The Alliance Defending the Autonomy of Churches in South Africa (ADACSA), who appeared as a Friend of the Court in the case of Gaum versus General Synod of the Dutch Reformed Church, has filed an application with the Pretoria High Court to obtain clarity from the judges regarding their recent judgment against the church.
According to ADACSA, it is not clear whether the church’s 2016 decision pertaining to same-sex relationships was set aside only on procedural grounds, or also because the court found the decision to be in violation of the right to equality and other constitutional rights.
As a result of the ambiguity, ADACSA says it is not in a position to advise the denominations, churches and other organisations making up the alliance, whether or not they should apply for leave to appeal the judgment – particularly in circumstances where the DRC has now decided not to appeal.
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In their court papers, ADACSA refers to a news article by Prof Pierre de Vos, professor in constitutional law at the University of Cape Town, wherein he expresses uncertainty regarding the true intention and effect of the judgment on other churches and religious organisations. In particular, he expressed the opinion that the part of the judgment relating to the constitutional issues, “may be obiter dictum (an opinion expressed in a written judgment, but not essential to the decision and therefore not binding on other courts)”.
According to Michael Swain, Executive Director of Freedom of Religion South Africa (FOR SA): “It is important to clarify if the court’s statements regarding the constitutionality of the church’s decision form part of the court’s rationale for setting the 2016 decision aside, or whether they were intended as opinion statements only. If they do form part of the rationale for the judgment, this would make substantial inroads on the autonomy of religious organisations to set their own doctrine. This, in turn, sets a dangerous precedent, which is a cause for great concern and may well have to be appealed.”
