FOR SA and the outstanding legal team that we have been working with have made a close examination of the Regulations and Directions promulgated by Government inasmuch as they affect the religious community in their “Places of Worship”. This FAQ document details some of the frequently asked questions in this regard, and FOR SA’s interpretation of the applicable Regulations and Directions. Please note that the document is intended to serve as a Guideline only, and FOR SA cannot be held legally liable for reliance thereon. It remains the responsibility of every church or religious organisation to familiarise themselves with the Regulations and Directions that apply from time to time, and to obtain legal advice particular to them.
By all means freely distribute the FAQ document we have produced to your constituents.
FREQUENTLY ASKED QUESTIONS:
THE IMPLICATIONS OF THE ‘ADJUSTED LEVEL 1’ REGULATIONS
(PROMULGATED ON 28 FEBRUARY 2021)
FOR FAITH-BASED GATHERINGS
(4 March 2021)
By Freedom of Religion South Africa (FOR SA)
(in consultation with a broader team of advocates and attorneys)
*Disclaimer – FOR SA accepts no liability for any reliance placed on this document. Readers always bear the responsibility of reading the latest regulations and directions for themselves to verify that the information reflected in this document is still applicable.
On the evening of 28 February 2021, the President announced that, in light of the significant drop in COVID-19 active cases, the entire country would be moving to ‘Adjusted Level 1′. That same evening, the Adjusted Level 1 Regulations were promulgated, once again permitting gatherings at faith-based institutions country-wide subject to certain numerical and other conditions. (It is not clear whether the COGTA Minister will issue new Directions pertaining to religious gatherings. In the meanwhile, it may be prudent to follow the same Directions as applied at the previous Level 1 (“the previous Level 1 Directions”) – in so far as they do not conflict with the new Adjusted Level 1 Regulations, in which case the Regulations take precedent).
The purpose of this document (comprising of a separate PART A, and PART B) is to assist churches and other religious organisations in their understanding and implementation of these Adjusted Level 1 Regulations issued in respect of faith-based gatherings (see PART A), as well as the Consolidated Directions on Occupational Health and Safety Measures (of 28 September 2020) issued in respect of workplace gatherings (PART B).
Q: Can we have church / religious services?
A: Yes. In terms of Regulation 72(3) of the Adjusted Level 1 Regulations “[a]ll faith-based, religious, social, political and cultural gatherings are permitted but limited to 100 persons or less for indoor venues and 250 persons or less for outdoor venues”. Or, if the venue is too small to accommodate these numbers with 1.5 metres social distancing between each person, the number is limited to 50% of the venue’s capacity. As before, all health and sanitisation protocols (including specifically the wearing of masks at all times), social distancing measures, and hours of curfew must be adhered to.
Note: In the absence of any definitions in this regard, the distinction between “faith-based” and “religious” gatherings is not clear. It may be that the term “religious” was included in the Adjusted Level 1 Regulations, because the previous Level 1 Directions refer to “religious gatherings”, which is defined as “a gathering at a place of worship for religious purposes”.
Q: Must my church, synagogue, mosque, temple etc resume services at this stage?
A: No. The re-opening (or not) of places of worship is the prerogative of the organisation’s leaders, who (one assumes) are likely to consider what is in the best interests of their congregants and to make responsible choices.
Equally, in the event that a church or religious organisation does re-open, congregants can also choose to attend (or not), depending on their own health risk assessment. In particular, Clause 7(6) of the previous Level 1 Directions for religious gatherings “encourage” persons over the age of 60 and persons with co-morbidities to continue worshipping at home.
Q: Can we have church / religious services elsewhere, e.g. at a conference centre, a school hall, etc?
A: The Adjusted Level 1 Regulations do not specifically limit faith-based or religious gatherings to a specific venue – i.e. they do not require these gatherings to take place only “at faith-based institutions”. Furthermore, the previous Level 1 Directions define “religious gatherings” as “a gathering at a place of worship for religious purposes”, and defines a “place of worship” very broadly as “any place or premises used for religious purposes; including churches, synagogues, mosques, temples, faith based institutions and other recognized places of worship”. (Our emphasis added.)
Furthermore, the current Regulations permit gatherings at conferencing and entertainment facilities, etc. to take place – subject to the same maximum limitation of 100 persons or less for indoor venues and 250 persons or less for outdoor venues. Or, if the venue is too small to accommodate these numbers with 1.5 metres social distancing between each person, the number is limited to 50% of the venue’s capacity. Churches or religious organisations should be able to get permission from the landlord to continue meeting at conference and/or entertainment facilities during this time.
To the best of our knowledge, Clause 5(10) of the Minister of Basic Education’s Directions regarding the re-opening of schools on 23 June 2020 (at Level 3) to suspend all events at school (and, as a result, not permit church services, funerals and other public gatherings to take place in their buildings), have not been amended or set aside. (FOR SA has written various correspondence in this regard to the Minister of Basic Education and the COGTA Minister.) As a result, many schools may not yet be comfortable to allow the resumption of church services at their premises. This may be a matter of consultation between the church (as lessee) and the school (as landlord).
Q: Are there time limits on faith-based gatherings?
In terms of Clause 3(3) of the previous Level 1 Directions, religious gatherings may be conducted one after the other. They can be held either indoors or outdoors, or both indoors and outdoors simultaneously, as long as there is at least one (1) hour between services.
Q: How many people can meet together at one time for a religious gathering?
A: Regulation 72(3) of the Adjusted Level 1 Regulations provides as follows:
- For indoor gatherings, the maximum number than can attend is 100 persons;
- For outdoor gatherings, the maximum number than can attend is 250 persons;
- In both cases, if the venue is too small to accommodate the above numbers with 1.5 metres social distancing between each person, the number is limited to 50% of the venue’s capacity.
The Adjusted Level 1 Regulations do not specifically say 50% of the “premises” or “building”. It simply refers to a “venue”, which is not defined. This does leave some room for interpretation – some may interpret it as 50% of the meeting space’s capacity, some may interpret it as 50% of the entire building’s capacity. It is also possible to interpret this to mean that multiple gatherings may take place in a building / premises with multiple venues.
Furthermore, Regulation 72(2) of the Adjusted Level 1 Regulations requires that “[a]n owner or operator of any indoor or outdoor facility where gatherings are held must display the certificate of occupancy which sets out the maximum number of persons the facility may hold.” And Clause 7(1) of the previous Level 1 Directions, requires that the religious leaders and/or persons in charge of places of worship must ensure that seating arrangements are compliant with social distancing norms.
Note: Clause 3(1) of the previous Level 1 Directions provide for different maximum numbers of people attending religious gatherings, but as stated above, when previous Directions conflict with the new Adjusted Level 1 Regulations, the Regulations take precedent.
Q: What does the “certificate of occupancy” that is to be displayed (in terms of Regulation 72(2) of the Adjusted Level 1 Regulations) refer to?
A: Although the Regulations are not very clear with regard to “certificate of occupancy”, a template COVID-19 Occupancy Compliance Certificate does appear on the SA Government website. It appears to be a simple matter of churches and religious organisations completing this template certificate and displaying it at their venue.
Q: Can we have small group meetings, and how many people may meet in a home at one time?
A: Yes. The Adjusted Level 1 Regulations allow for all kinds of gatherings (including faith-based, religious, social and cultural gatherings) to take place.
Regulation 72(3) of the Adjusted Level 1 Regulations limits this to 100 people maximum indoors and 250 people maximum outdoors, or if the venue is too small to accommodate the above numbers with 1.5 metres social distancing between each person, the number is limited to 50% of the venue’s capacity.
In light of this, you can fit in as many people (but no more than 100 for indoors, or 250 people for outdoors) as 50% of your house (lounge, or garden) can accommodate, with each person keeping 1.5 metres distance from the other.
Q: What is mandatory for faith-based / religious gatherings at Adjusted Level 1?
A: Regulation 70(2) of the Adjusted Level 1 Regulations makes the wearing of a face mask covering the nose and mouth, mandatory for everyone (except children under 6 years old) when they are in a public place.
Furthermore, Regulation 72(1) of the Adjusted Level 1 Regulations makes it mandatory for everyone attending a gathering to:
- Wear a face mask covering the nose and mouth. i.e. no mask, no entry. Churches and religious organisations may want to keep some spare masks for visitors that may arrive on the day. (Note that Clause 6(1) of the previous Level 1 Directions requires the wearing of face masks for the duration of any religious activity.)
- Adhere to all health protocols.
- Maintain a social distance of minimum 1.5 metres from other people. (In this regard, and because Clause 5(1) of the previous Level 1 Directions requires the religious leader and/or person in charge of the place of worship to ensure that there is no physical contact between persons (including handshaking and hugging), we advise marking out where people should sit / stand for worship.)
- Adhere to any other health and social distancing protocols that may be issued in directions.
Q: What are the health / sanitisation protocols for faith-based / religious gatherings at Adjusted Level 1?
A: In terms of the Clause 4 of the previous Level 1 Directions, every place of worship must implement the following health and safety measures:
- Screen every person entering the place of worship for symptoms associated with COVID-19, such as: fever, cough, sore throat, shortness of breath, difficulty in breathing or malaise. Any one or more symptoms, no entry. (Note: This will require the purchasing of temperature check devices. Anyone with a temperature above 38 degrees Celsius, must be sent home).
- Require every person to report whether they suffer from any of the following additional symptoms such as body aches, loss of smell or loss of taste, nausea, vomiting, diarrhoea, fatigue, weakness or tiredness. In addition, reports whether they suffer from any of the additional symptoms.
- Require every person to immediately inform the religious leader or person in charge of the service if they experience any of the symptoms referred to above while at the place of worship.
- If he/she starts experiencing any of the symptoms, immediately informs the religious leader or person in charge. (It would be good to include this as a standard announcement at the beginning of every service). If this happens, there are certain duties on the religious leader or person in charge (see Clause 4(3) of the previous Level 1 Directions).
Furthermore, Clause 7 of the previous Level 1 Directions, religious leaders / place of worship must:
- Ensure that the place of worship (if it is an indoor venue) is well ventilated.
- Inform all attendees about the dangers of COVID-19 and how to prevent it.
- Keep a register (remember to sanitize the pens between each person who uses them) which must be retained for a period of not less than one (1) month after the gathering, with the following details of each person who attended:
(a) full names;
(b) residential address;
(c) cell number, telephone number or e-mail address; and
(d) contact details of persons living in the same residence as the person attending the religious gathering.
Note: In addition to the above, and in keeping with common practice, we recommend that places of worship:
- Have sufficient hand sanitiser (of at least 70% alcohol, or a generic alternative) available at the entrance of, and in, the place of worship which all attendees are required to use.
- Ensuring that there are facilities for the washing of hands with water and soap. (Please ensure that paper towels, rather than cloth towels, are used.)
- Implementing measures to ensure that all surfaces and equipment are cleaned / sanitised before and after religious activities, and before the next one commences.
- Ensuring that all areas such as toilets, common areas, door handles, electronic equipment and objects are sanitised as regularly as possible as required in the circumstances to prevent spread of the virus.
Q: Can “children’s church” resume?
A: Technically speaking, in terms of the law, children’s church is a “partial care facility”. In this regard, the Minister of Social Development’s Directions (published on 11 September 2020 during Alert Level 2), gives a narrow definition to “partial care facilities” and are referred to as an “after school service”. However, currently ECDCs and Partial Care Facilities are open (and children are back at school) – which makes the issue of “children’s church” more of a grey area. This would, therefore, not necessarily apply to children’s church, but the position is not 100% clear.
In the current circumstances, it may be wise (even if the Directions do not directly apply) to have regard to the Directions for “after-school services” and to try and align whatever you are doing in children’s church as close as possible with these.
An alternative option would be to treat children’s church as a “gathering” in itself (since ALL gatherings of whatever type are now allowed at Adjusted Level 1), especially if this will take place in a venue separate from the main service.
Note: FOR SA’s view is that:
- The safest option is probably to have children sit with their parents in the meeting – they would then be included in the cap of 100 people (indoors) and 250 people (outdoors).
- It is probably in order (in that a defensible case could probably be made) to have “children’s church” separate to the main meeting (provided all the health, sanitisation and social distancing protocols are adhered to), but even then, it would probably be safer to stick to a total number of 100 people in the venue (adults and children included).
- Worst case scenario, if the Police had to arrive at the meeting and say that that is an issue, a religious organisation could (honestly) say they did not know how the Regulations should be interpreted in this regard – but that they are happy to disperse the “children’s church”. (This is probably why a church would want to stick to 100 people in the venue altogether, so that if that had to happen and the teachers and children had to join the adults in their meeting, the church would still fall within the 100 limit).
Q: May congregants “fellowship” before and/or after a service?
A: Regulation 72(3) of the Adjusted Level 1 Regulations explicitly allows social gatherings to take place. Additionally, the Level 3 Directions for religious gatherings stated that “social activities before and after the religious activity is not allowed”. The previous Level 1 Directions do not contain such a prohibition. “Fellowship” after church is, therefore, allowed.
It is important to remember that Clauses 5(1) and 7(5) of the previous Level 1 Directions specifically state that every religious leader or person in charge of the place of worship “must ensure that there is no physical contact between persons at the place of worship, including handshaking and hugging”, and that “[n]o substance or liquid may be shared between persons”. (Our emphasis added.)
Q: Can we sing / worship together as a congregation?
A: The Level 3 Directions for religious gatherings stated that “singing of hymns is limited to solo performances, or pre-recorded performances during the religious service or activity”.
The previous Level 1 Directions do not contain a similar clause and the implication, therefore, is that corporate singing / worship is allowed – as long as it happens behind masks (the wearing of which remains compulsory at all times).
Q: How many people are allowed on the worship team / band?
A: Clause 5(2) of the previous Level 1 Directions states that “where an activity, such as preaching or leading worship, cannot be performed with face masks, the distance between persons must be increased to 2.5 meters”.
The implication is that there is no restriction on the number of people allowed on the worship team / band – as long as whoever is singing (without a mask), stands 2.5 metres away from anyone else (who is not singing, and has to wear a mask).
Q: What about (infant / adult) baptisms, the laying on of hands, etc?
A: According to Clause 6(2) of the previous Level 1 Directions, “any religious ritual that requires personal contact may not be performed during any religious activity”. Regulation 72(1)(c) of the Adjusted Level 1 Regulations also explicitly requires all persons to maintain a distance of 1.5 metres between each other.
Technically speaking, therefore, the minister and/or congregants who are doing the baptizing (whether at church, a private home, the beach, etc), are not allowed to physically touch the person (infant / adult) who is baptised.
On the issue of religious rituals, we are aware that some churches are finding creative ways to temporarily ‘adapt’ the way in which they perform various religious rituals, so as to allow them to still perform those rituals but without falling foul of the law. Other churches may feel that it is not possible for them to obey their religious convictions (including how various religious rituals should be performed) and the Regulations at the same time. They may choose to act according to their religious convictions but then knowing that legal consequences may follow and being prepared to accept those if there had to be.
Q: May we serve / share communion?
A: Clause 7(5) of the previous Level 1 Directions specifically states that “[n]o substance or liquid may be shared between persons”. This would include the “sharing” of elements during communion (e.g. drinking from the same cup).
To the extent possible, therefore, congregants should be encouraged to bring their own communion emblems. Alternatively, the emblems could be placed on chairs prior to the meeting already, or pre-packed disposable communion packs could be ordered, or communion could be distributed by a person wearing sterile gloves.
Q: What about the taking up, and counting, of offerings and collections?
A: In terms of Clause 6(4) of the previous Level 1 Directions, “donations and collections must be done using online and other contactless methods where possible. Cash should be collected in a receptacle that is set in one place and handled by one individual and not passed around”.
With regard to counting, Clause 6(3) of the previous Level 1 Directions states that “any person counting offerings or gifts must sanitise their hands before and after … counting”.
Q: How many people may attend a funeral?
A: Regulation 71 of the Adjusted Level 1 Regulations and Clause 7(7) of the previous Level 1 Directions, limit funerals to 100 persons maximum. Or, if the venue is too small to accommodate 100 people with 1.5 metres social distancing between each person, the number is limited to 50% of the venue’s capacity. Strict adherence to all health and social distancing (at least 1.5 metres between persons) protocols are required. Night vigils and after-funeral gatherings, such as “after-tears” gatherings, are still not allowed.
Q: What does this mean for weddings?
A: As faith-based, religious and social gatherings all are now allowed in terms of Regulation 72(3) of the Adjusted Level 1 Regulations, weddings can take place inside a religious institution’s venue, subject to the same maximum limitation of 100 persons or less for indoor venues and 250 persons or less for outdoor venues. Or, if the venue is too small to accommodate these numbers with 1.5 metres social distancing between each person, the number is limited to 50% of the venue’s capacity.
DHA was closed for marriage solemnisation and registration during Adjusted Level 3, but is now open again for solemnisation and registration of marriages at Adjusted Level 1 (as well as for registration of marriages that took place under Adjusted Level 3).
4 March 2021