By Adv Nadene Badenhorst, FOR SA Legal Counsel

On Sunday, 15 March 2020 President Ramaphosa declared a “national state of disaster” in South Africa, and announced various preventative measures to try and stem the spreading of Covid-19 (otherwise known as “the Corona virus”). In particular, the President appealed to South Africans to limit contact between persons, and groups of persons. To this end, the Presidency placed a prohibition on meetings of more than 100 people. Where less than a 100 people are present at an event, organisers are to put stringent measures in place to minimise physical contact. Restrictions have also been placed on both international and national travel. (For a summary of the preventative measures announced by the President, see https://www.dailymaverick.co.za/article/2020-03-15-president-ramaphosas-covid-19-address-in-23-bullet-points/

On Wednesday, 18 March 2020 further, government published certain Regulations in the Government Gazette, with a view to preventing an escalation of the disaster and/or minimising the effects thereof. Importantly, the Regulations give the Police certain enforcement powers, including dispersing gatherings of more than 100 people, and arresting persons who refuse to comply with the Regulations. The Regulations also state that schools and “partial care facilities” (which would include children’s church / youth gatherings, if there are more than 6 children / persons under the age of 18 present) must be closed from 18 March to 15 April 2020. (The Regulations, which are effective immediately, are available at https://www.gov.za/sites/default/files/gcis_document/202003/43107gon318.pdf)

It is obvious that these measures have a direct impact on religious organisations, and the ability of members to meet together to worship, pray and collectively exercise their faith. For this reason, the President will shortly be meeting with representatives from the religious sector to discuss the impact of the announcements on them – particularly also in light of upcoming Easter services and pilgrimages. (So, for example, the annual Easter pilgrimage of the Zion Christian Church (ZCC) is known to attract over a million people from inside and inside the country. The ZCC has since notified its members not to come to Moria until further notice).

From a religious freedom point of view, it is important to remember that no right in the Bill of Rights – including the right to freedom of religion (s 15), freedom of association (s 18), and the rights of cultural, religious and linguistic communities (s 31) – is absolute. In terms of s 36 of the Constitution, any fundamental right may reasonably and justifiably be limited by a law of general application. The applicable law in this case is the Disaster Management Act, 2002 (and any other laws that may potentially be passed by Parliament over the next while in order to enforce preventative measures against the spread of the Corona virus).

In this regard also, we point out that a “national state of disaster” in terms of the Act is different to the declaration of a “state of emergency” (for a maximum period of 21 days), as contemplated by s 37 of the Constitution and which calls for a “public emergency” to be present. From a rights point of view, the difference between a “state of disaster” and a “state of emergency” is the following: under the former, fundamental rights can be limited provided they meet certain criteria; under the latter, fundamental rights can be derogated (suspended) by legislation and potentially allows for more authoritarian and therefore invasive measures to be taken. (While it is of course possible that the current situation could develop into a “public emergency”, we are not there yet and hopefully current measures will be sufficient to avoid us getting there!)

FOR SA commends the President for acting swiftly and decisively to try curb the spreading of Covid-19. We encourage religious organisations, with equal swiftness and seriousness, to take the necessary action in their own contexts to comply with the President’s directives and to best protect their own members and the population at large against this deadly virus. In particular, religious organisations are encouraged to:

  • Consider (and communicate to their members) the impact of the directives on services and meetings. This may call for a suspension of (certain) services and meetings, making increased use of technology (e.g. live-streaming, etc), or finding alternative lawful ways of meeting together in smaller groups so as to minimise potential spreading of the virus.
  • Lead the way in terms of the behavioural change expected of citizens, including:
    • Washing hands frequently with soap  and water or hand sanitisers for a minimum of 20 seconds. (To this end, religious organisations may consider installing hand sanitiser units in their offices / places of meeting).
    • Covering nose and mouth when you cough or sneeze, covering with a tissue or flexed elbow.
    • Avoiding anyone with flu-like symptoms. (To this end, many religious organisations are asking members to stay away from meetings if they are feeling sick).  
    • Minimising physical contact. (To this end, many religious organisations are encouraging members to create space between each other when coming together – in smaller groups – to worship, pray, etc.)
    • Using the elbow greeting, no shaking hands.
  • Provide their members with information regarding 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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