- On 11 January 2021, the Minister of Cooperative Governance and Traditional Affairs promulgated amended Regulations by virtue of the powers conferred upon her in terms of the Disaster Management Act, No. 57 of 2002.
- Unlike the original Regulations first promulgated in March 2020, there is no prohibition on places of worship remaining open, nor any directive requiring such places of worship (which includes mosques) to close under the current Regulations. In this respect places of worship are excluded from the list of places and premises closed to the public under Regulation 39.
- On this basis it is our view that masjids may remain open. The SAPS therefore have no power to close masjids.
- The amended Regulations, unlike its predecessor, now make a clear distinction between social gatherings on the one hand and faith-based gatherings on the other. In terms of Regulation 36(3) all social gatherings and faith-based gatherings are prohibited. However, the Regulations do not prohibit “religious gatherings” as previous versions of the Regulations clearly did. The terms “Religious gatherings” has already, months prior to the current Regulations, been clearly defined in the Directions relating to norms and standards for religious gatherings as “a gathering at a place of worship for religious purposes”. The non-usage of the term “religious gathering” and the usage of the term “faith based gathering” is in our view deliberate. The two terms are clearly distinguishable.
- We therefore remain of the view that there is a difference between faith-based gatherings (which are prohibited) and religious gatherings (which are not prohibited).
- Regulation 36(3) does not clearly proscribe or prohibit religious gatherings for the following reasons:
(a) the Regulations do not require the closure of places of worship to the public. Such places may continue to remain open;
(b) The Regulations previously prohibited religious gatherings. The prohibition now only extends to social and faith-based gatherings. The failure to clearly prohibit religious gatherings along with the different use of terminology is in our opinion an indication that religious gatherings are not prohibited.
(c) Any interpretation that the Regulation prohibits religious gatherings because it constitutes a faith-based gathering is in any event irrational and unconstitutional in the context of the provisions of regulations 36(6), (7), (8) and (14) that permit gatherings at casinos, cinemas, theatres, museums, galleries, libraries, gyms and fitness centres, and the like.
- In all the premises, religious gatherings in mosques has in our view not been proscribed or prohibited in terms of the current Regulations.
- In addition, and to the extent that the authorities differ with this interpretation we draw specific attention to the fact that it is clear from Section 47 which deals with offences and penalties that it is not a criminal offence to breach Regulation 36. Accordingly, no one may be arrested for attending a religious gathering as defined.
- In terms of Regulation 36(18), where a gathering in contravention of the Regulations takes place, an enforcement official must first order the person to disperse immediately before exercising the powers under the Criminal Procedure Act, such as the power to arrest. In our view, a religious gathering does not amount to a gathering in contravention of the Regulations by virtue of the aforementioned.
- We submit that any attempts by the SAPS to shut down mosques or arrest worshippers or otherwise prohibit the lawful exercise of the right to worship would be unconstitutional and unlawful.
- We also submit in the light of what we have said above that SAPS, as an organ of state, would be constitutionally obliged to obtain a court order confirming its interpretation of the relevant Regulations before purporting to exercise powers that are seriously questionable.
Issued by AMPSA Shura Council