FAQs on Adjusted Level 2 Regulations – Places of Worship

by FOR SA
16 September 2021

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:

PART: A
THE IMPLICATIONS OF THE ‘ADJUSTED LEVEL 2’ REGULATIONS
(PROMULGATED ON 12 SEPTEMBER 2021)
FOR FAITH-BASED GATHERINGS

 (updated on 15 September 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 12 September 2021, the President announced that the entire country would be moving to ‘Adjusted Level 2’.  That same evening, the Adjusted Level 2 Regulations were promulgated, allowing faith-based gatherings to take place, subject to certain numerical and other conditions.

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 2 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).

FAITH-BASED GATHERINGS:

Q:        Can we have church / religious services?
A:        Yes. In terms of Regulation 53(4)(i) of the Adjusted Level 2 Regulations, all faith-based or religious gatherings are permitted, but limited to 250 persons or less for indoor venues and 500 persons or less for outdoor venues.  Or, if the building is too small to accommodate 250 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) and hours of curfew (23H00 until 04H00) must be adhered to.

Regulation 50(3)(l) institutes a closing time for venues hosting faith-based or religious gatherings of 22H00.

It is not clear whether the COGTA Minister will issue Directions pertaining to religious gatherings under Adjusted Level 2.  It may thus be prudent to follow the directions for religious gatherings (“Directions”) issued under the first Level 3 in 2020.

Q:        Do we need to display an occupancy certificate?
A:        Yes. In terms of Regulation 53(2) of the Adjusted Level 2 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 53(3), should you fail to display the occupancy certificate, you commit a (criminal) offence. If you are convicted, you are liable to a fine and/or six (6) months in jail.

Q:        Can church buildings open?
A:        Yes, unlike under the Amended Adjusted Level 4 Regulations that were in effect until 25 July 2021, which stated that all places where religious activities normally take place must be closed, there is no similar prohibition in the Adjusted Level 2 Regulations.  Furthermore, as the Adjusted Level 2 Regulations explicitly allow religious gatherings to take place, it implicitly allows for church buildings to re-open.

Q:        Can we have church / religious services elsewhere, e.g. at a conference centre, a school hall, etc?
A:        The Adjusted Level 2 Regulations permit indoor and outdoor faith-based or religious gatherings, with no limitation on where such gatherings must take place.

Furthermore, 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.

Regulation 53(9)(f) of the Adjusted Level 2 Regulations permits gatherings at conferencing facilities – subject to the same maximum limitation of 250 persons (indoors venue) and 500 persons (outdoors 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, for e.g., a conference facility or theatre, they should be able to get permission from the landlord to continue meeting there during this time.

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) 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), has 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 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 53(4)(i) of the Adjusted Level 2 Regulations that permits religious or faith-based gatherings, Regulation 53(4)(ii) expressly allows for social gatherings to take place.  This is also subject to the same maximum limitation of 250 persons (indoors venue) and 500 persons (outdoors 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:        What can happen if we exceed the maximum number of people allowed?
A:        Importantly, Regulations 53(6) and 53(7) of the Adjusted Level 2 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 53(14) 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:        What can happen if we don’t close at 22h00?
A:        Importantly, Regulations 64(2) of the Adjusted Level 2 Regulations explicitly state that if anyone contravenes Regulation 50(3) – which states that venues hosting faith-based or religious gatherings must close by 22h00 – they commit a (criminal) offence.  If convicted, they are liable to a fine and/or six (6) months in jail.

Finally, Regulation 53(14) 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:        How many people may attend a funeral?
A:        Regulation 52(1) of the Adjusted Level 2 Regulations, limits funerals to 50 persons maximum. Or, if the venue is too small to accommodate 50 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 52(5) of the Adjusted Level 2 Regulations limits a funeral or cremation gathering to 2 hours maximum.

Q:        Can we have “children’s church”?
A:        The Directions issued by the Minister of Social Development regarding Early Childhood Development Centres (ECDCs) and Partial Care Facilities on 10 July 2020 (i.e. at the first Alert Level 3), did not seem to provide for “children’s church” to resume. And even the definition of “partial care” (which in the Children’s Act is broad enough to include “children’s church”), was specifically limited in the Directions to only apply to “after school services”.

However, ECDCs and Partial Care Facilities are open at Adjusted Level 2 (and children are back at school) – which 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 250 people (indoors) and 500 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 250 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 250 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 250 limit).

Q:        Must we keep a record?
A:        Clause 8(2) of the Directions requires the church / organisation to keep a register of the details (full names, residential address, cell number, telephone number or e-mail address) of the person(s) attending the service.  This record must be kept for at least six (6) months.

Note: this record should also contain the contact details of the people who live in the same residence as the person who attended the service.

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 53(1)(c) of the Adjusted Level 2 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:        Can we serve tea/coffee before or after church?
A:        Regulation 53(4)(ii) of the current Adjusted Level 2 Regulations expressly allows for social gatherings to take place, thus it is arguable that serving of tea and coffee should be legally permitted. We do however advise, from a health and safety point of view, that tea and coffee be served (rather than people helping themselves), so as to avoid multiple people touching the same objects. For the same reason, refreshments should ideally be pre-packed and individually wrapped. (A contrary argument would hold that since the wearing of masks remains compulsory at all times, tea and coffee should not be served as part of religious gatherings).

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.

Q:        What does this mean for weddings?
A:        Because faith-based gatherings are allowed in terms of Regulation 53(4)(i) of the Adjusted Level 2 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 53(4)(ii) of the Adjusted Level 2 Regulations).

Naturally, both the wedding ceremony and celebration are limited to 250 persons or less for indoor venues, or 500 persons or less for outdoor venues.  Or, if the building is too small to accommodate 250 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.

END.
15 September 2021

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