Lockdown: Issue of curb on religious gatherings still relevant as state of emergency continues, court hears

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The Sultanahmet Mosque in Istanbul, Turkey gets disinfected before a prayer service during the Covid-19 pandemic.
The Sultanahmet Mosque in Istanbul, Turkey gets disinfected before a prayer service during the Covid-19 pandemic.
Sebnem Coskun/Anadolu Agency via Getty Images
  • An applicant in the challenge of the previous ban on faith-based gatherings argues that the matter is not moot as the state of disaster still exists.
  • Counsel on behalf of Solidariteit Helpende Hand were responding to the Cogta minister's submission that the regulations were no longer in place.
  • Judgment reserved.

The Gauteng High Court in Johannesburg continues to hear the challenge of the previous ban on faith-based gatherings, with Solidariteit Helpende Hand submitting that the matter was not moot as the state of disaster was still in effect.

"On the issue of mootness ... in the present case, the state of emergency came, but it hasn't gone. It continues to exist. The basis for the minister making regulations in relation to, amongst other things, religious gatherings still exists. So, the matter is not moot," advocate Margaretha Engelbrecht SC argued during replies on behalf of and Solidariteit Helpende Hand.

The court is now on the third day of the virtual hearing of the special motion application, which challenges the December 2020 and January 2021 regulations, which, among other things, placed a ban on faith-based gatherings.

This comes after one of the applicants, the South African National Christian Forum (SANCF), had filed urgent papers in the Gauteng High Court in Johannesburg to challenge the lockdown regulations that resulted in churches being closed.

The case, however, was removed from the urgent court roll in February following the announcement by President Cyril Ramaphosa, lifting the ban with places of worship being permitted to resume their services with a maximum amount of 50 people indoors and 100 people outdoors, News24 reported.

The regulations which are the subject of the matter are no longer in place.

READ | Lockdown: 'These regulations are no longer in place', govt responds to court action on religious gatherings

However, parties had previously argued that the matter was still justiciable.

On Tuesday, counsel on behalf of the Cooperative Governance and Traditional Affairs (Cogta) Minister Nkosazana Dlamini-Zuma raised the issue of mootness when counsel asked what needed to be set aside if the regulations were no longer in place.

"... These regulations are no longer place [enforced]... what is there to be set aside? Can the court set aside or deal with regulations which have long, almost ten months down the line, been superseded," advocate Rusty Mogagabe SC previously argued.

Mogagabe further argued that even if the regulations were re-introduced, it was not guaranteed that they would be re-introduced in a similar manner.

In her replies on Wednesday afternoon, Engelbrecht submitted that the challenge was not about the restrictions, but rather about the outright ban on religious gatherings.

"... So, when we accept that, we must accept that a ban is a ban is a ban. It will always look the same and mean that [people] cannot gather on the basis of faith," she argued.

Judgment was reserved.

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