Freedom of Religion SA on CRL Rights Commission recommendations

Meeting report

The Chairperson noted an apology from the Deputy Minister. She said she would not accept the absence of ministers, and in their absence, the deputy minister should be present.

Committee Programme
The Chairperson said that the purpose of the meeting was the review and adoption of the committee programme. Members had been requested to submit their proposals for inclusion in the programme. There has been a proposal for the Committee to include a monthly oversight to municipalities. According to discussions with the Chief Whip, this will be done once a month from Thursday to Saturday, to cover all the municipalities.

The Committee agreed to this proposal.

Ms H Mkhaliphi (EFF) proposed the inclusion of a discussion with the Department of Water and Sanitation, on the water crises in the country.

Mr K Ceza (EFF) said that the Committee should hold failed mayors accountable as failure to do so immunizes them from prosecution. He mentioned the dilapidated infrastructure of the Emakhazeni municipality and mismanagement of funds by the mayor. The JS Moroka municipality is another case of a failed mayor.

He said that the Committee is being one-sided on its choice of engagement with religions. All religious groups in the country must be acknowledged and invited, such as traditional healers.

Mr M Groenewald (FF+) proposed that each member conduct oversight on the core functions in their respective provinces, such as assessing service delivery. To do this, Members would each receive a letter acknowledging the Committee's decision to do individual oversight. Members should then report back to the Committee.

The Chairperson agreed with Mr Groenewald and added that this would allow the Committee to identify distressed municipalities, and prepare a profile for each stating what issues were found there. Another option in line with budget constraints is to invite the managers of distressed municipalities to Parliament. She mentioned that ideally every municipality should have been visited by the next government elections. The Chairperson requested that members identify distressed municipalities to prioritise in each province. Members will have two weeks to compile the final list of municipalities.

Ms P Xaba-Ntshaba (ANC) requested the Committee investigate the municipalities along the N3 in KwaZulu-Natal as there are still incomplete bridges and potholes since 2011. The uMsinga local municipality has incomplete infrastructure, water delivery challenges and fruitless expenditure. She mentioned uMzinyathi and Uthukela district municipality, Johannesburg, Mangaung in Free State, Emalahleni and Emfuleni local municipality.
 
Ms M Tlou (ANC) proposed Tshwane metro in Gauteng. She mentioned the poor infrastructure, electricity service delivery and poor living conditions in Winterveld as an example. The RDP houses built in the area were occupied by foreigners. The main reasons for failed municipalities in South Africa are poor administration and unauthorised and fruitless expenditure. The education system, specifically the compulsory subject pairing, was not helping students in the area. The Committee should engage the Minister of Education on the issue.

The Chairperson responded that Ms Tlou can lobby for a better subject pairing system as a Member of Parliament, as it is not a Committee issue.

Ms Tlou requested the Committee invite university researchers and governance experts to give input on the District Model being used, which she said is not working. In Tshwane the DA has failed dismally with service delivery, as rubbish has not been collected regularly, yet people claim it is the ANC.

The Chairperson agreed with the proposal to invite experts. The details will be discussed in future strategic meetings.

Ms Mkhaliphi asked for the eThekwini metro, Msunduzi and uMhlathuze municipalities to be added to the list.

Mr B Luthuli (IFP) asked for the Matjhabeng municipality to be added due to water delivery challenges and labour protests where engines were broken and pipelines were closed. He also mentioned the Umzumbe, Umuziwabantu and Umdoni local municipalities.

The Chairperson knew of the acts of sabotage by workers in the area, which resulted in water pipes being deliberately closed.

Mr Ceza proposed the addition of the Msukaligwa local municipality. There was a case where land with a water reservoir was purchased by an individual for R431 000. It was then sold back to the municipality at R800 000. This disadvantages the municipality by keeping it in debt. The Committee needs to find out how such a sale was enabled. He asked for Emakhazeni, Mbombela, Lekwa, JS Moroka, Maluti-a-Phofung, and KwaDukuza municipalities to be listed as priorities as well.

The Chairperson read out a petition from the residents of Makhanda local municipality, explaining how they suffer the effects of poor governance and maladministration by the local government. The petition requested that the Makhanda municipal leadership and the Eastern Cape MEC for Cooperative Governance and Traditional Affairs, be called in to account to the Committee.

The Committee agreed that the Makhanda and JS Moroka municipality leadership will be called in within the next two weeks.

Mr G Mpumza (ANC) asked for the Marikana municipal leadership to be called in. The challenge in that area is the poor infrastructure that needs refurbishing, not poor governance. He asked for the Enoch Mgijima, Matatiele, Chris Hani and Amathole municipalities to be included in the list.

Mr Groenewald asked for the Mamusa, JB Marks, Rustenburg, Mahikeng and Ratlou municipalities to be prioritised, however, he believes all the municipalities in the North West must be looked at.

Ms G Opperman (DA) asked for Karoo Hoogland, Joe Morolong, Phokwane, Nama Khoi and Sol Plaatje municipalities to be prioritised in the Northern Cape.

The Chairperson said that Ugu District and Merafong City municipalities should be added. In Limpopo, Musina, Mogalakwane and Capricorn District municipalities must be prioritised. For the provinces that are not represented, such as the Western Cape, the Committee will research which municipalities are dysfunctional. These will be included in the report from the Department within two weeks.

Mr Thando Ntlemeza from the COGTA Ministry mentioned that the problem areas in the Western Cape are George, Beaufort West, Cederberg, Central Karoo District and Oudtshoorn.

The Chairperson remarked on the regulation of religious practices that Parliament has not taken a definite stance to regulate religious practices. The Committee is aware the occurrences on media are isolated cases. Cultural and religious affairs requires multiple stakeholders. She emphasized the need to engage with the South African Religious Forum. She highlighted that Parliament does not have the time or the resources to arrange another sit-in procedure.

Mr Ceza remarked on the role of religious fraternities and churches saying they should play the role of helping communities through recreational facilities and providing empowering truth, instead of becoming instruments of propaganda. Government must also play a role in encouraging its people to be internally reflective.

The Committee adopted the programme

Freedom of Religion South Africa (FOR SA) on CRL Rights Commission recommendations
FOR SA Executive Director, Mr Michael Swain, said FOR SA is a non-profit, legal advocacy organisation which protects the constitutional right to religious freedom. It is faith and doctrinally neutral.

The CRL Rights Commission process began in August 2015, with a seven-month long investigation of religious leaders and organisations in the country. It was controversial and resulted in 85 subpoenas being issued. In October 2016, the CRL released a preliminary report entitled Commercialisation of Religion and Abuse of People’s Belief Systems, which recommends that the CRL, a state institution, regulate religious practitioners and organisations by using a peer review mechanism and licensing. Several religious organisations made submissions to the CRL to oppose its recommendations, but they were overlooked.

In June 2017, the Cooperative Governance and Traditional Affairs (CoGTA) Portfolio Committee hearings were held but not communicated in time and so the attendance was not representative of the country’s religious communities. In October, CoGTA Portfolio Committee held additional hearings where leaders unanimously recognised unacceptable abuses by a minority under the guise of religious freedom and noted that these abuses amounted to criminal acts that should be dealt with by the State. They rejected the CRL Commission recommendations to regulate religion.

The 2018 CoGTA Portfolio Committee report rejected the CRL Commission  recommendations and instead proposed a national religious leaders’ consultation, the development of a code of conduct and a gap analysis of relevant laws. The Evangelical Association of South Africa (TEASA) organised a meeting with 70+ senior religious leaders in Johannesburg, to draft a set of responsibilities with the religious rights in the Freedom Charter. The Religious Leaders Summit took place in February 2019 and resolved that it was unacceptable for the CRL Commission to dictate to the Church how to regulate its affairs and decided on a consultation process with leaders of all levels instead. The CRL Commission chairperson disregarded the outcomes of the Summit.

In December 2019, the new CoGTA Portfolio Committee met with the CRL Commission to present its report and gain information on the historic issues. The Committee agreed to look further into the issue. Last month, FOR SA met with the CRL Commission to discuss the concerns of the faith community on the proposed controversial Peer Review mechanism. FOR SA presented alternative solutions requiring no additional legislation.

Ms Daniela Ellerbeck, FOR SA Attorney and Parliamentary Liaison Officer, explained why the CRL Commission  recommendations were unnecessary. This is because the country's law is well developed and has various solutions to the abuse cases that are criminal acts, which are detailed in the FOR SA document. Section 9 of the Constitution states that all are equal before the law. There is a common misconception that it is not a crime if the victim is a voluntary participant. Rape and sex trafficking crimes, as found in the Timothy Omotoso case, are punishable with a minimum sentence of 15 years. If someone consents because they believe something bad will happen to them if they do not, then it is not consent. Pastors who fed live snakes to the congregation were in breach of the Animal Protection Act. The 23 congregants who went on a violent rampage were arrested for public violence. Money laundering, as seen in the Prophet Bushiri case, is a criminal act and so is the administering of poison like Doom, petrol and Ratex. Pastors that make claims and promises in their advertisements, fall under the Consumer Protection Act. When money is involved, it becomes a contractual relationship. If a pastor advertises that their Vaseline merchandise will heal HIV, then they are in breach of the Consumer Protection Act. Each of the abuse cases has an existing legal remedy under the law.

Ms Nadine Badenhorst, FOR SA Advocate and Legal Counsel, said that the CRL Rights Commission  recommendations were unconstitutional because they equate to state regulation of religion. This infringes on the constitutional rights to freedom of religion and freedom of association. It limits the exercise of religious rights, which opposes the CRL Rights Commission  Act of 2002, in which it has to “promote and protect … the rights of religious communities”. The proposed CRL Rights Commission  regulation is unworkable. The peer review mechanism requires a single Peer Review Committee (per religion) to be representative of all the different denominations. For example, Christianity has tens of thousands of dominations. It is unimaginable for a committee to adequately represent all the denominations. The costs involved in setting up and running these regulatory structures over religious practices would be high. She asked if it was a responsible cost to add to the state fiscus. Self-regulation is viable. There were five alternative solutions to the issues in the Report, which can be found in slides 35-40 of the presentation. Solution 5 was highlighted which stated that the CRL Rights Commission's power to register religious practitioners, organisations and institutions, should be supported and implemented. She emphasized the difference between the regulation of religions and registration of religions. The 2002 Act gives the CRL Commission  the power to 5(1)(e) "establish and maintain databases of …. religious organisations and institutions and experts". The other solutions were to support the establishment of ministerial “Networks & Fraternals" voluntarily; the development of a “Code of Conduct” by and for the religious community; improve the CRL Rights Commission's  capacity to investigate possible “abuses” and recommend appropriate remedial action; encourage practical training for religious practitioners to help develop their “calling”.

Discussion
The Chairperson thanked FORSA for being taken through its proposals. She noted that the CRL Rights Commission  did not do sufficient consultation and that there has been a general disagreement over its recommendations. The Committee observed that the denominations have been self-regulated so far. It agrees that the CRL Commission  should not be the body regulating the religious sector, however, the Committee expressed concern over who should discipline the bodies in the religious sector. Currently, religious organisations voluntarily join a body. The success of the prosecutions of the criminal acts by pastors has been noted as well. Arising from the National Consultative Conference (NCC), it was recommended that there should be a charter of self-regulation and code of conduct to be recognised by the legislature. Bodies in the religious sector that abuse the code of conduct must be penalised.

The Chairperson raised these concerns on observed realities in the religious sector and the presentation:
- There was no mention of the vacuums in the criminal law system
- How will the issue of brainwashed citizens be dealt with?
- How will structure-less churches be dealt with? For instance, the Doom church has no board or branches, therefore, falls under no specific body and can engage in illegal acts. The reality is some pastors have come into the country to commercialise religious practice. Both sides of the coin need to be assessed.

Ms Mkhaliphi mentioned that this process cannot have a rushed solution due to its complex nature. It has underlying economic issues, such as poverty and unemployment influencing people to seek miracles. She asked if FOR SA has a branch or liaison in Soweto or Limpopo, to which Mr Swaine replied that they do not. This process requires all stakeholders to be involved in reaching a solution. The CRL Commission's  work cannot automatically be dismissed as wrong, it is a process of consolidation over time.

Ms Xaba-Ntshaba requested FOR SA to record all the notorious pastors in their presentation, such as the Pastor Chris and also the Bishop TB Joshua case. She asked FOR SA to also mention the church groups that hold services in dangerous areas. Such as the church groups that wear white clothing and hold services in rivers, near the road or under bridges. She supported what was mentioned in slides 13 and 39 of the presentation.

Ms Tlou asked FOR SA to assist the CRL Commission  in capturing the data of the religious organisations they are currently assisting.

Mr Mpumza said that the abuses are the tip of the iceberg. There have been underlying absurdities concealed under the guise of religious practices, such as cult groups. How does the organisation distinguish between the behaviour of the religion and the behaviour of individual? What is the measure? He does not view the CRL Commission  recommendation as state regulation of religion but an attempt to establish a critical balance as there is a general limitation in the application of rights.

The Chairperson said they will engage further. FOR SA can write to the Committee on matters that concern them before the upcoming Indaba religious forum in March.

Committee business
The Chairperson asked the Committee to propose potential destinations for a study tour. The Committee must keep the learning objective in mind and consider countries with successful government systems and diversity. For instance, the United States of America (USA) has 50 states with diverse cultures.

The Committee agreed on Sweden, the USA and Canada, which was proposed by Mr Groenewald, as potential study tour destinations. The Committee will invite the Swedish Embassy to present on areas of cooperation.

The Chairperson mentioned that the Committee researcher will attend the South African Local Government Association (SALGA) summit on climate change and asset management on 3 - 6 March. Members are unable to attend due to meetings on the agenda.

She announced that applications will be open for Committees to contribute to disaster management. Mr Mpumza proposed inviting Canada to assist with the Committee's oversight on asset management and disaster management.

The Chairperson noted an invitation from the Chinese Consul and requested Members confirm availability.

The Chairperson raised local government and holding local councillors accountable for poor service quality in their areas. The Committee agreed to invite independent experts to discuss the state of local governance in the country, and get advice on how to confront the issues.

The Committee had received an invitation from the Department of Traditional Affairs (DTA). In the previous Indaba, DTA referred to a report that Members did not have. The Chairperson requested the report but was told by the Acting Director-General that "it was not for external consumption".

The Committee requested that the DTA Report be sent by Friday 21 February.

The Committee agreed that they need a briefing from COGTA on how it will implement policy matters on the new Traditional and Khoi-San Leadership Act and the Traditional Leadership and Governance Framework Amendment Act signed by the President in November 2019, as well as the time frame for promulgation. The briefing must include what they seek to improve. This will be scheduled for the second term.

The Chairperson said the Committee needs to urgently meet with the Khoisan community, which has long been requesting a meeting. She requested the Committee to think about how it can enhance the work of the CRL Rights Commission on religious, cultural and traditional affairs. She said that the Committee cannot confirm a date for the strategic planning session until it receives approval.

Ms Mkhaliphi mentioned that the strategic planning session programme should allow ample time for the engagement with the Deputy Directors-General (DDGs) of CoGTA. The programme should not have too many components to avoid rushed experiences like in the past.

Closing remarks
The Chairperson, in closing, urged members to go through the report submitted to Parliament, especially for the Colloquium with the religious sector on 17 and 18 March. She remarked that the meeting was well-attended.

The meeting was adjourned.