De Lange v Presiding Bishop of the Methodist Church of Southern Africa for the time being and Another (726/13) [2014] ZASCA 151; 2015 (1) SA 106 (SCA); [2015] 1 All SA 121 (SCA) (29 September 2014)

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[2014] ZASCA 151
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De Lange v Presiding Bishop of the Methodist Church of Southern Africa for the time being and Another (726/13) [2014] ZASCA 151; 2015 (1) SA 106 (SCA); [2015] 1 All SA 121 (SCA) (29 September 2014)

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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
no: 726/13
Reportable
/ Not Reportable
In
the matter between:
ECCLESIA
DE
LANGE
...................................................................................................
APPELLANT
and
THE
PRESIDING BISHOP OF THE METHODIST CHURCH
OF
SOUTHERN AFRICA FOR THE TIME
BEING
....................................
FIRST
RESPONDENT
THE
EXECUTIVE SECRETARY FOR THE TIME BEING
OF
THE METHODIST CHURCH OF SOUTHERN AFRICA
...............
SECOND
RESPONDENT
Neutral
citation:
Ecclesia De Lange v The
Presiding Bishop of the Methodist Church of Southern Africa
(726/13)
[2014] ZASCA 151
(29 September 2014)
Bench:
Ponnan, Wallis, Pillay JJA and Fourie
and Mathopo AJJA
Heard:
26 August 2014
Delivered:
29 September 2014
Summary
:
Voluntary association – internal disciplinary proceedings –
arbitration prescribed by laws and discipline of the Church
–
whether good cause shown in terms of
s 3(2)
of the
Arbitration Act 42
of 1965
for avoiding the arbitration – doctrine of
entanglement.
ORDER
On
appeal from
:
Western
Cape High Court, Cape Town (Veldhuizen J sitting as court of first
instance):
The
appeal is dismissed.
JUDGMENT
Ponnan
JA (Wallis, Pillay JJA and Fourie and Mathopo AJJA concurring):
[1]
‘
People,
as Kant said somewhere, are ungregariously gregarious. They may
associate for some purpose and then may quarrel. The group,
its
majority or those in power, may want to expel the troublemaker; and
he, in his turn, may complain of unfair treatment. Both
sides may
have their points, though an impartial observer may think the quarrel
not worth the ado, nor the offence perhaps worth
expulsion. But the
observer may feel reluctant to take sides, where the dispute is
between one and many. The many may seem too
hasty or severe, but then
they also represent, if anyone represents, the group's collective
wish or purpose . . . .’
[1]
This
is an appeal against the judgment and order of the Western Cape High
Court (per Veldhuizen J) dismissing with costs an application
by the
Reverend Ecclesia de Lange (the appellant) against the Methodist
Church of Southern Africa (the Church), represented by
its Presiding
Bishop, as the first respondent, and its Executive Secretary, as the
second respondent,
[2]
in which
the following relief was sought:
‘
1.
Setting aside the arbitration agreement between the parties in terms
of the First and Second Respondent’s Laws and Disciplines,

alternatively an order that such arbitration agreement shall cease to
have effect with reference to any dispute as set out herein;
2.
A declaratory order that the decision by the Methodist Church of
Southern Africa to discontinue the Applicant as a minister of
the
Methodist Church of Southern Africa is unconstitutional and unfair
discrimination based on sexual orientation;
3.
Reviewing and setting aside the decision whereby the First
Respondent’s Cape of Good Hope District Disciplinary
Committee’s
decision dated
12 January 2010
, whereby the
Applicant was suspended as a minister, which was confirmed by the
First Respondent’s Connectional Disciplinary
Committee, whereby
the Applicant was discontinued as minister, dated 17 February 2010,
and which discontinuation was sanctioned
by the Presiding Bishop on
20 February 2010
as a minister of the Methodist Church of
Southern Africa;
4.
Reinstating the Applicant as a minister of the Methodist Church of
Southern Africa with retrospective effect, which includes
that the
First and Second Respondents are ordered to pay to the Applicant all
station and emoluments to which the Applicant would
have been
entitled had she not been suspended and discontinued;
5.
Costs as follows:
5.1
of the application including the costs of two counsel.
5.2
declaring the costs of the arbitration and the assistance of
Applicant’s attorney as necessary costs preceding this
application.’
[2]
According to the appellant:
‘
13.2
During my late teens I came to the conclusion that I am a lesbian. I
realised that this discovery would not be acceptable to
my family or
Church and so I concealed it, totally oblivious as to my human
identity and rights. I tried to fit in by being in
heterosexual
relationships, appearing to be normal and acceptable to the
community.
13.3
However, my ability to pretend to be heterosexual did not last and it
wasn’t long before others found out about my sexual

orientation. I was told in no uncertain terms that I cannot be
Christian and lesbian. My family relationships and support system

were shattered. The Church’s stance on homosexuality sent a
clear message of rejection to me which forced me to leave the
Church.
The pain and loss was immense.
13.4
Several years later I had an encounter with God that made me return
to the Church. I knew that God loved and accepted me and
I renewed my
commitment. I then set out to find a Church. It did not take me long
to discover the “hidden or unspoken approach”
of the
Church was unchanged on same sex relationships. At the time the only
way for me to be included in the community was either
to deny my
sexual orientation and live a life of secrecy or live a life of
celibacy, contrary to my true and natural orientation.’
[3]
Having decided to return to the fold and feeling called to the
ordained ministry, the appellant commenced her training to become
a
Minister of the Church. On 15 June 2006 she acquired a Masters of
Social Sciences degree in Religious Studies from the University
of
Cape Town. She was ordained as a Minister and received into the full
Connexion of the Church during August 2006. With effect
from 1
January 2007 the appellant served as a Minister of both the
Brackenfell and Windsor Park Methodist Churches. During April
2004
the appellant commenced what she described as a love relationship
with her then partner. During 2008, according to the appellant,
she
and her then partner first discussed the possibility of getting
married and by the next year they had become firm in their
resolve to
do so. The date for the wedding having been fixed, the appellant
decided to inform her congregants of her impending
nuptials.
Accordingly on Sunday 6 December 2009 she read the following letter
to both congregations served by her at a combined
church service:
‘
Dear
friends,
You
have given me much joy in sharing your life with me and this morning
is my turn to share some very exciting news with you. I
am getting
married on 15th Dec.
Some
of you have met and know Amanda. We have a wonderful relationship of
love respect and companionship. I would love for you to
celebrate
with me. However, I do understand that this might be controversial to
you. What I do ask is that you respect our decision.
I
have encountered many struggles to get to this place. I invite you to
read and familiarize yourself with this, by taking a copy,
which I
have prepared for you. It will give you some insight into aspects of
my journey. (There will be copies available at the
door as you
leave.)
By
making this announcement we are moving into uncharted water in the
life of our church. The Methodist Church of SA (MCSA) has
not yet had
to deal with the nature of these circumstances before. This leaves me
extremely vulnerable and uncertain about my future
in the MCSA.
I
will keep you abreast of what is happening. It is likely that a
pastoral commission will be set up to investigate my position
and
then make a recommendation.
My
desire is to be a minister in the MCSA, to be true to God, to be true
to myself and to be faithful to God and my calling as well
as to be
accepted for who I am. My hope is that I would continue as your
minister.
I
will give you some time to absorb my story and if you would like to
connect with me (after you’ve gained some insight into
my
journey), I would make myself available. I thank you for your love
and care for me and the church.’
[4]
That same afternoon the appellant was informed by her Superintendent
Minister that he had contacted the District Bishop of the
Church to
enquire as to how they should proceed after the announcement of her
intended marriage. The next day according to the
appellant:
‘
I
met with the District Bishop . . .  in Rondebosch and gave him
copies of a letter entitled “My Story”, which
expressed
the attitude of the Church to be a community of love rather than
rejection. The idea of the letter was to explain to
the Church via my
version of the events why I did not see any problem with my
announcement to the congregations of my intended
marriage.’
The
response of the District Bishop was that he first wanted to peruse
the information before he made his views known. On 8 December
2009
the appellant was informed by her Superintendent Minister that a
charge had been laid against her. Two days later the appellant
was
suspended from the Ministry pending the outcome of a disciplinary
hearing.
[5]
The appellant was thereafter informed by e-mail that her disciplinary
hearing was scheduled for 22 December. The e-mail continued:
‘
I
am sure everyone understands that this will not include any
discussion on the merits or otherwise of same-sex unions, but purely

the application of the current MCSA policy to this charge.’
Prior
to the disciplinary hearing and as foreshadowed in the letter to her
congregation, the appellant and her partner married each
other on 15
December 2009.
[6]
The charge levelled against her in terms of the Laws and Discipline
of the Church (the L&D) was:
‘
That
you have acted in breach of paragraphs 4.82 and 11.3 in that contrary
to Laws and Discipline and/or Policies, Decisions, Practices
and
Usages of the Methodist [Church] of Southern Africa. You have
announced to the Brackenfell and Windsor Park societies your

intention to enter into a same sex civil union on the 15
th
December 2009, it being the Churches’ policy, practice and
usage to recognise only heterosexual marriages.’
[7]
Rules 4.82
and
11.3
of the L&D provide:
‘
Ministers
shall observe and implement the provisions of Laws and Discipline and
all other policies, decisions, practices and usages
of the Church.
.
. .
Ministers
who have an accusation against them in respect of character,
doctrinal beliefs, fitness for the work of the ministry,
or
observance of Methodist Laws and Discipline may have a complaint laid
against them by another Member with the DDR.’
[8]
The disciplinary hearing proceeded as scheduled before the District
Disciplinary Committee (DDC). The appellant appeared before
the DDC
together with her representative, the Reverend Tim Attwell. The DDC
concluded:
‘
Verdict:
The
Committee finds Rev de Lange guilty of failing to observe the
provisions of the Laws & Disciplines and all other policies,

decisions, practices and usages of the Church (L&D11
th
Edition 4.82 & 11.3) by announcing her intention to enter into a
same-sex civil union, and especially by doing this without

consultation with her Superintendent and the Bishop.
Sentence:
Time
already served under suspension.
Recommendation:
As
Rev. de Lange has subsequently entered into the civil union while the
MCSA has specifically instructed that such action should
not happen
while the debate in the Church continues (Yearbook 2008 2.5.1 (vi)),
the Committee recommends that she continue under
suspension until
such time as the MCSA makes a binding decision on ministers in
same-sex unions. Out of consideration for the needs
of Circuit and
Societies, this suspension should be without station or emoluments.’
[9]
On 18 January 2010 the appellant filed a notice of appeal against the
decision of the DDC to the Connexional Disciplinary Committee
(CDC).
She contended:
‘
1.2.
. . . the verdict fails to take account of the fact that the church
has not formulated any policy regarding same-sex civil
unions. I
therefore believe it is deeply unfair, and misdirected, for the DDC
to have made a finding against me in that regard.
As may be seen
within the Record of the hearing, much of the debate centred on
differing interpretations of various Conference
discussions and
debates. This serves to illustrate the lack of definitive policy or
decision by the MCSA. Indeed the MCSA has previously
decided not to
make any decision, or enact any policy, regarding the rules and
protocols regarding such unions.’
In
respect of the recommendation by the DDC following upon its verdict,
the appellant asserted:
‘
2.
. . . I would like to strenuously argue that the L&D does not
grant the DDC any powers to make such recommendations. L&D
11.21
clearly delineates the responsibilities, powers and duty of the DDC
regarding sentencing. I contend that the DDC has exceeded
its powers
and therefore request that the Recommendation be stricken from the
Record.
Furthermore,
the Recommendation would have the effect of imposing a sentence that
is not only beyond the DDC’s verdict, but
which is open-ended
until such time as Conference may, or may not, decide to formulate
policy in this regard. . . .’
[10]
On 17 February 2010 the CDC confirmed the verdict of the DDC and in
respect of the sentence it ordered that the appellant ‘be

discontinued from the ministry of the Methodist Church of Southern
Africa’. The effect of the appellant’s discontinuation

was that she remains an ordained Minister but is precluded from
exercising any ministerial functions, holding any station or
receiving
any emoluments.
[11]
In terms of
Rule 5.11
of the L&D if the appellant wished to
challenge the decision of the CDC she was required to have that
dispute referred to arbitration.
Rule 5.11
provides:
‘
No
legal proceedings shall be instituted by any formal or informal
structure or grouping of the church or any minister or any member
of
the church, acting in their personal or official capacity, against
the church or any formal or informal structure or grouping
of the
Church, Minister or member thereof for any matter which in any way
arises from or relates to the mission work, activities
or governance
of the church. The mediation and arbitration processes and forums
prescribed and provided for by the church for conflict
dispute
resolution (Appendix 14) must be used by all Ministers and members of
the church. If a matter is referred to arbitration,
the finding of
the Arbitrator shall be final and binding on all Minsters and members
of the church. . . .’
[12]
On 31 March 2010 the appellant filed a formal request with the
Convener of the Connexional Arbitration Panel of the Church
(the
convener) for the dispute to be referred to arbitration. The convener
responded to her request thus:
‘
2.
As I need to finalise an arbitration agreement that needs to be
signed in terms of the paragraph 2.2 (ii) of appendix 14 of the
L&D
I attach a draft agreement containing the usual clauses that I insert
in such agreements. In terms of the same paragraph
I also need to
“determine and clarify what the issues are from the party/ies”,
which I shall then set out in the agreement
(paragraph 3).
3.
The terms of your referral in your notice are very broad and the
nature of the relief you wish to seek is not clear to me. I
need to
know specifically what aspects of the charges and the disciplinary
process you wish to challenge, and what outcome you
wish to achieve.
At this stage I do not even know what you were charged with or on
what grounds you were found guilty and sentenced.
I am not requesting
you to compile a full statement of claim at this stage, but I do need
some more detail about your specific
complaints. I shall be happy to
have a telephonic discussion with you and/or your attorney if that
would help to clarify any of
the issues that I have raised.’
[13]
On 19 August 2010 the convener wrote in response to a letter from the
appellant’s attorney informing him that Advocate
Gerald Bloem
SC of the Grahamstown Bar had been appointed arbitrator. And in an
attempt to address certain concerns that had been
raised on behalf of
the appellant, the convener’s letter continued:
‘
2.3.1
Clearly if the arbitrator acts unlawfully or improperly in any manner
the Complainant will have the right to take the decision
on review.
In any event it is recorded in paragraph 6 that the Complainant’s
right to object to any constitutional principles
is reserved.
2.3.2
The manner of how the arbitration is to be conducted must be left to
the arbitrator without being prescribed to in this agreement.
He may
wish to conduct a pre-arbitration meeting to determine the rules of
the arbitration, but I shall leave that to his discretion.
Should the
arbitration be conducted unfairly or improperly in any way it shall
of course be open to the Complainant to take the
matter on review in
an appropriate court.’
[14]
However, there were difficulties in proceeding to arbitration
immediately because of a difference of opinion on various issues

between the parties. On 5 February 2011 the parties attended a
preliminary meeting under the auspices of the arbitrator. After
much
negotiation as to the terms of the arbitration agreement, eventually
in June 2011 the convener, acting in terms of
Rule 5.11
read with
Appendix 14 of the L&D, signed an agreement on behalf of the
appellant, which fleshed out the terms of, and the process
that would
govern, the arbitration. The arbitrator then requested dates for the
hearing and suggested that it take place during
September 2011.
[15]
According to the appellant ‘[i]t was at that point in time that
I decided to take legal action’. The legal action
in question
was instituted some ten months later during June 2012. The high court
concluded that the appellant’s ‘application
is premature
and that she should first submit to arbitration’. It
accordingly dismissed the application with costs, but granted
leave
to the appellant to appeal to this court.
[16]
In support of the relief sought the appellant stated in her founding
affidavit:
‘
33.
‘
Thereafter
followed a series of correspondence, the contents which are self
explanatory and dealt herein in chronological order.
Through all of
this I made my position clear, namely a valid arbitration agreement
existed and the parties should thus proceed
with the arbitration.’
Later
she added:
‘
34.
34.1
I submit that in view of the history of this matter good cause exists
why the arbitration proceedings should not proceed on
the basis of
the revised arbitration agreement. Even if my view that a valid
arbitration agreement came into being is not correct,
I have lost all
confidence in the arbitration proceedings and the Arbitrator. I am
also of the view that the arbitration agreement
forces me to wave my
fundamental rights as protected in the Constitution and is therefore
contra bonis morae
.’
[17]
In the answering affidavit filed on behalf of the Church, the
Presiding Bishop stated:
‘
In
the present case, there was considerable delay in finalising an
arbitration agreement between the parties . . . Suffice to state
that
the applicant and the Convener . . . disagreed on three issues:
45.1.
First, they disagreed on the characterisation of the dispute between
the parties. The applicant has consistently sought to
contend that
she was discontinued on the basis of her sexual orientation and the
issue for determination was thus whether the Church
was entitled to
expel her for being gay. As I have made clear above, the Church
discontinued the applicant for contravening the
policies, decisions,
practices and usages of the Church, by taking positive steps to enter
into a union when the Church had determined
to recognise only
heterosexual marriages pending the outcome of an internal engagement
process.
45.2.
Second, the applicant sought to create a right of appeal to court in
the event that she did not succeed in the arbitration
proceedings.
But clause 5.11 of the L&D provides that an arbitrator’s
decision is final and binding, subject to only
judicial review to
this Court in appropriate circumstances. The Convener was accordingly
not entitled to agree to a term that created
a right of appeal.
45.3.
Third, the applicant has sought to include a term in the arbitration
agreement that she be entitled to legal representation
in the
arbitration – notwithstanding clause 2.2(vii) of Appendix 14,
which provides that legal representation is not generally
allowed in
arbitration.’
[18]
The appellant’s response in her replying affidavit was:
‘
4.
I
accept for the purposes of this application that the Church is
entitled to make a law forbidding members of the Church to enter
into
same sex marriages. I understand that freedom of religion and freedom
of association are also basic human rights guaranteed
in our
constitution as is the right not to be discriminated against based on
one`s sexual orientation. However what the Church
cannot do is not
have a clear and pre-announced law forbidding people to enter into
same sex marriages and after the fact then
try to create the
impression that such a law exists.
.
. .
6.
The
Church has not determined that same sex partners should not take
positive steps to enter into civil union. This is a slant put
on the
decision taken by the Executive Committee by the First Respondent. If
regard is had to the context in which the decision
was taken it is
clear that the decision meant to indicate that the Church are not
taking any positive steps in deciding the issue
whether they should
recognise same sex marriages or not. There is simply no room for the
interpretation given by the First Respondent
when the rule is
considered.
.
. .
8.2
The fact that the Church does not recognise same sex marriages or
civil unions does not necessarily mean that they do not allow
same
and if one enters into a same sex marriage that you are now suddenly
contravening the Laws and Discipline of the Church.
10.
I
deny that my actions were in direct contravention of the Churches`
policies and decisions on same sex unions. I have also never
said
that I was unaware that I contravened the Churches` policies and
decisions in relation to same sex unions. All I said and
I reiterate
was that
if the Rule is read within the context that it was made
there is simply no law forbidding a Minister to enter into a same
sex union
. I did not pre-empt the decision of the conference and
accept the Churches` constitutional right to practice religion in
association
with others and in conformity with the dictates precepts
and ethical standards and moral discipline that the faith exacts and
to
which the Church adheres. I simply argue that the Church is also
bound by their own Rules and cannot fabricate Rules after the fact

for their own purpose.
11.
I
submit that in terms of the Doctrinal Prescript as described above
the policy and the practice of the Church there is
de
facto
and
de
iure
no impediment to same sex unions.
The decision taken by the First Respondent is not based on
non-compliance with the policies and
practices of the Church but
based on his personal view of my sexual orientation which is not
excluded by the Laws and Disciplines
nor the Doctrine of the Church.’
[19]
Despite having sought a declaratory order to the effect that the
decision by the Church to discontinue her as a minister constituted

‘unconstitutional and unfair discrimination based on sexual
orientation’, the appellant in her replying affidavit tellingly

stated:
‘
I
am not seeking to advance a claim of unfair discrimination based on
sexual orientation. I am advancing a case based on the administrative

common law namely that I am entitled to fair administrative action
and that the decision by the First Respondent does not comply
with
the common law prescripts in this regard.’
That
notwithstanding, in her heads of argument and from the bar in this
court, counsel for the appellant sought to advance a case
that the
Church’s ‘decision to discontinue the appellant as
minister of the church was unconstitutional and unfair
discrimination
based upon the Appellant’s sexual orientation’. The
fundamental problem with that is twofold: First,
such a case lacks
any factual foundation. And, as held in
Transnet
Ltd v Rubenstein
2006 (1) SA 591
(SCA)
para 28, in motion proceedings the affidavits constitute both the
pleadings and the evidence. Second, as emerges from her
replying
affidavit, the appellant had unequivocally disavowed ‘a claim
of unfair discrimination based on sexual orientation’.
What is
worse is that this case, which it seems was not pursued before the
high court, is sought to be advanced for the first time
before this
court on appeal (
Minister of Land
Affairs and Agriculture v D & F Wevell Trust
2008
(2) SA 184
(SCA) para 43). However much the appellant may believe
that the church’s failure to recognise same-sex marriages is a
product
of discriminatory attitudes she deliberately chose, with
legal advice, not to pursue this case on that ground. We cannot
therefore
decide it on a basis that she disavowed.
[20]
I proceed to decide the case on the basis it was presented in which a
claim based on discrimination on grounds of sexual orientation
was
disavowed. This means that it is unnecessary to engage with the
collision between the rights to freedom of association and
religious
freedom on the one hand, and the right to equality on the other, or
to enter into the very enlightening and thought-provoking
debate on
that score.
[3]
We can thus avoid
what de Freitas describes as the ‘journey between the shoals of
strongly held religious beliefs and the
affirmation of otherness
whose marginalisation has been justified by those very beliefs’.
[4]
[21]
In arriving at its conclusion that the appellant had to submit to
arbitration, the high court found it unnecessary to engage
with the
merits of the review. Despite the fact that the high court had
refrained from entering into the merits of the review,
counsel for
the appellant made so bold as to suggest that we should do so. We
were thus invited to determine on the papers as they
stood whether
there was indeed a rule in place as contended by the Church.
According to the Church, the testimonies of painful
experiences of
exclusion by some of its members and ministers have ‘given it
pause to consider whether its attitudes and
practices towards
homosexual people have been consistent with the message of Christ,
and whether its use of Scripture in this matter
has been faithful to
the biblical witness as a whole’. But, marriage, the Church
maintains, is an institution of central
importance to it.
Historically, the Church has only recognised marriage as between one
man and one woman. That is still its policy
and practice. And,
because it has a number of gay members and ministers, none of whom,
it says, are excluded on the basis of their
sexual orientation, the
recognition of same-sex unions has become an issue of importance
within the Church. It has therefore been
facilitating debate and
engagement around the issue, which it asserts is a deeply divisive
one, with factions of members and ministers
holding starkly divergent
doctrinal views. It has thus sought to avoid conflict and schism
within the Church in its approach to
the issue.
[22]
According to the Presiding Bishop:
‘
At
the 2007 Conference, the issue of same-sex unions remained fraught.
In response to the heated debate it triggered, the Conference
issued
the following statement and resolution:
“
.
. .
Conference recognises that any
decision and subsequent action on the issue of civil unions between
same-sex partners must await
the outcome of the ongoing process of
engagement as specified by Conference 2005 (Yearbook 2006, 8.3, p.75)
and, in the interim,
expects Methodist ministers to continue to offer
pastoral care to homosexual individuals.”
.
. .
By
2010, it was clear that the recognition of same-sex unions generated
passionately and sincerely held but divergent views among
both
ministers and members of the Connexion. The Church determined not to
permit these differing viewpoints to divide its congregation
and
adopted an approach that sought to accommodate the opposing doctrinal
views of its members. At the 2010 Conference, the Church
again called
on its members to engage with the complexities and emotions around
homosexual relationships and, in the interim, to
“
allow this
divergence of conviction to be held without the freedom for such
divergence of conviction to be exercised”
. Simply put, the
Church continued to embrace its gay members and did not interfere
with their relationships, but did not recognise
or allow same-sex
marriage.’
That
notwithstanding, it was submitted that any such dispute as may have
existed in relation to whether or not there was a rule
in existence,
could be resolved by this court in the appellant’s favour on
the papers as they stood. To determine a profoundly
important
doctrinal issue, in line with the well-settled approach to be adopted
in matters where final relief is sought on application
(as to which
see
Plascon-Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA
623
(A)), is wholly undesirable. It would thus be imprudent to accede
to counsel’s invitation.
[23]
The high court ruled that the dispute between the parties was subject
to arbitration. That a court has a discretion whether
to enforce an
arbitration agreement is evident from
s 3(2)
of the
Arbitration Act
42 of 1965
which provides that:
‘
(2)
The court may at any time on the application of any party to an
arbitration agreement, on good cause shown-
(a)
set aside the arbitration agreement; or
(b)
order that any particular dispute referred to in
the arbitration agreement shall not be referred to arbitration; or
(c)
order that the arbitration agreement shall cease
to have effect with reference to any dispute referred.’
The
question therefore is whether the appellant has shown good cause
within the meaning of the subsection for avoiding arbitration.
Such
an onus is not easily discharged (per Colman J in
Metallurgical
and Commercial Consultants (Pty) Ltd v Metal Sales Co (Pty) Ltd
1971
(2) SA 388
(W) at 391E-F). It has been said that the discretion of
the court is to be exercised judicially, and only when a very strong
case
has been made out (
Universitiet van
Stellenbosch v JA Louw
1983 (4) SA 321
(AD) at 334A). As Nugent JA pointed out (
South
African Forestry Co Ltd v York Timbers Ltd
2003
(1) SA 331
(SCA) para 14) ‘good cause’ is a phrase of
wide import that requires a court to consider each case on its merits
in
order to achieve a just and equitable result in the particular
circumstances.
[24]
I shall endeavour to consider with such brevity as will suffice for
the purposes of this judgment the various reasons advanced
by the
appellant for wanting to avoid the arbitration: First, she contends
that there is no valid arbitration agreement. In that
she is not
entirely consistent having initially maintained in her founding
affidavit that there was in place a valid agreement
and that she was
intent on arbitration. We do not have to enter upon the question
whether the relationship between the church and
its ministers is
contractual as would be the case with a member of a voluntary
association, because it was agreed that the agreement
signed by the
Presiding Bishop on behalf of the Church and the convener on behalf
of Ms de Lange brought the matter within the
ambit of the
Arbitration
Act.
[5
]
That, the convener was
entitled to do in terms of
Rule 5.11
read with Appendix 14. The
relevant portion of Appendix 14 reads:
[T]he
Convener shall determine and clarify what the issues are from the
party/ies. The Convener shall hereafter decide what the
correct forum
or process is for the matter. The Convener`s decision in this regard
shall be binding on all members of the church.
.
. . If arbitration is the correct forum, the Convener shall finalise
a written arbitration agreement which both parties shall
sign. If
either party refuses to sign the said agreement, the Convener shall
have the power to sign on their behalf. If the Convener
is [not] to
be the arbitrator in the particular matter, the said Convener shall
designate another arbitrator to this responsibility.’
The
appellant accepts that the convener was entitled to sign on her
behalf, thereby bringing a binding agreement into force. It
follows
that a valid arbitration agreement was concluded between the parties
and that the appellant should be bound by its terms.
[25]
Second, the appellant complains of the delay in concluding the
arbitration agreement. The delay for the most part is explicable.

There were significant disputes between the appellant and the
convener as to the proper delineation of the issues for referral.
The
appellant sought to have issues referred that were not encompassed by
the charge or the findings against her. She also sought
to create a
right of appeal to the high court and a right to legal representation
while the convener considered that the L&D
did not provide for
those rights. The delay is explained on the papers and is
attributable, at least in part, to the appellant
and her attorney –
the latter having adopted an increasingly emotive and argumentative
stance in the exchange of correspondence.
In the event different
versions of a written agreement came to be signed by each of the
parties. The matter was then wrongly referred
to the appointed
arbitrator without an agreement having been concluded and signed by
the parties. Absent an agreement the arbitrator
correctly declined to
assume jurisdiction in respect of the dispute. Following the abortive
pre-arbitration meeting and at the
arbitrator’s suggestion, the
parties were offered a further opportunity to conclude an agreement.
The appellant then refused
to engage further with the convener and
did not make any further representations. The convener thereupon
formulated an agreement
that defined the issues with regard to the
charges and the findings of the DDC and CDC, which was then signed by
the Presiding
Bishop and by the convener on behalf of the appellant.
[26]
Third, the appellant complains that the arbitration agreement signed
on her behalf by the convener is weighted heavily against
her
inasmuch as it: (a) requires her to waive her constitutional rights;
(b) ousts the power of the courts; and (c) denies her
the right to
legal representation. As to (a): Not only can the appellant not be
taken to have waived her constitutional rights,
but the agreement
specifically preserves her rights by providing:
‘
The
parties, by signing this agreement, do not waive any legal rights
they may have to raise any objections in the statement of
claim or
other pleading allowed, or at the arbitration hearing, in relation to
the proceedings or any actions taken or omitted
in the disciplinary
or appeal proceedings of the Claimant, be it on merits or procedural
in nature
. . . . ’
As
to (b): Clause 7.2 of the agreement permits ‘an application to
a competent court to review the findings of the arbitrator’.
In
any event the Church has always accepted that the arbitrator’s
decision may be amenable to review on the grounds of legality.
This
the Presiding Bishop made plain in the answering affidavit in these
terms:
‘
The
applicant contends that the arbitration provisions of the L&D
contain an unenforceable ouster of the Court`s jurisdiction.
I deny
that contention. The Church has always accepted that the arbitrator`s
decision may be amenable to review on grounds of legality
– as
the decisions of all domestic tribunals are. It is neither
unconstitutional nor unlawful for a body like the Church
to require
its members to resolve disputes primarily through internal processes,
including arbitration.’
As
to (c): The agreement is silent on the right to legal representation,
having left that to the discretion of the arbitrator. In
the exercise
of that discretion, the arbitrator made the following ruling:
‘
I
have thought of when this matter came up, I thought hard about
whether I should allow legal representation in these proceedings.
I
am not convinced that I have heard any reasons why I should deviate
from the L&D and I in the absence of such reasons I,
the ruling
that I make, in these procedures – no legal representation
would be allowed for either Rev de Lange or the church.
Both parties
I find or rule would be represented by lay representatives. That is
the question of legal representation being dealt
with.’
In
any event our courts have consistently denied any entitlement to
legal representation as of right in
fora
other than courts of law (
Commission for
Conciliation, Mediation and Arbitration v Law Society of the Northern
Provinces
2014 (2) SA 321
(SCA) para
19;
Hamata v Chairperson, Peninsula
Technikon Internal Disciplinary Committee
2002
(5) SA 449
(SCA) para 5).
[27]
Fourth, the appellant complains that the arbitrator, as a member of
the Church, acts at the behest of the Church and is thus
biased or is
reasonably perceived to be biased. The Church’s appointment of
members to its arbitration panel from which arbitrators
are appointed
is entirely understandable. It is to ensure that only those persons
who are familiar with the rules, procedures and
practices are
appointed to the rather sensitive task of adjudicating disciplinary
disputes. In
Lakeside Colony of Hutterian Brethren v Hofer
it was stated:
‘
There
is no doubt that an unbiased tribunal is one of the central
requirements of natural justice. However, given the close
relationship amongst
members of voluntary associations, it seems
rather likely that members of the relevant tribunal will have had
some previous contact
with the issue in question, and given the
structure of a voluntary association, it is almost inevitable that
the decision makers
will have at least an indirect interest in the
question. Furthermore, the procedures set out in the rules of the
association may
often require that certain persons make certain kinds
of decisions without allowing for an alternate procedure in the
case
of bias.’
There
is nothing objectionable in private associations seeking to exclude
outsiders from disciplinary processes and to ensure that
those
proceedings are kept ‘within the family’ (
Hamata v
Chairperson, Peninsula Technikon Internal Disciplinary Committee
paras 18 and 20). To ensure that the arbitrator is conversant
with both the Church’s doctrine and processes and the legal
requirements of a fair process, the Church only appoints senior
counsel to preside at arbitrations. The arbitrator in this case
is a
senior counsel at the Grahamstown Bar. It must be assumed, in the
absence of evidence to the contrary, that he can disabuse
his mind of
irrelevant personal beliefs and predispositions. Importantly, one
finds no support for the complaint of bias in the
papers. Quite the
contrary, when the arbitrator expressed his willingness to step down
if the appellant was not comfortable with
him acting as arbitrator,
she responded:
‘
Secondly,
I deny the negative assumptions that you have read into my email
concerning your competence as an arbitrator. Your impression
with
respect, is a creation of your own – nowhere in any
correspondence have I created any impression whatsoever of that

nature in the least. Really, this is totally a silly argument and
[with] respect to you, such an assumption is totally ridiculous.
I
did not mention a single word about your competence. To the contrary
I would not have signed the agreement document if I had
any doubts
about you being the appointed arbitrator for the case. In particular
now that you have been appointed as judge, I have
even got more faith
and confidence that you will deal with my arbitration in a fair and
even handed manner.
My complaint
concerns the delay of the arbitration and not in the least in your
competence.
’
The
appellant reiterated her confidence in the arbitrator towards the end
of the abortive preliminary meeting held on 5 February
2011, when she
stated:
‘
I
have said it more than once in my correspondence to you – I am
more than happy for you to be the arbitrator in this case.
I have
full confidence in you, in your ability and I think you are the right
person to be the arbitrator in this case and if I
have offended you
with what I have written then I apologise and then I ask you to
forgive me.’
[28]
Fifth, the appellant contends that she should not be required to
submit to the arbitration because it would be a futile process.
As
she puts it:
‘
[t]he
arbitration proceedings will in any event be pointless in view of the
fact that the Arbitrator has already expressed his attitude
namely
that he cannot interfere with the merits of the decision taken but
only look at the processes that were applied’.
That
claim is similarly unfounded. At the heart of this matter is the
question whether the Church had adopted a rule that precluded
the
appellant from announcing her intention to marry her partner from the
pulpit. The Church contends that such a rule was in place,
while the
appellant contends that it was not. That is a factual dispute which
can be determined in arbitration proceedings. It
goes to the question
of whether the DDC and the CDC misdirected themselves in finding the
appellant guilty of breaching the Church`s
policies, decisions,
practices and usages. The written agreement delineates the issues
between the parties to accommodate that
very dispute. It identifies
one of the issues for determination as whether the DDC and the CDC
“have the jurisdictional authority
to deal with the charges
that were laid against the Complainant”. Put differently, the
arbitrator is called upon to determine
whether the CDC and the DDC
acted correctly in finding that the appellant had breached the
Church`s policies, decisions, practices
and usages.
[29]
In the result none of the grounds advanced by the appellant for
seeking to avoid the arbitration pass muster.
[30]
Moreover, in addition to certain advantages, such as expedition,
finality and cost-effectiveness which a party to an arbitration
is
likely to enjoy over one who has to pursue their rights in the
courts, the nature of the dispute is important. That dispute,

according to the Church, is quintessentially the kind of dispute that
a secular court should avoid becoming entangled in, because
as the
Presiding Bishop sought to emphasise:
‘
The
issues in dispute in these proceedings go to sensitive matters of
Church doctrine and governance. I am advised that these are
issues
that the Church should be left to determine domestically, as far as
is possible, without interference from the Court. The
Court should
only become involved in the dispute where it is strictly necessary to
do so. Even then, I am advised and submit that
it will refrain from
determining doctrinal issues, in order to avoid religious
entanglement.
.
. .
.
. . As I have already explained, marriage is a sacrosanct institution
within the Church. The question of who can enter into marriage
and
when marriages will be solemnized and recognised by the Church are
issues of religious doctrine, and are at the heart of ecclesiastical

concern.
As
I have described above, the question of whether the Church should
recognise same-sex unions is an intensely contested issue within
the
Church. Both those in favour of, and those against, the recognition
of same-sex marriage believe that their position is doctrinally

correct and justified by the scriptures. Because of the importance of
the issue and its potential to create divisions within the
Church,
the Conference has called for a process of engagement whereby the
Church and its adherents seek to determine this doctrinal
issue
together, through discussion. That process is designed to accommodate
diversity, insofar as possible within the constraints
of the Church’s
doctrine and its need for proper governance. I refer to what I have
stated above.
.
. . It is also inappropriate for this Court to require the Church to
recognise same-sex unions as religiously ordained –

particularly when the Church is itself involved in a complex and
lengthy process to determine that doctrinal issue itself. To do
so
would be to prescribe religious tenets to the members and ministers
of the Church, in violation of the rights to freedom of
religion and
religious association. Indeed, the doctrine of entanglement militates
strongly against the Court becoming involved
in religious doctrinal
disputes.’
[31]
It is so that our Constitution protects an individual’s rights
to practise his or her religion as well as the rights
of members of a
particular religion to practise that religion in association with
others and in conformity with the dictates, precepts,
ethical
standards and moral discipline which that faith exacts.
[6]
Protecting the autonomy of religious associations is considered a
central aspect of protecting religious rights. Indeed such protection

has been described as ‘vital to a conscience-honouring social
order’.
[7]
As the
Constitutional Court held in
Minister
of Home Affairs v Fourie (Doctors for Life International &
others, amici curiae); Lesbian and Gay Equality Project
v Minister of
Home Affairs
[2005] ZACC 19
;
2006
(1) SA 524
(CC) para 94:
‘
In
the open and democratic society contemplated by the Constitution
there must be mutually respectful co-existence between the secular

and the sacred. The function of the Court is to recognise the
sphere which each inhabits, not to force the one into the sphere
of
the other.’
[32]
Witte states that:
[A]ctive
religious rights require that individuals be allowed to exercise
their religious beliefs privately and groups be allowed
to engage in
private worship assembly. More fully conceived, active religious
rights embrace an individual's ability to engage
in religious
assembly, religious speech, religious worship, observance of
religious laws and ritual, payment of religious
taxes, and the like.
They also embrace a religious institution's power to promulgate and
enforce internal religious laws of order,
organisation, and
orthodoxy, to train, select, and discipline religious officials, to
establish and maintain institutions of worship,
charity, and
education, to acquire, use, and dispose of property and literature
used in worship and rituals, to communicate
with co-believers
and proselytes, and many other affirmative acts in manifestation of
the beliefs of the institution.'
[8]
Furthermore,
the determination of who is morally and religiously fit to conduct
pastoral duties or who should be excluded for non-conformity
with the
dictates of the religion, fall within the core of religious
functions. For, as
Gerhard van der Schyff puts it:
'The
right to admit members and clergy would also imply the right to
discipline such people in order to enforce conformity and encourage

conduct in harmony with religious precepts and teaching.'
[9]
[33]
Prior to the coming into force of the Constitution, the court refused
to ‘adjudicate upon a doctrinal dispute between
two schisms of
a sect
unless some proprietary or other legally
recognised right was involved' (
Allen &
others NNO v Gibbs & others
1977
(3) SA 212
(SE) at 218A-B). Subsequently, Farlam J observed in
Ryland
v Edros
1997 (2) SA 690
(C) at 703E:
‘It seemed to me that s 14 of the [Interim] Constitution might
well have changed the position and that the doctrine
of doctrinal
entanglement may now be part of our law’. This doctrine entails
a reluctance of the courts to become involved
in doctrinal disputes
of a religious character (
Taylor v Kurstag
para 39).
The reason underlying the rule has been expressed by Woolman and
Zeffert as follows:
‘
[
I]n
a radically heterogeneous society governed by a Constitution
committed to pluralism and private ordering, a polity in which
both
the state and members of a variety of religious communities must
constantly negotiate between the sacred and the profane,
courts ought
to avoid enmeshment in internecine quarrels within communities
regarding the content or the truth of particular beliefs.’
[10]
This
approach is consistent with that taken in comparative foreign
jurisdictions.
[34]
In the United States the establishment clause prevents courts from
determining doctrinal disputes. As it was put in
United States v
Ballard
322 US 78
(1944):
‘
The
law knows no heresy, and is committed to the support of no dogma, the
establishment of no sect . . . The First Amendment has
a dual aspect.
It not only “forestalls compulsion by law of the acceptance of
any creed or the practice of any form of worship”
but also
“safeguards the free exercise of the chosen form of religion.’
As
a result, American courts will not entertain religious disputes at
all. Decisions of religious tribunals are subject only to
such
appeals as the religious body itself allows.
In
Presbyterian Church v Hull Church
[1969] USSC 24
;
393
US 440
(1969) it was stated:
‘
But
it would be a vain consent and would lead to the total subversion of
such religious bodies, if any one aggrieved by one of their
decisions
could appeal to the secular courts and have them [sic] reversed. It
is of the essence of these religious unions, and
of their right to
establish tribunals for the decision of questions arising among
themselves, that those decisions should be binding
in all cases of
ecclesiastical cognizance, subject only to such appeals as the
organism itself provides for.’
[35]
Further, the United States Supreme Court has cautioned against
reviews that challenge the rationality of an ecclesiastical
body’s
decision.
The approach was expressed thus in
Serbian Orthodox Diocese v Milivojevich
[1976] USSC 178
;
426 US 696
(1976):
‘
The
fallacy fatal to the judgement of the Illinois Supreme Court is that
it rests upon an impermissible rejection of the decisions
of the
highest ecclesiastical tribunals of this hierarchical church upon the
issues in dispute, and impermissibly substitutes its
own inquiry into
church polity and resolutions based thereon of those disputes.
Consistently with the First and Fourteenth Amendments
“civil
courts do not inquire whether the relevant [hierarchical] church
governing body has power under religious law [to
decide such
disputes] . . . .
Such
a determination . . . frequently necessitates the interpretation of
ambiguous religious law and usage . . . To permit civil
courts to
probe deeply enough into the allocation of power within a
[hierarchical] church so as to decide . . . religious law [governing

church polity] . . . would violate the First Amendment in much the
same manner as civil determination of religious doctrine . .
. For
where resolution of the disputes cannot be made without extensive
inquiry by civil courts into religious law and polity,
the First and
Fourteenth Amendments mandate that civil courts shall not disturb the
decisions of the highest ecclesiastical tribunal
within a church of
hierarchical polity, but must accept such decisions as binding on
them, in their application to the religious
issues of doctrine or
polity before them.
.
. .
For
civil courts to analyze whether the ecclesiastical actions of a
church judicatory are in that sense “arbitrary”
must
inherently entail inquiry into the procedures that cannon or
ecclesiastical law supposedly requires the church judicatory
to
follow, or else into the substantive criteria by which they are
supposedly to decide the ecclesiastical question. But this is
exactly
the inquiry that the First Amendment prohibits; recognition of such
an exception would undermine the general rule that
religious
controversies are not the proper subject of civil court inquiry, and
that a civil court must accept the ecclesiastical
decisions of church
tribunals as it finds them.’
[36]
Similarly, in the United Kingdom the decisions of ecclesiastical
courts are generally not amenable to correction or challenge
in the
secular courts. That rule, as
R v St
Edmundsbury and Ipswich Diocese (Chancellor):
Ex
parte
White and Another
[1946] 2 All ER 604
at 605 emphasises in the following excerpt, is of
long standing:
‘
I
think that the reason is to be found in this. There has always been
in England more than one system of law. I will not say that
the canon
and civil law is as old as the common law, but it is, at any rate, of
antiquity approaching the common law, and was very
vigorous and had
great effect in the days of the Plantagenets. The common law existed
side by side with the civil law, and there
were the two sets of
courts, the courts spiritual and the common law courts.’
Thus
in
R v Chief Rabbi of the United Hebrew Congregations of Great
Britain and the Commonwealth, ex parte Wachmann
[1993] 2 All ER
249
at 255 the court held:
‘
That
consideration apart, the court is hardly in a position to regulate
what is essentially a religious function – the determination

whether someone is morally and religiously fit to carry out the
spiritual and pastoral duties of his office. The court must
inevitably
be wary of entering so self-evidently sensitive an area,
straying across the well-recognised divide between church and state.
One
cannot, therefore, escape the conclusion that, if judicial review
lies here then one way or another this secular court must
inevitably
be drawn into adjudicating upon matters intimate to a religious
community.’
More
recently
Shergill v Khaira
[2014] UKSC 33
para 45 held:
‘
This
distinction between a religious belief or practice and its civil
consequences underlies the way that the English and Scottish
courts
have always, until recently, approached issues arising out of
disputes within a religious community or with a religious
basis. In
both jurisdictions the courts do not adjudicate on the truth of
religious beliefs or on the validity of particular rites.
But where a
claimant asks the court to enforce private rights and obligations
which depend on religious issues, the judge may have
to determine
such religious issues as are capable of objective ascertainment. The
court addresses questions of religious belief
and practice where its
jurisdiction is invoked either to enforce the contractual rights of
members of a community against other
members or its governing body or
to ensure that property held on trust is used for the purposes of the
trust.’
[37]
Australian law also prohibits courts from determining questions of
religious doctrine, practice or procedure.
In
Attorney-General (NSW) v Grant
[1976]
HCA 38
it was put thus
:
‘
Many
of the appellant`s submissions would require this Court to inquire
into and decide controversial questions of doctrine (or
departure
from doctrine) or practice or procedure in ecclesiastical government.
In my opinion, however forceful these arguments
appear to be, they
are outside the judicial sphere.’
[38]
Canadian Courts are generally reluctant to interfere in the internal
management of voluntary associations, because, as it has
been put,
they have no interest in the day-to-day activities of those
associations. However, as was noted in
Lakeside Colony of
Hutterian Brethren v Hofer and
Street v. B.C. School Sports
,
2005 BCSC 958
para 45, there are certain basic principles that govern
relationships between people, which all people are bound by, and
which
cannot be contracted out of. The courts have always retained
the jurisdiction to govern those basic principles, and so long as the

jurisdiction remains restricted and limited to those rarest of cases,
the courts have jealously guarded it. The courts have thus

traditionally maintained a real and important interest in the
processes by which those organizations govern themselves. In
Lakeside
Colony of Hutterian Brethren v Hofer
, Gonthier J said of the
complex issues involved in reviewing the decisions of a religious
tribunal in Canadian law:
'It
is not incumbent on the court to review the merits of the decision to
expel. It is, however, called upon to determine whether
the purported
expulsion was carried out according to the applicable rules, with
regard to the principles of natural justice, and
without
mala
fides
. This standard goes back at least to this statement by
Stirling J. in
Baird v. Wells
(1890), 44 Ch.D at p. 670:
''The
only questions which this Court can entertain are: first, whether the
rules of the club have been observed; secondly, whether
anything has
been done contrary to natural justice; and, thirdly, whether the
decision complained of has been come to
bona fide
. ''
.
. . The content of the principles of natural justice is flexible and
depends on the circumstances in which the question arises.
However,
the most basic requirements are that of notice, opportunity to make
representations, and an unbiased tribunal.
.
. .
Hence
the root-dilemma of legal intervention: on the one hand, you do not
wish to intervene because you cannot specify, often
cannot
understand, the parties' respective merits; on the other hand,
the courts are open to everyone, and can thus be called
upon to
intervene, which means they must either grant or deny the ''right''
of expulsion. But whether the courts recognize or resist
that right,
their task is difficult and delicate. For theirs is not a political
task of shielding the ''greatest number'' or of
protecting one's
right to be different. The legal task is to formulate rules which
will be neutral and equal in relation to all
parties.'
[39]
As the main dispute in the instant matter concerns the internal rules
adopted by the Church, such a dispute, as far as is possible,
should
be left to the Church to be determined domestically and without
interference from a court. A court should only become involved
in a
dispute of this kind where it is strictly necessary for it to do so.
Even then it should refrain from determining doctrinal
issues in
order to avoid entanglement. It would thus seem that a proper respect
for freedom of religion precludes our courts from
pronouncing on
matters of religious doctrine, which fall within the exclusive realm
of the Church.
[40]
High court judgments such as
Taylor v
Kurtstag
and
Wittmann
v Deutsche Schulverein, Pretoria
1998
(4) SA 423
(T) appear to accept that individuals who voluntarily
commit themselves to a religious association’s rules and
decision-making
bodies should be prepared to accept the outcome of
fair hearings conducted by those bodies. Here, on discovering that
the CDC had
found against her, the appellant invoked the arbitration
provision of the L&D and referred the matter to the convener so
that
he could take the necessary steps to convene the arbitration.
The appellant has never challenged the relevant provisions of the

L&D. What is more is that, having initiated the arbitration
process and having participated in it for almost a year, the
appellant
thereafter seeks to avoid the arbitration by having the
matter determined by a court.
[41]
All things considered I am not persuaded that the appellant has
discharged the onus of establishing good cause within the meaning
of
s 3(2)
of the
Arbitration Act. I
therefore conclude that the dispute
between the parties is best determined by arbitration. It follows
that the appeal must fail.
The Church commendably agreed to forego
the costs of the appeal.
[42]
In the result the appeal is dismissed.
______________
V
PONNAN
JUDGE
OF APPEAL
Wallis
JA (Fourie AJA concurring)
[43]
I have had the privilege of reading the
judgment prepared by Ponnan JA. I agree with him that in view of Ms
de Lange’s express
disavowal of any contention that she was
discriminated against on the grounds of her sexual orientation, we do
not have to explore
the relationship between her equality rights and
the rights of freedom of religion enjoyed by the church and all
people in this
country. The case is therefore about an alleged
arbitration agreement and whether it should be set aside or avoided.
The case both
here and below was argued on the footing that there was
a binding arbitration agreement concluded by the parties. That is
accepted
in Ponnan JA’s judgment and he proceeds to hold that
the application by Ms de Lange to set aside or avoid that agreement
was ill-founded. On that footing I agree with him and the conclusion
he reaches. I write separately because I have considerable

reservations about the correctness of the proposition that there is a
binding arbitration agreement between the parties that can
be the
subject of the order sought by the appellant, Ms de Lange. If my
doubts were justified, they would not affect the outcome
of the
appeal. It would still fall to be dismissed but for different
reasons. But my areas of concern relate to fundamental questions

relating to the nature of the relationship between a minister
ordained in the Methodist Church of Southern Africa and the church,

as well as to the application of the Arbitration Act 42 of 1965 (the
Act) in this case. In those circumstances I think it appropriate
to
deal with them.
[44]
The Act deals with arbitration agreements.
These are defined in s 1 as meaning:
‘
a
written agreement providing for the reference to arbitration of any
existing dispute or any future dispute relating to a matter
specified
in the agreement, whether an arbitrator is named or designated
therein or not; …’
Section
2 provides that a reference to arbitration is not permissible in
respect of any dispute over any matrimonial cause or any
matter
incidental to such a cause or any matter relating to status. Apart
from those restrictions any dispute can be the subject
of
arbitration, but there must be a dispute not a mere expression of
dissatisfaction over the conduct of the other party. The dispute
must
be capable of formulation in a manner where opposing contentions are
or can be advanced so that the arbitrator may make a
decision on
those contentions.
[11]
[45]
My
first and lesser concern is whether the present dispute relating to
the decision by the church to discontinue Ms de Lange as
an ordained
minister is a dispute over her status and therefore one that it is
impermissible to subject to arbitration. The answer
to that depends
on the meaning to be given to the word ‘status’ in the
context of s 2
(b)
of
the Act. It does not appear that this has ever been the subject of
judicial decision in this country. Plainly it includes questions
of a
person’s matrimonial status; whether they are a minor or have
been tacitly emancipated; whether they have for any reason,
such as
physical or mental disability, become incapable of managing their
affairs; their domicile and similar matters.
[12]
But it is conceivable that the right of persons to hold an office,
which could include a person in the position of a minister of

religion ordained to serve within a particular faith or denomination,
is also a matter of status that cannot be the subject of
an
arbitration agreement.
[13]
If
that is the case, and I mention it only as a possibility, the
deprivation of the right to perform the duties of that office
(in the
case of a minister of religion the rites and rituals of that faith)
would affect their status and thus preclude resolution
by way of
arbitration. However, my second concern is more important and I deal
with it without further ado.
[46]
The
requirement that an arbitration agreement be in writing does not mean
that it has to be signed or otherwise executed by both
parties to the
arbitration. All that is required is that the parties have agreed
that the dispute in question, or all disputes
of a particular
character, be submitted to arbitration and that agreement has been
reduced to writing. Thus it matters not that
the agreement is
concluded orally, provided that a written memorial thereof is
produced.
[14]
The important
requirement is, however, that there has been an agreement to
arbitrate the dispute that is in issue between the parties.
That
agreement arises contractually.
[15]
In the absence of such an agreement the Act has no purchase. It does
not apply in relation to other dispute resolution procedures,
however
closely they may resemble arbitration under an arbitration agreement.
An oral agreement to arbitrate not reduced to writing
is therefore
not subject to the provisions of the Act and nor are other forms of
dispute resolution proceeding, however similar
they may appear to be
in the manner in which they are conducted to an arbitration agreement
in terms of the Act.
[47]
The point is relevant because the
application brought by Ms de Lange is one in terms of s 3(2) of
the Act. She sought an order
that an arbitration agreement between
her and the Presiding Bishop of the Methodist Church be set aside, or
alternatively declaring
that the arbitration agreement between them
cease to have effect to any dispute between them. In order for that
relief to be granted
it was essential that there was in existence an
arbitration agreement as defined in the Act. Ms de Lange claimed that
there was
such an agreement in the form of a document that she signed
and made available to the convener of the arbitration panel on 1
November
2010, which she was led to believe had been signed on behalf
of the Presiding Bishop on 9 November 2010. The Presiding Bishop for

his part contended that the agreement is in the form of a document
signed on behalf of Ms de Lange by the convener in June 2011.
Her
response to this document was that she had no role in it and that it
excluded her voice from the process. Notwithstanding this
difference
of views that emerges from the affidavits the parties have proceeded
as if there is an arbitration agreement in place
and addressed their
arguments on that assumption. In case Ms de Lange chooses to pursue
further her grievances in relation to the
church’s treatment of
her, it is as well that the problems in regard to that assumption be
identified.
[48]
Counsel for the church advanced the
following argument. Paragraph 5.11 in the Laws & Development (L &
D) of the church provides:
‘
No
legal proceedings shall be instituted by any formal or informal
structure or grouping of the church or any minister or any member
of
the church, acting in their personal or official capacity, against
the church or any formal or informal structure or grouping
of the
Church, Minister or member thereof for any matter which in any way
arises from or relates to the mission work, activities
or governance
of the church. The mediation and arbitration processes and forums
prescribed and provided for by the church for conflict
dispute
resolution (Appendix 14) must be used by all Ministers and members of
the church. If a matter is referred to arbitration,
the finding of
the Arbitrator shall be final and binding on all Minsters and members
of the church. . . .’
They
contended that this paragraph obliged Ms de Lange to raise her
grievances about the disciplinary processes to which she had
been
subjected by way of arbitration under Appendix 14 of the L & D.
The further elements of the arbitration agreement, so
the argument
proceeded, were to be found in the application of the procedures laid
down in Appendix 14.
[49]
Appendix 14 provides for an aggrieved party
to refer the dispute to the convener of the connexional arbitration
panel. In dealing
with the role and functions of the convener the
material portion of Appendix 14 reads as follows:
‘
[T]he
Convener shall determine and clarify what the issues are from the
party/ies. The Convener shall hereafter decide what the
correct forum
or process is for the matter. The Convener`s decision in this regard
shall be binding on all members of the church.
…
If
arbitration is the correct forum, the Convener shall finalise a
written arbitration agreement which both parties shall sign.
If
either party refuses to sign the said agreement, the Convener shall
have the power to sign on their behalf. If the Convener
is [not] to
be the arbitrator in the particular matter, the said Convener shall
designate another arbitrator to this responsibility.’
[50]
There is an immediate oddity about this
provision. Whilst paragraph 5.11 suggests that there is an obligation
to arbitrate disputes
rather than resort to secular courts, Appendix
14 suggests that it is for the convener to determine whether the
dispute in question
should be resolved by arbitration. That
interposes the convener between the aggrieved church member,
structure or institution and
the other party, who may be, as here,
the Presiding Bishop, representing the church (bearing in mind that
paragraph 5.11 does not
bind the Presiding Bishop when acting in his
or her official capacity in the interests of the church). It is the
convener who decides
whether arbitration will occur in relation to
any dispute and the convener’s decision is final. Whilst I have
no doubt that
the convener for the time being, as did the convener in
this case, would discharge their functions openly and with integrity,
if
the convener has the power to determine whether or not an
arbitration will take place at all, it is hard to see on what basis
it
can be said that paragraph 5.11 creates a binding arbitration
agreement. Put simply a reference to the convener made under it may

not result in an arbitration governed by the Act.
[51]
The argument that clause 5.11 imposes an
obligation to arbitrate disputes is dependent upon the proposition
that it, and indeed
the entire contents of the L & D of the
church, constitutes a contract between church and member and church
and minister. It
is here that the principal difficulty arises. In
order to understand that difficulty it is necessary to examine the
structure of
the church and the L & D in somewhat greater detail.
[52]
The
church consists of members who become such after a profession of
faith at a public service, also called Confirmation, which
is
described as a ‘solemn service of recognition, commitment,
prayer and blessing’ in which the member accepts responsibility

as a member of the church to live in accordance with the Methodist
Rule of Life.
[16]
The L
& D is adopted by the Conference, which clause 5.1 identifies as
the governing authority of the church. Its function
is to provide
direction and inspiration for the Church and it is the sole
legislative body of the church. It is also the sole and
final
authority in respect of the doctrines of the church and their
interpretation. Unlike a club, the church’s members and
clergy
do not become such by subscribing to a constitution and the
Conference is not established by democratic election among the

membership. The Conference draws its membership from the different
organisations of the church. Neither the ordinary members nor
the
body of ministers have any right to attend or vote in its
deliberations or any direct role to play in the formulation or
contents
of the L & D. That serves to distinguish the church from
clubs and other similar voluntary associations, where membership
affords
a right of participation in all the affairs of the
organisation, or a company, where the articles of association define
the voting
rights of all members. The constitutions of voluntary
associations and the articles of association of a company are
commonly seen
to give rise to contractual relationships between the
member and the association or company.
[17]
As the reported decisions show there are churches and other religious
organisations that have constitutions adopted and approved
by members
but the Methodist Church of Southern Africa is not one of them. The L
& D is not the same as the constitution of
a voluntary
association and fulfils a different purpose.
[53]
That purpose emerges from the foreword to
the 11
th
edition written by the then Presiding Bishop. He expressed the desire
that it would be ‘ a useful mission tool’ in
the task of
proclaiming ‘the gospel of Jesus Christ for healing and
transformation’.  He said that its purpose
is to
facilitate the work of the church. Chapter 1 describes the nature of
the church and the role of Methodism within the church
universal. Its
objects and purposes are exclusively in the religious realm. The
primary vocation and responsibility of every member
of the church is
to declare ‘the universality of the grace of God by preaching
the gospel’. To that end it reaffirms
the ‘New Testament
truth of the universal priesthood of believers’. Chapter 1
proceeds to explain the origins of Methodism,
to describe the
sacraments of baptism and the Lord’s Supper and their
administration, and to set out the basic doctrines
of the church. It
suffices for my purposes to say that it reflects the faith and
beliefs of Methodists and the Methodist church
in South Africa.
[54]
Chapter 1 sets out the basic principles
that govern ministers of the church such as Ms de Lange. The
following clauses in the L
& D are relevant to this:
‘
1.19
Christ’s ministers in the Church are stewards in the household
of God, and shepherds of His flock. Some are called and
ordained to
this sole occupation, and have a principal and directing part in
these great duties.
1.20
It is the universal conviction of the Methodist people that the
office of the Christian Ministry depends upon the call of God,
who
bestows the gifts of the Spirit, the grace and the fruit of which
indicate those whom God has chosen.
1.21
Those whom the Church recognises as called of God, and therefore
receives into its Ministry, shall be ordained by the imposition
of
hands with prayer to the Holy Spirit for authority for the office and
work of a Minister in the Church of Christ, thus expressing
the
Church’s recognition of the Minister’s personal call.’
On
this basis the Ministers of the church ‘are set apart by
ordination to the Ministry of the Word and Sacraments’.
[18]
[55]
Chapter
4 of the L & D deals with the process by which a person can
become an ordained minister in the church. It encourages
‘those
who are called of God and who have the qualities of Christian
character, evangelical zeal and preaching ability to
offer for the
Ministry’ identifying the primary qualifications as being ‘the
sense of a divine call, spiritual and
intellectual gifts, the graces
of Christian character, and the fruits of Christian service’.
[19]
It spells out the training that the candidate for the ministry must
undergo leading eventually to ordination ‘by the
solemn
imposition of hands’.
[20]
The minister is then received into full connexion, which includes the
authority to perform the work of a minister and to administer
the
sacraments.
[21]
[56]
It is difficult to discern in this any
intention to create a contractual relationship between the minister
and the church, anymore
than it is possible to discern an intention
by a member or the church to enter into contractual relations when
the member is confirmed.
The nature of the process, its origin in the
ordinand’s sense of divine call, the manner in which ordination
occurs and the
description of the task undertaken by the minister
once admitted to full connexion, is wholly inconsistent with the
minister and
the church, at the point of ordination, separately
having an intention to enter into a contractual relationship (the
animus contrahendi
).
It is no surprise therefore to find that such a relationship is
expressly disavowed in clause 4.3 which provides that:
‘
The
Church recognises its pastoral responsibility to care for the welfare
of its Ministers. Nevertheless, notwithstanding any provision

contained in the Laws and Discipline or the decisions of Conference
or of the Connexional Executive which seem to indicate the
contrary,
no legally enforceable contract shall exist at any time between the
Church or any of its circuits on one hand and a Minister
on the other
hand, in respect of the payment of stipends, allowances or any other
material benefit, in cash or kind, the provision
of a station or any
benefit of any kind which may have at any stage accrued to a
minister.’
[57]
Apart from her ordination Ms de Lange did
not point to any other occasion upon which the provisions of the L &
D could have
become the record of a contractual relationship between
her and the church. Her approach was simply that as a minister of the
church
she was bound by the L & D. Whilst it is true that this is
accepted by all ministers in the Methodist church, that does not
mean
that they have concluded a contract to that effect. It seems more
likely that their acceptance of the L & D is an obligation
and
discipline flowing from their calling to be a minister and the
acceptance of that call by going through the process of ordination.
[58]
Apart from her ordination Ms de Lange did
not point to any other occasion on which the provisions of clause
5.11, read with Appendix
14, of the L & D were accepted by her,
acting with the intention to bring about a contractual relationship
at least in regard
to arbitration. Indeed in her replying affidavit
she expressly said that she was not bound by clause 5.11. Had she
signed the arbitration
agreement prepared by the convener, that
document would then have reflected a binding arbitration agreement,
but she declined to
do so and it was signed on her behalf by the
convener. His authority to do that was derived from clause 5.11, read
with clause
2.2.ii of Appendix 14, and, if that lacked contractual
status, then he lacked the necessary authority to bind Ms de Lange.
[59]
These
issues are not novel. They have arisen in various denominations
within the broad Christian community when disciplinary steps
have
been taken against ministers and they have sought to invoke the
jurisdiction of tribunals set up to resolve disputes arising
in the
field of employment. On three occasions the question has come before
the Labour Court in this country.
[22]
The first case dealt with a minister of the Dutch Reformed Church who
had been given a letter of appointment by a particular congregation

of the church setting out his duties and salary and other benefits
that would be due to him in return for the performance of those

duties.  That was held to constitute a contract of employment.
By contrast the second case dealt with the dismissal of an
Anglican
priest who sought to challenge his dismissal before the CCMA. The
priest had been ordained in accordance with the rites
and canons of
the Anglican Church, which were similar in nature and effect to those
in the L & D, and said that this gave rise
to a contract of
employment. The Labour Court rejected this contention holding that
there was no intention to enter into a contractually
binding
relationship. The basis of the entire process was religious.
Similarly in the third case it was held that officers in the

Salvation Army did not enter into a contract of employment with the
Salvation Army, because their position flowed from their
understanding
that they were called of God to a spiritual ministry
and the relationship between them and the Army was a spiritual one
governed
by religious conscience.
[23]
[60]
Similar
conclusions have been reached in cases elsewhere. Waglay J in
Church
of the Province
,
supra,
[24]
referred to
judgments in Australia and New Zealand to the same effect. Most of
these cases in turn refer to judgments in the United
Kingdom where
there is a fairly substantial body of case law on the topic. It is
helpful to refer to the most important of these.
Their effect, which
is I believe equally applicable in this country, is that in each case
one must examine the rules and practices
of the particular church and
any special arrangements that have been made with the minister or
priest to determine whether their
actions were intended in any
respect to give rise to contractual rights and obligations. In making
that assessment one cannot disregard
either the religious background
to the relationship or the fact that for doctrinal reasons the church
and the minister do not regard
contractual arrangements as necessary
and organise their relationship accordingly.
[61]
In
President
of the Methodist Conference v
Parfitt
,
[25]
a Methodist minister was dismissed by the governing body of the
church in England and sought to challenge his dismissal in the

industrial tribunal. The church contended that he fell outside the
jurisdiction of the tribunal because there was no contract of

employment between him and the church. This contention was upheld and
Dillon LJ said:
[26]
‘…
[I]n
my judgment, the spiritual nature of the functions of the minister,
the spiritual nature of the act of ordination by the imposition
of
hands and the doctrinal standards of the Methodist Church which are
so fundamental to that Church and to the position of every
minister
in it make it impossible to conclude that any contract, let alone a
contract of service, came into being between the newly
ordained
minister and the Methodist Church when the minister was received into
full connection. The nature of the stipend supports
this view. In the
spiritual sense, the minister sets out to serve God as his master; I
do not think that it is right to say that
in the legal sense he is at
the point of ordination undertaking by contract to serve the Church
or the Conference as his master
throughout the years of his
ministry.’
[62]
That
judgment was followed in
Davies
v Presbyterian Church of Wales
.
[27]
Again the case involved a minister dismissed from his pastorate and
seeking relief before the industrial tribunal. In rejecting
the claim
on behalf of the House, Lord Templeman said:
[28]
‘
My
Lords, it is possible for a man to be employed as a servant or as an
independent contractor to carry out duties which are exclusively

spiritual. But in the present case the pastor of the Church cannot
point to any contract between himself and the Church. The book
of
rules does not contain terms of employment capable of being offered
and accepted in the course of a religious ceremony. The
duties owed
by the pastor to the Church are not contractual or enforceable. A
pastor is called and accepts the call. He does not
devote his working
life but his whole life to the Church and his religion. His duties
are defined and his activities are dictated
not by contract but by
conscience. He is the servant of God. If his manner of serving God is
not acceptable to the Church, then
his pastorate can be brought to an
end by the Church in accordance with the rules. The law will ensure
that a pastor is not deprived
of his salaried pastorate save in
accordance with the provisions of the book of rules but an industrial
tribunal cannot determine
whether a reasonable Church would sever the
link between minister and congregation.’
[63]
The
subsequent decision of the House of Lords in
Percy
v
Board of National Mission of the Church of Scotland
[29]
suggested
that some of this reasoning might be questionable.
Percy
involved a minister who resigned in the face of disciplinary
proceedings and then sought to challenge her treatment by the church

on the grounds of sex discrimination. She accepted that she was not
employed under a contract of employment, but claimed that the

circumstances in which she had been offered and had taken up her
appointment amounted to a contract to execute work and she therefore

fell within the definition of an employee in the relevant
legislation.
[64]
That
contention was upheld. It appeared that the post had been advertised
and applications invited on the basis that the successful
candidate
would be appointed on certain terms and conditions relating to the
duties attaching to the post, stipend, accommodation,
leave and the
like. When the post was offered to Ms Percy these conditions were set
out in full and she accepted them. In those
circumstances the
majority speech by Lord Nicholls of Birkenhead rejected the
proposition that the holding of an office is inconsistent
with a
contractual relationship and concluded in regard to the question of
an intention to give rise to a legally-binding relationship
that:
[30]
‘
…
[T]his
principle should not be carried too far. It cannot be carried into
arrangements which on their face are to be expected to
give rise to
legally-binding obligations. The offer and acceptance of a church
post for a specific period, with specific provision
for the
appointee’s duties and remuneration and travelling expenses and
holidays and accommodation, seems to me to fall firmly
within this
latter category.
…
Further,
in this regard there seems to be no cogent reason today to draw a
distinction between a post whose duties are primarily
religious and a
post within the church where this is not so. In
President
of the Methodist Conference v Parfitt
…
Dillon LJ noted that a binding contract of service can be made
between a minister and his church. This was echoed by Lord
Templeman
in your Lordships’ House in
Davies
v Presbyterian Church of Wales
…
Lord Templeman said it is possible for a man to be employed as a
servant or as an independent contractor to carry
out duties which are
exclusively spiritual.’
[65]
Percy
was
decided on the footing that although Ms Percy’s ordination did
not create a contract between her and the church, the circumstances

of her appointment to the particular charge were such as to give rise
to a contract under which she performed her duties, albeit
not a
contract of employment.
[31]
It did not invalidate the earlier decisions that held that the nature
of a minister’s relationship with the church
flowing from
ordination was not intended by the parties to be of a contractual
nature. This is clear from the summary of the legal
position in the
majority judgment of Lord Sumption in the recent decision in
Preston
v President of the Methodist Conference
,
[32]
where he said:
‘
It
is clear from the judgments of the majority in
Percy
’s
case that the question whether a minister of religion serves under a
contract of employment can no longer be answered simply
by
classifying the minister’s occupation by type: office or
employment, spiritual or secular. Nor, in the generality of cases,

can it be answered by reference to any presumption against the
contractual character of the service of ministers of religion
generally
… The primary considerations are the manner in which
the minister was engaged, and the character of the rules or terms
governing
his or her service. But, as with all exercises in
contractual construction, these documents and any other admissible
evidence on
the parties’ intentions fall to be construed
against their factual background. Part of that background is the
fundamentally
spiritual purpose of the functions of a minister of
religion.’
[66]
That
case was also one in which a minister who had been dismissed sought
to challenge her dismissal before an employment tribunal
because she
claimed her dismissal was unfair. Lord Sumption reviewed the
structure of the Methodist Church in the United Kingdom,
which shares
many of the features of its sister church in this country, and
concluded:
[33]
‘
If
the arrangements governing the ministry described in the Deed of
Union and the standing orders are a contract between the minister
in
that capacity and the Methodist Church, then it seems to me
inevitable that they must be classified as a contract of employment.

But that only increases the difficulty of regarding them as a
contract at all. Three points seem to me to be cumulatively decisive.

First, the manner in which a minister is engaged is incapable of
being analysed in terms of contractual formation. Neither the

admission of a minister to full connexion nor his or her ordination
are themselves contracts. Thereafter, the minister’s
duties are
not consensual. They depend on the unilateral decisions of the
Conference. Secondly, the stipend and the manse are due
to the
minister by virtue only of his or her admission into full connexion
and ordination. While he or she remains in full connexion
and in the
active life, these benefits continue even in the event of sickness or
injury, unless he or she is given leave of absence
or retires. In
addition to the stipend and the manse, the minister has certain
procedural rights derived from the disciplinary
scheme of the Deed of
Union and the standing orders, which determine the manner in which he
or she may be suspended or removed
from ministerial duties. But the
disciplinary scheme is the same for all members of the Church whether
they are ministers or ordinary
lay members. Third, the relationship
between the minister and the Church is not terminable except by the
decision of the Conference
or its stationing committee or a
disciplinary committee. There is no unilateral right to resign, even
on notice. I conclude that
the ministry described in these
instruments is a vocation, by which candidates submit themselves to
the discipline of the Church
for life. Unless some special
arrangement is made with a particular minister, the rights and duties
of ministers arise, as it seems
to me, entirely from their status in
the constitution of the Church and not from any contract.’
One
difference between that description and the position in the Methodist
church in South Africa is that a minister may resign,
but, beyond
that, the considerations mentioned by Lord Sumption are equally
applicable to Ms de Lange’s situation. For the
same reasons it
seems to me that her relationship with the church is not a
contractual relationship but an expression of her vocation
to
ministry exercised under the discipline of the church.
[67]
I appreciate that the cases I have been
discussing are cases where the issue has been whether ordination in
accordance with the
prescripts of a particular church gives rise to a
contract of employment between the minister and the church. But if on
her ordination
there was no intention by Ms de Lange and the church
to enter into a contract in relation to her employment in terms of
the L &
D, there was likewise no intention to enter into any
other contract embodied in that document. And if that is so then in
this case
there is no arbitration agreement between the parties and
no agreement that can be the subject of an application under s 3(2)

of the Act. As I have mentioned there would have been a valid
arbitration agreement had Ms de Lange and the Presiding Bishop been

able to agree upon the terms of such an agreement, but they did not.
[68]
For
those reasons I have the reservations I have mentioned about the
basis upon which the application was argued before us. On the
face of
matters it was misconceived. If I am correct in that view then the
appeal was in any event doomed to fail, but I have expressed
these
views as they may influence the course of events hereafter. I add, as
did Baroness Hale in
Percy
,
that I hope that the parties will now seek to settle their
differences outside the secular courts, as is clearly the intention

of clause 5.11 of the L & D, an intention that I understand to
have scriptural support.
[34]
_________________
M
J D WALLIS
JUDGE
OF APPEAL
APPEARANCES:
For
Appellant: A de Vos SC (with her A F Schmidt)
Instructed
by:
Pieter
van R. Coetzee Attorneys
Centurion
Webbers
Attorneys
Bloemfontein
For
Respondents: W Trengove SC (with him I Goodman)
Instructed
by:
Malherbe
Rigg & Ranwell Inc
Boksburg
Symington
& De Kok
Bloemfontein
[1]
S
Stoljar ‘The Internal Affairs of Associations’ in
Legal
Personality and Political Pluralism
(1958) at 66- 67 cited in
Lakeside
Colony of Hutterian Brethren v. Hofer
[1992] 3 S.C.R. 165
and
Coombes
v. National Phoenix 1984 Firearms Information and Communication
Association
2009 ABQB 566.
[2]
In
terms of the rules and discipline of the Church all legal
proceedings by or against the Church shall be instituted in the name

of the Presiding Bishop and the Executive Secretary.
[3]
For
the scope of this debate see inter alia
D
Bilchitz ‘Why Courts should not sanction Unfair Discrimination
in the Private Sphere: A Reply’
(2012) 28
SAJHR
296
;
S
de
Freitas ‘Freedom of Association as a foundational right:
Religious associations and
Strydom
v Nederduitse Gereformeerde Gemeente, Moreleta Park
’
(2012)
SAJHR
258
at 262; P Lenta ‘In defence of the right of religious
associations to discriminate: A reply to Bilchitz and De Freitas’
(2013) SAJHR 429.
[4]
D
e
Freitas at 271.
[5]
See
Yiba
v African Gospel Church
1999 (2) SA 949 (C).
[6]
See
sections
15 and 31 of the Constitution.
Taylor
v Kurstag NO
2005
(1) SA 362
(W) para 37.
[7]
De
Freitas above at 262. For a narrower reading of the right see Lenta
above.
[8]
J
Witte 'The South African Experiment in Religious Human Rights'
(1993)
Journal
for Juridical Science
1 at 24-25.
[9]
G
van der Schyff
The
Right to Freedom of Religion in South Africa
(2001) Dissertation Rand Afrikaans University at 102.
[10]
S
Woolman & D Zeffertt ‘Judging Jews: Court interrogation of
rule-making and decision-taking by Jewish ecclesiastical

bodies’(2012)
SAJHR
196 at 205.
[11]
Telecall
(Pty) Ltd v Logan
[2000] ZASCA 97
;
2000
(2) SA 782
(SCA) paras 10-12.
[12]
See
Ampthill
Peerage Case
[1976]
2 All ER 411
(HL) at 424 per Lord Simon of Glaisdale: ‘
Status
means the condition of belonging to a class in society to which the
law ascribes peculiar rights and duties, capacities
and
incapacities.’
[13]
In
the United Kingdom, until recently, a priest in the Church of
England held an office. See
Preston
v President of the Methodist Conference
[2013]
UKSC 29
;
[2013] 4 All ER 477
(SC) para 4.
[14]
Mervis
Brothers v Interior Acoustics and Another
1999
(3) SA 607
(W) at 610
[15]
D W Butler (original text by C Smith) Joubert  ‘Arbitration’
in Joubert
LAWSA
(Vol
1, 2 ed) para 555. This is no longer the position in English law as
a result of s 6(1) of the Arbitration Act 1996 (c
23).
[16]
Chapter 3 of L & D.
[17]
As to voluntary associations see the authorities in
Jacobs
v Old Apostolic Church of Africa and Another
1992
(4) SA 172
(Tk GD) at 173B-F and
Yiba
and Others v African gospel Church
1999
(2) SA 949
(C) at 960-1.. As to companies see
De
Villiers v Jacobsdal Saltworks (Michaelis and de Villiers) (Pty) Ltd
1959
(3) SA 873
(O) at 876-7;
Gohlke
& Schneider and Another v Westies Minerale (Edms) Bpk and
Another
1970
(2) SA 685
(A) at 692F-G;
Trinity
Asset Management (Pty) Ltd and Others v Investec Bank Ltd and Others
2009
(4) SA 89
(SCA) para 22. The authors of
Henochsberg
on the
Companies Act 71 of 2008
Vol
1, 74 (looseleaf, Issue 8) express the view that this situation has
not been altered by the 2008 Companies Act.
[18]
Clauses 1.22 and 1.23.5
[19]
Clause 4.2 of L & D.
[20]
Clause 4.49 of L & D.
[21]
Clause 4.48 of L & D.
[22]
Schreuder
v Nederduitse Gereformeerde Kerk, Wilgespruit
(1999)
20
ILJ
1936
(LC);
Church
of the Province of Southern Africa Diocese of Cape Town v Commission
for Conciliation, Mediation and Arbitration and others
(2001)
22
ILJ
2274
(LC) and
Salvation
Army (South African Territory) v Minister of Labour
(2005)
26
ILJ
126 (LC).
[23]
See also
Rogers
v Booth
[1937]
2 All ER 751.
[24]
Paras
22 and 23.
[25]
President
of the Methodist Conference v Parfitt
[1983]
3 All ER 747 (CA).
[26]
At 751j-752b.
[27]
Davies
v Presbyterian Church of Wales
[1986]
1 All ER 705 (HL).
[28]
At 709g-j.
[29]
Percy
v Board of National Mission of the Church of Scotland
[2005]
UKHL 73; [2006] 4 All ER 1354 (HL).
[30]
Paras
24 and 25.
[31]
See also in this regard Lord Hope of Craighead paras 112-115.
[32]
Preston
v President of the Methodist Conference
[2013]
UKSC 29
;
[2013] 4 All ER 477
(SC) para 10.
[33]
Paragraph 20.
[34]
1 Corinthians 6 vs 1-6. It is the practice and preference of both
Islam and Judaism, and may well be the practice of other faiths,
to
prefer that religious, and even commercial, disputes between members
of the faith be resolved internally and not by the secular
courts.