Despite assurances, legislated “self-regulation” is state control by another name

Written by: FOR SA
Article source: Supplied

Freedom of Religion South Africa (FOR SA) followed the launch of the CRL Rights Commission’s Section 22 Committee with keen interest. As a legal advocacy organisation mandated to uphold the constitutional right to freedom of religion, we welcome constructive steps to promote safety, accountability and healing within faith communities. We also recognise the CRL’s important constitutional role and share its concern about abuses perpetrated by some religious leaders. These harms must be exposed and prosecuted to the full extent of the law, and victims must be supported and protected. We agree that people of faith should be able to worship in places that are safe and accountable. We support a robust culture of transparency, responsibility and empathy within the religious sector. On these principles, there is much common ground.

Where we differ is on how to achieve these outcomes. FOR SA fully supports true self-regulation within the religious sector. We believe that existing laws, properly enforced, combined with education and sector-led initiatives, can address misconduct without compromising constitutional freedoms. The CRL says religious practitioners can be regulated like any other profession, but there are wide-ranging theological viewpoints within the Christian faith. The Constitutional Court has ruled that even if a belief is “bizarre, irrational or illogical”, it is protected by the Constitution. It is therefore impossible to find a set of criteria or an agreed-upon base of knowledge, unlike in professions such as law, medicine, and accounting. Similarly, criminal law already applies to everyone equally; there is no such thing as a “spiritual crime”. However, if a religious leader abuses a position of trust, that can and should weigh heavily at sentencing.

We therefore note with concern references to the need for legislation to enable “enforcement”. However well-intended, regulation backed by legislation is, by definition, state regulation. When the CRL Chair talks of the Section 22 Committee “going to Parliament”, it is clear that, ultimately, Parliament makes legislation; the Government implements and enforces it; and the courts adjudicate it. These are the three branches of the state: legislative, executive, and judicial. Once legislation governs the internal life of religious communities, even if described in terms of “self-regulation”, the effective result is state control of religion. From a constitutional perspective, this is unacceptable because it infringes upon the right to freedom of religion and the collective rights of religious communities to determine their doctrine, governance, and practices without state interference.

We acknowledge the Committee’s assurances that there are no firm proposals currently on the table, and that it will operate independently, consult broadly, and exclude no one. We urge the Committee to follow through and uphold these commitments in both letter and spirit by considering all public comments and concerns impartially, and avoiding preconceived ideas or predetermined outcomes.

We also note references to the need for a “charter” and “code of conduct”. FOR SA emphasises that the voluntary South African Charter of Religious Rights and Freedoms, and an accompanying Code of Conduct, already exist. These were both developed by and for the faith communities of South Africa through extensive sector consultation. The CRL is also a signatory to the Religious Freedom Charter. We recommend that these valuable voluntary instruments be built upon, rather than creating a legislative framework. This would strengthen accountability without crossing the constitutional line into state regulation.

In FOR SA’s view, South Africa’s challenge is not a lack of laws but the inadequate enforcement of the comprehensive set of laws that already protect against fraud, assault, sexual offences, financial crimes, child abuse, and other crimes that may be committed. This, together with the need for ongoing awareness and education within religious communities about their legal obligations and best practices, is an integral part of the solution to the problems the CRL has identified within the religious sector.

Finally, we highlight concerns already raised within the sector regarding the Committee’s composition and the transparency of its selection process. In the interest of openness and transparency, we urge the CRL to clarify this, as it would help foster trust and enhance the quality of public participation.

FOR SA will continue to endeavour to engage constructively with the CRL and the Section 22 Committee, seeking clarification on the Committee’s terms of reference, and keeping the religious sector informed about opportunities to participate in the Committee’s public consultations if they so choose. Our goal is simple and unwavering: a South Africa where every person remains free to celebrate, speak about and live out their faith, within the bounds of the Constitution and without state control of religion.

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Date published: 06/10/2025
Feature image: Image for illustrative purposes only. Artwork adapted from www.freepik.com

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