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[2019] ZAGPPHC 52
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Gaum and Others v Van Rensburg NO and Others (40819/17) [2019] ZAGPPHC 52; [2019] 2 All SA 722 (GP) (8 March 2019)
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 40819/17
In
the matter between:
LOUIS
LAURENS BOTHA GAUM
First
Applicant
MICHELLE
ROSE BOONZAAIER
Second
Applicant
JUDITH
JOHANNA KOTZE
Third
Applicant
FREDERIK
MALHERBE GAUM
Fourth
Applicant
and
NELIS
JANSE VAN RENSBURG N.O.
First
Respondent
DEWYK
UNGERER N.O.
Second
Respondent
GUSTAV
CLAASEN N.O.
Third
Respondent
MATTHYS
JOHANNES NICOLAAS VAN
DER
MERWE N.O.
Fourth
Respondent
GENERAL
SYNOD OF THE DUTCH REFORMED
CHURCH
Fifth
Respondent
DUTCH
REFORMED CHURCH
Sixth
Respondent
MINISTER
OF HOME AFFAIRS
Seventh
Respondent
and
COMMISSION
FOR GENDER EQUALITY
First
Amicus curiae
ALLIANCE
DEFENDING THE AUTONOMY OF CHURCHES
IN
SOUTH AFRICA
Second
Amicus
curiae
JUDGMENT
RAULINGA
J, POTTERILL J et MOLEFE J
Introduction
and Background
[1]
This matter flows from a decision taken and adopted by the General
Synod of the Dutch
Reformed Church [the Church] during 7-10 November
2016 [the 2016 decision]. Every Dutch Reformed congregation in
the country
must adhere to this decision as the General Synod is the
body that in terms of article 42 of the “
Kerkorde”
[the Church Order] is entrusted with the competency to determine the
Church’s communal identity in terms of the Word, Creed,
its
Constitution, mission and policy.
[1]
The 2016 decision’s effect was to reverse the 2015 adopted
decision of the General Synod.
[2]
The 2015 decision confirmed the 2004, 2007 and 2013 decisions of the
General Synod
that marriage is the union between one man and one
woman. However, the 2015 decision reconfirmed the equality of all
people irrespective
of their sexual orientation and gave
recognition to the status of civil unions between persons of the
same-sex that are characterised
by love and fidelity. It
permitted Ministers to solemnise such unions, but placed no positive
duty on a Minister of the Church
to do so. This decision also
removed the celibacy requirement for persons that are gay or lesbian
to be ordained as a Minister
or elder in the Church; such persons
could thus be ordained as Ministers or elders in the Church.
[3]
The result of the 2016 decision was to set aside the 2015 decision in
that a gay or
lesbian person can only be ordained as a Minister if
they are celibate. Furthermore, Ministers are not permitted to
solemnise same-sex
civil unions. This reversal of the 2015 decision
transpired pursuant to a four day meeting, prayer, much debate and
fierce arguments.
[4]
The applicants [Gaum] “
pray
” the court to declare
unlawful and invalid the 2016 decision. The court is to review,
correct and set aside the 2016 decision
in terms of the
Promotion of
Administrative Justice Act 3 of 2000
[PAJA]. The court is also
requested to grant condonation for the 180-day period imposed by
section 7(1)
of PAJA. The Church did not oppose the condonation
sought. Prayers 4 and 5 are unopposed; the respondents [the
Church] conceded
that the decision taken by the appeal body
constituted by the General Task Team Legal Affairs upholding appeals
against the 2015
decision was unlawful and invalid and requires no
further address. Gaum abandoned prayers 6 and 7.
Application
to be admitted as
amicus
curiae
[5]
When this matter was called on 21 August 2018, the Commission for
Gender Equality
(CGE) applied to be admitted as
amicus curiae
in terms of
Rule 16A
of the Rules of Court. At the time, the Alliance
Defending the Authority of Churches (ADACSA) was already admitted as
amicus curiae.
[6]
The application is supported by Gaum but opposed by the Minister of
Home Affairs (the
Minister) and ADACSA. It seems to us that initially
the Minister of Home Affairs had consented to the admission of the
CGE as
amicus curiae
, but retracted its consent on the basis
that there was no compliance with
Rule 16A.
However, the Minister has
filed a notice to abide by the Court’s decision.
[7]
The CGE contends that if admitted, it will furnish information or
argument regarding
questions of law, in particular the interpretation
of
section 5
(1) of the
Civil Union Act 17 of 2006
[The
Civil Union
Act]. We
note that the
Civil Union Act has
recently been amended in
favour of the applicants’ argument. In essence the CGE submits
that
section 5
(1) of the
Civil Union Act is
unconstitutional and
deserves expungement.
[8]
The Church and ADACSA aver that the CGE’s contentions
fundamentally misconstrue
the nature and scope of the application
before Court and the relief sought by Gaum. As a consequence,
the CGE is not entitled
to make out the case and arguments it does
and its participation in the proceedings must be refused.
[9]
The Minister’s contentions against the CGE’s submissions
are as follows:
9.1
The parties in this case do not take issue
with the provisions of the
Civil Union Act and
therefore the
constitutionality or otherwise of the Act is not an issue in the main
application.
9.2
The CGE does not seek any order in its
prayers against any of the provisions of the Act.
9.3
The CGE introduces an argument about the constitutionality of
section
5
(1) of the Act for the first time in its affidavit in support of
its admission as
amicus
curiae
;
and
9.4
The CGE’s alternative argument
advanced in its affidavit is that if
section 5
(1) were to be
interpreted by the Court as giving religious denominations a
discretion as to whether or not to apply the Act, then
the Court
should find
section 5
(1) is unconstitutional and should declare as
such.
[10]
The summation of the Minister’s contention can be coined in the
following words. The Minister
contends that the CGE is not permitted
to raise new contentions. He asserts that the CGE has inappropriately
introduced the constitutionality
or otherwise of
section 5
(1) of the
Act where this is not raised by the litigants. In addition, the
Minister contends that the CGE inappropriately
seeks substantive
relief from the Court. All these assertions are denied by the CGE or
it tries to justify them.
The CGE asserts that the
Constitutional Court has held that generally an “
amicus”
cannot introduce a new cause of action, and generally “
cannot
request a remedy that none of the parties have sought.”
The CGE, in support of its argument refers to a dictum of Yacoob J in
De Beer
N.O. v North Central Local Council and South-Central Local
Council
[2]
which reads as follows:
“
This cause of
action was not referred to in the application to be allowed to be
admitted into the case as amicus. An amicus is not
entitled to raise
a new cause of action. If an amicus wishes to raise a new cause of
action in an appeal, that should be referred
to in a
Rule 9
application, and permission to do so should be sought. The President
of the Court can then deal with the matter in terms of
Rule 9
(3) and
consider whether or not it would be appropriate to permit such an
issue to be raised in the appeal. Such permission is
unlikely to be
given if it would involve the joining of additional parties to the
litigation, or if there is a likelihood that
one or more of the
parties would be prejudiced. I do not consider it appropriate in the
circumstances of the present case to permit
the amicus to rely on the
new cause of action, raised for the first time in the oral argument.
”
[11]
One is in the least dumbfounded why the CGE would rely on this dictum
to support their argument.
It is glaringly clear from the reasoning
of the Court in
De Beer N.O.
(supra)
that an
amicus
is not entitled to raise a new cause of action. Although the
applicants as well as the CGE pursue discrimination, it cannot be
said that the interpretation of
section 5
(1) falls squarely in the
same category. This is made clear by
Rule 16A
sub-rules 6 (b) and (c)
which read:
“
An application
contemplated in sub-rule (5) shall –
(b)
clearly and succinctly set out the submissions which will be advanced
by the amicus curiae,
the relevance thereof to proceedings and his or
her reasons for believing that the submissions will assist the court
and are different
from those of the other parties; and
(c)
be served upon all parties to the proceedings.”
In
Phillips
v South African Reserve Bank and others,
[3]
the
Court in the majority judgment stated the following:
“
The use of the
word ‘succinct’ in
Rule 16A
is in my view deliberate –
it signifies the requirements of a brief and clear expression (as
defined in the Concise Oxford
Dictionary 12
th
edition [2011]) of the constitutional issue concerned. A description
can only be ‘brief and clear’ when it has some
particularity that a terse regurgitation of the orders sought hardly
leaves any room for such a brief and clear description.
”
[12]
In our view, Gaum do not raise the constitutionality of
section 5
(1). This is despite the fact that their contention is based on
discrimination. However, the issue of unconstitutionality based
on
the interpretation of
section 5
(1) is a new cause of action which is
impermissible for the CGE to do.
[13]
As enunciated in
Hoffman
v South African Airways
[4]
that:
“
An amicus
curiae assists the Court by furnishing information or argument
regarding questions of law or fact. An amicus is not a
party to
litigation, but believes that the Court’s decisions may affect
its interest. The amicus differs from an intervening
party, who has a
direct interest in the outcome of the litigation and is therefore
permitted to participate as a party to the matter.
An amicus joins
the proceedings, as its name suggests, as a friend of the Court. It
joins in the proceedings to assist the Court
because of its expertise
on or interest in the matter before the Court. It chooses the side it
wishes to join unless requested
by the Court to urge a particular
position.
”
[14]
It is trite law that in motion proceedings, an applicant must make
out his or her case in the
founding affidavit
.
[5]
.
In casu
,
although Gaim raise a constitutional issue, it is not their case that
the interpretation of
section 5
(1) should be invoked nor that it
should be declared unconstitutional and therefore invalid. As a
consequence the alternative order
proposed by the CGE is irrelevant
for the purpose of these proceedings.
[15]
The Constitutional Court stated in
In
re Certain Amicus Curiae Application: Minister of Health and others v
Treatment Action Campaign and others
[6]
that:
“
The role of
amicus curiae is to draw the attention of the Court to the relevant
matters of law and fact to which attention would
not otherwise be
drawn. In return for the privilege of participating in the
proceedings without having to qualify as a party, an
amicus has a
special duty to the Court. That duty is to provide cogent and helpful
submissions that assist the Court. The amicus
must not repeat
arguments already made out but, must raise new contentions; and
generally those new contentions must be on the
data already before
the Court. Ordinarily it is inappropriate for an amicus to try and
introduce new contentions based on fresh
evidence.
”
[16]
Our understanding of these dicta is that the relevant matters of law
and fact raised by an
amicus
should be those to which
attention of the Court would not otherwise be drawn. In our view, the
CGE raises new contentions based
on fresh evidence, which is
impermissible.
[17]
Regarding the interpretation of
section 5
(1) of the Act, and
reference to foreign and international law, section 39 of the
Constitution is apposite to these aspects.
[18]
Section 39 of the Constitution enjoins the judiciary whilst
interpreting the Bill of Rights:
“
(a)
to promote the values that underlie an open and democratic society
based on human dignity, equality
and freedom;
(b)
Must consider international law and
(c)
May consider foreign law.
(2)
When interpreting the legislation, and when developing the common law
or customary law,
every court, tribunal or forum must promote the
spirit, purport and objects of the Bill of Rights.
(3)
The Bill of Rights does not deny the existence of any other rights or
freedoms that are
recognized or conferred by common law, customary
law or legislation, to the extent that they are consistent with the
Bill.”
[19]
On the proper application of section 39 of the Constitution, it
simply means that the Court may
mero muto
consider issues of
interpretation referred to by the CGE without resorting to their
assistance.
[20]
To the extent that the CGE might have raised new contentions, such
contentions are not made on
the data already before the Court. In the
premises, the CGE’s application to be admitted in the
proceedings is also dismissed
on the basis that no exceptional
circumstances exist warranting their admission.
The Doctrine of
Entanglement
[21]
Religion is a world of power that requires a certain measure of
respect and deference.
The nature of religion’s
relationship with the law is often a matter of controversy and it is
in constant flux.
[7]
All
modern liberal democracies are struggling to determine the extent to
which a court of law, faced with petitions of a breach
of religious
freedom, should accept determinations of the faithful and of
religious associations.
[8]
There
are a number of reasons why the religious question continues to
resonate with the courts.
[9]
The
first would be the difficulty of evaluating beliefs as they are
largely subjective.
[10]
Allied
to this point is the expertise required of courts in evaluating
claims of religious freedom.
[11]
[22] The
Constitutional Court has held that the right and accordingly,
constitutional protection extends
to beliefs that are “
bizarre,
illogical or irrational.”
[12]
In this regard, the constitutions of religious associations bust
themselves with moral questions unlike many other types of
associations,
such as sports clubs, trade unions and charitable
organisations. Religious associations in many instances take things
such as divorce,
adultery, the use of demeaning or blasphemous
language, the consumption of alcohol, daily dietary laws,
pornographic material,
etc. seriously. In the words of Professor Iain
Benson, “
These
rules do not and are not intended to ‘make sense’ to
those outside of the particular traditions that uphold them
and it is
their very peculiarity to outsiders that ought to and does make us
chary about trying to judge such beliefs from outside.”
[13]
[23]
It is also plausible that a legal system would consider certain
rights of such crucial importance
that it is willing to render them
immune from government interference, including judicial
deference.
[14]
On
the other hand, a legal system, which conceives that rights are not
absolute and that compelling public interest require a limitation
of
rights, could not embrace the religious question wholeheartedly.
[15]
The
issue in this matter, being the recognition and acceptance of
same-sex unions within religious associations raises controversial
and sensitive points. On the one hand it’s the conflict between
the right of freedom of religion
[16]
and
the right not to be discriminated against based on sexual
orientation.
[17]
[24]
In
2017 the Commission for the Promotion and Protection of Rights of
Cultural, Religious and Linguistic Communities (“the
CRL”)
released a report of the Hearings on the Commercialisation of
Religion and Abuse of People’s Belief Systems.
[25]
In
its report, the CRL among others recommended the need to protect
religious freedom without attempting to regulate it from the
side of
the state. However, as specific current practices in the
religious sector infringe on constitutional rights of congregants
and
violate existing legislation, it recommended religious communities to
regulate themselves more diligently to be in line with
the
Constitution and the law. Communities should exercise
their religious freedom with due regard to their legal, ethical
and
community responsibilities.
[26]
On the other hand there is the doctrine of entanglement (as discussed
herein below) and the nature
of religious associations being based on
voluntary association. In other words, joining a religious
association is a voluntary
decision and constitutes an acceptance of
the policies of the religious association and entails submitting to
the internal procedures
and bodies/tribunals dealing with issues
relating to the religious association and its policies.
[27]
The doctrine of entanglement entails a reluctance of the court to
become involved in doctrinal
disputes of a religious character.
[18]
The reason underlying
this 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.”
[19]
The
doctrine also draws from the widely accepted principle that a state
(and its organs) should be a-religious to ensure religious
freedom
and equality.
[20]
[28]
The majority of the judgments of our Courts are in favour of
following the doctrine of entanglement:
In
Ryland v Edros
[21]
,
Farlam J considered the applicability of the doctrine of entanglement
and held:
“…
as to the first preliminary matter, that prior to
the coming into force of the [Interim] Constitution of the Republic
of South Africa
Act 200 of 1993 our Courts ‘would not
adjudicate upon a doctrinal dispute between two schisms of a sect
unless some proprietary
or other legally recognised right had been
involved, and that it seemed that s 14 of the Constitution might well
have changed the
position and that the doctrine of entanglement now
be part of our law.”
[22]
Farlam J went as far as stating that had the parties not decided that
there were no issues of doctrinal entanglement, section 14
[23]
and the doctrine of entanglement would have prevented the court from
adjudicating the rights and duties of the Muslim marriages
in issue.
[24]
[29]
In
Ecclesia
De Lange v The Presiding Bishop of the Methodist Church of Southern
Africa
[25]
(De
Lange),
the
Supreme Court of Appeal had to deal with a dispute that concerned the
internal rules adopted by the church. The Supreme Court
of Appeal
referred to foreign jurisdictions and confirmed the position in South
Africa that the courts should as far as possible,
refrain from
interfering in these types of disputes.
The
issues to be decided
[30]
There are no material disputes of fact in this matter. The matter
raised two questions; the first
is whether the 2016 decision was
taken in terms of the procedure set out in the Church Order. The
second relates to the substantive
constitutional debate.
However, the Church raised two points
in limine
that need to
be addressed first.
Does this court have
jurisdiction to entertain claims of unfair discrimination not sitting
as an Equity court?
[31]
The Church countered the argument of Gaum that jurisdiction was in
fact admitted in the papers,
with jurisdiction by its very nature,
need not be attacked in the papers. This argument was fortified by
the fact that a Court
must raise issues of jurisdiction
mero motu
.
Although the
Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of 2000
[Equality Act] does not exclude a High
Court to deal with matters of unfair discrimination, a Judge trained
as an Equality Judge
will be better equipped to deal with the
matter. In terms of s21 (4) of the Equality Act such Judge
could have referred this
matter to during, or after an enquiry, to
any relevant constitutional institution or appropriate body for
mediation, conciliation
or negotiation. The argument was also that
although there were issues raised in this matter that the Equality
Court could not deal
with, it should have been a parallel process;
i.e. the unfair discrimination before an Equality court and the other
issues before
a High Court. Alternatively the process should have
been consolidated before a court compromising of an Equality Court
and a High
Court, not just as a High Court as we were constituted.
[32]
The Supreme Court of Appeal has found the Equality Court to be a
special animal; a “
special-purpose
vehicle”
[26]
with the intent of the Legislature to expedite, for also the most
disadvantaged persons, to approach an Equity Court with an informal
process
[27]
to redress unfair
discrimination. In terms of the regulations, an Equality Court must
first hold an enquiry to determine whether
unfair discrimination took
place and whether an alternative forum is not better suited to the
dispute.
[33]
Only judges who have been trained for this purpose can sit as an
Equality court. The irony pointed
out by Justice Navsa is not lost to
this Court: “
It
is to be noted that judges who preside in the High Court and who hear
matters in that court implicating s9 of the Constitution
are not
required to have completed a specific training course. It is, of
course, ironic that Equality Court matters cannot be heard
by all
High Court judges
.”
[28]
In casu
,
all three judges received the required training, but are not sitting
as an Equality court.
[34]
The Supreme Court of Appeal and the Constitutional Court have
endorsed that there can be consolidation
of disparate claims before
the High Court sitting as an Equity Court and a High Court, or
that there can be parallel processes
.
[29]
[35]
The question is whether in this matter the principle of
constitutional subsidiary, although not
labelled as such by the
Church, is a bar to this court entertaining the unfair discrimination
issue before court. This principle
flows from the
Constitution
[30]
foreseeing a
single system of law which is shaped by the Constitution. This
implies that where the Legislator has enacted
legislation to give
effect to the Constitution, a party cannot circumvent the Legislation
enacted to give effect to a constitutional
right by relying directly
on the constitutional right. If the principle is ignored then
the legislation enacted is ignored,
whereas the Courts and
Legislature must act in partnership to give life to constitutional
rights.
[31]
In
De
Lange,
the
Court found that Ms de Lange’s refusal to institute her claim
for unfair discrimination in the Equity Court was fatal
to her
application for leave to appeal to the Constitutional Court.
[36]
In this matter the Equity court would have to pronounce on the issues
piecemeal, as it had no
jurisdiction to address the other issues. To
institute parallel proceedings in the High Court to address the other
issues would
not serve justice; expecting of the parties to draft two
sets of papers, brief senior counsel twice and argue twice before
different
courts at a tremendous cost to all. It could also lead to
two judgments that, in their outcome, could be conflicting
.
[37]
To circumvent such result the only solution would be to consolidate
the unfair discrimination
matter before an Equality Court and the
other issues before a High Court to a High Court sitting as High and
Equality Court. Naturally
such consolidation does not circumvent the
duplicity of the issuing of the papers and an application to
consolidate. It is
true that the lack of jurisdiction can be
raised without it having been raised on the papers, but in this
instance, admitting jurisdiction
in the papers and then raising it at
the hearing, in view of the possible parallel processes, should be
frowned upon.
[38]
However, this matter was allocated by the DJP of this division to a
Full Court exactly because
of the intricacies of the matter. The
three judges are trained as Equality judges, granted not constituted
as an Equality Court,
but as a Full Court. No argument could be made
that an Equity Court could have solved these disputes by referral to
another forum
for mediation, conciliation or negotiation.
Within the Church itself, despite much prayer and serious debate, no
consensus
could be reached, leaving any consensus reaching between
the Church and Gaum a far-fetched impossibility. This mechanism of
the
Equality Court would be futile, besides which no other forum
would have been suitable to adjudicate this matter. The Church, with
these considerations at play, is thus not denied any protection
offered by the Equity Act.
[39]
Although the Equity Act is not utilised herein, this is not a matter
where the Equity Act and
thereby the Legislator is flaunted, but
where the six constitutional rights straddled herein, cannot be
decided within the four
corners of the Equity Act and the mechanisms
of the Equity Act are non-suited. A Full Court can entertain
all the issues
and has jurisdiction to pronounce on all of them. In
the
De
Lange
matter, the unfair discrimination claim had not properly ripened,
whereas, before us, it was fully ventilated. Justice will
most
definitely not be served if after argument of all the parties, and
the amici, this matter is dismissed to start afresh in
the Equity
court. It will further defeat all logic and purpose to uphold this
point
in
limine
when the Church and Gaum requested this court to pronounce on the
substantive issue even if it found that the Church acted procedurally
irregularly rendering the decision to be set aside
.
[40]
In any event, besides all the other hurdles Ms de Lange had to
overcome with her application
for leave to appeal, Moseneke DCJ also
considered the following fact: “’
[if]
… this court were to decide the unfair-discrimination claim,
it would do so as a court of first and last instance in
a dispute of
considerable complexity and vast public repercussions arising from
competing constitutional claims. This is
not a run-of-the mill
claim for equal worth and regard in which this court may, without
more, dispense with the views of the High
Court and the Supreme Court
of Appeal.”
[32]
This
Court, constituted as it is, is not dispensing of the matter without
the probable wisdom of the Supreme Court of Appeal or
the
Constitutional Court. Furthermore, three trained equity judges
versus one Equality Court Judge will hopefully have more
chance at
judicial wisdom, if not Solomonic wisdom, necessary for this complex
matter.
[33]
This point
in
limine
is
dismissed.
Is PAJA
the applicable review vehicle herein?
[41]
PAJA defines “administrative action” as:
“
any decision
taken … by-
(a)
an
organ of state, when -
(i)
Exercising
a power in terms of the Constitution or a provincial constitution; or
(ii)
Exercising
a public power or performing a public function in terms of any
legislation; or
(b)
a
natural or juristic person, other than an organ of state, when
exercising a public power or performing a public function in terms
of
an empowering provision,
which adversely
affects the rights of any person and which has a direct, external
legal effect.”
[42]
The Church contended that the decisions of the Church do not
constitute “
administrative action”
and can thus
not be reviewed in terms of PAJA. The 2016 decision is not of a
public nature flowing from a statute. The decisions
of the Church are
also not exercises of public power subject to legality review powers
because the Church does not exercise coercive
powers or has a
monopoly in its sphere of influence. The 2016 decision is not
administrative, but an interpretative, theological
decision and
therefore cannot fall under s1 of PAJA. Its stance was
that the 2016 decision could only be reviewed for
being contrary to
the Church’s Order in terms of the law of contract.
Alternatively, it could be attacked in that the decision
contravened
the rights in the Bill of Rights. If PAJA is not applicable
then Gaum could not invoke the review grounds under
PAJA and was
limited to the decision being
ultra vires
the Church’s
Order, procedurally unfair under the principles of natural justice or
that the decision was irrational. Gaum
could thus not rely on a
general requirement of fairness or reasonableness.
[43]
Gaum contended that whether PAJA is applicable or not is academic
because in terms of the common
law the Church’s decision could
be reviewed. But, in any event, PAJA is applicable because the
empowering provision is the
Church’s Order. The 2016 decision
is of public nature affecting 1.3 million people. The function of
executing a civil union
is performed by the Church based on the Civil
Union Act 17 of 2006 (Civil Union Act); a state function.
[44]
The Church is not an organ of state. The question is whether
the Church when making this
decision was exercising a public power or
performing a public function. There is no single litmus test to
apply in answering
this question, but courts have consistently
applied “
the
governmental test.”
[34]
We
cannot find that the decision pertains to the public or people as a
whole. In terms of this test the Church’s decision
may be
of interest to the church, its members and the public, but is in no
sense governmental. The decision does not entail
public
accountability; the decision is based on an interpretative
theological decision. Ministers of the Church can
formalise a
marriage in terms of
Section 5(1)
of the
Civil Union Act whereby
any
religious denomination may apply to the Minister of Home Affairs to
be designated as a religious organisation that may solemnise
marriages in terms of the Act. However, this does not render
the decision governmental in nature. The decision was
not based
on the Act, but in terms of theological debate and voting in terms of
the Church’s Order. The
Civil Union Act is
solely
concerned with marriage as a secular institution whereas the Church
gives marriage a religious dimension. The decision
of the
Church was not a public power exercised for a class of the public as
a whole, which is pre-eminently the terrain of government.
[35]
The review grounds of PAJA is thus not available to Gaum.
[45]
The decision is however still subject to judicial review.
Pre-Constitution, the Courts
had the authority to interpret a Church
decision or order and act accordingly
[36]
with the judicial review being restricted to the rules of natural
justice and/or whether a decision was inconsistent with the
Constitution. In the papers, Gaum, sufficiently sets out causes
of action for the decision to be reviewed – the 2016
decision
violates the constitutional rights to equality, dignity, privacy and
freedom of religion, belief and opinion, association
and
participation in cultural and religious communities. The
irregularity of the decision is pleaded. The application
also
seeks the relief sought because the 2016 decision infringed
inter
alia
Regulations
18, 22, 1 and 23 of the Church Order.
Was the procedure
followed by the Church in getting to the 2016 decision inconsistent
with the Church Order?
[46]
Pursuant to the 2015 decision various appeals, objections and
gravamen
[a serious objection to a decision of the General Synod relating to
Creed] were received against the 2015 decision. “
Reglement”
[Regulation] 19 of the Church Order provides for these objections,
appeals and
gravamen
.
If appeals, objections or
gravamen
are accepted as correct, the decision which was objected to can be
amended, substituted or withdrawn.
[37]
In terms of Regulation 3, para 8, revision of decisions may occur.
There must however be notice given of such revision and each
notice
of revision must be sent to the Temporary Task Team. The Legal
Temporary Task Team makes a recommendation. If at the
meeting the
majority decides that a matter must be revised [revisie], the matter
is reopened for discussion and the meeting can
take a new decision or
confirm the previous decision.
[47]
On legal advice, the Moderadum, the executive committee of the
General Synod, accepted that the
appeals received suspended the 2015
decision. Further legal advice contradicted the earlier advise
received and the Moderadum,
accepting this advice, decided that the
appeals did in fact not suspend the 2015 decision. It called an
extraordinary General Synod
meeting for November 2016 [“the
meeting”]. The purpose of the meeting was expressed in the
“
Moderamen
205-2017 Notule Derde Vergadering”
[38]
with the Consensus suggestion to revoke the decision of the ATR
pertaining to the appeals and to “
om
‘n buitengewone Algemene Sinode voor 10 November 2016 te belê
om besware, appelle, graviman en ander voorleggings
te hanteer.
”
This minute reflects that the objections and
gravamen
to the 2015 decision would be discussed at this meeting. The Agenda
would
inter
alia
include discussions on the 2015 decision and the report of the
Temporary Task Team on the
gravamina
received
.
[39]
[48]
The Appeals Commission had in the meantime found that the appeals
against the 2015 decision be
upheld and that the 2015 decision be set
aside. The chairman of the meeting ruled, as a fact, that the
decision of the appeals
commission would not be discussed at the
meeting as the meeting did not have the competence to deal with
it.
[40]
The Church
conceded that the decision of this Appeal Commission was
ultra
vires,
invalid
and a nullity. The 2015 decision was thus still in existence
and not set aside or rescinded.
[49]
The General Synod decided that the matter of same sex relationships
be revisited on theological
grounds. Members who submitted
objections, discussion points and
gravamen
could address the
meeting. This then led to the 2016 decision being taken.
[50]
On behalf of Gaum, it was submitted that the procedure utilised by
the General Synod is irregular
and fatally flawed because the
principle of legality was flaunted.
[41]
Simply put, the 2015 decision was never unambiguously set aside or
rescinded by means of revision in terms of paragraph 8
of Regulation
3. The appeals correctly could not have been upheld and
therefore the 2015 decision was still on the table.
The
“
re-visitation”
the
Church relies on, is contrary to its Order. Furthermore the
re-visitation was impervious to the invalid appeals.
[51]
The Church contended that there were two parallel processes
pertaining to the 2015 decision:
the one was to consider the appeals
and the other was to revisit the 2015 decision. The church submitted
that the decisions of
the General Synod is binding until it takes a
new decision, but a decision is open to
gravamina
and to
re-visitation.
[52]
The question thus is, did the General Synod at the meeting, in terms
of the Church order, first
have to unambiguously set aside the 2015
decision and if the 2015 decision was not unambiguously set aside,
does this render the
2016 decision procedurally flawed and a nullity.
[53]
The fact that the Appeals process was irregular and unlawful did not
per se
taint the 2016 decision. The result of the irregular and unlawful
process was that the appeal’s process did not set aside
the
2015 decision and the 2015 decision was thus still “
alive”
when the 2016 decision was made. The Chairman of the General Synod
was thus wrong in law and fact when he ruled at the meeting
that the
2015 decision was set aside
.
[42]
[54]
The Church Order provides for 3 ways of withdrawing, amending or
replacing a decision of a church
meeting. Appeals and
objections are utilised when there is an appeal from one meeting to
another meeting.
[43]
This,
inter
alia,
rendered
the appeal process against the decision of the General Synod null and
void; there was no further meeting to appeal
to. The
appeal process and the appeal decision is thus to be declared
unlawful and invalid.
[55]
The second means of withdrawing, amending or replacing a decision of
a church meeting is by means
of “
revisie/hersiening.”
[44]
Not to get lost in translation, in the
Verklarende
Handwoordeboek van die Afrikaanse Taal,
F.F.
Odendal & R.H. Gouws 5
th
edition [HAT] “
revisie”
is explained as being “
hersiening”
.
“
Hersiening”
is defined as “
nagaan
en verbeter, werk wat reeds gedoen is, weer noukeurig
deurgaan,herhaal.”
In terms of the
Bilingual
Dictionary,
Bosman
Van der Merwe & Hiemstra 8
th
edition [Bilingual Dictionary] “
hersiening”
in English is to “
revise,
review, overhaul, reconsider ...”
The Church, in terms of its Church Order, lawfully can reconsider,
review or overhaul the 2015 decision. The 2015 decision
need not be
set aside, but can be reconsidered or reviewed.
[56]
Is this what the meeting was called to do and was this process
utilised? In the answering
affidavit the process is described
as a “…
full
reconsideration of the question of same-sex relationships. The
2015 decision was, of course discussed, but in the context
of
principled re-visitation of what the Bible commands in relation to
same-sex relationships.”
[45]
In
terms of regulation 19.1.1.1, there could be a reconsideration, but
it had to be a reconsideration of the 2015 decision based
on
principled “
re-visitation”
versus
“
revisiting”
,
but the word revisiting exists and semantics in this matter, with
translation of the Church Order paramount, is not going to play
a
significant role where a correct noun has been incorrectly
converted. The Church is however not relying on this means of
reconsidering the 2015 decision. In oral argument it was
stressed that the 2015 decision was not being discussed at the time.
The only reference to the 2015 decision was that same-sex
relationships were discussed again. There was thus not a
revisit
or overhaul or re-consideration of the 2015 decision.
[57]
The third means by which a decision of the General Synod can be
amended, withdrawn or substituted
is by means of
gravamen
.
Gravamen
against the 2015 decision of the General Synod were received. There
is no doubt that the General Synod is the “body”
of the
Church that has the authority to deal with issues and decisions set
out in the 2015 and 2016 decisions. Some of the
gravamen
were converted to appeals and some not.
Gravamen
required a different process to the appeal process and therefore the
unlawfulness of the appeals process did not
per
se
render the
gravamen
means of dealing with a decision unlawful.
Gravamen
is the means by which a member of the church, or a meeting of church
members can raise an objection to a decision of the General
Synod
based on the Church Order, Creed, or the Church’s articles of
Faith. If the
Gravamen
is admissible or susceptible, it is submitted to the General Synod
for consideration.
[46]
At the meeting the
gravamen
were
considered and debated and the
gravamen
were thus susceptible for discussion. It is thus clear that
gravamen
is a
means to amend the 2015 decision, but once again the problem is that
the Church is not relying on this process in coming to
the 2016
decision.
[58]
The oral argument of the Church was based on a Church practice. The
2015 decision being substituted
with the 2016 decision because a
decision of the General Synod is binding until the General Synod
takes another decision. The 2016
decision thus replaces the 2015
decision. This is so because the 2015 and 2016 decisions relate to
policy, in this instance Creed,
which evolves with time. This
replacement or confirmation of one decision upon another decision
happened in accordance with Church
practice. In 2004 the General
Synod considered its stance on sexual orientation. It took a decision
and this 2004 decision replaced
the previous decision on this issue.
In 2007 a decision was taken to affirm the 2004 decision. In 2013 the
General Synod confirmed
the 2007 decision and also ordered the
Moderadum to conduct a study on homosexuality regarding the status of
same-sex relationships
in the light of Scripture and the Reformed
tradition. The 2015 decision reconfirms the 2004, 2007 and 2013
decisions that marriage
can only be between one man and one woman,
but then recognised a same-sex union with the conditions precedent.
In essence thus
there was a clear table; the 2015 decision need not
to be set aside before a new decision is taken because the new
decision sets
aside the 2015 decision. In oral argument it was
submitted that the 2016 decision amended the 2015 decision because
the 2015 decision
did not bind the General Synod to an amendment
procedure. The 2016 decision is consistent with paragraph 8 of the
2015 decision
.
[47]
[59]
The Church’s argument is unconvincing. When the Church Order
provides for mechanisms to
amend, review or substitute decisions,
these methods must be used. If processes outside of the Church Order
is utilised it shall
constitute an irregular process. None of these
processes were used in coming to the 2016 decision. Even if one, for
argument’s
sake, accepts that there is a well-known,
established Church practise pertaining to decisions of the General
Synod; one decision
“
automatically”
sets aside or confirms the previous decision, the facts do not
support this submission. In 2004 a new decision was taken on same-sex
marriages. This decision was pertinently affirmed in 2007; the 2004
decision was referred to; it was on the table. In 2013 the
2007
decision on same-sex marriages was confirmed; the 2013 decision was
expressly dealt with. The 2015 decision reconfirms the
2004, 2007 and
2013 decisions that marriage can only be between one man and one
woman, but then recognised a same-sex union with
the conditions
precedent. The 2004, 2007 and 2013 decisions are not just swept off
the table, or ignored. Yet, with the 2016 decision
the 2015 decision
was ignored. Contrary to all the other decisions, the 2016 decision
does not refer to the 2015 decision of same-sex
unions, it does not
set it aside, affirm it, or confirm it. Simply put, the 2015 decision
was just side-stepped as if the Appeal
Process had set it aside. The
problem is, the 2015 decision did exist. The decision could be
amended, substituted or overhauled
and reviewed; this was not done,
contrary to previous Church practise
.
[60]
The Church Order allows for a previous decision to be substituted,
amended or reviewed, but then
that decision must be on the agenda and
be discussed.
Gravamen
to a decision would similarly require that the decision must be on
the agenda. The 2015 decision was not a nullity, if the
General
Synod decided that the 2015 decision had no role to play in this
meeting because this meeting was going to discuss same-sex
relationships from a clean slate, then it had to set the 2015
decision aside. The 2016 decision at the very least had to set aside
the 2015 decision. Procedurally the 2016 decision of the Church is to
be reviewed and set aside
.
[48]
[61]
Although the matter should end herewith, the parties requested the
court to decide the substantive
issue.
Substantive review
grounds
[62]
Gaum submitted that the Church’s 2016 decision is demonstrably
discriminatory in that it
differentiates on the grounds of sexual
orientation. Section 9(3) of the Constitution as well as section 1 of
the Equality Act
prohibit discrimination based on sexual orientation
casting the duty to justify the discrimination on the Church.
The decision
also violates the equality of Gaum. This
differentiation results in the diminished dignity
[49]
of the members of the LGBTIQA+ because their relationships are
disqualified from being solemnised in the Church. This discrimination
leads to further infringement of the Constitution in that this
community is excluded from participating in a crucial social
ceremony;
their rights of freedom of association
[50]
and their right to freedom of religion
[51]
is infringed. Section 31 of the Constitution is also infringed
because persons belonging to a religious community may not
practise
their religion. The decision is contrary to the Charter of
Religious Rights and Freedoms.
[63]
The Church denied that the 2016 decision prevents the participation
of the LGBTQIA+ community
in the church community, or that it impedes
their private lives, or that the decision violates their
constitutional rights. It
denied that grounds existed whereupon the
decision could be reviewed. The Church denied that the 2016 decision
is irregular, unconstitutional,
or that it falls foul of the Charter
of Religious Rights. On behalf of the Church it was submitted that
the 2016 decision did not
restrict Gaum’s right to freedom of
association; Gaum is free to join another Church that interprets the
Bible in the way
that Gaum does. The 2016 decision is unimpeachable.
The necessary enquiry
when there is an averred infringement of s9.
[64]
As a starting point, it was argued on behalf of Gaum that, in the
answering affidavit of the
Church, the infringed rights set out in
the application
[52]
were never
denied as being infringed. This lack of denial established that the
rights were infringed. In the heads of argument
the Church accepted
that the 2016 decision constituted discrimination on the basis of
sexual orientation.
[53]
The Church has an onus to prove that the discrimination is fair, but
put up no facts in the papers to discharge this onus.
The enquiry
then shifts to whether the Church can justify the infringement in
terms of section 36 of the Constitution, but the
Church pleaded no
case of justification at all. Only, for the first time in the
Church’s heads of argument, the fairness
is addressed as the
Church exercising freedom of religion. The Church was thus invoking a
“
trump”
right;
religious freedom, trumping or ousting the rights of Gaum which is
the incorrect test.
[65]
In the answering affidavit there are just bold denials of violation
of constitutional rights;
of falling foul of the Charter of Religious
Rights; and of irregularity of the 2016 decision. In para 103,
[54]
there is the following denial: “
I
deny that the constitutional rights to equality and human dignity
require the 2015 decision or prohibit the 2016 decision.”
Reliance was placed on this single sentence that the infringement of
rights was in fact denied. The argument was further that the
Church
need not plead justification, because justification does not come
into the debate. Section 9 deals with unfair discrimination,
versus
discrimination, implying a weighing up of two competing rights -
sexual orientation versus the right to religious freedom.
[66]
The argument and the approach of the Church to the constitutional
debate is wrong. In
Prinsloo
v van der Linde and Another
1997 (3) SA 1012
(CC) p554 and
Harkson
v Lane NO
[1997] ZACC 12
;
1998 (1) SA 300
(CC) para 53, the Constitutional Court found the
stages of an enquiry into the violation of the equality clause as
starting with
whether the conduct differentiates between people or
classes of people. Even if the differentiation does bear a rational
connection
it might nevertheless amount to discrimination. The
rational connection enquiry need not be done first because if a court
finds
that the discrimination is unfair and unjustifiable the
rational connection inquiry would be unnecessary.
[55]
The next question is whether the differentiation amounts to unfair
discrimination. If the discrimination is on a specified
ground in s9
(3) then discrimination is established. If discrimination is
established then the enquiry is whether the discrimination
is unfair.
If the discrimination is found on a specified ground then the
unfairness is presumed. If the discrimination is found
to be unfair a
determination is necessary to find whether the conduct can be
justified under the limitation clause.
Does the
differentiation amount to discrimination?
[67]
Section 9 of the Constitution reads as follows:
“
9.
Equality
(1)
Everyone is equal before the law and has the right to equal
protection and benefit of the
law.
(2)
Equality includes the full and equal enjoyment of all rights and
freedoms. To promote the
achievement of equality, legislative and
other
measures designed to
protect or advance persons, or categories of persons, disadvantaged
by unfair discrimination may be taken.
(3)
The state may not unfairly discriminate directly or indirectly
against anyone on one or
more grounds, including race, gender, sex,
pregnancy, marital status, ethnic or social origin, colour, sexual
orientation, age,
disability, religion, conscience, belief, culture,
language and birth.
(4)
No person may unfairly discriminate directly or indirectly against
anyone on one or more
grounds in terms of subsection (3). National
legislation must be enacted to prevent or prohibit unfair
discrimination.
(5)
Discrimination on one or more of the grounds listed in subsection (3)
is unfair unless it
is established that the discrimination is fair.”
[68]
Accepting that there is a scant denial of infringement of Gaum’s
rights in the opposition,
we move onto whether the differentiation
amounts to discrimination. The Church is differentiating between
members of the Church
that are heterosexual and members of the
LGBTIQA+ community [s9 (4)]. This differentiation is on one of
the grounds listed
in s9 (3) - sexual orientation. This
differentiation constitutes discrimination that is presumed to be
unfair in terms of s9 (5).
Is
the discrimination, notwithstanding the presumption under s 9(3),
fair?
[69]
Gaum is correct that in the opposition to the application the Church
has set out no facts as
to why the discrimination is fair. This of
course defeats the purpose of opposition, especially in view of the
presumption of unfairness.
Facts setting out why the discrimination
is fair must be set out in the opposition, not for the first time in
the heads of argument.
Gaum obviously contended that due to this
vacuum in the opposition, the gauntlet has run and the court must
accept that the 2016
decision did unfairly discriminate. Parties must
not have a
laisse
fair
attitude to opposition in these matters, trusting argument will save
them. Although no party before us has thus asserted
that the
discrimination is fair, the Church is rescued with the finding by the
Constitutional Court that even though no party had
submitted that the
discrimination was fair, “
the
Court must still be satisfied, on a consideration of all the
circumstances, that fairness has not been established.”
[56]
[70]
To determine the unfairness of discrimination, the determining factor
is the impact on the members
of the affected group. Another factor is
whether the discrimination is on a specified ground.
[57]
Dignity is an underlying consideration in the determination of
fairness. The nature of the action and the purpose sought
to be
achieved by it must be considered. If the aim and purpose is a worthy
and important societal goal, depending on the facts,
it may have a
significant bearing on the question whether complainants have in fact
suffered the impairment in question.
[71]
The constitutional guarantee of equality must be interpreted
contextually; the society South
Africa was, against the type of
society the Constitution has set itself. Sensitivity to the nature of
history and a refined dignity-centred
analysis of unfair
discrimination will help to eradicate discrimination in our society
and will allow courts to utilise the constitutional
value of equality
as a process towards the goal of an equal society.
[72]
In five judgments of the Constitutional Court, four unambiguous
features of the context in which
the prohibition against unfair
discrimination on grounds of sexual orientation must be analysed were
set out:
“…
The
first is that South Africa has a multitude of family formations that
are evolving rapidly as our society develops, so that it
is
inappropriate to entrench any particular form as the only socially
and legally acceptable one. The second is the existence
of an
imperative constitutional need to acknowledge the long history
in our country and abroad of marginalisation and persecution
of gays
and lesbians, that is, of persons who had the same general
characteristics as the rest of the population, save for the
fact that
their sexual orientation was such that they expressed erotic desire
and affinity for individuals of their own sex, and
were socially
defined as homosexual. The third is that although a number of
breakthroughs have been made in particular areas,
there is no
comprehensive legal regulation of the family law rights of gays and
lesbians. Finally, our Constitution represents
a radical rupture with
a past based on intolerance and exclusion, and the movement forward
to the acceptance of the need to develop
a society based on equality
and respect by all for all. Small gestures in favour of
equality, however meaningful, are not
enough. In the memorable words
of Mahomed J:
‘
In some
countries, the Constitution only formalises, in a legal instrument, a
historical consensus of values and aspirations evolved
incrementally
from a stable and unbroken past to accommodate the needs of the
future. The South African Constitution is different:
it retains from
the past only what is defensible and represents a decisive break
from, and a ringing rejection of, that part
of the past which is
disgracefully racist, authoritarian, insular, and repressive, and a
vigorous identification of and commitment
to a democratic,
universalistic, caring and aspirationally egalitarian ethos expressly
articulated in the Constitution. The contrast
between the past which
it repudiates and the future to which it seeks to commit the nation
is stark and dramatic.’”
[58]
[73]
In this matter the question to be answered is did the LGBTIQA+
community suffer inequality in
the pre-constitutional South Africa
and still today. The answer is an overwhelming “
yes”
and
best expressed in the judgment of Cameron JA:
The
sting of the past and continuing discrimination against both gays and
lesbians lies in the message it conveys, namely, that
viewed as
individuals or in their same-sex relationships, they do not have the
inherent dignity and are not worthy of the human
respect possessed by
and accorded to heterosexuals and their relationships. This denies to
gays and lesbians that which is foundational
to our Constitution and
the concepts of equality and dignity, namely that all persons have
the same inherent worth and dignity,
whatever their other differences
may be.
”
[59]
The discrimination complained about is furthermore a specified
ground in s9 (3). This part of the enquiry renders the discrimination
unfair.
[74]
The differentiation caused by the 2016 decision does inherently
diminish the dignity of Gaum
because same-sex relationships are
tainted as being unworthy of mainstream church ceremonies and persons
in a same-sex relationship
cannot be a Minister in the Church.
The impairment of the fundamental dignity of Gaum as human beings is
a given, but need
not be proven by Gaum due to the discrimination
being founded on a listed ground.
[75]
The nature of the action and the purpose sought to be achieved by it
must be considered. The
Church was split on its interpretation
of the Bible pertaining to same-sex marriages and leadership in the
Church based on sexual
orientation. There are thus two
mainstreams in the Church pertaining to this question of same-sex
marriages and leadership.
Many members of the Church could live
with its 2015 decision and many members could not. It is obviously
not asked of this Court
to decide whether the 2015 or 2016 decision
is correct. What the court can take cognisance of is that not only
Gaum “
accepted”
the 2015 decision, but also many
members of the Church. This is not a matter where Gaum is the outcast
community that differ on
doctrine and expect the majority to fall in
with their exclusive view on sexual orientation. It can be
accepted that the
Church honestly and sincerely hold certain
religious views, but from the split in the vote it is clear it is not
an umbrella view.
From the
gravamen
, without resorting to the
content, the submissions against the 2015 decision and the
submissions in support thereof and the 2015
decision itself, it is
clear there can be an argument made out for and against the 2016
decision. Practically the Church is allowing
the LGBTIQA+ Community
to be members of the Church, but excluding them from leadership
positions and from a marriage ceremony.
[76]
The purpose of the meeting was to discuss sexual orientation in the
Church pertaining to marriage
and the position of a Minister. The
result of the 2016 decision was to exclude the LGBTIQA+ community
from marrying in the
Church and that no member of the community could
become a Minister of the Church. The purpose is thus exclusion, not
from the Church,
but from a leadership position in Church and a
Church wedding ceremony.
[77]
Both Gaum and the Church relied on the matter of
Minister of Home
Affairs v Fourie and Another
[2005] ZACC 19
;
2006 (1) SA 524
(CC) in support of
their views. The Church conceded that the paragraphs relied on are
obiter
, but should be persuasive to this Court. It is
necessary to quote the passages relied on. The Church relied on:
“
For many
believers, their religion goes beyond protecting the inviolability of
the individual conscience. For many believers, their
relationship
with God or creation is central to all their activities. It concerns
their capacity to relate in an intensely meaningful
fashion to their
sense of themselves, their capacity to relate in an intensely
meaningful fashion to their sense of themselves,
their community and
their universe. For millions in all walks of life, religion provides
support and nurture and a framework for
individual and social
stability and growth. Religious belief has the capacity to awaken
concepts of self-worth and human dignity
that form the cornerstone of
human rights. Such belief affects the believer’s view of
society and founds a distinction between
right and wrong
…“
[60]
And:
“
Religious
organisations constitute important sectors of notional life and
accordingly have a right to express themselves to government
and the
courts on the great issues of the day. They are active participants
in public affairs fully entitled to have their say
with regard to the
way law is made and applied.”
[61]
And:
“
Furthermore, in
relation to the extensive notional debates concerning rights for
homosexuals, it needs to be acknowledged that though
religious strife
may have produced its own form of intolerance, and religion may have
been used in this country to justify the
most egregious forms of
racial discrimination, it would be wrong and unhelpful to dismiss
opposition to homosexuality on religious
grounds simply as an
expression of bigotry to be equated to racism.”
[62]
And:
When considering section
31 of the Marriage Act 25 of 1961 in para 97 of the judgment, the
following was stated: “
The effect of this provision is that
no minister of religion could be compelled to solemnise a same-sex
marriage if such marriage
would not conform to the doctrines of the
religion concerned.”
Gaum relied on:
“
It is one thing
for the Court to acknowledge the important role that religion plays
in our public life. It is quite another to use
religious doctrine as
a source for interpreting the Constitution. It would be out of order
to employ the religious sentiments of
some as a guide to the
constitutional rights of others. Between and within religions there
are vastly different and at times highly
disputed views on how to
respond to the fact that members of their congregations and clergy
are themselves homosexual. Judges would
be placed in an intolerable
situation if they were called upon to construe religious texts and
take side on issues which have caused
deep schisms within religious
bodies.”
[63]
“…
whether
or not the Biblical texts support his beliefs would certainly not be
a question which this Court could entertain. From a
constitutional
point of view, what matters is for the Court to ensure that he be
protected in his right to regard marriage as sacramental,
to belong
to a religious community that celebrated its marriages according to
its own doctrinal tenets and to be free to express
his views in an
appropriate manner both in public and in Court. Further than that the
Court could not be expected to go.”
[64]
In an 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. Provided
there is no prejudice to the fundamental rights of any person or
group, the law will legitimately acknowledge
a diversity of
strong-held opinions on matters of great public controversy. I stress
the qualification that there must be no prejudice
to basic rights.
Majoritarian opinion can often be harsh to minorities that exist
outside mainstream. It is precisely the function
of the Constitution
and the law to step in and counteract rather than reinforce unfair
discrimination against a minority. The test,
whether majoritarian or
minoritarian positions are involved, must always be whether the
measure under scrutiny promotes or retards
the achievement of human
dignity, equality and freedom.”
[65]
[All the footnotes in the passages
have been omitted].
[78]
Churches and religion play an important role in public life as Sachs
J eloquently expressed in
paragraphs 89 and 90 of
Fourie
supra
.
Our Constitution protects an individual’s rights to practise
religion of choice in association with others and in
conformity of
the Creed of that religion. Furthermore, a Court must
recognise the sphere in which the sacred exists
and respect the
co-existence between the secular and the sacred, not forcing the one
into the other. The determination of who is
morally and religiously
fit to be a Minister or who should be excluded for non-conformity
with the dictates of the religion, falls
within the core religious
functions.
[66]
This
Court is not asked to decide doctrine. The problem is that the
moment a Church steps into a Court, Court rules
and the application
of the law of the land is to be applied by the courts. In
this matter the Bill of Rights is invoked
and it is wrong to then
employ the religious sentiments of some as a guide to the
constitutional rights of others. The sacred is
forced into the
secular when there is prejudice to basic rights contained in the Bill
of Rights; unfair discrimination with no
supportive evidence of
fairness renders the supreme law, the Constitution to be upheld. When
courts need to address issues of discrimination,
Courts do not weigh
up the right to sexual orientation to that of religious freedom.
[79]
A further factor to consider is whether the primary purpose of the
Church’s action is to
achieve a worthy and important societal
goal. The Church did not put up any facts as to why the 2016 decision
was a worthy and
important societal goal. The decision sustained the
views of the majority of the Church, but not the minority or the
greater society
in any way.
[80]
It is important to take into consideration that our Constitution
supports a substantive concept
of equality as expressed in s9 (2)
that “
equality includes the full and equal enjoyment of all
rights and freedom.”
The 2016 decision denies Gaum the full
and equal enjoyment of all the rights and freedom of the Church.
[81]
Constitutional interpretation of s9 also requires a substantive
conception of equality. A Court
must thus develop: “
a
concept of unfair discrimination which recognises that although a
society which affords each human being equal treatment on the
basis
of equal worth and freedom, we cannot achieve that goal by insisting
upon identical treatment in all circumstances before
that goal is
achieved. Each case, therefore, will require a careful and thorough
understanding of the impact of the discriminatory
action upon the
particular people concerned to determine whether its overall impact
is one which furthers the constitutional goal
of equality or not. A
classification which is unfair in one context may not necessarily be
unfair in a different context.”
[67]
The Church presented no argument or facts setting out that the
overall impact does further the constitutional goal of equality
or
that in this context the exclusion is fair. Gaum is a minority that
has suffered severely. In the context, a majority decision
pursuant
to differences of opinion pertaining to the Church’s Creed on
this matter does not further the constitutional goal
of equality and
is unfair. It is unfair to exclude members of the Church of their
full and equal enjoyment of all rights and freedom
the Church offers.
[82]
This Court has decided the unfair or fairness of the discrimination
in terms of the Constitution.
In the heads of argument the Church
relied on s14 (2) and 14(3) of the Equity Act. This Court was however
not sitting as an Equality
Court. However if this Court must look to
section 14(2) and 14(3) of the Equity Act, without any facts set out
in the Church’s
opposition as to why in terms of the factors
listed the discrimination is fair, then the Church has not proven
that the discrimination
is fair. In considering the factors, the
impairment of dignity of Gaum speaks for itself. The impact is clear,
members of a congregation
cannot marry in their congregation. The
answer to this in the opposition is that Gaum can go to another
Church to get married,
i.e. become a member of another denomination,
which amounts to unfair discrimination. Gaum individually, and as a
group, did suffer
patterns of disadvantage. The 2016 decision does
not accommodate diversity. The discrimination is on the prohibitive
grounds of
equality and sexual orientation impacting on the nature
and extent of the discrimination. The 2015 decision is an
example
of a less restrictive and less disadvantageous means to
achieve the Church’s purpose. The Church submitted that the
legitimate
purpose of the decision was to balance rights. Nothing in
our jurisprudence requires rights to be offset against each other.
The Church relied on no facts or factors rendering the discrimination
reasonable and justifiable. The only fairness referred to
is the
balancing of the rights and reliance on the quoted passages of
Fourie
. At the risk of repetition, there is no balancing
of rights.
Amicus
Submissions
[83]
Before turning to the question of justification we find it pragmatic
to entertain the argument
of the admitted
amicus
,
The Alliance defending the Autonomy of Churches in South Africa
[ADACSA]
[68]
herein. ADACSA
raised submissions in defence of the established autonomy of churches
and religious groupings to set their own doctrine
and govern in
accordance with their interpretation of their religious texts. It was
submitted that sections 15, 18 and 31 of the
Constitution guarantees
religious institutions a certain degree of institutional autonomy,
vital to a conscience-honouring society.
Religious institutions thus
have the right to decide doctrine and matters of governance
internally. State inference should only
be to protect vulnerable
members from serious harm, not from moral claims that the political
community rejects. Because the Constitution
does not recognise a
hierarchy of rights the starting point is to not see the rights as
contradicting one another, but harmonising
the rights and with proper
interpretation to reconcile them with one another. This is specially
so because religion itself is an
equality right; in this matter two
competing conceptions of equality; sexual orientation and religious
freedom. Where the central
issue is that of doctrine of the Church to
strike an appropriate balance between these two rights is allowing
the Church to discriminate.
The right to religious freedom must
protect more strenuously those doctrines that lie at the heart of
ecclesiastical concern.
[84]
To balance the rights the Court must recognize that the institution
of marriage is sacred to
the Church. To alter the Church’s
understanding of marriage is compelling the Church and its members to
accept a definition
of marriage that is contrary to their religious
beliefs. When balancing the Court must dismiss Gaum’s
application because
the 2016 decision is constitutionally protected
under s15 of the Constitution. Ministers are responsible for the
protecting and
teaching of the Church’s doctrines. Gaum cannot
demand a position of spiritual leadership whilst refusing to conform
to the
tenets of its religion. Gaum are still members of the Church
leaving their associational rights in place. The only restriction is
that they adhere to the Church’s doctrinal tenets; a reasonable
restriction.
[85]
ADACSA
emphasises that section 15 (1) of the Constitution guarantees freedom
of conscience, thought, belief and opinion, as fundamental
human
rights. Further, that freedom of religion includes the right to
entertain religious beliefs of one’s choice, to declare
those
beliefs openly and without fear of hindrance, and to manifest those
beliefs through worship, practice, teaching and discrimination
–
both individually and in association with a community of others.
[69]
It also requires that religious observers are not forced to act, or
refrain from acting in a manner contrary to their beliefs.
[70]
[86]
The
communal aspect of freedom of religion is expressly recognised by
section 31 of the Constitution which protects the rights of
persons
belonging to, inter alia, a religious community, practice their
religion and form, join and maintain religious association
without
interference by the State.
[71]
The right to “maintain” religious institutions includes
the right to exclude non-adherents from membership or leadership
of
those institutions.
[72]
[87]
One
other important submission by the ADACSA is that section 18 of the
Constitution guarantees an individual the right to choose
his or her
associates, and a group of individuals their rights to choose their
associates. The right of a group to choose their
associates of
necessity means the right to require those who wish to join the group
to conform their behaviour to certain dictates,
and the right to
exclude those who refuse to conform. The right to freedom of
association implies that individuals, who voluntarily
commit
themselves to a religious institution’s rules and
decision-making bodies, should be prepared to accept the outcome
and
doctrinal decisions made by those bodies in accordance with their
internal regulations and procedures.
[73]
One must also emphasise that the decisions of these bodies must also
comply with the constitutional principle of legality and procedural
fairness as espoused in PAJA.
[88]
This
amicus
relied
heavily on international law and foreign law. The decision of
the European Court of Human Rights in
Hasan
and Chaush v Bulgaria
no 30985/96 dated 26 October 2000 at para 62 developed the
complimentary principles of State neutrality and church autonomy.
This
principle was upheld in the seminal case of
Nagy
v Hungary
5666/09. In Canadian jurisprudence the reasonable restriction
as proffered by ADACSA is ascribed. The European Court
of Human
Rights has emphasised the State’s role is that of neutral and
impartial organiser of the practice of religions and
that this
neutral role is conducive to public order, religious harmony and
tolerance in a democratic society, particularly between
opposing
groups.
[74]
The European
Court of Human Rights has made it clear that it is not the task of
the State to act as arbitrator between religious
communities and the
various dissident factions that exist nor can it justify State action
imposing unity by force in a deeply divided
religious community.
[75]
In the USA the Supreme Court upholds the ministerial exception
doctrine that is grounded in the First Amendment of the US
Constitution. The purpose of this exception ensures that the
authority to select and control who will minister to the faithful
is
a matter strictly ecclesiastical.
[89]
There is duty upon a Court to consider international law when
interpreting the Bill of Rights.
Although not all the foreign law
referred to is discussed herein, the matters were considered.
Although international law and foreign
law are helpful to interpret
the Bill of Rights, the South African context is paramount. In the
matter of
Nagy
v Hungary
[76]
Hungary
had an Act, Act no. IV of 1990 on the Freedom of Conscience and
Religion and on Churches. Section 60(3) of the Hungary Constitution
prohibited State interference with religious issues and the internal
affairs of churches. This already renders any comparison untenable.
[90]
The submission that the correct approach and sound analysis to this
matter requires the Court
to attempt to reconcile the rights in
issue, but with a presumption in favour of diversity, is not
supported by South African case-law.
There is a plea that a legal
presumption in favour of associational diversity be used in the
adjudication of rights conflicts rendering
a fairer treatment of
diversity and difference in Constitutional democracies. An approach
to rights adjudication based on this
presumption and informed by this
attitude will promote greater diversity and better fit in religious
disputes. There is criticism
that equality, victimhood and vulnerable
minority have laid the groundwork for the totalist use of the law,
thereby marginalizing
religion. Associational diversity requires
various viewpoints to co-exist in the state. Courts must resist the
temptation to prescribe
a set of views and in so doing reduce the
diversity of beliefs. Equality is not uniformity but an acceptance of
difference.
[77]
[91]
There is an argument to be made that a Court cannot prescribe who
must be appointed as a Minister
in a Church. But, if a member of the
Church is permitted to study to become a Minister in that Church, but
disallowed to engage
in his or her profession only due to the fact
that he or she would be in same sex relationship there is an inherent
contradiction
in the conduct of the Church. This is just an
observation because this Court cannot apply the test suggested by
this amicus to
decide this matter. The test in Harkson
[78]
has consistently been applied and is to be applied by this Court.
The submissions, although well-presented, well-reasoned
and
well-supported by international law is to be dismissed.
Can the Church’s
decision be justified under the limitation clause?
[92]
In the opposition no facts were set out justifying the decision in
terms of section 36 of the
Church. In argument for the Church it was
submitted that justification does not come into play. The threshold
requirement in section
36 of the Constitution is that any limitation
of a fundamental right must be “
law of general application
…”
Where a church discriminates, it constitutes
private discrimination, with the law of general application not
likely to apply.
Justification is not applicable and no
decision has to be made if there was justification for the unfair
discrimination. In terms
of section 14 of the Equity Act only
fairness, not justification, is considered.
Costs
[93]
On behalf of Gaum the Court was requested to apply the principle set
out in
Biowatch Trust v Registrar, Genetic Resources
2009 (6)
SA 232
(CC) [“
Biowatch
”] which would result in
this matter that if the application is granted costs of suit
should follow the event, including
the costs of three counsel (where
incurred). Conversely, if the application is dismissed there ought to
be no order as to costs.
It was argued that the Church was dealing
with a function of the State; performing marriages and therefore
Biowatch
is applicable. Although
Biowatch
did not deal
with Constitutional issues, but these are important fundamental human
rights issues and the
Biowatch
principle is a useful guide
when exercising the Court’s discretion. The delay caused
by the Church in the litigation
is a further factor as to why Gaum
would be entitled to costs.
[94]
The Church submitted that the
Biowatch
principle was not
applicable because the litigation is between private parties, one
party not being the State. It was argued that
the costs should follow
the result. As for conceding prayers 4 and 5, the Court’s
discretion can be exercised to pursuant
to concession awarding the
costs thereafter on an unopposed scale.
[95]
For the purposes of this judgment it is not necessary to entertain
the
Biowatch
principle, distinguish it or by analogy apply it.
Gaum requests the costs if the application is granted and the Church
submitted
the costs should follow the result. In this instance it
boils down to the same request; Gaum must be awarded the costs. Gaum
abandoned
prayers 6 and 7 and the Church did not oppose the granting
of prayers 4 and 5. In view thereof no special orders of costs on
opposed
scale up to a certain date is to be made. As for the
admitted
amicus
no cost order is made.
[96]
The following order is made:
1.
The
decision on same-sex relationships adopted during the extraordinary
meeting of the General Synod of the Dutch Reformed Church
during 7-10
November 2016 is declared unlawful and invalid.
2.
This
decision is reviewed and set aside.
3.
The
decision by the appeal body constituted by the General Task Team
Legal Affairs of the Dutch Reformed Church upholding appeals
against
the decision on same-sex relationships of the General Synod of the
Dutch Reformed Church adopted on 30 October 2015 is
declared unlawful
and invalid.
4.
This
decision is reviewed and set aside.
5.
The
first, second, third, fourth, fifth and sixth respondents are to
carry the costs, jointly and severally the one to pay the other
to be
absolved.
6.
The
costs ordered include the costs of three counsel, (where occurred).
T.J.
RAULINGA
JUDGE
OF THE HIGH COURT
I
agree
S.
POTTERILL
JUDGE
OF THE HIGH COURT
I
agree
D.S.
MOLEFE
JUDGE
OF THE HIGH COURT
CASE
NO: 40819/17
HEARD
ON: 21 August 2018
FOR
THE APPLICANTS:
ADV. J.J. GAUNTLESS SC QC
ADV. F.B. PELSER
ADV. M. GAUM
INSTRUCTED
BY:
Baker & McKenzie
FOR
THE 1ST TO 6TH RESPONDENTS:
ADV. S.F. BURGER SC
ADV. D.P. BORGSTRÖM
ADV. P.J. OLIVIER
INSTRUCTED
BY:
Couzyn Hertzog & Horak
FOR
THE 7TH RESPONDENTS:
ADV. W.R. MOKHARE SC
ADV. M. ZONDO
INSTRUCTED
BY:
State Attorney, Pretoria
FOR
THE 1ST AMICUS CURIAE:
ADV. N. DE JAGER
ADV. T. PHEHANE-RAMETSE
INSTRUCTED BY:
Norton Rose Fulbright South Africa Inc.
FOR
THE 2ND AMICUS CURIAE:
ADV. R. WILLIS
INSTRUCTED
BY:
Maphalla Mokate Conradie Inc.
DATE
OF JUDGMENT: 8 March 2019
[1]
Article 43.1.1 of the Church Order
[2]
[2001] ZACC 9
;
2002 (1) SA 429
(CC) at para 31
[3]
2013 (6) SA 450
SCA at para 72
[4]
2001 (1) SA 1
(CC) at 27H-28B
[5]
Moloi and others v Vogers N.O 2016 (30 SA 370 (CC)
[6]
2002 (5) SA 719 (CC)
[7]
See Stephen Ellis and
Gerrie ter Haar, Worlds of Power: Religious Thought and Political
Practice in Africa (Hurst and Company,
2003)
[8]
See
Sachs J in
Christian
Education South Africa v Minister of Education
[2000] ZACC 11
;
2000 (4) SA 757
(CC)
at
paragraph 35: “
The
underlying problem in any open and democratic society based on human
dignity, equality and freedom and in which conscientious
and
religious freedom has to be regarded with appropriate seriousness,
is how far such democracy can and must go in allowing
members of
religious communities to define for themselves which laws they will
obey and which not. Such a society can cohere
only if all its
participants accept that certain basic norms and standards are
binding. Accordingly, believers cannot claim an
automatic right to
be exempted by their beliefs from the laws of the land. At the same
time, the State should, wherever reasonably
possible, seek to avoid
putting believers to extremely painful and intensely burdensome
choices of either being true to their
faith or else respectful of
the law.”
[9]
E Nwauche ‘The Religious
Question and the South African Constitutional Court: Justice Ngcobo
in
Prince
and
De Lange’
South African
Public Law https://upjournals.co.za/index.php/SAPL/index Volume 32,
number 1 and 2, 2017, pages 4.
[10]
Supra 8
[11]
Supra 8
[12]
Prince
(supra)
[13]
De Freitas “
Doctrinal Sanction and the Protection of the
Rights of Religious Associations: Ecclesia De Lange v The
Presiding Bishop
of the Methodist Church of Southern Africa
(726/13)
[2014] ZASCA 15
”
Potchefstroom Electronic Law Journal PELJ
2016(19) – 1-22 at 14
[14]
Supra 8
[15]
Supra.
E
Nwauche suggests that there are two types of deference one being
simple and substantial that allow the courts to engage with
issues
of religious freedom and the other being exclusive or total
deference which comes down to immunity from judicial scrutiny
in
which a court would not even engage in a rights based enquire
[16]
11 Section 15 of the Constitution
of the Republic of South Africa, 1996
[17]
Section 9 (3) of the Constitution of the Republic of South Africa,
1996
[18]
See
Taylor v Kurtstag and Others
2005 (1) SA 362
(W)
and
Wittman v Deutsche Schulverein, Pretoria
1998 (4) SA 423
(T)
in
which the court accepts 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
[19]
S Woolman & D Zeffertt ‘Judging Jews: Court interrogation
of rule-making and decision-taking by Jewish ecclesiastical
bodies’
(2012) SAJHR 196
at 205.
[20]
NI Moleya ‘Equality for all religions
and culture in the South African Legal System, 1 July 2018, De Rebus
DR 30 in which
the author raises his concern in regard to the courts
scrutiny of cultural practices as well as other not well known
religious
practices whilst widely accepted / well-known religious
practices are elevated to be above the law due to the acceptance of
the
doctrine of entanglement. The author rightly points out that
certain cultural practices are based on religious practices however,
cultural practices are not shielded from constitutional permeation
as in the case of religious associations and related practices.
[21]
1997 (2) SA 690
(C). See also
Allen and Others NNO v Gibbs and
Others
1977 (3) SA 212
(SE)
where the religious question was
recognised and held that it was inappropriate to adjudicate on
doctrinal issues.
[22]
At 703D-E–E-F.
[23]
Right to privacy in terms of the Constitution
of the Republic of South Africa, 1996.
[24]
See also
Mnkatshu
v Old Apostolic Church of Africa and Others
1994 (2) SA 458
(TkA)
where
it was similarly concluded that the court will not interfere in
religious questions.
[25]
726/13)
[2014] ZASCA 151
(29 September 2014).
The matter went on appeal to the Constitutional Court and was
subsequently dismissed, see
De Lange
v Methodist Church and Another
2016 (2) SA 1
(CC).
[26]
Manong & Associates (Pty) Ltd v Department of Roads and
Transport, Eastern Cape and Others, Eastern Cape (no 2)
2009 (6)
SA 589
(SCA) par 57
[27]
Minister of Environmental Affairs and Tourism v George and
Another
2007 (3) SA 62
(SCA) par [17] and
Manong supra
par
[53]
[28]
Manong
matter
supra
par 67.
[29]
George
matter
supra
par [17] and
Qwelane v Minister
of Justice and Constitutional Development and Others
2015 (2) SA
493
(GJ)
[30]
Constitution of the Republic of South Africa, Act No 108 of 1996
[31]
Minister of Health and Another NO v New Clicks South Africa (Pty)
Ltd
2006 (2) SA 311
(CC) para 96
[32]
Par [65]
[33]
De Lange CC
par [65]
[34]
Calibre Clinical Consultants (Pty) Ltd and Another v National
Bargaining Council for the Road Freight Industry and Another
2010
(5) SA 457 (SCA)
[35]
Calibre
par [39]
[36]
De Vos v Ringskommissie die van die Ring van die NG Kerk,
Bloemfontein … and Odendaal v Kerkraad van die Gemeente
Bloemfontein-Wes
van die NG Kerk in OVS; Theron v Ring van
Wellington van die NG Sendingkerk in Suid-Afrika
1976 (2) SA 1
(A)
[37]
“
19.1.1 Besluite van kerklike vergaderings is
bindend, maar dit kan herroep, gewysig of vervang word by wyse van
revisie,
appèl, beswaar of gravamen.
19.1.1.1 Revisie/hersiening behels die
hersiening van ‘n besluit tydens dieselfde of ‘n
volgende
vergadering op versoek van ‘n lid van die
vergadering.
19.1.1.2 Appèl en beswaar behels
‘n beroep op ‘n meerdere vergadering wanneer ‘n
lidmaat en/of kerkvergadering verontreg voel oor ‘n mindere
kerkvergadering se besluit.
19.1.1.3 Gravamen word gebruik om op die
Algemene Sinode ‘n ernstige beroep te maak om ‘n
beslissing
in sake die leer van die Kerk.”
[38]
LLBG1
[39]
“
8. REVISIE
8.1 Besluite wat geneem is,
mag alleen na voorafgaande kennisgewing en met die toestemming van
die vergadering op ‘n tyd deur die Moderatuur bepaal, in
revisie geneem word.
8.2 Kennisgewing
van revisie:
8.2.1 Revisie kan toegestaan word
indien oortuigend aangevoer word dat
8.2.1.1 in die bespreking van die saak waarom dit
gaan in die vergadering aan sekere aspekte daarvan glad nie of nie
voldoende aandag gegee is nie; en/of
8.2.1.2 daar later inligting na vore gekom het wat
hersiening van die besluit noodsaaklik maak.
8.2.2 Elke kennisgewing van revisie word
na die Tydelike Taakspan Regte verwys.
8.2.3 Die aansoeker stel die rede(s) vir die
aansoek om revisie aan die Tydelike Taakspan Regte.
8.2.4 Die Tydelike Taakspan Regte doen ‘n
aanbeveling aan die vergadering ten opsigte van elke kennisgewing
van revisie.
8.2.5 Die vergadering bslis met meerderheidstem
of die revisie toegestaan word. Indien toegestaan, word
die
saak weer oopgestel vir bespreking en kan die vergadering tot ‘n
ander besluit kom of die vorige besluit gehandhaaf
word.”
[40]
“
Die voorsitter reël dat daar nie oor die Appèlliggaam
se besluit gepraat word nie. Dit is ‘n gegewe.
Dit
is buite die vergadering se bevoegdheid om dit te hanteer”
–
Minute of the meeting (p74 of the application)
[41]
Kruger v The President of the Republic of South Africa
2009
(1) SA 417 (CC)
[42]
p74
[43]
Regulation 19.1.1.2 “’
n beroep op ‘n meerdere
vergadering wanneer ‘n lidmaat en/of kerkvergadering verontreg
voel oor ‘n mindere kervergadering
se besluit”
[44]
Regulation 19.1.1.1
supra
[45]
Paragraph 61.4
[46]
Paragraph 9 Regulation 19
supra
[47]
“
Die Algemene Sinode bied hierdie besluite oor
selfdegeslagverhoudings aan met nederigheid na ‘n ernstige
soektog en as die
beste toepassing van die boodskap van die Bybel
soos ons dit tans verstaan. Die Algemene Sinode versoek
lidmate, gemeentes
en kerkvergaderings om weereens op ‘n
selfstandige soekproses na die toepassing van die boodskap van die
Bybel hieroor
te gaan. In die soektog kan studiestukke van die
Algemene Sinoge (sic) van 2007, 2011, 2013 en 2015 ernstig gelees
word.
In ooreenstemming met die NGB Art 2 behoort die
besondere en algemene openbaring gebruik te word, dws die beste
huidige menswetenskaplike
bevindings”
(par 8 on p447 of
the application)
[48]
Corruption Watch NPC v President of the Republic of South Africa
[2018] ZACC (13 August 2018) at paragraph 33
[49]
Section 10 of the Constitution
[50]
Section 18 of the Constitution
[51]
Section 15 of the Constitution
[52]
Paragraph 20 of founding affidavit
[53]
Paragraph 102 of respondent’s heads
[54]
Of the answering affidavit p254
[55]
National Coalition for Gay and Lesbian Equality and Another v
Minister of Justice and Others
1999 (1) SA 6 (CC)
[56]
National Coalition for Gay and Lesbian supra
para 18
[57]
Harkson supra
para 41
[58]
Minister of Home Affairs v Fourie supra
para 59
[59]
Fourie and Another v Minister of Home Affairs and Others
2005
(3) SA 429
(SCA) par [13]
[60]
Paragraph 89
[61]
Fourie
matter
supra
para 90
[62]
Para 91
[63]
Para 92
[64]
Para 93
[65]
Para 94
[66]
De Lange
Supreme Court of Appeal matter par 31
[67]
President of the Republic of South Africa v Hugo
1997 (4) SA
1
(CC) para 41
[68]
“
The Second amicus curiae is the Alliance Defending the
Autonomy of Churches in South Africa (“ADACSA”) or “the
Alliance”), a universitas personarum and separate legal entity
with perpetual succession and rights and duties separate
and
independent from the rights and duties of its members in terms of
its Constitution. In terms of its Constitution, ADACSA
was
established, inter alia, to achieve the following objectives:
(1) defending and protecting the autonomy of churches
in South
Africa, including specifically the ability of each denomination,
church and religious grouping to set their own doctrine
and to
govern their internal affairs according to their interpretation of
their religious texts; and (2) to intervene in,
oppose and if
necessary institute, legal proceedings against any authorised or
unauthorized activity that may pose a threat to
the interests of the
area of concern and the Alliance. The majority of
organisations making up the Alliance, are denominations
and
churches. The remaining organisations (who are not
denominations or churches) in the Alliance, equally support –
and are actively engaged in – defending and protecting the
autonomy of churches in South Africa. The (growing number
of)
organisations making up the Alliance, stand to be
directly
affected
by a decision on the substantive review grounds”
– footnote 3 of ADACSA’s heads of argument (p146 of
heads of argument bundle)
[69]
See
S v
Lawrence; S v Nagel; S v Solberg
1997 (4) SA 1176
(CC)
para 92, citing Canadian case of R v Big in Brug Mart
[1995] 1 SCR
295
at 336. See also
Prince v President, Cape Law Society and
others
[2000] ZACC 28
;
2001 (2) SA 388
(CC) para 38.
[70]
Christian Education South Africa v Minister of Education
[2000] ZACC 11
;
2000
(4) SA 757
(CC) paras 19-24
[71]
Prince
(supra) at para 39
[72]
T
aylor v Kurstug
2005 (1) SA 363 (W)
[73]
De Lange
(supra) para 40
[74]
Sindacatul “Pastoral Cel Bun” v Romania
at para
165
[75]
Holy Synod of the Bulgarian Orthodox Church and Others
(Metropolitan Inokentiy v Bulgaria
412/03 and 35677/04 dated 22
January 2009 para 119
[76]
Paragraph [60] of the judgment
[77]
Ian T Benson
An associated Framework for the Reconciliation of
Competing Rights Claims involving the Freedom of Religion
p79
(PhD thesis)
[78]
Paragraph [40] of the judgment