Assessing possibilities of paternalism masquerading as church regulation in South Africa

Abstract

This dissertation contributes to explanations about the status of religious freedom in South Africa after the proposal for religious regulation. A proposal coming from a series of allegations about religious abuses that necessitate the government’s intervention. This proposal for religious regulation raised concerns about the possible limitation of freedom of religion enshrined in the constitution. Through document analysis, the dissertation critically reviews whether the proposed regulation in any way implies the violation of the basic right to religion. And whether the proposed regulation is a masquerade of paternalism by the state as critics opine. Theoretical debates about what paternalism, and the extent to which that protection takes away legitimate individual freedom to determine one’s life prospects is essential. These debates about the constitutional limitation on freedom include a cross-national comparison that clarifies the genuine exercise of power by the state for the sake of law and order. The constitutional limitation clause also helps interested groups to hold the state in check when exercising its power, thus limiting the abuse of power. The limitation clause, therefore, helps evaluate the constitutionality of religious regulation in South Africa. The dissertation reflects on how the proposal for religious regulation is inconsistent with the constitutional provisions. Religious regulation presents a threat to the freedom of religion if implemented in the shape and form that the Commission for the Promotion and a Promotion of the Rights of Cultural, Religious and Linguistic Communities (CRL) proposed. Therefore, this dissertation supports the view that there is no need for unique religious regulatory instruments other than existing laws that already affect the operations of Non-Governmental Organisations (NGOs) and criminal law. Instead, the CRL should fulfil its mandate for public education and research in religious practices and thereby promote religious freedom effectively. The CRL ought to implement broad engagement with affected communities to generate a code of conduct among the mechanisms to help reduce religious abuses. There has to be a mutually agreed upon route to strengthen religious regulation.