By Adv Nadene Badenhorst, FOR SA Legal Counsel
On Sunday, 15 March 2020 President Ramaphosa declared a “national state of disaster” in South Africa, and announced various preventative measures to try and stem the spreading of Covid-19 (otherwise known as “the Corona virus”). In particular, the President appealed to South Africans to limit contact between persons, and groups of persons. To this end, the Presidency placed a prohibition on meetings of more than 100 people. Where less than a 100 people are present at an event, organisers are to put stringent measures in place to minimise physical contact. Restrictions have also been placed on both international and national travel. (For a summary of the preventative measures announced by the President, see https://www.dailymaverick.co.za/article/2020-03-15-president-ramaphosas-covid-19-address-in-23-bullet-points/
On Wednesday, 18 March 2020 further, government published certain Regulations in the Government Gazette, with a view to preventing an escalation of the disaster and/or minimising the effects thereof. Importantly, the Regulations give the Police certain enforcement powers, including dispersing gatherings of more than 100 people, and arresting persons who refuse to comply with the Regulations. The Regulations also state that schools and “partial care facilities” (which would include children’s church / youth gatherings, if there are more than 6 children / persons under the age of 18 present) must be closed from 18 March to 15 April 2020. (The Regulations, which are effective immediately, are available at https://www.gov.za/sites/default/files/gcis_document/202003/43107gon318.pdf)
It is obvious that these measures have a direct impact on religious organisations, and the ability of members to meet together to worship, pray and collectively exercise their faith. For this reason, the President will shortly be meeting with representatives from the religious sector to discuss the impact of the announcements on them – particularly also in light of upcoming Easter services and pilgrimages. (So, for example, the annual Easter pilgrimage of the Zion Christian Church (ZCC) is known to attract over a million people from inside and inside the country. The ZCC has since notified its members not to come to Moria until further notice).
From a religious freedom point of view, it is important to remember that no right in the Bill of Rights - including the right to freedom of religion (s 15), freedom of association (s 18), and the rights of cultural, religious and linguistic communities (s 31) - is absolute. In terms of s 36 of the Constitution, any fundamental right may reasonably and justifiably be limited by a law of general application. The applicable law in this case is the Disaster Management Act, 2002 (and any other laws that may potentially be passed by Parliament over the next while in order to enforce preventative measures against the spread of the Corona virus).
In this regard also, we point out that a “national state of disaster” in terms of the Act is different to the declaration of a “state of emergency” (for a maximum period of 21 days), as contemplated by s 37 of the Constitution and which calls for a “public emergency” to be present. From a rights point of view, the difference between a “state of disaster” and a “state of emergency” is the following: under the former, fundamental rights can be limited provided they meet certain criteria; under the latter, fundamental rights can be derogated (suspended) by legislation and potentially allows for more authoritarian and therefore invasive measures to be taken. (While it is of course possible that the current situation could develop into a “public emergency”, we are not there yet and hopefully current measures will be sufficient to avoid us getting there!)
FOR SA commends the President for acting swiftly and decisively to try curb the spreading of Covid-19. We encourage religious organisations, with equal swiftness and seriousness, to take the necessary action in their own contexts to comply with the President’s directives and to best protect their own members and the population at large against this deadly virus. In particular, religious organisations are encouraged to:
[author] [author_info]Nadene is an Advocate, and practised as a member of the Cape Bar for a number of years. She holds both a BA LLB degree from the University of Stellenbosch and a LLM degree in International Human Rights Law (cum laude) from the University of Essex. She currently serves as a Next Generation Board Member on the Advocates Africa Board, representing Southern Africa.[/author_info] [/author]
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Freedom of Religion South Africa (FOR SA) is dedicated to protecting and preserving the freedoms and rights that the South African Constitution has granted to the faith community. If you have found this helpful, please consider supporting the work of FOR SA to protect our constitutional right to enjoy the freedom of religion by:
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FOR SA currently has a support base of religious leaders and individuals representing +/- 6 million people across a broad spectrum of churches, organisations, denominations and faith groups in South Africa.
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