When crime is cloaked as religion

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“How NPA protected ‘rapist’ Shepherd Bushiri” was the headline of a piece in the 24 February to 2 March edition of this publication.  Relying on an investigation by the Hawks, Khaya Koko reported that the self-proclaimed prophet had been shielded by National Prosecuting Authority (NPA) advocates. 

In another edition (31 March to 5 April  2023), under the heading “NPA ‘delayed justice’ in Bushiri case”, Koko wrote that state prosecutors had allegedly stalled Bushiri’s arrest for rape nine days before he mysteriously escaped to Malawi.

Prosecutors reportedly explained that they would not charge him with rape, inter alia because it would look as if the NPA was harassing him. 

While it is well-known that many rapists go unpunished in our country, rape suspects are seldom lucky enough to avoid prosecution because of the NPA’s fear of being perceived to harass upright, honest, god-fearing members of the public.

Other media reported on calls for the government to “come clean” on Bushiri’s case. The charges he faced included human trafficking, money laundering and fraud involving about R100 million.

Of course, regular bungling by South African law enforcement agencies hardly requires explanations based on the miraculous and super-natural. 

But, the Constitution guarantees equality before the law. Does the impression not exist that anyone claiming to speak for God is often treated more leniently than others? 

“Pastors”, “prophets” and “shepherds” have done a range of bizarre harmful things. Yet, we are warned to tread lightly when it comes to religion. After all, one is “standing on holy ground”. 

The Constitution protects freedom of religion, expression and assembly.  But nowhere does it say that the common law crimes of rape, assault and fraud must yield. Is it the voice of God, or the fear of wrath, that intimidates; or the smell of money that intoxicates us? 

In the experience of some — including me — people who claim to be super-religious often lie in courts, with ease and a serene vision of eternal life in their eyes, after invoking the help of God in their oath.  

After a glass of wine at a lunch with Québec judges of appeal in Montreal, the president of the court — a charming older French-speaking lady — once told me that when she was appointed to the bench a senior colleague advised her: when a witness takes the oath, hand on the Bible, look carefully if the hand truly touches it. If not, false evidence was bound to follow.

In court I learnt to be neither lulled nor bullied into gullibility when an estate agent testified that, next to a bunch of beautiful flowers, on a small round table inside the entrance to her office, the Bible was always open at the text for the day. 

Then the bulk sale of untruths, with discount, commenced. Outside court, a builder, who was a pastor continuously admonishing his bricklayers for smoking, stole bricks we had bought. He moved them to another site, after the trusting owner had paid him for them.When I informed her, she offered to pay me — and thus twice for the bricks — rather than to cause trouble.

Why do the super-religious often lie so effortlessly? Three possible reasons come to mind.

The first is that if one believes in things beyond any realm of possibility, and furthermore knows that others hold the same or similar beliefs, you come to assume that untruths can be true, that the difference between these does not matter. Not only your Good Book tells you so; former US president Donald Trump continuously unleashes it on members of his cult.  

Second, “prosperity faith” and “seed faith” preachers teach that if you sacrifice, you will be blessed. When former chief justice Mogoeng Mogoeng was appointed, against many expectations, he reportedly told a congregation that after weeks of fasting, God had made him the third most powerful man in South Africa. 

Fasting is fairly harmless. But evangelists promise desperate people that if they give their last R100 to help pay for the ministry’s new aircraft, they will be blessed with great wealth.

Sometimes a new BMW is part of the deal. If the blessing does not materialise, some decide to assist with the Almighty’s heavy workload. So, they acquire the BMW or money by other means. God owes it to them anyway and wouldn’t mind.

The third possible reason the super-religious lie easily, is that they are not truly religious in the first place. Religion is their business plan. Gullible people, trusting those who speak holy words, are soft targets. 

Indeed, one can be “religious” by having grown up in a staunchly faithful household, where the parents acquired wealth by selling miracles. Then you take over the family business and continue the profitable practice of creatively interpreting any godly command to act honestly. The belief that one is blessed for your good work is then as useful as it is to corrupt rulers and officials.

So, back to the law and the NPA allegedly having assisted Bushiri to walk away with millions. Do (especially self-proclaimed) pastors, prophets and shepherds not commit fraud when they promise miracles for money? Why are they never charged, before they commit worse crimes? 

Fraud features widely in the law. It is also a criminal offence, consisting of a misrepresentation, intentionally made with the aim to gain a financial or other advantage, causing prejudice to, or potentially prejudicing others. Unlawful conduct plus criminal intent are required. The intent includes knowledge of the unlawfulness of the act. All the above must be proven beyond reasonable doubt.

At an event where dramatic lighting, emotive loud music and clever choreography liberate many in a large crowd from the awareness of their harsh reality, an eloquent charismatic preacher tells an ecstatic audience that sickness will be healed and financial problems solved if a seed of faith is sowed. 

If you empty your pocket from all you possess, God appreciates it even more. 

Your most urgent need will be met. An athlete dreams of winning a medal at the upcoming Olympics. It could bring money for her family. She has just seen her ankle fracture on an X-ray, but is promised complete healing in a week’s time. The exact wording is recorded.

Unsurprisingly, nothing materialises. Did the preacher not commit fraud? He acted through his statement. It was a misrepresentation, thus unlawful. The misrepresentation was linked to the money. Does it differ from the salesman clinching a deal by knowingly misrepresenting the mileage on a used car? It might be worse, because a car buyer may well get advice, whereas the dazed believer trusts God’s messenger. 

A popular defence of miracle merchants is that the victim’s weak faith is to blame. This should fail in a court.

But intent is a subjective state of mind. Could it be proven that the preacher knew the promise was false, or is his version that he believed it to be real reasonably possibly true? He will argue that many such miracles have happened and probably mention examples. Above all, he will quote from his Holy Book.

Few prosecutors would have the energy, resources and guts to examine the evidence meticulously, cross-examine aggressively and present statistics to the contrary. Perhaps it could hardly be expected of a prosecuting authority, widely criticised for letting murderers, rapists and state capturers off the hook. 

I wish they would consider it though. Is the common sense of a reasonable person not enough? Can a court not take judicial notice of the impossibility, based on overwhelming human experience? Surely the prosecution is not required to prove that the sun does not shine in Bloemfontein at 2am.

Or is the statement by the famous South African industrialist, Anton Rupert, that someone who does not believe in miracles is not a realist, enough to create eternal reasonable doubt?

We may well be too soft on crime cloaked as religion. One must be careful though. After a second glass of wine, the French-Canadian judge told me that a witness in her court once repeatedly stated that God had spoken to him. 

After having heard this several times, she asked what God had said. He duly answered: “God said life is shit.” Such wisdom could only come from the highest source.  

Johann van der Westhuizen, who assisted in drafting South Africa’s Constitution, is a retired justice of the constitutional court.

The views expressed are those of the author and do not necessarily reflect the official policy or position of the Mail & Guardian.