By Adv Nadene Badenhorst, FOR SA Legal Counsel

In an article last week, FOR SA discussed the President’s declaration of a “national state of disaster” in South Africa and the (legal and practical) impact thereof on religious organisations. 

Subsequently, on Monday, 23 March 2020 the President announced a 21-day national lockdown starting at 23:59 on Thursday, 26 March 2020 and ending at 23:59 on Thursday, 16 April 2020. This effectively means that all South Africans – except in certain exceptional circumstances (e.g. to buy food, to get medical help, to collect social grants payments, etc.) – will have to stay home for 21 days. (Note that contrary to what was indicated by a Minister earlier this week, no jogging and no dog-walking will be allowed!).

On Wednesday, 25 March 2020 Government published revised regulations, indicating what is and is not permitted during this time. Any contravention of the Final Lockdown Regulations is a criminal offence, punishable by a fine and/or up to six months’ imprisonment.

What does this mean for religious institutions and people of faith in the next 21 days?

  • In the first place, it means that religious gatherings (on holy days, youth meetings, leaders meetings, etc.) are completely prohibited during this time – whether two people or a hundred, and whether in a building or in the open air. For this reason, many churches have already moved their Sunday sermons, small group meetings, etc online.
  • Church buildings (and offices) must be closed – to both the public and staff – during this entire time.
  • Individuals may also not invite any other person/s to their home for prayer, worship, cell group meetings, to anoint the sick with oil, etc. (Of course, nothing prohibits individuals who live together, to pray, worship, etc together in their home. Even in this context, individuals are encouraged however to avoid / minimise physical contact, to keep proper distance between each other, to regularly wash hands, etc.).
  • No wedding ceremonies (officiation of marriages) or receptions are permitted during this time.
  • Item 11B(8) of the Final Lockdown Regulations specifically permits attendance at funerals during this time, but limits the attendance to 50 people and specifically states that “no night vigil shall be held” and requires further that “all safety measures are strictly adhered to”. (It may be advisable – as already called for by the Gauteng Premier in respect of funerals taking place in that province – to notify the local SAPS of the funeral as soon as is reasonably possible).
  • What is not clear, is whether care for the elderly, mentally ill, physically disabled, sick and children, by a religious institution (in the form of providing food, medical supplies, etc) would qualify as an “essential service” as intended by item B.10 of Annexure B to the Final Lockdown Regulations – particularly where those persons do not have other friends / family to care for them, and are generally cared for by the religious institution as part of its ministry to members / the community. It is arguable (although not certain) that the provision should apply in such a case, and that the head of the religious institution should be able to issue certain designated person/s with a permit (as per Annexure C to the Final Lockdown Regulations) in order to perform such “essential service” to certain (identified) person/s.
  • It further appears, in terms of the Regulations Relating to the Surveillance and the Control of Notifiable Health Conditions dated 15 December 2017 (promulgated in terms of the National Health Act, 2003), that religious leaders – along with other listed persons / occupations – have a legal duty to “immediately” report “to the nearest health establishment” anyone they know of, “or reasonably suspects” to be a carrier, or who has been in contact with a carrier (item 16(5)). Non-compliance, is punishable by a fine and/or up to 10 years’ imprisonment.
  • Note that in terms of Regulations published by the Minister of Communications in the Government Gazette on Thursday, 26 March 2020, every website with a domain name that ends in .za – including every company website that uses the .co.za suffix, every organisation in .org.za, and every academic institution in .ac.za – must link to the South African government’s Covid-19 portal at sacoronavirus.co.za. The link must be “visible”, and must be on the front page of the website.
  • Finally, religious institutions are encouraged to continue to provide their members with clear and accurate information, including information about the symptoms of the virus and what to do if they display any of the symptoms (including calling the Covid-19 hotline at 0800 029 999). 
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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