by Adv. Nadene Badenhorst, Legal Counsel of Freedom of Religion South Africa
*NOTE: The article below is not intended as a defence of Lake Restaurant’s policy, but rather to state what our Courts have actually found (and not found) to date in cases like this.
Big news last week was the Court Order made by the Johannesburg Equality Court against the owners of Lake Restaurant in Brakpan, who refused admission to same-sex couples on Thursday “date nights”. Apparently, this order “instructs” the restaurant to apologise on their Facebook page; change their policy and undergo sensitivity training on gender issues. The Order has been hailed as a “big step” for the Constitution (see, for e.g. http://salife.co.za/lake-restaurant-ruling-hailed-as-big-step-forconstitution/).
But is this really the case?
The complaint against the restaurant was apparently lodged after two EWN reporters booked and paid for a “date night”, posing as a gay couple. They were subsequently denied admission on the grounds that it would contravene policy. After the EWN investigation, a same-sex couple took the restaurant to the Equality Court for violating their rights by refusing to accommodate them. (For more information, see http://ewn.co.za/2017/09/04/owners-of-lake-restaurant-ordered-to-apologise-stop-discriminatory-policy)
The Court Order does not set legal precedent
Contrary to what has been reported in or implied by media articles, the resulting Court Order is not a judgement on the matter, or the merits of the case. In fact, it is nothing more than an Order making the Settlement Agreement concluded between the parties (to avoid the time, costs and risk involved in having the matter heard and determined by the Court) an Order of Court.
The effect of a Settlement Agreement which has been made an Order of Court, is that if one of the parties were to act in breach of this (“the guilty party”), then the innocent party can take him/her to Court for contempt of court. In this instance, the innocent party would still have to prove before a Court of law that such a breach had indeed taken place. If the Court did find that the guilty party had acted in breach of the Court Order (i.e. the Settlement Agreement made between the parties), the Court then has the option to order the guilty party to pay a fine and/or commit the guilty party to jail (but normally, a fine is ordered in the first instance).
To emphasise, in this case, the Court did NOT make a finding against the restaurant after hearing any evidence or legal argument on the merits of the dispute. The Court Order therefore cannot be relied upon as “the law”, neither does it set any legal precedent in cases of alleged unfair discrimination on the basis of sexual orientation. It only applies to, and binds, the parties between whom the settlement agreement which was made an Order of Court, was concluded. It has no application or binding force whatsoever upon any other persons or businesses.
Untrue reports regarding similar “rulings”
Similar untrue and/or misleading reports have recently featured in various newspapers and online news sites (particularly those catering for a LGBT audience), in the context of Christian wedding venues who are unable – on grounds of conscience, religion and belief – to host same-sex “marriages”. For example, Mambaonline (a popular LGBT website in South Africa) frequently in news reports refers to:
- A “ruling” by the Bellville Equality Court in 2015, that “owners of guesthouses cannot use their religious beliefs to turn away gay customers”. (See, for example, http://www.mambaonline.com/2016/11/08/romance-lesbian-couple-turned-away-brakpan-restaurant/ and http://www.mambaonline.com/2017/08/07/anc-calls-boycott-beloftebos-homophobic-wedding-venue/).
Such a statement is untrue and misleading. In the guesthouse case (where Freedom of Religion South Africa (FOR SA) was involved), the Court did not make any “ruling” or judgment in favour of same-sex couples or against Christian business owners after hearing any evidence or legal argument with regard to the matter. The Court simply made the settlement agreement reached between the parties (wherein the parties expressly agreed to respect each other’s beliefs), an Order of Court.
- A “ruling” by the Alberton Magistrate’s Court (sitting as Equality Court) in 2012, that “the Sha-mani wedding venue had violated the Equality Act by turning away a same-sex couple and had to allow gay and lesbian patrons to use its venue for any purpose, including for weddings”. (See, for example, http://www.mambaonline.com/2017/08/07/anc-calls-boycott-beloftebos-homophobic-wedding-venue/)
This statement, likewise, is untrue and misleading. In the Sha-mani case, the parties also concluded a settlement agreement which was in turn made an Order of Court. No “ruling” or judgment was made after hearing of any evidence or argument on the merits of the matter.
Such statements are typical of the “gay propaganda” that is employed by liberal media and LGBT activists to promote their agenda and to intimidate people into compromise and surrender who, on grounds of moral or religious conscience, do not share their liberal views.
While it is correct that our Constitution prohibits unfair discrimination on grounds of sexual orientation, it also protects freedom of conscience, religion and belief as a fundamental human right. In each case, these two rights (amongst others) have to be balanced against each other to decide whether there was in fact discrimination and, if so, was it indeed unfair (and therefore unconstitutional)?
Know your rights
The interplay between SOGI rights (sexual orientation and gender identity rights) on the one hand, and the rights to religious freedom and free speech on the other, is becoming increasingly tense. More and more cases are being referred to the South African Human Rights Commission (SAHRC), the Commission for Gender Equality (CGE), the Equality and other courts.
Since the issues are legally complex (and not at all as simple as the LGBT lobby makes them out to be), it is very important that persons and organisations facing legal complaints or litigation as a result of their religious beliefs or convictions obtain legal assistance, or contact FOR SA. Each case won, is a won for all – and each case lost, is a loss for all!
Support FOR SA
Freedom of Religion South Africa (FOR SA) is dedicated to protecting and preserving the freedoms and rights that the South African Constitution has granted to the faith community. You can help FOR SA protect our freedom by:
- Praying for us as we defend this precious freedom before government and courts of law;
- Signing up (at no cost) to FOR SA at http://forsa.org.za/contact-us/join-us/ and subscribing to our Newsletter;
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- Informing us, should you become aware of any case in which religious freedom is threatened;
- Making a financial contribution to FOR SA at http://forsa.org.za/donate/ As a non-profit organisation, we are entirely dependent upon God’s grace for finances. Your generosity will help make a significant difference as we work to fulfil our mission to keep the Gospel free by advocating for religious freedom. We appreciate every gift, big or small!