De Lange v Presiding Bishop, Methodist Church of Southern Africa and Another

• Jurisdiction: South Africa
• Citation: 2015 (1) SA 106 (SCA)

De Lange v Presiding Bishop, Methodist Church of Southern Africa and Another
2015 (1) SA 106 (SCA)

2015 (1) SA p106

Citation	2015 (1) SA 106 (SCA)
Case No	726/13; [2014] ZASCA 151
Court	Supreme Court of Appeal
Judge	Ponnan JA, Wallis JA, Pillay JA, Fourie AJA and Mathopo AJA
Heard	August 26, 2014
Judgment	September 29, 2014
Counsel	A de Vos SC (with AF Schmidt) for the appellant.; W Trengove SC (with I Goodman) for the respondents.

Flynote : Sleutelwoorde B

Voluntary association — Disciplinary proceedings — Methodist minister announcing intention to enter same-sex marriage — Contravention of church's law — Church disciplinary tribunals terminating ministry — Minister C referring matter to arbitration — Arbitration prescribed by church laws — Whether good cause to set aside arbitration agreement — Doctrine of entanglement — Whether arbitration agreement concluded — Arbitration Act 42 of 1965, s 3(2).

Arbitration — Matters excluded — Matters of status — Semble: Matter of status D possibly including person's right to hold an office — Such office might include position of ordained minister of religion — Arbitration Act 42 of 1965, s 2(b).

Headnote : Kopnota

De Lange, a Methodist Church minister, announced to her congregations her intent to enter into a same-sex marriage. This caused the church to charge E her with breaking its rules. The rule in question was that ministers shall obey church policy, and church policy was to recognise only heterosexual marriages. The church's district disciplinary committee later found her guilty, and De Lange appealed to its connexional disciplinary committee. It confirmed the verdict, and as sentence discontinued her holding of the F office of minister. De Lange then referred the matter to arbitration, and its convenor entered into an arbitration agreement on her behalf. (The church rules provided that arbitration had to be used for resolution of disputes between ministers and the church.) However before the arbitration proceeded, De Lange approached a high court. There she applied to set aside the arbitration agreement; for a declaration that the decision to discontinue G her ministry was unlawful in its being based on a policy that was unfairly discriminatory on the ground of sexual orientation; for the review and setting-aside of the disciplinary committee's decisions; and for her reinstatement. (De Lange later abandoned the claim of unfair discrimination in her replying affidavit.) (Paragraphs [1] and [19] – [20] at 109A – 110B and 116D – 117B.)

H The high court dismissed the application, holding that De Lange ought first to have concluded the arbitration. It granted leave to appeal to the Supreme Court of Appeal. In issue was whether De Lange had shown good cause to set aside the arbitration agreement (s 3(2) of the Arbitration Act 42 of 1965). (Paragraphs [15] and [23] at 114F – G and 118D – I.)

The SCA held that she had not. This on the basis that the grounds De Lange I advanced as constituting good cause were without merit; and because the dispute — concerning church rules — ought to be left to the church to determine. Held in this regard, that a court should only become involved in such a dispute if it were strictly necessary; and if it did become involved, it ought to refrain from deciding issues of religious doctrine. Accordingly it dismissed the appeal. (Paragraphs [29] – [30], [39] and [41] – [42] at J 122D – 123B, 127E – G and 127J – 128B.)

2015 (1) SA p107

In a concurring judgment Wallis JA considered two issues. The first was whether A this was a 'matter relating to status'. (Section 2(b) of the Arbitration Act provides that 'a reference to arbitration shall not be permissible in respect of any matter relating to status'.) Held, that it might be. This in that 'a matter relating to status' possibly included a person's right to hold office; and an office could include the position of an ordained minister of religion. Were this the case, De Lange's dispute — concerning her right to hold office — could not be arbitrated. (Paragraph [45] at 128I – 129D.) B

The second issue was whether there was an arbitration agreement. (The litigants assumed there was.) Held, that there was not. This because Methodist ministers did not contract with the church to be bound by the Laws and Discipline, the document containing the terms of the purported arbitration agreement. Ministers followed the Laws rather as a discipline. (Paragraphs C [47], [51], [56] – [57] and [67] at 129G – 130D, 131E, 133C – I and 138C – E.)

Cases Considered

Annotations

Case law D

Southern Africa

Allen and Others NNO v Gibbs and Others1977 (3) SA 212 (SE): referred to

Church of the Province of Southern Africa Diocese of Cape Town v Commission for Conciliation, Mediation and Arbitration and Others2002 (3) SA 385 (LC): referred to

Commission for Conciliation, Mediation and Arbitration and Others v Law Society of the Northern Provinces E 2014 (2) SA 321 (SCA): dictum in para [19] applied

De Villiers v Jacobsdal Saltworks (Michaelis and De Villiers) (Pty) Ltd1959 (3) SA 873 (O): referred to

Gohlke and Schneider and Another v Westies Minerale (Edms) Bpk and Another1970 (2) SA 685 (A): referred to F

Hamata and Another v Chairperson, Peninsula Technikon Internal Disciplinary Committee, and Others2002 (5) SA 449 (SCA): dictum in para [20] applied

Jacobs v Old Apostolic Church of Africa and Another1992 (4) SA 172 (Tk): referred to

Mervis Brothers v Interior Acoustics and Another1999 (3) SA 607 (W): referred to G

Metallurgical and Commercial Consultants (Pty) Ltd v Metal Sales Co (Pty) Ltd1971 (2) SA 388 (W): dictum at 391 applied

Minister of Home Affairs and Another v Fourie and Another (Doctors for Life International and Others, Amici Curiae); Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Others2006 (1) SA 524 (CC) (2006 (3) BCLR 355; [2005] ZACC 20): referred to H

Minister of Land Affairs and Agriculture and Others v D & F Wevell Trust and Others2008 (2) SA 184 (SCA): dictum in para [43] applied

Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd1984 (3) SA 623 (A): applied

Ryland v Edros1997 (2) SA 690 (C) (1997 (1) BCLR 77; [1996] 4 All SA 557): dictum at 703E applied I

Salvation Army (South African Territory) v Minister of Labour (2005) 26 ILJ 126 (LC): referred to

Schreuder v Nederduitse Gereformeerde Kerk, Wilgespruit (1999) 20 ILJ 1936 (LC): referred to

South African Forestry Co Ltd v York Timbers Ltd2003 (1) SA 331 (SCA): dictum in para [14] applied J

2015 (1) SA p108

Taylor v Kurtstag NO and Others A 2005 (1) SA 362 (W) (2005 (7) BCLR 705; [2004] 4 All SA 317): dictum in para [39] applied

Telecall (Pty) Ltd v Logan2000 (2) SA 782 (SCA): referred to

Transnet Ltd v Rubenstein2006 (1) SA 591 (SCA) ([2005] 3 All SA 425): dictum in para [28] applied

Trinity Asset Management (Pty) Ltd and Others v Investec Bank Ltd and Others B 2009 (4) SA 89 (SCA): referred to

Universiteit van Stellenbosch v JA Louw (Edms) Bpk1983 (4) SA 321 (A): dictum at 334A applied

Wittmann v Deutscher Schulverein, Pretoria and Others1998 (4) SA 423 (T) (1999 (1) BCLR 92): referred to

Yiba and Others v African Gospel Church C 1999 (2) SA 949 (C): referred to.

Australia

Attorney-General (NSW) v Grant[1976] HCA 38: referred to.

Canada

Coombes v National Phoenix 1984 Firearms Information and Communication D Association2009 ABQB 566: referred to

Lakeside Colony of Hutterian Brethren v Hofer[1992] 3 SCR 165: referred to

Street v BC School Sports2005 BCSC 958: referred to.

England

Ampthill Peerage Case[1976] 2 All ER 411 (HL): referred to

Davies v Presbyterian Church of Wales E [1986] 1 All ER 705 (HL): referred to

Percy v Church of Scotland Board of National Mission[2005] UKHL 73: referred to

President of the Methodist Conference v Parfitt[1983] 3 All ER 747 (CA): referred to

President of the Methodist Conference v Preston[2013] UKSC 29: referred to

R v Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, ex parte Wachmann F [1993] 2 All ER 249 (QB) ([1992] 1 WLR 1036): referred to

R v St Edmundsbury and Ipswich Diocese (Chancellor), Ex parte White[1946] 2 All ER 604: referred to

Rogers v Booth[1937] 2 All ER 751: referred to

Shergill v Khaira G [2014] UKSC 33: referred to.

United States

Presbyterian Church in the United States v Mary Elizabeth Blue Hull Memorial Presbyterian Church393 US 440 (1969): referred to

Serbian Orthodox Diocese v Milivojevich426 US 696 (1976): referred to

United States v Ballard322 US 78 (1944): referred to.

Statutes Considered

H Statutes

The Arbitration Act 42 of 1965, ss 2(b) and 3(2): see Juta's Statutes of South Africa 2013/14 vol 1 at 2-5.

Case Information

A de Vos SC (with AF Schmidt) for the appellant.

W Trengove SC I (with I Goodman) for the respondents.

An appeal from the Western Cape High Court, Cape Town (Veldhuizen J). The order is in para [42].

Order

J The appeal is dismissed.

2015 (1) SA p109

Judgment

Ponnan JA (Wallis JA, Pillay JA, Fourie AJA and Mathopo AJA A concurring):

[1] 'People, as Kant said somewhere, are ungregariously gregarious. They may associate for some purpose and then may quarrel. The group, its majority or those in power, may want to expel the troublemaker; and B he, in his turn, may complain of unfair treatment. Both sides may have their points, though an impartial observer may think the quarrel not worth the ado, nor the offence perhaps worth expulsion. But the observer may feel reluctant to take sides, where the dispute is between one and many. The many may seem too hasty or severe, but then they also represent, if anyone represents, the group's collective wish or purpose C . . . .' [1] This is an appeal against the judgment and order of the...