The following article, written by journalist Ernest Mabuza, appears in today's Sunday Times and includes expert comment from our Director, Kevin van Huyssteen.
Everyone has the right to freedom of conscience, religion, thought, belief and opinion — so says the Bill of Rights, which is what Freedom of Religion SA (For SA) is relying on in a court action against the government.
The application to the Johannesburg high court challenges the December 28 lockdown ban on faith-based gatherings, which was partially eased this week.
But For SA says it will pursue the legal action anyway to obtain judicial clarity on the issue.
Michael Swain, executive director of the organisation, said SA might face further waves of Covid infection, which could push the government to try to renew the ban on faith-based gatherings.
“It is therefore critical that we establish a precedent regarding the reasoning and basis upon which government can lawfully regulate religious gatherings as the pandemic unfolds,” Swain said.
In its court application For SA said its arguments relied on section 15 of the constitution, which guarantees the right to freedom of religion.
Swain said the limitation of section 15 rights by the lockdown regulations was not reasonable or justifiable “in an open and democratic society based on human dignity, equality and freedom”.
However, in responding court papers, the minister of co-operative governance & traditional affairs, Nkosazana Dlamini-Zuma, said the lockdown regulations had been justified.
“All rights, including the right to freedom of religion, are subject to limitation under section 36 of the constitution,” she said. “The regulations, to the extent that they limit the right to freedom of religion, constitute a justifiable limitation.”
Dlamini-Zuma said the latest ban on gatherings had been implemented in response to the second wave of Covid-19 infections.
“The temporary prohibition is rational, reasonable and justifiable,’ she said in her answering affidavit.
Kevin van Huyssteen, director at Fluxmans Attorneys, predicted the court would concur with the government’s argument based on section 36 of the constitution.
“There can be little doubt that the restriction on religion association in terms of the Covid regulations ticks all the boxes for a valid limitation of a provision of the Bill of Rights,” he said.
“The importance and purpose of the limitation is clear to see, namely the necessity to limit numbers in a crowded, confined space to assist in reducing the spread of the virus, which can be lethal.”
Van Huyssteen said the regulations had been aimed at maintaining social distancing, a universally accepted method of reducing transmission.
“It follows that there is a direct and rational link between limiting numbers at religious gatherings and achieving the intended purpose. No immediately apparent less-restrictive means exist to achieve the objective.”
He said the current restrictions did not ban religious gatherings altogether but placed a limit on numbers and prescribed social distancing protocols.
“Thus the limitation is reasonable and justifiable in an open and democratic society.”
Another attorney, Llewelyn Curlewis, said that in the US, religious groups had successfully argued that restrictions on faith-based gatherings violated First Amendment rights to the free exercise of religion.
Curlewis cited a case in November last year in which the US Supreme Court struck down restrictions on attendance at religious services in New York state.
“South African courts might not take the approach adopted by the US Supreme Court [but] may allow the government to limit the right of freedom of religion for a limited period.”
