Judgment reserved in challenge to religious lockdown regulations

After three days of virtual hearings in an application by four organisations challenging the government’s ban of religious gatherings the High Court in Johannesburg yesterday reserved judgment.

Freedom of Religion South Africa (FOR SA), the South African Christian Forum (SACF), Solidariteit Hulpende Hand and the Muslim Lawyers’ Assocation are seeking an order that the total prohibition of religious gatherings in December last year and in January this year were unconstitutional and unlawful.

The applicants argued before Judge Bashier Vally that co-operative governance and traditional affairs minister Nkosazana Dlamini-Zuma’s decision to ban all manner of faith-based gatherings at a time when she allowed taxis, shopping malls, casinos, restaurants and others to operate was arbitrary and irrational.

Rusty Mogagabe SC, counsel for the minister, who is opposing the applications, argued that the matter was moot because the regulations that were being challenged had been replaced with regulations which permit faith-based gatherings.

The moot argument was rejected by applicants who said there is a real prospect that the minister could ban religious gatherings again if there is another rise in Covid infections.

Advocate Nadene Badenhorst, legal counsel for FOR SA, told Gateway News today that it was a tough three days of intense court hearings.

She said the court asked a number of times: “What was the minister supposed to do?” Badenhorst said the minister said in papers they had curbed gatherings to save lives and livelihoods. She said FOR SA’s response was that there was no scientific proof to show that the virus only moves in religious gatherings or that it moves to a greater extent in religious gatherings than in others and therefore religious gatherings present a greater risk. They argued that “unless the minister presents the science then it is unfair discrimination to ban the one but keep the others open”.

She said it was impossible to say when the judgment would come out but the judge did say he would try to bring it out as soon as possible — before the end of the court term in mid December.

Bishop Marothi Mashashane, president of SACF, said: “We are confident that we have made our case though we don’t want to pre-empt the outcome. But this is a good test for the judiciary as to whether it is independent or captured to rubber stamp the state’s wrongful actions.”

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