Case Notes: Religion Above the Law? Universal Church of the Kingdom of God v Myeni and others (DA 3/14) [2015] ZALAC 31 (28 July 2015)

• Jurisdiction: South Africa
• Published date: 20 August 2019
• Citation: (2016) 28 SA Merc JL 360
• Pages: 360-373
• Date: 20 August 2019
• Author: Wilhelmina Germishuys

RELIGION ABOVE THE LAW? UNIVERSAL

CHURCH OF THE KINGDOM OF GOD V

MYENI AND OTHERS

(DA 3/14) [2015] ZALAC 31 (28 JULY 2015)

WILHELMINA GERMISHUYS

Senior Lecturer, College of Law, University of South Africa

I INTRODUCTION

The concept of ‘employee’ with its relatively wide def‌initions contained

in various labour legislation (including the Labour Relations Act 66 of

1995 (LRA), the Basic Conditions of Employment Act 75 of 1997

(BCEA) and the Employment Equity Act 55 of 1998 (EEA)) has enjoyed

an increasingly inclusive and purposive interpretation by our courts,

including the Constitutional Court during the last decades (‘SA

National Defence Force Union v Minister of Defence &another’ (1999)

20 ILJ 2265 (CC) para 28; Wyeth SA (Pty) Ltd v Manqele & others [2005]

6 BLLR 523 (LAC) para 45; ‘Discovery Health Limited v Commission for

Conciliation, Mediation and Arbitration and others’ (2008) 29 ILJ 1480

(LC) para 49; ‘Kylie v Commission for Conciliation, Mediation and

Arbitration and others’ (2010) 31 ILJ 1600 (LAC) paras 25 and 26). This

interpretation is in line with the constitutional approach within which

the def‌inition of employee must be construed (Van Niekerk et al,

Law@work (LexisNexis 2015) 4).

A person’s employment is fundamental to def‌initions of self and

provides status, esteem and meaning to people suff‌iciently fortunate to

be engaged in it. The loss of employment, especially in economies with

high levels of unemployment, will most often have devastating conse-

quences for employees and their families (Van Niekerk et al, (LexisNexis

2015) at 3). In a country such as South Africa with an off‌icial unemploy-

ment rate that exceeds 25%, it is highly unlikely for a prospective

employee in the fortunate position of being faced with an employment

opportunity, to engage in extensive bargaining with the prospective

employer (www.statssa.gov.za, accessed on 22 September 2015). The

prospective employee faced with such a situation is much more likely to

sign the contract on the terms dictated by the employer. The traditional

function of labour law has been to address this imbalance (Van Niekerk

et al, (LexisNexis 2015) at 4).

The LRA creates employee protection against inter alia unfair dis-

missals by employers and the fact that such unfair dismissals may be

360

(2016) 28 SA Merc LJ 360

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