High Court judge gives government free pass to ban religious gatherings at will

Cogta minister Nkosazana Dlamini-Zuma

By Freedom of Religion South Africa

The Johannesburg High Court has dismissed applications by four organisations which challenged the government’s total nationwide ban on religious gatherings in December 2020 / January 2021 while other gatherings were allowed to continue.

In a media release, one of the four organisations, Freedom of Religion SA (FOR SA), says it intends to appeal the judgment to the Supreme Court of Appeal (SCA) in Bloemfontein. The other groups whose applications were dismissed are the South African National Christian Forum (SANCF), Solidariteit Helpende Hand NPC and the Muslim Lawyers Association.

In a relatively brief 25-page judgment handed down on Monday, 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.

Despite this initial finding, he went further and found 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). This means that there was no obligation on the Cogta minister to give reasons for her decision to ban religious gatherings, or indeed to consult with affected parties.

In addition, since it was not clear who would qualify as a “religious worker”, the Court refused to declare “religious workers” as an “essential services” category in terms of the Regulations.   

“FOR SA is extremely disappointed with the outcome, which sends a message to the millions of believers in South Africa that their faith can literally be reduced to praying at home,” says FOR SA executive director, Michael Swain.

“The finding that the matter has become moot because the ban is no longer in place, goes against extensive international precedent. The highest courts in countries around the world have found that as long as Covid-19 is around and there is a threat that government may impose the very same regulations again, the issue remains live and is therefore justiciable. Similar findings in other cases involving the regulations have been made in other courts in South Africa, including in the SCA.”

‘Unfettered power’
Regarding the court’s refusal to scrutinise Government’s actions because it constituted executive (rather than administrative) action, Swain said: “This finding 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.”

FOR SA is in the process of preparing an application for leave to appeal the judgment, which it believes 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, together with similar applications by four others organisations, was heard in a virtual hearing before the Johannesburg High Court from November 22 to 24.

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  1. What could we expect from a communist ruled ANC in bed with China, Russia and Iran. President Ramaphosa puts the ANC first just like Jacob Zuma did and just look at the state of our country now – poverty, fraud, corruption, lawlessness abounding in every Province of South Africa – including Ministers in parliament themselves.
    I also blame all the Pastors in our nation as not anyone of them banded together and took a firm stand when the restrictions were imposed on church gatherings. All they did was kept quiet with being meek and mild and just prayed for our government.
    The Pastors had valued point to prove to the court why are casinos, bars, nightclubs, shopping malls, including protests noted in the media where thousands of EFF and others protested about some grievance or another, including a lot of other big events that allowed thousands of people to attend, and yet the Church was subjected to strict regulation allowing 100, then 250, then 500, then 750.
    A mega large church in Bloemfontein and in Randburg was subjected to a visit one Sunday morning during church service when a barrage of police descended on the church, stopping the service, taking photos inside, checking how many people in attendance. This was NEVER done at any casino, mall, protest, bar, etc!!
    In comparison to other protests that are held around our country – the people who are grieved about a situation take a stand and voice their opinions loud and clear and even given TV coverage.
    They have got only themselves to blame for keeping silent and not banding together and taking a stand against these unjust restrictions on church gatherings in the past and perhaps going forward.

  2. Richard Bucksey

    I do not see what the fuss is about, Christians are told to obey the laws of the land. Not gathering or partial gatherings should not affect a person’s spirituality, although fellowship is satisfying. There may be a reduction in tithes but that is a faith thing in giving and receiving. Large gathering of any kind are super spreader events and all gatherings were affected to some degree. Blessed are you when people persecute you (if you so feel in this saga) because of me, rejoice and be glad. It is not worthy to make spurious accusations against all Pastors, they are accountable to God for us. Not by power, nor might but by my Spirit says the Lord Almighty.

  3. Much damage to the Kingdom of God and to Christian society is on the increase, while Christians do very little in practice to re-establish righteousness where governments fail to lead based on sound Biblical values and laws of the land or international law. We as Christians and good stewards seem very wary of and reluctant to apply the Doctrine of Lesser Magistrates where recognized structures in church and society take over the management of critical affairs.

  4. Simon P P Martheze

    May Father God, himself, the judge of all judges come against every evil ruling that blatantly is lodged against the freedom of God’s church and the advancement of His Kingdom. And may He remove every bad judge, magistrate, politician and administrator and raise up righteous men and women who will rule in favour of justice, peace and blessing, in Jesus name. Amen.

  5. ”The mills of God grind slowly; but they grind exceeding small”
    Gal. 6: 7-10