FOR SA’s PRESENTATION TO MINISTER DLAMINI-ZUMA ON 4 AUGUST 2020

*Note:  Following various requests for engagement with Government, FOR SA was invited to a high-level meeting with COGTA Minister Nkosozana Dlamini-Zuma, the COGTA Deputy Ministers and other high-ranking officials on Tuesday, 4 August 2020. What follows below, is FOR SA’s presentation to the Honourable Minister regarding the religious community’s ongoing questions and concerns with regard to the Lockdown Regulations and Directions. The meeting was followed by a letter from FOR SA to the Minister on 6 August 2020. [LINK TO LETTER].

Michael Swain, FOR SA Executive Director:

Honourable Minister, thank you for making the time to meet with us.  We sincerely appreciate the opportunity to discuss and to hear your responses to the very important issues and concerns of the religious community, which FOR SA has previously communicated to you. 

Introduction:

As you may be aware, FOR SA is an independent – and faith neutral – legal advocacy group which was formed with the express purpose of protecting and promoting the religious freedom rights granted by our Constitution.  In this particular matter, FOR SA has been mandated by the senior leaders of over 18 million people from a broad cross spectrum of the faith community to represent their interests, and to present their concerns to Government. 

Before we discuss more substantive matters, let me begin by introducing myself and my colleagues on this call:

I am Michael Swain, Executive Director of FOR SA, responsible for operations, communication and direct liaison with religious leaders from across the faith community.


Advocate Nadene Badenhorst specialises in human rights law and previously worked in the United Nations before joining FOR SA as our full-time Legal Counsel.  She also coordinates with our team of supporting attorneys and advocates who specialise in constitutional law, particularly with respect to religious freedom rights.

Daniela Ellerbeck is an attorney and litigation specialist who heads up our legal research as well as being our Parliamentary liaison officer. 

Also present are the following three members from the constituency we represent:

Ms Thembi Thulwana, Gen. Sec. of the Inkululeko Yesiswe Assocation (representing 10 million people from 65 denominations and structures of the African Indigenous and Spirituality Churches);

Bishop Samuel Ndlovu, representing the Alliance of Pentecostal and Charismatic Churches (APCC) (representing 1589 churches); and

Rev. Dr Sipho Zondi, representing the Baptist Union of Southern Africa on all citizen related matters.

We believe that this meeting is both important and timely because it follows a conference call which took place on Thursday last week with senior religious leaders from across the faith community of South Africa.  We are in close contact with these leaders and reported back to them after our Zoom meeting with the COGTA Parliamentary Portfolio Committee on June 24th.  At that time, they were happy to learn that Government had given assurances that their concerns would be given immediate and urgent attention.  Unfortunately however, save for your letter of 29th June confirming that the issues raised would be discussed and policy decisions made, no further clarification or formal communication of any adjustment has been forthcoming. 

We therefore welcome this opportunity to make you aware that we are sensing an increasing level of frustration and discontent from many of the constituents we represent.  They believe that they have done everything they can to obey Government’s directives and to adhere to the onerous administrative and other obligations placed upon them.  However, the lack of meaningful engagement by Government in response to their expressed concerns is causing the religious community to reach a point of crisis.  The context of the growing dilemma is two-fold:

  1. There is an increasing level of tension between the theological imperatives which govern and direct their responsibilities towards God and towards Government;  and
  2. There is a growing perception that Government is treating the religious community inequitably, unreasonably and unfairly in relationship to its treatment of other sectors of society.  

I will touch briefly on the first point, then hand over to my colleague Advocate Badenhorst to provide the relevant details on the second point.  Thereafter, each of the senior leaders present on this call will briefly give you their views and perspectives.

Interference with theological imperatives:

Let me begin by saying that the religious community has responded in an exemplary manner to the current pandemic crisis.  The natural inclination of the faith community is to cooperate constructively with Government and to pray for its leaders. Despite only being recognised late and last as an “essential service”, the religious community has been (and is) actively serving and supporting communities at a grass roots level throughout the nation. 

However, it is vital that Government understands that there is a theological imperative which cannot be indefinitely ignored or suspended.  The Scriptures and other holy writings command people of faith to consecrate times of corporate worship where we meet together, pray and sing together, administer the sacraments and publicly profess, teach and preach our respective faiths.  It is therefore impossible for many people of faith to accept that the life of religious institutions can be indefinitely suspended or curtailed by the State.

A further example of a significant overreach by Government – perhaps inadvertently – concerns regulations regarding weddings.  We should emphasise up front that we are not talking about the “party”, but rather the actual ceremony.  We have seen reports where SAPS have disbanded weddings on the basis that they are in contradiction to the regulations and directives.  However, it is important to note that the consecration service for a marriage is a deeply significant and spiritual moment.  It is a “real life” illustration of the relationship between Christ (the Bridegroom) and His Church (the Bride) and has ancient traditions as the moment when two people make their public vows of commitment to one another before witnesses and before God.  As such, it should surely be allowed under the same restrictions as any other “gathering”, which is already allowed to take place at a place of worship.  We believe that it is not within the rights of Government to decide what is (or is not) a religious event or activity.  We would therefore ask you to ensure that this particular matter is clarified to avoid any further needless disruptions.

While the religious community may be willing to accept certain short-term restrictions by the State in a time of crisis, there is a constant pressure towards a full restoration and expression of their religious freedom rights and activities.  The current restrictions imposed by Government, while well intended, mean that people of faith are increasingly placed in the invidious position of having to choose between obeying God (or face eternal consequences) or obeying the State (or face secular sanctions). 

This situation is exacerbated when – as previously mentioned – there is an evidence-based perception that the religious sector is being marginalised and inequitably treated by Government.  At some point – and unless Government acts promptly to address the situation – FOR SA is aware that there is an increasing likelihood that some may resort to litigation, civil protest or even to civil disobedience in order to obey what they regard as the “higher law” of their Scriptures and holy writings.  

Conclusion:

That said, we are confident and hopeful that Government is indeed listening, and that it is both willing and able to positively address and resolve these legitimate concerns. We are also hoping, following this meeting (which we trust is also helpful to you in terms of giving you a ‘temperature check’ on the religious sector) that we will be able to report back positively to our constituents with Government’s responses as well as with a confirmation of any adjustments which you may choose to make or to consider. 

I will now hand over to Advocate Nadene Badenhorst to detail the primary areas of the second point of their concerns.

Adv Nadene Badenhorst, FOR SA Legal Counsel:

Honourable Minister, thank you again for the opportunity to meet with you and discuss some of the ongoing challenges and concerns of the religious community of SA. I realise that your time is precious and so if you’ll allow me, I will dive straight into the reasons for the growing perception that Government is treating the religious community inequitably and unfairly in relation to its treatment of other sectors of society.

Perceived lack of responsiveness and engagement by Government

The first is a procedural point, but as I’m sure you would agree – for our people, and in particular the 18.5 million people of faith we represent (including 10 million people from the African Indigenous and Spirituality Churches), process is essential because it is the means by which we arrive at conclusions that are – if not consensual – reasonable and justifiable and as such, acceptable to the people.

Without traversing the full history of this matter again, Honourable Minister, (that is set out in our various correspondence to you), the concern is this:

When lockdown was first announced on March 15th, the religious community did not insist on their rights, but agreed – at the expense of their fundamental rights to meet and to corporately exercise their religion and belief – that it was reasonable for everyone to be locked down in order to give Government an opportunity to capacitate our health care system, so that it could cope with the anticipated influx of Covid-19 patients.

Even when the initial regulations were published a month later – regulations which gave no recognition to the important role that religious leaders have traditionally played in crises such as these – the recognised faith structures in our country did not run to Court to enforce their rights, but instead sought to constructively engage with Government through the democratic process that had been put in place by:

  • Commenting on the draft Schedule of Services: Framework for Sectors;  and
  • Thereafter, commenting on the Level 4 Regulations – which again, did not mention or accommodate the religious sector in any way – and making proposals for a staggered opening up of the religious sector across Levels 5 to 1.

Although FOR SA was not specifically invited by Government to consult in this regard, we now know that through the consultations that Government had with the SACC and other interfaith leaders, some recognition was finally given to the religious sector when the President on May 28th announced that, as part of the Level 3 Regulations:

  • Religious leaders would be recognised as “essential religious frontline workers” for purposes of spiritual counselling; and
  • Places of worship would be able to resume services limited to 50 people or less, depending on the space available.

This was then followed by the Regulations and Directions pertaining to religious gatherings, published by yourself on June 1st which:

  • Did not give religious workers express legal recognition as “essential workers”, the way other “essential workers” had legally been recognised and protected in the Regulations up and until that point; and
  • Placed very onerous (and costly!) administrative and practical requirements on religious organisations before they could resume services. These requirements are more onerous and stringent than those which apply to any other sector in society, including shops or shopping centres, restaurants, or casinos.

Even then the religious sector, without complaint and grateful for the opportunity to finally start caring for and ministering to their members again, accepted these Directions – even though the Directions made substantial inroads on their and their members’ fundamental rights, including their ability to meet, and to worship God, the way they believe Scripture commands.

As you know, FOR SA almost immediately addressed a letter to you (on June 1st) to point out some of the ambiguities in the Directions, which could lead to unnecessary problems from a legal compliance and enforcement point of view. These were again raised at our meeting before the COGTA Parliamentary Portfolio Committee on June 24th and our subsequent letter on June 30th.

While it is correct that some of these issues were addressed in your letter to us dated June 29th but only received on July 2nd, the letter – for the most part – reiterated what was already stated by representatives of your Department at the June 24th meeting and did not bring any clarity to the issues that remained outstanding at that point – and remains outstanding to this day, more than a month (and also a further letter dated July 17th) later.

All this, Honourable Minister, to say that, from a procedural point of view, the lack of responsiveness and engagement by the Government – even despite its undertaking that the issues would be escalated and receive immediate attention – does leave the religious community (and in particular, the constituents that we represent) with a sense that their voice, and their concerns, are not nearly as important to Government as other sectors of the society, who (it seems) are able to get Government’s attention by threatening either litigation or disruption of the country. Needless to say, as ones who are Scripturally commanded to pray for the peace of our cities and our country, the religious community does not condone any efforts to disrupt the country and throw it into disarray.  I am merely making this point to explain the growing perception that those who shout the loudest seem to get both Government’s ear and Government’s hand!

And so, FOR SA is here today not to shout or to threaten, but to nonetheless make it loud and clear to Government that the religious community has been very patient, understanding and co-operative, but – in the absence of concrete answers to their questions and proposals for the staggered opening up of the religious sector – it is becoming increasingly harder to remain so. They want to know, what is the plan for the religious sector? Is there a plan? And as critical stakeholders, they want to be part of the consultations with Government regarding what religious gatherings will look like for them and their members at the next level, and the next, and the next – until normality is restored, hopefully sooner rather than later.

As repeatedly pointed out, although the Risk Adjusted Framework now caters for the religious sector at Alert Level 3, to date the Framework has not been adjusted to give the religious sector any indication of what it could look like for them at Levels 2 or 1 – or what the benchmarks and timelines are to get to those Levels. While we are well aware of the many demands on the COGTA Department at this point in time, this unfortunately does not inspire them with any confidence that Government is taking their fundamental rights seriously, or that it will be relaxing any of the current restrictions on places of worship in the near future.

Perceived unfair discrimination against religious sector

This brings me to my second (and much shorter) point. The perception that the religious community is not as important to Government as other sectors of the society, is exacerbated by what the religious community sees happening around them – in the communities they daily live, work and serve. While 99% of the economy has opened up, and people are able to travel to and from work (or church) in taxis that are loaded to 100% capacity with no possibility of social distancing, places of worship remain severely restricted in how, and how many persons at a time, they are allowed to meet. 

This contributes to a growing sense that the religious sector is being unfairly discriminated against, and being treated inequitably and unreasonably in comparison to other sectors of society. To give you a few examples:

  • While religious gatherings have been limited to 50 people, no numerical limitation has been placed upon, for example, restaurants where people are gathering in their dozens with very few protocols and social distancing observed, or enforced (if any).
  • While hotels or conference centers can host conferences in different meeting spaces under the same roof, all happening at the same time, places of worship are prohibited from occupying multiple venues at the same time.
  • Again, while religious gatherings have been limited to 50 people (even if their floor space could potentially occupy 500 people), casinos are able to occupy up to 50% of the floorspace – giving the distinct impression that casinos are more important to Government than churches, or mosques!
  • While cars can park by their 100s outside a shopping center, or a casino, (and they do, as a simple drive-by Grand West or Cape Gate on any day of the week will show!), places of worship are not allowed to have drive-in religious gatherings where cars are parked 2 meters apart from each other, and people listen to the service via the radio in their car, thereby making it a lot safer than if they had to meet inside a building! (The question has to be asked, if taxis had parked by their dozens – filled to 100% capacity, with no social distancing observed – outside on a parking lot with no physical distance between each other, would that likewise be seen as a problem?)

Honourable Minister, all of this once again to say that the religious community is not asking for special privileges – even though from a legal point of view they would be fully within their rights to do so, given particularly that (unlike some of the other sectors in society who are being given preferential treatment) the religious community and their members have special rights, that are constitutionally guaranteed and protected.

What they are asking for however, is that equal rights be extended to the religious community who, from the outset of this pandemic, has assisted Government in serving and caring for our people, and making sure that food, masks and other necessities reach the most vulnerable in our society – and who will continue to serve their members and communities, even at great cost to themselves, with love and care during this difficult time in our nation – in the hope to “save lives”, yes, but ultimately to make sure that it is right with people’s souls whether they die today or tomorrow, from Covid-19 or something else.  

For many of them, if that means they have to disobey Caesar in order to obey God and do what He has commanded us to do and how He has commanded us to do it, they will do so – even at risk of legal penalties. It is true that Christian believers – who represent the vast majority of the faith community of South Africa – are commanded in the Scriptures to obey the governing authorities.  They do so out of their reverence for God – they will continue to do their best to do so.  However, these vitally important passages do not imply an unquestioning subservience to Government, nor can they be contorted into a defence of a massive regulatory state which is fully justified in shutting down the life of the church institute indefinitely in the name of health and safety. 

While there may be exceptional circumstances which mean that these injunctions can be temporarily suspended, Government places us in a very difficult position when it forces us, by law and at threat of legal penalties, to act indefinitely contrary to our conscience, religion and belief, which is constitutionally protected. In this regard, the Constitutional Court has already – in the case of Christian Education v Minister of Education, 2000 – warned that:

the State should, wherever reasonably possible, seek to avoid putting believers to extremely painful and intensely burdensome choices of either being true to their faith or else respectful of the law.”

FOR SA’s appeal to Government

And so to conclude, Honourable Minister, on behalf of the 18.5 million people we represent, we appeal to you to ease the restrictions on the religious community in SA, so that they can be true to their faith while also obeying the law. They have been giving, and want to continue to give, to Caesar what is Caesar’s – but will, and can, no longer do so at the expense of giving to God what is God’s. Various of them have indicated that they are prepared to take whatever legal action is necessary at this stage to enforce their rights, and various others have indicated that – if the ongoing conversations with Government do not result in greater freedom – they will do what they need to do to be true to their faith, irrespective of what the regulations do or do not say. (This is indeed also the position taken by various churches and religious organisations in the USA and elsewhere, with religious gatherings taking place on beaches and other open air places – in faithfulness to their religion even if it means disobedience to the law.)

So, in a spirit of mutual respect for one another and co-operation with one another to serve our country best we know how in this time of crisis, and with a view to avoiding legal challenges or forced disobedience to the law, we ask you to seriously and urgently consider their requests, and then put pen to paper and make the necessary adjustments in the Regulations and Directions pertaining to places of worship. (And we anticipate that when the President is next addressing the nation, he’ll be making some announcements in this regard, which we look forward to.) This, we believe, will go a long way in showing the religious community that Government is not merely paying lip service to them, but genuinely considers them an equal partner in navigating our people through very stormy waters and helping as many as we possibly can, to safely make it to shore.

We thank you for your time, Minister – know that we are praying for you for great courage and wisdom, and that FOR SA remains committed to assisting Government as it steadily steers us forward in this time. 

Michael was raised in England, graduating from the University of Bristol with an honours degree in Law before immigrating to South Africa in 1983. He has been a successful businessman as well as having spent over 30 years in ministry in South Africa, Europe and the USA. He serves as the Executive Director of Freedom of Religion South Africa (FOR SA).
Nadene is an Advocate, and practised as a member of the Cape Bar for a number of years. She holds both a BA LLB degree from the University of Stellenbosch and a LLM degree in International Human Rights Law (cum laude) from the University of Essex. She currently serves as a Next Generation Board Member on the Advocates Africa Board, representing Southern Africa.



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