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.
View PART B on our Website.
FREQUENTLY ASKED QUESTIONS:
THE IMPLICATIONS OF THE ‘ADJUSTED LEVEL 1’ REGULATIONS
(PROMULGATED ON 1 FEBRUARY 2022)
FOR FAITH-BASED GATHERINGS
(updated on 7 March 2022)
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 have the responsibility of reading the latest Regulations and Directions for themselves to verify that the information reflected in this document is still applicable.
Adjusted Alert Level 1 has been in place in South Africa from 1 October 2021. Faith-based gatherings are allowed to take place, subject to certain numerical and other conditions, as set out below. Amendments to the regulations were published on 11 October 2021, 21 December 2021, 30 December 2021, and 1 February 2022.
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 various amendments, which all need to be read together to ensure an accurate understanding of what is, and is not, allowed under the current Adjusted Level 1. This document looks at 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 May 2021 (the “Consolidated Directions”) issued in respect of workplace gatherings (PART B).
Note: It is not clear whether the COGTA Minister will issue new Directions pertaining to religious gatherings under Adjusted Level 1. It may thus be prudent to follow the previous Level 1 Directions (“Directions”) issued on 1 October 2020 under the first Level 1. (However, where the Directions and Regulations appear to conflict with one another, e.g. when it comes to the maximum number of people who can attend a religious service, the Regulations trump the Directions.)
Q: Can we have church / religious services?
A: Yes. In terms of the 30 December 2021 amendments to Regulation 69(4)(i) of the Adjusted Level 1 Regulations, all faith-based or religious gatherings are permitted, but limited to 1,000 persons or less for indoor venues and 2,000 persons or less for outdoor venues. Or, if the building is too small to accommodate 1,000 people with 1.5 meters social distancing between each person, the number is limited to 50% of the building’s capacity. As before, all health protocols (including specifically the wearing of masks, and observing social distancing measures) must be adhered to.
Q: Is there a closing time for churches?
A: No. The 30 December 2021’s amendments repealed Regulation 66 which had contained the national curfew and which had instituted a closing time for venues hosting faith-based or religious gatherings. As of its repeal, churches no longer have a closing time they need to adhere to.
Q: Do we need to display an occupancy certificate?
A: Yes. In terms of Regulation 69(2) of the Adjusted Level 1 Regulations, the owner or operator of any facility (whether indoor or outdoor) where gatherings are held, must display an occupancy certificate. This certificate must set out the maximum number of persons the facility may hold.
Importantly, in terms of Regulation 69(3), should you fail to display the occupancy certificate, you commit a criminal offence. If you are convicted, you can be sentenced to a fine, or maximum six (6) months’ imprisonment, or to both a fine and imprisonment.
Q: Can we have church / religious services elsewhere, e.g. at a conference centre, a school hall, etc?
A: The Adjusted Level 1 Regulations permit indoor and outdoor faith-based or religious gatherings, with no limitation on where such gatherings must take place. Furthermore, Regulation 69(9)(f) permits gatherings at conferencing facilities – subject to the same maximum limitation of 1,000 persons (indoor venue) and 2,000 persons (outdoor venue), and if the venue is too small to hold that number of people observing a distance of at least 1.5 metres from each other, then not more than 50% of the capacity of the venue. To the extent therefore that churches or religious organisations “usually” meet in, e.g. a conference facility or theatre, they should be able to get permission from the landlord to continue meeting there during this time.
Moreover, Clause 1 of the previous Directions pertaining to religious gatherings, defines “places of worship” as “any place or premises usually used for religious purposes”, and this is arguably broad enough to include school halls and other premises where the church or religious organisation “usually” meets for religious purposes.
To the best of our knowledge, Direction 5(10) of the Directions issued by the Minister of Basic Education on 23 June 2020 (at Level 3), which has been interpreted as a suspension of all non-educational events at school, (and as a result, not permit church services, funerals and other public gatherings to take place in their buildings), has not been amended or set aside. (FOR SA has written various correspondence in this regard to the Department and Minister of Basic Education in this regard). As a result, many schools may not yet be comfortable allowing 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: Can we have small group meetings in homes?
A: Yes. In addition to Regulation 69(4)(i) of the Adjusted Level 1 Regulations that permits religious or faith-based gatherings, Regulation 69(4)(ii) expressly allows for social gatherings to take place. This is also subject to the same maximum limitation of 1,000 persons (indoor venue) and 2000 persons (outdoor venue), and if the venue is too small to hold that number of people observing a distance of at least 1.5 metres from each other, then not more than 50% of the capacity of the venue.
Q: Can an asymptomatic person, who has tested positive for COVID, attend church or small group?
A: Yes. In terms of Regulation 7(1) of the Adjusted Level 1 Regulations, a COVID positive person, who has no COVID symptoms (i.e. is “asymptomatic”), no longer needs to self-isolate.
However, the Director-General of Health’s Circular: Changes to Covid-19 Quarantine, Isolation and Contact Tracing (18 February 2022), says that they should be advised to:
- Wear a mask whenever interacting with people, for the next 5 days from the date of the test;
- Avoid social gatherings (3 or more people) for 5 days from date of test;
- Avoid being with others socially in indoor spaces, for 5 days from date of test; and
- Specifically avoid socially interacting with the elderly (>60 years) and anyone with co-morbidities (diabetes, lung disease, heart disease, kidney disease, cancer, uncontrolled HIV, immunocompromised), for 5 days from date of test.
Q: What can happen if we exceed the maximum number of people allowed?
A: Importantly, Regulations 69(6) and 69(7) of the Adjusted Level 1 Regulations explicitly impose legal liability on both a convener and an attendee of a faith-based or religious gathering that exceeds the maximum number of people legally allowed. These Regulations state that if the convener of a faith-based or religious gathering fails to ensure compliance with the maximum number of people, or if anyone attends the faith-based or religious gathering when they reasonably ought to have known or suspected that the amount of people attending exceeds the maximum, they commit a (criminal) offence. If convicted, they are liable to a fine and/or six (6) months in jail.
Finally, Regulation 69(13) states that where a gathering in contravention of the Regulations takes place, a Police officer must disperse the gathering. Should the people refuse to disperse, the Police officer can arrest them.
Q: Is there a time limit on religious services?
A: The Adjusted Level 1 Regulations do not impose a maximum time limit for a faith-based or religious gathering (unlike for funerals).
Q: Is there a requirement for a set time period between consecutive services?
A: The Adjusted Level 1 Regulations do not explicitly state that a specific time period between faith-based or religious gatherings is required. However, Clause 3(3) of the Directions requires that there be at least one (1) hour between services.
Q: How many people may attend a funeral?
A: Regulation 68(1) of the Adjusted Level 1 Regulations, limits 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. Everyone must wear a mask during the funeral. Night vigils, and after-funeral and cremation gatherings, including “after-tears” gatherings, are still not allowed.
Q: Is there a time limit on funerals?
A: Yes. Regulation 68(5) of the Adjusted Level 1 Regulations limits a funeral or cremation gathering to two (2) hours maximum.
Q: Can we have “children’s church”?
A: In terms of Regulation 66A(3) of the Adjusted Level 1 Regulations, Early Childhood Development Centres (ECDCs) are open. There is no longer any social distancing in the basic education sector (Regulation 66A(4)(a)). Also, Partial Care Facilities that provide after-care services, have been open since Level 2. This makes the issue of “children’s church” more of a grey area. (Unfortunately, so many of the Regulations are not clear at all, so it is very difficult to advise with certainty what the legal position is).
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 1,000 people (indoors) and 2,000 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 even social distancing protocols are adhered to), but even then it would probably be safer to stick to a total number of 1,000 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 organisations 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 1,000 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 1,000 limit).
Q: Must we screen people and keep a record?
A: In terms of clause 6 the Director-General of Health’s Circular: Changes to Covid-19 Quarantine, Isolation and Contact Tracing (18 February 2022), active contact tracing should stop. This does not mean that no screening needs to take place, it simply means no register of attendees’ details needs to be kept. People should still be screened for COVID symptoms, and if they are symptomatic, they cannot attend the meeting and need to isolate for a period of seven (7) days from the date of start of symptoms (clause 3 of the aforementioned Circular).
The register of attendees’ details from previous services, should be kept for at one month (clause 7(3) of the Directions).
Passive contact informing (through, for example, SMS) by alerting people with COVID to inform others that they have been exposed to the coronavirus and should watch out for COVID symptoms should continue.
Note: Given that the Director-General of Health’s Circular: Changes to Covid-19 Quarantine, Isolation and Contact Tracing (18 February 2022) was an internal circular, and not gazetted as either directions and/or regulations, we are aware that some organisations are choosing to continue to keep a register of attendees’ details.
Q: What about (infant / adult) baptisms, the laying on of hands, etc?
A: According to Clause 6(2) of the Directions, “any religious ritual that requires personal contact may not be performed during any religious activity”. Regulation 69(1)(c) of the Adjusted Level 1 Regulations also explicitly requires all persons to maintain a distance of 1.5 meters between each other.
Technically speaking, therefore, the minister and/or congregants who are doing the baptising (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: Can we have communion?
A: Communion is possible as long as no bread or juice is shared between people, because Clause 7(5) of the Directions requires that no liquid or substances be shared between people at a religious service. For example, each person can bring their own bread and juice.
Q: Can we serve tea/coffee before or after church?
A: Regulation 69(4)(ii) of the current Adjusted Level 1 Regulations expressly allows for social gatherings to take place, thus serving tea and coffee before or after church would be permitted. This is subject, of course, to strict adherence to all health and social distancing (1.5 meters) protocols. If, of course, the church has a coffee shop / restaurant, people are welcome to have coffee there, subject to the restrictions that apply to restaurants.
Note: Clause 7(5) of the Directions requires that no liquid or substances be shared between people at a religious service.
Q: What does this mean for weddings?
A: Because faith-based gatherings are allowed in terms of Regulation 69(4)(i) of the Adjusted Level 1 Regulations, it is possible to have a religious wedding ceremony at church, solemnised by a religious marriage officer.
Wedding celebrations and receptions are also allowed, because social gatherings are now permitted (in terms of Regulation 69(4)(ii) of the Adjusted Level 1 Regulations).
Naturally, both the wedding ceremony and celebration are limited to 1,000 persons or less for indoor venues, and 2,000 persons or less for outdoor venues. Or, if the building is too small to accommodate 1,000 people with 1.5 meters social distancing between each person, the number is limited to 50% of the building’s capacity. As with every other gathering, all health protocols, social distancing measures, and hours of curfew must be adhered to.