Challenge on religious gathering ban is moot as regulations were replaced, court hears

Ernest Mabuza Journalist
The legal challenge by four organisations against an outright ban on faith-based gatherings would have no practical effect because the ban has long been lifted, Cogta minister Nkosazana Dlamini-Zuma's counsel has argued. Stock photo.
The legal challenge by four organisations against an outright ban on faith-based gatherings would have no practical effect because the ban has long been lifted, Cogta minister Nkosazana Dlamini-Zuma's counsel has argued. Stock photo.
Image: 123RF/PHARTISAN

The challenge brought by four organisations against regulations prohibiting faith-based gatherings under lockdown regulations is academic because those rules were replaced.

Rusty Mogagabe SC, counsel for co-operative governance and traditional affairs minister Nkosazana Dlamini-Zuma, made this submission in the high court in Johannesburg on Tuesday.

He said the court only had to deal with the regulations promulgated by the minister in December 2020 and January 2021.

Mogagabe said these regulations prohibited not only faith-based gatherings, but also banned social gatherings, political gatherings and gatherings of traditional council meetings.

“For the record, these regulations are no longer in force, no longer operative. They have been superseded and replaced by a series of regulations since the applications were launched,” Mogagabe said.

Mogagabe said when the urgent application by these organisations was before the high court on February 2 this year, the prohibition on religious gatherings was uplifted by the minister.

Mogagabe said following the new regulations being instituted on February 1, the challenge to the regulations became moot. He said mootness arose when a matter no longer presented a live or existing controversy.

“It is based on the notion that judicial resources ought to be utilised efficiently and should not be dedicated to advisory opinions or abstract propositions of law, and courts should avoid deciding matters that are abstract, academic or hypothetical.

“As these regulations are no longer in place, in force, what is there to be set aside? Can the court set aside or deal with regulations which have long been —  it has been 10 months down the line — superseded?” Mogagabe asked.

He said any declaration by the court that these regulations were constitutionally invalid would not serve any practical purpose.

“It will be for academic interest and will have no practical application. Given that the constitutionality of these regulations is not before the court, it is not permissible for this court to pronounce on whether these regulations pass constitutional muster. Therefore the challenge is moot,” Mogagabe said.

He said if the court were to strike down the challenged regulations, as matters currently stand, what practical value or benefit would it have for the applicants.

“The prohibition has been uplifted. The number of congregants has been increased. It will not have any practical effect or benefit, now or in the future.” 

Mogagabe will continue with his arguments on Wednesday.

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