“Was this a fair deal?”

“Was this a fair deal?”

“Was this a fair deal?”

In the case of Rev Ecclesia de Lange VS
The Methodist Church of Southern Africa (MCSA)
in the Appeal Court 26th August 2014

– The Impressions of Rev Pieter Oberholzer, an observer.

“Yesterday was an extraordinary overwhelming experience for me. It was my first time in the Supreme Court of Appeal and I must admit it was not what I expected. I knew it was going to be challenging but the apparent hostility from the judges took me by surprise. Within the first 5 min of Anna-Marie de Vos (SC) presenting our argument, I sensed that this was not going to be as I’ve expected. One judge would ask a question and without giving my counsel an opportunity to respond or even finish her response, another would interject with comments and questions (which they apparently seemed already to know the answer to).” This was the comment of Rev Ecclesia de Lange after the trial in the Supreme Court of Appeal on Tuesday.

I was deeply shocked over the proceedings and behaviour of the honourable judges as I perceived them to be harassing the counsel, Anna-Marie de Vos (SC), for the appellant, with rude interruptions, noticeable irritation, not listening to arguments and obvious bias favouring the status quo arguments of the respondent for the Church, (MCSA).

I am not schooled in law, neither am I acquainted with the customs or protocol of our courts. However, what I am is a true believer in justice, but what I experienced was in my opinion an atrocity! According to me the judges wanted this case over as soon as possible, regarded it as ridiculous and have made up their minds before it even started – “the appellant had no business bringing her case before the appeal Court”. My honest feeling was that either they did not see the injustice done to Rev de Lange or chose to ignore it. It appeared to me that this was evident not only from their many observations and questions but also in the nature of their interruptions.

Rev de Lange’s appeal was “Against the whole of the Judgment and Order delivered by the Honourable Mr Justice VELDHUIZEN in the Western Cape High Court, Cape Town, on 26 June 2013. Leave to Appeal having been granted by the Honourable Mr Justice Veldhuizen on 8 August 2013.”

Rev de Lange was discontinued as minister on 17 February 2010, after she announced to her congregation her intention to marry her life partner, a woman. After almost 3 years of trying to resolve the matter, following the prescribed legal Church route of arbitration , in which she had to deal with the trauma of delay upon delay, misrepresentation in documents, uncertainty whether she may have legal representation or not, she lost her trust in the process of arbitration and turned to the High Court. During this trial in May 2013, the presiding Judge in so many words, empathized with the trauma she had to suffer due to this process but still ruled that it should have been dealt with in arbitration. “He was in two minds” he stated and granted leave to Appeal.

The Applicant intended to make application to the Supreme Court of Appeal for an Order in the following terms:

1. Setting aside the arbitration agreement between the parties in terms of the First and Second Respondent’s Laws and Disciplines, alternatively an order that such arbitration agreement shall cease to have effect with reference to any dispute as set out herein’

De Vos came well prepared to give a holistic overview brief on why De Lange lost all confidence in the process of arbitration and why she turned to the Court and now the Appeal Court. She intended to contextualize this loss of faith in arbitration by the appellant because the honourable justices had hundreds of pages of court proceedings as well as the Appellant’s witness affidavit to this effect which might not give them a clear overview.

Right from the start, according to me, they did not give her the time to proceed with this brief and rudely interrupted her wanting “exact facts”: “Did the appellant write a letter stating that she is not continuing the arbitration?” (Justice Wallis) “What was the exact moment and reason for not wanting to continue the arbitration?,” this justice Pillay asked three times. After five minutes I had the feeling “this is a done deal”. To me it seemed very similar to the ordeal an abused woman goes through when having to describe her pain “legally” to an unsympathetic ear: “When did you decide to leave your husband? After the second broken arm or after the fourth time he broke your nose?; “Did you write him a letter to say that you are not happy after the first punch or only after the hundredth? “Why not from the start?”

Ms de Vos stayed calm but frustrated by the constant interruptions and in the end my honest feeling was that the judges was not going to get the clear and holistic picture of why Rev de Lange did not trust the arbitration process, they wanted exact and legalistic terms. As novice observer I would be excused for forming the opinion “Maybe this is the way it normally goes in court, but what was clear to me was that these were not to my mind legal terms and protocol interruptions. This was disrespect to counsel, this is bias on the side of the Church, as if they were thinking: “How dare this upstart take a respected Church to the Court of Appeal – a first in world history.” This is what I read behind their antagonistic style of questioning.

What confirmed this observation for me is when counsel for the respondent (MCSA), Wim Trengove (SC), delivered his arguments. Ecclesia commented “When the time came for the church to present their case, interestingly the opposite occurred. There was no interjection and no interrogation from justices. Only heads nodding (as signs of approval) as the council proceeded to finish his speech.” Apparently Justice Wallis more than once nearly finished Trengrove’s sentences or arguments for him. I felt that if he could he would have given him a pat on the back: “Good boy, you showed them”.

The second term was:
2. A declaratory order that the decision by the Methodist Church of Southern
Africa to discontinue the applicant as a minister of the Methodist Church of Southern Africa is unconstitutional and unfair discrimination based on sexual orientation;

Ms de Vos was hardly given the time to present her case on this as Justice Wallis immediately pre-empted her by stating: “Either the Church have a rule – then it is simple we don’t argue it here. Or the Church does not have a rule and she had been wrongfully convicted”.

Ms de Vos tried to state that a) the Conference decision of 2007, that the MCSA only recognises a marriage between a man and a woman, is a case of interpretation IN CONTEXT and therefore is open for discussion. The appellant (and many others) do not believe the Church has a rule because, when you consider the nature of the ONGOING debate in the Church, their openness to gay members and allowing gay and lesbian clergy, at most what we could interpret is: “The Church is not sure”. Even this argument she could not finish or carefully explain as justice Wallis gave clear indication (according to me) that he favoured the Respondent’s interpretation that this statement of the MCSA conference IS a rule.

The second point of this argument Ms de Vos had almost no chance to deliberate: “Even if the Respondent is correct in saying they think there is a “rule”, then she would like to submit that it is unconstitutional to prescribe to anyone who you can and cannot marry – Especially if there is still so much doubt, how can you use the right to religious freedom to argue this point or enforce this rule, in the midst of, what the MCSA itself named, an unfinished debate?

Ms de Vos closed without submitting in court the last two terms of the appeal, as it was clear to me by this time that the ability to listen to her was not there.

3. Reviewing and setting aside the decision whereby the First Respondent’s Cape of Good Hope District Disciplinary Committee’s decision dated 12 January 2010, whereby the Applicant was suspended as a minister, which was confirmed by the First Respondent’s Convectional Disciplinary Committee, whereby the Applicant was discontinued as minister, dated 17 February 2010, and which discontinuation was sanctioned by the Presiding Bishop on 20 February 2010 as a minister of the Methodist Church of Southern Africa;

4. Reinstating the Applicant as a minister of the Methodist Church of Southern Africa with retrospective effect, which includes that the First and Second Respondents are ordered to pay to the Applicant all station and emoluments to which the Applicant would have been entitled had she not been suspended and discontinued;

Wim Trengove, for the respondent gave a calm submission – and respectful to the appellant – that the Church believes there IS a rule; that the case should have remained and be referred back to Church arbitration.

What was however utterly amazing to me is that not a single judge on the panel asked him any critical questions or explanations. They only finished his sentences for him.

When asked whether they would demand or decline costs, the Respondent was gracious to decline, while the counsel for the Appellant would demand cost (they have been working pro bono).

Ecclesia wrote on her facebook: How am I feeling? I am stunned, irritated and disappointed with the process and attitude of justices. Fortunately with the help of my wife, Melanie, my legal team and some supporters we could share our feelings and thoughts after the hearing. This and a good cry session has brought some relief and healing. I am determined, more than ever, to see this case through until I have no more options to pursue.

I believe that I was not the only one who left the court with the disillusioned feeling that “objective” Justice does not exist, or if it does, it did not in Court B of the Court of Appeal on the 26th August. To my mind those 5 honourable men did not give Rev Ecclesia de Lange her fair deal in court. But who am I, as novice to judge. Maybe miracles will still happen – judgement was reserved. We anticipate the decision to be delivered within a month.

Rev. Oberholzer founded Inclusive and Affirming Ministries in 1995. This NPO dialogues with Churches to plead for more compassionate and inclusive attitudes towards Lesbian, gay, bisexual, transgendered and Intersexed (LGBTI) people. Taking the Church to Court however, is not part of their strategy. They support LGBTI Christians in their struggle for justice. Rev de Lange is now a full-time staff member of this organisation.