The recent High Court (HC) judgment of Gaum and Others vs. Van Rensburg N.O. and Others (40819/17) [2019] ZAGPPHC 52 (Gaum) explains the meaning of unfairness in the phrase 'unfair discrimination'. 

Section 9(3) and section 9(4) of the Constitution of the Republic of South Africa, 1996 (Constitution) prohibit, unfair discrimination. This article focuses on fairness, which, in turn, requires assessment of the impact of the discrimination on a complainant to determine whether his or her human dignity has in fact been impaired.

What the HC considered was the difference between discrimination and unfair discrimination. The HC, in Gaum, held that differentiation on the basis of sexual orientation constitutes presumptively unfair discrimination. The HC ultimately held that the Church could not prove, on a balance of probabilities, nor could the HC, on its own, find reasons to conclude that the discrimination in question did not impact upon Laurie Gaum (First Applicant) and homosexual men and women, unfairly. 

In 2015, the General Synod of the Church (General Synod) took a decision to (re)confirm the equality of all people, irrespective of their sexual orientation, by: 

  • giving recognition to the status of civil unions between homosexual men and homosexual women that are characterised by love and fidelity;
  • permitting Ministers to solemnise civil unions (but importantly placed no positive duty on a Minister of the Church to do so); and 
  • allowing for homosexual men and homosexual women to be ordained as Ministers or elders in the Church (2015 Decision).

In 2016, however, the 2015 Decision was set aside and the General Synod decided that:

  • Ministers are disallowed from solemnising civil unions; and 
  • homosexual men and homosexual women can only be ordained as a Minister if they are celibate (2016 Decision).

This article focuses on the substantive law (equality jurisprudence) challenge as opposed to the procedural challenge brought by the applicants.

The applicants submitted that the 2016 Decision constitutes (direct) unfair discrimination in that it differentiates on the ground of sexual orientation. The applicants based their submission on section 9(3) (ought to have been section 9(4)) of the Constitution and section 1 of the Promotion of Equality and Prevention of Unfair Discrimination Act, Act No. 4 of 2000 (PEPUDA), since both the Constitution and PEPUDA prohibit unfair discrimination on the basis of sexual orientation.

As stated in the previous instalment, the Constitution differentiates between discrimination and 'mere differentiation' because discrimination has acquired a pejorative meaning within South Africa, in that for differentiation to constitute discrimination the ground(s) upon which persons or categories of persons are differentiated from each other must have the potential to impair human dignity. The Constitution differentiates, between discrimination based on listed grounds (i.e., grounds listed in section 9(3) of the Constitution) and discrimination based on unlisted grounds (i.e., grounds not listed in section 9(3) of the Constitution). 

Section 9(3) of the Constitution is relevant and provides that: 

"The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth."

In terms of section 9(4) "[n]o person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of ..." section 9(3) [own emphasis]. Finally, section 9(5) provides that discrimination on “one or more of the grounds listed in … [section 9](3) is unfair unless it is established that the discrimination is fair”. In short, section 9(3) provides that differentiation on one of the listed grounds is discrimination and section 9(5) provides that the discrimination on one of the listed grounds is presumptively unfair. 

The reason why differentiation on any listed ground both constitutes discrimination and is presumptively unfair, is because we have, with the benefit of hindsight and historical experience, come to realise that the listed grounds – when used to differentiate between persons and categories of persons – actually impair one’s fundamental dignity. For differentiation on any unlisted ground to constitute discrimination, the ground must objectively be based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings, or to affect them adversely in a comparably serious manner.

Once discrimination has been established, the next enquiry is whether the discrimination has led to an impairment of the complainant's fundamental human dignity. In this regard it is emphasised that the Constitution considers unfair discrimination to mean discrimination that has in fact impaired a complainant's dignity. Unfairness focuses primarily on the impact of the discrimination on the complainant and others in his or her situation. If a person is unfairly impacted by the discrimination in question, his or her human dignity would have been impaired, thereby constituting a breach of the prohibition against unfair discrimination. 

The HC, in Gaum, was congruent with the Constitutional Court's established jurisprudence which provides that to determine whether the impact is unfair it is necessary to look at the position of the complainants in society and whether they have suffered in the past from patterns of disadvantage; whether the discrimination in the case under consideration is on a specified ground or not; the nature of the power or provision in terms of which the discrimination was effected and the purpose sought to be achieved by it; the nature of the interests and the extent to which such interests have been affected by the discrimination; whether the discrimination has led to an impairment of fundamental human dignity or constitutes an impairment of a comparably serious nature. 

The HC, in Gaum, was quite critical of the Church in that it admitted that the 2016 Decision constitutes discrimination on the basis of sexual orientation but placed reliance on a single sentence in its answering affidavit.  ("[The Church] den[ies] that the constitutional rights to equality and human dignity require the 2015 Decision or prohibit the 2016 Decision") to deny that the prohibition against unfair discrimination was not breached. This without setting out any facts as to why the discrimination was fair. In other words, although the Church had to assert and prove that the discrimination is fair, because sexual orientation is a listed ground, it did not do so.

The Church also submitted that the 2016 Decision did not restrict the First Applicant's right to freedom of association in that he is free to join another church that interprets the Bible in the way he does. Finally, and only on the date of the hearing during oral arguments, the Church, for the first time, addressed fairness and submitted that it exercised freedom of religion when it made the 2016 Decision. In other words, the Church asked the HC to weigh the right to equality and freedom of religion against each other and determine which right would 'trump' the other in the circumstances.

The HC refused to engage in the balancing exercise and held that the inquiry was delineated by the test for unfairness, since differentiation on the basis of sexual orientation constitutes presumptively unfair discrimination in breach of section 9(4) of the Constitution. The HC expressly held that the argument and approach of the Church as to its understanding of the prohibition against unfair discrimination was wrong and were at pains to set out the meaning thereof to the Church.

Thus, the HC, with reference the Constitutional Court (President of the Republic of South Africa and Another vs. Hugo), held that: 

"… each case will require a careful and thorough understanding of the impact of the discriminatory action upon the particular people concerned to determine whether its overall impact is one which furthers the constitutional goal of equality or not. A classification which is unfair in one context may not necessarily be unfair in a different context". [own emphasis]

The HC held that the purpose of the 2016 Decision is to exclude homosexual men and homosexual women from leadership positions in the Church and Church wedding ceremonies. In addition, the HC concluded that: 

"The Church presented no argument or facts setting out that the overall impact does further the constitutional goal of equality or that in this context the exclusion is fair. Gaum is a minority that has suffered severely. In the context, a majority decision pursuant to differences of opinion pertaining to the Church’s Creed on this matter does not further the constitutional goal of equality and is unfair. It is unfair to exclude members of the Church of their full and equal enjoyment of all rights and freedom the Church offers."

As a final remark to the HC's decision, it sought to emphasise that the impugned decisions are not a matter where the First Applicant is a representative of the 'outcasts of the community' that differ on doctrine and expect the majority to fall in with their exclusive view on sexual orientation. It was accepted that the "Church honestly and sincerely hold certain religious views, but from the split in the vote it is clear it is not an umbrella view".

The HC held that the 2016 Decision impacted on the First Applicant and homosexual men and homosexual women unfairly and, as such, in fact impaired their dignity. 

"The differentiation caused by the 2016 [D]ecision does inherently diminish the dignity of Gaum because same-sex relationships are tainted as being unworthy of mainstream church ceremonies and persons in a same-sex relationship cannot be a Minister in the Church. The impairment of the fundamental dignity of Gaum as human beings is a given"

Gaum shows, and this is applicable to any employer and voluntary association, that the meaning of the phrase unfair discrimination is important and a sound understanding of the nuances in the difference between differentiation, discrimination, and unfair discrimination is required to navigate sound (fair) decision-making. In summary, discrimination without any factual justification for its fairness is prohibited by the Constitution and not even religion is above the law. The reader is left with the following quote in justification of the latter conclusion:

"The sting of the past and continuing discrimination against both gays and lesbians lies in the message it conveys, namely, that viewed as individuals or in their same-sex relationships, they do not have the inherent dignity and are not worthy of the human respect possessed by and accorded to heterosexuals and their relationships. This denies to gays and lesbians that which is foundational to our Constitution and the concepts of equality and dignity, namely that all persons have the same inherent worth and dignity, whatever their other differences may be."

This article was written by Dr Johannes Jacobus van der Walt, Associate Designate in the Employment & Compensation Practice in Johannesburg. 

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