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 (AMENDED) ‘ADJUSTED LEVEL 3’ REGULATIONS
(PROMULGATED ON 1 FEBRUARY 2021) FOR FAITH-BASED GATHERINGS
*Updated version (22 February 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 directives for themselves to verify that the information reflected in this document is still applicable.
On 29 December 2020 South Africa moved to ‘Adjusted Level 3′ in light of a second wave of COVID-19 infections, prohibiting all faith-based gatherings country-wide for a period of 14 days. On 11 January 2021, further Regulations were promulgated, keeping the prohibition on faith-based gatherings in place. On 1 February 2021, the current (amended) Adjusted Level 3 Regulations were promulgated, once again permitting gatherings at faith-based institutions country-wide 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 (amended) Adjusted Level 3 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 36(3)(a) of the (amended) Adjusted Level 3 Regulations “[g]atherings at faith-based institutions, are permitted but limited to 50 persons or less for indoor venues and 100 persons or less for outdoor venues”. Or, if the building is too small to accommodate these numbers 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 at all times), social distancing measures, and hours of curfew must be adhered to. (It is not clear whether the COGTA Minister will issue Directions pertaining to religious gatherings, as in the past. In the meanwhile, it may be prudent to follow the same Directions as applied at the previous Level 3).
Importantly, the (amended) Adjusted Level 3 Regulations only allow for gatherings “at faith-based institutions” (same as the Level 3 Regulations last year). While “faith-based institutions” are not defined in the Regulations, the Level 3 Directions pertaining to religious gatherings (effective from 1 June 2020) say that religious gatherings are permitted at “places of worship”, which is defined in Clause 1 as “any place or premises usually used for religious purposes; including churches, synagogues, mosques, temples and other recognised places of worship” [our emphasis].
Q: Can we have church / religious services elsewhere, e.g. at a conference centre, a school hall, etc?
A: Again, in the absence of new Directions pertaining to religious gatherings applicable at Adjusted Level 3, it would be prudent to have regard to the Directions pertaining to religious gatherings that applied at Level 3 last year. Those Directions allowed religious gatherings at “any place or premises usually used for religious purposes” (Clause 1), and are therefore arguably broad enough to include school halls and other premises where the church or religious organisation “usually” meets for religious purposes.
The (amended) Adjusted Level 3 Regulations permit gatherings at conferencing facilities, cinemas, theatres, etc to take place – subject to the same maximum limitation of 50 persons (indoors venue) and 100 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 direction 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 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: Can we have “children’s church”?
A: The Directions issued by the Minister of Social Development regarding Early Childhood Development Centres and Partial Care Facilities on 10 July 2020 (i.e. at the previous 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 3 (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 50 people (indoors) and 100 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 50 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 50 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 50 limit).
Q: Can we have small group meetings?
A: In terms of the (amended) Adjusted Level 3 Regulations, small groups can without question legally meet at churches (where they would be subject to all the health and social distancing protocols that apply to places of worship). There is also nothing that prohibits small groups from meeting at a restaurant for coffee or a meal (where they would be subject to the health and social distancing protocols that apply to restaurants).
On the question of whether the (amended) Adjusted Level 3 Regulations permit small groups to meet in homes, FOR SA’s view (shared by the team of external advocates and attorneys we work with in this matter) is that, on a strict interpretation, the regulations probably do not permit small groups to meet in homes at this stage. This is particularly so also because “social gatherings” (which, read with the regulations that have gone before, are likely to include any gathering of people other than the people who ordinarily reside at a particular house) remain expressly prohibited in terms of Regulation 36(3)(b) of the (amended) Adjusted Level 3 Regulations. (In this regard, we mention that “social events at a place of residence” was only allowed at Level 2, and even then, was subject to a limitation of 10 visitors or less). The mere fact that this prohibition is not enforced by the Police, does not change the law – and any police official would be within his/her rights to enforce the law at any point (which is to disperse the meeting, and arrest anyone who resists).
Some would argue, however, that the regulations are not clear or explicit enough on what exactly constitutes a (prohibited) “social gathering”, so as to enable the average person on the street who is not able to interpret the regulations through a legal lens, to know and understand exactly what the law is. They argue that if Government intended for friends and family not to visit each other at this stage, they should have expressly said so in the (amended) Adjusted Level 3 Regulations.
In light of the above, churches and religious organisations may want to err on the side of caution and adopt a narrow interpretation of the (amended) Adjusted Level 3 Regulations, read with the Level 3 Directions pertaining to religious gatherings issued last year (i.e. no meetings in homes) – until such time as the regulations are amended and it is abundantly clear that meetings in homes (whether as “religious gatherings”, or as “social gatherings”) are legally permitted.
What is very clear however, is that the (amended) Adjusted Level 3 Regulations give the Police the power to disperse illegal gatherings and arrest anyone who resists. In the circumstances, should a Police officer arrive at a house where they believe or suspect a prohibited (religious, or social) gathering to be taking place, persons are best advised to cooperate with the Police and immediately (without argument or debate) disperse the meeting.
Q: What happens if we hold home cell meetings anyway?
A: You can be dispersed by the police, and if you resist, arrested. According to Regulation 36(18) and Regulation 84(17), when a gathering takes place in contravention of the prohibitions, the Police are to order the people gathered to disperse immediately, and, if the people refuse to disperse, to take appropriate actions such as arrest, and detention of the people gathered. Note that in terms of Regulation 47(1) any person who “hinders, interferes with, or obstructs” a police officer, is guilty of a criminal offence and can face both a fine and up to six (6) months in prison. This is confirmed in this Police document.
Q: Can we have infant baptisms, and (adult) water baptisms?
A: Clause 6(2) of the previous Level 3 Directions for religious gatherings of 28 May 2020 reads: “Any religious ritual that requires personal contact may not be performed during any religious activity.”
As no new Directions have been promulgated under the current Adjusted Level 3 Regulations (that have been in place since 29 December 2020), it would be prudent to still follow these previous Directions, which seem to prohibit infant baptisms where the religious leader has to hold the baby and sprinkle water on them. Also, since the current (amended) Adjusted Level 3 Regulations require all persons at religious gatherings to maintain a distance of 1.5 metres between each other, it is arguable that infant baptism cannot be performed even where the parents themselves hold the baby.
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, and 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: According to Clause 8(4) of the previous Level 3 Directions for religious gatherings of 28 May 2020, “social activities before and after the religious activity is not allowed”. Again, as no new Directions have been promulgated under the current Adjusted Level 3 Regulations (that have been in place since 29 December 2020), it would be prudent to still follow these previous Directions.
While “social activities” has not been defined, the intention of the Clause is probably that people must arrive for, and leave immediately after, the service – and not “hang around” in a manner that would encourage socialising with each other before or after the service. Assuming that this is the intention of the Clause, we would advise against serving tea / coffee before or after church in a manner that would encourage people to “hang around” and socialise with each other at the venue – all the more so, if this means that people do not maintain a social distance of 1.5 metres between each other while having tea or coffee. (We are aware of some churches that serve tea and coffee on arrival, but then direct people towards their seats). 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 funerals?
A: Regulation 35 allows for funerals to take place, subject to the following limitations:
- Attendance is limited to 50 people maximum with 1.5 meters social distancing between each person, or, if the venue is too small to accommodate 50 people with 1.5 meters social distancing between each person, only 50% of the venue’s capacity.
- Each person is required to wear a mask at all times.
- Health protocols and social distancing measures are required to be observed at all times.
- The duration of the funeral is limited to two (2) hours maximum.
As per the Police document, they see funerals as being allowed to take place in a place of worship.
NOTE: No gatherings (“after tears”) are allowed after the funeral. Similarly, night vigils remain prohibited.
Q: What does this mean for weddings?
A: In terms of the Amended directions for Home Affairs services issued on 14 January 2021, the Department of Home Affairs (DHA) has suspended wedding solemnisation and registration during Adjusted Level 3.
Regarding the solemnisation of marriages by religious marriage officers, this communication from DHA to all religious marriage officers expressly allows religious marriage officers to proceed with marriage solemnisations, but with only the marriage officer, bride, groom, and two (2) witnesses present and subject to strict compliance with all COVID-19 safety protocols. The communication also waives the requirement that marriage registers must be submitted to DHA within three (3) days – registers can be kept and submitted after (amended) Adjusted Level 3 is lifted.
However, as gatherings at faith-based institutions are now allowed, weddings can take place inside a religious institution’s venue with a limit of 50 persons; or outside the venue, for e.g. in the church gardens, with a limit of 100 persons; or if the religious institution’s premises is smaller and cannot accommodate 50 people (indoors) or 100 people (outdoors) with 1.5 metres social distancing, then 50% of the venue’s capacity. (Because religious gatherings can take legally place any day of the week, the same should logically apply to weddings taking place at a religious institution).
The other option is for couples to get married in front of a religious marriage officer at for e.g. the church office, or if there isn’t a church office, at the pastor’s ‘home office’ – but then only the marriage officer, bride, groom, and two (2) witnesses are allowed to be present as per the DHA communication above.
NOTE: We have been informed that the Police’s legal team has advised that they understand a [prohibited] “social gathering” as “anything else that is not expressly provided for in the Regulations, such as family or friends who get together, wedding ceremonies, parties, etc.” and that it is their view that “a wedding being conducted by a religious leader in a faith-based institution is allowed, however the reception thereafter will be regarded as social gathering and will be prohibited. However should the reception be held at a venue that has the required certification in respect of capacity and Covid Protocols in place, this will be within the ambit of the regulations, nothing prevents a wedding ceremony from being held at such a facility with a religious leader attending and solemnising the wedding. A gathering held in any place not specified in the regulations will be regarded as a social gathering, it is our understanding that the intention of the regulation to allow gatherings at certain venues is the assurance that the venue operator will have measures in place and will act according to all health and safety protocols.”
Also, as Regulation 36(15) allows restaurants to operate, 50 guests can of course eat together at an indoor restaurant, or 100 at an outdoor restaurant. (Or, if the restaurant is too small to accommodate these numbers with 1.5 meters social distancing between each person, the number is limited to 50% of the venue’s capacity.)
22 February 2021