By FOR SA Correspondent
On Tuesday, June 24, the Equality Court in Bellville ruled that it was in the interest of the parties, and indeed in the interest of justice, that the dispute between the homosexual couple (as Complainant) and the Christian owners of “House of Bread” guest house in Wolseley (as Respondents), at this point be referred to an agreed institution for conciliation, mediation or negotiation.
The ruling of the Court follows a request by Freedom of Religion South Africa (FOR SA), acting as First Amicus Curiae in the matter, and the Christian guest house owners in Court last week Tuesday, for an opportunity to “meaningfully engage” with the homosexual couple in a less adversarial environment in an attempt to amicably resolve the matter. This request was not supported by the homosexual couple (who is legally represented by the South African Human Rights Commission) or the Commission for Gender Equality (acting as Second Amicus Curiae), who were not interested in an amicable resolve and demanded that the Court decide the matter.
In Court this week, the Magistrate pointed out that on the facts as agreed between the parties, it is clear that the Christian owners already on a previous occasion when the issue first arose and before legal proceedings were instituted against them, were desirous to amicably resolve the matter but that the homosexual couple was not interested.
The Magistrate referred to the power and discretion given to the Equality Court in terms of section 21(4) of the Promotion of Equality and Protection of Unfair Discrimination Act, to at any stage refer the matter to an appropriate body for conciliation, mediation and negotiation. The Court then agreed with FOR SA and the Christian guest house owners that, having regard to the purpose of the Constitution of South Africa and the guiding principles of the Equality Act, it was appropriate that the matter be mediated at this point.
Building bridge of mutual respect and acceptance
In its judgment, the Court referred to and agreed with the legal submissions of FOR SA that mediation “is in the interest of not only of the parties involved in the dispute, but in the interest of building a bridge of mutual respect and acceptance between the broader gay and lesbian community on the one hand and the Christian faith community on the other, rather than drive a wedge between these communities as this case unfortunately has the potential to do …”
The Court accordingly postponed the matter sine die (i.e. without setting a specific date on which the parties must return to Court) for this purpose. The next step is for the parties to agree on a suitable mediator, to mediate the dispute. They may return to Court only when the dispute has been successfully mediated and resolved, or when it is clear that attempts at mediation have failed and that there is no alternative but for the Court to adjudicate the matter.
Needless to say, mediation will only be successful if both parties are committed to the process and make a sincere effort to meaningfully engage with each other, with a view to resolving the matter in a friendly manner outside of court.
In this regard and following the Court’s ruling, the Complainant is already reported to have stated that he was “disappointed and was hoping the case would proceed”, but was “determined to see it through to what will hopefully be a fair ruling in terms of our constitutional democracy because this is what it is all about, not religious freedom”.
FOR SA and the Christian guest house owners remain hopeful however that the parties, in talking to and hearing each other, will arrive at a place of mutual respect and tolerance of each other’s viewpoints and ultimately an amicable resolve to their dispute, as it is not preferable for the Court to “sit as judge on difficult and controversial questions of moral judgment [where] in the end, the nature of the proceedings being litigious, there will be a winner and a loser and ultimately, a ‘correct’ and a ‘wrong’ world view or moral framework as decided by the Court. This, when our Constitution is founded upon the very concepts of pluralism, diversity and tolerance which allow for and indeed embrace different world views existing alongside and making space for each other.”
In this regard, it is noteworthy to point out the following statement by the Constitutional Court in Minister of Home Affairs v Fourie: Lesbian and Gay Equality Project v Minister of Home Affairs (2006), which was also referred to by the Magistrate in his ruling on Tuesday: “The hallmark of an open and democratic society is its capacity to accommodate and manage difference of intensely-held world views and lifestyles in a reasonable and fair manner.”
Significantly, the Court as part of its judgment pointed out that, without pre-judging the matter but having regard to the agreed facts between the parties, “what concerns the Court, is that the Complainant [who instituted the legal proceedings against the guest house owners] is not the party against whom the act of discrimination was directed. The Court does not have the position of Mr Sedgwick [the party who made the initial contact with the guest house to book a room for the Complainant and himself] before it. In fact, it is common cause that Mr Sedgwick at that point, had no issue with what the Second Respondent [the guest house owners] conveyed. In terms of the Stated Case, they parted in a friendly manner. There is no indication that at that point, Mr Sedgwick was aggrieved, humiliated or offended.”
Commenting on the Court’s ruling to refer the dispute for mediation, Andrew Selley (Founder and CEO of FOR SA) stated that “we are pleased with the ruling. It is legally sound, in that the Equality legislation as well as the Human Rights Commission Act and the Commission on Gender Equality Act express a clear preference for conciliation and mediation (rather than litigation) – which is why it is surprising that the Human Rights Commission and the Gender Equality Commission did not support FOR SA’s request for conciliation. FOR SA and the guest house owners remain hopeful however that the matter can be resolved. While the guest house owners cannot compromise on their moral conscience and Biblical belief, they do respect those who make different moral choices to their own. Their hope is that the homosexual couple likewise will respect their moral choices and convictions, for this is what tolerance truly means.”