By Michael Swain, FOR SA Executive Director
Co-author Adv Nadene Badenhorst, FOR SA Legal Counsel

When President Ramaphosa announced on Wednesday 18th September that the country would be moving to Lockdown Alert Level 1 and that this would be the “new normal” for the nation, many people were quick to celebrate.  The announcement came – perhaps deliberately – exactly six months after the regulations for Alert Level 5 were first announced.  A virus by the name of COVID-19 had changed the world we formerly lived in beyond recognition.  Yet, is there truly cause for celebration for the religious community – or is this premature? 

Challenging the regulations from the outset

Freedom of Religion South Africa (FOR SA) has been at the forefront of challenging regulations which, from the outset, at best marginalized if not unfairly discriminated against the religious community.  Although we recognized and accepted that the fundamental freedoms which our Constitution grants needed to be curtailed in the face of a pandemic of unknown lethality, our understanding from the outset was that these restrictions would be temporary. Furthermore – and in accordance with section 36 of the Constitution – they should employ the least restrictive means and methods possible, which restrictions should, at all times, be both rational, proportionate and justifiable.

Our concern heightened when, on April 21st, Minister Nkosazana Dlamini-Zuma (the Minister) addressed the COGTA Parliamentary Portfolio Committee on the easing of the “hard” lockdown and specifically singled out church gatherings as dangerous super-spreaders, citing examples in South Korea and Bloemfontein, which to this day are either refuted or unsubstantiated.  Interestingly this narrative – together with totally untenable comparisons of COVID-19 to the Spanish Flu’ (which killed 25 million people in the first six months) – has persisted throughout this lockdown period. 

It was therefore unsurprising, when the President announced the move to Alert Level 4 on April 23rd, that religious organisations and religious practitioners (who have historically and typically been in the “front line” to bring comfort, counsel and practical help to communities facing a pandemic), were omitted from the list of “essential services”.  Updated regulations to this effect were published on April 25th (a Saturday), with the cut-off date for comments on April 27th.  FOR SA responded with a detailed document setting out the key areas where (in our view) religious freedom rights were unfairly or inequitably treated or where clarification was needed. 

However, when the regulations were subsequently gazetted on April 29th, none of these concerns was addressed.  FOR SA then circulated our document and convened a Zoom meeting with senior religious leaders, where these matters were discussed.  We were then given the privilege of a mandate to communicate further with Government on behalf of a constituency representing +/- 18,5 million people. Those we represented came from a broad cross section of the religious community of South Africa, whose voice is not typically included in the existing interfaith structures recognized by Government.

FOR SA duly sent a further document on May 6th to the Minister and the COGTA Deputy Ministers.  To ensure that this vital communication was profiled and considered, we also sent it to the COGTA PPC, the President, the “Nerve Centre” and to the Speaker of Parliament in the form of a Petition.  We followed this up with multiple phone calls, emails and messages.  We also conducted an awareness campaign via multiple print and radio media outlets to highlight the issues we had raised.  This was followed by an “Open Letter” on May 18th, since many were concerned with what was perceived as a serious omission on behalf of Government to permit the critical functions of the religious community to operate lawfully.

Other religious organisations – particularly the South African Council of Churches (SACC) – were also engaging Government on these issues and this pressure resulted in the President convening a meeting with various senior interfaith leaders on May 20th.  In the meantime, FOR SA continued to work together with MPs from various political parties to ensure that probing questions were raised in Parliament.  We also participated in a provincial structure established by the Western Province Government to ensure that the concerns and views of the religious community were presented.

The President subsequently announced the further easing of the national lockdown to Alert Level 3 on May 26th, recognizing religious organisations and leaders as “essential services” and allowing for gatherings of a maximum of 50 people on a religious premises.  However, FOR SA again wrote to the President and to the Minister, asking for clarification on the concerns and issues that remained unresolved and unaddressed.  We issued a press release welcoming the easing of the restrictions, but thereafter continued to follow up with Government structures for their further responses, sending multiple follow up emails and making numerous phone calls.  Our tenacity paid off, in the form of an invitation to address the COGTA Parliamentary Portfolio Committee on June 24th, which meeting was attended by both COGTA Deputy Ministers and the Head of the Nerve Centre.  We were given an assurance that the matters we had raised would be escalated and given “urgent attention”.

On June 30th, FOR SA again wrote to the Minister, subsequently copying this to the COGTA Deputy Ministers, the secretary of the COGTA PPC, the “Nerve Centre” and various MPs.  We received a written response from the Minister which pre-dated our letter, yet still failed to address or answer our requests for clarification on various key issues.  We continued to press for responses, particularly following the President’s address to the nation on July 12th, when he announced the further easing of restrictions on various other sectors of society.   On July 17th, FOR SA again wrote to the President and to the Minister, this time receiving a response from the Minister’s secretary on July 24th to invite us to a meeting, which was scheduled for August 4th

Meetings with Minister Dlamini-Zuma, and with the President

In the interim, FOR SA convened a further Zoom conference meeting with senior religious leaders to inform them of developments and to “take the pulse” so that we could represent their views accurately.  The meeting with the Minister was also attended by Deputy Ministers Obed Bapela and Parks Tau, and senior representatives from the CRL Rights Commission. FOR SA also included three senior religious leaders who were representative of the views of our constituency.  Although this meeting did not result in any further concessions, it was an important step forward inasmuch as FOR SA was recognized as representing a major sector of the religious community and we were assured that we would henceforth be included in future meetings and consultations with Government.

However, by the time the President announced the further easing of the national lockdown to Alert Level 2 on August 15th, it was increasingly evident that different sectors were being treated differently by Government.  The criteria appeared to be the relative value which each sector provided to the economy, with taxis and flights operating at 100% of capacity and trains at 70%. Shopping centres were allowed to run at full capacity, with car parks full. Restaurants, bars and shebeens re-opened.  Even casinos were allowed to operate at 50% of the venue’s capacity and drive-in cinemas were selling tickets for as many as 800 people at a single gathering. By contrast, churches were still limited to the 50 people maximum, regardless of the size of their venue/s, with drive-in services at churches still forbidden by Government.

FOR SA continued to press Government for responses and to highlight the inequalities, writing again to the Minister on August 18th to ask if/when restrictions placed upon religious gatherings would be eased under Level 2.  On August 27th, FOR SA received an invitation from the President to participate in a conference with other senior interfaith leaders.  We then convened a further Zoom call with the senior religious leaders who we represented to ask for their views on the mandate and the tone we should present at the meeting, subsequently canvassing each one for confirmation. 

At the meeting itself, FOR SA’s presentation was well received, with the President complimenting Advocate Nadene Badenhorst for our contribution.  The request for an amendment to allow religious gatherings to re-open at 50% of a venue’s capacity was affirmed by other religious structures on the call, including the SACC.  The President assured the meeting that our request would be carefully considered and that he would revert with a formal response, which position he reiterated in a further statement and in media interviews.

Moving to Alert Level 1

All of which brings us to the present, and the President’s recent announcement that the entire country will be moving to Alert Level 1 on September 21st. 

For many, the further announcement that venues can re-open to 50% of capacity with a cap of 250 people (for indoors gatherings) and 500 people (for outdoors gatherings), is everything they could have hoped for.  However, it does not bring any relief to the mega-churches (or mosques, temples, synagogues, etc). To expect these churches to only allow 250 people in a corner of a venue that normally comfortably seats 3000 or more people, remains unfair and simply does not make any sense. These churches have invested (and their members have voluntarily contributed) hugely, over years if not over generations, into the infrastructure of these buildings so that they can meet and worship together in large numbers at one time. They believe from a faith conviction point of view that they have a right to do so – and this right is also supported by the Constitution.

Again, while not all of us may theologically hold to the same conviction regarding how we should meet and how many at a time, religious freedom means that everyone should be able to meet according to their interpretation of the Scriptures and to best meet the needs of their members. Thus from a legal point of view, there is no reason why their constitutional right to meet and worship together should be any less protected than anyone else’s.

Given that the mega-churches are often wealthier churches, a strong argument can be made that these churches have the necessary resource to make very sure that all the protocols that apply to religious gatherings, remain strictly in place – whether for 250, or 2000. And it is arguable therefore that there is no greater risk in allowing these churches to meet in large numbers, than what there is in a different context – whether it be another church, or a massive shopping call.

What remains concerning also, is that – other than the numerical increase – there has been no easing of any of the other restrictions that apply to religious gatherings, including the prohibition on corporate singing which, for many, is a central tenet of their faith and the expression thereof. This restriction, likewise, appears overboard in light of recent scientific studies which indicate that singing poses no greater risk than talking. The personal administration of Communion to congregants and the “laying on of hands” is also prohibited – and drive-in services also remains a “grey area’.

FOR SA continues to meet with the team of lawyers we have been working with, to discuss the President’s announcements and the way forward – particularly for the mega-churches and larger organisations whose ability to gather and worship remain severely affected.  These restrictions could potentially have a devastating impact on their organisations, and their members who have specifically chosen to associate with those organisations because of the way they gather and meet.

Thank you for standing with us in ensuring that our religious rights remain respected and protected even during crisis times such as these. As FOR SA, we remain committed to defending the religious freedom rights of all of us, until true normality is restored and our Constitutional rights to teach, preach, worship and live out our faith can again be fully enjoyed.

In closing, FOR SA wants to take this opportunity to thank you sincerely for your support in these important matters.  We know that we have only achieved the breakthroughs for the religious community as a result of your backing, for which we are most grateful.  Please rest assured that we (and the exceptionally gifted team of lawyers and advocates who are assisting us) will continue to work diligently to ensure that all our religious freedom rights are fully restored at the earliest opportunity, while obviously respecting the very real threat to life which the current pandemic poses.

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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