IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case number: 40819/17
In the matter between:
LOUIS LAURENS BOTHA GAUM - First applicant
MICHELLE ROSE BOONZAAIER - Second applicant
JUDITH JOHANNA KOTZÉ - Third applicant
FREDERIK MALHERBE GAUM - Fourth applicant
and
NELIS JANSE VAN RENSBURG N.O. - First respondent
DEWYK UNGERER N.O. - Second respondent
GUSTAV CLAASSEN N.O. - Third respondent
MATTHYS JOHANNES NICOLAAS VAN DER MERWE N.O. - Fourth respondent
GENERAL SYNOD OF THE DUTCH REFORMED CHURCH - Fifth respondent
DUTCH REFORMED CHURCH - Sixth respondent
APPLICANTS’ HEADS OF ARGUMENT
(Enrolled for hearing on 21 August 2018)
A. Introduction
1. This case concerns the question whether the Dutch Reformed Church’s purported repudiation in 2016 of its own resolution just a year earlier is consistent with the Church’s own constitution and the country’s Constitution.
2. The 2015 resolution was ground-breaking. It undoubtedly reflected an alignment, long-delayed, with South Africa’s post-constitutional ethos, particularly as regards equality, dignity and freedom of religion. It concluded that “the best application of the biblical message as we understand it at this stage”[1]
- accepts same-sex relations;[2]
- admits of the “recognition [of] the status of civil unions between persons of the same sex;[3]
- permits pastors to solemnise such unions;[4] and
- allows “homosexual persons … fully [to] participate in all the privileges of the church as a covenant community”.[5]
3. This conclusion was based on “the specific and general revelation”[6] of the Bible by the Holy Spirit. It required that “the best findings of recent human science research”[7] be used in interpreting biblical text. The resolution resolved the difficulty of diversity within the Church by devolving differences in personal persuasions and practices regarding same-sex unions on church councils. The 2015 decision explicitly records that any subsequent “searching for the application of the Biblical message” should be conducted at the level of “members, congregations and church councils”.[8] The General Synod (the decision-maker, both of the 2015 decision and the 2016 decision which is impugned in this application) indeed itself specifically requested that that search be conducted as an “own independent process”.[9] In other words, not collectively at synod level.
4. Yet in 2016 an extraordinary meeting of the General Synod was convened. At this exceptional sitting the 2015 decision was purportedly repudiated. Without any suggestion that the biblical text (standing for millennia) had now changed, since the Synod’s pronouncement on it a year before, or that in the intervening months “the best findings of human science research” had with equal suddenness been upended, same-sex relations were now – so the 2016 meeting concluded – incapable of any accommodation whatsoever. At top level (for the entire church: thus binding on every individual, every pastor, each congregation and every church council) the special General Synod purported to disqualify any and every recognition of same-sex relations. This despite accepting that a substantial part of the Dutch Reformed Church’s membership indeed holds the unshakable religious conviction that same-sex relations are permitted by the Bible, and that God does not discriminate on the basis of sexual orientation.
5. How did this repudiation by the Church of its own biblical and constitutionally-compliant position come about? It occurred, the record reflects, by “clearing” the 2015 decision through a purported appeals process. Because the appeals process was considered to have erased the 2015 decision (which not only substantively concludes on the Bible’s meaning; but also procedurally commits the Church to interpreting and applying the Biblical message on same-sex relations at individual, congregational level), the extraordinary General Synod sitting of 2016 considered itself at large to “revisit” its position. Yet the Church now concedes that the appeals process was indeed from the outset unlawful (as the applicants pointed out at the time). Hence the 2015 decision was not “cleared”, and the factual and legal premise for the 2016 decision was flawed.
6. Through this flawed decision-making process and its outcome the respondents have infringed the right to religion itself. They have imposed their religious beliefs on others, manifesting their own beliefs in a manner which not only disqualifies the latter from exercising their self-same religious rights – but also simultaneously infringing other constitutionally-entrenched rights, inter alia the rights to equality and dignity. In doing so they have also contravened the Church’s own constitution: the Church Order. The result is severe emotional and spiritual harm,[10] culminating (as the first applicant testifies)[11] in deep human suffering and even loss of life.
7. This Court is asked to remedy the situation created by the double unconstitutionality resulting from the Church’s violation of its own constitution and the country’s Constitution. The applicants essentially ask this Court to declare that the inconsistent 2015 and 2016 decisions do not co-exist, but that inter alia the conceded invalidity of the purported appeals process vitiates the 2016 decision. Conceding the first part of the latter proposition, the respondents resist the second part. They also contend that, substantively, the 2016 reversal was wholly consistent with the Bill of Rights.
8. Our submissions in support of the relief sought (more fully set out in the notice of motion) follows the scheme set out in the above index.
B. Factual and procedural background
9. The factual and procedural background is, for all material purposes (apart, perhaps, one) common cause. In what follows we summarise the most material events.
10. The impugned decision was adopted at an extraordinary sitting of the General Synod of the Dutch Reformed Church held during the period 7 to 10 November 2016 (hence the reference to it as “the 2016 decision”).[12] It came into effect either on 6 April 2017,[13] or on 26 May 2017.[14] The precise date is immaterial, because this application was lodged already on 15 June 2017[15] – well within any applicable deadline (whether under the common law, or under the Promotion of Administrative Justice Act (“PAJA”).[16] There is indeed no opposition to this application on the basis of any delay in instituting this application.[17]
11. The effect of the 2016 decision, it is common cause, is to preclude members of the LGBTIQA+ community from concluding civil partnerships, which Parliament has provided by law for all South Africans, in their own church.[18] In the respondents’ own words, the effect of the 2016 decision is “a gay or lesbian person can only be a minister if he or she is celibate, and ministers are not permitted to solemnise same-sex civil unions”.[19] It therefore imposes, on the respondents’ own showing, an absolute prohibition on solemnising same-sex civil unions – even if every applicable church member or pastor in a particular congregation, circle or synod holds, by individual or shared conscience, a different religious conviction.[20] The extraordinary 2016 meeting of an ad hoc constituted General Synod has purportedly predetermined for all concerned that same-sex life partnerships are sinful, sanctionable and religiously outlawed. The 2016 decision, we stress, is a prohibition which applies without any accommodation to everyone in the Church – whose rights in respect of same-sex civil unions had been unqualifiedly recognised just a year before.
12. This volte face is stark. The impugned 2016 decision followed hardly a year after a quite contrary decision. This was adopted by the General Synod at an ordinary meeting held on 30 October 2015.[21] The 2015 decision, shortly stated, acknowledges the legitimate status of civil unions between persons of the same sex, and permits pastors to solemnise such unions (but, as the respondents concede,[22] without forcing them to do so).[23] It explicitly recognises “the equality of all people irrespective of their sexual orientation”.[24] Thus, by adopting the 2015 resolution, the Church reconciled itself with section 9 of the Constitution, to which the Civil Union Act 17 of 2006 (which the 2015 decision explicitly cites)[25] gives effect. The Civil Union Act was specifically enacted as constitutional remedial legislation to give effect to the constitutional injunction articulated by the Constitutional Court in Minister of Home Affairs v Fourie to address “protracted and bitter oppression” of the LGBTIQA+ community.[26]
13. The 2015 decision came into effect on either 13 or 23 January 2016, pursuant to the publication of the decision on the website of Church’s official newspaper, Kerkbode.[27] Again, the precise date is immaterial. In summary,[28] it recognises same-sex civil partnerships and relationships.[29]
14. What is material is the purported recourse taken against the 2015 decision. Shortly after the General Synod of 2015, the Church received and purportedly processed various appeals and so-called gravamina against the 2015 decision. As mentioned, the respondents now concede the invalidity of that appeal process. The respondents also concede that the General Synod concluded that because the appeals were upheld, therefore the other purported forms of recourse (including the gravamina) had lapsed.[30]
15. Thus the relevance of the facts as they relate to the purported appeals and other forms of recourse is limited. What matters, as we shall show, is the contemporaneous evidence recording the operative premise as it was expressed by the chairman of the extraordinary meeting adopting the 2016 decision. The premise is that the appeals disposed of the 2015 decision.[31] Indeed, the 2016 decision does not say that it set aside, revised, amended, substituted, supplanted or erased the 2015 decision. On the face of the 2016 decision the status of the 2015 decision is unaffected.
16. The Church initially thought (so the answering affidavit subsequently alleges) that the mere fact that the appeals were lodged against the 2015 decision had the effect that the 2015 decision was rendered inoperative.[32] But this misconception was later, on 6 September 2016, recognised as wrong by the Moderamen of the Church.[33] On the same day the Moderamen (i.e. the executive council of the General Synod)[34] decided to convene an extraordinary general synod (“EGS”) meeting to consider the objections, appeals, gravamina and other presentations in relation to the 2015 decision.[35] This meeting was convened and eventually occurred, as scheduled, on 7 to 10 November 2016.
17. In the interim, the Algemene Taakspan Regte of the Church appointed an appeals body to convene and consider the appeals received against the 2015 decision.[36] The appeals body sat on 9 September 2016. It appears to have worked with remarkable speed: evidently on the very same day it upheld all of the appeals. It then reported this result to the EGS. This is not denied by the respondents. Indeed, on 21 September 2016 the Church reported in its official newspaper (the Kerkbode) that the Church had appointed an appeals body to consider the various appeals received against the 2015 decision, whereafter it would report to the EGS on its decision.[37]
18. On 23 September 2016, the Church called on individuals who had purportedly lodged appeals against the 2015 decision to convert their appeals into objections in order to serve at the extraordinary sitting of the General Synod scheduled for November 2016.[38] This, too, is not denied by the respondents.[39] Only the motive for doing so is sought to be rationalised by the respondents.[40] The objective fact is that they encouraged in this way the undoing of Synod’s own decision of a year before.
19. What the contemporaneous record reflects and the respondents cannot deny is dispositive. It is that at the commencement of the EGS meeting, when the issue of same-sex relationships arose for discussion, the meeting was advised by its chairperson that the matter was not to be discussed by the meeting.[41] Indeed, the chairman made a ruling to that effect. This was, so he remarkably stated, on the basis that the appeals body’s decision on the appeals were a “given”.[42] It had purportedly upheld the appeals and set aside the 2015 decision.[43] The meeting was also informed that it was not within the powers of the EGS to discuss the decision of the Appeals Body.[44] The chairman furthermore ruled that the appeal body’s decision would indeed not be discussed.[45]
20. The meeting then continued to discuss the issue of same-sex relationships. Faced with the dilemma that no valid form of recourse against the 2015 decision served before the extraordinary 2016 General Synod,[46] the respondents have now adopted – in their answering affidavit – the construct that the EGS considered the issue “de novo”.[47] On this construct the EGS could and did consider itself unconstrained by the 2015 decision, which the EGS’ chair, the record reveals, indeed considered to be not in esse. This rationalisation, offered not at the time in any contemporaneous document, is palpably a post hoc construct on legal advice. The slate thus supposedly cleared of the 2015 decision, the EGS concluded the impugned 2016 decision on same-sex relationships.[48]
21. What this common-cause factual and procedural background confirms is that the impugned decision is indeed the progeny of the purported appeals. The appeals paved the way for the 2016 decision by (it was assumed, but is now admitted was not the case) erasing the 2015 decision. From this, and related issues, the procedural review grounds arise. The substantive review grounds, in turn, are pure questions of law to be determined on the applicants’ uncontested facts – there being no attempt by the applicants to provide any factual refutation or information serving to rebut the presumption of unfair discrimination (or any other prima facie constitutional infringement), or to justify any infringement.
C. Review grounds
22. Accordingly the review grounds are essentially twofold. The first category is procedural. These grounds are based on the Church’s own constitution (the Church Order). The second category is substantive. Those grounds are based on the Constitution.
23. Granting the relief sought by the applicants does not require this Court to involve itself in any biblical exegesis or consequential doctrinal issues. Indeed, the answering affidavit is entirely devoid of any reliance on any biblical text supporting the respondents’ interpretation. This is understandable, because the Church concedes in its answering affidavit that “many of its members” (irrespective of sexual orientation) agree with the applicants’ interpretation of the Bible.[49]
24. Thus the only text which arises for consideration, interpretation and application is the Constitution and the Church Order.
(1) Procedural review grounds: the 2016 decision’s inconsistency with the Church Order
25. The Church Order does not authorise the purported appeals.[50] This the respondents now concede.[51]
26. Yet, as the facts demonstrate, it was on the back of the invalid appeal process that the 2016 decision was adopted. Thus the conceded illegality tainting the appeals also vitiates the 2016 decision. At best for the respondents, the appeal decisions might be said (as a matter of legal form) to stand unless and until they are set aside. For that reason they are attacked in this application.[52] The respondents concede the challenge; they do not oppose the granting of the requested relief relating to the appeals.[53] It follows that when this relief is granted by consent (as, with respect, must follow),[54] the 2016 decision – resulting, as it does, from the purported vacating of the 2015 decision by the purported appeals – also falls to be set aside, on this simple basis alone.[55]
27. Furthermore and in any event, the 2016 decision is also otherwise not authorised by the Church Order. As the founding affidavit explicitly identified, the Church Order only authorises recourse against decisions by the General Synod in the form of “revision” pursuant to paragraph 8 of Regulation 3 to the Church Order.[56] Revision has not been invoked by the respondents, as the record indeed confirms and the respondents do not deny. This is yet further confirmed by the respondents’ answering affidavit. In it they advance a twofold construct. It is defective in each of its components.
28. The first component is that a parallel de novo process (allegedly untainted by the void appeals process) was pursued, and that this process had spawned a new, independent 2016 decision.[57] But it is not open to an entity to pursue a parallel process if it is dissatisfied with a previous decision.[58] Nor can it escape the consequences of vitiating procedural irregularity by foreswearing reliance on the recourse contemplated by and pursued under its constitution. It follows that the newfound construct relying on a parallel process – a palpable attempt to circumvent – constitutes a fatal concession.
29. The second component of the respondents’ construct asserts a coy term, “re-visitation”.[59] But the Church Order does not provide for any “re-visitation”.[60] It provides for a review (“revisie”) in confined circumstances. Specific procedural and substantive requirements exist for a review.[61] These have not been met.[62] Again the respondents attempt a circumvention. This time by inventing their own glossary.[63]
30. Therefore the 2016 decision is inconsistent with the Church Order. The respondents concede that “the Kerkorde [Church Order] is the founding constitution of the Church and that decisions inconsistent with it are irregular.”[64] This concession is correct. As the Supreme Court of Appeal confirmed, the ultra vires doctrine is of particular importance to cases concerning churches: if an organ of a church acts outside its competence (or inconsistent with a jurisdictional fact or mandatory procedure), then a court of law is obliged to set aside the irregular conduct – irrespective of any theological, ecclesiastical, political or practical considerations.[65] It is equally well-established that a
“civil court maintains the capacity to interpret the religious body’s constitution and to secure that the ecclesiastical tribunal discharges its functions according to the agreement that gave life to it. Courts of law … will intervene where there is evidence of mala fides, irregularity or non-observance of the procedures laid down by the functioning of ecclesiastical tribunals”.[66]
31. The Supreme Court of Appeal confirmed this in Nederduitse Gereformeerde Kerk in Afrika (OVS) v Verenigende Gereformeerde Kerk in Suider-Afrika by citing a judgment which establishes another fundamental principle of law which applies also to churches. The principle is that the Church, too, is bound by its own decisions’ self-entrenchment. In Minister of the Interior v Harris[67] the then Appellate Division confirmed this principle in the context of an entrenchment provision in the country’s then-constitution. Harris is the public law equivalent of Shifren, which confirms the same principle for purposes of the common law of contract.[68] The respondents contend that it is the law of contract which governs.[69] Hence, on their approach, it is the Shifren principle which applies against them.
32. Simply stated, the Shifren principle holds that a contract (or, in this case, a decision) can only be amended in accordance with the process imposed by the contract (or decision) sought to be amended itself.[70] In this case the 2015 decision expressly provides that future attempts to derive “the biblical message as we understand it at this stage” be pursued by “[church] members, congregations and church councils” conducting “their own independent process of searching for the application of the biblical message” on the basis of identified “study material” (including the study of 2015), “the Belgic Confession Article 2” and “the specific and general revelation”, which requires that “the best findings of recent human sciences research” be used.[71]
33. Neither the 2016 decision itself nor the answering affidavit contends that this procedure was followed. Clearly it was not, because the purported re-visitation did not occur at the intended level (members, congregations and church councils); it was not based on the identified “study material”; and it is not congruent with the “the best findings of recent human sciences research”. It is, understandably, not the respondents’ case that science has changed in the few months after the 2015 decision. In fact, on the record before court nothing material is contended to have changed which could warrant the purported repudiation of the 2015 decision.[72] Hence revisie was not open to the respondents.
34. This explains the respondents’ resort to a construct entirely absent from the Church Order: “re-visitation”. It bears no substantive, procedural or even semantic semblance to revisie (for which the Church Order does provide, under limited circumstances). To revisit is to decide de novo (as on appeal), as the respondents indeed assert. To undertake a revisie is to review a matter. What the EGS purported to do was – the respondents allege – to decide a matter de novo (as on appeal), and this in the wake of a vitiated appeal process.
35. Therefore, on the respondents’ own construct, the 2016 decision should be set aside – even before the substantive merits arise for consideration. Nonetheless, the procedural irregularities identified above further confirm the substantive review grounds. This is because they show that contrary to an ancient principle of church law itself (subsidiarity)[73] the EGS has categorically disqualified church members’ adherence to their personal beliefs, thereby ousting congregations’ capacity to provide any proportionate accommodation of the LGBTIQA+ community.
(2) Substantive review grounds: The 2016 decision’s inconsistency with the Constitution
36. The founding affidavit explicitly invokes the following constitutional rights: the right to equality; the right to dignity; the right to privacy; the right to freedom of religion, belief and opinion; and the right to freedom of association and participation in cultural and religious communities.[74] On the basis of the respondents’ own correct recordal of the effect of the impugned decision,[75] a prima facie case is established that each of these constitutional rights is infringed by the 2016 decision.
37. Nothing in the answering affidavit rebuts the prima facie case of infringement. Indeed, apart from entering a bare and over-arching denial of unconstitutionality, the answering affidavit does not even dispute that the applicants’ rights have indeed been infringed.[76] To the contrary, the respondents themselves invokes the right to religion, freedom to express religious views, freedom to assemble as religious congregations, and freedom of association.[77] This constitutes a correct concession that these rights are indeed engaged (albeit not in the sense for which the respondents might wish to contend).
38. The Constitutional Court made it quite clear that the statutory recognition of same-sex relationships was enacted specifically to give effect to “[o]ur non-homophobic constitutional ethos”.[78] As mentioned, this was done in response to the Constitutional Court’s judgment identified above: Fourie.[79] In Fourie the Constitutional Court recognised the need to “emancipat[e] … a section of society that has known protracted and bitter oppression”.[80]
39. Fourie further confirmed fifteen constitutional imperatives and conclusions which are of particular significance to this case. They are, firstly, that it is not religious texts or polemical positions which govern, but Constitutional Court caselaw.[81] Second, protecting the traditional institution of marriage as recognised by law may not be done in a way which unjustifiably limits the constitutional rights of partners in a permanent same-sex life partnership.[82] Third, same-sex relationships have historically been the subject of unfair discrimination, and the Constitution requires that unfair discrimination must now cease.[83] Fourth, tolerance, mutual respect and accommodation of different practices are required.[84] Fifth, the applicable constitutional provisions affirm the right of people to self-expression without being forced to subordinate themselves to the religious norms of others; and this involves finding space for members of communities to depart from a majoritarian norm.[85] Sixth, however honestly and sincerely certain religious views are held, this cannot influence what the Constitution demands regarding discrimination on the grounds of sexual orientation.[86] Seventh, religious sentiments of some may not be used as guide to determine the constitutional rights of others.[87] Eighth, believers cannot claim an automatic right to be exempted by their beliefs from the laws of the land.[88] Ninth, even within the same religion there are vastly different and at times highly disputed views on how to respond to the homosexuality of clergy.[89] Tenth, courts are not required to construe religious texts and take sides on religious discourse; they are required to apply the law.[90] Eleventh, the law only acknowledges a diversity of strongly-held opinions on matters of great public controversy where there is no prejudice to the fundamental rights of any person or group.[91] Twelfth, it is the function of the Constitution (and the courts, when applying it) to intervene and counteract marginalisation of minorities, rather than to reinforce unfair discrimination; and in doing so the test is whether human dignity, equality and freedom is promoted or prejudiced by the impugned conduct.[92] Thirteenth, the capacity of heterosexual couples to marry in the form they wish and according to the tenets of their religion is not negated or attenuated by enabling same-sex couples to enjoy the status and benefits afforded by marriage law to heterosexual couples.[93] Fourteenth, the contention that particular religious beliefs perceive same-sex couples’ admission into the institution of marriage as devaluing marriage is profoundly demeaning and unconstitutional.[94] Fifteenth, no justification exists under section 36 of the Constitution for the unconstitutionality of refusing same-sex couples to enjoy the same benefits that marriage affords to heterosexual couples.[95]
40. Therefore Fourie confirms that the rights which the applicants invoke are indeed infringed, and that no justification exists under section 36 of the Constitution. It is therefore understandable that, despite citing Fourie in their answering affidavit, the respondents advanced no fact, argument or averment which relates remotely to any conceivable limitations analysis under section 36 of the Constitution. For the reasons identified in the applicants’ founding affidavit,[96] and found in Fourie,[97] section 36 indeed cannot save the infringement from unconstitutionality. It follows that if an infringement is established (as the founding affidavit indeed does), then there is no scope for any limitations analysis.
41. Already the first constitutional right invoked by the applicants is clearly and conclusively infringed. It is the right to equality, entrenched by section 9 of the Constitution, to which the Equality Act gives effect.[98] The Act quite clearly applies to the applicants and the respondents. It states explicitly that it “binds the State and all persons.”[99] The Act prohibits unfair discrimination by any person against any person.[100] It further provides that if a complainant makes out a prima facie case of discrimination,[101] then the respondent must either prove that the discrimination did not take place,[102] or that the conduct is not based on one or more of the prohibited grounds.[103] The prohibited grounds include sexual orientation.[104] The facts show that it is precisely on the basis of sexual orientation that the 2016 decision discriminates, and the answering affidavit indeed does not attempt to deny discrimination on the basis of sexual orientation.[105] Therefore discrimination on a prohibited ground is established. Accordingly the Act compels the conclusion that the discrimination is “unfair, unless the respondent proves that the discrimination is fair”.[106]
42. The respondents did not even assert that the discrimination is fair.[107] They simply asserted that that the 2016 decision is not unconstitutional.[108] They effectively conceded that there was discrimination and that it was indeed on a prohibited ground. Therefore the violation of the right to equality has been conclusively established.
43. Accordingly, even on this basis alone, the 2016 decision is unconstitutional. It therefore “must” be declared invalid.[109] No case has been established by the respondents (who, we reiterate, bear the onus)[110] that any reason exists for not setting aside the decision consequent on a declaration of invalidity.[111] Therefore prayers 2 and 3 of the applicants’ notice of motion should be granted.
44. Nothing contained in the answering affidavit or the grounds of opposition contradicts this conclusion, as we now turn to show. In doing so we shall also address the further constitutional causes of action invoked by the applicants, demonstrating that the respondents purported reliance on them only serves to confirm the applicants’ case.
D. Grounds of opposition
45. Four main contentions are advanced in the answering affidavit. They do not all appear to be intended to serve as substantive grounds of opposition, but are nonetheless each addressed below. We deal with these points separately in the sequence in which they would logically arise had they been properly taken.
(1) Non-exhaustion of internal remedies?
46. The respondents imply that internal remedies exist, and that they could and should have been exhausted. But this begs the procedural cause of action based on the Church Order. This question constitutes the first review ground on the merits. Hence the respondents correctly do not raise the exhaustion issue in limine.
47. It should not have been raised at all. This is because, for the reasons identified in the applicants’ founding and replying papers, there is no internal remedy to exhaust.[112] Shortly stated, the General Synod is the decision-maker of the 2016 decision, and no recourse exists to a further church structure from decisions by the General Synod.[113] The Church Order provides explicitly that decisions of meetings are binding, and only subject to an appeal to a higher meeting.[114] But the respondents correctly concedes that any appeal in the current circumstances was indeed ultra vires the Church Order. therefore it cannot constitute an available internal remedy.
48. As already demonstrated, even were revisie intra vires, it is in any event not an available internal remedy. This is because no new facts have come to light. This is precisely the applicants’ complaint. Thus their cause of action excludes the jurisdictional fact for revisie.
49. Similarly, gravamina are not authorised by the Church Order at all. The suggestion that “Mr Gaum [or any other applicant] could submit a gravamen to the 2016 General Synod” which “[h]e chose not to do” is in any event also otherwise risible.[115] Mr Gaum supported the 2015 decision and therefore could not lodge a gravamen to the 2016 meeting against the 2015 decision.
50. All that remains is the contention that arbitration is an available and obligatory internal remedy. This is incorrect, firstly, because arbitration (other than when prescribed by statute) is never obligatory: it is a consensual jurisdiction.[116] Secondly, the cause of action is not amenable to arbitration. This is inter alia because it concerns not only a dispute between the immediate parties, but also the concerns of “many” other believers who, the Church concedes,[117] strongly believe that the 2016 decision is indeed incorrect.[118] It also raises important constitutional issues which the applicants concede are not amenable to ventilation before church structures.[119] Constitutional and judicial review causes of action are generally not arbitrable in any event. And the public interest and the interests of justice militate strongly in favour of important constitutional questions being determined by the court hierarchy in open proceedings, not in private consensual and confidential arbitral proceedings which may at best be reviewable on very limited bases.[120]
51. Based on these considerations the applicants have thoroughly considered the possibility of arbitration, and taken legal advice. They unanimously instruct us that they wish to exercise their right under section 34 of the Constitution to subject the case they have brought in the public interest for determination by the serving judiciary in public court proceedings. That the respondents have for many months hidden behind secret appeal proceedings only to concede the illegality of the whole appeal process confirmed the need to subject this case to adjudication in a public forum in the interests of justice.
52. Crucially, the respondents’ premise for faintly invoking arbitration is also entirely flawed. They contend that article 23.2 of the Church Order requires that the applicants agree to an arbitration.[121] This is demonstrably wrong. Article 23.2 does not even mention the word arbitration. Arbitration is significantly not the available means of recourse recognised in the Church Order (which authorises, as mentioned, only appeals). Nor is it even purportedly authorised – albeit ultra vires the Church Order – by the regulations to the Church Order.[122] What Article 23.2 requires is simply that individuals in the Church’s service (i.e. employees) may not approach a court of law prior to pursuing church measures available to them.[123] Not only are the applicants not employees of the Church. They have also already extensively engaged with the Church over the issue during the preceding years. They have therefore already exhausted any available, authorised measures.
53. In any event, the respondents’ argument that PAJA is inapplicable is itself inconsistent with any reliance on the prior exhaustion of internal remedies. As the Constitutional Court confirmed, under the
“common law a party aggrieved by an administrative decision was not generally obliged to exhaust internal remedies before approaching a court on review. Where internal remedies are provided for, the choice was that of the aggrieved party either to pursue those remedies before going to a court of law or to proceed directly to seek the review of the offending decision in court.”[124]
54. Finally, having itself in 2015 agreed with the applicants’ interpretation, in 2016 the Church suddenly repudiated its own and the applicants’ interpretation, and in 2018 (when the Church finally deposed to its long-delayed answering affidavit) it adopted the formal stance that the applicants “are free to join any Christian church that interprets the Bible in the way they do, or to start their own.”[125] There is therefore no scope for further engagement. Least of all in circumstances where the Church itself confirms that constitutional grounds “for overturning the [2016] decision”[126] are not available in any internal church process (presuming any to exist).
55. There is accordingly no merit in the tenuous suggestion that some internal remedy had to be exhausted. It is correctly not advanced as a plea in bar.
(2) Inapplicability of PAJA?
56. At best for the respondents their suggestion that PAJA does not apply is academic.[127] This is because, as the founding affidavit clearly records,[128] the causes of action all rest on the Constitution and the Church Order;[129] and the relief sought is the review of the 2016 decision.[130] The respondents concede that the 2016 decision is indeed liable to review under the Constitution and the Church Order.[131] Therefore it is irrelevant that the grounds of review are also codified by PAJA, and that the applicants have cited the respective PAJA provision codifying the relevant common law and constitutional review ground. If this was redundant it is simply a plus petitio.[132]
57. Whether it was indeed redundant is not self-evident. This is because the Constitutional Court confirmed that PAJA codifies all review grounds under the common law;[133] that it spans the field of administrative review;[134] and that the Constitution created a single legal system which does not operate in silos governed by the common law or constitutionally-ordained legislation like PAJA.[135] The Supreme Court of Appeal, in turn, confirmed that principles governing voluntary associations apply to the review of church decisions, and that a court is obliged to set aside a decision by any church organ acting ultra vires its own constitution.[136] Church decisions have indeed for many decades been subject to judicial review.[137]
58. Therefore the only potential relevance of the contended inapplicability of PAJA is that this would yet further eviscerate the respondents’ point premised on the supposed non-exhaustion of an internal appeal. The point is therefore self-defeating.
(3) “Re-visitation” impervious to invalid appeals?
59. The respondents’ first defence on the merits is that the 2016 decision constitutes a de novo “re-visitation” of the 2015 decision which occurred entirely independently of the concededly invalid appeal process.[138] This is demonstrably incorrect. As we have shown, the appeals indeed constituted a material step in the 2016 decision-making process. It therefore vitiates the 2016 decision.
60. This conclusion is confirmed by the respondents’ own answering affidavit. It, too, quotes the chairman of the EGS’ official statements at the extraordinary meeting during which the impugned decision was purportedly adopted. In doing so the answering affidavit conclusively concedes that the chairperson (a.k.a. the registrar) had indeed
stated that
“the appeals against the 2015 decision on same-sex relationships have been upheld and, as such, the 2015 decision is set aside”, and that
the decision by the “appeal commission … stands”; and
ruled that
“the appeal’s commission’s decision will not be discussed”, and that
“[i]t is beyond the [2016] meeting’s competence to deal with it [the appeal commission’s disposal of the appeals]”.[139]
61. Furthermore and in any event, as we have also already shown, the Church Order does not authorise the de novo “re-visitation” which the respondents now conjure.[140] Any such process is therefore ultra vires. Accordingly the court is, on the authority of the Supreme Court of Appeal, compelled to declare it invalid.[141]
62. Therefore, far from constituting a competent basis of opposition, this point confirms the applicants’ first review ground.
(4) Respondents’ religious or other rights permit infringing LGBTIQA+’s?
63. The final ground of opposition is an even more spectacular own goal. It purports to invoke some of the self-same constitutional rights on which the applicants rely in their founding affidavit. Whereas the applicants substantiate their reliance on section 9, 10, 14, 15, 18 and 31 of the Constitution,[142] the respondents simply “note” by rote traversal that “the Church and its members are the beneficiaries” of section 15(1), 16(1), 17 and 18 of the Constitution.[143]
64. The correct position is, firstly, that section 15(1), which entrenches the right of religious freedom operates equally – if not a fortiori – in favour of the applicants. Secondly, section 16(1) does not entrench the right to express “religious views”,[144] or any view (for that matter), which is in conflict with the Constitution and its “non-homophobic ethos”.[145] Thirdly, section 17 is not engaged at all. By accepting the Constitution’s anti-homophobic ethos the respondents are not in any way impeded from any activity entrenched by section 17. Section 17 explicitly entrenches nothing other than the right “to assemble, to demonstrate, to picket and to present petitions.”[146] Finally, the acceptance of the correct constitutional ethos also does not detract from any right which the respondents may seek to assert pursuant to section 18. Section 18 entrenches “the right to freedom of association.”[147] Recognising the legitimacy of same-sex relations does not excommunicate an adherent to any homophobic theology. To the contrary, it is the “censure”[148] and sanction which the 2016 resolution expressly contemplates for same-sex relationships which preclude and exclude adherents to an anti-homophobic ethos. Not only is this an ethos consistent with the Constitution, it is sourced (so the applicants, and many other Church members, strongly believe) in the Bible itself.[149]
65. In short, it is the 2016 decision which purports to decide for all members, pastors, congregations and church councils whether or not same-sex relations are sinful. The 2015 decision permitted this religious question to be decided on an individual basis, giving effect to what the respondents themselves confirm is indeed fundamental to the Church Order. It is that “each congregation, through its kerkraad [church council], is the visible manifestation of the Church, and is in itself a complete church”.[150] Then at least each church council should be able to make the decision on same-sex relationships for themselves, as the 2015 decision envisages. But the 2016 decision precludes this – precluding any accommodation or proportionality.[151]
66. In doing so the 2016 decision, taken at the central assembly of the Church, infringed section 15 and simultaneously exceeded the only constitutional right which is actually applicable to the respondents: section 31 of the Constitution (which entrenches the rights of religious communities).[152] The qualification contained in section 31 requires that practices which cause emotional harm to other persons be precluded.[153]
67. As the Constitutional Court held in Christian Education South Africa v Minister of Education,[154]
“special care has been taken in the text [of section 31] expressly to acknowledge the supremacy of the Constitution and the Bill of Rights. Section 31(2) ensures that the concept of rights of members of communities that associate on the basis of language, culture and religion, cannot be used to shield practices which offend the Bill of Rights. These explicit qualifications may be seen as serving a double purpose. The first is to prevent protected associational rights of members of communities from being used to ‘privatise’ constitutionally offensive group practices and thereby immunise them from external legislative regulation or judicial control. This would be particularly important in relation to practices previously associated with the abuse of the notion of pluralism to achieve exclusivity, privilege and domination. The second relates to oppressive features of internal relationships primarily within the communities concerned, where s 8, which regulates the horizontal application of the Bill of Rights, might be specially relevant.”
68. This is consistent with the recognition in (international) human rights instruments that “a belief must be consistent with basic standards of human dignity” in order to enjoy protection.[155] The belief that homosexuality is sinful and religiously repugnant is, the Constitutional Court confirmed, profoundly demeaning.[156] Since such belief is inconsistent inter alia with human dignity (which section 10 of the Constitution entrenches), it is not capable of constitutional protection. Were it otherwise,
- religious rights would be liable to abuse by being raised to “privatise” constitutionally offensive group practices, thereby immunising them from external legislative regulation or judicial control; and
- oppressive practices and features of internal relationships within the Church would be shielded from scrutiny and remedy, despite their offending the Bill of Rights.
This is clearly contrary to Christian Education South Africa.
69. It therefore follows that the respondents’ incidental citation of the Bill of Rights (in purporting to traverse the applicants’ reliance on the Constitution) actually defeats the respondents’ own case, and confirms the applicants’.
E. Conclusion
70. The respondents’ own papers appear to accept, as indeed they must, that there has been no change in biblical text, textual interpretation, or scientific findings since 2015 which justified the 2015 decision’s reversal in 2016. There is therefore no substantive basis for a different conclusion in 2016. Indeed, no such basis is provided in the answering affidavit. All that it suggests is that the 2015 decision was “celebrated” by some (apparently as resting on a correct construction of Scripture),[157] but “thought” by “others” to legitimise “sinful behaviour”.[158] It is its “controversy”,[159] not its correctness (or even its regularity), which inspired the purported recourse against the 2015 decision.
71. The mere fact that “strong views [are] held on both sides”[160] does not justify imposing the views of one faction on the other, as the 2016 decision does (but the 2015 decision does not do). Furthermore, however controversial a decision may be, detractors’ discontent does not dispel the need to adhere to the Church Order. A lack of popularity in certain circles does not validate an ultra vires “re-visitation”.
72. The impugned 2016 decision is therefore unconstitutional and contrary to the Church Order both in form and substance. It therefore requires to be set aside.
73. Since the appeals are conceded, this relief should also be granted. The ancillary relief relating to the validity of paragraph 8 of Regulation 19 to the Church Order does not arise, because the respondents do not contend that this provision precludes granting the rest of the relief.
74. As regards costs, the respondents do not dispute that the Biowatch principle indeed applies.[161] Therefore, in the event that the applicants succeed (as we respectfully submit they must), costs should follow the event on the basis requested (including the costs of three counsel, where incurred).[162] Conversely, if the applicants should fail, there ought to be no order as regards costs.[163]
J.J. GAUNTLETT SC QC
F.B. PELSER
M. GAUM
Counsel for the applicants
Chambers
Cape Town
4 May 2018
Footnote:
[1] Record vol 1 p 16 para 8.
[2] Record vol 1 p 16 para 4.
[3] Record vol 1 p 16 para 4.
[4] Record vol 1 p 16 para 4.
[5] Record vol 1 p 16 para 2.
[6] Record vol 1 p 16 para 8.
[7] Record vol 1 p 16 para 8.
[8] Record vol 1 p 16 para 8.
[9] Record vol 1 p 16 para 8.
[10] De Lange v Methodist Church 2016 (2) SA 1 (CC) at para 3, referring to the “immense emotional loss” suffered as a consequence of “painful ruptures” with one’s “family and the Church” as a result of the disclosure of sexual orientation by a lesbian minister of faith.
[11] Record vol 1 p 9 para 6.
[12] Record vol 1 p 12 para 18.
[13] Record vol 1 p 12 para 18.
[14] Record vol 3 p 260 para 137.
[15] Record vol 1 p 1 line 12, reflecting the Registrar’s date stamp.
[16] Act 3 of 2000.
[17] Record vol 3 p 269 para 184.
[18] Record vol 1 p 9 para 5, “note[d]” (thus conceded) at Record vol 3 p 248 para 68.
[19] Record vol 3 p 246 para 62.
[20] Record vol 5 p 494 para 51.
[21] Record vol 1 pp 16-18 para 30.
[22] Record vol 3 p 238 para 34.2.
[23] Record vol 1 p 16 para 4.
[24] Record vol 1 p 16 para 1.
[25] Record vol 1 p 17 para 2bis.
[26] 2006 (1) SA 524 (CC) at para 136.
[27] Record vol 3 p 254 para 104.
[28] The text of the full 2015 decision is at Record vol 1 p 16 para 30. The respondents confirm that this is indeed the official text of the English translation (Record vol 3 p 253 para 101).
[29] Record vol 1 p 16 para 29; not denied at Record vol 3 p 253 para 100.
[30] Record vol 1 p 15 para 27; not denied at Record vol 3 p 253 para 99 (denying only that the gravamina had lapsed, not that the General Synod had concluded that they did).
[31] Record vol 1 p 15 para 26. Although the respondents baldly state that “[t]he General Synod did not adopt the 2016 decision on the premise that the appeals had disposed of the 2015 decision”, this does not raise a bona fide dispute of fact. This is because the contemporaneous record confirms that the 2016 decision was indeed approached on the basis that the 2015 decision was swept away. Had it been otherwise, the 2016 decision itself would have recorded that it reverses, amends, repeals or otherwise redresses the 2015 decision. Yet the 2016 decision contains no such recordal (Record vol 2 p 31). The assumption (later exposed as itself false) could hardly be clearer: the appeals process had undone the standing decision of 2015. The way was clear to do the opposite.
[32] Record vol 3 p 239 para 38.
[33] Record vol 3 p 240 para 40.
[34] Record vol 1 p 18 para 34.
[35] Record vol 3 p 241 para 42.2.
[36] Record vol 3 p 209 para 36.
[37] Record vol 1 pp 59-60.
[38] Record vol 1 p 19 para 36.
[39] Record vol 3 p 255: para 36 of the founding affidavit is left untraversed.
[40] Record vol 1 p 20 para 38. The respondents’ rationalisation is that they purported to convert invalid appeals into other forms of recourse. But a nullity cannot be converted: it is void ab initio (Record vol 1 p 20 para 39).
[41] Record vol 1 p 22 para 46; admitted at Record vol 3 p 258 para 127.
[42] Record vol 1 p 22 para 46; admitted at Record vol 3 p 258 para 127.
[43] Record vol 1 p 22 para 45; admitted at Record vol 3 p 258 para 127.
[44] Record vol 2 p 205 para 21; Review record p 910.
[45] Record vol 1 p 22 para 46; admitted at Record vol 3 p 258 para 127. Record vol 1 p 39 para 95.
[46] Record vol 1 p 41 para 100. The answering affidavit traverses this paragraph in contradictory and otherwise unsatisfactory terms. It contends on the one hand that the “discussion [was] dealt with in the light of gravamina etc” (thus, also in reliance on appeals), but on the other hand contends that “[t]he 2016 General Synod was to consider the issue of same-sex relationships anew.” At best for the respondents, their inconsistent construct confirms that inter alia the appeals materially precipitated the 2016 decision (Record vol 5 p 479 para 10).
[47] Record vol 3 p 231 para 7.
[48] Review record p 910.
[49] Record vol 3 p 239 para 36; Record vol 3 p 243 para 52; Record vol 266 para 172; Record vol 3 p 270 para 187. It is indeed a notorious fact that there is no explicit biblical text which supports the respondents’ repugnance to homosexuality. The concept was coined by psychoanalysts in the late nineteenth century; no word even existed in the languages of the Bible (Aramaic, Greek and Hebrew) for “homosexual” or “homosexuality.”
[50] An extract of the relevant provisions of the Church Order is at Record vol 2 p 157-194. The respondents have annexed the entire document to their founding affidavit, comprising annexure “DU1” (at Record vol 3 p 271ff).
[51] Record vol 3 p 232 para 10; Record vol 3 p 251 para 89.
[52] Record vol 1 p 2 prayers 4 and 5; Record vol 1 p 14 para 22; Record vol 1 p 14 para 25.
[53] Record vol 3 p 232 para 10; Record vol 3 p 251 para 89; Record vol 3 p 262 para 157; Record vol 3 p 268 para 180.
[54] Record vol 5 p 478 para 5.
[55] Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222 (SCA) at paras 31 and 37: a decision relying for its validity on the legal validity or factual existence of a previous decision can exist in law only for as long as the prior decision is itself extant. Once the decision forming the premise for the subsequent decision is set aside, the subsequent decision will also be invalid (Seale v Van Rooyen NO 2008 (4) SA 43 (SCA) at para 13). In such scenario the rationale for the second decision is non-existent – both in law and in fact (ibid).
[56] Record p 15 para 25.
[57] Record p 231 para 7.
[58] South African Broadcasting Corporation SOC Ltd v Democratic Alliance 2016 (2) SA 522 (SCA) at paras 47 and 53. In Economic Freedom Fighters v Speaker, National Assembly 2016 (3) SA 580 (CC) at para 78 the Constitutional Court held that there is no absolute bar against parallel investigations. It nonetheless held that even where a parallel process is permissible under the circumstances of a particular case, then the appropriate form of recourse (in that case judicial review under the Constitution; in this case review – or “revisie” – under the Church Order) must be pursued (id at para 98).
[59] Record vol 3 p 246 para 62.5.
[60] Record vol 5 p 479 para 9. The term has simply been made up by the respondents. They derive the noun from the proceedings on 7 November 2016 leading to the purported 2016 decision: these recorded that the issue of same-sex relationships “herbesoek word” [“be revisited”] (Record vol 3 p 243 para 50.1 fn 4). “Re-visitation” is not a word: see the New Shorter English Dictionary 2nd ed (OUP, Oxford 2007) vol 2 s.v. “visit”. A “visitation” connotes a supernatural act of comfort (id s.v. “visitation”).
[61] Record vol 1 p 37 para 89; Record vol 2 pp 185-189 (comprising Regulation 19 under the Church Order); Record vol 5 p 491 paras 41-42.
[62] Record vol 1 p 37 para 89, not disputed at Record vol 3 p 262 (which leaves para 89 of the founding affidavit untraversed). Record vol 3 pp 205-211 paras 23-40, conceded at Record vol 3 p 268 para 180.
[63] This is known as the Humpty-Dumpty Theory of Language: “‘The question is’, said Alice, ‘whether you can make words mean so many different things’. ‘The question is’, said Humpty Dumpty, ‘which is to be master – that’s all’. Alice was too much puzzled to say anything; so after a minute Humpty Dumpty began again.” Lewis Carroll The Adventures of Alice in Wonderland and Through the Looking Glass (1949 ed).
[64] Record vol 3 p 250 para 86.
[65] Nederduitse Gereformeerde Kerk in Afrika (OVS) v Verenigende Gereformeerde Kerk in Suider-Afrika 1999 (2) SA 156 (SCA) at 176G-I.
[66] Joubert et al (eds) The Law of South Africa 2nd ed (LexisNexis, Durban 2009) vol 23 at para 152 (footnotes omitted).
[67] 1952 (4) SA 769 (A).
[68] SA Sentrale Ko-op Graanmaatskappy Bpk v Shifren 1964 (4) SA 760 (A); confirmed by the Supreme Court of Appeal in Brisley v Drostky 2002 (4) SA 1 (SCA) at paras 6-9.
[69] Record vol 3 p 250 para 84.
[70] Shifren supra at 766C-767C.
[71] Record vol 1 p 17 para 8 (our emphasis).
[72] Record vol 5 p 482 para 18.
[73] As Cameron J explained in My Vote Counts NPC v Speaker of the National Assembly 2016 (1) SA 132 (CC) at para 46 and fn 86, “[s]ubsidiarity denotes a hierarchical ordering of institutions, of norms, of principles, or of remedies, and signifies that the central institution, or higher norm, should be invoked only where the more local institution, or concrete norm, or detailed principle or remedy, does not avail.” The text to fn 86, sunk at the end of this sentence, reads:
“The principle of subsidiarity derives from Roman Catholic Canon Law, dating back to the First Vatican Council in 1869-1870, where it entails that human affairs are handled best at the lowest possible level of management. See Murray ‘The Principle of Subsidiarity and the Church’ (1995) Australasian Catholic Record 163 at 164-5 and 171. In the European Community, subsidiarity entails that Community organs should act only where action cannot be more effectively taken at member state level. Subsidiarity thus tries to devolve as much power as possible to the constituent states. The principle seeks to recognise the diversity of national traditions with Europe, acknowledging that many matters are best dealt with below Community level. See Critchley Europe and Industry: The Integration of the European Union (e-book 1995 available at https://protect-za.mimecast.com/s/5xDzBlFpN34Cd vol 1 at 117-34; and Sibanda ‘Beneath it all lies the Principle of Subsidiarity: The Principle of Subsidiarity in the African and European Regional Human Rights Systems’ (2007) 40 Comparative and International Law Journal of Southern Africa 425 at 425 and 431. It is in this sense that the word ‘subsidiarity’ is used in Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and Others (Mont Blanc Projects and Properties (Pty) Ltd and Another as Amici Curiae) 2008 (4) SA 572 (W) ([2008] 2 All SA 298) (Gauteng Development Tribunal) para 53 and fn 68 (recording the argument that the sphere of government where the specific function would be most appropriate must inform the understanding of functional areas of concurrent constitutional competence).”
[74] Record vol 1 p 13 para 20.
[75] As mentioned, the respondents state that the effect of the 2016 decision is that “a gay or lesbian person can only be a minister if he or she is celibate, and ministers are not permitted to solemnise same-sex civil unions” (Record vol 3 p 246 para 62).
[76] The respondents’ traversal of the relevant part of the founding affidavit simply asserts: “I deny that the 2016 decision is unconstitutional, or that it falls foul of the Charter of Religious Rights and Freedoms” (Record vol 3 p 265 para 171). The highwater mark of this traversal is a denial that the 2016 decision “restricts the applicants’ right to freedom of association” (Record vol 3 p 267 para 174). The unfortunate rationale for this argument is the respondents’ stance that the applicants “are free” to leave the Church and establish their own (Record vol 3 p 267 para 174).
[77] Record vol 3 p 250 para 85.
[78] DE v RH 2015 (5) SA 83 (CC) at para 46, per Madlanga J (writing for a unanimous Court).
[79] Minister of Home Affairs v Fourie v Minister of Home Affairs 2006 (1) SA 524 (CC).
[80] Id at para 136.
[81] Id at para 48.
[82] Id at para 54.
[83] Id at para 57.
[84] Id at para 60.
[85] Id at para 61.
[86] Id at para 92, citing National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC) at para 38.
[87] Id at para 92.
[88] Id at fn 160, quoting Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC) at para 35.
[89] Id at para 92.
[90] Id at para 92.
[91] Id at para 94.
[92] Id at para 94.
[93] Id at para 111.
[94] Id at para 112.
[95] Id at para 113.
[96] Record vol 1 pp 44-46 paras 110-118. The purported over-arching traversal of these paragraphs is bare, argumentative and ineffective (Record vol 3 pp 265-267 paras 171-175).
[97] Supra at paras 110-113.
[98] The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. As the Constitutional Court confirmed in De Lange v Methodist Church 2016 (2) SA 1 (CC) at para 30(c), the High Court indeed retains jurisdiction under the Equality Act to hear a matter under its dual but separate jurisdictions qua Equality Court (under the Act, adjudicating on equality causes of action) and High Court (under its inherent jurisdiction, adjudicating on all other causes of action within its jurisdiction).
[99] Section 5(1) of the Equality Act, emphasis added. The Act defines “person” as including “a juristic person, a non-juristic entity, a group or a category of persons”.
[100] Section 6 of the Equality Act.
[101] Section 13(1) of the Equality Act.
[102] Section 13(1)(a) of the Equality Act.
[103] Section 13(1)(b) of the Equality Act.
[104] Section 1 of the Equality Act s.v. “prohibited grounds” category (a).
[105] Record vol 1 p 43 para 106; not denied at Record vol 3 p 265 para 171.
[106] Section 13(2)(a) of the Equality Act.
[107] The factors codified in section 14(3) of the Equality Act for determining whether a respondent has acquitted itself of the onus resting on it clearly show that the respondents cannot possibly on the facts of this case establish the fairness of the discrimination. The factors are the following
(a) whether the discrimination impairs or is likely to impair human dignity;
(b) the impact or likely impact of the discrimination on the complainant;
(c) the position of the complainant in society and whether he or she suffers from patterns of disadvantage or belongs to a group that suffers from such patterns of disadvantage;
(d) the nature and extent of the discrimination;
(e) whether the discrimination is systemic in nature;
(f) whether the discrimination has a legitimate purpose;
(g) whether and to what extent the discrimination achieves its purpose;
(h) whether there are less restrictive and less disadvantageous means to achieve the purpose;
(i) whether and to what extent the respondent has taken such steps as are reasonable in the circumstances to
(i) address the disadvantage which arises from or is related to one or more of the prohibited grounds; or
(ii) accommodate diversity.
The application of these factors to the facts of this case is, with respect, self-evident: the operate strongly against the respondents.
[108] Record vol 3 p 265 para 171.
[109] Section 172(1)(a) of the Constitution.
[110] Ferreira v Levin NO 1996 (1) SA 984 (CC) at para 44.
[111] The highwater mark of the respondents’ case is an assertion simpliciter that the applicants have not made out a case for the relief they seek because the 2016 decision is “unimpeachable” (Record vol 3 p 269 para 186). The respondents accordingly stand and fall by the contention that the impugned decision – which the Church correctly concedes is indeed subject to review in terms of the Bill of Rights and the Church order (Record vol 3 p 250 para 84) – is consistent with the country’s and the Church’s constitutions. Their case is limited to the merits. Nothing is advanced in respect of remedy by the respondents.
[112] Record vol 1 p 42 paras 102-104; Record vol 5 pp 503-504 paras 78-79.
[113] Record vol 5 p 503 para 78.
[114] Record vol 2 p 165 regulation 23.1.
[115] Record vol 3 p 246 para 61.6.
[116] North East Finance (Pty) Ltd v Standard Bank of South Africa Ltd 2013 (5) SA 1 (SCA) at para 20, citing Lord Hoffman in Fiona Trust & Holding Corporation v Privalov 2007 UKHL 40; [2007] 4 All ER 951 (HL) at para 5.
[117] Record vol 3 p 270 para 187.
[118] De Lange supra fn 34.
[119] Record vol 3 p 265 para 170.
[120] Lufuno Mphaphuli & Associates (Pty) Ltd v Andrews 2009 (4) SA 529 (CC) at paras 214 and 235.
[121] Record vol 3 p 265 para 169.
[122] Regulation 19 purports to authorise revisions, appeals, objections, and gravamina (Record vol 2 p 185). It does not even include arbitrations in the over-abundant list of internal remedies.
[123] Record vol 2 p 165 para 23.2.
[124] Dengetenge v Southern Sphere 2014 (5) SA 138 (CC) at para 115. See, too, id at para 121, citing Koyabe v Minister for Home Affairs 2010 (4) SA 327 (CC) at para 34.
[125] Record vol 3 p 267 para 174.
[126] Record vol 3 p 265 para 170.
[127] Record vol 3 p 249 para 82.
[128] Record vol 1 p 8 para 3.
[129] Record vol 1 p 13 paras 20-21.
[130] Record vol 1 p 2 prayer 3. Prayer 2 seeks a declarator of invalidity of the 2016 decision; prayers 4 and 5 concern the appeal decisions (which are conceded to be invalid); and prayers 6 and 7 relate to paragraph 8 of Regulation 19 to the Church Order (which are only sought to the extent that this might be necessary, which the respondents appear to accept is not the case).
[131] Record vol 3 p 250 para 84.
[132] Allen v Allen 1951 (3) SA 320 (A) 330-331: “a plus petitio is no longer ground for plaintiff being non-suited.”
[133] Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism 2004 (4) SA 490 (CC) at para 25.
[134] Ibid.
[135] Pharmaceutical Manufacturers Association of SA: In re Ex parte President of the Republic of South Africa 2000 (2) SA 674 (CC) at para 44.
[136] Nederduitse Gereformeerde Kerk in Afrika (OVS) v Verenigende Gereformeerde Kerk in Suider-Afrika 1999 (2) SA 156 (SCA) at 176G-I.
[137] Du Plessis v The Synod of the Dutch Reformed Church 1930 CPD 403 at 420.
[138] Record vol 3 p 246 para 61.5.
[139] Record vol 3 p 258 para 128.
[140] Nothing in the review record or the respondents’ answering papers establishes or even asserts compliance with the formal and substantive jurisdictional facts set out in Regulation 19 of the Church Order. Thus, even were these measures intra vires, and even were “re-visitation” somehow to be brought within any of the measures mentioned in Regulation 19, then it would still remain unauthorised for failing to comply with the jurisdictional facts.
[141] Nederduitse Gereformeerde Kerk in Afrika (OVS) v Verenigende Gereformeerde Kerk in Suider-Afrika 1999 (2) SA 156 (SCA) at 176G-I.
[142] Record vol 1 p 13 para 20, read with Record vol 1 p 43-47 paras 105-121.
[143] Record vol 3 p 250 para 85.
[144] Record vol 3 p 250 para 85.
[145] See, again, DE v RH supra at para 46.
[146] Section 17 of the Constitution.
[147] Section 18 of the Constitution.
[148] Record vol 3 p 266 para 172.
[149] Indeed, the respondents’ own answering affidavit concedes that many “members of the Church believe that these passages [from the Bible, which other Church members cite for slating same-sex relations as sinful] do not, in fact, prohibit same-sex relationships, and that the Bible thus permits them” (Record vol 3 p 237 para 29).
[150] Record vol 3 p 235 para 22.
[151] As mentioned, this infringes a crucial feature of constitutional equality jurisprudence. As the Constitutional Court held in MEC for Education, KwaZulu-Natal v Pillay 2008 (1) SA 474 (CC) at paras 72-75
“The concept of reasonable accommodation is not new to our law – this court has repeatedly expressed the need for reasonable accommodation when considering matters of religion. …
But what is the content of the principle? At its core is the notion that sometimes the community, whether it is the State, an employer or a school, must take positive measures and possibly incur additional hardship or expense in order to allow all people to participate and enjoy all their rights equally. It ensures that we do not relegate people to the margins of society because they do not or cannot conform to certain social norms. In Christian Education, in the context of accommodating religious belief in society, a unanimous court identified the underlying motivation of the concept as follows:
‘The underlying problem in any open and democratic society based on human dignity, equality and freedom in which conscientious and religious freedom has to be regarded with appropriate seriousness, is how far such democracy can and must go in allowing members of religious communities to define for themselves which laws they will obey and which not. Such a society can cohere only if all its participants accept that certain basic norms and standards are binding. Accordingly, believers cannot claim an automatic right to be exempted by their beliefs from the laws of the land. At the same time, the State should, wherever reasonably possible, seek to avoid putting believers to extremely painful and intensely burdensome choices of either being true to their faith or else respectful of the law.’
…
… Our society which values dignity, equality and freedom must therefore require people to act positively to accommodate diversity. Those steps might be as simple as granting and regulating an exemption from a general rule or they may require that the rules or practices be changed or even that buildings be altered or monetary loss incurred.”
See, too, id at para 86
“the centrality of a practice or a belief must play a role in determining how far another party must go to accommodate that belief. The essence of reasonable accommodation is an exercise of proportionality. Persons who merely appear to adhere to a religious and/or cultural practice, but who are willing to forgo it if necessary, can hardly demand the same adjustment from others as those whose identity will be seriously undermined if they do not follow their belief.”
[152] Prince v President, Cape Law Society 2002 (2) SA 794 (CC) at para 110.
[153] Cf Prince v President, Cape Law Society 2002 (2) SA 794 (CC) at para 108.
[154] 2000 (4) SA 757 (CC) at para 26.
[155] Smith, Re Judicial Review [2017] NIQB 55 at para 32; R (Williamson) v Secretary of State for Education and Employment [2005] 2 AC at para 23.
[156] Fourie supra at para 112. See, too, Christian Education at para 36.
[157] On the respondents’ own papers, significantly, these include the Church’s young theologians at its leading university seminary (Record vol 3 p 243 para 53).
[158] Record vol 3 p 239 para 36.
[159] Record vol 3 p 239 para 36.
[160] Record vol 3 p 266 para 172.
[161] Record vol 1 p 50 para 126; not denied at Record vol 3 p 268 para 179.
[162] Record vol 1 p 50 para 129; not contested at Record vol 3 p 268 para 179.
[163] Biowatch Trust v Registrar, Genetic Resources 2009 (6) SA 232 (CC) at para 23.
