Pretoria High Court Ruling - Dutch Reformed Church

Advocate Aslam Motala was requested to provide an executive summary of the Pretoria High Court ruling that compels ministers from the Dutch Reformed Church to officiate at same-sex marriages and if this ruling could potentially impact on Muslim Marriage Officers.

In 2015 the Dutch Reformed Church (NG Kerk) through its General Synod passed a resolution to the effect that ministers within the church could officiate at same-sex civil unions, simultaneously dispensing with the requirement that ministers who were gay or lesbian had to be celibate to remain in their positions. In 2016 the General Synod reversed this position which decision gave rise to an application to the High Court Gauteng to set aside the 2016 decision on the basis of breaches of the Constitution.

The doctrine of entanglement cautions a court from becoming involved in disputes which turn on religious doctrine. In this case, a full bench of the High Court placed considerable emphasis on the contrasting resolutions in 2015 and 2016 which, in its view, was indicative of a tax-exempt difference of opinion within the church. The applicants advanced two arguments. First the applicants argued that the 2016 decision did not follow the church’s own rules and was therefore invalid. Second, they argued that the decision unfairly discriminated against gays and lesbians on the basis of sexual orientation and was therefore in breach of section 9(3) of the Constituti

For various technical reasons, the High Court held that the procedure followed by the church to try and overturn its 2015 decision was inconsistent with the rules of the church and thus invalid. The 2016 decision was thus reviewed and set aside. This means that the original 2015 decision of the General Synod (which permits individual dominees to stop discriminating against gays and lesbians) is in fact still in force.

Advocate Aslam explained that this ruling does however not compel Muslim Marriage Officers to perform same-sex marriages since Clause six in the Civil Union Bill allows a marriage officer to inform the home affairs minister that he or she objects on the ground of conscience, religion, and belief to solemnising a civil union between persons of the same sex. However, it is important for Marriage Officers to INFORM the Minister of Home Affairs of their objection to perform same-sex marriages.