The precarious employment position of ministers of religion : servants of God but not of the church
CITATION: Calitz, K. 2017. The precarious employment position of ministers of religion : servants of God but not of the church. Stellenbosch Law Review, 28(2):287-307.
The original publication is available at https://journals.co.za/content/journal/jlc_slr_v28_n2
South African courts have in recent years progressively extended protection against unfair dismissal to categories of persons not previously regarded as employees. Courts interpreted labour legislation in light of the Constitution to include persons with illegal and invalid contracts, as well as persons who were described as independent contractors. Despite this development, the LAC in Church of the Universal Kingdom of God v Myeni held that the minister of religion could not be regarded as an employee because in the court’s view the parties had no intention to create legal relations. This judgment can be criticised on the ground that the court regarded the form of the agreement, which described the service of the minister of religion as voluntary, as the only determining factor and did not take the de facto relationship between the parties, which pointed to an employment relationship, into account. The LAC insisted that there must be a contract for the minister of religion to be regarded as an employee, while the Constitution and the LRA do not require a contract. Reliance on English jurisprudence by the LAC is further not appropriate because of certain peculiarities regarding the history of churches in England which are not shared by South African churches. The LAC did not take the unequal bargaining position of ministers of religion nor the relevant constitutional rights of the parties into account. The spiritual dimension of the minister’s service seems to be decisive in the court’s decision, although the misconduct was not a spiritual matter falling within the domain of the church’s own decision-making powers. This matter should have been dealt with by civil courts since there was no danger of doctrinal entanglement.