The Precarious Employment Position of Ministers of Religion: Servants of God but not of the Church

JurisdictionSouth Africa
Citation(2017) 28 Stell LR 287
Published date27 May 2019
Date27 May 2019
Karin Calitz
Emeritus Professor of Law, Stellenbosch University
1 Introduction
South African cour ts have in recent years interpreted the meaning of
“employee” to also include categories of persons not prev iously regarded as
such. T he effect is that a wider group of workers now enjoys protection by
labour legislation. The following workers were recently seen as employees
entitled to protection by labou r legislation: A sex worker working in terms of
an un lawfu l contract,1 an immigrant with no valid contract,2 persons whose
written c ontracts indicated that t hey were not employees since they rendered
services through a close cor poration,3 as well as per sons described a s
independent contractors in terms of their contracts.4 In reaching the decision
that these persons should be regarded as employees, the cour ts had regard
to, inte r alia, the constitutional r ight to fair labour pract ices5 as well as the
denition of “employee” in labour legislation. The cour ts further focuse d on
the substance rathe r than the form of the relevant contra cts. The reality of
the relationsh ip and not the written contract was thus decisive. Des pite this
development, it seems as if courts are reluctant to extend labour law protection
to ministers of religion, as was once again i llustrated in Universal Church
of the Kingdom of God v Myeni (“Myeni LAC”)6, a recent judgment of the
Labour Appeal Cour t (“LAC”). The Commission for Conciliation, Med iation
and A rbitration (“CCMA”) as well as t he Labour Court (“Myeni LC”)7, t he
court a quo in this matter, held that the pastor was i ndeed an employee, but
this decision was overturned by the LAC. This court found that the parties did
not have the intent that legal consequences would ow from their relationship
and that the pastor could thus not enjoy the protection of the Labour Relations
Act 66 of 1995 (“LRA”), which is applicable only to employees.
* I would like to tha nk the two anonym ous referees for thei r valuable comments a nd guidance.
1 Kylie v Commissione r for Conciliation Med iation and Arbitr ation 2010 4 SA 383 (LAC).
2 Discovery H ealth Ltd v Commiss ioner for Concili ation Mediati on and Arbitrat ion 2008 29 ILJ 1480 (LC).
3 Denel (Pty) Ltd v G erber 2005 9 BLLR 849 (L AC); State Info rmation Techno logy Agency (Pt y) Ltd
v Commissione r for Conciliation Me diation and Arbitr ation 2008 29 ILJ 2234 LAC).
4 See, eg, Building Bargaining C ouncil (Southern an d Eastern Cape) v Melmon’s Cupboard C C 2001 22
ILJ 120.
5 S 23 of the Constit ution of the Republic of Sout h Africa, 1996 (“Cons titution”).
6 2015 36 ILJ 2832 (LAC).
7 Universal Chu rch of the Kingdom of God v Commis sioner for Conciliation Med iation and Arbitratio n
2014 35 ILJ 1678 (LC).
(2017) 28 Stell LR 287
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In this article, I will argue that t he main reason why the LAC denied that
a contract had been concluded by the parties is that it gave too much weight
to the autonomy of t he church in a matter that did not involve a spiritual
dimension. I will f urther argue t hat even if no common-law contract had
been concluded , the pastor should, in li ne with juri sprudence extending the
meaning of “employee” and the interpret ation of relevant legislation by t he
courts in lig ht of the Constit ution, have been regarded as an employee.
2 Extended meaning of “employee”
The meaning of “employee” has in recent years been ex tended by juris-
prudence interpret ing the denition of “employee” in light of the Constitution,
thus br inging more working people under the protective u mbrella of labour
legislation. A contract of employment was no longer seen as a requirement
for protection.
This development is in line with the Constitut ion, which provides in section
23 that everyone has the right to fair labour practices. There is no requirement
that there should be a contract between the parties. The LRA moreover gives
effect to the constit utional right to fair lab our practices by dening an em-
ployee as:
“(a) any person, excluding an independent contractor, who works for another person or for the state
and who receives, or is entitled to receive, any remuneration, and
(b) any other person who in any manner assists in carrying on or conducting the business of an
Benjami n8 emphasises that the denition does not mention a contract at all
and th at especially the second par t of the denition should not be narrowly
interpreted so as to “comply with the constitutional directive to construe
labour legislation purp osively”.9
In 2002, section 200A was included i n the LRA to assist persons who earn
under a certa in threshold to prove that they are employees:
“(1) Until the contrary is proved, for the purposes of this Act, any employment law and section 98A of
the Insolvency Act, 1936 (Act 24 of 1936), a person who works for, or renders services to, any other
person is presumed, regardless of the form of the contract, to be an employee, if any one or more of
the following factors are present:
(a) the manner in which the person works is subject to the control or direction of another person;
(b) the person’s hours of work are subject to the control or direction of another person;
(c) in the case of a person who works for an organisation, the person forms part of that organisation;
(d) the person has worked for that other person for an average of at least 40 hours per month over the
last three months;
(e) the person is economically dependent on the other person for whom he or she works or renders
(f) the person is provided with tools of trade or work equipment by the other person; or
(g) the person only works for or renders services to one person.”
The presumption is on ly applicable to per sons earning below the threshold
set by the Minister of Labou r from time to time.10
8 P Benjamin “An accident of histor y: Who is (and who should be) an employee under South African labou r
law” (2004) 25 ILJ 787 788.
9 804.
10 Curren tly R205 433.30. See s 6 of the Basic Condit ions of Employment Act 75 of 1997.
288 STELL LR 2017 2
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