FOR SA letter to President re conflicting Lockdown Regulations

by Adv Nadene Badenhorst
21 July 2021

20 July 2021

Dear President Ramaphosa and Minister Dlamini-Zuma,

RE: LOCKDOWN REGULATIONS OF 14 JULY 2021 ARE CONFUSING AND CONFLICTING, MAY LEAD TO UNNECESSARY (AND POTENTIALLY UNLAWFUL) ARRESTS OF RELIGIOUS LEADERS AND THEIR CONGREGANTS

1. We refer to our letter to you dated 14 July 2021, in respect of which your Office has acknowledged receipt but to which we have not yet received a reply. (For your convenience, a copy of our letter is again attached hereto).

2. At the outset, we want to emphasise that the intention of the present letter is not to be combative, but to request your help in an impossible situation that religious leaders and their congregants – as a result of conflicting Regulations, as set out below – find themselves in, and to propose an appropriate solution.

3. In our letter of 14 July 2021, we referred to the Adjusted Level 4 Regulations of 27 June 2021 (as published in Government Gazette No. 44772), which were effectively extended on 11 July 2021 (as published in Government Gazette No. 44838) for a further two weeks until 25 July 2021. In terms of the aforesaid Regulations:

3.1. A complete ban was (again) imposed on all faith-based gatherings across the country; and

3.2. In addition, it was made a criminal offence to either convene or attend a faith-based or religious gathering.

4. We now write to you in light of further Regulations promulgated by the COGTA Minister on 14 July 2021, following a meeting that took place between the Presidency and religious stakeholders the previous evening on Tuesday, 13 July 2021 (to which FOR SA requested an invitation, but was denied the opportunity to participate, apparently because COVID-19 related matters were not to be dealt with). As you are aware, at this meeting, religious leaders from across the faith spectrum appealed to you to open up religious gatherings, so that they can meet with their people in person to pray and bring a sense of calm to the chaos that we have witnessed in our country the previous week.

5. In particular, we refer to the following two sets of Regulations – both of which were promulgated by the COGTA Minister on Wednesday, 14 July 2021, mere hours apart:

5.1. The First Regulation (published in Government Gazette number 44844) allowed religious leaders to hold “community engagements” to deal with “emergency matters”, without a specific limitation on numbers or the nature of the “emergency matters”. This Regulation was understood, in the context of your meeting with religious leaders the previous evening, to mean that religious leaders can lawfully meet with their congregants in a religious context – particularly also on Sunday, 18 July 2021, which many requested and observed as a national day of prayer, to pray for our country and its people.

5.2. The Second Regulation (published in Government Gazette number 44850), revoked the first Regulation and allowed religious leaders to hold “community engagements … to deal with emergency matters that impact on the management, treatment and prevention of the COVID-19 pandemic, up to a maximum of 50 people (or, in the case of a smaller venue, up to 50% of the capacity of the venue). This Regulation, particularly the restriction to matters that somehow relate to COVID-19, created a great deal of confusion and uncertainty – particularly since it did not reflect the discussions that took place with you the previous evening, and which, apparently, related more to the riots than to COVID-19.

6. The major problem is that, in terms of the Adjusted Level 4 Regulations of 11 July 2021, faith-based gatherings” remain prohibited (Regulation 21(2)), and it remains a criminal offence for anyone to convene, or attend, such a gathering (Regulation 21(19) and (20)). (These provisions have not been revoked by the Regulations of 14 July 2021, and therefore stand).

7. As a result of this apparent conflict between the Adjusted Level 4 Regulations and the subsequent Regulations of 14 July 2021, it is not clear to the religious community if they are allowed to meet with their congregants in person at all, and if yes, what is or is not allowed to happen at such a meeting? To put it differently, at what point does a (permitted) “emergency” gathering become a (prohibited) “faith-based gathering”? Dealing with emergency matters that impact on the management, treatment and prevention of the COVID-19 pandemic”, for all religious leaders, will always include preaching, praying and worshipping. The reality is that this is very much part of how people of faith respond to “emergency situations” – they respond with practical help for people’s physical needs (for instance in terms of food distribution, care for the vulnerable, provision of blankets etc.), but they also respond by addressing spiritual needs, through instruction in the holy texts, prayer and worship. Is this not what the Government has asked religious leaders and people of faith to do?

8. To illustrate the untenable situation that religious leaders now, and as a result of the confusing and conflicting Regulations, find themselves in: Various churches have reported that Police have showed up, and threatened arrest, at their prayer meetings on Sunday, 18 July 2021 – this despite observance of all COVID-19 protocols. Videos were circulated of Police using force on congregant members seeking to worship in accordance with the amended Regulations.

9. In light of the aforegoing, we appeal to you to – as a matter of extreme urgency – raise this matter with the NCCC and the COGTA Minister, whose Regulations of 14 July 2021 we do not believe to accurately reflect the intention and purport of the discussions between religious leaders and yourself the previous evening. As is clear from the above, the Regulations – particularly in light of the remaining ban on “faith-based gatherings” in the Adjusted Level 4 Regulations – are causing a great deal of confusion and uncertainty amongst religious leaders and the Police alike, and if not remedied, may well result in the unnecessary (and potentially unlawful and unconstitutional) arrests of religious leaders and their congregants.

10. There is self-evidently a desperate need in South Africa pursuant to the riots, for the moral fiber of the nation to be restored. In this regard, religious institutions play a major role, amongst others, in establishing values to focus individuals for the common good; including orphans and widows in family, and modeling healthy family to a fatherless youth; offering counselling and support to those in need; preventing, and giving protection to victims of, domestic violence and child abuse; and making a positive difference in communities through welfare work and practical help to the poor and vulnerable. None of this can happen when, and for as long as, religious leaders are unable to meet with their congregants in person.

11. In the words of the heading of an article published today “Life after looting: ‘God left South Africa long ago’” by Tshabalira Lebakeng, quoting a looter, it is evident that faith in God needs to be restored. This is what guides people’s behaviour. Locking down churches and other religious institutions while asking them to assist with remedying the position, is like asking someone to box with both hands tied behind his back.

12. It is, with respect, irrational in the light of the events of the past ten days to have gyms and restaurants open to the public with gatherings of up to 50 people, while churches and other religious institutions remain closed. Worse still, it is even more irrational if, in response to Government’s request for assistance, churches and other religious institutions open to address “emergency matters that impact on the management, treatment and prevention of the COVID-19 pandemic”, but then risk the arrest of their congregants. The intervention of law enforcement agencies to disrupt such meetings – especially when contrasted with their notable absence during the recent looting rampages – makes the task that religious leaders have been requested by Government to assist with, all the more difficult.

13. In the meanwhile, it has become clear that Gauteng has already passed the peak of the third wave and new infections and deaths related to COVID-19 are decreasing daily nationwide. The immediate emergency is to reach people in their time of need.

14. We respectfully submit that, in the light of all of the above, the most sensible and appropriate solution at this stage, having regard in particular to the drop in COVID-19 infections across the country, is to open up religious gatherings to 50% of the capacity of the venue, subject to compliance with all the COVID-19 protocols.

We trust that this matter will receive your urgent attention, and look forward to hearing from you soonest so that we can advise our constituency accordingly.

Adv Nadene L. Badenhorst
Legal Counsel, FOR SA

Adv Nadene Badenhorst

Adv Nadene Badenhorst is an Advocate of the High Court of South Africa. She serves as FOR SA’s full-time Legal Counsel. For her full bio, see https://forsa.org.za/about-us/our-team/

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