JUDGMENT RESERVED IN COURT CASE CHALLENGING THE BAN ON RELIGIOUS GATHERINGS

Judgment reserved in FOR SA’s challenge to the ban on religious gatherings

Judgment has been reserved in FOR SA’s court case against Government, challenging the complete ban on religious gatherings during December 2020 and January 2021 under the COVID-19 Lockdown Regulations.

At the time, religious gatherings were entirely prohibited, while other gatherings at casinos, cinemas, restaurants, gyms and similar venues were allowed to continue. FOR SA argued that this amounted to unfair discrimination against the religious community and a violation of the constitutional right to religious freedom (section 15 of the Constitution).

This right includes the right of religious people to gather in person, together with other believers, to collectively exercise their faith.

Hearing before the Johannesburg High Court

FOR SA’s case was heard together with similar applications brought by the South African National Christian Forum (SANCF), Solidariteit Helpende Hand, and the Muslim Lawyers Association (MLA).

The matter was heard in a virtual hearing before the Johannesburg High Court from Monday, 22 November to Wednesday, 24 November 2021.

Judge Vally, who heard the case, indicated that judgment would be attended to as soon as possible and expressed the intention to deliver it before the end of term in mid-December 2021. While it is always difficult to predict the outcome, FOR SA is confident that a strong and well-founded case was presented and that the law supports our position.

We are deeply grateful for the outstanding legal team who dedicated enormous time and expertise to presenting this case on behalf of the millions of South Africans who believe that gathering together in person is an essential part of their faith.

Why this case matters

This case will set an important legal precedent concerning the reasons for which, and the extent to which, Government may interfere with constitutionally protected rights. This is particularly significant in light of the fourth wave of the COVID pandemic and the real possibility that Government could once again restrict or ban religious gatherings.

You can watch Adv Adrian Botha SC present FOR SA’s arguments to the Johannesburg High Court on why the ban on religious gatherings was unconstitutional. You can also watch FOR SA’s reply to the State’s arguments, presented by Adv Richard Crompton and Adv Reg Willis.

Arguments made before the Court

1. Mootness

The first issue argued before the Court, and one that occupied a significant portion of the hearing, was the question of mootness.

Government, represented by Adv Rusty Mogagabe SC, argued that because there was no longer a ban on religious gatherings at the time of the hearing, there was no longer a live issue before the Court. On this basis, Government submitted that the matter had become moot or purely academic and should not be decided.

FOR SA and the other applicants argued that the matter is not moot. As long as the risk of further pandemic waves remains and the five-stage regulatory framework continues to exist, there is a real possibility that religious gatherings could again be banned. This concern is heightened by the fact that the Minister of Cooperative Governance and Traditional Affairs (COGTA) has never stated that she would refrain from imposing a similar ban in future.

The Disaster Management Act excludes meaningful parliamentary supervision, and the approach taken by the COGTA Minister risks excluding judicial scrutiny as well, leaving the executive with an unfettered discretion.

FOR SA also pointed out that foreign courts have repeatedly rejected similar mootness arguments in COVID-related cases, particularly where fundamental human rights are at stake. In those cases, courts found it to be in the interests of justice to decide the issues.

If the Court were to accept Government’s mootness argument, the case would end there, without the Court considering any of the substantive constitutional issues.

2. The regulations are unconstitutional

FOR SA and the other applicants argued that the ban on religious gatherings violated several constitutional rights, including the right to freedom of religion in section 15 of the Constitution.

This right includes the right to gather in person with other believers in order to collectively exercise one’s faith. FOR SA relied on foreign case law, including decisions of the United States Supreme Court and the Scottish Supreme Court, which have recognised that online or remote worship is not the same as, and cannot replace, in-person religious gatherings.

While many churches and religious organisations adopted live-streaming during lockdown, millions of people in South Africa do not have access to the necessary infrastructure to participate in online worship. As a result, the ban completely prevented them from exercising their constitutionally protected religious rights.

FOR SA further argued that allowing secular gatherings to continue while banning religious gatherings amounted to unfair discrimination against the religious community, in violation of section 9 of the Constitution.

Although the COGTA Minister claimed that religious gatherings are “super-spreaders”, there is no scientific evidence that religious gatherings conducted in compliance with health protocols pose a greater risk than other permitted gatherings. FOR SA also pointed out that the widely referenced Bloemfontein gathering occurred before any health protocols were in place.

In this respect, FOR SA again relied on foreign case law criticising the preferential treatment of secular activities over religious gatherings during COVID restrictions.

3. The regulations are unlawful under administrative law

FOR SA and the other applicants further argued that the regulations were unlawful under principles of administrative law.

First, the COGTA Minister is legally required to follow a fair public participation process when promulgating regulations. FOR SA argued that the Minister’s repeated failure to include FOR SA in consultations was procedurally unfair. FOR SA had been authorised by religious leaders and organisations representing up to 18.5 million people across a broad spectrum of denominations and faith groups to engage with Government on their behalf.

Second, the Minister is legally obliged to provide reasons for her decisions and cannot rely on confidentiality as a blanket excuse. FOR SA and the public have a right to know the basis on which the decision was taken to completely and indefinitely ban religious gatherings while allowing other gatherings to continue.

Without access to the relevant information, it is impossible to assess whether the decision was rational, necessary, or supported by scientific evidence.

4. Recognition of religious leaders as essential workers

Finally, FOR SA argued that religious leaders should be formally recognised as essential workers under the regulations.

As early as 26 May 2020, the President publicly recognised religious workers as essential frontline workers for purposes of spiritual counselling. Despite this, religious leaders have not been consistently included as essential services in the regulations.

This omission becomes critical when curfews are imposed or alert levels adjusted. Only essential services may operate outside curfew hours, and the exclusion of religious leaders prevents them from ministering to congregants and communities during urgent situations. These include administering last rites and providing care to the ill and vulnerable.

Foreign courts have already found it unjustifiable to classify religion as a non-essential service when it is, in fact, essential to millions of people.

Will you stand with us to protect faith and freedom?

FOR SA is deeply grateful for the excellent and diverse team of advocates and attorneys who assisted in developing and presenting this case. They have dedicated extraordinary amounts of time and expertise since January 2021, often at the expense of other paid work.

If normal legal fees had been charged, the cost of this litigation would run into several million Rand. This excludes unavoidable hard costs such as printing, copying, travel, and communication expenses, which already amount to tens of thousands of Rand and are borne by FOR SA.

As a non-profit organisation reliant entirely on voluntary contributions, FOR SA cannot fund litigation from its own resources. Every donation is essential to covering operational costs and enabling our ongoing work in defending religious freedom before Government, Parliament and the courts.

If you are able to contribute financially towards the costs of this case, donations may be made into our attorneys’ trust account using the following details:

Account name: Bliden Campbell Incorporated

Bank: ABSA

Account number: 406 967 5230

Branch code: 630509

Reference: FOR SA v COGTA Minister

To support FOR SA’s work more generally, please visit:

https://forsa.org.za/donate/

Your support helps ensure that faith and freedom remain protected in South Africa.

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