by Adv Nadene Badenhorst
29 November 2021

Judgment has been reserved in FOR SA’s court case against Government, challenging the complete ban on religious gatherings (in December 2020 / January 2021) in terms of the COVID-19 Lockdown Regulations when other gatherings at casinos, cinemas, restaurants etc. were allowed to continue. FOR SA argued that this constituted unfair discrimination against the religious community, and also amounted to a violation of the constitutional right to religious freedom (section 15). This right includes the right of religious people to gather – in person, together with other believers – to collectively exercise their faith.

FOR SA’s case was heard – together with similar applications by the South African National Christian Forum (SANCF), Solidariteit Helpende Hand, and the Muslim Lawyers Association (MLA) – in a virtual hearing before the Johannesburg High Court from Monday, 22 to Wednesday, 24 November 2021.

It is not certain when the judgment will come out, but Judge Vally (who heard the case) did give the assurance that he would attend to it as soon as possible and would aim to get it out before the end of term (mid-December 2021).

While it is always difficult to say which way it will go, FOR SA is confident that we have put up a rock solid case and that the law is on our side. We could not be happier with the way in which we (and the outstanding legal team representing us, who dedicated enormous amounts of time and high-level expertise to this matter) presented our case on behalf of the millions of people in South Africa who believe that meeting together – in person, together with other believers – is an essential part of their faith.

This case will set an important legal precedent concerning the reasons for which, and the extent to which, Government can interfere with our constitutionally protected rights – particularly in light of the fourth wave of the COVID-pandemic that is underway, and the possibility that Government may well shut down religious gatherings again.

Watch this video to see Adv Adrian Botha SC present FOR SA’s arguments to the Johannesburg High Court on why the complete ban on religious gatherings was unconstitutional, and unfairly discriminated against the religious community.  Watch our reply (presented by Adv Richard Crompton, and Adv Reg Willis) to the State’s arguments here.

Arguments made before Court

1st Argument – Mootness:
The first hurdle that the parties had to overcome and which occupied much of the parties’ argument, was that of “mootness”. Government (represented by Adv Rusty Mogagabe SC) opposed the application on the basis that since there is no longer a ban on religious gatherings, there is no longer a live issue before the Court. As such, the issue has become moot (academic) and should not be entertained by the Court.

FOR SA and the other parties argued however that, as long as there is the risk of further waves of the pandemic and the 5-stage regulatory framework is still in place, the issue cannot be moot – particularly in circumstances where the COGTA Minister has not at any stage stated that she will not again ban religious gatherings while allowing other, similar activities to continue. The Disaster Management Act excluded the supervision of Parliament. The approach taken by the COGTA Minister will exclude the scrutiny of the courts, which will leave the executive with an unfettered discretion.

The defence of mootness has been raised by government authorities before various foreign courts. In the majority of those matters, the Courts found the matters were not moot and that it was in the interest of justice for the court to entertain the matters, especially since they involve the government’s respect for, and protection of, fundamental human rights during a time of national disaster.

If the Court finds that the matter is moot, as argued for by the Government, that will be the end of the matter and there will be no need for the Court to even go into, and decide, any of the other issues.

2nd Argument – The Regulations are unconstitutional:
FOR SA and the other parties argued that the ban on religious gatherings violates, amongst others, the right to religious freedom (section 15 of the Constitution), which includes the right to gather in person with other believers to collectively exercise one’s faith.

In support of this argument, FOR SA relied on case law from various foreign courts (including the US Supreme Court, and the Scotland Supreme Court), stating that remote viewing (via online broadcasts and services) is not the same as, and is no substitute for, gathering in person, which (for many believers) is fundamental to the practising of their faith.

The reality is, that while many churches and religious organisations have embraced live-streaming over the internet to keep contact with their members during lockdown, millions of people in South Africa do not have the means and infrastructure to “find new ways of worship” as the President instructed. As a result of the ban, they were therefore completely prohibited from exercising their constitutionally protected religious rights.

FOR SA argued further that the fact that other gatherings (including at cinemas, casinos, conferencing facilities, gyms and restaurants) were allowed to continue while religious gatherings were banned, amounts to unfair discrimination against the religious community (s 9 of the Constitution). Although the COGTA Minister says that religious gatherings are “super spreaders”, there is in fact no scientific evidence that religious gatherings where the necessary health protocols are observed, pose any greater a risk than any other type of gathering. (In this regard, we pointed out that the Bloemfontein gathering happened before any protocols were put in place).

In this regard again, FOR SA relied on foreign case law condemning the favouring of secular business over religious gatherings, in relation to COVID-restrictions.

3rd Argument – The Regulations are unlawful:
FOR SA and the other parties argued further that the Regulations were unlawful in terms of the principles of administrative law.

In terms of these principles, firstly, the COGTA Minister – in promulgating Regulations – is obliged to follow a fair public participation process. FOR SA argued that the Minister’s repeated failure to include FOR SA (who was authorised by religious leaders and organisations representing up to 18.5 million people from a cross-spectrum of denominations, churches and faith groups to represent them in our engagements with Government) in the consultations on the Lockdown Regulations, was procedurally unfair.

The COGTA Minister is further legally obliged to provide reasons for her decisions, and cannot hide behind “confidentiality” as an excuse. FOR SA (and indeed the public) have a legal right to know on what grounds, and for what reasons, the decision to completely and indefinitely ban religious gatherings while allowing other gatherings to continue, was made. Without the relevant information, it is impossible to test whether the Minister’s decision was rational and necessary, as supported by the science / data.

4th Argument – Recognising religious leaders as “essential workers”:
FOR SA argued finally that, despite the President’s express recognition of religious workers as “essential frontline workers for purposes of spiritual counselling” as early as 26 May 2020, religious workers have to date not been recognised, and included, as such in the Regulations.

The issue arises from time to time, when curfews are put in place or the Alert Level is adjusted. In terms of the Regulations, it is only essential services that can operate outside of the curfew hours. The failure to include religious leaders in this category, means that they are unable to minister to their congregants and the communities they serve outside of permitted hours in terms of the curfew. Matters such as administering “last rites” and attending to ill and vulnerable people are urgent matters that may arise outside of curfew hours.

Foreign courts have already found that it is wrong and unjustifiable to equate religion with non-essential services, when it is anything but non-essential.

Will you stand with us to protect faith and freedom?

FOR SA is grateful to have been able to work together with an excellent and diverse team of Advocates and attorneys in developing and presenting this critically important case.  Without the help and high-level expertise of these men and women, we would not have been in a position to file this case or to fight this battle.  
Although all the Advocates and attorneys in the legal team are involved because of their personal conviction to protect and promote religious freedom, they have – since January 2021, when the case was first instituted – dedicated an enormous amount of hours to this matter (at the expense of other paying work). If “normal fees” had to be charged, the cost would be a few million Rand.  This does not take into account the additional, substantial and unavoidable hard costs and disbursements in the form of photocopies, printing costs, telephone calls, petrol, etc (which already run into tens of thousands of Rands and has to come out of FOR SA’s own pocket). 
In the circumstances, we are appealing to ask you if you will make a difference by contributing financially to help cover some of the costs of this case? The reality is that FOR SA (as a non-profit organisation that is entirely reliant on voluntary contributions for our continued existence), is not able to fund litigation out of our own pocket.  Every donation that is given to FOR SA is 100% necessary to pay for our operational costs on a monthly basis, which enables us to fulfil our vital work of protecting religious freedom before Government, Parliament and (as in this instance) the Courts.  
To make a donation towards this specific case into our attorney’s trust account, please use the following details:

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

To donate to FOR SA’s work in general, please see https://forsa.org.za/donate/

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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.

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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  • Informing us, should you become aware of any case in which religious freedom is threatened.