Ramadhan is starting and we are being gifted with this trashy court argument about how the closure of mosques is (supposedly) unjustifiably infringing the applicants' (and Muslims in general) right to conduct religious observances.

Rights to freedom of religion, freedom of association and freedom of movement have been infringed according to the applicants. This is common cause, but why is the infringement unjustifiable? This argument has went on for 45 minutes and still no mention why it is unjustifiable?

“I don’t need to lecture your Ladyship why these rights are so important.” Actually counsel, that is kind of why you are here.

Here is a tip: Judges do not like it when you talk over them, and it definitely won’t make them listen to you more attentively. (This can also be a tip for life outside Court, no one likes being talked over. It’s disrespectful.)

Counsel argues that praying is an "essential service" but going to Clicks to buy "chocolates and baked goods" is not. According to counsel, if the State allows people to queue & talk to each other at Clicks, the State has to allow mosques to re-open. I wish I was making this up.

Essentially one of the reliefs that the applicant has sought, is that the mosques remain open for people who can hear the call to prayer without amplification. In plain terms, leave the mosques open only for those who can hear the athan without loudspeakers. What is the point?

Hence, the relief does not even cover the broader Muslim community, only an elite few.

The State agrees that this is a "painful limitation" and understands that the applicants' arguments are not hypocritical or non-sensical, but rather bona fide. However, regardless of how painful this limitation is, it is justified and reasonable under the current circumstances.

The State points out that these rights are being justifiably & reasonably limited to protect other rights in the Constitution, such as the right to life & the right to have access to health care. And congregational worship cannot be held without defeating the purpose of lockdown.

State now focuses on practical aspects: How many mosques there are, how many people can hear the call to prayer without amplification, & what the rationale would be to open mosques & not other places of worship. If opened & incorrectly regulated, the risk is rise in infections.

Adv Goodman brings up the fact that Muslims, when praying in congregation, pray shoulder to shoulder (correct according to my Islamic beliefs). If people are allowed to go to mosques, they will be in the difficult position to choose between abiding to their religion or the law.

In the balancing exercise to find whether limitation is justifiable and reasonable, State argues that the Court must take into consideration the limited resources. Number 1: The number of people moving around going to places of worship will increase and this needs to be regulated

Number 2: The applicant suggested that people going to mosques/ places of worship should be tested before entering the premises. State argues that this will stretch their resources thin as the number of tests being conducted are already limited under the current circumstances.

State argues that applicant should be shielded by the Biowatch principle & thus no costs order would be granted against them if their application were to be dismissed. (This makes sense as the applicant was attempting to vindicate their constitutional rights against the State).

The amicus, United Ulama Council of South Africa (a Muslim institution), is now arguing against the re-opening of masjid. I am personally happy that a Muslim institution came to represent an opposing view, which a significant share of Muslim society holds.

Powerful point by Adv Bham SC, "There are many things that I would want to do, & feel is obligatory, but I don't *need* to do." This is also correct from an Islamic point of view, praying in a mosque is NOT compulsory. It is advised but there are times when this is not the case.

"You are not prevented from praying, you are allowed to pray at home." Amicus argues that we need to be cognisant of the fact that there is a pandemic whose full effects are not yet known. It would be too much of a risk to pray in congregations.

Amicus accepts that the limitation is painful, but so is the burden that the community would face if the infections increase. They explain, from an Islamic point of view, that the Prophet (PBUH) has been in this position before, & refused to let Muslims pray in congregation.

Amicus points out, as the State did, that the applicant's argument does not align with the relief sought. Applicant argues allegedly on behalf of the community for all Muslims' right to pray in mosques, but then asks for the Mosques to be open for 3-4 Muslims to pray.

Amicus points out that although there is support from the Muslim community for the mosques to be open, there is a significant number of Muslims who support the opposing view. "The analysis should not be a quantitative one, but rather a qualitative one, it is about the principle."

Amicus shows that in the applicant's papers itself, although they have claimed that many Islamic scholars agree that mosques should be kept open, the caveat is "unless there is a reason under Shari'ah" to stay at home.

A contagious disease is a reason under Shari'ah, but the applicant seems to believe that either Covid-19 is not contagious; will not spread in the mosque; or does not qualify as a "reason under Shari'ah".

Amicus has also pointed out that pilgrimage (Hajj) has been cancelled this year. Hajj is a compulsory pillar in Islam, and if that was shut down, why should mosques remain open?

Another important point, the applicant is asking the Magistrate to set a limit on the number of people who can pray in mosques. This would require data about the rate of infection of Covid-19 and possibly medical expertise which the Magistrate does not have.

Additionally as have been brought up before, this then becomes a separation of powers issue. It is not in the hands of the judiciary to come up with regulations.

Advocate Anisa Kessery for Women's Cultural Group argues that the relief which the applicant have sought, has not considered the impact on women and children.

Adv Kessery brings a perspective which has been ignored throughout this whole hearing. Yes, as a man you may want to go out and pray but what of your wife and kids who remain at home and now, due to no action of their own, risk infection because you were willing to congregate?

Adv Kessery points out the overtly sexist nature of the relief sought. The relief for "four men" to be allowed to pray is not an arbitrary number but based on a fatwa (Islamic ruling) which excludes women. If they were to pass constitutional scrutiny, they should include women.

And if women were to be included, it means that every place of worship would have permits for 4 men and different permits for the "Female section", which would amount to four men and four women. Thus, the numbers that the applicant are putting forward, are not exactly reflective.

I thank the Women's Cultural Group for this brief. Too often we only hear the voices of loud men who pretend to represent the Muslim community as a whole. If men opt to put themselves at risk, they are more likely to infect women who do not even have the choice to go to mosques.

On another note, the applicant has beeeeeeeeeeeeen quoting MEC v Pillay, as if there is no other case on freedom of religion.

Applicant reply: They argue that the State should not put people in such a place that they have to make the difficult choice between following their religion or abiding to the law. They believe the State should look at the least restrictive means to allow believers to practice.

Applicant argues that "if the situation was sooooo bad as it is" the State would not have relaxed the regulations in certain sectors such as in mines, and taxi industry. (I promise he did say that.)

"My clients are responsible people. They will not be reckless and endanger their wives and kids. If there are only four people in Masjids, they will take the necessary precautions. ... The right to life has two parts, it also involves the right to live with dignity."

I don't personally understand why you need to say that the right to life has two parts, involving the right to live with dignity. What is the point of the right to dignity then?

And for the cherry on the cake: "Making it compulsory for men to go to mosques, & not women is not discriminatory! It is because both parents cannot go to the mosque at once, who would look after the kids??" Because God forbid the man could stay home and look after his own kids.

Applicant graciously did not ask for costs, should their application be successful. The Judge will email the decision next week & will not reconvene again on this matter. Hopefully @saflii gets a hold of the judgment, & I will write an article about it and the hearing :)