De Lange v Presiding Bishop of the Methodist Church of Southern Africa for the time being (CCT223/14) [2015] ZACC 35 (24 November 2015) per Moseneke DCJ [unanimous]
According to the media summary the Constitutional Court refused leave to appeal and in the unanimous judgment of Moseneke DCJ four findings were made to the effect that Ms De Lange:
#1 had not shown good cause to set aside the arbitration agreement. Further, the Court stated that because the issue relates to interpretation of religious doctrine, arbitration would be the appropriate forum to examine the Church’s application of its rule against same-sex marriages for ministers;
#2 had unequivocally disavowed her unfair discrimination claim before the High Court and was not free to raise the claim for the first time on appeal;
#3 should have first brought her unfair discrimination claim to the Equality Court because the principle of constitutional subsidiarity applied; and
#4 failed to file a notice in terms of the Uniform Rules of the High Court, an omission that deprived other interested parties, including religious communities, of the opportunity to intervene as parties to the dispute or seek admission as amicus curiae in the High Court.
‘In a concurring judgment, Van der Westhuizen J contends that this case raises the question of whether there should be a “constitution-free” zone in our constitutional democracy. Van der Westhuizen J held that this Court should not rule on this question as a court of first and last instance and that arbitration should be the first port of call in this matter’.