15 December 2021
For immediate distribution
High Court refuses scrutiny of Government’s ban on religious gatherings
The Johannesburg High Court has dismissed Freedom of Religion South Africa’s (FOR SA’s) court case against Government, which challenged the total nation-wide ban on religious gatherings in December 2020 / January 2021 while other gatherings were allowed to continue. FOR SA intends to appeal the judgment to the Supreme Court of Appeal (SCA) in Bloemfontein.
In a relatively brief 25-page judgment handed down on 13 December 2021, Judge Vally found that since the ban on gatherings was no longer in place, the matter was moot (academic) and that it was therefore not in the interest of justice to decide the issues before the Court. Despite this initial finding, he then went further and found that, since the COVID-19 Regulations were in the nature of “executive policy”, the Regulations were not subject to the review of the Courts in terms of the Promotion of Administrative Justice Act of 2000 (PAJA). This means that there was no obligation on the COGTA Minister to give reasons for her decision to ban religious gatherings, or indeed to consult with affected parties. In addition, since it was not clear who would qualify as a “religious worker”, the Court refused to declare “religious workers” as an “essential services” category in terms of the Regulations.
“FOR SA is extremely disappointed with the outcome, which sends a message to the millions of believers in South Africa that their faith can literally be reduced to praying at home”, says FOR SA’s Executive Director, Michael Swain. “The finding that the matter has become moot because the ban is no longer in place, goes against extensive international precedent. The highest courts in countries around the world have found that as long as COVID-19 is around and there is a threat that government may impose the very same Regulations again, the issue remains live and is therefore justiciable. Similar findings in other cases involving the Regulations have been made in other courts in South Africa, including in the SCA.”
Regarding the Court’s refusal to scrutinise Government’s actions because it constituted executive (rather than administrative) action, Swain commented as follows: “This finding has massive implications, not just for the religious community, but for the people of South Africa in the broadest sense. The Disaster Management Act already excludes Parliament’s oversight over the actions of the Executive. This judgment now means that not even our Courts can oversee such actions. It effectively puts unfettered power in the hands of Government to make unilateral regulatory decisions regarding any and every aspect of people’s lives.”
FOR SA is in the process of preparing an application for leave to appeal the judgment, which it believes is “too important, and too dangerous, not to appeal. The effect of the Court’s decision harkens back to the pre-constitutional era where immense power was concentrated in the hands of the few. This sets an incredibly dangerous precedent going forward.”
FOR SA’s case against the COGTA Minister was supported by religious leaders and organisations representing 11 million people from a broad-spectrum of the faith community. The case was heard in a virtual hearing before the Johannesburg High Court from 22 – 24 November 2021, together with other, similar applications by the South African National Christian Forum (SANCF), Solidariteit Helpende Hand NPC and the Muslim Lawyers Association, all of which were dismissed by the Court.
*A copy of the judgment is available at https://forsa.org.za/wp-content/uploads/2021/12/Jhb-High-Court-judgment.pdf
Freedom of Religion South Africa (FOR SA) is a legal advocacy group mandated to protect and promote the constitutional rights of all South Africans, regardless of their specific religious or ideological beliefs. FOR SA is therefore ideologically neutral and non-partisan in terms of any interpretation of doctrine, faith or belief to the extent that it complies with the rule of law.
For more information, contact:
Executive Director, FOR SA
Cell: 072 270 1217