28 April 2021
(URGENT, AND HIGH PRIORITY)
Dear Honourable Minister Motshekga,
1. We refer to the Directions regarding the re-opening of schools issued by yourself on 23 April 2021, and published in Government Gazette No. 44486 under Notice No. 224 of 2021 on the same date (“the current Directions”), in terms of which certain specified activities are permitted to resume at schools – without any spectators, and subject to compliance with health and safety, and social distancing, measures.
FOR SA and our constituency:
2. Freedom of Religion South Africa NPC (FOR SA) is a legal advocacy organisation working to protect and promote the religious freedom rights (section 15 of the Constitution) of all South Africans, regardless of their specific religious or ideological beliefs. FOR SA is, therefore, neutral and non-partisan in terms of any interpretation of doctrine, faith or belief to the extent that it complies with the rule of law.
3. In the matter of COVID-19 and the impact of the Regulations on the religious community of South Africa, FOR SA has been mandated by religious leaders and organisations representing between 11 million and 18.5 million people (including 10 million people from the African Indigenous and Spirituality Churches) from a cross-spectrum of churches, denominations and faith groups, to engage with Government and make submissions on their behalf.
Impact of the Directions on the religious community’s constitutional and legal rights:
4. As you are aware, the Amended Adjusted Level 1 Regulations (dated 30 March 2021) have increased the number of people allowed at religious gatherings to 250 (for indoor venues) and 500 (for outdoor venues), subject to the necessary health, sanitisation and social distancing protocols.
5. This notwithstanding and as we will explain below, many small and medium-size churches and other religious organisations are still not able to meet at all and as such, continue to be hindered in the exercise of their and their congregants’ constitutional right to meet and to collectively exercise their faith (sections 15, 18 and 31 of the Constitution).
6. This is due largely to Clause 5(10) of your Department’s Directions dated 23 June 2020 (“the previous Directions”), which reads:
“all events at schools, including sport, choral eisteddfods or choir rehearsals, arts and other cultural festivals remain suspended until a date determined by the Minister or an official delegated by the Minister, after consultation with the Cabinet”.
7. Various schools, as well as the Office of the Head: Education of the Western Cape Government, have interpreted the above as meaning that:
“the directions do not allow for non-education activities. Schools or school halls may not be used for church services, funerals or other public gatherings” (our emphasis).
8. Although the previous Directions – which effectively suspended all events at school (and also prohibit church services, funerals and other public gatherings from taking place in their buildings) – were promulgated under Alert Level 3, to the best of our knowledge, they have not been amended or set aside. As a result, many schools have not allowed the resumption of church services at their premises.
9. We record that FOR SA has previously (on 30 September 2020, and again on 28 October 2020) written to you in this regard, but have unfortunately not had any reply from your Department.
10. As stated in that correspondence, it is a fact that (at least partly because of the legacy of apartheid and the economic disparities and disadvantages it created) the vast majority of religious organisations in South Africa do not own their own buildings. Many of them, therefore, have no option but to make use of schools or school halls (in terms of a rental agreement with the school) for their religious gatherings.
11. As a result of the previous Directions however, many churches and religious organisations have not been able for 10 months now, and continue to be unable, to meet collectively to practise their religion and in so doing, to exercise their constitutional rights as a religious community (sections 15, 18 and 31).
12. The Directions, therefore, continue to directly infringe upon, and limit, a vast number of people’s constitutional rights to religious freedom as found in sections 15, 18 and 31 of the Constitution.
13. You will appreciate that this severe and ongoing limitation of the religious community’s fundamental rights, leaves them and their members in a precarious position.
Rationale for continued limitations:
14. The current Directions allow for the resumption of inter alia sport matches (both contact and non-contact), extracurricular activities, and tournaments (including inter-school, district, provincial and national) up to 250 people (indoors) and 500 people (outdoors).
15. Even without spectators being permitted, learners and staff are mixing with large amounts of other people (such as other participants, referees, adjudicators, technical officials, volunteers, medical team, media or broadcasting team, stadium workers etc.) All of these activities, which are not subject to any time restrictions and at least in the case of contact sport implies very close proximity of persons, have an inherent risk of furthering the spread of COVID-19 in the school environment – and pose no less (if not a greater) a risk than religious gatherings, which are subject to strict restrictions on numbers of people, the length of time that they are allowed to meet, and proximity of persons at those meetings.
16. The current Amended Adjusted Regulations, as well as the previous Level 1 Directions for religious gatherings dated 1 October 2020 which have not been amended and/or repealed by the COGTA Minister, impose very strict and indeed, more onerous, restrictions on religious gatherings than what applies in respect of any other sector of society. As such, there is no reason why a church or other religious organisation should not be able to meet in a school hall, which will be properly sanitised both before and after use. Thus, there is no credible threat of contamination.
17. In this regard also, we refer to the question put to you by Honourable Mrs Marie Sukers MP (dated 18 November 2020):
17.1. In her question 631, Honourable Mrs Sukers asked what the Department of Basic Education’s rationale and reasonable justification was for limiting School Governing Bodies’ (SGBs) rights to lease out their school premises to churches or other religious organisations, when the school hall will be properly sanitised both before and after use.
17.2. Your answer was that limiting access to schools by visitors and other people from outside the school, was part of the non-pharmaceutical interventions to prevent and contain COVID-19 in the school environment. As such, only the people who have to be physically on-site at the school, should be allowed access to the school premises, because every individual presents a risk of transmitting the virus, thereby potentially placing learners and school staff at risk (own emphasis.)
17.3. We note that the above non-pharmaceutical interventions were taken by your Department upon the advice of the Department of Health.
18. We pause to point out that surely the individuals who present a risk of transmitting the virus, are individuals who interact with learners and staff at school, such as parents and/or spectators at sporting events. It cannot be that an external religious service, held on a non-school day when none of the learners or staff are present, and where the strictest health and sanitisation protocols are followed, presents a risk of transmitting the virus to learners and staff (which is the Department’s concern).
19. Even in a situation where some learners and staff choose to voluntarily attend a religious service held at a school over a weekend, given the strict health and sanitisation protocols required, it should not pose any more risk or threat to said learners or staff than going to buy groceries at the local supermarket.
20. Finally, we point out that many schools (particularly those in poor and disadvantaged communities) are dependent on the income derived from these rental agreements with churches or other religious organisations to assist with the provision of better facilities and equipment for their learners. Since the DBE’s Directions force schools to dishonour these rental agreements, it is inevitable that this will have a detrimental (and continuing) negative effect on their finances and income.
21. In the circumstances, FOR SA requests – as a matter of urgency and high priority – that you liaise with the Minister of Health with regard to this matter, and with a view to lifting this restriction which was imposed during Alert Level 3 and should no longer apply at Alert Level 1 and/or at this stage.
22. We trust that our request will meet your favourable consideration, and would be grateful to consult with you in this regard.
23. We look forward to hearing from you by close of business on Friday, 7 May 2021, in order for FOR SA to advise our constituency accordingly.
Adv Nadene L. Badenhorst
Legal Counsel, FOR SA