27 November 2015
South Africa's Constitutional Court this week dismissed an appeal by former church minister and out and proud lesbian, Ecclesia de Lange over an arbitration agreement with the Methodist Church of Southern Africa.
She was suspended and discontinued as an active minister in 2010, for breaching church policy, after announcing her intended marriage to her girlfriend at the time. The couple have since divorced.
The matter was referred for internal arbitration and a convener entered into a final agreement on her behalf with the church a year later.
"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,” Deputy Chief Justice Dikgang Moseneke said in a unanimous written judgment earlier this week.
"It is not only appropriate, but it would be the best solution in the present circumstances."
De Lange initially attempted to have the agreement set aside in the Western Cape High Court. She also contended at the time that she had been unfairly discriminated against.
The Supreme Court of Appeal concurred with the High Court finding, saying she had disavowed the unfair discrimination claim.
According to a Constitutional Court summary on Tuesday, De Lange had conceded before that she was in breach of the church’s rule barring ministers from entering into same-sex marriages. However, she had argued that the church’s reliance on the rule contravened her right to equality under the Constitution.
The court found she had not shown good cause to set the arbitration agreement aside. It also ruled that she was not free to raise the claim of unfair discrimination for the first time on appeal.
It was of the opinion that she should have FIRST brought her unfair discrimination claim to the Equality Court.
Lastly, she failed to file a notice to the High Court. The Constitutional Court felt this had deprived other interested parties, including religious communities, the opportunity to intervene as parties to the dispute or friends of the court.