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[2015] ZACC 35
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De Lange v Presiding Bishop of the Methodist Church of Southern Africa for the time being and Another (CCT223/14) [2015] ZACC 35; 2016 (1) BCLR 1 (CC); 2016 (2) SA 1 (CC) (24 November 2015)
Links to summary
Heads of arguments
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT 223/14
In the matter
between:
ECCLESIA DE
LANGE
Applicant
and
PRESIDING BISHOP
OF THE METHODIST CHURCH
First Respondent
OF SOUTHERN AFRICA
FOR THE TIME BEING
EXECUTIVE
SECRETARY FOR THE TIME BEING
Second Respondent
OF THE METHODIST CHURCH
OF SOUTHERN AFRICA
Neutral
citation:
De
Lange v Presiding Bishop of the Methodist Church of Southern Africa
for the Time Being and Another
[2015]
ZACC 35
Coram:
Mogoeng CJ, Moseneke DCJ, Cameron J, Jafta J,
Khampepe J, Madlanga J, Matojane AJ, Nkabinde J, Van der Westhuizen J
and Zondo J
Judgments:
Moseneke DCJ (unanimous): [1] to [68]
Van der Westhuizen J (concurring): [69] to [86]
Heard
on:
28 August 2015
Decided on:
24 November 2015
Summary:
Unfair discrimination on ground of
sexual orientation — disavowal — freedom of religion —
right to maintain religious
associations —
Promotion of
Equality and Prevention of Unfair Discrimination Act 4 of 2000
—
principle of constitutional subsidiarity
Section 3(2)
of
Arbitration Act 42 of 1965
— good cause not shown —
Rule
16A
on admission as amicus curiae — leave to appeal denied
ORDER
On appeal from the Supreme
Court of Appeal (hearing an appeal from the High Court of South
Africa, Western Cape Division, Cape Town):
(a)
The application to be admitted as amicus
curiae by Freedom of Religion South Africa is refused.
(b)
Leave to appeal is refused.
(c)
There is no order as to costs.
JUDGMENT
MOSENEKE DCJ (Mogoeng
CJ, Cameron J, Jafta J, Khampepe J, Madlanga J, Matojane AJ, Nkabinde
J, Van der Westhuizen J and Zondo J
concurring):
Introduction
[1]
Ms Ecclesia de Lange,
the applicant, has approached this Court asking for leave to appeal
against a decision of the
Supreme Court of Appeal. That
decision concerned her suspension and discontinuation as a minister
of the Methodist Church
of Southern Africa (Church or respondents).
The Church suspended and subsequently discontinued her role as an
ordained minister
after she had publicly announced her intention to
marry her same-sex partner.
[2]
While this dispute raises numerous
difficult questions, the immediate issues before this Court are two:
whether to overturn the
decisions of the Supreme Court of Appeal
and Western Cape Division of the High Court, Cape Town (High Court)
refusing
to set aside the arbitration agreement between Ms De
Lange and the Church; and whether this Court should reach and decide
the unfair discrimination claim that is now the mainstay of Ms De
Lange’s case.
Factual background
[3]
Ms De Lange first realised in her
late teens that she was a lesbian. The disclosure of her sexual
orientation led to painful
ruptures with her family and the Church,
causing her immense emotional loss. Motivated by a sincere
desire to serve
God, she returned to the Church some years later and
eventually answered a call to ministry. In August 2001, she
became a
probationary minister and in August 2006 she was ordained a
minister of the Church.
[4]
In April 2004, Ms De Lange began a
relationship with a same-sex partner. This relationship
deepened with time. In December
2004, she and her partner began
living together in the Church manse at Grassy Park, Cape Town, with
the knowledge of Church officials.
They continued living
together in the manse until December 2005 when she relocated to
Vredekloof.
[5]
From December 2006, Ms De Lange
began working as a minister of the Brackenfell and Windsor Park
congregations. On the Sunday
morning of 6 December 2009,
she announced to the congregation her intention to marry her
partner. On 8 December
2009, the Church informed Ms De Lange
that her announcement was in breach of clause 4.82 of the Church’s
Laws and Discipline.
[1]
The Church took the view that in announcing her intention to enter
into a marriage with her same-sex partner, she had breached
its
policy, practice and usage of recognising only heterosexual
marriages.
[6]
On 10 December 2009, the Church
suspended Ms De Lange. Within five days thereafter, on 15
December 2009, she and her
partner entered into a same sex union
in terms of the Civil Union Act.
[2]
They are presently divorced.
[7]
The Church’s district
disciplinary committee convened a hearing to consider the charges
against Ms De Lange. On 13 January
2010, the committee found
her guilty, sentenced her to time already served under her suspension
and further suspended her without
emoluments or station. On 18
January 2010, Ms De Lange appealed the committee’s
decision to the connexional
disciplinary committee.
[3]
On or around 17 February 2010, the connexional disciplinary committee
upheld the prior verdict but changed its censure to
discontinuation
as a minister of the Church. The effect of discontinuation was
that she remained an ordained minister, but
was barred from
exercising any ministerial functions, holding any station or
receiving any emoluments.
[8]
On 31 March 2010, Ms De Lange
referred the matter to arbitration in terms of clause 5.11 of
the Laws and Discipline.
It provides for binding arbitration of
disputes between the Church and its ministers in these terms:
“
No
legal proceedings shall be instituted by any formal or informal
structure or grouping of the Church or any minister or any member
of
the Church, acting in their personal or official capacity, against
the Church or any formal or informal structure or grouping
of the
Church, Minister or member thereof for any matter which in any way
arises from or relates to the mission work, activities
or governance
of the Church. The mediation and arbitration processes and
forums prescribed and provided for by the Church
for conflict dispute
resolution (Appendix 14) must be used by all Ministers and members of
the Church. If a matter is referred
to arbitration, the finding
of the Arbitrator shall be final and binding on all Ministers and
members of the Church.”
[9]
The Laws and Discipline provide for
the appointment of an arbitration panel and a convener.
[4]
The convener is empowered to determine the correct forum for the
dispute, designate an arbitrator, determine the issues for
arbitration, finalise the arbitration agreement and sign the
arbitration agreement on behalf of a party who refuses to sign.
[5]
In the present dispute, the arbitration panel and the convener were
all Church members.
[10]
Between April and November 2010, the
convener and Ms De Lange’s attorneys exchanged letters about
the arbitration agreement.
Ms De Lange wished to (a) refer to
arbitration the question whether she could be discontinued as a
minister on the basis of her
sexual orientation; (b) reserve her
right of appeal before a court; and (c) have written-in an
independent right to legal representation
that was not at the
discretion of the arbitrator. The convener assumed the stance
that Ms De Lange’s sexual orientation
was not
the basis of the charges or findings against her. On the other
two points, the convener responded that the Laws and
Discipline did
not provide for an appeal to a court or for legal representation.
[11]
On 28 October 2010, the convener
circulated the final arbitration agreement to be signed by the
parties and returned to him by 8
November 2010. Ms De Lange
timeously signed the draft agreement sent by the convener, but did so
under protest.
The Church failed to sign the agreement sent by
the convener; instead, it amended certain terms in the agreement and
signed this
amended version a day late, on 9 November 2010.
The Church claims to have made these changes because it had not
previously provided any input on the draft. Ms De Lange became
aware only much later that the Church had amended certain
terms of
the draft agreement sent to it by the convener.
[12]
The convener selected a practising
advocate, Gerald Bloem SC (Mr Bloem), also a Church member, as
the arbitrator. On
3 December 2010, Ms De Lange’s
attorneys wrote to Mr Bloem requesting him to confirm his appointment
as arbitrator
and provide a date for the parties’ preliminary
meeting. After various delays, Mr Bloem replied on 16
January
2011. He informed them that he could make a
pre arbitration meeting in Cape Town on 5 February 2011.
[13]
On 17 January 2011, Ms De Lange
emailed Mr Bloem in an effort to expedite matters. She claims
that her ensuing correspondence
with Mr Bloem led her to conclude
that he was failing to take the process seriously and might be unable
to conduct the arbitration
in an unbiased manner. In their
correspondence, however, Ms De Lange told Mr Bloem that—
“
I
would not have signed the [arbitration] agreement . . . if I had any
doubts about you being appointed the arbitrator for the case.
In particular, now that you have been appointed as Judge, I have even
got more faith and confidence that you will deal with my
arbitration
in a fair and even handed manner.”
[14]
The pre-arbitration meeting was held
on 5 February 2011. Ms De Lange says heated exchanges
occurred between her
and Mr Bloem during the meeting. She says
that the exchanges further entrenched her perception of bias. It
also emerged
that the parties had signed different arbitration
agreements. One of the disputed provisions was Ms De Lange’s
original
clause 7 that provided that the parties did not waive any
right to raise legal objections to the proceedings or claim. The
other bone of contention related to two of the Church’s amended
clauses: clause 7 that read that the arbitrator may make
any award
that was just and appropriate; and clause 12 that provided that the
arbitration decision was final and binding on the
parties. The
parties were unable to resolve these points. Mr Bloem concluded
that no arbitration agreement existed
and referred the matter back to
the convener.
[15]
At that point, Ms De Lange refused
to make further submissions to the convener or engage further
with the arbitration process
on the grounds that doing so would be
futile. On 16 May 2011, the Church signed a revised arbitration
agreement. This
agreement left legal representation to the
arbitrator’s discretion and provided that the parties did not
waive their right
to raise legal objections. It did not
expressly reserve Ms De Lange’s right to appeal the outcome of
the arbitration
before a court. Since Ms De Lange refused to
sign this agreement, the convener, as allowed by the Laws and
Discipline, signed
on her behalf in June 2011.
[6]
[16]
With the agreement in place, Mr
Bloem requested dates for the arbitration hearing. Ms De Lange
did not commit to any date.
Instead, approximately a year
later, in June 2012, she started litigation proceedings in the High
Court. She sought an order
setting aside the arbitration
agreement under section 3(2) of the Arbitration Act
[7]
(Act).
High Court
[17]
The respondents met Ms De Lange’s
claim by contending
in limine
(at the outset) that Ms De Lange was bound by the Laws and
Discipline and had to submit to arbitration. Ms De Lange
retorted that it would be unjust and unrealistic to expect her to
take part in “an arbitration process that would be futile,
unfair and serve no purpose”.
[8]
[18]
The High Court noted that the Act
and the Constitution existed side by side and that Ms De Lange was
bound to undergo arbitration,
unless the Court found that, under
section 3(2) of the Act, she had shown good cause to deviate from the
arbitration agreement.
Ms De Lange complained that there had
been a long delay in the finalisation of the arbitration agreement
and that there still existed
no arbitration agreement that had been
signed by both parties. She argued that the conduct of
the convener and the Church
indicated bias. The bias
charge was based on the deletion of Ms De Lange’s clause 7 from
the agreement that she had
signed. It was also based on the
insertion of the Church’s amended clause 7 as well as clause 12
in the final agreement
which the convener signed on behalf of Ms De
Lange.
[9]
[19]
The High Court held that there was
no good reason to object to the insertion of the Church’s
amended clause 7. All the
clause did was state the usual power
of an arbitrator. Ms De Lange’s clause 7 simply
dealt with the non-waiver
of rights. The Court held that
the final agreement did not take away or infringe on any of the
rights that Ms De
Lange sought to protect.
[10]
Ms De Lange also objected to the appointment of a member of the
Church as the arbitrator. However, the Court held that
this
alone was not a cogent complaint and did not support the allegation
that it would result in bias and an arbitration process
that would
not be objective.
[11]
The Court held further that the issues to be referred to the
arbitrator would be wide enough to address any concerns
that Ms De
Lange had.
[12]
It concluded that she must submit to arbitration as it could not be
said that arbitration would be unfair or futile.
[13]
Supreme Court of Appeal
[20]
Ms De Lange appealed to the Supreme
Court of Appeal. Her appeal was dismissed.
[14]
The core issue before that Court was whether the Church had adopted a
rule that precluded her, a minister of the Church,
from announcing
her intention to marry her same-sex partner.
[15]
The Court held that because the claim based on discrimination on
grounds of sexual orientation was disavowed, it was “unnecessary
to engage with the collision between the rights of freedom of
association and religious freedom on the one hand, and the right
to
equality on the other”.
[16]
[21]
The Court had to decide whether Ms
De Lange had shown good cause, within the meaning of section 3(2) of
the Act, for avoiding arbitration.
The Supreme Court of
Appeal held that good cause had not been shown. The Court
advanced five reasons why Ms De
Lange should not be permitted to
avoid arbitration. First, a valid arbitration agreement had
been concluded between her and
the Church and the parties were
bound by it.
[17]
The matter was brought into the ambit of the Act by the
agreement signed by the Presiding Bishop, on behalf of the Church,
and the convener, on behalf of Ms De Lange. It was common cause
that the convener was entitled to sign in her place.
Second,
the delay in concluding the arbitration agreement was explicable –
it was due to the differences between the parties
on how the issues
were to be characterised.
[22]
The third ground on which Ms De
Lange sought to escape the arbitration proceedings was that the
arbitration agreement weighed heavily
against her because it
(a) required her to waive her constitutional rights; (b) ousted
the power of the courts; and (c) denied
her the right to legal
representation. The Court held against her. It reasoned
that the agreement expressly protected
her constitutional rights by
providing that “[t]he parties . . . do not waive any legal
rights they [might] have to raise
any objections”.
[18]
It continued to hold that the agreement permits “an application
to a competent court to review the findings of the
arbitrator”.
[19]
And that the Church has always accepted that the decision of an
arbitrator may be subjected to judicial review on the ground
of
legality. The Court noted that the arbitration agreement was
silent on entitlement to legal representation which, in any
event,
was within the discretion of the arbitrator. The arbitrator
ruled that the parties would be represented by lay representatives
–
not legal representatives. The Court recalled that courts have
consistently refused any entitlement to legal representation
outside
courts of law.
[23]
Fourth, the Court refused to void
the arbitration agreement on the ground that the appointment of the
arbitrator, a member of the
Church, was understandable. It
ensured that people familiar with the workings of the Church were
“appointed to the
rather sensitive task of adjudicating
disciplinary disputes” of this sort.
[20]
This was neither biased nor reasonably perceived to be biased.
The fifth reason was that arbitration was the appropriate
forum to
decide the factual dispute which was the crux of this matter, that
is, whether the Church had adopted a rule that precluded
Ms De Lange
from announcing, from the pulpit, her intention to marry her same sex
partner, and whether the district
disciplinary committee and the
connexional disciplinary committee were misdirected in finding
that Ms De Lange was
guilty of breaching the rules of the
Church. Arbitration would therefore not be in vain.
[24]
The Court held that arbitration
proceedings are ideal because the dispute was “quintessentially
[of] the kind . . . that a
secular court should avoid becoming
entangled in”.
[21]
The Court held that this matter was not one for the courts, and that
the sensitivity of the issues – church doctrine
and governance
related to marriage, a sacrosanct institution – were best left
to the Church to determine internally.
[22]
The Court further held that the determination of who was morally
and religiously suited to assume ministerial duties
struck at the
core of religious function.
[23]
[25]
In a separate concurrence, Wallis JA
characterised the matter as one “about an alleged arbitration
agreement and whether [the
agreement] should be set aside or
avoided”.
[24]
The concurring judgment expressed reservations about the finding that
there was an arbitration agreement and that the Act
applies in this
matter. The first reservation stemmed from the application of
section 2 of the Act which excludes from arbitration
“any
dispute over any matrimonial cause or any matter incidental to such a
cause or any matter relating to status”.
[25]
From this, the concurring judgment raised the concern whether this
matter was one related to Ms De Lange’s status,
and therefore
excluded from the ambit of the Act. The second reservation was
with the nature of the relationship between
the Church and its
ordained ministers. Ultimately, the concurring judgment got to
the same outcome as the main judgment,
albeit along a different
path.
[26]
The concurring judgment nudged the parties to remove their
dispute from the judicial secular arena, and to resolve it in
accordance with clause 5.11 of the Laws and Discipline.
[27]
In this Court
Amicus
curiae
[26]
Before I deal with the merits of
this appeal, I dispose of a preliminary issue: the status of the
application for admission as amicus
curiae (friend of the court) by
Freedom of Religion South Africa (FOR SA).
[27]
On the morning of the hearing,
counsel for FOR SA sought a postponement of the hearing in order to
apply to be admitted as amicus
curiae. The Court refused the
postponement but granted FOR SA leave to file a substantive
application.
[28]
On 11 September 2015, FOR SA lodged its application after
serving it on Ms De Lange and on the Church.
FOR SA,
however, did not seek the consent of the parties. On
23 September 2015, Ms De Lange filed an answering
affidavit. She professed to abide by the decision of the Court
in relation to the application and pointed to three defects:
(a) FOR
SA did not state concisely what its submissions would be, if
admitted; (b) FOR SA did not demonstrate that its submissions
would
be useful to the Court and that they did not repeat the parties’
submissions; and (c) although FOR SA had not
been granted leave
to canvass additional factual material, it failed to restrict itself
to the record before the Court. In
fact, its papers run to 117
pages containing new facts and prolix and repetitive submissions.
[28]
This Court has considered the
application and refuses FOR SA leave to be admitted as amicus curiae.
The reasons follow.
First, Ms De Lange is correct that
the application offends the rules of this Court.
[29]
Second, the mainstay of the application is the Christian doctrinal
definition of marriage and why it is not open to alteration
by
this Court. This judgment does not reach the difficult
intersection of the doctrinal definition of marriage and unfair
discrimination. This means that the main thrust of FOR SA’s
submissions is off the beam and will thus be of no
help to the
Court’s task of resolving the present dispute. Finally,
the application is belated and, if granted, will
invite Ms De Lange
into a further debate on a matter we do not reach.
Leave to appeal
[29]
The anterior question is whether
this Court should grant Ms De Lange leave to appeal the decision of
the Supreme Court of Appeal.
The test is by now well settled.
The interests of justice dictate whether leave to appeal should
be granted. A determination
of where the interests of justice
reside calls for a careful consideration of all relevant factors.
Chief, but not solely
determinative, would be whether there is a
reasonable prospect that this Court may alter the decision sought to
be appealed against.
It takes little to appreciate that hearing
an appeal that will not change the order targeted is rather fruitless
for all concerned.
There may be instances where, despite poor
merits, this Court would hear an appeal because of a pressing public
interest or important
constitutional issue. Those instances
will be rare and indeed exceptional. No litigant should be put
to the burden,
in all its forms within litigation, of seeing through
an appeal that promises no reasonable chance of success.
[30]
I am thus duty-bound to pose the
question: is it in the interest of justice to hear the appeal?
I think not. This conclusion
I reach for a number of cumulative
reasons:
(a)
There is no reasonable prospect that this
Court would reverse the decisions of the Supreme Court of Appeal and
of the High Court
that Ms De Lange had not shown good cause
under section 3(2) of the Act to set aside the arbitration agreement
between
herself and the Church.
(b)
The Supreme Court of Appeal was correct
when it held that in the High Court Ms De Lange had
unequivocally disavowed reliance
on the unfair discrimination claim
and was thus not free to raise the claim for the first time on appeal
before the Supreme Court
of Appeal. It is similarly the case
before this Court.
(c)
The doctrine of constitutional subsidiarity
requires that an unfair discrimination claim must be heard by the
Equality Court first.
It was open to Ms De Lange to abide by
this requirement by seeking a consolidation of her equality and
arbitration claims to be
heard under the dual but separate
jurisdictions of the High Court.
(d)
Ms De Lange failed to file a notice in
terms of rule 16A of the Uniform Rules of Court. That
omission has deprived other
interested parties, including religious
communities, of the opportunity to intervene as parties to the
dispute or seek admission
as amicus curiae. This ground alone
is not sufficient for denying leave to appeal. It is, however,
a relevant consideration
within the assessment of the glitches this
matter has run into on its journey through the courts.
(e)
If, despite the preceding hurdles, 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.
[31]
In examining these grounds closely,
as I am about to, it is opportune to reassure ourselves of our
nation’s commitment to
advance and celebrate our diversity, to
respect lawful choices we make and to afford us all equal respect,
worth and dignity.
And in this regard the equality
jurisprudence of this Court remains a vital part of our democratic
project, as does the right to
association and to practise one’s
religion.
Setting aside the
arbitration agreement
[32]
Throughout the courts, Ms De Lange
has consistently requested that the arbitration agreement be set
aside or cease to have effect
on the dispute. In doing so, she
has assumed the stance that she is a party to the arbitration
agreement within the meaning
of section 3(2) of the Act, and that she
has shown good cause to be relieved of her duties under the
arbitration agreement.
[33]
As we have seen, the High Court and
the Supreme Court of Appeal disagreed with her contention. The
main judgment in the Supreme
Court of Appeal held that good cause had
not been shown. The concurring judgment supported the outcome
of the appeal but
for a different reason. It was of the view
that there was no valid arbitration agreement for the purposes of
section 3(2)
of the Act to set aside. This meant that in both
courts the arbitration agreement stood valid.
[34]
In this Court, Ms De Lange did not
contend, correctly so in my view, that the arbitration agreement is
invalid despite the life
line thrown at her by the concurring
judgment in the Supreme Court of Appeal. She rather urged us to
set aside the agreement
mainly because the constitutional
underpinnings of her claim made arbitration an inappropriate forum to
resolve this dispute.
To this contention I will return later.
In somewhat muffled tones, she added that the drafting of the
agreement was flawed
because the Church did not participate in the
initial drafting stages and later unilaterally altered the draft
agreement.
And when she refused to sign the draft, the convener
signed on her behalf but did not do this when the Church refused to
sign.
[35]
Both these complaints relate to how
the agreement was concluded. However, they were not raised to
impugn the validity of the
arbitration agreement. The main
plank of Ms De Lange’s case is that there is a binding
agreement that must be set aside.
She cannot now
convincingly suggest otherwise, nor did she do so. During the
hearing, Ms De Lange properly conceded that
there was a valid
arbitration agreement. We too must approach this dispute on
that footing.
[36]
The question still remains whether
Ms De Lange has advanced good cause to escape the agreement.
The Act is not particularly
helpful on what could make up good
cause. Nor have our courts expressly defined good cause.
It is, however, clear that
the onus to demonstrate good cause is not
easily met.
[30]
A court’s discretion to set aside an existing
arbitration agreement must be exercised only where a persuasive
case
has been made out.
[31]
It is neither possible nor desirable, however, for courts to define
precisely what circumstances constitute a persuasive
case.
[32]
[37]
The Supreme Court of Appeal
correctly ventured the view that the requirement of good cause in
order to escape an arbitration agreement
entails a consideration of
the merits of each case in order to arrive at a just and equitable
outcome in a specific set of circumstances.
[33]
Put in another way: is it in the interests
of justice to hold a party to an arbitration agreement that would
result in a futile,
unfair or unreasonable outcome or perhaps an
unconscionable burden? The Act is of the pre Constitution
kind. Now
our understanding of good cause must embrace an
enquiry into whether the arbitration agreement, if implemented, would
unjustifiably
diminish or limit protections afforded by the
Constitution. Absent infringement of constitutional norms,
courts will hesitate
to set aside an arbitration agreement untainted
by misconduct or irregularity unless a truly compelling reason
exists.
[34]
As this Court has itself stated—
“
the
values of our Constitution will not necessarily best be served by . .
. enhanc[ing] the power of courts to set aside private
arbitration
awards. . . . If courts are too quick to find fault with the
manner in which an arbitration has been conducted
. . . the goals of
private arbitration may well be defeated.”
[35]
[38]
Ms De Lange raised a concern that
the main issue to be referred to arbitration does not deal with her
constitutional challenges.
The issue, she says, is whether
there is a clear rule or not that prohibits ministers of the Church
from entering into same sex
marriages. The twist of the
tale is here. During the hearing, Ms De Lange said she now
accepts for the purposes of
the proceedings in this Court that,
although its terms are vague, there was a rule and she has
transgressed it. The argument
continues that her complaint now
is how the Church relied on this rule. She then concludes that
because of her concession
that the rule exists and that she has
transgressed it, the arbitration agreement has become vague and has
lost its likely practical
effect.
[39]
I do not agree with this newly found
contention. It is best met by looking at the terms of the
arbitration agreement.
The High Court described the issues to
be referred to arbitration in terms of clause 3 of the arbitration
agreement in this way:
“
3.1
Did the District Disciplinary Committee and/or the Connexional
Disciplinary Committee have the
jurisdictional authority to deal with
the charges that were laid against the Complainant, namely that she
acted in breach of paragraphs 4.82
and 11.3 in that contrary to
the Laws and Discipline and/or policies, decisions, practices and
usage of the Methodist Church of
Southern Africa she announced
to the Brackenfell and Windsor Park Societies her intention to enter
into a same-sex civil union
on 15 December 2009, it being
the Church’s policy, practice and usage to recognise only
heterosexual marriages?
3.2
Does the arbitrator have the jurisdictional authority to deal with
this dispute?
3.3
Should the:
3.3.1
verdict and the sentence of the Second Respondent; and
3.3.2
decision of the First Respondent to discontinue the Complainant; be
reviewed and set aside?”
[36]
[40]
From the terms of the agreement, the
substantive questions on whether the preceding disciplinary
committees had the power to discontinue,
and properly discontinued,
Ms De Lange’s ministry sit at the centre of the envisaged
arbitration. Even if, according
to her, the main issue is the
application of the rule by the Church, and not the rule itself
proscribing same-sex marriages
by ministers, the arbitrator will have
the power to enquire into how the rule, if any, was enforced.
So the arbitration will
be useful and of practical effect.
[41]
In another argument, Ms De Lange
charged that the Church’s stance on same sex marriages was
irrational or hypocritical.
The Church allowed her to be in a
homosexual relationship whilst being a minister, and allowed her to
stay in the Church’s
manse with her partner, but drew the
line at recognising her same sex marriage. The Church
responded that its doctrine
recognises a marriage only between one
man and one woman. It however strives to strike a balance
between belief on the one
hand and tolerance on the other. It
tolerates homosexual relationships but requires its ministers not to
enter into same-sex
marriages. The line seems to be closely
drawn to the Church’s doctrine. Whether it is defensible,
and was defensibly
applied, is also a matter that the arbitration may
productively canvass. It follows that we cannot assess whether
the line
is rational or hypocritical without adjudging the Church
dogma.
[42]
Happily, during the hearing both Ms
De Lange and the Church assured us that this Court need not traverse
that troubled terrain.
It follows that the merit of the
complaint on where the Church has chosen to draw the line between
ministers in homosexual relationships
and those who have entered into
same sex unions is not and cannot be a bar to arbitration.
If anything, the “irrational
and hypocritical”
distinction, on Ms De Lange’s take, may be fruitfully explored
at the arbitration, as the arbitrator
probes the correctness of the
decisions of the preceding disciplinary hearings.
[43]
I am persuaded by the submissions of
the Church that arbitration would be the ideal forum for Ms De Lange
and the Church to see
where the balance between dogma and tolerance
should be struck. It is not only appropriate but it would be
the best solution
in the present circumstances. If the nature
of the rule proscribing same sex unions of ministers of the
Church
is vague and uncertain, domestic arbitration would again be
the appropriate forum to provide clarity and indeed the reasonable
accommodation that Ms De Lange urged upon this Court to find and
impose on the Church.
[44]
Ms De Lange’s other complaint
against the arbitration was bias. It amounted to this: the
arbitrator is a member of the
Church and is bound to represent the
interests of the Church and make an award that is in line with its
Laws and Discipline.
In my judgement, the Supreme Court of
Appeal rightly dismissed this charge. It has no factual basis.
In a long letter
to the arbitrator, Mr Bloem, Ms De Lange denied ever
having accused him of incompetence or bias. The Supreme Court
of Appeal
correctly held that arbitration would not be vitiated only
by reason that the arbitrator was a member of the voluntary
association
concerned. Often, a member well-versed with the
norms and rules of an association may be more suited to the
arbitration task
than an outsider.
[45]
The decisions of the High Court and
Supreme Court of Appeal that no good cause has been shown to set
aside the arbitration agreement
cannot be faulted. Further,
arbitration is the appropriate forum to decide if the line that has
been drawn by the Church
in Ms De Lange’s case is acceptable.
It would not be appropriate for this Court to interfere at this stage
especially
considering that the line is close to the Church’s
doctrines and values. No good reason has been shown why
arbitration
would not be suited to resolving the present dispute.
In any event, the outcome of the arbitration would be open to
judicial
review and would create room for a fulsome and timeous
pursuit of an equality claim.
The unfair
discrimination claim
[46]
In her notice of motion in the High
Court, Ms De Lange initially asked for declaratory relief based on
unfair discrimination.
In turn, her founding affidavit stated
that her application was grounded on the decision by the Church to
discontinue her role
as an ordained minister. She considered
this decision wholly unfair. The reasons she advanced were
aligned to the infringement
of her right not to be discriminated
against on the basis of her sexual orientation in terms of sections 9
and 10 of the Constitution.
Ms De Lange also went on to assert
that the Church’s conduct contravened the
Promotion of Equality
and Prevention of Unfair Discrimination Act
>
[37]
(Unfair Discrimination Act).
[47]
In answer, the Church pleaded that
the High Court lacked jurisdiction to hear the matter because Ms De
Lange raised an unfair discrimination
claim, the
Unfair Discrimination Act was applicable and the Equality Court
had exclusive jurisdiction. The Church pointed
out that, on her
own version, Ms De Lange had conceded that the Unfair Discrimination
Act was applicable, but failed to identify
the specific provisions
she purported to rely on. In addition, the Church pleaded that
Ms De Lange had failed to
comply with the procedural
requirements of the applicable statute.
[38]
The Church concluded that Ms De Lange’s cause of action was
directly reliant on section 9 of the Constitution and disputed
the
correctness of the conclusions of law that Ms De Lange drew.
Nonetheless, the Church went on to argue that its discontinuation
of
Ms De Lange did not amount to unfair discrimination or,
alternatively, that the discrimination was justified under section 36
of the Constitution.
[48]
In her replying affidavit and in
response to the Church’s contention that the High Court lacked
jurisdiction, Ms De Lange
had this to say:
“
I
am not seeking to advance a claim of unfair discrimination based on
sexual orientation. I am advancing a case based
on the
administrative common law namely that I am entitled to fair
administrative action and that the decision by the First Respondent
does not comply with the common law prescripts in this regard.”
[49]
Ms De Lange reiterated this stance
in the following fashion:
“
This
is not a case where I complain about unequal treatment. Although
unequal treatment is at the heart of the matter that
is not an issue
before this Court. All that this Honourable Court must decide
is whether the Disciplinary Committee’s
decision is a rational
just administrative action or not.”
[50]
The High Court refused to hear the
matter on unfair discrimination and dismissed the application.
Ms De Lange then, in her
heads of argument and from the bar of the
Supreme Court of Appeal, proceeded to advance the claim of
unfair discrimination.
[39]
The Supreme Court of Appeal
refused to
decide the case on the basis of unfair discrimination, having found
that Ms De Lange had unequivocally disavowed her
unfair
discrimination claim.
[51]
In this Court, Ms De Lange sought to
say the statement in her High Court replying affidavit was made
on the advice of her legal
team and not on a factual basis. She
contended that the Supreme Court of Appeal erred in its assessment of
the disavowal
and that, if read in context, her replying affidavit
simply responded to the suggestion that she should have brought her
application
to the Equality Court rather than the High Court in terms
of “administrative common law”. The main thrust in
this Court was that her disavowal was not unequivocal.
[52]
There is no reason to depart from
the Supreme Court of Appeal’s finding that Ms De Lange
unequivocally disavowed
her unfair discrimination claim. Her
very words are not open to doubt. She unambiguously deserted
her unfair discrimination
claim in order to escape the jurisdictional
challenge posed by the Church. It would be plainly unfair to
all concerned to
permit her to revive at this late stage a claim she
disavowed in certain terms.
Subsidiarity: unfair
discrimination and the Equality Court
[53]
The Church’s first line of
defence in its written submissions is the principle of constitutional
subsidiarity. This
Court, on numerous occasions, has held that
where legislation is enacted to give effect to a constitutional
right, a litigant may
not by pass the legislation and rely
directly on the Constitution without challenging that legislation as
falling short of
the constitutional standard.
[40]
[54]
The Church submitted that Ms De
Lange’s claim may not be directly based on section 9(4) of
the Constitution. It
should have been channelled through the
Unfair Discrimination Act and heard as
required
by section 20.
In
this Court, Ms De Lange retorted that she could not take
her claim to the Equality Court because her claim was not
only about
unfair discrimination in terms of section 9(4) of the Constitution,
but also about the arbitration agreement between
the parties.
She went on to submit that a High Court cannot sit as an Equality
Court and also have the powers of a High Court.
[55]
Section 16(1)(a) of the Unfair
Discrimination Act provides, subject to section 31, that every
High Court is an Equality Court
for the area of its jurisdiction.
The beckoning question is whether a High Court sitting as an Equality
Court has the powers
of an Equality Court and of an ordinary High
Court. Here, the question would be whether a High Court was
empowered to resolve
both the equality claim and the arbitration
dispute at once.
[56]
In a trilogy of cases, the Supreme
Court of Appeal took the posture that the Equality Court is a special
purpose vehicle and a creature
of statute deriving its powers from
the Unfair Discrimination Act. It existed separately and
distinct from the High Court.
[41]
[57]
The Equality Court considered
whether a consolidation of claims falling within the distinct
jurisdictions of the High Court and
Equality Court is
permissible.
[42]
It made reference to the case of
George
where the Supreme Court of Appeal had paved the way for consolidation
by remarking that—
“
the
question of double jurisdiction this case raises is not unique, and
is likely to arise in every case brought under the [Unfair
Discrimination Act]: and . . . there is no reason why those who have
interrelated remedies under the [Unfair Discrimination Act]
and other
legislation should not be entitled to pursue their remedies in
parallel proceedings before the High Court, in its capacity
as an
Equality Court, and the High Court in its ordinary capacity.
. . .
.
Given
that the problem of concurrency will inevitably recur, the most
productive and expeditious way of achieving efficiency would
seem to
lie in the matter being referred to the same High Court Judge who, in
his capacity as an Equality Court Judge, is
presiding in that
Court.”
[43]
[58]
In
George
,
it was held that Equality Court proceedings and constitutional
challenge proceedings may be consolidated for hearing before a
single
Judge sitting as Equality Court and as High Court.
[44]
There is indeed much to be said for this approach of permitting
consolidation of disparate claims before a High Court.
The
consolidation will not only serve the procedural requirements of the
Unfair Discrimination Act but will also avoid
piecemeal
litigation and costs.
[59]
It seems to me, on this Supreme
Court of Appeal authority, the consolidation of disparate claims was
quite permissible at the time
Ms De Lange initiated her claim in the
High Court. It was open to Ms De Lange to seek consolidation to
avoid the charge of
violating the doctrine of constitutional
subsidiarity. When her attention was drawn to the lack of
jurisdiction of the High
Court over an equality claim, she chose to
avoid the difficulty by disavowing her unfair discrimination claim
rather than following
the path of seeking a court order to
consolidate her disparate claims. This subsidiarity ground
alone is fatal to the application
for leave to appeal.
Rule 16A notice
[60]
Rule 16A of the Uniform Rules of
Court
[45]
serves to facilitate the admission of amici curiae by providing
courts with guidelines on how this should happen.
[46]
It is an entry point for non-parties into public interest matters
with constitutional ramifications.
[47]
A court may waive the requirements of the rule.
[61]
The Church submitted that Ms De
Lange’s failure to give notice of her intention to raise a
constitutional issue – unfair
discrimination – in terms
of rule 16A is unfair as it effectively denies organised
religious groups and supporters of
gay and lesbian equality alike the
opportunity to “join the fray” as amici curiae.
[48]
[62]
Our courts have considered the
implications of non-compliance with rule 16A. The cases
range from instances where the
claimant failed to give notice to the
registrar at the time of filing of the relevant pleading,
[49]
to instances where the claimant did not give rule 16A notice at
all.
[50]
[63]
Ms De Lange did not file a rule 16A
notice at all. The Church argued that because of this omission,
it was not in the interests
of justice to grant her leave to appeal
to advance her claim of unfair discrimination. It submitted
this is so because this
case is the first of its kind in our courts –
the balancing of the rights to freedom of religion and of
association, on the
one hand, and equality rights in the context of
sexual orientation on the other. The Church added that a case
of “burning importance”
such as this will have an
effect on most, if not all, organised religions in South Africa
because they too differentiate between
their congregants and members
on various grounds.
[64]
It is true that prejudice that may
have resulted from Ms De Lange’s failure to give notice in
terms of rule 16A has been partially
remedied in this Court.
[51]
The door was not shut on potential amici who wished to enrich this
constitutional debate, and assist the Court in arriving
at a
well-informed decision. However, as the late arrival of FOR SA
shows,
[52]
there would have been considerable virtue in potential amici being
able to enter the fray much earlier. Nevertheless, this
ground
raised by the Church is not in itself a sufficient ground for denying
leave to appeal. It is, however, a relevant
consideration
within the assessment of the procedural glitches that this matter has
run into on its journey through the courts.
Court of first and last
instance
[65]
If, despite the preceding hurdles,
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. If and when the unfair discrimination claim has been
properly ripened, it
will require all the judicial, if not Solomonic,
wisdom we Judges can muster right through our court system.
Conclusion
[66]
For all the reasons I have advanced,
leave to appeal must be refused.
Costs
[67]
None of the parties sought costs and
I would make no order as to costs.
Order
[68]
The following order is made:
(a)
The application to be admitted as amicus
curiae by Freedom of Religion South Africa is refused.
(b)
Leave to appeal is refused.
(c)
There is no order as to costs.
VAN DER WESTHUIZEN J:
“
And
they always have the last word. What the [Court] decides, even
with a narrow . . . majority, no person can change.
It can
declare elections . . . invalid . . . it can ban political parties. .
. . [Its judgments]
reach out into
the last office, into the last house.
”
[53]
(Emphasis added.)
[69]
This somewhat bitter and angry
criticism was aimed at the far-reaching powers of the German Federal
Constitutional Court –
one of the world’s most respected
courts. In the 1970s, a wave of criticism – sometimes in
more brutal language
– emanated from commentators in what was
described as a “veritable Blitzkrieg” on the Court.
[54]
[70]
The reach of the power of courts –
especially constitutional courts – is one of the most debated
fundamental issues
in any constitutional democracy.
[55]
Often the separation of powers is at the centre of the discourse: How
far can a court go before it over reaches and
intrudes into the
terrain of the Legislature or Executive? But another dimension
of the same question may be as or even more
important in the lives of
many people: How far do the Constitution and its interpretation and
enforcement by courts reach into
our private and social lives?
Is there, somewhere in our churches, temples, mosques and synagogues
– or for that matter
our kitchens and bedrooms – a
“constitution-free” zone? This question has
triggered many – sometimes
emotional – discussions.
[56]
[71]
In this Court Sachs J said in
Christian Education
:
“
The
underlying problem in any open and democratic society based on human
dignity, equality and freedom in which conscientious and
religious
freedom has to be regarded with appropriate seriousness, is how far
such democracy can and must go in allowing members
of religious
communities to define for themselves which laws they will obey and
which not. Such a society can cohere only
if all its
participants accept that certain basic norms and standards are
binding. Accordingly, believers cannot claim an
automatic right
to be exempted by their beliefs from the laws of the land. At
the same time, the State should, wherever reasonably
possible, seek
to avoid putting believers to extremely painful and intensely
burdensome choices of either being true to their faith
or else
respectful of the law.”
[57]
(Footnotes omitted.)
[72]
During the presentation of oral
argument, it was suggested that the sphere where Ms De Lange’s
disagreement with the Church
plays itself out is beyond the
Constitution’s reach and influence. But, could we have a
“constitution-free”
space in a constitutional democracy
under the rule of law? If so, where does it start? Could
we ever operate outside
the law when our conduct affects others?
[73]
Counsel for Ms De Lange strenuously
argued that there can be no “constitution free” zone
in a constitutional democracy.
But, do we want courts to decide
on our most private choices, likes and dislikes, based on religious
and similarly intense preferences?
[74]
There is perhaps a third
possibility. Could it be argued that the Constitution itself
permits a free area?
[75]
The Constitution is the supreme law
of the land. It allocates powers to the State and enshrines the
fundamental rights of
its citizens. But it is more. It
also states the values on which we have agreed. The
Constitution is the credo
that binds our nation together. It
was born from our sad history of the violation of virtually all human
rights and embodies
our national vision of the future. It is
the yardstick by which we have to measure our achievements and
failures. A
constitution has been referred to as the
“autobiography of a nation”, the “window to a
nation’s soul”
or the “mirror in which a society
views itself”.
[58]
[76]
So, can one say that the
Constitution does not reach our private religious and social
spheres? I am not persuaded that we
can. Is it not rather
the case that the Constitution – as a set of values and
protected fundamental rights –
indeed reaches even into the
most intimate spaces;
but
carries with it
all
the rights and values it recognises? This would include not
only equality and non-discrimination which is of high importance
in
our constitutional constellation,
[59]
but also privacy, freedom of association and the autonomy of choice
that necessarily goes with the recognition of human dignity.
All of these were violated during our undemocratic past.
[77]
Rights sometimes compete, as we
know. The right to equality, for instance, often competes with
the rights to free expression,
dignity, privacy and freedom of
association. Even values like freedom and equality may
compete.
[60]
Therefore they often have to be weighed, balanced and limited. The
limitation clause provides for this.
[61]
To some extent, the balancing exercise is also what the so-called
horizontality debate is about.
[62]
[78]
In
Christian
Education
the following was stated:
“
[S]pecial
care has been taken in the text expressly to acknowledge the
supremacy of the Constitution and the Bill of Rights.
Section
31(2) ensures that the concept of rights of members of communities
that associate on the basis of language, culture and
religion, cannot
be used to shield practices which offend the Bill of Rights.
These explicit qualifications may be seen as
serving a double
purpose. The first is to prevent protected associational rights
of members of communities from being used
to ‘privatise’
constitutionally offensive group practices and thereby immunise them
from external legislative regulation
or judicial control. This
would be particularly important in relation to practices previously
associated with the abuse of
the notion of pluralism to achieve
exclusivity, privilege and domination. The second relates to
oppressive features of internal
relationships primarily within the
communities concerned, where section 8, which regulates the
horizontal application of the Bill
of Rights, might be specially
relevant.”
[63]
(Footnotes omitted.)
[79]
It is of course one thing to say
that the Constitution with its values and rights reaches everywhere,
but quite another to expect
the courts to make rulings and orders
regarding people’s private lives and personal preferences.
Courts are not necessarily
the best instruments to balance competing
rights and values in intimate spheres where emotions and convictions
determine choices
and association. In this case the
Supreme Court of Appeal, relying on the “doctrine of
entanglement”, held
that the dispute at issue was
quintessentially one which a secular court should try to avoid, if
possible.
[64]
[80]
The closer courts get to personal
and intimate spheres, the more they enter into the inner sanctum and
thus interfere with our privacy
and autonomy.
[65]
In a slightly different context Ackermann J said in
Bernstein
:
“
[E]ach
right is always already limited by every other right accruing to
another citizen. In the context of privacy this would
mean that
it is only the inner sanctum of a person, such as his/her family
life, sexual preference and home environment, which
is shielded from
erosion by conflicting rights of the community. This implies
that community rights and the rights of fellow
members place a
corresponding obligation on a citizen, thereby shaping the abstract
notion of individualism towards identifying
a concrete member of
civil society. Privacy is acknowledged in the truly personal
realm, but as a person moves into communal
relations and activities
such as business and social interaction, the scope of personal space
shrinks accordingly.”
[66]
[81]
In
Magajane
it was explained how
Bernstein
had “described what can be seen as a series of concentric
circles ranging from the core most protected realms of privacy
to the
outer rings that would yield more readily to the rights of other
citizens and the public interest”.
[67]
By analogy, it could be argued that the closer the tension between,
for example, equality on the one side and privacy and
free choice of
association on the other gets to the core of our private inner
sanctum, the less suitable courts are to pronounce
on the balancing
of these rights.
[82]
Courts are first and foremost fora
where disputes are adjudicated, even though they are used for wider
purposes as well. Litigation,
as we know it, normally results
in the finding of a winning and a losing party, often sealed by a
costs order.
[83]
Is it contradictory to say that the
Constitution does have a role to play in every sphere, but that we do
not want a court to intrude
into private spaces with the bluntness of
its orders? After all, the Constitution is law; we mostly want
law to be enforceable;
enforcement is important for the rule of law,
because unenforceable law can hardly “rule”. The
Constitution is
more than law, however. It is the legal and
moral framework within which we have agreed to live. It also
not only leaves,
but guarantees space to exercise our diverse
cultures and religions and express freely our likes, dislikes and
choices, as equals
with human dignity. In this sense one could
perhaps talk about a “constitutionally permitted free space”.
This is quite different from contending that certain areas in a
constitutional democracy are beyond the reach of the Constitution,
or
“constitution-free”.
[84]
This case does not require answers
to the above vexed questions. It shows a glimpse of the
complexity of the issues that cases
of this kind may raise. This
Court would need the benefit of more reflection and legal argument
before giving definite answers.
If and when necessary, to be
debated and decided properly, procedural compliance, the correct
forum and maximum participation by
all interested parties – to
name a few things – are necessary.
[85]
Arbitration, hopefully based on deep
reflection and understanding within the religious community where the
present issue is situated,
has to be the first port of call. And
if a court’s ruling becomes necessary, this Court should not
make one as a court
of first and last instance. In view of the
complexity of the questions involved, a wide range of arguments and
the views
of lower courts would greatly assist this Court, if it were
required to grapple with the merits of this case, or another of its
kind.
[86]
That – in short – is why
I concur with the reasoning and conclusion in the judgment by
Moseneke DCJ.
For the Applicant:
A De Vos SC, A Schmidt, S Wilson and I De Vos instructed by
Pieter Van R Coetzee
For the
Respondents:
W Trengove SC and I Goodman instructed by Malherbe
Rigg & Ranwell Inc
[1]
Clause 4.82 of the Laws and Discipline of the
Methodist Church of Southern Africa 11 ed (2007)
(Laws and Discipline)
states: “Ministers shall
observe and implement the provisions of the Laws and Discipline and
all other policies, decisions,
practices and usages of the Church”.
[2]
17 of 2006.
[3]
The Connexion is the headquarters level of the
Methodist Church of Southern Africa.
[4]
Clause 2.1(i) of Appendix 14 of the Laws and
Discipline provides that an arbitration panel “of not less
than three persons
and not more than five persons shall be appointed
by Conference” according to criteria established by
Conference.
Clause 2.1(ii) of Appendix 14 of the Laws and
Discipline provides that “there shall be a convener of this
panel appointed
by Conference”. Conference is the
principal decision-making organ of the Church.
[5]
Clause 2.2(ii) of Appendix 14 of the Laws and
Discipline.
[6]
Clause 2.2(ii) of Appendix 14 of the Laws and
Discipline provides, in relevant part, that “[i]f either party
refuses to
sign the . . . agreement, the convener shall have the
power to sign on their behalf”.
[7]
42 of 1965. Section 3(2) of the Act
provides:
“
The
Court may at any time on the application of any party to an
arbitration agreement,
on good
cause shown
(a)
set aside the arbitration agreement; or
(b)
order that any particular dispute referred
to in the arbitration agreement shall not be referred to
arbitration; or
(c)
order that the arbitration agreement shall
cease to have effect with reference to any dispute referred.”
(Emphasis
added.)
[8]
Ecclesia De Lange v The Presiding Bishop of
the Methodist Church of Southern Africa For the Time Being and
Another
, unreported judgment of the
Western Cape High Court, Cape Town, Case No 11159/2013
(26 June 2013) (High Court judgment)
at para 13.
[9]
Id at para 20.
[10]
Id at para 23.
[11]
Id at para 24.
[12]
Id at para 25.
[13]
Id at paras 26-7.
[14]
De Lange v Presiding Bishop, Methodist Church
of Southern Africa and Another
[2014]
ZASCA 151
; 2015 (1) SA 106 (SCA) (Supreme Court of Appeal
judgment). The Supreme Court of Appeal disposed of this matter
through
two judgments: one by Ponnan JA (Wallis JA, Pillay JA,
Fourie AJA and Mathopo AJA concurring) and a separate
concurrence
by Wallis JA with whom Fourie AJA concurred.
[15]
Id at paras 6 and 28.
[16]
Id at para 20.
[17]
Id at para 24.
[18]
Id at para 26, quoting the arbitration agreement.
[19]
Id.
[20]
Id at para 27.
[21]
Id at para 30. The Supreme Court of Appeal
held that the doctrine of entanglement strongly informs courts not
to get involved
in religious doctrinal issues. The effect of
the doctrine is that courts are reluctant to interfere with
religious doctrinal
disputes. See also Supreme Court of Appeal
judgment id at para 33, where the Supreme Court of Appeal
discusses
Ryland v Edros
1997 (2) SA 690
(C) wherein the High Court recognised this doctrine
as part of our new constitutional dispensation.
[22]
Supreme Court of Appeal judgment id at para 39
read with para 33.
[23]
The Supreme Court of Appeal supported its finding
that courts ought not to adjudicate on religious disputes with,
inter alia,
academic literature (see Supreme Court of Appeal
judgment id at fns 8-10), as well as foreign jurisprudence of the
United States
of America, the United Kingdom, Australia and Canada
(see Supreme Court of Appeal judgment id at paras
34-8).
[24]
Supreme Court of Appeal judgment id at para 43.
[25]
Id at para 44.
[26]
Id at para 43.
[27]
Id at para 68.
[28]
This Court made the following order on the day of
the hearing, 28 August 2015:
“
1.
The application for the matter to stand down or to be postponed is
dismissed.
2.
The applicant is granted leave to file an application for
condonation and for admission as an amicus curiae
no later than
Friday 11 September 2015.”
[29]
Rule 10(6) of the Rules of this Court lays down
three requirements to be admitted as an amicus curiae. The
application to
be so admitted must—
“
(a)
briefly describe the interest of the amicus curiae in the
proceedings;
(b)
briefly identify the position to be adopted by the amicus curiae
in
the proceedings; and
(c)
set out the submissions to be advanced by the amicus curiae, their
relevance to the proceedings and his or her reasons for believing
that the submissions will be useful to the Court and different
from
those of the other parties.”
[30]
Metallurgical and Commercial Consultants (Pty)
Ltd v Metal Sales Co (Pty) Ltd
1971
(2) SA 388
(W) at 391E-F.
[31]
In
The Rhodesian
Railways Ltd v Mackintosh
1932 AD 359
at 375, the Court called it a “very strong case”.
[32]
Universiteit van Stellenbosch v JA Louw Edms
(Bpk)
1983 (4) SA 321
(A) at 334A.
Here too, the Court resorted to the use of a “very strong
case” but was reluctant to define what
would amount to one.
[33]
South African Forestry Company Ltd v York
Timbers Ltd
[2002] ZASCA 110
;
2003 (1)
SA 331
(SCA) at para 14, quoted approvingly in the Supreme
Court of Appeal judgment above n 14 at para 23.
[34]
For example, where allegations of fraud are best
adjudicated in open court rather than private arbitration
proceedings, or where
a party’s counterclaims affect third
parties who were not subject to the arbitration and in respect of
which the arbitrator
lacks investigative powers. See
Welihockyj and Others v Advtech Ltd and
Others
2003 (6) SA 737
(W) at paras
28-9 and 35. See also Ramsden
The
Law of Arbitration
South
African and International Arbitration
(Juta & Co Ltd, Cape Town 2009) at 108.
[35]
Lufuno Mphaphuli and Associates
(Pty) Ltd v Andrews and Another
[2009] ZACC 6
;
2009 (4) SA 529
(CC);
2009 (6) BCLR 527
(CC) at paras
235-6.
[36]
High Court judgment above n 8 at para 25.
[37]
4 of 2000.
[38]
See section 20 of the Unfair Discrimination Act.
Section 20(1) embraces a broad notion of standing. Once a
complainant
envisaged in section 20(1) institutes proceedings, the
clerk of the Equality Court refers the matter to a presiding officer
who
then determines whether the application falls within the
jurisdiction of the Equality Court. Before deciding
whether
a specific case should be heard, the presiding officer must
consider all material factors as enunciated in section 20(4).
If a matter fails to meet the jurisdictional requirements of the
Equality Court, the presiding officer is empowered to direct
the
matter to an alternative forum. Section 20(9) further
obligates the State and constitutional institutions to assist
any
person wishing to institute proceedings under the Unfair
Discrimination Act.
[39]
Supreme Court of Appeal judgment above n 14 at
para 19.
[40]
My Vote Counts NPC v Speaker of the National
Assembly and Others
[2015] ZACC 31.
The majority judgment repeated the importance of the principle of
subsidiarity and the need to adhere to it. This
Court held at
para 160 that—
“
allowing
a litigant to rely directly on a fundamental right contained in the
Constitution, rather than on legislation enacted
in terms of the
Constitution to give effect to that right, ‘would defeat the
purpose of the Constitution in requiring the
right to be given
effect by means of national legislation.’”
(Footnote omitted.)
This
Court further held at paras 122 and 180 that the
Promotion of Access
to Information Act 2 of 2000
is legislation enacted to give effect
to section 32(2) of the Constitution, and therefore the applicant
should have frontally
challenged this legislation for its
shortcomings in terms of the principle of subsidiarity.
See
also
Sali v National Commissioner of the South African Police
Service and Others
[2014] ZACC 19
; 2014 (9) BCLR 997 (CC)
at para 4 and
MEC for Education, KwaZulu-Natal, and Others v
Pillay
[2007] ZACC 21
[2007] ZACC 21
; ;
2008 (1) SA 474
(CC);
2008 (2) BCLR
99
(CC) at para 40.
[41]
Manong & Associates (Pty) Ltd v Department
of Roads and Transport Eastern Cape and Others
(No 2)
[2009] ZASCA 50
;
2009 (6) SA 589
(SCA) at paras 54 and 57;
Manong
& Associates (Pty) Ltd v Department of Roads and Transport,
Eastern Cape, and Another (No 1)
[2009] ZASCA 59
;
2009 (6) SA 574
(SCA) at paras 30-1; and
Minister of Environmental Affairs and
Tourism v George and Others
[2006]
ZASCA 57
;
2007 (3) SA 62
(SCA) (
George
)
at paras 12-3. See also
Qwelane v
Minister of Justice and Constitutional Development and Others
[2014]
ZAGPJHC 334;
2015 (2) SA 493
(GJ) (
Qwelane
)
at para 5.
[42]
Qwelane
id at
para 1.
[43]
George
above n
41 at paras 17 and 19.
[44]
Id at para 17. The Equality Court came to
the same conclusion in
Qwelane
above
n 41 at para 8.
[45]
These rules regulate the conduct of the
proceedings in the High Court. Rule 16A, entitled “Submissions
by an amicus
curiae”, in relevant part, provides:
“
(1)
(a)
Any person raising a constitutional
issue in an application or
action shall give notice thereof to the registrar at the time of
filing the relevant affidavit or
pleading.
(b)
Such notice shall contain a clear and succinct description of the
constitutional issue concerned.
(c)
The registrar shall, upon receipt of such notice, forthwith place
it
on a notice board designated for that purpose.
. . .
.
(2)
Subject to the provisions of national legislation enacted in
accordance
with section 171 of the Constitution . . . and these
Rules, any interested party in a constitutional issue raised in
proceedings
before a court may, with the written consent of all the
parties to the proceedings, given not later than 20 days after the
filing
of the affidavit or pleading in which the constitutional
issue was first raised, be admitted therein as amicus curiae upon
such
terms and conditions as may be agreed upon in writing by the
parties.
. . .
.
(5)
If the interested party . . . is unable to obtain the written
consent [of the parties] he or she may, within five days of the
expiry of the 20-day period prescribed in [sub rule (2)],
apply to the court to be admitted as an amicus curiae in the
proceedings.
. . .
.
(9)
The court may dispense with any of the requirements of this rule
if
it is in the interests of justice to do so.”
[46]
Children’s Institute v Presiding Officer
of the Children’s Court, District of Krugersdorp and Others
[2012] ZACC 25;
2013 (2) SA 620
(CC);
2013 (1) BCLR 1
(CC) at
para 25.
[47]
Id.
[48]
This argument is made to buttress the submission
by the Church that it is not in the interests of justice to revive
Ms De Lange’s
unfair discrimination claim, which she abandoned
in the High Court.
[49]
In
Shoprite Checkers
(Pty) Ltd v MEC for Economic Development, Environmental Affairs and
Tourism: Eastern Cape and Others
[2014] ZAECGHC 106;
2015 (1) BCLR 102
(E) at paras 15-7, Shoprite
failed to comply with rule 16A, but subsequently remedied this
procedural defect. Shoprite
then applied for condonation for
not complying strictly with the rule. The High Court found
that Shoprite had “shown
good cause why its initial failure to
comply [with the rule] should be condoned”.
In
Weare and Another v
Ndebele NO and Others
[2008] ZAKZHC 89
;
2008 (5) BCLR 553
(N) at
para 6, the High Court granted condonation for the lateness of the
rule 16A notice. The applicants failed to notify
the registrar
within the prescribed period. The applicants had, however,
notified the respondents within such time.
The Court found
that none of the parties had been prejudiced.
[50]
In
Phillips v South
African Reserve Bank and Others
[2012]
ZASCA 38
;
2013 (6) SA 450
(SCA);
2012 (7) BCLR 732
(SCA), the court
of first instance (North Gauteng High Court) postponed the matter
sine die
(indefinitely) on the day of hearing because it found that Mr
Phillips had not complied with rule 16A as there was no indication
that he had filed a notice or, if it had been filed, that the notice
had been placed on the relevant notice board. The
High Court
held that failure to comply with rule 16A(1) could not be condoned,
and that if the applicant persisted with his constitutional
challenge, the matter would have to be postponed so that rule 16A
could be followed, and that Mr Phillips would bear the
costs of the
postponement. The High Court ordered Mr Phillips to pay
“wasted costs” to the respondents.
The Supreme
Court of Appeal, however, set aside the order. The Court, per
Farlam JA at para 55, also suggested a way forward
in light of the
frequency of non compliance with rule 16A, part of which was
that—
“
those
responsible for drafting (and settling) founding affidavits in
constitutional cases . . . should make it a practice of inserting
an
allegation that a notice (a copy of which is annexed) has been
prepared in terms of the rule, and is to be handed to the registrar
. . . when the founding . . . affidavit is filed.”
Farlam JA also urged
respondents, specifically organs of state, to “follow the
practice of checking as soon as the papers
are received that the
rule has been complied with and, if it appears not to have been, of
bringing the omission to the attention
of the applicant’s
attorney”.
[51]
See the order of this Court dated 28 August 2015
above n 28 granting leave to FOR SA to file an application for
condonation and
admission as amicus curiae.
[52]
[26] to [28] above.
[53]
Lamprecht and Malinowski
Richter
Machen Politik
(Fischer
Taschenbuchverl, Frankfurt 1979) at 11-2. The authors of the
words above were the correspondent and editor, respectively,
of
current affairs magazine
Der Spiegel
.
The free English translation is mine.
[54]
See Van der Westhuizen “The Protection of
Human Rights and a Constitutional Court for South Africa: Some
Questions and Ideas,
with Reference to the German Experience (Part
2)” (1991) 2
De Jure
245
at 247.
[55]
See, for example, De Vos and Freedman (eds)
South
African Constitutional Law in Context
(OUP,
Cape Town 2014) at 72.
[56]
Questions on the reach of the law into private
spheres, and its relation to morality, are not new. For
example, generations
of legal philosophy students have had to study
the well-known debate between Professor HLA Hart and Lord Devlin.
See, for
example, Meyerson
Jurisprudence
(OUP, Melbourne 2011) at 279-83.
[57]
Christian Education South Africa v Minister of
Education
[2000] ZACC 11
;
2000 (4) SA
757
(CC);
2000 (10) BCLR 1051
(CC) (
Christian
Education
) at para 35.
[58]
These and other descriptions were widely used in
debates about the drafting of a new constitution for a democratic
South Africa
in the years leading up to the adoption of the interim
and the final Constitution.
[59]
The phrase “constitutional constellation”
was used in a memorable passage by Jackson J in
West
Virginia State Board of Education v Barnette
63
S Ct 1178
(1943) at para 10.
[60]
These appear, for example, in sections 1 and 36
of the Constitution. Whether we are an “egalitarian”
or a “libertarian”
society has been the subject of
debate.
[61]
Section 36 of the Constitution provides that:
“
(1)
The rights in the Bill of Rights may be limited only in terms of law
of general
application to the extent that the limitation is
reasonable and justifiable in an open and democratic society based
on human
dignity, equality and freedom, taking into account all
relevant factors, including—
(a)
the nature of the right;
(b)
the importance of the purpose of the limitation;
(c)
the nature and extent of the limitation;
(d)
the relation between the limitation and its purpose; and
(e)
less restrictive means to achieve the purpose.
(2)
Except as provided in subsection (1) or in any other provision of
the Constitution, no law may limit any right entrenched in the Bill
of Rights.”
[62]
This Court dealt with the “horizontal
application” of the interim Constitution to private legal
relationships in,
amongst others,
Du
Plessis and Others v De Klerk and Another
[1996]
ZACC 10
;
1996 (3) SA 850
(CC);
1996 (5) BCLR 658
(CC)
.
Now, the “horizontal
application” of fundamental rights is encapsulated in sections
8(2), 9(4) and 39(2) of the Constitution.
[63]
Christian Education
above n 57 at para 26.
[64]
Supreme Court of Appeal judgment above n 14 at
para 30.
[65]
Magajane v Chairperson, North West Gambling
Board
[2006] ZACC 8
;
2006 (5) SA 250
(CC);
2006 (10) BCLR 1133
(CC) (
Magajane
)
at para 42 which quotes
Bernstein and
Others v Bester and Others NNO
[1996] ZACC
2
[1996] ZACC 2
; ;
1996 (2) SA 751
(CC);
1996 (4) BCLR 449
(CC) (
Bernstein
)
at para 67.
[66]
Bernstein
id at
para 67.
[67]
Magajane
above n
65 at para 42.