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2017
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[2017] ZALMPPHC 51
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Member Of The Executive Council Responsible For The Department of Health, Limpopo v Rabalago and Another (5727/2016) [2017] ZALMPPHC 51; 2018 (4) SA 270 (LP) (20 March 2017)
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO PROVINCIAL DIVISION,
POLOKWANE)
(1)
REPORTABLE
(2)
OF INTEREST TO OTHER JUDGES
(3)
REVISED
CASE NO: . 5727/2016
20/3/2017
In
the matter between:
MEMBER
OF THE EXECUTIVE COUNCIL
APPLICANT
RESPONSIBLE
FOR THE DEPARTMENT
OF
HEALTH, LIMPOPO
and
LETHEBO
RABALAGO
FIRST RESPONDENT
MOUNT
ZION GENERAL ASSEMBLY
SECOND RESPONDENT
JUDGMENT
Summary:
Freedom of conscience,
religion, thought belief and opinion - whether freedom of religion
thought and belief in sections15 (1) and
31 (1) Bill of Rights, even
when exercised in an unorthodox manner unlimited- or not.
Principle:
Sections15 (1) and 31 (1)
of Bill of Rights guarantee freedom of conscience, religion, thought,
belief and opinion, and such right
not to be unreasonably denied –
unless performance or practices offend Government - or public
interest and the Constitution
- Sections15 (1) and 31 (1) are subject
to limitations found in section 36 of Bill of Rights-Section 31 (2)
also places limitation
to freedom of cultural, religions - or
linguistic communities - manner of worship and exercise of freedom of
religion
in
casu
poses
considerable health risks and danger to the general public - such
practices to be curbed in Government and public interest
by law of
general application in place, and Section 36 proportionality analysis
- the majority reasoning - of Con court in Prince
v The President of
the Law Society of Cape of Good Hope and Others, applied and followed
- an injunction, therefore, required to
prohibit all unconventional
religious practices under the cloak of spiritual faith healing -
state intervention necessary to protect
life and limb-
Held:
In casu
•
freedom
of worship or religion to be practiced and exercised reasonably
within the confines of the law and the constitution.
M.G
PHATUDI: J
[1]
On 20 March 2017, I made an Order couched as follows:
1.1. "The
Rule
nisi
granted
by the Court on 20 November 2016 and extended to 30 January 2017, is
confirmed.
1.2. The
Respondents are ordered to pay the costs of the application jointly
and severally, the
one paying the other to be absolved,
1.3. The
full text of my judgment with reasons for which the judgment is
reserved will be delivered
in due course".
[2]
The Rule
nisi
granted
by the Court on 20 November 2016 had the effect of interdicting and
restraining the Respondents herein from:-
2.1.
"employing and/or spraying
and/or directly or indirectly "Doom" incedicide on any
member of the public, or congregant
or visitor of the Mount Zion
General Assembly,
2.2.
employing
and/or applying directly or indirectly any form of harmful substance
on any member of the public, or congregant or visitor
of the Mount
Zion General Assembly,
2.3.
Feeding and/or administering orally
directly or indirectly, any form of non consumable item or
liquid on any member of the
public, or congregant or visitor of the
Mount Zion General Assembly,
2.4.
Inciting any member or ministering
instructions or directives to any member of the public or congregant
or visitor of the Mount
Zion General Assembly to perform any of the
acts prohibited and stated in paragraphs 2.1. 1. to 2.1.3.
"
[3] The
aforementioned restraint measures, were in fact, the hardcore of the
interdict.
[4] On
the Return Day of the Rule
nisi
,
(30.01.2017)the matter became
opposed and was argued before me.
[5] The
facts giving rise to this application which are
res
nova
are not only posing
intriguing constitutional issues enshrined in Section 15(1) and
15(2), of Act 108 of 1996,
[1]
but also raises jurisprudential conundrum in our current democratic
legal dispensation of which the Bill of Rights is a cornerstone.
I
propose to revert to the provisions of Section 15(1) and 15(2)
referred to in the course of this judgment.
[6] The
Applicant, a Member of the Executive Council ("MEC")
responsible
for the department of Health and Social development in
Limpopo Province, launched an urgent application in this court
against the
Respondents for an interim interdict in terms of which a
Rule nisi was granted, the return day set on 30 January 2017. The
effect
of the provisional order granted is as set out in paragraph 2,
above.
[7] The
Department of Health and Social Development of which the Applicant is
the
MEC in Limpopo, is as an organ of State, mainly responsible for
administration and control of health care services within the
province.
This authority flows from Part A of Schedule 4 of the RSA
Constitution Act (Act 108 of 1996) which provides health services as
one of the functional areas of concurrent national and provincial
legislative competence. See, The National Health Act.
[2]
[8] The
First Respondent describes himself as a "prophet" and
Chairperson
of the Second Respondent, a religious organization or
church known as Mount Zion General Assembly.
FACTUAL MATRIX:-
[9] The
factual background that triggered the present application are in
short, the
following:-
9.1. On
or about Monday 21 November 2016, the Daily Sun newspaper reported an
article about a Pastor, the First Respondent herein, who it was
alleged uses Tiger brand's Doom insecticide to spray his congregants
in order to heal members of his church assembly. Doom is an
insecticide held and registered by Tiger Consumer brand as its trade
mark. It is generally freely sold to the consumers in open markets,
shops, supermarkets and even larger hypermarkets and stores,
for use
in households. It is a multi-insects killer also registered as a
pesticide under Registration No: L7317 in terms of Act
30 of 1947 to
poison and kill insects.
9.2. On
the same day (21.11.2016) and ensuing days, You Tube and other social
media circulated images of the pontiff spraying Doom on some of his
congregants, a situation that went viral on social network.
Most
newspaper articles and social media captured the First Respondent
spraying Doom directly on the face and eyes of a woman in
the tent
used for prayer and performance of other religious rituals.
9.3. Other
media houses, the Sowetan newspaper, and Pretoria News, e-TV channel,
SABC TV and radio stations, all ran stories about the man of cloth
who used Doom insecticide during church service to inspire divine
power to heal his congregants. The First Respondent in doing so,
claimed to be spiritually inspired and as a prognosticator was
competent to heal and expel all disease from his followers.
[10]. The
Applicant proffered as inherent health risks the dangers Doom can
expose the general public to if applied
to humans as the Pastor did
as shown in the print, electronic and social media. The practice by
the pastor poses immense health
risks when used against the express
caution labeled on each can. I consider it apposite to refer to the
relevant "warning"
issued to the consumer when
administering the pesticide.
[11] The "Warning"
requires of the consumer or the public to "handle with care"
as it may cause irritation of the skin, eyes, mucous, membranes and
skin sensitization"... As to "precautions, "
the
consumer or the public using it must "avoid excessive
inhalation", and not to be used in the presence of persons
with
known sensitivity to Pyrethroids," and "avoid contact with
skin, eyes and clothing ... " and do not spray onto
food
utensils of food, preparation surfaces." These "warnings"
are inscribed or labeled on each can.
[12] Against the
backdrop of the aforementioned health risks and the dangers
associated with it, the
Applicant submitted in its founding papers
before court no less than four separate incidents in which the First
Respondent’s
conduct allegedly breached Tiger Consumer brand
Product Protocols ("Tiger Brand") and warning signs as
exhibited on each
Doom can. These incidents were published in the
general media where the Second Respondent was seen spraying Doom
product on the
faces, eyes, legs, and abdomen of some of the
congregants of his tent crusade.
[13] The
issue is whether for considerations of health services rendered by
the Applicant to
the public, is the use by the First Respondent to
spray Doom a alleged, poses health risks and dangers alleged by Tiger
Brands'
spokesperson in a Media statement. This then makes
it
imperative to investigate although
superficially, the toxicology of the Doom spray when used or applied
and administered as a spray
to humans.
[14] It is
common cause that the Doom product Complaint of contains an active
ingredient termed
in science
Metofluthrin.
This is a synthetic derivative of
Pyrethroid.
Other
ingredients labeled are prallethrin (Etoc), and lmiprothrin. The
non-synthetic compound similar to pyrethroids elements, is
extracted
from a flower (chrysanthemum) which contain insecticidal ingredient
known in science parlance as pyrethrin. Pyrethroid
element is akin to
natural pyrethrins.
[15] According
to the Applicant, the external application of Doom on humans would
naturally have
a toxic effect, and at times may be fatal. Exposure to
pyrethroids predisposes one to the possibility of death with
pre-natal exposure,
or when repeated dosing in adults has been
excessive. When applied, the potential ability of the foetus (which
incidentally is
regarded as a
persona
iuris
with rights as per
nasciturus
fiction)
to metabolize these agents, could result in higher concentration
levels in the developing brain with resulting neurotoxicity.
[3]
[16] Furthermore,
the spray of Doom on humans also has serious dermal effects e.g.
paraesthesia probably
due to hyperactivity of cutaneous sensory nerve
fibres, and the face is often affected. Pyrethroid ingestion also
gives rise to
a sore throat, nausea, vomiting, mouth ulceration
and/or dysphagia. In addition, coma and convulsions are the principal
life-threatening
features.' The Applicant, for the dangers alluded to
herein, and the medical discourse outlined, contended that
organophosphate
and pyrethrin, are catalysts to predisposal or
paraesthesia which may trigger a few life and limb threatening
adverse consequences.
These are the medical facts and the undesired
consequences which the Applicant is resolute to curb, particularly
the adverse effects
of which the congregants of the Second Respondent
may be oblivious of the more so that the majority are not well
lettered and bear
no scientific knowledge of the risks associated
with the application of such product to human body, regardless of
their religious
belief and practices.
LEGAL FRAMEWORK
[17] As
indicated in paragraph 5 above, I now proceed to deal with the legal
framework in matters
where it has been contended that the court is
required to deal with novel situations around issues of faith and
religious believes
of the Respondents and other cases analogous to
the present in the country recently.
[18] Section
15(1) and 15(2)(a) of the Constitution of the Republic of South
Africa 1996.
[4]
("the Constitution") provides that:-
Section 15 (1):-
"Everyone has the right to
freedom of conscience, religion, thought, belief and opinion"
Section 15(2) provides further
that:-
"
Religious observances
may
be conducted at State or State-aided institutions,
provided that-
(a)
"those observances follow rules
made by appropriate public authorities."
[19] In
casu
one is confronted with the
question whether the Respondents in exercising their "religious
observances" in their religion
and beliefs, do so within the
confines of Section15 (2)(a) of the Constitution Act.
I was not called upon to decide on
this aspect, but it is a matter which, in my view, is not quiet
remote from the defence raised
that the Respondents have a right to
freedom of religion, belief and opinion which covers methods of
worship, praying and conducting
faith healing.
[20] In an
attempt to fortify its stance on the matter, counsel for the
Respondents referred
to the provisions of Section 31(1)(a) of the
Constitution which stipulate that :-
Section
31 (1)-
"
Persons belonging to a
cultural, religious or linguistic community may not be denied the
right, with other members of that community-
(a).to enjoy their culture,
practice their religion, and use their language, and,
(b). to form, join and maintain
cultural, religious and linguistic associations and other organs of
civil society".
[21] But,
the matter does not end there. Section 31(2) thereof clearly
stipulates that the right
in subsection (1) may not be exercised in a
manner inconsistent with any provision of the Bill of Rights. Apart
from the restriction
espoused in subsection 1 of Section 31, there we
have a limitation clause in section 36 of the· constitution
that curtails
or limits the rights in the Bill of Rights in terms of
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.
[22] It was
further submitted on behalf of the Respondents during argument that,
apart from the
fact that Doom was indeed applied or employed on
specific congregants, during the "faith healing ministration,"
religious
beliefs and faith healing, are reasons for spraying Doom to
"pray for people as per "instruction from God by the
spirit".
"God spoke to the First Respondent on the 18
November 2016 while in the church crusade at Mookgopong
[5]
to conduct faith healing ministration to the people." It was
further submitted by the Respondents that the congregants who
submitted themselves to the spraying of Doom on them, their
testimonies revealed that they were healed and delivered from
sickness
and various ailments that beset them. This spiritual
intervention with healing powers from Doom or spray or other medium,
descends
as and when the Spirit of God instructs the pontiff in his
church assembly, crusades and other terbanacles of worship to heal
ailing
members.
[23] A
closer reading and subjunctive interpretation of the allegations made
by the First Respondent
in his Answering Affidavit ("FA"),
[6]
gives an illustration of clear admissions of fact about the
application or use of Doom spray to heal willing congregants, and the
reasons proffered by the Respondents for such application or use
thereof.
[24] The
nubb of their defence may be encampsulated as follows:
24.1. The
spray of Doom on the congregants during healing ministration was a
divine instruction
from God by the Spirit as and when it occurred;
24.2. The
spray or application endured for only one week during healing
ministrations in the
tent crusades;
24.3. No
complaints of post-spraying or side effects or toxins alleged by the
Applicant were
received from the congregants, and that;
24.4. The
Respondents have freedom of religion, belief and opinion, and further
that;
24.5. There
exists
no
regulatory legal framework currently in our law that prohibits such
religious practices.
[25] It
appears to me that the watermark of the Respondent’s opposition
to the interdict application
is predicated on Section 15(1) read with
Section 31 of the Constitution Act, 1996 referred to above, (Para: 18
and 20) and the
fact that according to them no statutory framework is
at the moment in place in our law that impede their religious
practices complaint
of.
THE LEGAL ISSUES FOR
DETERMINATION
[26] With
the preceding issues considered, the questions !ling for a
determination are three-pronged, namely:
(a) Whether or not the
Respondent's alleged freedom of religion, belief , thought and
opinion is unlimited, if
not absolute, whether such right or freedom
of religion and/healing or ministration should be curtailed as
against other freedoms
or rights in the Bill of Rights;
(b) Whether or not the
Applicant and/or the general members of the public will -suffer any
potential or actual
harm if the Respondents' healing ministrations
alleged were allowed to continue as in the manner complaint of, and
that;
(c) Whether or not would
it be in the best interest of the administration of justice, the
democratic values
enshrined in the Bill of Rights, the Constitution
and rule of law, that this court confirms an injunction against the
religious
practices performed by the Respondents.
[27] I now
turn to consider
seriatim
each of the crisp questions
raised. Before I attempt to provide an answer, I consider it apposite
to scan the prevailing jurisprudential
developments from case law on
the matter.
[28] The
issues around the right to freedom of religion, belief and opinion
first surfaced before
the Constitutional Court ("Concourt")
during May 2001. The Concourt in one of its seminal judgments
[7]
had occasion to consider issues of faith, religion and belief
vis-a-vis the freedom enshrined in Section 15 and 31 of the
Constitution.
The appellant (Mr. Garreth Prince) sought to be
admitted as an Attorney of the Second Respondent in that matter, (Law
Society Cape
of Good Hope). In an application to register his
contract of community service with the Second Respondent ("the
Law Society"),
the appellant not only disclosed that he had two
previous convictions for unlawful possession of cannabis sativa (also
known as
"Marijuana", "hashish", or "dagga"
or even better known as "ganja" or the "Holy herb"
within the Rastafrian religious circles. He also declared his
intention to continue the use of the herb.
[29] The
appellant declared that the use of cannabis ("dagga") was
inspired by Rastafari
religion to which according to him was his
constitutional right found in the Bill of Rights. For that reason the
Law Society declined
to register his contract of community service.
It also took the view that the appellant with his criminal records
was not a fit
and proper person to be admitted as an attorney.
[30] The
appeal in Prince's c
a
se
concerned the constitutional validity of the prohibition on the use
(smoking I venture to add) of cannabis when its use or possession
is
inspired by religion. The appellant did not dispute that the
prohibition was in the legitimate government and/or public interest.
[31] Similarly, in
the present instance, the First Respondent does not deny having used
Doom spray
in the course of or in connection with performance of his
religious exercise and faith mission on his congregants. He sees the
intended interdict encroaching upon his right to freedom of religion
and cultural religious right. Sections 15(1) and 31(1) of the
Constitution.
[32] In
the
Princes's case,
supra, Ngcobo J (as he then
was) was of the view that Rastafarianism is a religion and that the
disputed legislation prohibiting
the use of cannabis trenches upon
the religious practices of Rastafari.
[33] The
right of an individual to practice his or her religion is, in my
view, part of the
Section 15(1) right. The right to practice religion
in conjunction with others, for instance, in a tent crusade or any
religious
terbanacle, is protected by section 31 of the Constitution,
albeit subject to the limitation in sections 31(2) and 36 of the
Constitution.
[34] What,
however, limits the right in sections 15(1) and 31(1) asserted by the
First Respondent,
is the application and use of a toxic substance as
Doom spray on human body contrary to the warnings on each can of Doom
spray.
I therefore venture to suggest that the legislation that
prohibits misuse of such insecticides or pesticides as Doom spray on
humans
limits the very religious rights claimed by the First
Respondent under the Constitution. What then becomes paramount in
this instance
is whether the limitation is justifiable under section
36 of the constitution.
[35] I am inclined
to think that the use of Doom spray for alleged ceremonial or
spiritual healing
under the cloak of freedom of religion and worship
cannot in my view, be left unlimited by section 36 proportionality
analysis.
[36] The
aforegoing proposition is fortified by the fact that there are no
watertight mechanisms in
our law in which a law enforcement agent
could distinguish between the use of harmful substance as Doom spray
on humans, or the
forceful eating of live reptiles like snakes, rats,
lizards, or even consumptions of dangerous liquids like fuel/petrol,
or any
other unorthodox ways of religious worship which otherwise has
a propensity of danger or harm when applied to humans or consumed,
and the unconventional methods use for non-religious purposes.
If I were to err, I would rather
err on the side of conservatism and carve a wide chasm limiting the
scope and type of freedom of
religion and belief entertained by the
First Respondent and his church assembly, and the section 15(1) and
31(1) rights.
[37] Counsel for
the Respondents was at pains to call for national legislation
regulating such unconventional
religious methods as practised by the
Respondents. He contended that currently South Africa has no
legislation that prohibits the
freedom of worship and religion.
However counsel for the Respondents lost sight of the principle that
the right to freedom is not
absolute. Its scope may be limited by
other rights or by law of general application in pursuit of a genuine
state's purpose and
for good governance. Legislation and a permit
system regulated by law would, in my view, be too cumbersome to
monitor and supervise.
It will certainly put law enforcement agencies
and the state in a strait jacket.
[38] I now turn
to the three cardinal issues I was called to address in this matter.
They are set
out in Paragraph 26,
supra.
38.1. Given the
aforegoing considerations and bearing in mind the authority of
Concourt in
Prince's case,
above, it follows that the
Respondent's _rights of freedom of religion, belief and opinion is no
doubt, subject to the limitation
clause. I do not visualize a
situation where religious leaders of various denominations in our
country would be permitted to perform
unorthodox dangerous and risky
religious practices under the cloak of the freedom of religion
envisaged in the Bill of Rights.
An attempt to regulate their
religious faith and believe in order to allow them exemption to apply
and administer toxic substances
or feed their members with all sorts
of live reptiles like snakes, rats, mice, etc. would be absurd if not
untenable.
38.2. For the reasons
given in 38.1 above, it would also not be in the best interests of
members of the Second Respondents
in particular and the fabric of
society in general, to allow such unconventional and harmful methods
of religious practices without
State intervention.
It is not the Applicant's case to
deny the First Respondent, the freedom of his religion. It is the
harmful and unorthodox methods
practiced by the First Respondent that
offends the public interest and the protection accorded to it by the
constitution, the rule
of law and law of general application.
38.3. In addition, the
freedom of worship whether actuated by spirituality or not, has to be
exercised reasonably within
the confines of the law and the
Constitutional framework. Any conduct that offends the constitution
which is the apax legal instrument
to protect and defend human rights
as enshrined in it, is liable to be met with a stern injunction.
[39] It was on a
semblance of the facts in this application that the Rule nisi granted
on 20 November
2016 was confirmed.
M.G PHATUDI J
JUDGE OF THE HIGH COURT
LIMPOPO DIVISION, POLOKWANE
REPRESENTATIONS
1.
Applicant's Counsel
:
Adv
M.H. Masilo
Instructed
by
: State
Attorney
Polokwane
2.
Respondents' Counsel
: Mr.
T.E. Lubisi
Instructed
by
: c/o
Lubisi Attorneys Inc.,
Malamulele
3.
Date heard
: 20 March 2017
4.
Date Order delivered
:
20
March 2017
[1]
Chapter 2, Bill of Rights, Act 108 of 1996.
[2]
Act 61 of 2003 - It is aimed at providing "a framework for a
structured uniform health system within the Republic, taking
into
account the obligations imposed by the Constitution and other laws
on the national, provincial and local governments sphere
with regard
to health services"
[3]
P17, Para:17.6,"FA" - Paginated index.
[4]
Act 108 of 1996
[5]
Index, P57, Para: 8.1, "AA".
[6]
Index P57, Para: 8.1 to 8.5, “FA.”
[7]
Prince v The President of the Law Society of the Cape of Good Hope &
Others 2002(2) SA 794