As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Independent Online reports that a British businessperson and his South African partner have laid a complaint with the Human Rights Commission (HRC) against Comair (British Airways in SA) about sexual orientation discrimination, after they were ordered by an air hostess to “cover up” while on a domestic flight earlier this month.
One would think the two were snogging away and generally behaving in a lascivious way to incur the wrath of the British Airways cabin crew. But no, according to one of the two, Jamie Robertson, the whole palaver was caused because during the flight his partner, Francois van Tonder, leaned with his head on Robertson’s shoulder while Robertson had his arm around his partner’s shoulder.
The British Airways spokesperson is stupid enough to admit that they had asked them to cover up because:
cabin crew on the said flight were called upon by passengers because they were uncomfortable with the extent of Robertson and his partner’s public displays of amorous behaviour. ur
Although the spokesperson also argues that the behaviour of the two was “amorous” and that BA does not tolerate any amorous behaviour on its flights, it seems to me BA’s real defence is that the company is not homophobic, but some of its customers are.
This won’t fly unless they can show that the couple did far more than holding and comforting each other. In 2000 in the case of Hoffmann v SAA the
SAA had argued that because customers do not want to be served by HIV positive cabin crew, it would commercially disadvantage SAA to employ HIV positive cabin crew. As foreign carriers are not subject to the Constitution and because many of them do discriminate against HIV positive people, SAA customers would stop flying with the airline unless they too discriminated against HIV positive people.
In the Hoffmann case Justice Sandile Ncgobo rejected this argument and stated that “prejudice can never justify discrimination”. This means BA cannot rely on the prejudice of its customers to justify its homophobic actions. It can only win such a case if they can show that they would also have ordered a heterosexual couple doing exactly what these two did to cover up.
As someone who flies fairly regularly I would find it hard to believe that BA could show that this is indeed the case. How many times have one seen a young in love couple holding hands and even stealing the odd kiss and not once were they asked to cover up – obviously because airlines do not have many hetero-phobic people flying with them.
So, unless the couple is completely misrepresenting the facts, BA is in for a bumpy ride. Personally I always thought it was a terrible airline with haughty, rude service, so it just confirms my prejudice against them.
In any case, I won’t be flying with BA or Comair soon if I can help it, that’s for sure.
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