FOR SA no longer appealing judgment on religious gatherings

After much prayerful consideration, Freedom of Religion South Africa (FOR SA) has decided not to proceed with its appeal against the judgment handed down by the Johannesburg High Court in its case against the Minister of Cooperative Governance and Traditional Affairs (COGTA).

The judgment was delivered in December 2021 and dismissed FOR SA’s challenge to Government’s complete ban on religious gatherings imposed under the COVID-19 Regulations in late 2020.

The High Court judgment

In its decision, the Court found that because the regulations imposing the ban on religious gatherings were no longer in force, the matter had become moot, meaning purely academic, and that it was therefore not in the interests of justice to determine the case.

The Court further held that the COVID-19 Regulations constituted executive action, rather than administrative action, and were therefore not subject to judicial review under the Promotion of Administrative Justice Act, 2000 (PAJA). In practical terms, this meant the Court found that it lacked authority to review the regulations promulgated by the Minister or to require the Minister to provide reasons for those regulations.

The Court also held that it was not the role of the judiciary to determine whether religious workers should be classified as essential workers for the purposes of the COVID-19 Regulations.

FOR SA, together with the South African National Christian Forum, Solidariteit Helpende Hand, and the Muslim Lawyers Association, subsequently applied for and were granted leave to appeal the judgment to the Supreme Court of Appeal (SCA).

A victory already achieved

In a very real sense, a key victory in this matter had already been achieved before the High Court hearing even took place. On the day before the urgent hearing in January 2021, the COGTA Minister announced that the complete ban on religious gatherings would be lifted.

This announcement, made effectively on the steps of the Court, amounted to a tacit concession that Government had acted unlawfully and unconstitutionally by banning religious gatherings while permitting comparable activities at casinos, cinemas, and restaurants to continue.

FOR SA, which represented religious leaders and organisations speaking on behalf of approximately 18.5 million people across a broad spectrum of churches and faith communities, was thereafter included in some consultations with the President regarding the impact of COVID-19 regulations on the religious sector.

There can be little doubt that sustained engagement and resistance by FOR SA and other religious organisations during the State of National Disaster played a significant role in holding Government accountable to its constitutional obligations to respect religious freedom (section 15 of the Constitution) and to treat the religious sector equally with other sectors of society (section 9).

Why FOR SA will not pursue the appeal

After extensive consultation with external legal counsel and careful deliberation by the FOR SA Board, FOR SA has concluded that the risk of appealing the judgment outweighs the potential benefit from a religious freedom perspective.

The High Court resolved the matter solely on the grounds of mootness and PAJA, without engaging with the substantive religious freedom arguments placed before it. As a result, the judgment does not currently set a negative legal precedent on religious freedom itself. While this does not excuse Government’s lack of accountability or meaningful consultation during the pandemic, it does limit the immediate damage from a precedent-setting perspective.

Although FOR SA believes the Court was wrong in finding the matter moot, particularly given that the State of National Disaster was still in force at the time of judgment, it is now clear that the disaster declaration is close to being lifted. This significantly increases the risk that the SCA would confirm the finding of mootness, rendering any appeal unsuccessful.

Similarly, while FOR SA remains of the view that the COVID-19 Regulations should have been subject to PAJA and that the Minister had a duty to consult affected parties, there is no guarantee that an appeal court would go so far as to require consultation with FOR SA or any specific religious body. That determination would likely be left to ministerial discretion.

On the issue of religious workers being classified as essential workers, there is likewise no certainty that an appeal court would overturn the High Court’s decision. Even if a court accepted the principle, it would be reluctant to define the criteria for such recognition.

Cost, delay, and risk of adverse precedent

The cost-benefit analysis also weighs heavily. Simply transcribing the High Court record would cost an estimated R200,000. Even a successful appeal to the SCA would almost certainly be followed by a State appeal to the Constitutional Court, entailing further substantial costs and delays.

By the time the matter could finally be heard, it is likely that the State of National Disaster would be long past, further diminishing the practical value of continued litigation.

Crucially, while FOR SA believes a strong case can be made on religious freedom grounds, there is no guarantee that the SCA or Constitutional Court would agree. A negative ruling at that level could establish a harmful precedent for religious freedom in South Africa, with consequences far beyond this case.

Other issues that will proceed on appeal

That said, there are important non-religious freedom issues arising from the judgment that warrant appellate scrutiny. Chief among these is the High Court’s finding that the COVID-19 Regulations constitute executive action and are therefore immune from review under PAJA. This conclusion directly contradicts an earlier binding decision of the SCA.

FOR SA is grateful that Solidariteit Helpende Hand, one of the original applicants, will be pursuing this issue on appeal, and we wish them and the other parties every success as the matter continues.

Gratitude and continued commitment

FOR SA extends its sincere thanks to everyone who supported this case through prayer, financial contributions, and encouragement. We are deeply grateful to the exceptional external legal team, including Adv Adrian Botha SC, Adv Reg Willis, Adv Richard Crompton, and attorney Madelein Botha, who represented FOR SA without expectation of personal compensation.

We also acknowledge the tireless work of FOR SA’s Legal Counsel, Adv Nadene Badenhorst, who has consistently served the faith communities of South Africa with dedication and integrity.

FOR SA remains steadfastly committed to defending religious freedom and standing for faith and freedom wherever they are threatened, whether through government policy, legislation before Parliament, or cases brought before the courts.