After much prayerful consideration, Freedom of Religion South Africa (FOR SA) has decided not to pursue its appeal against the judgment by the Johannesburg High Court in its case against the COGTA Minister. The Court handed down judgment in December 2021, dismissing FOR SA’s challenge to the Government’s complete ban on religious gatherings (in terms of the COVID-19 Regulations) a year earlier.
In its judgment, the Court found that, because the Regulations imposing the ban on religious gatherings were no longer in place, the issue had become moot (academic) and that it was not in the interest of justice for the Court to determine the matter. The Court also found that the Regulations were executive (rather than administrative) action and were therefore not subject to the review of the courts in terms the Promotion of Administrative Justice Act of 2000 (PAJA). (Practically, this means that the Court found that it lacks the authority to judicially review the Regulations promulgated by the Minister, nor did she have to give reasons for them to the Court or to anyone else.) It also found that it was not for the courts to determine whether (or not) religious workers should be essential workers for purposes of the COVID-19 Regulations.
FOR SA (along with the South African National Christian Forum, Solidariteit Helpende Hand, and the Muslim Lawyers Association) subsequently applied for, and was granted, leave to appeal the judgment to the Supreme Court of Appeal (SCA).
A victory already won
In a tangible way, the victory in this case was already won when – literally the day before the matter was due to be heard by the Johannesburg High Court on an urgent basis, in January 2021 – the COGTA Minister announced that the then complete ban on religious gatherings, would no longer apply. This announcement, on the proverbial steps of the Court, was effectively a concession by Government that they had acted unlawfully and unconstitutionally in banning religious gatherings across the country, while allowing other similar gatherings (at, for example, casinos, cinemas and restaurants) to continue.
FOR SA – who represented religious leaders and organisations of up to 18.5 million people from a cross-spectrum of churches and faith groups in South Africa in this matter – was subsequently included in (some, but not all) consultations with the President concerning the impact of the COVID-19 Regulations on the religious community of South Africa.
There can be no doubt that the continuous pushback by FOR SA (and various other religious organisations) during the state of national disaster has played a major role in holding Government accountable to its constitutional duty to respect and protect the fundamental right to religious freedom (section 15), and to ensure that the religious sector is treated equally with other sectors of society (section 9).
Reasons for no longer appealing the judgment
FOR SA – after both extensive consultation with the team of external lawyers who have assisted us in this matter, and lengthy discussions within the FOR SA Board – has decided that, from a religious freedom point of view, the risk involved in appealing the matter to the SCA (and thereafter, in all likelihood, to the Constitutional Court) outweighs the possible reward.
Ultimately, FOR SA is of the view that, because the High Court decided the matter on the issues of mootness and PAJA (without even touching on the extensive religious freedom issues raised before the Court), the judgment does not, from a religious freedom point of view, set any negative legal precedent at this stage. In that sense, little has been lost – although we are not in any way excusing Government’s lack of proper consultation, or complete lack of accountability, in the issuing and implementation of the COVID-19 Regulations. However, it is arguable that the Disaster Management Act of 2002 (in terms of which the Regulations were issued) caters for a unique situation and that the extensive powers given to Government in terms of that Act, cannot and do not apply to the ordinary course of events.
Although we believe that the High Court was wrong in finding that the matter was moot at the time (particularly since, even at the time of the judgment, the state of national disaster was very much still in place and there was a real possibility that Government could at any time institute a similar ban on religious gatherings), all indications are that the state of disaster will be lifted very soon. This increases the risk that, by the time the matter is heard by the SCA, the Court will confirm the High Court’s finding that the matter has become moot (academic) and is no longer in the interest of justice to determine.
Furthermore, although we believe that the High Court was wrong in finding that the COVID-19 Regulations were not subject to PAJA, and believe that the COGTA Minister had a duty to consult before implementing the Regulations, there is a real risk that even if a Court agreed and found that the Minister indeed had a duty to consult, it may not go so far as to direct that the Minister should have consulted with FOR SA (or any other party) specifically and may well leave that within the Minister’s discretion.
On the issue of religious workers, likewise, there is no guarantee that a Court will overturn the decision of the High Court. Even if the Court had to, in principle, agree that religious workers should have been declared essential workers (amongst others, because the President had given this promise), a Court would understandably be hesitant to determine the criteria religious workers would have to meet to qualify as such.
The excessive cost/benefit ratio is also a consideration, which begins with the requirement to transcribe the record before the High Court at an estimated cost of R200,000.
Even if FOR SA were to succeed in its appeal before the SCA, there is no doubt that the State would appeal the matter to the Constitutional Court. Apart from the major costs involved, it could take years before the matter is set down for hearing. By that stage, the state of national disaster will be a distant memory and as a result, the risk/reward analysis in whether (or not) to pursue the matter becomes even more compelling.
That said, it is very possible (assuming the mootness and PAJA hurdles can be overcome) that an appeal court may well consider the religious freedom issues presented by the matter. In this eventuality, even though FOR SA believes that a compelling case (to declare the ban on religious gatherings unlawful and unconstitutional) can be made on the religious freedom issues raised before the High Court, there is no guarantee that the SCA or Constitutional Court would agree with our arguments. In this case, we (meaning, the religious community of South Africa) stand to lose much if a negative legal precedent for religious freedom were to be set at that level.
Other (non-religious freedom) issues worth appealing
Nevertheless, there are some very important (non-religious freedom) issues that should be taken on appeal, including in particular the High Court’s decision that the COVID-19 Regulations are executive (rather than administrative) action and therefore not subject to PAJA. This decision goes directly against an earlier SCA decision, which was binding on the High Court but which the Judge chose to go against. We are grateful that Solidariteit Helpende Hand (one of the applicants in the original case before the High Court) will be pursuing this matter on appeal, and wish them – and all the other parties who will be taking the matter further on appeal – the greatest of success.
In the final instance, FOR SA extends its sincere gratitude to every person and organisation who has supported us in this matter, whether financially, in prayer or otherwise. We also extend our sincere thanks to the outstanding team of external lawyers (including particularly Adv Adrian Botha SC, Adv Reg Willis, Adv Richard Crompton and attorney Madelein Botha), who represented us in this matter and did so without any expectation of personal compensation. We also commend FOR SA’s own Legal Counsel, Adv Nadene Badenhorst, who has worked tirelessly on behalf of the faith communities of South Africa!
FOR SA remains committed to defending our religious freedom rights and standing for faith and freedom wherever they are threatened – whether in Government policy, laws before Parliament, or legal cases coming before the Courts.