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[2008] ZAEQC 1
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Strydom v Nederduitse Gereformeerde Gemeente Moreleta Park (26926/05) [2008] ZAEQC 1; (2009) 30 ILJ 868 (EqC) (27 August 2008)

IN THE EQUALITY COURT OF SOUTH
AFRICA
(TRANSVAAL PROVINCIAL DIVISION)
Case number: 26926/05
DATE:27/08/2008
In the matter between:
JOHAN DANIEL
STRYDOM
...................................................................
Complainant
and
NEDERDUITSE GEREFORMEERDE
GEMEENTE MORELETA
PARK
…........................................................
Respondent
JUDGMENT
BASSON, J
The complainant, Mr Johan Daniel
Strydom, has instituted proceedings in terms of the Promotion of
Equality and Prevention of Unfair
Discrimination Act, 4 of 2000
(also referred to as “
PEPUDA
” or “
the
Act
”) alleging that the respondent, the Nederduitse
Gereformeerde Gemeente Moreleta Park (also referred to as “
the
church”
), has unfairly discriminated against him on the
ground of his homosexual orientation. The complainant worked as an
independent
contractor (also called a “
contract worker
”)
in the so-called “
kunste-akademie
” of the church,
teaching music to students. The complainant alleges that his
contract was terminated by the church on the
ground of his sexual
orientation.
The objects of the Act are,
inter
alia
, to enact legislation required by section 9 of the
Constitution (that is, the Constitution of South Africa Act, Act 108
of 1996);
to give effect to the letter and spirit of the
Constitution, in particular – the equal enjoyment of all
rights and freedoms
by every person;
the promotion of equality
;
the prevention of unfair discrimination and protection of human
dignity as contemplated in sections 9 and 10 of the Constitution
;
to provide for procedures for the determination of circumstances
under which discrimination is unfair; and to provide remedies
for
victims of unfair discrimination. See section 2 of the Act –
my underlining.
In terms of section 1 of the Act
discrimination
“
means any act or omission, including
a policy, law, rule practice, condition or situation which directly
or indirectly-
imposes burdens, obligations or
disadvantage on; or
withholds benefits, opportunities
or advantages from,
any person on one or more of the
prohibited grounds;”.
Prohibited grounds
“
are-
(a)
race, gender, sex, pregnancy, marital
status, ethnic or social origin, colour,
sexual
orientation
, age disability, religion, conscience,
belief, culture, language and birth
” (my underlining).
As far as the
burden of proof
is concerned section 13(2)(a) of the Act finds application
in
casu
:
“ If the discrimination did take place-
On a ground in
paragraph
(a)
of the definition of “prohibited grounds”,
then it is
unfair
, unless the respondent proves
that the discrimination is fair;”.
(my underlining).
In the present matter it was common
cause that the complainant’s contract with the church to
render services as a so-called
“
contract worker
”
was terminated on the basis that he was involved in a homosexual
relationship. In the event, the church unfairly discriminated

against the complainant on the basis of his sexual orientation (one
of the said prohibited grounds).
It is clear that the complainant thus
suffered disadvantage and the withholding of advantages based upon a
prohibited ground
, that is, his
sexual orientation
. In
the event, the
onus
rested on the respondent to prove that
the unfair discrimination was fair. Section 14(2) of the Act
provides as follows:
“
(2) In determining whether
the respondent has proved that the discrimination is fair, the
following must be taken into account:
the context;
the factors referred to in
subsection (3);
whether the discrimination
reasonably and justifiably differentiates between persons according
to objectively determinable criteria,
intrinsic to the activity
concerned.
(3) The factors referred to in
subsection (2) (b) include the following:
(a) Whether the discrimination
impairs or is likely to impair human dignity;
(b) the impact or likely impact of
the discrimination on the complainant;
(c) the position of the
complainant in society and whether he or she suffers from patterns of
disadvantage or belongs to a group
that suffers from such patterns of
disadvantage;
(d) the nature and extent of the
discrimination;
(e) whether the discrimination is
systemic in nature;
(f) whether the discrimination has
a legitimate purpose;
(g) whether and to what extent the
discrimination achieves its purpose;
(h) whether there are less
restrictive and less disadvantageous means to achieve the purpose;
(i) whether and to what extent the
respondent has taken such steps as being reasonable in the
circumstances to -
(i) address the disadvantage which
arises from or is related to one or more of the prohibited grounds;
or
(ii) accommodate diversity.”
The unfair discrimination
in casu
took place within the context (section 14(2)(a) above) of a church
organisation relying on the freedom of religion as entrenched
in the
Constitution to justify the unfair discrimination on the basis of
the complainant’s sexual orientation. The right
to equality of
the complainant must therefore be balanced against the freedom of
religion of the church. It was stated as follows
in Woolmer
et al
Constitutional Law of South Africa
at p 41-46:
“
Rights to religious freedom
can potentially be outweighed by other constitutionally protected
rights…Religious freedom is
apt to run up most often against
demands for equality. These demands will be most compelling with
regard to discrimination on the
basis of race, sex and sexual
orientation”.
There can be little doubt about the
importance of the right to religious freedom. It is entrenched in
terms of the Bill of Rights
in section 15 of the Constitution. It
was stated in the case of
Prins v President, Cape Law Society
and Others
[2002] ZACC 1
;
2002 (2) SA 794
(CC) at paragraph
[49]
:
“
The right to freedom of
religion is especially important for our constitutional democracy
which is based on human dignity, equality
and freedom. Our society is
diverse. It is comprised of men and women of different cultural,
social, religious and linguistic backgrounds.
Our Constitution
recognises this diversity. This is apparent in the recognition of the
different languages; the prohibition of
discrimination on the grounds
of , among other things, religion, ethnic and social origin; and the
recognition of freedom of religion
and worship. The protection of
diversity is the hallmark of a free and open society. It is the
recognition of the inherent dignity
of all human beings. Freedom is
an indispensable ingredient of human dignity”.
On the other hand, the right to
equality (protected in terms of section 9 of the Constitution) is
viewed as foundational to our
constitutional order. See
inter
alia
, in this instance the case of
Minister of Education &
Another v Syfrets Trust Ltd NO & Another
2006 (4) SA 25
(CC)
at para [30]:
“
As a cursory perusal of
constitutional jurisprudence shows, equality is not merely a
fundamental right; it is a core value of the
Constitution. This is
borne out by various provisions in the Constitution itself, which
articulate the ideal of equality”.
And at para [31]:
“
The centrality of equality
in the Constitutional value system has also repeatedly been
emphasised by the Constitutional Court. As
Moseneke J put it in
Minister of Finance and Another v Van Heerden
‘the
achievement of equality goes to the bedrock of our Constitutional
architecture. The Constitution commands us to strive
for a society
built on the democratic values of human dignity, the achievement of
equality, the advancement of human rights and
freedom. Thus the
achievement of equality is not only a guaranteed and justiciable
right in our Bill of Rights, but also a core
and fundamental value; a
standard that must inform all law and against which all law must be
tested for constitutional consonance’”.
See in general cases in the
Constitutional Court on discrimination based on sexual orientation.
For instance, the case of
National Coalition for Gay and Lesbian
Equality v Minister of Justice
1999 (1) SA 6
(CC) at para [38]:
“
As far as religious views
and influences are concerned I would repeat what was stated in S v H:
‘
There is still a substantial
body of theological thought which holds that the basic purpose of the
sexual relationship is procreation
and for that reason also
proscribes contraception. There is an equally strong body of
theological thought that no longer holds
this view. Societal
attitudes to contraception and marriages which are deliberately
childless are also changing. These changing
attitudes must inevitably
cause a change in attitudes to homosexuality.’
It would not be judicially proper
to go further than that in the absence of properly admitted expert
evidence. I think it necessary
to point out, in the context of the
present case, that apart from freedom of expression, freedom of
conscience, religion, thought,
belief and opinion are also
constitutionally protected values under the 1996 Constitution. The
issues in this case touch on deep
convictions and evoke strong
emotions. It must not be thought that the view that holds that sexual
expression should be limited
to marriage between men and women with
procreation as its dominant or sole purpose, is held by crude bigots
only. On the contrary,
it is also sincerely held, for considered and
nuanced religious and other reasons, by persons who would wish not to
have the physical
expression of sexual orientation differing from
their own proscribed by the law. It is nevertheless equally important
to point
out that such views, however honestly and sincerely held,
cannot influence what the Constitution dictates in regard to the
grounds
of sexual orientation.”.
See also the case of
Minister of
Home Affairs and Another v Fourie and Another Lesbian and Gay
Equality Project v Minister of Home Affairs
[2005] ZACC 19
;
2006 (1) SA 524
(CC)
at para
[91]
:
“
Furthermore, in relation to
the extensive national debates concerning rights for homosexuals, it
needs to be acknowledged that,
though religious strife may have
produced its own forms 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”.
The above
dictum
in the case of
National Coalition for Gay and Lesbian Equality
is then quoted
with approval.
At para [92] the judgment continues:
“
It is also necessary to
highlight this qualification:
‘
It is nevertheless equally
important to point out that such views, however honestly and
sincerely held, cannot influence what the
Constitution dictates on
the grounds of sexual orientation’.
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
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 sides on issues which have
caused deep
schisms within religious bodies”.
And at 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. Provided there is
no prejudice to the fundamental rights of any person or group, the
law will legitimately acknowledge
a diversity of strongly-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 the mainstream. It is precisely
the function of the law and
the Constitution to step in and counteract rather than reinforce
unfair discrimination against a minority.
The test, where
majoritarian and minoritarian positions are involved, must always be
whether the measure under scrutiny promotes
or retards the
achievement of human dignity, equality and freedom”.
In casu
it is clear on the
evidence presented that it is the stated belief of the church (also
the church Synod that takes binding decisions
on church dogma) that
marriage can only validly exist between one man and one woman and
that persons of homosexual orientation
must therefore be celibate
and cannot be involved in a homosexual relationship. This would, in
fact, amount to a cardinal sin
in view of the church’s
teachings based upon the Bible.
As pointed out above, in terms of the
Act, discriminatory action against a homosexual based on this view
unfairly discriminates
against him on the basis of his sexual
orientation. The question, however, remains whether the church can
prove that such discrimination
is fair, that is, in this regard the
onus rests upon the church.
The question remains whether the
right to religious freedom outweighs the Constitutional imperative
that there must not be unfair
discrimination on the basis of sexual
orientation? The Constitutional right to equality is foundational to
the open and democratic
society envisaged by the Constitution. As a
general principle therefore, the Constitution will counteract rather
than reinforce
unfair discrimination on the ground of sexual
orientation.
It was argued on behalf of the church
that persons in leadership positions such as ministers cannot live
in a homosexual relationship
(but must remain celibate) as it was an
inherent requirement that a spiritual leader must support church
doctrine, also in regard
to this controversial issue.
See in this regard the book on
constitutional law in South Africa: Woolman
et al (supra)
at p
41-47:
“
The first scenario involves
discrimination against a person with spiritual responsibilities (such
as a priest or candidate for ordination).
Few exercises are more
central to religious freedom than the right to choose its own
spiritual leaders. If a court were to hold
that churches could not
deem sexual orientation, or any other enumerated ground in the
equality clause, a disqualifying factor
for priesthood, the effect
for many churches could be devastating. Consequently, although the
value of equality is foundational
to the new constitutional
dispensation, it is unlikely that equality considerations could
outweigh the enormous impact of failing
to give churches an exemption
in relation to their spiritual leaders. Where appointment, dismissal
and employment conditions of
religious leaders (such as priests,
imams, rabbis, and so forth) are concerned, religious bodies are
likely to be exempted from
compliance with legislation prohibiting
unfair discrimination”.
The church then argues that the
complainant is also a spiritual leader and as such cannot by way of
his example of living in a
homosexual relationship deliver his
services as lecturer in music at the church’s
“
kunste-akademie
”. In other words, as a role
model the complainant was to follow an exemplary Christian
lifestyle.
See in this regard Woolman
et al
supra
at p 41-47 to 41-48, still referring to case law in the USA
and Canada:
“
The second scenario relates
to discrimination against employees of a seminary or Christian
school. Factors militating against legal
intervention might include
the job description of the person suffering discrimination and the
impact on religious freedom of not
granting the religious institution
an exemption. If, for example, the seminary or theology faculty could
show that a teaching post
involved
substantial religious
responsibilities
, the seminary might be able to succeed in
obtaining an exemption from anti-discrimination legislation using the
analogy of the “church-minister” exemption
… Furthermore, if a Christian school could show that
leading
an ‘exemplary Christian life’
was an
important
part of every teacher’s job description
–
‘exemplary’, of course, being interpreted by the church
in accordance with its own tenets – then it is
conceivable that
the church would be given some latitude to flout the legal
prohibition on employment discrimination.
Apart from these sorts of
special circumstances
, however, religious institutions
like schools, seminaries or universities – would probably
not
be deemed exempt from anti-discrimination law”
.
(My
underlining).
I am not convinced on the evidence
presented by the church that on the facts of the matter at hand the
complainant was in such
a position of spiritual leadership. In other
words, the church has not rid itself of its onus in this instance.
In casu,
the description of the services to be rendered on
the evidence was (in the absence of a written contract of work) to
teach music
at the “
kunste-akademie
” of the
church. There was not a shred of evidence that the complainant had
to teach Christian doctrine. On the contrary,
the Christian
foundations were taught at the “kunste-akademie” by
ministers of the church. The complainant mostly
taught issues around
music (also technical issues). In the event, the complainant’s
work involved no religious responsibilities
at all.
The high water mark in this regard
was that, during the interview, the complainant was questioned on
his Christian values in relation
as to whether he had a personal
relationship with God. On the basis of this interview his commitment
to these values was never
questioned. In fact, it was common cause
that the complainant had rendered excellent services. It was only
when the fact that
he was in a homosexual relationship had come to
light that his belief was questioned. This was, of course, also the
reason for
the termination of his services.
It was clear from the evidence of
minister Dirkie Van der Spuy (“
Van der Spuy
”)
that the leadership of the church (congregation or “
gemeente
”)
was seated in the “
Kerkraad
” which consisted of
ten ministers (with him at the helm) as well as the “
ampte
”,
meaning the deacons, elders and the scriba or “
gemeentebestuurder
”.
Even on this evidence, the complainant was placed at the very bottom
of church “
leadership
”.
Further and importantly, the
complainant was not even a member of the church (he was a member of
the Christian “
Hervormde kerk
” where he stated
that he experienced a “
meer ontvanklike
” position
regarding his sexual orientation). There was accordingly no question
of a member of the church living in a homosexual
relationship. It
was the lifestyle of a contract worker that was at stake. He was not
even an employee of the church. It is thus
clear that the
complainant was in a sense removed or distanced from the church, and
did not even participate in its activities.
It was stated by the church that
there was doubt whether the complainant could lead an exemplary
Christian life due to his homosexual
lifestyle. He would therefore
set a bad example to his students.
However, these students were
post-school persons and only numbered seven. I am not persuaded that
the church has shown that it
was part of his job description that he
was to become a role model for Christianity. At best he was a mentor
of the students
on a personal and not necessarily spiritual level.
There is also not a shred of evidence that the complainant wanted to
influence
the students or any other church member. In fact, he
wanted to keep his homosexual relationship to himself as he regarded
it
as a private matter. He did not even want to discuss the matter
with the church leadership.
In short, it would not have been
devastating to the church to keep the complainant on in his teaching
position. Van der Spuy mentioned
that this would mean that the
church “
condoned
” a homosexual relationship.
However, if the church was questioned
why they had a work contract with a practicing homosexual, they
could have stated that it
was required by the Constitution that they
not discriminate on the basis of a person’s sexual orientation
when concluding
a contract of work. For instance, if a person in a
homosexual relationship was employed or contracted to do typing work
as a
secretary of the “
kunste-akademie
”,
terminating his contract on that basis (his sexual orientation)
would clearly amount to unfair discrimination in terms
of the listed
grounds in the Constitution. Again, the explanation for employing
such person is clear: it would amount to unfair
discrimination based
on sexual orientation to terminate his contract.
I repeat that the impact on religious
freedom of not granting the church an exemption from the
anti-discriminatory legislation
is minimal in the case of the
complainant remaining on in his position as a lecturer of music. On
the other hand, the fact of
being discriminated against on the
ground of his homosexual orientation had an enormous impact on the
complainant’s right
to equality, protected as one of the
foundations of our new constitutional order. Likewise his right to
dignity is seriously
impaired due to the unfair discrimination.
In the event, the church has failed
to convince me that the complainant was not unfairly discriminated
against. In other words,
I am not persuaded that the discrimination
was fair.
The church relied on the Canadian
Supreme Court case of
Caldwell v The Catholic Schools of
Vancouver Archdiocese and Attorney General of British Columbia
66
BCLR 398
[1984] 2 SCR 603.
The appellant, a Roman Catholic
teacher in a Roman Catholic school, was not rehired after she
married a divorced man in a civil
ceremony. By the marriage the
appellant contravened two rules of the church requiring that
marriage be in the Catholic Church
and prohibiting marriage to a
divorced person. The failure to rehire was attacked on the basis of
discrimination on the grounds
of religion and marital status.
However, the court decided against the teacher. The appeal also
failed. This case can be distinguished
on the basis that section 22
of the Code permitted the respondent to make preference in hiring
among members of the Catholic
community. It is further
distinguishable on the facts because the teaching of doctrine and
the observance of standards by teachers
formed part of the contract
of employment of teachers. They are required to exhibit the “
highest
model for Christian behaviour
”.
Religious and moral
training occupies the principal place in the curriculum
.
As it was pointed out above, in the
present matter there is no such requirement which forms part of the
work contract between
the “
kunste-akademie
” of
the church and the complainant. Moreover, that part of the course
dealing with Christian foundations were not taught
by him but by the
religious leaders in the church (the ministers).
The facts of the
Caldwell
case
also differed in that the Catholic school held retreats for its
teaching staff at which the special role of the Catholic
school was
a subject of instruction. The appraisal form for the evaluation of
teacher performance, though based on the public
school form,
contained an additional part entitled “Teaching in the spirit
of the Catholic school – its character
and mission”.
This part concerns itself with the teacher’s performance as a
Christian witness to the students. The
glaring dissimilarities with
the case at hand are obvious.
The reference to the case of
Taylor
v Kurstag NO and Others
[2004] 4 All SA 317
(W) is not helpful
in deciding the issue of balancing the right to freedom of religion
against the right to equality protected
by the Constitution and in
terms of the Act. It does refer to the associational right to
freedom of religion enshrined in sections
31 and 18 of the
Constitution and the
dictum
that freedom includes the right
of others to exclude non-conformists and to require those who join
an association to conform
with its principles and rules. The
complainant, however, was not a member of the church and therefore
was not foisted upon the
church but he merely had a work contract to
teach at the “kunste-akademie” of the church. Moreover,
there was, as
stated above, no question of unfair discrimination to
be decided in this case.
Further, unfair discrimination should
be seen in the context of the matter. See section 14(2)(a) of the
Act quoted above. It was
already spelt out above that the fact that
the freedom of religion must be balanced against the complainant’s
right to
equality, in essence, forms the context of the question
whether the unfair discrimination was fair.
In deciding whether the unfair
discrimination had a legitimate purpose (section 14(3)(f) of the
Act) the church argued that it
was to ensure that persons in
positions of leadership do not set bad examples and that the church
must not be seen to condone
the sin of living in a homosexual
relationship. This purpose was achieved by terminating the
complainant’s contract (section
14(3)(g) of the Act). These
issues were already discussed above: the complainant was not in a
position of leadership and the
church did not have to “
condone
”
homosexual relationships by not terminating his contract. In the
event, the unfair discrimination did not have a legitimate
purpose.
This means that the question whether there are less restrictive or
less disadvantageous means to achieve the purpose
(section 14(3)(h)
of the Act) becomes moot. In my view, the respondent has also taken
no steps as being reasonable in the circumstances
to address the
disadvantage which arises from the unfair discrimination of the
complainant or to accommodate diversity (section
14(3)(i) of the
Act).
It was clear from the evidence of the
complainant that his dignity was impaired when his contract was
terminated on the basis
of his sexual orientation (section 14(3)(a)
of the Act). Its impact on his life (section 14(3)(b) of the Act)
was made abundantly
clear: he suffers from depression and was
unemployed due to the publicity his case has resulted in. He also
had to sell his piano
and house. The nature and extent of the
discrimination was thus also encompassing (section 14(3)(d) of the
Act).
Procedurally, the church exacerbated
the situation. The complainant refused to discuss his “problem”
with the church
leadership. In my view, he was fully justified in
doing so. Van der Spuy testified that the complainant was offered “
n
liefdevolle pad van berading
”. However, in practice this
meant that sooner or later the complainant would be offered an
opportunity to take part in
a program called H2O (Homosexuality to
Overcome) which, in effect, tries to
“cure
”
homosexuals and turn them into heterosexuals. This request would
have added insult to injury.
As far as relief for the impairment
of the complainant’s dignity and emotional and psychological
suffering due to the unfair
discrimination is concerned, there is no
precedent in South African case law. The following statement from
the judgment of
Minister of Home Affairs v Fourie
supra
at para [60]
per Sachs J
is particularly apposite:
“
A democratic,
universalistic, caring and aspirationally egalitarian society
embraces everyone and accepts people for who they are.
To penalise
people for being who and what they are is profoundly disrespectful of
the human personality and violatory of equality.
Equality means equal
concern and respect across difference. It does not presuppose the
elimination or suppression of difference.
Respect for human rights
requires the Affirmation of self, not the denial of self. Equality
therefore does not imply a levelling
or homogenisation of behaviour
or extolling one form as supreme, and another as inferior, but an
acknowledgement and acceptance
of difference. At the very least, it
affirms that difference should not be the basis for exclusion,
marginalisation and stigma.
At best, it celebrates the vitality that
difference brings to any society”.
In my view, the fact that the
complainant allowed his case to receive publicity and thereby
highlighted the plight of homosexuals
in South Africa, should not
now be held against him when deciding the quantum of the damages for
the impairment of dignity and
emotional and psychological suffering.
I award an amount of R 75 000,00 for
the impairment of the complainant’s dignity and emotional and
psychological suffering.
The complainant also claimed for loss
of earnings for the remaining period of his work contract in 2005
(it was terminated in
July). If the complainant was allowed to teach
for the remainder of the year, he would have earned R 133,00 per
hour and rendered
services for 5 hours per week. It would appear as
if the complainant would have worked for a further 18 weeks,
amounting to a
total amount of R 11 970,00. He can not claim for
services rendered under the contract in 2006 as the
“
kunste-akademie
” had to close its doors due to
lack of interest from students. He was well aware of the fact that
the in order for the
course to continue a minimum number of students
were required. Therefore he has no claim for 2006.
The complainant also prayed for an
order that the respondent make an unconditional apology. In my view
such order is a suitable
remedy in cases such as these. See section
21(2)(j) of the Act.
As far as an order as to costs are
concerned, I am of the view that the matter is complex and justifies
the appointment of two
counsel.
I make the following order:
1. The respondent unfairly
discriminated against the complainant on the ground of his sexual
orientation.
2. The respondent is to pay the
complainant an amount of R 75 000,00 for the impairment of his
dignity and emotional and psychological
suffering.
3. The respondent is to pay the
complainant R 11 970,00 for loss of earnings.
4. The respondent is to
unconditionally apologise to the complainant.
5. The respondent is to pay the
complainant’s costs, including the costs of two counsel.
___________________________
D A BASSON
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
On behalf of the complainant: R G
Tolmay SC and T Khatri
Instructed by Sanquela-Spies Attorneys
On behalf of respondent: J W Louw SC
Instructed by Van der Merwe Du Toit
Inc