De Lange v Presiding Bishop of the Methodist Church of Southern Africa for the Time Being and Another

Ms Ecclesia de Lange, an ordained minister of the Methodist Church of Southern Africa, was suspended and subsequently discontinued from her ministerial role after she announced her intention to marry her same-sex partner. The Church charged her with breaching clause 4.82 of its Laws and Discipline by announcing her intention to enter into a same-sex marriage, which violated the Church's policy of recognising only heterosexual marriages. The district disciplinary committee found her guilty and the connexional disciplinary committee upheld the verdict, discontinuing her as a minister. She was barred from exercising ministerial functions, holding any station or receiving emoluments. The Church's Laws and Discipline required disputes to be resolved through binding arbitration. Ms De Lange signed the arbitration agreement under protest but later refused to participate, instead filing an application in the High Court seeking to set aside the arbitration agreement under section 3(2) of the Arbitration Act 42 of 1965. She initially raised an unfair discrimination claim but later disavowed it in the High Court to avoid a jurisdictional challenge. The High Court dismissed her application, finding no good cause to set aside the arbitration agreement. The Supreme Court of Appeal upheld the decision, finding she had not shown good cause and had disavowed her discrimination claim.

• Whether Ms De Lange showed good cause under section 3(2) of the Arbitration Act to set aside the arbitration agreement
• Whether Ms De Lange properly disavowed her unfair discrimination claim in the High Court
• Whether the principle of constitutional subsidiarity required the unfair discrimination claim to be heard first by the Equality Court
• Whether it was in the interests of justice to grant leave to appeal
• Whether the Constitutional Court should decide the unfair discrimination claim as a court of first and last instance
• Whether failure to comply with Rule 16A notice requirements was fatal to the application

Leave to appeal refused. No order as to costs. The application by Freedom of Religion South Africa to be admitted as amicus curiae was also refused.

The binding legal principles are: (1) A party seeking to set aside an arbitration agreement under section 3(2) of the Arbitration Act 42 of 1965 must show good cause, which requires demonstration that implementation of the agreement would result in a futile, unfair or unreasonable outcome or unjustifiably diminish constitutional protections. Absent such constitutional infringement or compelling reason, courts will uphold valid arbitration agreements. (2) The doctrine of constitutional subsidiarity requires that where legislation is enacted to give effect to a constitutional right (such as the Promotion of Equality and Prevention of Unfair Discrimination Act for section 9 equality rights), a litigant may not bypass that legislation and rely directly on the Constitution without challenging the legislation as constitutionally deficient. (3) Unfair discrimination claims based on section 9 must be heard by the Equality Court as required by section 20 of the Promotion of Equality and Prevention of Unfair Discrimination Act. (4) A High Court may consolidate claims falling within its dual jurisdiction as Equality Court and ordinary High Court. (5) An unequivocal disavowal of a legal claim in a lower court prevents that claim from being raised for the first time on appeal. (6) Leave to appeal will only be granted where there is a reasonable prospect of success and it is in the interests of justice, considering factors including procedural compliance and appropriateness of the forum.

Van der Westhuizen J made important observations about the reach of the Constitution into private and religious spheres. He questioned whether there can be a "constitution-free zone" in a constitutional democracy, suggesting instead that while the Constitution and its values reach all spheres including the most intimate spaces, it carries with it all the rights it recognizes, including privacy, freedom of association and autonomy of choice. He noted that rights sometimes compete and must be balanced, and that courts are not necessarily the best instruments to balance competing rights and values in intimate spheres where emotions and convictions determine choices and association. He suggested the concept of a "constitutionally permitted free space" - not that certain areas are beyond the Constitution's reach, but that the Constitution itself guarantees space to exercise diverse cultures, religions and choices. He emphasized that the closer courts get to personal and intimate spheres, the more they interfere with privacy and autonomy, and the less suitable courts become for pronouncing on the balancing of rights. The judgment also noted with approval the Supreme Court of Appeal's reference to the "doctrine of entanglement" which suggests secular courts should avoid becoming entangled in religious doctrinal disputes where possible. Moseneke DCJ observed that this case raises "numerous difficult questions" at the "difficult intersection of the doctrinal definition of marriage and unfair discrimination" which the Court deliberately did not reach.

This case is significant for establishing that: (1) the principle of constitutional subsidiarity requires unfair discrimination claims to be channeled through the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 and heard by the Equality Court, not directly based on section 9 of the Constitution; (2) consolidation of equality and other claims before the High Court (sitting in dual capacity) is permissible to avoid piecemeal litigation; (3) courts will not lightly set aside arbitration agreements absent compelling constitutional reasons; (4) the Constitutional Court will be reluctant to decide complex cases involving competing fundamental rights (equality, freedom of religion, freedom of association) as a court of first and last instance without the benefit of lower court determinations; (5) unequivocal disavowal of a legal claim cannot later be reversed on appeal; and (6) while the Constitution reaches all spheres of life with its values and rights, arbitration and internal dispute resolution may be more appropriate than court adjudication for resolving disputes in intimate religious and associational contexts. The case highlights the tension between equality rights and freedom of religion/association but deliberately does not resolve this substantive issue.