Letter to SAPS Jan 2021

Letter to SAPS Jan 2021

TO:
THE NATIONAL COMMISSIONER OF THE SOUTH AFRICAN POLICE SERVICE
THE MINISTER OF SAFETY AND SECURITY
THE GAUTENG PROVINCIAL COMMUNITY POLICE BOARD

Dear Sirs

Regulations regarding places of worship

  1.  We refer to your open letter to all religious organisations dated 1 January 2021.
  2. In it you opine that the regulations  promulgated on  29 December 2020 by  the Minister of Co-Operative Governance and Traditional Affairs  by virtue of the powers conferred upon her in terms of the Disaster Management Act, No. 57 of 2002 “ calls for the complete closure of any congregational facility for prayer “. You rely in this regard on Section 36 (3) of the regulations which prohibits all social gatherings, including, “faith-based gatherings” for two weeks, after which the prohibition will be reviewed.
  3. We respectfully wish to point out that your interpretation of the regulations is at odds with the regulations themselves.
  4. Unlike the original regulations first promulgated in March 2020, there is no prohibition on faith-based institutions or premises  remaining open, nor any directive requiring such premises (which includes mosques )  to close under the current regulations . Section 36 (3) upon which you rely does not either explicitly or implicitly require  closure of any such institution or premises.  It appears that you have elevated  the prohibition relating to faith-based gatherings to a closure of any premises at which faith-based gatherings may take place. With respect, such an approach is flawed.
  5. The prohibition against faith-based gatherings does not result in premises at which such gatherings usually take place being closed under the regulations. We respectfully direct your attention, furthermore, to regulation 39 which clearly identifies places and premises that are closed to the public. Places of worship are excluded.
  6. That with respect ought to be the end of the debate and we would urge you to reconsider the position and approach being adopted by SAPS in this regard.
  7. We appreciate that the regulations prohibit faith-based gatherings and if that is what SAPS seeks to prevent when demanding that mosques be closed, we again draw your attention to the difference between faith-based gatherings (which are prohibited) and congregational prayer (which are not prohibited).
  8. Regulation 36(3) does not proscribe or prohibit congregational prayer  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) under adjusted level 3 there is no prohibition against gatherings per se. The regulation prohibits “social gatherings”;
    (c) the essence of a social gathering is the element of social interaction between people;
    (d) the “faith-based gatherings” contemplated in regulation 36(3) are restricted to those that are primarily social gatherings, the hallmark of which is social interaction among their attendees. Congregational prayer neither entails nor requires any social interaction between individuals;
    (e) SAPS’ interpretation that   the regulation prohibits   congregational prayer 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) and (8) that permit gatherings at casinos, cinemas, theatres, museums, galleries, libraries, and the like.
  9.  In all the premises, congregational prayer in mosques has in our view not been proscribed or prohibited in terms of the current regulations and we (and various other Muslim bodies) have advised the Muslim community of the proper and correct interpretation of the regulations accordingly.
  10. 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.
  11. We hope that we have persuaded you of the misinterpretation of the regulations that SAPs labours under and we are in addition amenable to meet with your legal department to discuss and debate the issue further.
  12. 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.
  13. You are kindly invited to contact the writer hereof to discuss the matter further.

Yours faithfully

Adv. Aslam Motala SC.