Same-sex partner's Mile High "Good Morning" kiss lands him in Jail
A Cape Town Court
heard that Neal Vincent Potgieter wants to sue British Airways for what he regards
as homophobic treatment from the cabin crew during a flight from Cape Town to
London.
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. However, he was told by flight attendants 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. However, 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 then 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 could be "bumped" from flights (removed by the flight crew) if they were, or even simply suspected of being HIV positive with no recourse.
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. Decisions 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 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.
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Press Coverage
Gay Kiss sparks R1.6million lawsuit - Die Burger
Gay kiss has its day in court - Die Burger
Mid-air gay kiss subject of damages claim - Legal Brief
Gay SA man sues British AIrways for Discrimination - SABC News (site includes radio and tv news broadcasts)