/ 10 May 2020

Some reflections on the recent access-to-masjid case

Mosques, like other places of worship in South Africa, have been shut down to contain the outbreak of Covid-19.

Last month a group of applicants approached the courts with the aim of having the lockdown regulations relaxed to permit religious worship to take place. The applicants, Muhammed bin Hassim Mohamed, Anas Mohammed Chothia and the As Saadiqeen Islamic Centre, argued that their constitutional freedoms of movement and religion, among other rights, were being infringed.

The South African Muslim community and its legal fraternity were shaken by the controversy and inciteful speech — including imprudent media engagements by the applicant’s attorney of record, Zehir Omar — that surrounded the case.

The insensitivity of the application speaks volumes at a time when ordinary South Africans are battling with survival and an uncertain future, as a countrywide lockdown restrictions have been imposed to curb the spread of the coronavirus pandemic. In the absence of a vaccine, the South African government, following the guidelines of health experts and  the World Health Organisation, has imposed stringent measures to combat Covid-19, including  physical distancing, contact tracing, quarantine and self-isolation.    

In a damning judgment on the access-to-masjid case, handed down on April 30, Justice Brenda Nuekircher reaffirmed the obvious seriousness of the coronavirus pandemic gripping the world and South Africa.

Sound reason and logic prevailed in her judgment, with reference to submissions by the state; the purpose of the nationwide lockdown, importantly, is not to overburden the state’s fragile healthcare system, and to curb the spread of the pandemic.

Citing De Lange vs Presiding Bishop, Methodist Church of Southern Africa and Another as precedent, the judge summed up the heart of the case: “What this application is not about is whether the  applicants are correct in their interpretation of their religious doctrine. It is also not about whether they are true in their beliefs. What this application is about is whether or not regulations 11B(1)(a)(i) and (ii) issued under the Disaster Management Act are reasonable and justifiable in the circumstances under which they were promulgated.”

Regulation 11B(1)(a)(i) and (ii) provide as follows:

“(a) For the period of lockdown —

(i) every person is confined to his or her place of residence, unless strictly for the purpose of performing an essential service, obtaining an essential good or service, collecting a social grant, pension or seeking emergency, life-saving, or chronic medical attention

(ii) every gathering, as defined in regulation 1 is hereby prohibited, except for a funeral as provided for in subregulation (8); …”

The court appropriately found regulation 11B(1)(a)(i) reasonable and justifiable under pandemic conditions, and to be a lawful limitation in terms of section 36 of the Constitution.

Strangely, the applicants sought a secular intervention on Islamic jurisprudence antithetic to its own beliefs. It was certainly not the court’s duty to interpret and unnecessarily engage in this counterproductive quagmire. It would fall within the domain of credible religious bodies itself to objectively determine the shariah position. In line with the De Lange case referenced earlier, the court chose to stay out of this internal religious matter.   

The contributions of the amicus curiae

The thrust of the argument by the first amicus curiae in the case, the United Ulama Council of South Africa, was succinctly stated at paragraph 45 of the judgment: “It submits that, when considered in appropriate context, the applicants (and all Muslims) would be complying with the objectives of Islamic law by adhering to the lockdown regulations, despite the pain experienced by the temporary separation from the mosque.

This is because of the importance Islam places on the sanctity of the life and dignity and health of the broader community in the interests of common good over the embellishment of the prayer of an individual Muslim. They submit that the limitations on congregational prayer in a mosque, during the time of a pandemic, are a practical manifestation of this and are reflective of the opinion of the majority of Muslim scholars across the world.

The amicus intervention by the United Ulema Council of South Africa was severely and unprofessionally publicly criticised. Interestingly, the objections raised by the Muslim Lawyers Association (MLA) were never even considered by Justice Neukircher questioning the credibility of the claim that the UUCSA amicus brief overstepped legal boundaries.

The second amicus curiae contributions, by the Women’s Cultural Group, were also notable in that they referenced the severe health risks to women and children caused by the men of the household visiting the mosque. It further added: “If this application is granted, it, in any event, infringes on a woman’s right to equality and dignity as entrenched in the Constitution, as there is no provision made for their worship at mosque and that, were the exemption to be allowed, the order must be crafted in such a way as to make provision for women as well — separate ablution facilities, separate prayer rooms, separate female security personnel and separate medical staff.

The judgment brought the applicants’ case to a stark reality when, in paragraph 70, the court’s ratio decidendi was underscored: “For every security officer required to police a place of worship and for every medical personnel required to be in attendance, there is one less available to be on the frontline of this pandemic, one less to ensure compliance and one less to assist those sick and in need of care.”

The court’s specific reference to the spike in India’s coronavirus cases — linked to the congregation of 3 400 worshippers at the Nizamuddin Mosque in Delhi — negated any chances of the applicants’ case succeeding.

Out of touch with reality

As the world and our country deal with the effects of the Covid-19 crisis amid uncertainty, overstretched personnel, and underfunded economic resources, the request by the applicants would further overburden the justice and public-health systems with magisterial permits for masjid access and deployment of healthcare workers at masjids.

This is glaringly out of touch with reality, which the applicants must acknowledge the truth of: their dogmatic, but flawed religious interpretation is in contradiction with the majority shariah view held locally and internationally. The preservation of human life is paramount under circumstances such as a pandemic. The applicants’ actions most certainly fall outside the broader community’s interests and public health, thereby posing a grave endangerment to their families and society at large.  

Whether magistrates could be empowered with subjective discretionary powers to issue permits would require amendments to the magistrate’s court regulatory framework. This must be considered in line with an existing co-operative executive structure — the National Command Council including important stakeholders and the ministry of co-operative governance and traditional affairs, mandated under the Disaster Management Act — in framing regulations to curb the spread of the Covid-19 virus, and thus save lives.

The laudable judgment reaffirms the Muslim community, like any other religious community shall be entitled to fair and equal treatment, under the Constitution and its Bill of Rights, but will not be accorded any special treatment during the Covid-19 crisis.

All religious groupings are making tremendous sacrifices in not attending religious gatherings and congregational prayers and this should apply equally and no differently to the applicants — and rightfully so.

This pandemic must pose an opportunity for serious introspection by all actors involved, including religious legal fraternities. I am afraid that continued out-of-context applications by such actors will only serve to lose further credibility in the eyes of ordinary, charitable, peace-loving and respectful Muslims, who are deeply conscious of the truth, their religious identity, and their obligations of service to humanity.    

Ziyaad Ebrahim Patel is a Johannesburg-based attorney, international human-rights lawyer and lawfare activist.