FOR SA takes Government to Court, challenges restrictions on churches

by FOR SA
23 March 2021

On 25 January 2021, Freedom of Religion South Africa (FOR SA) issued papers in the Johannesburg High Court to ask that Government’s complete ban on faith-based gatherings (initially imposed for 14 days from 28 December 2020, but then extended indefinitely on 9 January 2021) be lifted with immediate effect.

The hearing was due to take place on an urgent basis on 2 February 2021. However, on the evening before the hearing, President Ramaphosa – no doubt influenced by the pressure of the impending court case – announced that the ban would be lifted. This did away with the need to argue the matter in court the next day. 

Nevertheless, the key ‘in principle’ issues remain and it is important, particularly because there is a high likelihood that we may face future waves of this (or some future) pandemic, that a precedent is established regarding the reasoning and basis upon which Government can lawfully restrict religious gatherings. As such, the court case is still going ahead.

In our application, FOR SA asks the Court, amongst others, to find that:

  1. the complete ban on religious gatherings was unconstitutional;
  2. it is unconstitutional to place more stringent restrictions on religious gatherings than the limitation of 50% of the floor space applied to other gatherings of a similar nature (e.g. shops etc.);
  3. the Regulations must specifically recognise religious workers as “essential workers”; and
  4. FOR SA be included in the Government’s consultations with religious stakeholders concerning COVID-19 and the Lockdown Regulations.

It is uncertain at this stage exactly when the matter will be heard. FOR SA is not the only party challenging the restrictions on churches in Court. FOR SA’s application follows a similar one brought by the South African National Christian Forum (SANCF) shortly before ours was instituted. After our application, two further and similar applications were instituted by Solidariteit Helpende Hand NPC and the Muslim Lawyers Association. All four applications were consolidated by the Court at the hearing on 2 February 2021, with the parties agreeing to certain timelines for the further conduct of the matter, including the filing of additional sets of papers. The parties will only be in a position to apply for a court date once all these papers and heads of argument have been filed, which will likely be after May 2021.

FOR SA, who is assisted in this matter by an outstanding team of external lawyers, believes that it has a strong case. In this regard, it is significant that courts in different countries already have struck down various restrictions on religious gatherings because they were found to be unfairly discriminatory towards churches and faith-based organisations. In this regard, it is particularly notable that the Supreme Court of the United States (SCOTUS) has already handed down two judgments in favour of churches (after its first judgment in Calvary Chapel Dayton Valley vs Governor of Nevada went in favour of Government) – namely, in Roman Catholic Diocese of Brooklyn, New York vs Governor of New York, and most recently in South Bay United Pentecostal Church vs Governor of California.   

Alert Level 1

In the meanwhile, on 28 February 2021, the President announced that – because of the significant drop in active COVID-19 cases – the entire country would be moving to Level 1. The subsequently promulgated Adjusted Level 1 Regulations now permit religious gatherings to take place up to a maximum of 100 people (indoors) and 250 people (outdoors). For smaller venues, where it is not possible to accommodate those numbers with appropriate social distancing, only 50% of the venue may be used. All gatherings remain subject to the health, sanitisation and social distancing protocols including also the wearing of masks.

Because social gatherings are now allowed as well, this means that congregants can also meet in smaller groups in homes – again, subject to observance of health, sanitisation and social distancing protocols.

This is great news, and we welcome the President’s easing of restrictions which will certainly assist many religious organisations. (In this regard, FOR SA has prepared FAQs on what Level 1 means for religious organisations as places of work, and places worship, respectively).

However, it still does not assist many of the larger religious organisations who can comfortably and responsibly accommodate hundreds (or even thousands) of people in their venues – and who, many would argue, should at the very least be allowed to accommodate up to 50% of their venue capacity.

Letter to President

Against this background, FOR SA – on behalf of various senior religious leaders – on 11 March 2021 addressed a letter to the President, reminding him that April / May are traditionally important months in the religious calendar of both Christians (who celebrate Easter) and Muslims (who observe Ramadan) who typically come together on these holy days and often in large groups to collectively exercise their faith.

In light of this, the signatories to the letter appealed to the President – once again – for an opportunity (whether themselves, or through FOR SA as their appointed representatives for this purpose) to consult with Government with a view to working with Government to prevent any unnecessary further spread of the virus. 

In our letter, we emphasised that the religious leaders and their organisations want to be part of the solution, not the problem – and believe that such a consultation will go a long way to demonstrate Government’s willingness to take hands with the religious community to find solutions that will meet Government’s (legitimate) public health objectives, while at the same time respect, protect and fulfil the religious community’s constitutional right to meet together and collectively exercise their faith (sections 15, 16 and 31 of the Constitution).

Subsequent to the above letter, FOR SA was invited to a meeting with the President and interfaith leaders on 17 March to discuss the COVID-19 regulations – particularly in view of the upcoming major religious holidays and approach of winter. No decisions were made, as the input from the religious leaders first needs to be conveyed to, and considered by, the National Coronavirus Command Council (NCCC). (For more in this regard, see this video.) 

Conclusion

FOR SA will continue to do whatever is necessary – whether through continued engagement with Government, and/or court action – to make sure that our religious rights (including our right to meet collectively with other congregants) are respected, protected and fulfilled by Government. This remains Government’s constitutional obligation, even during a state of national disaster.

We remain committed to protecting the faith and freedom of all – and thank you for standing with us in this. Should you wish to make a specific financial contribution towards FOR SA’s court case against Government, you can do so by making a deposit into the trust account of our attorneys, as follows:

Account name: Bliden Campbell Incorporated
Bank: ABSA
Account #: 4069675230
Branch code: 630509
Ref: FOR SA v COGTA Minister

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/

Support FOR SA

Freedom of Religion South Africa (FOR SA) is dedicated to protecting and preserving the freedoms and rights that the South African Constitution has granted to the faith community. If you have found this helpful, please consider supporting the work of FOR SA to protect our constitutional right to enjoy the freedom of religion by:

  • Making a financial contribution to FOR SA at https://forsa.org.za/donate/ As a non-profit organization, we are entirely dependent upon God’s grace for finances. Your generosity will help make a significant difference as we work to fulfill our mission to keep the Gospel free by advocating for religious freedom. We appreciate every gift, big or small!
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