An application by religious organisations seeking a declaration for the Covid-19 regulations around religious gathering to be unconstitutional is being heard in the Johannesburg High Court.

Freedom of Religion South Africa’s (FOR SA’s) challenge to the complete nationwide ban imposed on religious gatherings by the co-operative governance and traditional affairs department (Cogta) in terms of the Covid-19 lockdown regulations earlier this year will be heard virtually from Monday until Wednesday.

“FOR SA is asking the court to define in which circumstances, and to what extent, government can restrict people from exercising their religious freedom rights guaranteed by section 15 of the constitution”, said FOR SA’s executive director, Michael Swain.

“This includes the right of people to gather together in person to collectively exercise their faith.”

FOR SA is arguing that the religious community was unfairly discriminated against, and their religious freedom rights violated, when the government, Cogta, enforced a total ban on religious gatherings while permitting other, similar, gatherings to take place.

“Freedom to worship is central to the lives of millions of South Africans. No world should exist where you can sit side by side pulling the handle of a slot machine in a casino, but if you then put your hands together in prayer, you can be arrested and face criminal prosecution.

“Government also cannot hide behind the mask of confidentiality to avoid accountability for its decisions and actions”, added Swain. “The public is entitled to see the science and data upon which the minister relied when she decided that passengers in a crowded taxi were less likely to catch and spread the Covid virus than congregants sitting masked up, sanitised and socially distanced in a place of worship.” said Swain.

FOR SA emphasises that no-one is asking for religious gatherings without proper hygiene, sanitisation and social distancing protocols in place. However, it argues that the government must either decide that all indoor gatherings are safe or that no indoor gatherings are safe.

FOR SA argues that religious leaders must be formally recognised in the regulations as “essential workers”.

“Unless it can show the scientific data to support its position, it is irrational – and therefore unconstitutional and unlawful – for government to allow people to sit together in a restaurant (often unmasked), but to forbid them to sit masked up and socially distanced in a church pew,” said Swain.

Advocate tells court curb on religious gatherings was ‘irrational and arbitrary’

The “irrational and arbitrary” decision to ban religious gatherings is being challenged in a virtual sitting of the Gauteng High Court in Johannesburg.

“Let me make it clear: what is being challenged is not [the] government’s response to the pandemic. What is being challenged is the irrational and arbitrary decision of the minister to prohibit faith-based gatherings whilst she allowed at the same time, a variety of social gatherings in restaurants,” Advocate Margaretha Engelbrecht SC argued on behalf of and Solidariteit Helpende Hand on Monday afternoon.

News24 reported in January that one of the applicants, the South African National Christian Forum (SANCF), had filed urgent papers in the Gauteng High Court in Johannesburg to challenge the lockdown regulations that resulted in churches being closed.

The case, however, was removed from the urgent court roll in February following the announcement by President Cyril Ramaphosa lifting the ban with places of worship being permitted to resume their services with a maximum amount of 50 people indoors and 100 people outdoors, News24 reported.

This did not lead to the SANCF abandoning their notice of motion in the High Court.

The ban on religious gatherings – that the court is being asked to set aside – is not currently in place as restrictions have been eased.

While Engelbrecht conceded this fact, she argued that this does not mean that the matter is not justiciable.

Engelbrecht argued that while the ban has been lifted, the country is moving towards the December period, and a real possibility exists where the Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma may ban faith-based gatherings once more while keeping open restaurants, gyms, and casinos.

She raised the issue that during the period where faith-based gatherings were prohibited, shopping malls and restaurants were allowed to operate, and people could gather socially.

“We are not trying to say that it is the same to be in the gym than it is to be in a church – what we are saying is that there is no scientific basis to come to the conclusion that one is more likely to spread the coronavirus when you are attending church service [in a broad sense] ….” she said.

In her argument, Engelbrecht questioned what distinguishes the faith-based attendees from people sitting in a restaurant without a 1.5 m distance and those that go to casinos, and other public places.

Source: News24, Timeslive