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Muslim Views . April 2020
The right to life over communal worship MOHAMMED MOOLLA, Senior Magistrate at Wynberg Court, Cape Town, addresses the question whether religious bodies have a right, in terms of the Constitution, to open their places of worship during the lockdown. Would a refusal be an infringement of the religious bodies’ constitutional rights to practise their religion?
THE question that has been posed is that in terms of Section 15(1) of the Constitution ‘everyone has the right to freedom of conscience, religion, thought, belief and opinion’ and Section 31(1) provides that ‘a person belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community, to enjoy their culture, practice their religion and use their language’. Does the lockdown prohibit or infringe on these rights? The relationship between section 15 and section 31 of the Constitution was not entirely clear. It is not evident whether, in the absence of any reference to manifestation of religious practice in Section 15(1), religious practice should be regarded as protected in the group rather than individual freedom. The Constitutional Court clarified the nature of the relationship
between the two rights. Section 15(1) protects the practices of religious sects, groups, associations, communities and institutions. In the case of Prince v President, Cape Law Society 2002 (2) SA 794 (CC), the Honourable Ngcobo J said, ‘..15(1) and 31(1)(a) complement one another. Section 31(1)(a) emphasises and protects the associational nature of cultural, religious and language rights. In the context of religion, it emphasises the protection to be given to members of communities united by religion to practice their religion.’ In the case of S v Makwanyane 1995(3) SA 391 (CC), the Honourable O’Regan J said, ‘The right to life is, in one sense antecedent to all other rights in the Constitution. ‘Without life in sense of existence, it would not be possible to exercise rights or to be bearer of them ... The concept of human life is at the centre of our constitutional values.’ At the outset, we have a National State of Disaster and not a State of Emergency. The National State of Emergency has to go through Parliament before it is enforced. We must look at the purpose of the National State of Disaster. The President has, through his cabinet, weighed up one of the key issues being the effect that such declaration will have on the economy of the country and the people. The entire purpose of the National State of Disaster and the re-
This musallee ensures that the doors of Jameah Masjid, in Lower Chiappini Street, Bo-Kaap, Cape Town, are opened daily and the adhaan for the five daily prayers is announced on time. He is the sole musallee in accordance with the lockdown regulations announced by the government. It is believed that the Jameah Masjid was the first masjid in South Africa where jumuah salaah was offered. It is the fourth mosque to be built in the Bo-Kaap, Cape Town, and the fifth in South Africa. Photo ZEHEER BANDERKER
sultant lockdown is for protection of life and the sanctity of life. Section 11 of our Constitution states clearly: ‘Everyone has the right to life.’ Section 24 (1) of our Constitution states: ‘Everyone has the right to an environment that is not harmful to their health and well being.’ What we do have through the lockdown is a limitation with a purpose to protect health, which is a national prerogative.
Even when we look at Section 31 of the Constitution, this right is not a permanent denial as we still have a right to practice our religion. As I stated, we are not denied the right to practice our religion but we have a restriction of movement that has been imposed. We must look at why we have this limitation and weigh it up. The purpose of the limitation is that it would result in the effective
control of the spread of the COVID-19 virus. If we allowed free access to our religious institutions, there is a high risk of the virus attacking asymptomatic people who will, in turn, take the virus home. The entire purpose of the limitation is to prevent the spread of the virus. CONTINUED ON PAGE 38
A notice is posted at the entrance of Jameah Masjid, in Lower Chiappini Street, Bo-Kaap, Cape Town, informing musallees that the masjid will be closed for congregational prayers in compliance with the directive of the Muslim Judicial Council (MJC). The MJC took the decision in accordance with National State of Disaster regulations, declared as a result of the COVID-19 pandemic. Photo ZEHEER BANDERKER
