After nearly ten years of an ongoing legal wrangle, involving the apartheid heresy, Jewish secular identity, race identity and press freedom, I’ve resolved to seek an order from the ConCourt, dismissing the De Lange case (Ecclesia De Lange v The Presiding Bishop of the Methodist Church of Southern Africa (726/13)  ZASCA 151 (29 September 2014) now before the Constitutional Court, with costs.
Any motion or order entered into by myself or cojoined partners, would seek to uphold the secular rights and freedoms in our constitution, which inter alia, need to be affirmed and interpreted thus:-
Freedom to not be subjected to inquiries (or interrogations) into ones religion or sexual orientation by the state, church or any other lay or ecclesiastical authority. i.e. an abrogation of the decision in Lewis v Media24 (2010).
Reverend Ecclesia De Lange, a Methodist Preacher had sought an order from the Supreme Court of Appeal against the respondents, the Presiding Bishop and Executive Secretary of the Methodist Church of Southern Africa (the Church) setting aside an arbitration agreement between her and the Church, “which had been concluded pursuant to the Laws and Discipline of the Church (the L&D).”
The dispute between the parties has its “genesis in the decision of the Church to suspend the appellant following her announcement to her congregation of her intention to marry her same-sex partner”. The Church recommended that she be “suspended as a minister until such time as the debate within the Church on the permissibility of same-sex marriages is resolved.”
The issues at stake and points of law in question are not whether same-sex marriages or unions are permissible in South Africa, or whether they are contrary to Christianity and Canon Law, but instead involves the problematic separation of Church and State and guarantees to this effect in our constitution.
Does the state have the right to intervene in the affairs of the Church and vice versa?
What exactly are our secular rights and freedoms?
Is the state an ecclesiastical authority?
You may recall that the phrase “In humble submission to Almighty God” was dropped from the preamble to the constitution, which begins “We, the people,” and instead replaced by a simple prayer: “God Bless Africa, Nkosi Sikelel’ iAfrika”
South Africa was run as a Christian theocracy during apartheid. In the 20 year period after the first democratic election there have been precious few legal precedents (if any) upholding secular rights and freedoms. The recent scandal involving the Chief Justice Mogoeng Mogoeng’s comments to the affect that “our constitution needs a Christian makeover” should sound warning bells.
The De Lange case is not only scandalizing the courts and the church, but is risking a Counter-Reformation, one that could have the perverse consequence of not only rewriting the Old and New Testament, but also subjecting all and sundry to Christian Canon Law.
In the present South African climate of Christian Normative jurisprudence (with Chief Justice Mogoeng Mogoeng a big fan of the Bible as read by Charismatics and Evangelists) and failure to abide by the most basic secular precepts, this is too big a risk to take. The hearing at the Constitutional Court will examine issues which effect each and every South African and impact upon legal precedent for the foreseeable future. The bases have been loaded in favour of theocracy and Jacob Zuma’s agenda to make the party and state the chief domain of religion in the country.
If we allow Gay Rights to be put on trial alongside Christian theology, as De Lange has sought, we could lose these rights, along with other rights, like the right to dissent from religion. I am thus prepared to risk solidarity with every Gay and Lesbian on the planet, by cutting off Mogoeng at the pass, as it were, and request that you assist me in this endeavor.
My history of support for black emancipation, women’s emancipation and LGBT rights is public record.
The issue isn’t whether or not you can be a Christian and Gay, but rather, should the State intervene in the Church, Synagogue or Mosque and vice versa, i. e. Separation of the different spheres of government, in particular the right to dissent and freedom from religious rule. As Holyoake, the founder of secularism states: Secularism is not the absence of religion, rather it is the absence of religious rule.
The issues of law to be discussed are on the exact same points raised in my 131 page submission to the JSC/Concourt in a complaint that predates the handing down of the De Lange decision at the Supreme Court of Appeal by 11 days in a case which has been ongoing since 2006. The similarities in arguments used by either party are not coincidental and stem from the failure of the Labour Court of South Africa to accept the credentials of a female Jewish Rabbi and Doctor of Hebrew Studies.
Therefore, please help me to kick the problematic De Lange case out of court and to place the De Lange motion, where it belongs, on the scrap heap of history, along with every other Counter-Reformation, and motion for the retraction of the Enlightenment.
Please save our Constitution from those who wish to end the separation of Church and State, for whatever reason, and however so constructed the arguments and the pleadings before our Constitution may be. No to the creeping Counter-Reformation and assertion of the rule of religion over law and vice versa.
Any precedent which nullifies or removes rights in the Bill of Rights, will be a major set-back for human rights as we know it. Creating a broad platform for secular rights and freedoms, by interceding on the behalf of interested and affected parties, will avoid the ConCourt from turning into a religious tribunal. Unless we take urgent action, such a likelihood is inevitable.
David Robert Lewis
PO BOX 4398
Mobile 082 425 1454
Home 021 448 0021
RECENT pronouncements by the Judge President Mogoeng Mogoeng to the effect that South Africa’s constitution needs a Christian makeover, unleashed a storm of commentary from online media. The Christian Democratic Party who don’t even have a seat in parliament were quick to thank him for his kind words in their favour.
That the country has problems giving effect to constitutional guarantees of the separation of powers and religious freedom is clear. Having experienced an 8-year-long legal battle in which my rights to a secular Jewish identity as a journalist have been denied by the Labour Court, I can certainly testify to the many problems faced by South Africans in the aftermath of apartheid theocracy. Secularism is not, as many people commonly hold, the absence of religion, but rather the “principle of the separation of government institutions and persons mandated to represent the state from religious institutions and religious dignitaries.”
“One manifestation of secularism is asserting the right to be free from religious rule and teachings, or, in a state declared to be neutral on matters of belief, from the imposition by government of religion or religious practices upon its people.” One may quote the coiner of the term, George Holyoake in this regard. “Secularism is a series of principles intended for the guidance of those who find Theology indefinite, or inadequate, or deem it unreliable.”(1)
Will constitutionalism prevail now that the bases are loaded in favour of Christianity?
Although the far right appears to have lost support during the past election, with some notable exits from parliament amongst Islamic-orientated parties, and a decrease in support for the ACDP, the problematic conflation of Church and State remains.
Interestingly enough, our Judge President starts by quoting Thomas Jefferson, no problems there, (Holyoake who is also the coiner of the term “jingoism” would most certainly have agreed with Jefferson) but then he proceeds to quote Lord Denning on the impossibility of there being “morality without religion”, and it is sadly all downhill, surely it is enough to believe in the golden rule of reciprocity that is common to all religions and philosophies? One need not even possess a religion in order to possess ethics. Science itself is not based upon any religious creed. The no-harm principle common to medical practitioners is worth raising in this regard.
Aside from the obvious inferences one may draw from current debates on legal positivism and the scientific method and its effects on the development of law, (or lack thereof) and the post-positivist assumptions of Karl Popper, the judge president appears totally lost in obscurantist Roman Scripture and the Christian conception of the State as some kind of evocation of God’s Will as per St Augustus (aka Augustine of Hippo).
One juicy piece from his address: “”Our safety and well-being as nations equally depends on the realisation and acceptance of the fact, that just as God the Father, God the Son and God the Holy Spirit are co-equal Personalities of the Trinity, so should the Executive, Legislative and Judicial Arms of the State be co-equal partners in the governance of any democratic country. ”
Dangerous stuff for secularists, it would have been better if Mogoeng had simple remained silent and inert, or rather if he had plucked up some courage and embarked upon the clear-headed path of delineating exactly what pluralism and secularism means for the nation’s founders, this in the run-up to the 20th anniversary of the 1995-1996 constitutional assembly, the one which was tasked with drafting our nation’s Bill of Rights and which delivered an emancipatory civil rights-based document sans the need to possess religion or religious rule. Instead we end up with a moral canard against everyone who is not a Christian, or at least, not a co-religionist, this despite the rather glib and feeble attempt in his introduction to distance himself from the invariable ruminations of his own liturgy-filled address — one would hazard to pronounce on the problematic introduction of Medieval logic, but there it goes, see the bench’s recent attempts to rebut criticism and the ensuing fall-out.
The Stellenbosch address is thus a sad and sorry peon to cater to current legal dilemmas faced by the judiciary — instead of pronouncing on pluralism within the concept of a Holy Trinity and presumably, the Christian Normative legal system, Mogoeng throws away a sterling opportunity to engage in more appropriate and less divisive discussion on normative pluralism and the common law.
Read Richard Poplak’s piece God Help Us as Mogoeng Moegeng takes the constitution to Church
and a follow-up piece Mogoeng Mogoeng wants God to govern. This time, he’s serious.
Chris Roper’s Christianity is the enemy of Christianity
Ryan Peter’s Thought Leader post Are Today’s Secularists really Secular?
George Devenish, professor emeritus at UKZN who “helped draft the interim constitution in 1993”, I repeat, interim, decries Mogoeng lack of independence, ‘failed to maintain impartiality, independence‘
Vinayak Bhardwaj Religious sentiments can’t be allowed to override our Constitution
Zama Ndlovu Mogoeng’s point is best left to others to debate
Pierre de Vos The law vs. religion: Let’s try that again
Here is another choice quote from Holyoake: “”A Secularist guides himself by maxims of Positivism, seeking to discern what is in Nature — what ought to be in morals — selecting the affirmative in exposition, concerning himself with the real, the right, and the constructive. Positive principles are principles which are provable.”