Content Regulation / Censorship, Religious Expression
Otto-Preminger-Institut v. Austria
Closed Mixed Outcome
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The North Gauteng High Court in South Africa held that the Covid-19 Regulations that prohibited religious worship in places of worship were a reasonable and justifiable limitation to the rights to dignity and to freedom of religion, movement and association. Two individuals and an Islamic Centre brought an application before the High Court arguing that the Regulations prevented them from fulfilling their religious obligation of attending mosque for their five daily prayers, and sought an amendment to the Regulations to allow for movement between individuals’ places of residence and places of worship. The Court held that the Regulations had been implemented to limit the spread of the coronavirus, and that as they were a rational measure adopted to achieve that objective they were a reasonable and justifiable limitation of the right to freedom of religion.
On March 15, 2020, the President of the Republic of South Africa declared a state of disaster in response to the coronavirus pandemic. A set of Regulations was subsequently promulgated which established a “lockdown”, confining everyone to their home and prohibiting any non-essential travel. The Regulations prohibited all gatherings and required all places “at which people congregate” to be closed to the public [para. 13]. On March 25, 2020, the Regulations were amended to allow for certain gatherings of people, including introducing a limit for funerals at fifty people and allowing minibus taxis to operate at 75% capacity. The religious month of Ramadan began on April 24, 2020 and so the Regulations’ restrictions on religious gatherings would have prevented Muslims from attending Mosque during this month.
Muhammed Bin Hassim Mohamed and Anas Mohammed Chothia, two individuals, and the As Saadiqeen Islamic Centre (the applicants) approached the North Gauteng High Court seeking an declaration that the Regulations’ restrictions on religious gatherings were overbroad, excessive and unconstitutional. The applicants additionally sought an order that the President amend the regulations to permit movement of people between their places of residence and places of worship, and that a magistrate be permitted to issue a permit for congregational worship in which the magistrate could stipulate conditions, including the permitted number of congregants, time gaps between congregations and hygiene measures.
The United Ulama Council of South Africa and the Women’s Cultural Group were admitted as amici curiae.
Judge Neukircher delivered the judgment of the High Court. The central issue for the Court’s determination was whether the Regulations’ prohibition on congregational worship was reasonable and justifiable.
The applicants argued that the Regulations were preventing them from performing their five daily prayers in congregational worship at a mosque, as required by the Quran, and that if the community are not able to establish the “minimum congregational prayer” they would be sinful [para. 16.2]. They submitted that the Regulations had “criminalized the performance of what they consider to be a compulsory act of worship”, and that they were “being forced to make a Hobson’s choice between disobeying what they regard as a fundamental tenet of their belief and disobeying the Lockdown Regulations” [para. 18]. The applicants recognised that these views were not held by the majority of Muslims in South Africa, but maintained that the Regulations violated their rights to freedom of religion, of movement, of association (including religious association) and to dignity. They submitted that because the Regulations limit constitutionally-protected rights they must be subject to the test for justifiability and proportionality, and that the test could not be weakened because of the state of disaster.
In making recommendations for the Court’s order, the applicants submitted that the morning, afternoon and evening prayers could be limited to ten to fifteen people; that the congregants would be present for no more than ten minutes and would wear masks; and that the As Saadiqeen Islamic Centre would ensure the mosque was sanitized before and after the prayers. They added that if there were more than fifteen congregants, then they would be split into smaller groups, and online registers would be kept to ensure that no more than twenty people attended at any one time. The applicants submitted that because the Regulations had already been amended to create certain exceptions to the limitations on gatherings then a similar exception should be created for congregational worship.
The President acknowledged that the Regulations did restrict the constitutional rights to freedom of movement and association, but argued that these limitations were reasonable and necessary “given the threat that COVID-19 poses to human life, dignity and access to healthcare” [para. 32]. The President submitted that the Regulations had to strike a balance between preventing the spread of the virus and meeting the needs of the people, and emphasized that they were temporary. The President argued that limitations of the rights through the Regulations were a result of a governmental policy which constitutes “a political decision with which a court should not lightly interfere” [para. 43.2]. In respect of the test for a reasonable and justifiable limitation, the President emphasized that the Government need only show that the Regulations were a “rational measure” designed to achieve the objective of slowing the spread of COVID-19 [para. 43.3].
The two amici supported the President’s position. The United Ulama Council of South Africa submitted that as individuals are not prohibited from prayer in their homes, their “freedom of conscience, religion, thought, belief and opinion is not fundamentally limited save that restrictions have been placed on congregational prayer” in order to protect other rights [para. 47]. The Council stressed that Islam values the sanctity of life and dignity of the broader community, and that the Regulations represented this value despite the limitation on congregational worship. Accordingly, the Council submitted that the Regulations were reasonable and justifiable.
The Women’s Cultural Group argued that if an exception was created for congregational worship as sought by the applicants, women and children in Muslim households would be placed at risk and that – as the applicants had not sought any exception for women’s worship at mosques – the exemption would violate the right to equality.
The Court had to determine whether the prohibition against congregational worship in the Regulations was a reasonable and justifiable limitation of the rights to freedom of religion, movement, association and dignity. Section 36 of the Constitution is a general limitations clause and allows for the limitation of constitutionally-protected rights only in certain circumstances. Section 36(1) states that “[t]he rights in the Bill of Rights may be limited only in terms of a law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors” including the nature of the right; the importance, purpose, nature and extent of the limitation; the relationship between the limitation and its purpose; and whether there are less restrictive means to achieve the limitation’s purpose.
In acknowledging that a limitations analysis involves “the balancing of means and ends” which requires that “different and sometimes conflicting interests and values may have to be taken into account” the Court referred to Minister of Home Affairs v. NICRO 2005 (3) SA 280 (CC) [para. 41]. The Court emphasized that all that is required is for the Regulations to be a “rational measure” designed to achieve the objective of slowing the spread of Covid-19, and noted that the applicants had accepted that the closure of mosques was not arbitrary.
The Court discussed the nature of the right to freedom of religion and quoted from MEC for Education, KZN v. Pillay 2008 (1) SA 474 (CC) which had noted that the exercise of religious practices is protected because of its importance to human identity, and that voluntary practices are no less part of identity than are mandatory practices. With reference to Christian Education South Africa v. Minister of Education 2000 (4) SA 757 (CC) the Court noted that the right to freedom of religion incorporates religious actions as well as religious thoughts. The Court also highlighted the use of the value and ideals of ubuntu in South African jurisprudence, and referred to Moela v. Habib 2020/9215 (23 March 2020) and S v. Makwanyane 1995 (3) SA 391 (CC) in stressing the need to give effect to ubuntu’s respect for humanity and morality.
The Court noted the serious threat that the pandemic posed – particularly given the poverty in South Africa which added a burden on the Government and increased the risks from the pandemic.
The Court commented that any amendment to the Regulations allowing for all persons to move between their homes and places of worship would lead to “untold members of persons … moving to and from their residences each day” and that it would be difficult to enforce social distancing at those places [para. 68]. The Court described this potential amendment as “tantamount to opening the floodgates” and that the South African government did not have the law enforcement capacities to ensure that the requisite safety measures would be adhered to at these places of worship [para. 68]. In addition, the Court expressed concern that the applicants had submitted that “the mosque is a place of refuge and centre for advice for many, including women and children and is used to feed those who fast, and the poor, during the month of Ramadan” [para. 19], and so it would not only be congregational worshipers attending the mosque.
In acknowledging that there had been some exceptions included in the Regulations, the Court stressed that these were strictly regulated and had been considered by various experts based on the need for those exceptions. The Court specifically referred to the exception given to attending funerals and distinguished it from attending daily prayers by noting that a funeral is a “once off event” [para. 73]. The Court also referred to the exception given to minibus taxis, stating that taxi operators “ferry essential workers to and from work” and so are an essential service which contribute to the running of the country [para 74]. The Court also mentioned various examples of the virus spreading following religious gatherings.
The Court concluded by noting that “every citizen is called upon to make sacrifices to their fundamental rights entrenched in the Constitution” in the name of the “greater good” and the “spirit of ubuntu” [para. 75] – and that these sacrifices were being made all around the world.
Accordingly, the Court held that the restrictions were not unreasonable or unjustifiable, particularly given the consultation the government had undertaken in drafting them.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Although the Court held that the restriction on congregational worship was justifiable, this did not prevent religious expression at home and was a recognition of the need to protect public health during the coronavirus pandemic.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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