FOR SA asks to appeal ‘dangerous’ High Court judgment on religious gatherings

High Court Johannesburg (PHOTO: Sharon Seretlo, Gallo Images/News 24)

The Johannesburg High Court has granted FOR SA leave to appeal its judgment to the Supreme Court of Appeal in Bloemfontein

Freedom of Religion South Africa (FOR SA) will argue tomorrow that it be allowed to appeal last month’s judgment by the Johannesburg High Court dismissing its challenge to the government’s ban on religious gatherings in December 2020/January 2021 while other gatherings were allowed to continue.

The judgment “puts unfettered power in the hands of government” and “is too important and too dangerous not to appeal”, says Michael Swain, executive director of FOR SA in a statement.

Tomorrow’s application for leave to appeal the judgment to the Supreme Court of Appeal (SCA), is opposed by the State.

In last month’s judgment Judge Bashier Vally found that since the ban on gatherings was no longer in place, the matter was moot (academic) and that it was therefore not in the interest of justice to decide the issues before the court. He also said that since the Covid-19 Regulations were in the nature of “executive policy”, the regulations were not subject to the review of the courts in terms of the Promotion of Administrative Justice Act of 2000 (PAJA).

Swain says: “FOR SA is asking for permission to appeal the matter, because the High Court’s refusal to scrutinise Government’s actions has massive implications — not just for the religious community, but for the people of South Africa in the broadest sense.

“The Disaster Management Act already excludes parliament’s oversight over the actions of the executive.  This judgment now means that not even our courts can oversee such actions. It effectively puts unfettered power in the hands of government to make unilateral regulatory decisions regarding any and every aspect of people’s lives.

“The judgment is too important, and too dangerous, not to appeal. The effect of the court’s decision harkens back to the pre-constitutional era where immense power was concentrated in the hands of the few. This sets an incredibly dangerous precedent going forward.”

FOR SA’s case against the Cogta minister was supported by religious leaders and organisations representing 11 million people from a broad spectrum of the faith community. The case was heard in a virtual hearing before the Johannesburg High Court from November 22 to 24 November last year, together with other, similar applications by the South African National Christian Forum (SANCF), Solidariteit Helpende Hand NPC and the Muslim Lawyers Association, all of which were dismissed by the Court in its judgment of 13 December 2021

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