLC wanted to ensure that religious leaders would be held accountable by their own peers whom they would have elected amongst themselves. CRLC still insisted that accountability could not be based on the freedom to choose whether to be held accountable or not.

On the comment that the Report had proposed that the CRLC Act be amended to establish an elaborate structure of committees who would be subject to the Commission which would be the final arbiter. This was something that the Commission had explained repeatedly to FORSA, saying that there were other laws that were enforceable for example labour laws. If a peer review committee came to the Commission wanting the removal of a particular pastor from the register; the Commission would need to know whether all processes had been followed as labour laws protected working people.

On the comment that the CRLC would be the final arbiter on whether laws had been followed during any hearings as the CRLC needed to minimize unnecessary legal challenges due to not following procedure. Ms Mkhwanazi-Xaluva said the Commission would be no final arbiter in any matter and misleading the public through extracting words and phrases was unpardonable because the paragraph below the final arbiter statement in the CRLC Hearing Report had stated that, whatever decision taken by the CRLC could be challenged at the ConCourt as it was the final arbiter. It was saddening that the term state capture had been interchanged with capture of religion as the matter of state capture was quite serious and likening those, as FORSA had done for media attention, was misrepresentation of facts.

A stakeholder interjected that it appeared that the sitting was about an engagement between CRLC and FORSA which was unfair as many submissions had been presented.

Ms Mkhwanazi-Xaluva replied that as the CRLC had earlier outlined, it would respond to the submissions received by the Committee. Most of the submissions submitted the previous day had mostly been what FORSA had submitted in its filing papers in its litigation against the CRLC, but the Commission had also covered other items raised the previous day and during this meeting. 

The Chairperson said he had allowed CRLC to make general statements about the submissions and not to respond to each as that would be done at a later stage during Committee engagement on submissions.

Ms Mkhwanazi-Xaluva referred to the comment that the CRLC proposal was a clear overreach of its legislative powers and prerogative as given by the Constitution. She explained the Commission had the additional powers and functions prescribed by national legislation.  The power to amend any legislation including the CRLC establishing Act was the prerogative of Parliament as the CRLC had delivered on its mandate to advise the Committee on the protection of the poor and vulnerable. The proposals the Commission had submitted were well within its powers to protect CRLC communities.

She referred to the comment that the peer review committees would be dependent and under the control of the CRL Commission. The Report had stated clearly that the peer review committees would refer and advise the CRL Commission on the resolutions the peer review committees have taken. The financial and administrative arrangements of any peer review committee would be determined by the Portfolio Committee when the legislation is drafted. If the Committee wanted an independent practice registry for religious practitioners and places of worship, the Commission would be fully in support of that. However; that would mean fully funding such a registry and giving it powers to monitor, research, investigate and educate and for such a registry to have a disciplinary code and give them powers to subpoena.  All these powers had already been given to the CRL Commission by section 185(2) of the Constitution. Therefore the proposed structure would not be changed except to remove the CRLC as the registry holder.

She referred to the comment that ultimate control of all religion would rest with the CRLC. Ms Mkhwanazi-Xaluva replied the CRLC had been consistent in that it would not be controlling any religion, dogma or doctrine, thus its recommendation that umbrella bodies would be empowered so that if there were appeals, these would go to the peer review committee. Doctrinal matters would be strictly for the umbrella bodies. The Methodist Church matter as heard by the ConCourt had set a precedent when the ConCourt had decided that matters of dogma and doctrine were not for it to determine although it was the highest court in the land. Umbrella bodies being evaluated on whether their doctrine and practices were acceptable would be a violation of freedom of religion.

On the comment that the CRLC proposal insisted that all religious practitioners and associated places of worship had to belong to an umbrella organisation, she noted that the association being compulsory was a violation of the right of freedom of association as one had the right to choose not to associate. Ms Mkhwanazi-Xaluva said freedom of association dealt with an individual choosing to associate with an umbrella organisation which similarly applied across all professions.  To have the choice to opt out of accountability and good governance had the potential to allow the charlatans to opt out of being regulated and would allow abuses to continue.

On whether the national fiscus had the budget to establish the structure as proposed by the CRL, she replied that the structure was based on the fact that many mainline churches already had umbrella organisations which were self funding such as the SACC. The Commission was saying the peer review committee would be funded by it for all review committee meetings, the rest in terms of monitoring, researching, educating, advising and lobbying were already functions of the Commission which were funded.

Mr X Ngwezi (IFP) interjected that he agreed that the CRLC response was to FORSA and he wondered whether the entire room was filled with FORSA affiliates or whether even FORSA was present in the room.          

The Chairperson said that FORSA was a non-governmental organisation which was an advocacy group of a particular formation within the religious sector but the Committee would engage the CRLC presentation.

Mr E Mthethwa (ANC) said that the Committee had to be cautious in limiting Mrs Mkhwanazi-Xaluva from responding to all the submissions. It was fair for her to be allowed to conclude as the Committee had allowed the religious sector to submit the previous day and during the morning session.

The Chairperson reiterated that the Committee would engage the CRL Commission after the presentation.

Mrs Mkhwanazi-Xaluva continued that regarding the allegation of ignoring submissions and alternative solutions proposed by the majority of the faith communities in SA. The hearing report had listed 15 issues which had been raised by various players in the religious sector. The peer review committee as a standalone had been a recommendation from the religious sector and the Commission had taken advice from the sector even on general matters.

If one looked at the back of the report majority of the 85 leaders that had responded to the invite by the CRLC had been leaders of religious institutions for example, the President of the South African catholic Bishops Conference (SACBC) had not been there as an individual; the head of the Methodist Church in Southern Africa had not been representing himself alone; the Chief Rabbi had not been representing himself therefore the majority that had been to the hearings had been people leading big organisations and formations.

The CRL Commission was already developing a code of ethics as had been raised in some of the submissions and the Commission had assigned a Commissioner who was evaluating international models and though the code was at the core there was the issue of the enforcement which was critical. The CRLC had planned a conference on the code of ethics once it reached a particular stage in development.

During the CRLC consultation with umbrella organisations the organisations had stated a few non-negotiable:
• The independence of the local church
• The protection of dogma
• The principle of freedom of religion as enshrined in the Constitution excluding those who were out to exploit the poor and vulnerable
• The acceptance that some churches would want to retain the right to license their own practitioners.
• Self representation and self articulation by religious formations and the matter of agency were all non-negotiable.
The CRLC had acknowledged all the above including keeping the religious community informed on the way forward in order to protect the principles which they had raised as the legislative process was unfolding.

Discussion
Mr Mileham said he was worried that only the Christian faith and the traditional religions though to a limited extent, had been heard over the two days. Nothing had been heard from the Muslim, Jewish, Hindu or Buddhist communities and any other religions which could or not be affected by the proposal; therefore he was proposing that the Committee think about another day where the Christian community could be excluded where all absent religions be accommodated.

He quoted a different portion from the same Vatican reference as Prof Mosoma that:  ‘the fact was that forms of Government still existed under which freedom of religious worship received constitutional recognition; the powers of Government were engaged in the effort to deter citizens from the profession of religion and to make life very difficult and dangerous for religious communities.

He said that Mrs Mkhwanazi-Xaluva had misled the Committee in the previous week where she had said the CRLC had the support of the SACC, CLEFA, SAUCIC, International Federation of Christian Churches (IFCC) the Zion Christian Church (ZCC) and the Great Commission.  The Committee had since found that some of the mentioned organisations were not in support of the hearing report. Therefore it was equally unpardonable for the CRLC to mislead the Committee. It was an offence in terms of the powers and privileges Act of Parliament section 17 (1) (c) & (d) to mislead a Committee of Parliament.

If amongst the religious fraternity there had been silence about the abuses as SAMIFRA had said why had SAMIFRA or any of the other presenters not made a noise about the exploitation of the vulnerable?

The CRLC could not constitutionally interdict anyone but it did have the power to refer a matter to a relevant authority. What complaints procedure had the CRLC implemented to establish procedures for different types of complaints to different authorities whether it was the SAHRC, SAPS or the Public Protector?

As soon as the CRLC asked places of worship to be registered or for financial statements to be submitted or how churches operated then the CRLC would be regulating the practise of religion and that was broader than regulation of religious practitioners; how did that then reconcile with the two ConCourt cases that specifically addressed the matter.

In S v Lawrence , S v Negal ; S v Solberg (CCT38/96, CCT39/96, CCT40/96) [1997] ZACC 11; 1997 (10) BCLR 1348; 1997 (4) SA 1176 (6 October 1997) Judge Chaskalson had written: “The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination”. What that meant was that if one chose to eat a snake, one had a right to make that one’s belief.

In Prince v President of the Law Society of the Cape of Good Hope (CCT36/00) [2002] ZACC 1; 2002 (2) SA 794; 2002 (3) BCLR 231 (25 January 2002) the verdict had been upheld when it had been found there that people were free to believe even if their beliefs were bizarre, illogical or irrational to others. If for example, Mr Mileham chose to eat grass as part of his religious belief, how would that be different from him choosing to eat the communion wafer as the body of the Christ?

He was concerned about umbrella bodies having authority over doctrine but what would happen if in the Jewish faith there was a splinter group which did not fall in line with the majority Jews in terms of doctrine. How did the CRLC propose a common dogma for Pentecostals, evangelists, Methodist and Catholics?   

SAMIFRA replied that it had confronted Pastor Lesego Daniel Mosuoe as leaders of the Christian faith where it condemned the feeding of grass to congregants. There was a complaint manual where handling of engagements with the public was specified but the CRLC had thrown it out and had chosen to go straight to summoning people. The manual spoke about there first needing to be a complaint, afterwards an invitation had to be sent out and when the person refused the invite based on the complaint at the very last stage could the CRLC summon someone.

It was discouraging and unfortunate that for the first time the SAMIFRA had to attend a Committee meeting in Parliament to be able to engage with the CRL. It was further unfortunate that the discussions were about people who were not in attendance and that the CRLC were promoting a blanket approach to deal with the abuses committed by individuals.

As for the presentation proposing that peers had to review and hold each other accountable but the CRLC establishing Act had provided that Commissioners had to be nominated from religious constituencies but the religious sector could not even hold Commissioners to account; how then were peers to hold each other accountable when the Commission was not accountable to its constituencies.

Rev Letlape agreed with Mr Mileham about the lack of representations from particular segments of the religious divide and whether the proposals were a fair conclusion even if the 85 people the CRLC had consulted had been heads of religious formations would that have encompassed  a proper conclusion regarding the Christian religious sector as a whole.

The Chairperson said that what he did not want was finger pointing between stakeholders and the Commission but rather the responses to be content that would move the process forward.

Dr Baloyi said possibly as stakeholders he was apologising that they could not come together to compile a response that would be progressive in terms of policy formulation regarding the hearing report.

He said that instead of excluding others in a future engagement on exploitation of the vulnerable rather the CRLC could allow all those affected and impacted by the issue under review to converge elsewhere so that whatever outcomes from that process could result, could be something that all practitioners of faith diverse as they were, could understand so that when it returned to Parliament it could be a sector response amicable to policy processes.

Ms Nadene Badenhorst, Legal Counsel, FORSA, said the FORSA defamation application against the Commission was sub judice. It had been evident that the Commission’s responses had been based on its interpretation of FORSA’s litigation and had failed to deal with the recommendations presented by FORSA in its submissions the previous day. It had been unfortunate that the CRLC had chosen to respond in the manner it had as the meetings were the CRLC opportunity to respond to the almost 40 organisations representing millions of people across denominations, churches and faith groupings whom had taken great time and expense over the two days to address the CRLC over their concerns regarding what the CRLC was proposing. Surely the CRLC were not suggesting that groupings such as the SA Council for Religious Rights and Freedoms (SACRRF), Evangelical Alliance of South Africa (TEASA), the catholic, Dutch reformed, and many other national and international organisations together with respected legal experts that had appeared before the Committee, who happened to share FORSAs concerns had such little understanding, insight, independence and authority as to simply parrot what they would have heard FORSA say somewhere or had read on a social network page.

FORSA did not feel the need to reiterate or defend what had been clearly heard by the Committee to be the consensus from the religious sector in SA.  FORSA remained committed to finding truly self regulatory solutions to the concerns legitimately identified by the CRLC and were appealing again to the Committee for the facilitation of a national consultative conference, where the religious Committee could engage each other and collectively find solutions.

Pastor Aaron Makili, President, GCMN, said that regarding the allegations that the Great Commission had been in support but had then withdrawn its support for the hearing report was because people were not like water; they did not flow in the same direction. He said within the Great Commission there were pastors that were not in favour of the hearing report but the Great Commission as a structure still supported the report if the proposal was attempting to solve the problem of the exploitation of the vulnerable.

Prof Pieter Coertzen, SACRRF, said that he was glad that the CRLC planned to facilitate a national consultative conference. All religions had to be accommodated without any exclusions and he was in support of Mr Mileham’s concern about what the CRLC planned to do about the differences between the Christian religions alone as the Constitution said that religions had a right to determine their own internal structures. Perhaps the biggest complaint from the Christian religion was that the proposal attempted to prescribe as single structure for all religions in SA.

Another stakeholder asked whether Prof Mosoma had ever been to the Basilica in Rome because as a tourist in the Vatican City, as soon as one disembarked from their transport one would be sold trinkets said to have been blessed or would be blessed by the Pope when he appeared and the visitors would then buy in a frenzy as they would want their souvenirs to be blessed. Therefore that was commercialisation of religion and he challenged the CRLC to detail what commercialisation really meant as even bibles were for sale.

Stakeholder number three said he had observed during the morning session of the Committee meeting that the CRLC had preferred to present after the submissions of persons in support of the CRLC would have presented. That destroyed the credibility of the CRLC to bring a rented crowd, additionally no matter how discursive and creative stakeholders were about the matters under review there were issues that were refusing to go away.  The process of consultation, and sampling had been flawed and people had been forced to come before the Commission without the affected communities being consulted.   

Stakeholder number four said the very human dignity the CRLC was purporting to be protecting had been selective in that it had chosen to summons leaders of faith based federations without protecting said leaders’ dignity. The issue of charlatans and con artists seemed to be a diversion mechanism seeing that the subject clearly had no place in the Christian religion. One affiliate of the All African Federation of Churches (AFFC) had been summoned by the CRLC though the Commission had received no complaints about said affiliate.

Stakeholder number five, said when speaking about regulating practitioners and taking the que from mainline churches, it had to be understood that practitioners were different within the churches, as at his church everyone preached. Was the proposal that all lay preachers needed to be licensed? Practitioners were allowed the right to not associate with any recognised formation.

The report could not be final rather the CRLC had to be allowed to facilitate extensive consultations as his church was prepared to work with the CRLC as it was unhappy with the exploitation of the poor.

Rev Letlape said registration had to be clarified as their churches were registered whist there were others who were against registration. When registering addresses were obviously included but there were other that questioned why addresses were needed when registering an NPO with SARS an address had to be included so that if an abuse was reported the SAPS could then be able to trace a person. All rights had limitations and Christian leaders had to take guidance from the scriptures because the bible clearly stated in Galatians chapter 5 verse 1 that: ‘for freedom Christ has set us free but we must not use our liberty as an opportunity for the flesh’. Considering all that a Rastafarian attorney called Mr Prince had approached the Cape Town High Court to ask that Rastafarian be allowed to smoke Ganja in public as that was part of his religion. The High court had ruled that was not in the best interest of the public but Mr Prince had appealed to up to the ConCourt where the verdict was upheld, therefore all rights even religious had limitations. 

Who did the CRLC propose to draft the code of ethics apart from the Commissioner who was researching codes of ethics; would churches be represented at said drafting of the code? Who would be enforcing the code?

Dr Crompton said that Bishop Andile Mabhedi of the Methodist church refuted and was not in support of the hearing report but the CRLC had claimed Methodist support of its proposals.

Stakeholder number six said the CRLC submission seemed to be a Stalingrad approach in the sense that it had slightly shifted its stance versus what was already in the hearing report. Was there CRLC not prepared to reconsider its hearing report considering the legal submissions made over the two days regarding the constitutionality of its proposals?    

Mr Mthethwa said possibly the way the engagement was going was not assisting in that it boiled down to finger pointing again. His concern was why those that did not want registration fear it so much? What was the alternative or how would self-regulation work by the church?

Prof Christof Sauer, International Institute of Religious Freedom (IIRF), said the emphasis had always been that the majority of practitioners were doing things right with only particular individuals exploiting the vulnerable. He said he had been disappointed to find that the recommendations from the religious sector had only been listed in the CRLC report.

The CRL Commission had to be careful of putting human dignity against freedom of religion as freedom of religion was based on human dignity and freedom of belief or religion was not allowed to abuse human dignity. In the attempt to curb abuses on human dignity the CRLC had to be cautious about overly restricting freedom of religion of those that had not exploited anyone which was a delicate balance.  

When looking at permissible limitations on freedom of religion or belief which were very narrowly defined in International law Prof Sauer recommended that the harm principle be evaluated. He suggested that John Stuart Mill be read as he had already written on liberty in 1859 or a doctoral thesis in 2008 by Lori Beaman on 'Defining harm: religious freedom and the limits of the law'. It had to be distinguishable what the State and the religious sector could co respectively because there were clear limits and distinctions for both.

It had to be investigated whether religious practitioners could be simply equated with professionals and career choices with all the consequences that followed as there were religious groups that gave their pastors stipends for living expenses and not as working professionals.

The CRLC had to ensure that what would be resolved would be within the International Human rights framework and in detailed interpretations developed within the United Nations, SA had to develop its responses within such a framework and Prof Sauer had noted no cognizance of such in the response he had heard from the CRL Commission.

Archbishop Nchene Tsekedi, President, All African Federation of Churches (AAFC), said that Africans worshipped God spiritual not religiously which would make it impossible for AFFC practitioners to be regulated because even Jesus Christ constantly clashed with the Pharisees over the fact that his work was spiritual and not religious.

A member of AAFC from Khayelitsha said that considering the recent femicide and killings of children which had grown exponentially in the area as chronicled in print media. If the proposed blanket regulation of Christian religion could be compared to simply attacking all young males in Khayelitsha without finding out whom the culprits were would be very wrong. What had being repeatedly raised was that print media reported incidences of exploitation were few and SA had laws in place to deal with those abuses on human dignity. Why had those laws not been enforced?

He agreed with Mr Mileham that there had not been enough consultation regarding all religions and that the proposed law seemed to be targeting the Christian religion and would not affect Hinduism and other religions. The AAFC supported the facilitation of the national consultative forum.

Adv Teresa Conradie, Attorney, said she had been involved in religious liberty internationally for the past two decades. And she had been on record that she believed the hearing report had been a bona fide attempt by the CRLC to resolve a real problem. In 1998/99 the Russian Parliament had passed laws that had made it difficult for churches to register and a Christian lawyer at the time had then written a manual to help churches to register. Multiple copies had of the manual had helped many churches to register such that even the Russian Government had asked said Christian lawyer for assistance. Everything had been going well until 2015 when another religious law was passed which said that all places of worship and religious activities had to be registered facilities, which had immediately closed down all house churches and prayer groups. Therefore in Russia it currently was illegal to have cell groups in people’s homes and that was the danger if the issues around regulation were not handled cautiously.

She was repeating her proposal about there needing to be a proper investigation into existing laws and that legislation had to be developed and expanded to see whether there would be enough space for prosecution by the prosecutorial authorities. Secondly the country had to see what was happening in the rest of the African continent regarding regulation of religion. The religious sector had to support all efforts of education by the CRL Commission in resolving the problem.

Mr C Matsepe (DA) said the issue of an umbrella body given the diverse doctrines of the various churches and whether there would be any consensus around the issue of self correction, peer review and a code of ethics   remained a very big question for him. The religious organisations had to consult each other and reach consensus because the submissions were too diverse before the Committee decided.

Mr J Dube (ANC) said he was troubled by not knowing the number of followers each umbrella body or individual practitioner which had presented over the two days, represented because it would be unfair for the Committee to consider and decide based on minority view.

Mr Ngwezi said from what he had heard the church seemed to be divided over the CRLC proposal. There seemed to be Christian religious practitioners which simply did not welcome regulation by the state believing that Christian religion was older than the State. At some point Ms Mkhwanazi-Xaluva had suggested that registration could not end with the leader of the church but had to include the followers as well. It could be argued that members of political parties did not register with the Independent Electoral Commission (IEC) but only the political party with some leadership individual was registered therefore why would the church need to register its followers when the address of the facility and the leader would be registered. Mr Ngwezi was appealing that it would be better to allow religious practitioners an opportunity to suggest solutions so that whatever the Committee decided could pass constitutional muster.   

Stakeholder number seven said that he wondered who would be holding those that would be in the peer review councils and Committees accountable if they went against the scriptures or had questionable moral ethics. It was problematic to liken a calling to a person choosing a particular career because the two were not interchangeable because a calling did not change as a career did. A career was something one did for one benefit whereas a calling was for the benefit of others and God.

From those that had been long time religious practitioners and why they had had problems with hearing report was because the bible had something to say about some of the recommendations which had been made over the two days. Indeed the scriptures in Corinthians chapter 6 verse 1: ‘if any of you has a dispute with another, do you dare to take it before the ungodly for judgement instead of before the Lord’s people’. He said the new living translation of the same scripture read: ‘when one of you has a dispute with another believer, how dare you file a lawsuit and ask a secular court to decide the matter instead of taking it to other believers’. He was in support of the national consultative conference 

Mr A Masondo (ANC) suggested that the process of the matter had to be outlined and that all in attendance had to acknowledge that a foundation had been laid down and that what was needed was building further. He suggested that there b a high level summary of matters that had been raised over the two days for the Committee and to consider the matter of the national consultative conference.

The Christian Science church said that possibly the challenge regarding the CRLC proposals was that the proposed solution attempted to apply a secular model to a religious or spiritual problem.

Ms Karen Armstrong said during research for her Charter of Compassion she had found that throughout the ages in spiritual teachings there had always been a commandment which was: ‘do unto others as you would have them do unto you’. Perhaps that could be the starting point for everyone in attendance to consider, as all things evil had to be obliterated and not regulated.

Ms Mkhwanazi-Xaluva said as Pastor Makili had clarified when the CRLC met with the President of an organisation it was likely to conclude it had consulted. There were organisations under the SACC and a bishop further down the hierarchy of organisation under the SACC felt otherwise from the umbrella body did not mean the CRLC had come to Parliament deliberately to mislead the Committee. All meetings the CRLC had conducted had been recorded and therefore there was no claim it had made to the Committee which was not backed up by evidence. The CRLC had met at secretary general levels with TEASA, IFCC and the SACC who had agreed with the framework the Commission had presented. 

The CRLC was reiterating that the Christian religious sector had to delineate where doctrine started and ended, because the Commission had maintained that if the umbrella bodies told the Commission that eating grass was in the bible that was acceptable however, if they said that within their doctrines there was no grass eating that is where the CRLC would come in.

There had been many procedures that the Commission used for complaints but the hearing report had been based on an investigative study.

The CRLC was proposing that the religious formations had to agree to a code of ethics but the Commission would bring a draft template the religious community as a base from which to work from. The CRLC had indeed committed to a national conference on the code of ethics; as to what it would have compiled by the date of the conference and would then allow the sector to edit, add and remove as it felt.   

The problem facing the CRLC was that when it wanted to consult the religious sector, it had to rely on umbrella organisations whereas the Commission had heard that there probably were about more than 140 000 churches in SA 80% of which had not been registered with the DSD. It became difficult to invite people to a consultation when there was no database. Therefore the basic reason that those who were lamenting not being given an opportunity to comment on the proposal, was that CRLC had relied on mainstream churches and that problem would persist even if the CRLC would facilitate a national consultative conference, because the same faces probably would attend.

There had to be a legal way of enforcing the code of ethics and Parliament would give direction on that.   

The Commission had consulted the Hindu structures which were in support of the proposal which would be sent to the Committee. But certainly if another head of a Hindu religious leader of a particular temple emerged saying he was against what the representative of Hindus nationally had committed to; it could not be for the CRLC to be chasing after all Hindus to get support. There had to be a stage where the leadership of a particular religious faith had to communicate with the membership of that religious faith. Overall the CRLC agreed with the sentiment of getting other religions on board into the conversation.

Regarding who would discipline the peer review committee or if one was the head of an umbrella formation, part of the framework being proposed had to include a disciplinary code which would limit the actions of members on the peer review committee or council, but that would be developed by the council or the umbrella body. Umbrella bodies were already formed according to either doctrine or particular similarities.

Prof Mosoma said that most submissions over the two days came from people that were already in umbrella bodies and the CRLC had at no point suggested that it would mix Pentecostals with Methodist under one umbrella body as they were grouped accordingly already. The umbrella bodies were envisaged to be responsible for the management, code of conduct, welfare of the institution, discipline of their members and affiliates in the proposed framework by the CRL.

Practitioners were reverends, minister, pastors and eventually there needed to be order, civility, and respect and co existence amongst religious institutions.     

Mr Edward Mafadza, CRL Commission CEO, said that the issue of summons was provided for in the CRLC establishing Act and it had been used and before the summons had been issued the CRLC had called a meeting in 2015 with religious more than once, to explain why summons had been used. The CRLC had piloted a study in about five provinces assisted by the SACC in provinces using SACC venues however; the attendance had been very low, thus summoning had been used to force people to attend.

On the methodology, CRLC had requested the University of South Africa (UNISA) to design a methodology for the investigative study which had been explained to participants. Questioning the methodology then meant the credibility of UNISA had to be questioned as well. In research, sampling was allowed as being representative.

Mr Mileham said he did not dispute that the CRLC could summons but rather the action had been heavy handed. He was in possession of a communiqué from TEASA’s secretary general which had concluded by saying that the answer to the current challenges in the Christian religious sector were not in new legislation but more in-depth and broader consultations.  He was in possession of communiqué from the Great Commission Chairperson and his deputy and though there could be differences of opinion between leaders within that structure the letter he had, had been read as a submission earlier in the day during the meeting. It was disingenuous for the CRLC to say the SACC supported the proposal as Methodists, Anglicans and Catholics had strongly opposed the CRLC proposals.

The Chairperson interjected that Mr Mileham knew that the CRLC accounted to the Committee. The CRLC would sit with the Committee at a later date. He pleaded that Mr Mileham finish his input.

Mr Mileham said he had not been answered regarding the ConCourt rulings where in fact the court in the Prince case had found that a person’s right to a belief was sacred no matter how bizarre or illogical the belief was.  He wanted to know how the CRLC reconciled its proposals with that interpretation from the ConCourt on freedom of religion.

The Chairperson said that the CRLC could respond to that at the next meeting with the Committee. The Chairperson thanked the academics and lawyers together with the religious fraternity for participating in the meetings over the two days.