Open Letter to the Religious Community of South Africa – Update on recent developments

By Michael Swain, Executive Director of Freedom of Religion South Africa (FOR SA)
Co-author Adv Nadene Badenhorst, FOR SA Legal Counsel

Following our previous open letter, I am now writing to give you an update on the latest position regarding the religious community under the current Alert Level 3 of the lockdown regulations.

Chronology of events 

As you may recall, under the initial Alert Level 4 and 5, the religious community was not considered to be an “essential service” and was thus significantly hampered from fulfilling the vital role which this sector typically plays in a time of crisis. 

FOR SA initially (on 7 May, when we were still in Alert Level 4) wrote a letter to Government on behalf of religious leaders and organisations representing +/- 18,5 million people. Having received no reply, and on advice of Members of Parliament, the same letter was sent as a “Petition” to the Speaker of the National Assembly (and copied to the COGTA Parliamentary Portfolio Committee) on 20 May. Shortly thereafter, the President announced that we would be shifting to Alert Level 3, allowing limited recommencement of the activities and operations of the religious community. FOR SA then, on behalf of religious leaders and organisations representing ± 15,5 million people, wrote to Government on 26 May – prior to the publication of the Level 3 Regulations – to put forward again our proposals and requests.

On 1 June, the COGTA Minister published the Level 3 Regulations as well as the Directions for religious gatherings, which resolved the initial questions and concerns of FOR SA’s “Petition” by allowing the offices of religious organisations to re-open in line with the rest of the economy, as well as recognising (although only by implication) religious organisations and workers as “essential service providers”, as well as allowing the re-opening of places of worship with a limit of 50 participants, subject to strict social distancing, sanitation/hygiene protocols and other administrative commitments.

On the same day, FOR SA sent a letter to the COGTA Minister seeking clarification on certain Clauses in the Level 3 Regulations and Directions, which were unclear or ambiguous.  In the ensuing weeks, we have closely followed up the letter (which in the meanwhile was sent to the “Nerve Centre” as well) with numerous phone calls, emails and text messages, insisting that Government’s responses are critical and urgent because the religious community wishes to abide by the law, but may well inadvertently fall foul of it due to the existing ambiguity.

Engagement with COGTA Department this week

Finally, over the weekend of 20 June, FOR SA received an invitation to present to the COGTA Parliamentary Portfolio Committee (COGTA PPC) on the evening of Wednesday 24^th June.  This was the first time that we have formally been invited to engage with Government on this matter.  This meeting was also attended by the Head of the National Disaster Management Centre (NDMC) (Dr Mmaphaka Tau), both Deputy Ministers of the COGTA Department (Honourable Parks Tau and Honourable Obed Bapela), as well as the Chairman of the CRL Rights Commission (Professor David Mosoma) and representatives from the CRL Rights Commission. The Department had submitted a presentation in advance of this meeting which responded to two (2) of the five (5) questions FOR SA had posed in our letter to the Minister dated 1 June.  However, we found the rationale for some of the responses given unpersuasive.  

The purpose of the meeting was, therefore, again to present the “clarification” questions and again to request for Government to respond. Although FOR SA recognises that there are other important and legitimate questions and issues which will need to be addressed as we continue to push Government on the essential journey to the full restoration of our constitutional rights to enjoy religious freedom, it was apparent that this particular meeting would not be able to address or respond to any “new” issues or submissions.

Importantly, during the comments and questions:

• COGTA Deputy Minister Bapela gave an undertaking that, in future, FOR SA would be included in all consultations between Government and the religious community.  

• The Department conceded that it had not done enough to respond to the various letters and other follow-up from FOR SA and its constituency. 

• Dr Mmaphaka Tau stated that the issues raised by FOR SA would be elevated to Cabinet and the NCCC, and that they “would work on it from tomorrow”. 

• Acting Chairperson of the COGTA PPC stated that although the Committee was not in a position to respond to the questions posed, it was willing to take an oversight role to ensure that the Department addressed and responded appropriately to FOR SA’s questions.

FOR SA’s presentation highlighted the following outstanding matters:

1. The status of religious leaders as “essential workers” is not expressly recognised in the Regulations/Directions.
2. The definition of “places of worship” has ambiguity on whether or not it includes private homes.
3. The definition of “religious gathering” needs clarification on whether it includes “drive-in” gatherings.
4. Regarding the limitation of 50 persons:
   4.1 Clarification is needed on whether it applies per site or per hall/venue with a separate entrance. 
   4.2 A proposal that a more logical formula for numbers at a religious gathering should be fixed as a percentage of the normal seating capacity of the venue.
5. We also recognized that the question we had posed regarding the operation of “Children’s church”, will/should be resolved by the anticipated Directions from the Minister of Social Development regarding “partial care” facilities.

Government’s response to these matters, was as follows:

• Regarding the recognition of religious workers as “essential services”, there was acknowledgement that, in light of the President’s remarks supporting and endorsing this, the Regulations should be amended to confirm this status at all Lockdown Levels.

• Regarding homes as “places of worship”, the Department’s presentation stated that these are not included at this stage. FOR SA understands that members of many faiths gather in homes to worship.  However, under Level 3, no social events can take place in homes, so it is difficult to see how “religious gatherings” could be permitted unless/until this restriction is lifted. It would also, arguably, be difficult for a home gathering to comply with all the stringent and detailed conditions imposed upon religious gatherings in general. However, now that the door to engage with Government has been opened, we will certainly continue to press on this matter.

• Regarding religious gatherings taking place in car parks, Government’s response is that they believe that this would contribute to the spread of the virus. FOR SA made the point that the opposite was true and that, in fact, there was less risk in having people meeting in closed cars with all proper social distancing and hygiene/sanitation protocols observed. We pointed out that in other nations, religious gathering had been permitted in car parks even before people were permitted to gather in places of worship. We were informed that the Department would elevate this matter for review.

• Regarding the interpretation of a “place of worship” as a single venue, COGTA confirmed that this was their current position. FOR SA pointed out that this was illogical, assuming that each venue on a premises has a separate entrance and that all the proper protocols are observed. If not, how can [EG] two different churches which meet in two venues in the same venue be allowed to meet, but a single church which operates the same way be prohibited from meeting in the same two venues? Again, we were informed that the Department would elevate this matter for review.

• Regarding the proposal to adopt a formula of using a percentage of a venue’s capacity rather than a maximum of 50 people, we did not receive a response to this.  

Conclusion

FOR SA is writing again, and in more detail, to the Department and to the “Nerve Centre” on these matters.  This is especially pertinent in light of Government’s amendment of the Level 3 regulations to allow for the re-opening of cinemas, theatres and conference centers (“advanced level 3”). These, for example, permit theatres to stage events with up to 50 people PLUS an additional 15 people involved in the staging, recording and production components (clause 4(f) of the amended regulations).

More importantly, casinos will be permitted to re-open as long as they do not utilize more than 50% of the available floor space, with patrons observing a distance of least one and a half metres from each other (clause 4(g) of the amended regulations). FOR SA will, therefore, continue to engage with Government to ensure that their regulations for other sectors of the South African society and economy are equitably applied. 

In closing, FOR SA wants to take this opportunity to thank you sincerely for your support in these important matters. We know that we have only achieved the breakthroughs for the religious community as a result of your backing, for which we are most grateful. Please rest assured that we (and the exceptionally gifted team of lawyers and advocates who are assisting us) will continue to work diligently to ensure that all our religious freedom rights are fully restored at the earliest opportunity, while obviously respecting the very real threat to life which the current pandemic poses.