Homophobia in the Air

by Helen Fernand helen@thru.org.za

The Cape Town High Court was asked to rule, on Thursday 14 October 2004. on an exception by British Airways that Neal Vincent Potgieter, who wishes to sue British Airways for what he regards as homophobic treatment from the cabin crew during a flight from Cape Town to London, should not be allowed to have his day in court.

Potgieter was travelling with his partner and mother to London aboard a British Airways direct flight to London and, after some hours sleep he awoke and kissed his partner good morning. He was approached by flight attendants and told to stop kissing his partner, one of the crew even seeking to justify her intervention on the grounds that he was upsetting other passengers. The couple interpreted this as discriminatory as heterosexual couples on board the flight were not similarly asked to refrain from showing tokens of affection. The situation became heated and when Potgieter and his partner refused to fasten their seatbelts for landing, they were arrested. Potgieter was eventually convicted of contravening the UK’s Civil Aviation Act and Public Order Act, fined £4 000 and spent three days in prison whilst he waited for funds to be transferred from South Africa. The entire ordeal cost him over R1 500 000.

Potgieter maintains this Kafkaesque situation would never have occurred but for the insulting treatment he and his partner received from the British Airways’ flight attendants. British Airways, who have never apologised to Potgieter for the incident, claim that the provisions of the Constitution of South Africa cannot protect passengers on board their International flights due to the terms of the Warsaw Convention of 1929. British Airways claim this Convention, regarded as the most widely adhered to piece of Private International Law, only allows claims for personal damages if one has suffered death or bodily injury caused by an accident on board, or whilst in the process of embarking or disembarking from an aircraft.

Potgieter rejected such a limited interpretation and refuses to accept that South Africans, who fought hard for the Bill of Rights, and the clear intention of the Courts and other State Institutions to eradicate pockets of "private" discrimination, will allow British Airways’ stance to succeed. South African courts have pioneered anti-discrimination cases, particularly those relating to discrimination on the grounds of sexual orientation.

But if the Court follows BA’s reasoning, and finds that Potgieter cannot bring a claim against the airline, what consequences does it have for passengers in general? Well, prohibiting claims on the basis of sexual discrimination would also mean that claims on the grounds of sex or racial discrimination could similarly not be brought. People would have no recourse if they were "bumped" from flights (prevented from flying by the airline) if they were, or even simply suspected of being HIV positive.

But it goes further than this. If the cabin crew stole you property, or sexually abused you without causing actual physical harm, then you would have no claim either. The case law BA’s legal team is relying upon is rather insidious. A House of Lord’s decision that people who had died or were seriously injured by thrombosis caused by being cramped into too small seats on long haul flights could not sue, and a US Supreme Court judgement that a woman humiliated by bodily searching procedures could not claim compensation form the backbone of their case.

To the lay South African it would seem impossible that a South African Court, with their proudly fought for Bill of Rights and a Constitutional Court bench which leads the world in humane and just human rights decisions could side with these decisions. However, BA’s legal team argued that if the South African Courts refuse to follow these thoroughly unsympathetic cases, then they will have caused the South African Government to stand in breach of its International relations.

Of course, what has been left out of the discussion on BA’s side is that the Warsaw Convention is a piece of Private International Law seeking to regulate how we contract and then to limit the level of compensation someone physically harmed on board a flight can claim. There were no national issues at stake – its passing assisted one particular private industry grow from a very dangerous form of transport at the beginning of the 20th century, into the enormously profitable and glamorous industry it now is.

Judge Denis Davis has reserved judgement, so it remains to be seen if passengers, or the industry, will have their respective positions protected.