Why the court ruled that the ban on religious gatherings is not unconstitutional

By Tanveer Jeewa for GroundUp

Last month a court order was sought to declare the lockdown regulations unconstitutional to the extent that they prohibit congregational worship.

The applicants – Muhammed Bin Hassim Mohamed, Anas Mohammed Chothia and the As Saadiqeen Islamic Centre – wanted the Pretoria High Court, on an urgent basis, to direct the minister to amend the regulations to allow all places of religious worship to remain open, subject to conditions determined by a magistrate.

News of the application caused turmoil in the Muslim community. There was no consensus on whether praying in congregation was compulsory. The United Ulama Council of South Africa (UUCSA), an amicus curiae (friend of the court) in the case, held that many Muslims believed it would not be Islamic to allow the reopening of the mosques. A second amicus curiae, the Women’s Cultural Group, representing numerous Muslim mothers and children’s interests, also aligned with the UUCSA’s position.

On 23 April, the case was heard. The applicants argued that their constitutional rights to freedom of movement, freedom of religion, freedom of association (including religious association) and right to dignity were being unjustifiably limited by the lockdown regulations, and were unconstitutional.

The applicants believed that, upon hearing the call to prayer, Muslims are under a duty to respond by going to a mosque to pray in congregation and the lockdown barred them from exercising this right to practice their religion. Since praying in congregation had now been criminalised, they argued that they were given no choice but to disobey their religion.

Applicants argue ‘right to religion is foundational’

According to them, despite the fact that there is no formal hierarchy of rights, as Muslims they believed that the right to religion is foundational, and should they not be able to exercise it, it would mean that they would not lead a dignified life.

The applicants further argued that the government had already made many exceptions to the “gathering” rule by allowing people to gather to take taxis, to gather for funerals, and also not limiting purchases to essential items only.

The state responded that it is not enough to show that a right has been limited, the court must also be convinced that the limitations are not justifiable. Under section 36 of the Constitution, all rights may be justifiably limited, and this determination involves a balancing exercise considering various factors including but not limited to: the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation, the relation between the limitation and its purpose and, less restrictive means to achieve the purpose.

The view of the state was that the limitation was justified because it aimed to preserve every citizen’s right to life, right to access to health care, and right to dignity given the threat that the coronavirus poses.

The state respectfully conceded that not allowing people to pray in congregation is a painful limitation, but it is necessary given the circumstances.

The state argued that it was impractical to require police officials to regulate every place of worship. Additionally, magistrates would not be qualified to impose conditions under which places of worship were allowed to be opened, due to their lack of information and scientific expertise on this topic.

The Women’s Cultural Centre added that it was common for Muslim men to proclaim that they represented the view of the Islamic community, while simultaneously ignoring Muslim women’s opinions. If the men of the household were to be allowed to pray in congregation, Muslim women and children would be potentially exposed to the virus and their rights to life and dignity would be affected.

Judge Brenda Neukircher, on 30 April, dismissed the application as the applicants had failed to show that the limitations on their rights were unjustifiable.

The judgment pointed out that making exceptions for praying in congregation was not comparable to purchasing essentials for daily living, bidding loved ones goodbye at a funeral, or not having access to private transport and so having to make use of taxis to go to work as an essential worker.

Judge Neukircher acknowledged the plight of the applicants, and noted that all religions were equally affected but also highlighted that everyone has to make sacrifices and do their part in this time of crisis.

Why this case is important

This dispute caused outrage in both Muslim and non-Muslim communities, from Islamophobic sentiments to a call for Muslims to publicly oppose the views of the applicants. However, at a time when legislation is being promulgated frequently and in a rush, it is easy for the state to abuse its power or unknowingly promulgate unconstitutional legislation. Consequently, a positive outcome of this case is that citizens could go to court to challenge limitations on their rights and the public could get clarity on the rationale behind the lockdown regulations and their constitutionality. (No cost order was sought or made against the applicants.)

There has been a common misconception that Muslims are being discriminated against based on their religion. The Constitution prevents unfair discrimination on the ground of religion in section 9(3) and the lockdown regulations do not discriminate on the basis of religion, as they are laws of general application. That means the regulations apply to everyone, regardless of religion, race or any other listed ground for unfair discrimination in section 9(3). Under the regulations, every religious denomination is prevented from praying in congregation, and not only Muslims. Muslims have not been discriminated against on the basis of their religion.

While the applicants’ pleadings were centered around the Muslim’s alleged duty to pray in congregation, they were seeking the relief on behalf of every religious entity. Muslims, like every other religious denomination in this country, have a right to freedom of religion, and may and should appear in court if they believe this right to have been infringed. This is a sign of a thriving democracy where the people keep the state in check, despite that national state of disaster.

However, in his interview on his stance about Muslims praying in congregation after the court proceedings, Attorney Zehir Omar (for the applicants) emphasised that he believed that the court proceedings were a tacit endorsement of Muslims’ right to pray in congregation as the hearing itself had been a gathering. He proceeded to encourage Muslims to defy lockdown regulations and pray in congregation at mosques, exclaiming that he would personally represent them at no cost if they were to be arrested. It is highly probable that the applicants will take this case on appeal, especially now that some regulations have been relaxed but defying lockdown regulations is illegal.

Although one may believe the law to be wrong, openly encouraging people to defy the law is potentially illegal. It is also highly damaging to the rule of law, especially if the statement comes from an authority figure who is deemed to be knowledgeable of the law in the eyes of the public.