COVID-19 Lockdown: A Case for Limited Exemption for Religious Organisations

by Daniela Ellerbeck
16 April 2020

By Michael Swain, FOR SA Executive Director
Co-author Adv Nadene Badenhorst, FOR SA Legal Counsel

To say we live in unprecedented times, is both true and also an understatement. Although FOR SA makes no claim to expertise in the area of epidemiology and the severe medical challenges involved, it is nevertheless important to understand that this pandemic has had a most significant impact on the religious community of South Africa.  The idea that people’s spiritual needs are not paramount at a time like this is naïve, especially given they are isolated, lonely, have lost loved ones or jobs, and are fearful of what the future holds. Some people need basic assistance with things as simple as groceries or pharmacy items, and churches can be their only lifeline. Being a part of a church is, for a great many people, the most important thing in their life.

Shutting down the faith community, particularly in a nation where faith is deeply woven into the fabric of our society, would have hitherto been unthinkable.  However, in response to the unique threat of the COVID-19 virus, governments across the world (with systems ranging from totalitarian to democratic) have instituted exceptional and extraordinary measures which have restricted fundamental human rights in a way that would have been unimaginable three months ago. 

In South Africa, the vast majority of our population is currently unable to leave their homes except for specified purposes; religious services and public gatherings of any size are banned; our already stressed economy has been further damaged and we will suffer the impact for an indefinite period; businesses that honest and hardworking people have taken years to build up have been closed down, possibly permanently; future generations will inevitably face an enormous debt burden; depression, stress, heart attacks and even suicide will possibly be experienced by millions of people.

However, there is a general consensus that these otherwise draconian measures are the best and most logical initial response given the unique set of circumstances.  We know that people have no natural immunity to this virus.  There is neither a cure, nor a vaccination envisaged within the next 12 – 18 months and according to the experts, so-called “herd immunity” only kicks in when about 60% of the population have already contracted the disease and recovered from it.  The “flatten the curve” strategy is, therefore, essential to ensure that our limited health infrastructure and services are not completely overrun by the first wave of infections, with tens of thousands dying as a consequence. 

As we examine the challenges we face, it is important to understand the context so that we can formulate the appropriate responses that we need to consider as a faith community, especially in the event that the lockdown extends beyond the end of April.

Unavoidable consequences

The current severe restrictions clearly cannot remain in place indefinitely.  A strict lockdown for an extended period of time is unsustainable, both economically and socially.  Its only purpose is to buy time so that extensive testing can take place to enable us to understand more precisely how lethal this disease actually may be – and to respond accordingly and appropriately.  It also provides an invaluable opportunity to ramp up hospital services, so that there is capacity to manage the medical response needed in the worst affected areas. 

These restrictions by Government are not – and must never be – something which is extended without reasonable and justifiable reasons to justify their imposition. As such, any restrictions must be carefully crafted, closely monitored and regularly reviewed to ensure that they are proportional and fulfilling their intended purposes.  While they may presently be a “necessary evil”, there must always be a solid rationale to justify why they are appropriate and proportionate.  The cure must not be worse than the disease.

A case for pastoral exemption

Significantly – and concerningly – the practical contribution of the faith community to the current crisis, has largely been neutralised by the current regulations and restrictions on movement and assembly.  By contrast, in instances throughout history, the religious community has typically been at the forefront of the response to the ravages of disease.  This is not only in the form of prayer, but in practical ways, like ensuring the poor, elderly and otherwise vulnerable are fed and clothed; that people who are suffering (whether from the actual sickness, or some consequential impact) are comforted and encouraged. 

Although most religious leaders agree that public gatherings are counter-productive and counter-intuitive at present, FOR SA understands that a case is being prepared by an Islamic group to challenge these restrictions in a court of law.  Clearly – and in the unlikely event that this succeeds – it will necessarily apply to all faith groups. 

In this regard, some churches and faith-based NPO’s with social outreach and support programmes have successfully applied for permits to render “essential services”*, and consequently given written authorisation to designated persons within their organisation – in terms of Annexure C to the Final Lockdown Regulations – to provide such “care” to members in need. In other instances, religious and/or charitable organisations who are registered as a non-profit company (NPC) with the CIPC and have a company registration number, have successfully applied (via the CIPC’s Bizportal website) for certification to continue to render “care services and social relief of distress” as per the regulations.

Although the regulations thus allow pastors – who have received the necessary permits – to, for example, deliver food parcels etc. to meet immediate needs, there is no current category which allows for the (equally important) work of spiritual (including grief) counselling, ministry and similar interventions. (It is arguable whether the inclusion of “care services” in the regulations, is broad enough to also include pastoral / spiritual care). The problem is that:

  1. The effects of this crisis will become far broader as the health and economic impact bites – and the government does not have the capacity to provide the solutions.  Many people are falling through the gaps of currently permitted structures, who are not able to offer any form of spiritual guidance and comfort.
  2. There is a serious knock-on effect in terms of depression and related psychological conditions, as well as domestic / relational issues and even the potential for domestic violence.  These are areas where pastoral interventions are arguably essential.

Although technology provides the potential to communicate, the reality is that “on-line” solutions – particularly in rural areas – are not always possible or available. In addition, many pastors and/or their members cannot afford the costs of buying data and airtime, especially in a time when usual sources of income have been curtailed.

The need for pastoral intervention will only increase, especially if the current (or even other) restrictions remain in place beyond the end of April. FOR SA would, therefore, urge the government to consider the valuable contribution the religious community can offer to support efforts to help ordinary people, and in particular, their members, make it through the lockdown.  While hospitals can treat the body, only the faith community can treat the heart and the soul.  Pastors of congregations know exactly which families need help and where they live, so are well placed to do targeted interventions to meet both practical and spiritual needs. 

A secondary – and equally important consideration – is to consider the steps that can be taken as the restrictions are eased. Apart from the centralised meetings which typically take place in a church, mosque, synagogue or temple, many faith communities meet in smaller groups during the week.  This is an integral part of “religious life” and is an optimal way of facilitating mutual care (both spiritual and practical) for those involved.  FOR SA would, therefore, recommend that at the earliest opportunity, the government considers permitting groups of 15 or less people to meet together – again, with appropriate social distancing measures being observed.  In the worst-case scenario, where a member of such a group does become infected, it will be easy to trace, isolate and quarantine the other members and those who may have been exposed.


FOR SA therefore believes that:

  1. The current Regulations should be amended so that during (the current, but certainly any future) lockdown, pastors and religious leaders of whatever faith are able to register for an exemption to the current limitations on movement, so as to make essential visits to members of their church or religious community in need of pastoral / spiritual care.  This would obviously be governed by a calibrated approach, to ensure that there is compliance with relevant social distancing recommendations and other health and safety measures.
  2. When the lockdown is lifted (after 30 April 2020) or as soon as possible thereafter, religious communities should be able to meet in groups of 15 or less people – again, with appropriate social distancing recommendations and other health and safety measures being observed.   

In this regard, it is worthwhile considering the Australian context, where churches are permitted to live stream services by being declared “workplaces” for the purposes of the COVID-19 regulations. That means employees and volunteers who are required for the live-streaming production can legally be present, provided they obey social distancing measures (1.5m between persons, no more than 1 person per 4 square meters of floorspace in the building at any one time).  Pastors are also permitted to make essential visits to members of their church for important pastoral care matters.  Households are permitted to receive up to 2 visitors, provided social distancing measures are observed.

In conclusion, we need to bring every available resource to bear as we face this crisis together.  The contribution of the religious community to the fabric of our society is a critical success factor that must not be overlooked.

*Note: On 21 April 2020, the ADCP – in a post on social media – advised that in terms of a letter by Dr Gerhard in the office of the Presidency, “churches that are interested in assisting in socio-economic relief, should apply to the Department of Social Development to be allowed to operate as an essential service in terms of Regulation 11(b)(3) of Covid-19 and, if approved, they will be issued with a valid permit to perform essential services.” This letter was in response to a letter by Rev. Dr. Kenneth Meshoe (ACDP President) to President Ramaphosa on 8 April 2020, specifically requesting that churches registered as NPOs or PBOs be recognised as “essential services”.

Michael was raised in England, graduating from the University of Bristol with an honours degree in Law before immigrating to South Africa in 1983. He has been a successful businessman as well as having spent over 30 years in ministry in South Africa, Europe and the USA. He serves as the Executive Director of Freedom of Religion South Africa (FOR SA).
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.

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