D [….] v Presiding Bishop of the Methodist Church of Southern Africa For The Time Being (726/13) [2014] ZASCA 151; 2015 (1) SA 106 (SCA); [2015] 1 All SA 121 (SCA) (29 September 2014) per Ponnan JA (Wallis, Pillay JJA and Fourie and Mathopo AJJA concurring):

The Supreme Court of Appeal disallowed the appeal.  SCA Summary: Voluntary association – internal disciplinary proceedings – arbitration prescribed by laws and discipline of the Church – whether good cause shown in terms of s 3(2) of the Arbitration Act 42 of 1965 for avoiding the arbitration – doctrine of entanglement.

The following extracts, with footnotes omitted, are from the concurring judgment of Wallis JA with edits to protect personal privacy.

[43]     I have had the privilege of reading the judgment prepared by Ponnan JA.  I agree with him that in view of Ms D’s express disavowal of any contention that she was discriminated against on the grounds of her sexual orientation, we do not have to explore the relationship between her equality rights and the rights of freedom of religion enjoyed by the church and all people in this country.  The case is therefore about an alleged arbitration agreement and whether it should be set aside or avoided.  The case both here and below was argued on the footing that there was a binding arbitration agreement concluded by the parties.  That is accepted in Ponnan JA’s judgment and he proceeds to hold that the application by Ms D to set aside or avoid that agreement was ill-founded.  On that footing I agree with him and the conclusion he reaches.  I write separately because I have considerable reservations about the correctness of the proposition that there is a binding arbitration agreement between the parties that can be the subject of the order sought by the appellant, Ms D.  If my doubts were justified, they would not affect the outcome of the appeal.  It would still fall to be dismissed but for different reasons.  But my areas of concern relate to fundamental questions relating to the nature of the relationship between a minister ordained in the Methodist Church of Southern Africa and the church, as well as to the application of the Arbitration Act 42 of 1965 (the Act) in this case.  In those circumstances I think it appropriate to deal with them.

[44]     The Act deals with arbitration agreements.  These are defined in s 1 as meaning:

‘a written agreement providing for the reference to arbitration of any existing dispute or any future dispute relating to a matter specified in the agreement, whether an arbitrator is named or designated therein or not; …’

Section 2 provides that a reference to arbitration is not permissible in respect of any dispute over any matrimonial cause or any matter incidental to such a cause or any matter relating to status.  Apart from those restrictions any dispute can be the subject of arbitration, but there must be a dispute not a mere expression of dissatisfaction over the conduct of the other party.  The dispute must be capable of formulation in a manner where opposing contentions are or can be advanced so that the arbitrator may make a decision on those contentions.

[45]     My first and lesser concern is whether the present dispute relating to the decision by the church to discontinue Ms de Lange as an ordained minister is a dispute over her status and therefore one that it is impermissible to subject to arbitration.  The answer to that depends on the meaning to be given to the word ‘status’ in the context of s 2(b) of the Act.  It does not appear that this has ever been the subject of judicial decision in this country.  Plainly it includes questions of a person’s matrimonial status; whether they are a minor or have been tacitly emancipated; whether they have for any reason, such as physical or mental disability, become incapable of managing their affairs; their domicile and similar matters.  But it is conceivable that the right of persons to hold an office, which could include a person in the position of a minister of religion ordained to serve within a particular faith or denomination, is also a matter of status that cannot be the subject of an arbitration agreement.  If that is the case, and I mention it only as a possibility, the deprivation of the right to perform the duties of that office (in the case of a minister of religion the rites and rituals of that faith) would affect their status and thus preclude resolution by way of arbitration.  However, my second concern is more important and I deal with it without further ado.

[46]     The requirement that an arbitration agreement be in writing does not mean that it has to be signed or otherwise executed by both parties to the arbitration.  All that is required is that the parties have agreed that the dispute in question, or all disputes of a particular character, be submitted to arbitration and that agreement has been reduced to writing.  Thus it matters not that the agreement is concluded orally, provided that a written memorial thereof is produced.  The important requirement is, however, that there has been an agreement to arbitrate the dispute that is in issue between the parties.  That agreement arises contractually.  In the absence of such an agreement the Act has no purchase.  It does not apply in relation to other dispute resolution procedures, however closely they may resemble arbitration under an arbitration agreement.  An oral agreement to arbitrate not reduced to writing is therefore not subject to the provisions of the Act and nor are other forms of dispute resolution proceeding, however similar they may appear to be in the manner in which they are conducted to an arbitration agreement in terms of the Act.