Preaching forgiveness or regulating the unforgivable: benefits and shortcomings of proposed regulatory mechanisms for religious leaders in South Africa

Attieh, Yvonne Mary Rose
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South African society is characterised by variable but firm religious associations. The important status of religion within the broad spectrum of human rights is both reflected and upheld by the constitutional dispensation, which protects religious freedoms. Notwithstanding the acknowledged status of religion within South Africa, there have been ongoing and prolific instances of malpractice within the religious sector which have highlighted and questioned its inherent value within society. The most significant investigation and proposal was put forward by the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL), which sought to understand the current challenges within the religious sector and respond to same. The CRL published a proposed regulatory model, which generated an outcry from the religious community. This resulted in the CRL publishing a revised model, to respond to the public comments. Religious institutions were still dissatisfied. They formed their own committee to work on solutions that they believed would be effective, the most prominent being the proposed implementation of a uniform Code of Conduct with specific provisions to regulate the conduct of religious leaders. In response, the CRL drafted a Code of Conduct for religious institutions, in which it set out values and general principles for religious leaders to follow. This dissertation has sought to investigate the points of disjuncture within the religious sector which have “allowed” malpractices to prevail. The perspective taken has been to analyse the current regulatory framework in combatting religious malpractices and to assess if and to what extent, any of the proposed alternates are constitutionally, legally, and logistically feasible within South Africa’s constitutional setting. Empirical research, in the form of interviews, has been used to ascertain the internal regulatory processes within religious denominations and to understand the machinations of the model proposed by the CRL. Desktop research has been primarily used to explore the formal regulatory processes, which broadly comprise legislation and case law, regulating malpractices, and to consider the alternates to the current regulatory framework. Through the exploration of the current and alternate regulatory frameworks, the dissertation has highlighted that there are benefits and shortcomings to both. In summation, the current regulatory framework allows people to exercise their religious freedoms and religious institutions to develop their own regulations. However, parts of some legislation are unclear and haphazard, the self-regulatory nature of the framework enables religious leaders to bypass their legal obligations, and there is a lack of public accessibility to information on the regulatory framework. The proposed alternate initiated by the CRL is beneficial in that it has exposed the problems within the religious sector and initiated the process of reform. However, parts of it are unclear and can be subject to misinterpretation. It presents several administrative challenges, has little support from the religious community, and the CRL and its role does not appear to be widely known amongst the religious community. While acknowledging that these recommendations are by no means the final and conclusive answer to the contentious and multifaceted problem faced by the religious sector, the dissertation suggests that a standalone piece of legislation, with the Codes of Conduct drafted by religious institutions and the CRL as its basis, could assist in reducing the incidents of malpractice. Inter alia, the legislation could include existing regulations, obligations and penalties for contravening regulations as contained in various pieces of legislation, all religious denominations having to draw up their own written constitutions and book of rules, a provision for it to be compulsory to notify the CRL when forming a religious institution, and the documentation of general principles in relation to malpractices that have applicability to all religious denominations. In addition to the proposed ‘new’ legislation, existing legislation, which is vague ought to be amended, and the CRL ought to take active steps to make itself and its role better known in religious communities.
A research report submitted in partial fulfilment of the requirements for the degree of Master of Laws to the Faculty of Commerce, Law and Management, School of Law, University of the Witwatersrand, Johannesburg, 2022