The Battle Over Religious Freedom in South Africa: Why State Regulation of Churches is Unconstitutional

Introduction

South Africa’s Constitution guarantees every individual and religious community the right to freely practice their faith. This freedom is one of the cornerstones of our democracy. But in recent years, debates have intensified around whether the state should regulate churches and religious bodies.

In 2019, Dr. Radley Henrico, a law lecturer at the University of the Western Cape, published a groundbreaking article in the Potchefstroom Electronic Law Journal (PER/PELJ) arguing that state regulation of religion would be unconstitutional and a direct threat to our democracy.

Why This Debate Matters

Freedom of religion is not about whether one’s beliefs are “reasonable” or “rational.” Courts have affirmed that even beliefs that seem “bizarre or illogical” to outsiders are protected. What matters is whether those beliefs are lived out in a way that harms others or violates civil and criminal law.

This means:

If a pastor commits fraud, abuses congregants, or breaks tax laws, existing laws can and should be used.

There is no constitutional basis for creating new regulatory bodies to license or monitor churches.

The CRL Commission’s Proposals

In response to headline-grabbing scandals such as the “prophet of doom” spraying insecticide on congregants, or pastors making members eat grass, snakes, or drink petrol, the CRL Rights Commission made strong recommendations to Parliament. These included:

Establishing a Peer Review Council of religious leaders under the oversight of the CRL.

Requiring churches to register and obtain licenses in order to operate.

Giving the CRL expanded powers to intervene in religious matters.

The Commission justified this by pointing to the abuse of people’s belief systems and the commercialization of religion.

Why These Proposals Are Problematic:

Henrico highlights several critical flaws:

Flawed Research

• The CRL based its recommendations on hearings with just 85 religious leaders in a country where over 90% of citizens identify with a religion.

• Such a narrow study cannot justify sweeping national regulation.

Violation of Constitutional Freedom

• Licensing churches would make the state the arbiter of who is a legitimate pastor and which church can exist.

• This amounts to unconstitutional interference in private belief.

Redundancy

• Existing criminal, civil, tax, and nonprofit laws already provide mechanisms to address abuses.

For example, the “prophet of doom” was successfully prosecuted under agricultural and assault laws—without any new church regulations.

Dangerous Precedent

• Handing the state power over churches risks sliding towards a system where government decides what faith looks like, undermining South Africa’s religiously neutral democracy.

The Role of The Courts

Henrico emphasizes that disputes over religion should be handled by courts, not government councils.

• Courts are independent and able to weigh rights carefully.

• They can decide when a practice crosses the line into abuse without infringing on the right to believe.

• Allowing the executive arm of government to regulate churches would be a violation of the separation of powers and would dangerously politicize religion.

Conclusion

South Africa’s religious freedom has historically not been policed by the state. Ironically, at the height of our democratic freedom, there are attempts to introduce restrictions that were never present before.

Henrico warns that any attempt to license or regulate churches through umbrella councils or commissions would suppress religious freedom and betray the Constitution. Abuses should be dealt with through existing laws, not by creating new state mechanisms to control faith.

Bottom line: Religious freedom in South Africa must remain free from state regulation. Protecting citizens from abuse is vital, but this can and must be done without allowing government to decide who may preach, worship, or establish a church.