Voice In The Desert Productions

• General compliance with the law
• Recognition of clergy as marriage officers
• Tax exemption
• Fundraising
• Protecting a denominational name

1. General compliance with the law
Often churches believe that they are required to register with the government. This is not the case. Churches were required to register in the past. Some churches may still have certificates of registration issued in terms of these old laws. Today, our constitution protects each individual’s freedom of religion, belief, and association. Any group of people may gather together, worship, and practice their faith without informing the government or seeking its permission. However, a church may still choose to apply to one or more government agencies in order to be eligible for the specific benefits indicated below.
2. Recognition of clergy as marriage officers
The state does not regulate religious marriage ceremonies. However, if a marriage is to be recognised by the state, it must conform to certain rules and must be performed by a licensed marriage officer. A church that wishes to have its clergy licensed as marriage officers must first apply to the Department of Home Affairs on behalf of the applicant(s). Thereafter, individual pastors will be licensed upon successful completion of an examination administered by the Department.

To apply, a church must write a letter to the Department with the names and identity numbers of the individuals who wish to become marriage officers. The letter should also identify the Home Affairs office nearest to each applicant where she or he will sit the examination. A church that has not previously had marriage officers appointed should also include a copy of its constitution.

Department of Home Affairs
0800 601 190 (within RSA)
+2711 461 9252 (abroad)
csc@dha.gov.za
3. Tax exemption
Until 2001, religious organisations were explicitly exempted from income tax. In 2001, a tax system came into effect. This offers tax exemption to a generic category of “Public Benefit Organisations” (PBOs). In order to qualify as a PBO, an organisation must:

• Be a trust, an association or a Section 21 company;
• Pursue only approved public benefit activities (the list of which includes religious activities) on a non-profit basis and primarily within South Africa;
• Be of a “public character”;
• Submit to the Commissioner of Revenue a copy of the constitution, or other written instrument under which the organisation has been established and which meets the requirements of section 30 of the Income Tax Act.;
• Register as an non-profit organisation (NPO) in terms of the Non-Profit Organisations Act, 1997 (unless the Commissioner of Revenue waives this requirement);
• Comply with any reporting requirements set by the Commissioner of Revenue;
• Not pay “excessive” remuneration to any employee, office bearer or member; and
• Stay within limitations on business activities.

Religious organisations who are (or would have been) tax exempt under the old provision for “religious, charitable and educational institutions of a public character” Please contact SARS with regards to this. To apply, an organisation should submit to the South African Revenue Service (SARS):

• a letter of undertaking (Form EI 2, available from SARS) indicating their intention to comply with the new exemption requirements;
• an application (Form EI 1, available from SARS); and
• supporting documentation — including the organisation’s constitution or other founding document and most recent financial statement — as indicated in the application form.

Organisations that are approved as tax-exempt PBOs will also be exempt from most other taxes, including donations tax, transfer and estate duties, stamp duty, and the skills development levy. Note, however, that this does not include property rates. (Churches are currently exempt from property rates, but this is likely to change once new legislation is enacted to regulate rates.)
For more information on registering as a tax-exempt PBO, see Churches and Taxation in Democratic South Africa, published by the SACC Parliamentary Office.
Forms EI 1 and 2 are available from SARS offices or from the SARS web site (see the “Public Benefit Organisations” page in the “Income Tax” section).

SARS
0800 007 277 (within RSA)
+2711 602 2093 (abroad)

4. Fundraising
Organisations are no longer required to register with the government or obtain a fundraising number in order to raise funds. However, if you register with the Department of Social Development, you can get a certificate confirming that you are a Non-Profit Organisation.

In order to register, your constitution and financial practices must comply with the rules and standards specified in the Non-Profit Organisations Act (Act 71 of 1997). This includes a duty to report certain information to the Department on an annual basis. (See further sections 12, 17, and 18 of the Act for details of the responsibilities of a registered organisations.)

Some people feel that registering gives churches and para-church organisations additional credibility by reassuring potential donors that they adhere to responsible financial policies and have accountable structures. Others argue that there are few benefits to registration.
If you wish to register, contact your local Department of Welfare and Population Development office and ask for a registration form or write to:

Directorate for Nonprofit Organisations
Department of Social Development
Private Bag X901
PRETORIA
0001
The Department can also provide you with a model constitution that includes language consistent with the registration requirements.
For more information on registering as a nonprofit organisation, call the Directorate for Nonprofit Organisations on (012) 312 7500. Forms and information are also available from the Department’s website.

5. Protecting a denominational name
A church may see registration as a way of protecting its name from being used or misused by others. For example, if conflict within a church prompts some members to breakaway, one or both groups may want to establish an exclusive right to continue to use the church’s name.

However, there is no way to preclude such disputes through registration. Churches should try to resolve such disputes internally or seek assistance in mediating the conflict. As a last resort, a church may take legal action to protect its right to the use of its name. Depending on the situation, this might involve obtaining an interdict or restraining order against the other party to prevent them from using the church’s name or obtaining a declaratory order as to the right to use a name.

In cases where a church’s name has been used in connection with fraudulent activities, the law governing fraud would apply. Churches facing these concerns are advised to seek legal advice specific to their circumstances.