Reply to the "legal" position
Hi there, I was one of the lawyers assisting Mr Potgeiter with his case. I just thought I could "Straighten out the facts” as you suggested and give you all an update.
Originally Posted by spotwelder
"Straighten" out the facts. Firstly, if the reported link is true, it was not the cabin crew who considered the behaviour offensive, it was the other passengers.
As a passenger, you are required to behave in a manner which is not likely to endanger the aircraft, or to incite bad behaviour in others. The other passengers considered his acts to be offensive and complained. He was asked to desist by the cabin crew. In the same way that hetro or lesbian couples would be asked when flying on BA to do the same, if there were complaints.
This comment seems to suggest that flight attendants must blindly enforce the discriminatory attitudes of some passengers upon others. If a white person were to complain to the attendant, that a black person’s appearance was bothering them, or a Buddhist’s praying was a nuisance, would the flight attendant run to bother the “offending” passenger? With regards to the alleged concerned passengers in this case, Mr Potgeiter went to the front of the section where he sat and asked everyone (a) if they had a problem with two men who loved each other giving a "good morning kiss" and (b) if anyone had a problem with gay people being on the flight. No one claimed to have a problem, and he was even applauded by some of the passengers for sticking up for his rights.
Originally Posted by spotwelder
The offence came in arguing with the cabin crew, not with the act of kissing and its cessation. The BA terms and conditions are quite clear that verbal abuse of the cabin crew (and other staff members) is not to be tolerated and they may consider offloading you, as they are required to do under these circumstances. You cannot offload in flight, although I am sure that Pucci would wish to push the odd pax every now and then.
I agree with you that Mr Potgeiter, had he behaved with stiff resolve and quietly sat out the journey before complaining upon landing in the UK, would not have been arrested. However, all the Constitutional case law in South Africa lists discrimination as being a dreadful wrong which impacts on the heart of a person's dignity. People normally get upset when their very essence is being described as “offensive.”
Originally Posted by spotwelder
The aircraft, when airborne, is subject to the Air Navigation Order 2000 and other British laws. The Warsaw Convention and all the other ICAO type of conventions are just that, not laws but basic codes of practice. If there is no specific UK law (usually passed by Westminster on behalf of the whole UK) then the lawyers would seek to refer to Warsaw.
The case publicised when you made your comments was Mr Potgeiter’s civil claim in Cape Town, not the criminal action in London. The flight was not subjected to UK Laws as it had not landed yet. It's point of departure was Cape Town, South Africa. BA did not defend the action on any ground other than total immunity from liability for any harm arising out with the Warsaw Convention. Their only public statement was that their staff "do not normally discriminate on the grounds of sexual orientation." Hardly backing up the actions of the attendant in this case. Personally, I find it a source of great weakness that anyone, never mind an organisation which deals with and makes a great deal of money from members of the public, does not have the confidence and maturity to investigate instances of blatant discrimination amongst their staff and offer assurances that offenders will undergo training, for example, to be properly sensitised to the harm caused by their actions. This would in no way render their reliance on a Convention (which is not simply a Code, but has been ratified by so many nations it is the most complied with piece of International Private Law in the world) to shield them from the delictual liability they would have otherwise faced. The laws applicable to the civil case were, on instruction of the Cape Town High Court, South African municipal law unless trumped by the Convention. The Cape High Court ultimately held that, regardless of the grave harm to his rights suffered by Mr Potgeiter, the Convention did apply. At Trial, the judge pointed out that this meant an aircraft carrier could designate toilets to be "whites only" or attendants could sexually harass a passenger (provided they did not touch the passenger) and the victims would have no legal recourse to sue the airline. South Africans fought a long and hard fight to remove the possibility of such things happening. Now Mr Potgeiter must bring a fresh action against BA to challenge the Constitutionality of the Act incorporating the Warsaw Convention into South African law. In effect, BA is trying to out-litigate him in the hope that he is bankrupted before their immunity from liability is dislodged.
Originally Posted by spotwelder
There is very little tolerance from the UK courts for altercations with cabin crew that get out of hand. I imagine that several warnings had to be given about behaviour prior to the Captain's decision.
The person involved appears to have pleaded guilty to a charge. I doubt that the guilty plea was beaten out of him at this stage. Unable to pay the fine, the person went to jail. That is normal for air rage.
Mr Potgeiter told the offence was ‘strictly liable’ (ie one can offer no defence) and he was unable to pay the £4 000 fine due to the fact that the police had confiscated all of his money, his three week business/vacation had turned into a several months saga with him bailed to an expensive hotel and no one being interested in assisting him alter the bail conditions, and the length of time it takes to transfer money from South Africa to London. Financial controls are very strict in South Africa and sometimes the Reserve Bank need to be contacted. I remind you that the RSA Rand is almost 12 Rand to the £. The average wage in South Africa is under R10 000 per month. The fine was extremely substantial in South African terms.
Originally Posted by spotwelder
All I can say is that the conviction was under UK law and not the Warsaw Convention. I do not see this as a sexual discrimination case, merely air rage with the pink outrage card being played to get compensation. I think that there should be a period of reconsiliation, as is traditional in South Africa. Perhaps Archbishop Desmond Tutu should be asked to give his verdict about gay kissing being offensive?
There has been so much speculation surrounding the "kiss" anyone would think they were having sex. In South Africa a radio show I look part in dedicated the whole discussion to displays of affection! There was absolutely nothing sexual about the kiss, and I can say that with the clearest of consciences as Mr Potgeiter's mother was sitting beside the couple and she would have complained before any of the passengers got involved if she saw anything amiss. In passing, Desmond Tutu also applauds individual's standing up against discrimination. He defied the Group Areas Act by taking up the official residence of the Archbishop and then had to live with the constant knowledge that he could have been arrested, without recourse, for having the audacity of being a black man offending his white neighbours by daring to think himself good enough to live next door to them. Throw away remarks about the "pink card" actually serve to remind us just how far some of us still need to come to understand that acts of discrimination perpetuated against marginalised groups result in anger, lost tempers and over reaction precisely because their pain is dismissed as only the whining of a screaming queen, or a dirty kaffir, or a stupid woman.
I'm sorry to have taken up so much time, I'm just shocked by the fact that so few people see past the immediate case to look at the bigger picture. I have nothing against flight attendants in general, but I fear of confirming that they have carte blanche to discriminate against marginalised groups (are you or have you gone on a journey with a Moslem recently?) or even unquestioningly to give force to another passenger's discrimination, as was indicated earlier in your letter.