Gaum and Others v Van Rensburg NO and Others (40819/17) [2019] ZAGPPHC 52; [2019] 2 All SA 722 (GP) (8 March 2019)

Gaum and Others v Van Rensburg NO and Others (40819/17) [2019] ZAGPPHC 52; [2019] 2 All SA 722 (GP) (8 March 2019)

The court found that the 2016 decision of the General Synod was procedurally irregular and unlawful, as it failed to properly set aside or amend the 2015 decision in accordance with the mechanisms provided in the Church Order. The appeals process was invalid, and the 2015 decision remained in force when the 2016 decision was adopted. The court held that the 2016 decision constituted unfair discrimination against LGBTQIA+ members by excluding them from leadership positions and church marriage ceremonies, violating their rights to equality, dignity, freedom of association, and freedom of religion as protected by the Constitution. The Church failed to provide any factual justification for...

Citation
[2019] ZAGPPHC 52
Parties
Applicant: Louis Laurens Botha Gaum; Applicant: Michelle Rose Boonzaaier; Applicant: Judith Johanna Kotze; Applicant: Frederik Malherbe Gaum; Respondent: Nelis Janse Van Rensburg N.O.; Respondent: Dewyk Ungerer N.O.; Respondent: Gustav Claasen N.O.; Respondent: Matthys Johannes Nicolaas Van Der Merwe N.O.; Respondent: General Synod of the Dutch Reformed Church; Respondent: Dutch Reformed Church; Respondent: Minister of Home Affairs; Applicant: Commission for Gender Equality; Applicant: Alliance Defending the Autonomy of Churches in South Africa
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
8 March 2019
Case Number
40819/17
Procedural Posture
Review Application / Judgment After Full Hearing
Outcome
Application granted. The 2016 decision of the General Synod is declared unlawful and invalid, reviewed and set aside. Costs awarded to the applicants.
Judges
T.J. Raulinga, S. Potterill, D.S. Molefe
Legal Topics
Unfair Discrimination, Freedom of Religion, Church Autonomy, Same Sex Marriage, Equality Clause, Judicial Review
Constitutional Law Civil Procedure Family and Children Unfair Discrimination Freedom of Religion Church Autonomy Same Sex Marriage Equality Clause +1 more

Case Brief

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Parties

Louis Laurens Botha Gaum

Applicant

Michelle Rose Boonzaaier

Applicant

Judith Johanna Kotze

Applicant

Frederik Malherbe Gaum

Applicant

Nelis Janse Van Rensburg N.O.

Respondent

Dewyk Ungerer N.O.

Respondent

Gustav Claasen N.O.

Respondent

Matthys Johannes Nicolaas Van Der Merwe N.O.

Respondent

General Synod of the Dutch Reformed Church

Respondent

Dutch Reformed Church

Respondent

Minister of Home Affairs

Respondent

Commission for Gender Equality

Applicant

Alliance Defending the Autonomy of Churches in South Africa

Applicant

Procedural Posture

Review Application / Judgment After Full Hearing

Legal Issues

  1. 1 Whether the 2016 decision of the General Synod of the Dutch Reformed Church was procedurally valid under the Church Order.
  2. 2 Whether the 2016 decision unlawfully discriminated against members based on sexual orientation.
  3. 3 Whether the decision is reviewable under PAJA or common law.

Ratio Decidendi

The court found that the 2016 decision of the General Synod was procedurally irregular and unlawful, as it failed to properly set aside or amend the 2015 decision in accordance with the mechanisms provided in the Church Order. The appeals process was invalid, and the 2015 decision remained in force when the 2016 decision was adopted. The court held that the 2016 decision constituted unfair discrimination against LGBTQIA+ members by excluding them from leadership positions and church marriage ceremonies, violating their rights to equality, dignity, freedom of association, and freedom of religion as protected by the Constitution. The Church failed to provide any factual justification for...

Court Disposition

Application granted. The 2016 decision of the General Synod is declared unlawful and invalid, reviewed and set aside. Costs awarded to the applicants.

Orders

  • The decision on same-sex relationships adopted during the extraordinary meeting of the General Synod of the Dutch Reformed Church during 7-10 November 2016 is declared unlawful and invalid.
  • This decision is reviewed and set aside.