Adv Jeremy Gauntlett: Legal opinion

In die artikel Top-advokaat waarsku NG Kerk oor gays (Rapport, 8 Oktober 2023) word daar verwys na regsopinie deur adv Jeremy Gauntlett. Hier is dit:

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LEGAL OPINION

1. I was asked to advise as to whether the article by the General Secretary of the NG Kerk published in Die Kerkbode on 8 December 2022 (https://kerkbode.christians.co.za/2022/12/08/uit-gustav-se-pen-reaksie-op-kwaadwillige-kettingbrief-wat-op-sosiale-media-versprei-word/) accurately reflects the legal position arising from the Full Bench judgment of the Gauteng High Court declaring invalid the 2016 decision relating to same-sex relationships, and in relation to subsequent steps by the General Assembly and ASM.
2. As I have previously furnished a detailed Opinion dealing with the effect of the judgment – not appealed by the NGK, and indeed formally accepted by public statement on its behalf in Die Kerkbode on 19 March 2019 – I attach that opinion (reaffirming its contents), and confine this Supplementary Opinion to three aspects. (I note one typographical correction to my Opinion: the reference in the last line of para 43 to ‘2014’ should of course be to ‘2015’).
3. The first is that the decision related not only to procedural failures by the General Synod in purportedly adopting the 2016 decision. I reiterate that (as I noted in the Opinion) ‘The substantive issue was squarely one of two pillars of the judgment. The parties asked for that’. The substantive issue (namely, whether the 2016 stance on same-sex relationships was consistent with the Constitution) has thus been finally pronounced upon by the Courts. Following the judgment, and the NGK’s acceptance of it by not appealing it, it is not open to the General Synod, the General Assembly, the ASM, any congregation or NGK official to seek to resuscitate a stance which refuses to accord fully giving recognition to same-sex relationships between its members and ministers of the NGK.
4. The second is that the Court expressly ruled that “[e]very Dutch Reformed Church congregation in the country must adhere to this decision” (paragraph [1] of the Judgment). Not only does the decision in those terms affirm that it stands on both its substantive and procedural legs. It expressly is binding not only on the General Synod itself but on every other structure of the Church, including every congregation of the NGK.
5. The third relates to three aspects raised by subsequent events.
   1. The first of these is the decision of the 2019 General Assembly. The General Assembly in law was bound (as I have explained) to accommodate same-sex relationships in the Dutch Reformed Church. I draw attention again to paragraph [1] of the judgment, already quoted. It could only lawfully adopt a resolution which complied with the ruling, and with the extant (once the 2016 decision was declared unlawful and invalid) 2015 General Synod decision.
   2. The second pertains to the conduct of the ASM. In law, the ASM may not decide not to implement a General Assembly decision (let alone the 2015 General Synod decision, and a fortiori the High Court ruling)
   3. The third is that the purported distinction between ‘principled’ and ‘process’ decisions is contrived. It is itself inconsistent (as discussed) with the clear terms of the Court ruling.
6. In closing, I revert to the statements by the General Secretary published in Die Kerkbode on 8 December 2022. It may merely be noted that his disquisition as to what constitutes hate speech and defamation appears to have been without the benefit of legal advice: it is materially misinformed.

Yours truly,

Jeremy Gauntlett SC KC

18 May 2023