OP-ED: A Consultation Must Listen First
A Consultation Must Listen First
By Michael Swain, Executive Director, Freedom of Religion South Africa (FOR SA)
In recent months, across three provinces, many ordinary Christians did something the Constitution invites them to do. They turned up to a public hearing and said what they thought. The CRL Rights Commission's (CRL) Section 22 Committee for the Christian Sector (the Section 22 Committee) has held consultations in KwaZulu-Natal, the Eastern Cape and the Western Cape on a proposed "self-regulatory framework" for the church, with further hearings to come in Gauteng and beyond. In each province, a broad cross-section of the Christian community took part during multiple days of consultations. In each province, many, and in some, a clear majority, opposed the proposals.
That should be the story. The more pressing question is whether Parliament will hear it accurately.
South African law does not treat public participation as a formality. When the State consults, it must do so meaningfully. People must have a real opportunity to be heard, and what they say must genuinely inform the ultimate decision or report. A process that goes through the motions when the outcome is already settled does not meet that standard. According to many who attended, the Section 22 hearings fell short in ways that should concern anyone who cares about how the State engages its citizens.
Consider how the time was used. In Cape Town, where an estimated 250 people took part over several days, at every meeting, the Committee spent close to two hours presenting its framework through slides and video before members of the public were typically allowed five to ten minutes each to respond. The Committee's own materials describe the goal of engaging churches as "sector buy-in and endorsement". When the organisers speak for hours, the public is rationed to minutes, and the stated aim is endorsement, the exercise starts to look less like listening and more like persuasion towards a pre-determined outcome.
Access was a further problem. In Durban, people who had registered were reportedly refused entry on the second day and told the venue was full, while those inside described a room seating around 200 that held only about 44. In the Eastern Cape, a scheduled session was cancelled at short notice, and pastors took their concerns to the Premier. More generally, information about how to register to attend the hearings has been hard to find, split across two websites, with venues confirmed only shortly before the events. These are participants' own accounts. They also run counter to an open and welcoming consultation.
Most troubling of all was an apparent attempt to manage what the public could say about a public process. At the Cape Town hearings, the member chairing the session announced a "rule of the house": anyone intending to publish a statement, comment, or caption about the proceedings had to submit it to the Committee first, failing which there could be "repercussions". Despite being challenged as an unconstitutional restraint on free expression, it was not expressly withdrawn. In the same exchange, the Committee member also stated that this was not Parliament but a Section 22 Committee running a public participation process.
That concession matters. A body conducting a public consultation cannot dictate what the public may say about it, still less threaten consequences for speaking freely. The right to comment on the conduct of the State sits close to the heart of the constitutional protection of expression and other democratic rights. A consultation that seeks to constrain commentary about itself has misunderstood its own purpose.
The Committee also showed a pattern of prejudging those who opposed the proposals. After the Cape Town proceedings were completed – where the vast majority of submissions rejected the proposals presented by the Section 22 Committee – a member of the Committee publicly claimed that participants had come with "scripts" written by an advocacy group, that anyone who disagreed with the majority had been "bullied", and that the hearings were full of "misinformation".
In fact, the material complained of was a FOR SA information pack of legitimate and reasonable legal and constitutional questions that people were free to use, adapt or ignore – no different in principle from the Committee's own lengthy presentation. On more than one occasion, Committee members suggested that a submission would carry less weight precisely because it aligned with FOR SA's position. All of this sits awkwardly against the assurance, given at the outset, that "every comment will be recorded, considered and incorporated". To treat thoughtful people who took the trouble to attend as incapable of forming their own views is both demeaning and inaccurate.
That said, it is important to recognise that none of the concerns that initiated this process are illegitimate. Abuse of vulnerable people in religious settings is real, and it must be met with the full force of the existing law. The point is not whether accountability matters. It plainly does. In response, the faith community has already developed its own Charter of Religious Rights and Freedoms and a corresponding Code of Conduct, precisely to address these concerns from within. Both have been submitted to Parliament and the CRL. The question has always been how best to achieve accountability, and whether a new system of State-backed regulation can be justified when less restrictive means to achieve accountability already exist. That is the test the Constitution sets, and it is the debate the consultation was meant to enable.
Which brings us to the real risk. A consultation is only as honest as the report it produces. Where members of a committee have, before the process is finished, alluded to or described opposition misleading, disruptive, scripted, bullied or misinformed, reduced it to the view of a single organisation, and signalled that submissions will be weighed according to who else holds them, there is a reasonable apprehension that the strong opposition expressed across three provinces could be minimised, or recast as the work of a few advocacy groups, by the time it reaches Parliament. That apprehension is sharpened by concerns others have placed on record, including the Committee's own former chairperson Professor Musa Xulu, about how the draft framework was finalised, and the on-going litigation challenging the lawfulness of the Committee's establishment and its mandate.
The remedy is not complicated, and it need not be adversarial. Parliament's Portfolio Committee on Cooperative Governance and Traditional Affairs (COGTA PC) should test whatever report it receives against the primary record: the attendance registers, the full set of written and oral submissions, and the recordings the Committee itself made. It should ask for the actual numbers for and against in each province, and ensure participants can confirm their own submissions directly, so no view is filtered out by the body whose proposals are being questioned. It also needs to take into account the far greater number of online submissions made to the Section 22 Committee, the vast majority of which reject the “legislative framework” that it is proposing. On 4 August 2026, the COGTA PC wisely held the question of legislation open. That caution should hold until the integrity of the process can be verified.
Consultation is not a courtesy the State extends to its citizens. It is a constitutional duty and discipline it owes them. A process that appears to struggle to listen or resist being questioned weakens the trust on which its own conclusions depend. The surest way to protect that trust now is to let the record speak for itself.
