Court reserves judgment as religious bodies challenge lockdown laws
Courts should show caution before encroaching upon the terrain of the national executive when deciding on the application challenging lockdown regulations which banned faith-based gatherings in December 2020 and January 2021.
Rusty Mogagabe SC, counsel for co-operative governance and traditional affairs minister Dr Nkosazana Dlamini-Zuma, made this submission in the high court in Johannesburg on Wednesday in response to arguments made by four organisations which launched the challenge.
The South African National Christian Forum, Solidariteit Helpende Hand NPC, Freedom of Religion SA (FOR SA) and the Muslim Lawyers' Association seek an order declaring that regulations which eliminated the right to gather to worship were unconstitutional and unlawful.
They also seek to set aside the regulations promulgated by the minister in December 2020 and January 2021, which imposed a ban on all religious gatherings during those periods of lockdown.
The minister is opposing the applications and said the matter is moot because the regulations that were being challenged had been replaced with regulations which permit faith-based gatherings.
After three days of hearing arguments from the parties, judge Bashier Vally reserved judgment.
In his submissions on Wednesday, Mogagabe said the rationality inquiry by the court cannot evaluate a policy choice of government.
“We submit that in this case the courts should show caution before encroaching upon the terrain of the national executive in deference and respect to the hallowed principle of separation of powers,” Mogagabe said.
He said there was no rule book on how to manage the coronavirus pandemic and the government has to find a way to balance its role in protecting people’s lives and the respect of other constitutional rights.
“As a matter of executive policy, the minister has opted to balance these competing policy-laden decisions ... by means of a temporary prohibition on religious gatherings that only last for as long as the infection rates are unacceptably high.
“As such, the courts should be disinclined to frustrate the executive policy choices in these times of ravaging national disaster,” Mogagabe said.
However, counsel for Solidariteit, Greta Engelbrecht SC, said it was not good enough for the minister, without the support of the record, without the support of information, to seek to justify her decisions that are under challenge in this review.
“On the question of where we go next, how do we evaluate, even if it is not reviewable under Paja (Promotion of Administrative Justice Act), then we still remain a country under the rule of law and that means the principle of legality applies,” Engelbrecht said.
She said the minister must satisfy either the test under Paja or must satisfy the rationality test.
“To do so, she had to put up a record and she had to put up reasons and she declined to do so,” Engelbrecht said.
Engelbrecht said the only reason given to Solidariteit was that it was more difficult to control religious gatherings compared to other gatherings.
Richard Crompton, advocate for FOR SA, said parliament had had no say in the regulations and were not able, in terms of the Disaster Management Act, to oversee the executive in any sort of way.
“So what we are left with is a judicial review of the executive action,” Crompton said.
Crompton said in this case, the government has argued that the matter was moot and barely dealt with the regulations.
“What we will have is an executive without any form of check or balance which is the very essence of the separation of powers,” Crompton said.