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[2015] ZALAC 31
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Universal Church of the Kingdom of God v Myeni and Others (DA 3/14) [2015] ZALAC 31; [2015] 9 BLLR 918 (LAC); (2015) 36 ILJ 2832 (LAC) (28 July 2015)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA,
DURBAN
Case
no. DA 3/14
DATE:
28 JULY 2015
Reportable
In
the matter between:
THE UNIVERSAL
CHURCH OF THE KINGDOM OF
GOD
............................................
Appellant
(
Applicant
in the Court
a
quo)
And
MYENI, MXOLISI
JUSTICE
.....................................................................................
First
Respondent
(Third
Respondent in the Court a quo)
THE COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
..............................................................................................
Second
Respondent
(First
Respondent in the Court a quo)
COMMISSIONER
SULLIVAN
N.O
.........................................................................
Third
Respondent
(Second
Respondent in the Court a quo)
Heard: 17 March
2015
Delivered: 28
July 2015
Summary: Appeal –
Review – Jurisdiction of CCMA – Test applicable to
determine jurisdiction restated – Alleged
employer &
employee relationship – Whether a pastor is employee of the
church ito s213 r/w 200A of the LRA – Both
CCMA commissioner &
LC finding that church failed to rebut s200A presumption and holding
that pastor was therefore an employee
of the church. On appeal:
Interpretation of s200A – meaning of the words “
regardless
of the form of the contract”
- s200A applicable only where
there is a contract or contractual arrangement in place between
parties.
In casu
s200A did not apply. On the facts, the
parties never intended to engage in any form of legally binding
agreement, including employment
contract. Accordingly, appeal upheld.
Coram: Waglay JP,
Davis
et
Ndlovu JJA
JUDGMENT
NDLOVU JA
Introduction
[1]
The issue in this appeal is whether the second respondent, the
Commission for Conciliation, Mediation and Arbitration (“the
CCMA”) possessed the requisite jurisdiction to arbitrate an
unfair dismissal dispute between the appellant (“the Church”)
and the first respondent, Mr Mxolisi Justice Myeni. The basis for
this jurisdictional challenge (raised
in
limine
by the Church in the Court
a
quo
)
was that Mr Myeni, the Church pastor, was not an employee of the
Church, as defined in the Labour Relations Act
[1]
(“the LRA”).
[2] In his
arbitration award, the third respondent (“the commissioner”)
found that Mr Myeni was indeed an employee of
the Church. Having made
this ruling, the commissioner proceeded and considered the merits of
the unfair dismissal claim referred
by Mr Myeni against the Church.
The commissioner concluded that Mr Myeni was unfairly dismissed and
ordered the Church to pay him
compensation in the sum of R64 994.96,
plus further ancillary relief. The Church launched a review
application in the Labour Court,
against the award, in terms of
section 145 of the LRA. By agreement between the parties, the Court
a
quo
was called upon to deal only with the jurisdictional issue
raised by the Church
in limine
whether Mr Myeni was an
employee of the Church as envisaged in the LRA. The dispute on the
merits was held over for determination
at a later stage.
[3] After
determining the jurisdictional issue in favour of Mr Myeni, the
Labour Court (Steenkamp J), in the judgment handed down
on 28
November 2013, dismissed the review application, thus upholding the
commissioner’s finding that Mr Myeni was indeed
an employee of
the Church and that, therefore, the CCMA did possess the requisite
jurisdiction to entertain the matter. The judgment
of the Court
a
quo
is published as
[2014] JOL 32275
(LC). It is against this
judgment that the Church now appeals to this Court, with leave of the
Court
a quo
.
The factual
matrix
[4]
The Church is governed under a constitution, known as the
Constitution of the Universal Church of the Kingdom of God (“the
Church’s constitution”), which defines the Church as a
voluntary association with the status of a
legal
persona.
According
to the Church’s constitution, the main functions of the Church
include operating churches under the auspices of
the Pentecostal
Evangelical Denomination, exclusively for religious, charitable,
educational, philanthropic and benevolent purposes;
[2]
establishing branches and congregations under the leadership of the
LORD JESUS CHRIST and under the direction of the HOLY SPIRIT
in
accordance with all the commandments and the provisions set forth in
the Holy Bible;
[3]
observing a
creed, code of doctrine, discipline and form of worship in accordance
with the Statement of Faith;
[4]
raising up and training assistants, assistant pastors and pastors
from among members who demonstrate maturity and faithfulness
within
the Church in their personal lives;
[5]
establishing regular religious services for the fellowship and
spiritual aid of its congregants;
[6]
spreading the Gospel and invite the public to the Church through
religious campaigns, radio, television, newspaper advertisements,
and
the like;
[7]
and supporting
missionary work and all things that relate to furthering the work of
Jesus Christ in the world.
[8]
The constitution further provides that the Presbytery is the highest
authority in the Church and the Bishop and Pastors are to
serve under
the Great Bishop, JESUS CHRIST.
[9]
[5]
Mr Myeni joined the Church in 1993 as an ordinary member. During the
following year (1994) he was appointed as an “assistant”
or “helper”, which was a volunteering role whereby he
would assist the resident pastor in his pastoral duties. In 1998,
after going through a successful interview and attending a “
class”
for six months in Johannesburg, he was appointed as an auxiliary or
assistant pastor and based in Durban, although he was only
“officially” ordained in 2004. In terms of the
Regulations,
[10]
an auxiliary
pastor becomes a full pastor upon receiving the blessing of
consecration. The distinction between ordination (which
Mr Myeni
received in 2004) and consecration was not made clear in
evidence.
[11]
For the present
purpose however, such distinction, if any, would be of no relevance.
[6] On 1 October
2009, a document containing a codified set of Christian doctrinal
principles for Church pastors, titled “
Regulations for
Pastors”
was signed by Mr Myeni and his wife. On 15
November 2010, Mr Myeni and his wife signed another document that
appears to incorporate
a religious declaration or vow made by Mr
Myeni in his vocation as pastor of the Church, and it is titled
“
Declaration of Voluntary Service”
. For the sake
of convenience I shall refer to the documents respectively as “
the
Regulations”
and “
the Declaration”,
or
collectively “
the (two) documents”
. A duly
authorised representative of the Church and at least one witness also
signed the documents at the same time as Mr Myeni
and his wife. It is
common cause that the Church relied mainly on these documents; hence
they are materially and crucially important
to this case. I propose
to refer to the documents, to the extent relevant for the present
purpose.
‘
REGULATIONS
FOR PASTORS
2. The pastor
understands and accepts that:
2.1
He is not an employee of the Church but renders his voluntary service
according to his Christian convictions.
2.2
The allowance that he receives from the Church is so bestowed on him,
not as remuneration, but to assist him with his subsistent
requirements.
3. The pastor
understands and accepts that:
3.1
He may not use his position of authority over other pastors,
assistants, members or
third parties.
3.2
He may not accept, give or take steps to acquire gifts or money from
assistants, members
or third parties. …
5. [The pastor
understands and accepts that]:
5.1
The pastor must regard all monies contributed by people in the Church
as holy.
5.2
The pastor may not use the money for any reason whatsoever.
5.3
The pastor’s voluntary service will be immediately terminated,
should it be
proven that he stole any offering or part of it. …
10. [The pastor
understands and accepts that]:
10.1
Not all the pastors of the Church are ‘consecrated pastors’.
10.2
No auxiliary pastor receives the blessing of consecration.
10.3
No unmarried pastor receives the blessing of consecration.
10.4
Until such time that one receives the blessing of consecration, he is
considered and remains
a trainee pastor, undergoing [the] said
training towards possible consecration. It is only after he has been
consecrated that he
is given full ‘pastorship’ in that he
becomes a Pastor of the Universal Church of the Kingdom of God and no
longer
a trainee pastor.
DECLARATION
I, the undersigned,
Mxolisi Justice Myeni ID number 781105 5619 087 do hereby take an
oath and declare that:
5. I am
volunteering
as a trainee pastor
at the Universal Church of the Kingdom of
God. …
7. …
Included
in this declaration are some of the principles, responsibilities and
discipline that have been clearly communicated to
me from the onset,
which I unquestionably acknowledge and resolve to abide by and
regarding which I have no apprehension or doubt
.
DECLARATION OF
VOLUNTARY SERVICE
During the entire
period of training programme to date, and henceforth, I always
understood that:
1.
My voluntary time given to the Church shall
not be misconstrued by misconstrued by myself, or any third party
acting on my behalf,
as any form of employment or contract.
2.
I am not an employee of the Church but a
servant, rendering my voluntary devotional assistance because of my
convictions and causes
of the Christian faith.
3.
I receive no form of remuneration for any
services rendered directly or indirectly by myself to the Church.
4.
The Church may, at its own discretion, when
possible, with no obligation, under no compulsion, provide me with a
subsistence allowance,
where necessary. Any form of assistance given
shall not be misconstrued as a precedence and/or normal practice,
even when [the]
said assistance is provided to me at regular and not
sporadic intervals. …
5.
…
6.
…
7.
I am fully aware that the bishop and the
Leadership of the Church are, at any time during my voluntary
training period, entitled
and obliged to decide on my suitability as
a trainee pastor and therefore reserve the sole right of summarily
terminating my training
for this or any other reason.
8.
…
9.
…
10.
…
11.
…
12.
I shall not, under any circumstances,
obtain personal gist from myself from members, assistants or any
other third parties; I shall
not use the name of the Church and/or my
position in the Church to borrow or acquire money, gifts, appliances,
equipment or any
other possessions for my personal benefit.
13.
…
14.
Any contravention of the rules,
disciplines, policy, procedures, and convictions embraced by the
Church and the Christian faith
will result in the summary termination
of my voluntary assistance.
15.
The Church, although under no obligation to
do so, has benevolently provided me with all aspects –
spiritual, material and
otherwise – which are contained herein.
I have never lacked anything materially, physically or spiritually
that could revoke
and/or annul the Church’s benevolence towards
myself.
16.
I shall not, during the entire period
within which I provide my voluntary assistance to the Church, engage
in and/or enrol for any
type of occupation whatsoever and/or a
training programme of any nature, be it personally (sic) or by
correspondence, without first
informing the Church and obtaining
prior authorisation to engage in [the] said activities, and this
applies both to myself and
my spouse whether our union falls before
or after the signing of this declaration.’
(Emphasis added)
[7] On 18 December
2011, the service of Mr Myeni with the Church was terminated by the
Board of the Church on the ground of alleged
misconduct on his part.
Mr Myeni was not satisfied with the termination and thus referred a
dispute of unfair dismissal to the
CCMA for conciliation. The
conciliation process failed and a certificate to that effect was
issued, which culminated in the matter
being enrolled for an
arbitration hearing before the commissioner.
The arbitration
[8] Mr Myeni
testified that his duties, as pastor, mainly involved preaching the
gospel of God and that, since the Church was open
from Monday to
Sunday, he was always available to assist with preaching. He
performed these duties even before he was ordained
in 2004. After his
ordination, his duties remained the same, namely, to preach the
gospel of God.
[9] In support of
his averment that he was an employee of the Church, Mr Myeni
testified that he was paid a stipend by the Church
in the sum of
R1875 per week (or R7500 per month) and every such payment was
accompanied by a payslip. In addition, he was provided
with
accommodation worth R4500 per month, paid for by the Church. Further,
both the Unemployment Insurance Fund (UIF) and Pay-As-You-Earn
(PAYE)
deductions were made from his stipend. He was obliged to compile a
weekly work schedule showing what duties he performed
and time
durations thereof, in a particular week. He was required to conduct
about three to four religious services every day.
If, for whatever
reason, he was unable to perform any of his duties he was obliged to
report to his senior, the regional pastor,
who would then instruct a
reserve pastor to fill up that gap and perform the service concerned.
He further stated that during these
services, he was required to
collect monies from church members which he accounted for to the
Church. He said it was in return
to the duties which he performed
that he was paid the stipend and provided with the accommodation.
[10] On 15 December
2011, Mr Myeni and his wife attended what he described as a normal
“
Thursday pastors’
meeting”. At the
conclusion of the meeting, he and his wife were requested by the
Bishop to stay behind. He did not know
the reason therefor. To his
surprise, the Bishop accused him of having received sacrificial
offerings from certain Church members
and converted the same for his
own private use. He denied any suggestion that he misappropriated
Church funds. However, he admitted
receiving some monies from certain
Church members on three different occasions, but not under illicit
circumstances, which he sought
to explain. He said he received two
cash amounts from Ms Hlengiwe Dludla - R300 which was a gift and R50
which he received on behalf
of a third party being in respect of the
sale of a book; and also a gift of R1000 cash from Ms Nkosizile
Mkhwanazi whom he said
was his personal friend. The Bishop said he
was going to conduct further inquiries into the matter and they
parted. He was not
informed of the outcome of the investigation.
Instead, on 18 December 2011, he was advised that the Board of the
Church had decided
to terminate his services. He regarded this
development as a dismissal, which he claimed was unfair and, for this
reason, he sought
compensation from the Church.
[11] Ms Masangu
testified that she was a voluntary worker at the Church, assigned in
the department dealing with pastors’
affairs. Her duties
included explaining to student pastors that they were attending the
class in order to be trained to become
pastors. Once they finished
the training lessons, they would become auxiliary pastors. It was at
this stage that she would then
explain to them everything about the
Declaration and, particularly, the fact that they were rendering a
voluntary service to the
Church. The auxiliary pastors would then
sign the Declaration in acknowledgement that they understood the
contents thereof. She
would also sign the Declaration. The same
procedure applied to Mr Myeni.
[12] The witness
pointed out that, in her case, she came to perform voluntary work for
the Church after quitting remunerative employment.
Her husband was
also a pastor in the Church. Whenever a pastor wanted to be away for
a certain period of time, the pastor concerned
would not need to
apply for leave, but would only report to the immediate senior
pastor, in which event another pastor would be
asked to stand in for
the pastor who was away. She sought to differentiate pastors from
ordinary workers who were employed by the
Church, such as caretakers,
cleaners, and those working in the engineering department. She said
there were about 700 to 800 such
employees who signed employment
contracts with the Church.
[13] Under
cross-examination, Ms Masangu conceded that, of the voluntary
workers, only pastors were paid a stipend. However, they
(the
pastors) still remained volunteers. She further mentioned that
trainee pastors were taken from a pool of assistants. Formal
requirements for eligibility included checking on the individual’s
good health and police clearance, the latter being in
respect of any
criminal record.
[14] Pastor
Tshabalala testified that he was the senior or regional pastor
responsible for monitoring junior pastors. He also signed
the
Declaration. He was adamant that being a pastor in the Church was
different from being employed. When he assumed the role of
pastor he
was informed by the Church Leadership that he was offering his
services as a volunteer in the Church and “
without anything
that you are expecting in return, because that is what I was called
for”.
He said the stipend that he and other pastors
received from the Church was only to enable them to buy food and
clothing; and to
carry out their pastoral duties. However, he was
aware that the Church was in no way obligated to pay them the
stipend, which was
only a subsistence allowance.
[15] He further
testified that Mr Myeni was one of the pastors under his charge. He
said no pastor was allowed, in terms of the
Regulations, to receive
money privately from a church member, either as a gift or donation.
Only a pastor’s wife was allowed
to present the pastor with a
birthday or Christmas gift, but nobody else. He confirmed that in
terms of regulation 12.1, the Church
Leadership could terminate the
services of any pastor who is found to have contravened any of the
regulations.
[16] Given the fact
that in the review proceedings the Court
a quo
was called upon
to deal only with the jurisdictional point (i.e. whether Mr Myeni was
an employee of the Church or not), I shall
henceforth concentrate
only on that part of the commissioner’s award.
[17] The
commissioner considered the circumstances under which Mr Myeni
rendered his services to the Church and, in this regard,
took into
account the following: that Mr Myeni underwent an interview and
attended class lessons before becoming a pastor; was
obliged to
conduct religious services; he received a regular income from the
Church which was subject to Income Tax and UIF deductions;
prepared a
weekly work schedule; performed his duties personally and was bound
by various Church practices and he was subject to
the authority of
the Bishop. On this basis, the commissioner concluded as follows:
‘
31.
On these facts there can be little doubt that the intention of both
parties was that of an employment relationship – with
the
applicant undertaking the services required by the respondent and the
respondent remunerating the applicant for so doing.
32. Of course
pastors were also required to sign the Declaration of Voluntary
Service. The main if not the only purpose of which
is to avoid the
provisions of the Labour Relations Act and the applicant’s
constitutional right to a fair labour practice.
Signing a piece of
paper declaring that you are not an employee is close to meaningless
if it is done, as in this case, at the
insistence of the employer. …
33. There is no
doubt that the respondent did not want to enter into an employment
contract. It did everything it could to avoid
the relationship
between it and its pastors being declared an employment relationship
and relied on its primary tool in this regard:
the “Declaration
of Voluntary Service”. It may, in fact, have very good reasons
for doing so. It is clearly not in
the respondent’s interests
to have its pastors declared employees as they would be subject to
the Labour Relations Act.’
[18]
The commissioner accordingly ruled that Mr Myeni was indeed an
employee of the Church and proceeded with the arbitration. He
ultimately found that Mr Myeni was unfairly dismissed and ordered the
Church to pay him compensation in the amount equivalent to
eight
months of his stipend, which the commissioner curiously calculated to
be R64 994.96,
[12]
plus
further ancillary relief which included eight months’ worth of
his accommodation at R4500 per month (i.e. R4500x8 =
R36000) less
R4500 for every month or part thereof that Mr Myeni continued (or
would continue) to occupy the said accommodation
up to the time of
his departure.
The Labour Court
[19] The Church was
not happy with the outcome of the arbitration process; hence, it took
the matter up on review in the Labour
Court, in terms of section 145
of the LRA. Its grounds of review can be summarised as follows:
1.
The finding of the commissioner that Mr
Myeni was an employee of the Church was wrong.
2.
The commissioner failed to take into
account that, by his own admission, Mr Myeni did not render his
service to the Church, as envisaged
in terms of section 200A of the
LRA, but he was doing the work of God.
3.
The commissioner failed to take into
account the true intention of the parties as evidenced,
inter
alia
, by the Declaration of Voluntary
Service, namely, that they did not intend to enter into an employment
contract.
[20] The Court
a
quo
substantially agreed with the commissioner’s reasoning
and found that the following seven factors present in Mr Myeni’s
involvement with the Church, conformed to the factors referred to in
section 200A, one or more of which would be sufficient to
trigger the
section 200A presumption (“the s200A Factors”):
1.
The manner in which Mr Myeni worked was
subject to the control or direction of the Church.
2.
His hours of work were subject to the
control or direction of the Church.
3.
He formed part of the Church.
4.
He worked for the Church for at least 40
hours per month.
5.
He was economically dependent on the Church
and he earned no other income. The Church deducted pay as you earn
(PAYE) and Unemployment
Insurance Fund (UIF) contributions from his
“remuneration” which the Church called a “stipend”.
6.
On Mr Myeni’s tax certificate (IRP5)
submitted to SARS the Church was reflected as the employer.
7.
At the arbitration hearing, the Church was
represented by an official from a registered employers’
organisation.
[21] After
considering the evidentiary material presented and submissions made,
the Court
a quo
stated, amongst others, the following:
‘
[30]
The absence of a contract of employment does not mean that no
employment relationship could be established. As Prof Paul Benjamin
(footnote omitted) has noted, the definition in s 213 of the LRA does
not use the language of contract. And when s 200A creates
a
rebuttable presumption “regardless of the form of the
contract”, that does not, in my view, presuppose the existence
of a written contract. The Employment Relationship Recommendation,
2006, of the International Labour Organisation states that ‘a
disguised employment relationship occurs when the employer treats an
individual as other than an employee in a manner that hides
his or
her true legal status as an employee.’
[13]
[22]
Consequently, the Court
a quo
found that the Church failed to rebut the section 200A presumption
and ruled, accordingly, that Mr Myeni was an employee of the
Church
at the time his relationship with the Church terminated. As noted
earlier, by agreement, the aspect relating to the fairness
or
otherwise of Mr Myeni’s dismissal was held over for
determination at a later stage, that is, at the hearing of the review
application on the merits, at which stage the issue of costs would
also be determined.
The appeal
[23] In its grounds
of appeal, the Church submitted that the Court
a quo
erred in
the following respects:
1.
In holding that Mr Myeni was an employee of the Church, as envisaged
in the LRA.
2.
In finding that the Church did not discharge the
onus
created
in terms of section 200A of the LRA of proving that Mr Myeni was not
an employee of the Church.
3.
In finding that the words “regardless of the form of the
contract”, as used in section 200A, justified a departure
from
the actual wording and express intention of the parties, as set out
in their agreement (in terms of the Regulations and the
Declaration)
and oral evidence, that they had no intention to enter into a
contract of employment.
[24] Mr
Pauw
SC, appearing for the Church, pointed out that the only question
which the Court had to determine was whether the parties ever
intended to conclude any contract and to be bound thereby. In his
submission, the parties never had such intention at all. That
being
the case, he submitted, the provisions of section 200A did not apply.
According to counsel, section 200A can only apply once
there is a
contract in place. In other words, the gatekeeper is that there was
to be some form of contractual agreement between
the parties for the
provisions of section 200A to apply.
[25] Mr Mfungula,
who appeared for Mr Myeni, hardly had anything to address us about,
save to submit that the appellant did not
make a case to justify this
Court setting aside the judgment of the Court
a quo
. Otherwise
he simply left the matter in the hands of the Court.
Evaluation
[26]
Mr Myeni alleged that he was employed by the Church, which the Church
denied. Thus the
onus
was on him to prove that he was indeed an employee of the Church as
envisaged in the LRA.
[14]
Unless he established that there was an employment relationship
between him and the Church, the CCMA, being the creature of statute,
would not have the requisite jurisdiction to arbitrate his dispute.
[27]
Given the fact that the review proceedings concerned a ruling by the
commissioner on the CCMA jurisdictional challenge, the
review test of
constitutional reasonableness in terms of the
Sidumo
decision,
[15]
does
not apply. It is said that the value judgment of the commissioner in
a jurisdictional ruling has no legal consequence and that
it is only
a ruling for convenience. Therefore, the applicable test is simply
whether, at the time of termination of his relationship
with the
Church, there existed facts which objectively established that Mr
Myeni was indeed the employee of the Church. If, from
an objective
perspective, such jurisdictional facts did not exist, the CCMA did
not possess the requisite jurisdiction to entertain
the dispute,
regardless of what the commissioner may have determined.
[16]
[28]
The Labour Court has encountered similar matters in the past. In
Church
of the Province of South Africa (Diocese of Cape Town) v CCMA and
Others
[17]
(“the
CPSA decision or judgment”)
the Labour Court (per Waglay J, as he then was) concluded that a
pastor was not an employee of his church as envisaged in the LRA
and
that, therefore, the CCMA had no jurisdiction to entertain the
pastor’s dispute with the church.
[29]
A similar conclusion, as in the
CPSA
decision,
was reached by the Labour Court in
Salvation
Army (South African Territory) v Minister of Labour
[18]
(“the
Salvation Army decision or judgment”)
where the applicant church sought a declaratory order to the effect
that its clergy (referred to as “Officers”) were
not
employees of the church as defined in the LRA and other labour
legislation specified therein. The Court granted the application.
[30]
In terms of the LRA definition, “
employee”
means
[19]
–
(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 employer.”
[31]
Subsequently, the Legislature introduced section 200A
[20]
into the LRA, in terms of which a rebuttable presumption was created
in relation to establishing who an employee is, as defined
in the
LRA. Subsections (1) and (2) of section 200A read as follows:
[21]
(1)
Until the contrary is proved, 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 services;
(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.
(2)
Subsection
(1) does not apply to any person who earns in excess of the amount
determined by the Minister in terms of section 6(3)
of the
Basic
Conditions of Employment Act”.
[22]
(Emphasis added)
[32]
On 1 December 2006, the
Code
of Good Practice: Who is an employee
came
into effect
[23]
(“the
Code of Good Practice”) and set out some guidelines on the
application of section 200A.
[24]
To the extent relevant, the Code of Good Practice provides the
following:
‘
13 A
person is presumed to be an employee if they are able to establish
that one of seven listed factors is present
in their relationship
with a person for whom they work or to whom they render services. ….
14 Subject
to the earnings threshold
, the
presumption applies in any proceedings in terms of either the BCEA or
the LRA in which a party ('the applicant') alleges that
they are an
employee and one or more of the other parties to the proceedings
disputes this allegation. …
16 The
presumption applies
regardless of the form of the contract
.
Accordingly, a person applying the presumption must evaluate evidence
concerning the actual nature of the employment relationship.
The
issue of the applicant's employment status cannot be determined
merely by reference to either the applicant's obligations as
stipulated
in the
contract
or a 'label' attached to the
relationship
in a contract
. Therefore a statement
in a
contract
that the applicant is not an employee or is an
independent contractor must not be taken as conclusive proof of the
status of the
applicant. (Emphasis added)
17 The
fact that an applicant satisfies the requirements of the presumption
by
establishing that one of the
listed factors is present in the relationship does not establish that
the applicant is an employee.
However, the onus then falls on the
'employer' to lead evidence to prove that the applicant is not an
employee and that the relationship
is in fact one of independent
contracting. If the respondent fails to lead satisfactory evidence,
the applicant must be held to
be an employee.’
[33]
The Court
a
quo
noted that in both the
CPSA
and the Salvation Army judgments
,
the Labour Court found against the party who claimed to be the
employee. However, the Court sought to distinguish the two cases
in
that the
CPSA
judgment
was handed down prior to the introduction of section 200A,
[25]
whilst in the
Salvation
Army
decision
the
Court did not make any specific reference to section 200A, which then
cast some doubt whether the Court in that case considered
the
implications of the section at all.
[34] The Court
a
quo
further took into account that, in any event, both the
CPSA
and the
Salvation Army
decisions were given before the Code of
Good Practice came into effect in 2006. I will return to deal with
the Code of Good Practice
shortly. Presently, I propose to consider
the interpretation and implications of section 200A of the LRA.
Whether section
200A was properly interpreted by the Court a quo and whether the
section and its presumption applies in this case
[35] It was common
cause that the s200A factors were present in Mr Myeni’s
relationship with the Church. On this basis, the
commissioner
appeared to have assumed that section 200A and its presumption
therefore automatically applied. So did the Court
a quo
.
Notwithstanding the oral and documentary evidence presented on behalf
of the Church, the commissioner found that the Church failed
to rebut
the section 200A presumption and came to the conclusion that Mr Myeni
was indeed employed by the Church at the time his
service was
terminated. The Court
a quo
upheld that conclusion.
[36]
It is necessary, in my view, first, to undertake a proper
interpretation of section 200A and, second, to determine whether,
given the facts of this case, the section applies. To my mind, a
proper interpretation of the words “
regardless
of the form of the contract”
in section 200A informs me that the existence of an employment
contract or any other contractual arrangement between the disputing
parties (regardless of the form thereof) is prerequisite for section
200A to apply. Indeed, the portions of article 16 of the Code
of Good
Practice (which I have emphasised in bold, above)
[26]
appear to confirm this view. In other words, some form of contract
must be evident, which need not be formal or in writing.
[37] In my view, a
better understanding of section 200A can only be informed by the
clearer understanding of the circumstances surrounding
the evolution
of the section. There is no doubt that the introduction of this
section was intended to safeguard and protect vulnerable
workers who,
in terms of the LRA, qualified to be treated as “employees”
and to enjoy the legal protection under the
LRA, but who are somewhat
manipulated by some unscrupulous employers and induced to conclude
contracts in which they (the workers)
are conveniently described
either as independent contractors or something similar. In this way,
employers escape their obligations
under the LRA
vis-à-vis
the workers concerned. Therefore, in terms of section 200A, even if a
contract does not refer to “employment”, it is
presumed
to be an employment contract if the s200A factors are present. This
was doubtlessly the primary rationale behind the promulgation
of
section 200A. Simply put, section 200A advocates substance over form.
[38]
Indeed, the factual background to this development can be traced in
the
Explanatory
Memorandum to Draft Bills 2000
.
[27]
What is particularly significant to me about this memorandum is the
fact that it also implies the existence of a contract or contractual
arrangement for section 200A to apply. I refer to the relevant part
of the memorandum:
‘
16.5
… Organisations such as Confederation of Employers of South
Africa (COFESA) advise employers that
they can avoid labour
legislation merely by stipulating
in
contracts
that the workers are
independent contractors without any fundamental change in the
employment relationship. The consequences of
this approach are not
limited to excluding these workers from legislation, such as the LRA
and the BCEA. These employers do not
register with or contribute to
the unemployment insurance and worker’s compensation funds or
meet their obligations in terms
of health and safety legislation.
This weakens these funds and imposes the costs of ill health and
occupational accidents on the
workers, their families and the state.
…
16.8
It is proposed to include a series of rebuttable presumptions in the
BCEA as a new section 83A and
new section 200A in the LRA. These
presumptions concern proof of whether an employment relationship
exists. The effect of these
is to provide that where a particular
factor is present in the relationship between a worker and the person
for whom he or she
works, the worker is presumed to be an employee
unless the contrary is proven. …
16.10
Where an employer adopts the attitude that, despite the presence of
one of these factors, there is no employment
relationship, they will
be required to prove this. The employer has full knowledge of the
working relationship and will therefore
be in a position to present
evidence to discharge the onus in appropriate cases.’
(Emphasis added)
[39]
Incidentally, this disturbing and manipulative practice by
unscrupulous employers was further recognised in the International
Labour Organization (ILO) Recommendation of 31 May 2006
[28]
which, significantly again, clearly indicated the necessity of a
contract or contractual arrangement in a scenario which seeks
to
invoke section 200A. According to the ILO Recommendation, all
member
states should adopt national policy which would include measures to-
‘
combat
disguised employment relationships in the context of, for example,
other relationships that may include the use of other
forms of
contractual
arrangements
that hide the true legal status, noting that a disguised employment
relationship occurs when the employer treats an individual
as other
than an employee in a manner that hides his or her true legal status
as an employee, and that situations can arise where
contractual
arrangements
have the effect of depriving workers of the protection they are
due.’
[29]
(Emphasis
added)
[40]
In my view, therefore, a proper construction of section 200A of the
LRA requires that there must be a legally enforceable agreement
or
some contractual working arrangement in place between the parties,
for section 200A to apply. I
n the
dictum
referred to above, Steenkamp J points out: “
The
absence of a contract of employment does not mean that no employment
relationship could be established”
.
However, in the same paragraph, the learned Judge appears to indicate
that he was in fact referring to a written contract: “
[W]hen
s200A creates a rebuttable presumption … that does not …
presuppose the existence of a written contract”
.
To that extent, I would agree with him because, as already stated, a
contract does not have to be formal or in writing. Otherwise,
I would
disagree with the learned Judge if he meant to say that a contract,
no matter the form, is no
sine qua non
for section 200A to apply.
[41] In terms of the
basic rules of statutory interpretation, it is assumed that the
words, “
regardless of the form of the contract”
,
were not included in section 200A by mistake. Therefore, these words
need to be accorded their ordinary grammatical meaning, unless
doing
so would result in legislative absurdity in relation to this
provision. Bearing that in mind, it appears to me that section
200A
envisages the presence of a contract, regardless of its form, as
sine
qua non
for this provision to apply. Therefore, given my finding
of the absence of a contract in the present instance, it followed
that
section 200A did not apply. Accordingly, the Court
a quo
erred, in my view, in upholding the commissioner’s view that
the section and its presumption applied.
Whether there was
any legally enforceable agreement in place in the relationship
between the Church and Mr Myeni
[42]
In a UK Supreme Court decision,
President
of the Methodist Conference v Preston
[30]
(“Preston”),
the
majority Court, setting aside the decision of the Court of
Appeals
[31]
held that the
respondent, Ms Preston, a superintendent minister in the Methodist
Church, was not an employee of the church, but
was only serving as a
minister “
pursuant
to the lifelong relationship into which she had already entered when
she was ordained.”
Delivering the judgment of the Court, Lord Sumption stated
,
amongst
others, the following:
‘
The
question whether an arrangement is a legally binding contract depends
on the intentions of the parties. The mere fact that the
arrangement
includes the payment of a stipend, the provision of accommodation and
recognised duties to be performed by the minister,
does not without
more resolve the issue. The question is whether the parties intended
these benefits and burdens of the ministry
to be the subject of a
legally binding agreement between them. The decision in Percy is
authority for the proposition that the
spiritual character of the
ministry did not give rise to a presumption against the contractual
intention. But the majority did
not suggest that the spiritual
character of the ministry was irrelevant. It was a significant part
of the background against which
the overt arrangements governing the
service of ministers must be interpreted.’
[43] It is clear
that besides the section 200A presumption, Mr Myeni has nothing else
to rely on. Therefore, the only tangible supportive
evidence is the
two documents, which however favours the Church. The documents were
signed by both parties and they constituted
an agreement between
them. In terms of the documents, Mr Myeni acknowledged that he was
not an employee of the Church – a
situation that appears to be
precisely what section 200A was intended to combat. As indicated
above, article 10 of the Code of
Good Practice provides, among other
things, that “
a statement
in a contract
that the applicant is not an employee or is an independent contractor
must not be taken as conclusive proof of the status of the
applicant”.
It is, therefore, important at this stage to
determine whether the agreement (as per the documents) was
incorporated in a contract.
Put differently, does this agreement
constitute a legally enforceable contractual transaction between Mr
Myeni and the Church,
aimed at regulating their relationship?
[44]
Firstly, there was no suggestion on behalf of Mr Myeni that the
documents incorporated any legally binding agreement between
him and
the Church. Secondly, even if there was, it would not pass muster in
terms of compliance with formal and essential requirements
of a valid
contract. It is settled law that the intention of the parties in any
agreement - express or tacit - is determined from
the language used
by the parties in the agreement
[32]
or from their conduct in relation thereto.
[33]
Further, that not every agreement constitutes a contract.
[34]
For a valid contract to exist, each party needs to have a serious and
deliberate intention to contract or to be legally bound by
the
agreement, the
animus
contrahendi
.
[35]
The parties must also be
ad
idem
(or have the meeting of the minds)
[36]
as to the terms of the agreement. Obviously, absent the
animus
contrahendi
between the parties or from either of them, no contractual
obligations can be said to exist and be capable of legal
enforcement.
[37]
[45] The facts of
this case appear to show that neither party ever intended to enter
into any legally binding agreement with the
other. Based on the
apparent tenor and spirit of the two documents as well as that of the
Church’s constitution (which Mr
Myeni subscribed to) and his
own evidence during the arbitration hearing, it seems to me that Mr
Myeni’s only “contractual”
interest, if any, would
have been more about binding himself to working for God than to be a
remunerated employee of the Church
who was subject to the labour laws
of the country. The following extracts from the arbitration record
reflect some parts of his
evidence, in this regard:
‘“
So
I was one of those six which (sic) selected in my church and doing
the work of God that is like spreading the good news of God
throughout the world.”
[38]
“
To
be a pastor mainly is to preach the gospel of God throughout the
world.”
[39]
“
COMMISSIONER:
“… You tell me what you want. …. Sir, like when I
was fired I was working for God. I had no interest
in leaving the
work of God. I still want to do the work of God, but doing the work
of God I can still do it in other churches as
well as a pastor.
Though I want to continue working for God at the church but most of
the things that I have gone through are they
going to favour me to be
able to carry on my job as I was informed (sic)?”’
[40]
The following
exchange appears under cross-examination:
“
Do
you agree you worked for God? … Yes”
[41]
“
Do
you understand what that means that you are not an employee and you
receive a subsistence allowance to keep you do your job working
for
God? …. Yes.”
[42]
[46]
As for the Church, it is common cause that it never intended to enter
into any contract whatsoever with Mr Myeni. Ironically,
this position
is expressly confirmed by the commissioner’s own finding when
he said: “
There
is no doubt that the respondent [now the appellant] did not want to
enter into an employment contract.”
[43]
On
this basis alone, it could not be said, in my view, that the parties
were
ad
idem
as to the existence of any legally binding agreement between them.
[47]
In the circumstances, I find that there was no employment contract or
contractual arrangement in place between Mr Myeni and
the Church
which regulated his pastoral relationship with the Church. In
Preston,
[44]
the Court remarked that “
[t]he
primary considerations are the manner in which the minister was
engaged, and the character of the rules or terms governing
his or her
service”
.
In the present instance, the relationship between the Church and Mr
Myeni was governed mainly by the Regulations and the Declaration
signed by both Mr Myeni and the Church. However, since both documents
did not constitute an employment contract or contractual
arrangement,
there was no employer and employee relationship between Mr Myeni and
the Church.
[48]
Having found that there was no employment relationship between Mr
Myeni and the Church, I am inclined to accept that the subsistence
allowance in the form of a stipend and the accommodation benefits
provided by the Church to Mr Myeni and his wife jointly, did
not
constitute a remuneration package for Mr Myeni because such money and
benefits were not owed to him by the Church or given
to him in return
for his pastoral services. After all, it would be highly unusual in
any employment situation that an employer
combined two employees in
one salary cheque, as Mr Myeni sought to claim that he and his wife
were somewhat combined in one “joint
salary” of R7
500.
[45]
This was simply a
further illustration that the payment was never intended to be a
remuneration package in terms of any labour
legislation. For obvious
reason, it is not necessary to proceed and deal with the other
section 200A factors found to be present
in Mr Myeni’s
involvement with the Church.
Whether, in any
event, an employment relationship could still be established between
Mr Myeni and the Church despite the absence
of a contract of
employment
[49]
In his pleadings, Mr Myeni relied especially on the section 200A
presumption, which I have found did not apply in this case,
by reason
of the fact that there was neither an employment contract nor a
contractual working arrangement in place between Mr Myeni
and the
Church. Nonetheless, even if I were to consider the matter to the
exclusion of section 200A, it does not appear to me that
I would have
reached a different conclusion. In other words, even during the
“pre-section 200A” era, the existence
of an employment
contract or contractual working arrangement was, in my view, still
prerequisite for the creation of an employment
relationship. I am
aware that this was a rather contentious, if not controversial issue,
occasioned particularly by the wording
in the second leg of the
definition of an “
employee”
in section 213, which includes “
any
other person who in any manner assists in carrying on or conducting
the business of an employer”.
[46]
[50]
This issue was dealt with by Waglay J in the
CPSA
decision.
After a comprehensive interpretation of the definition of “
employee”
in section 213 (prior to the introduction of section 200A), the
Labour Court found that “
a
contract of employment is necessary for purposes of establishing an
employment relationship
and
that [since] there was no legally enforceable contract of employment
between the applicant [i.e. the church] and the third respondent
[i.e. the priest], the parties are not employer and employee as
defined by the LRA and consequently the first respondent [i.e.
the
CCMA] has no jurisdiction to entertain the alleged dispute referred
to it by the third respondent.”
[47]
[51] Indeed, it
appears to me that, by its very nature, an employment relationship
presupposes a working arrangement of a contractual
nature between two
or more persons, in circumstances where the rights, duties and
obligations
inter partes
are legally enforceable. Therefore,
in the present instance, even if Mr Myeni had not relied on section
200A, I would still find
that there was no legally enforceable
agreement between him and the Church and that, for that reason, no
employer and employee
relationship existed between them. There was
simply no contract that could be classified as an employment contract
on the evidence.
[52]
As stated, Mr Myeni produced no other evidence to support his claim
that he was an employee of the Church, other than relying
on the
section 200A presumption. On the other hand, the two documents
supported the Church’s contrary version and this evidence
was
not, in my view, contradicted. Nor was the oral evidence of two
witnesses, Ms Masangu and Pastor Tshabalala, challenged at
all.
Indeed, there seems to be no explanation as to why this oral evidence
was apparently completely disregarded by both the commissioner
and
the Court
a
quo
.
In my view, there was sufficient circumstantial material in this case
to justify a probable inference, in terms of the rule on
inferential
reasoning in civil proceedings,
[48]
that Mr Myeni and the Church never had the intention to engage in a
legally enforceable agreement. Indeed, this was consistent
to
the
traditional practice in the Church, according to the evidence of the
two witnesses.
Conclusion
[53]
I think it is time that the resolution of disputes of this nature,
with religious spiritual connotations or arising from internal
church
doctrinal governance, be left to the leadership of the church
concerned, unless there is a real compelling reason for a
court to
get involved. In my view, the constitutional rights to the freedom of
religion
[49]
and of
association
[50]
would be
better served and enhanced if that were to happen. Incidentally,
recently, in
De
Lange v Presiding Bishop, Methodist Church of SA,
[51]
the Supreme Court of Appeal (per Ponnan JA, with Wallis, Pillay JJA,
Fourie and Mathopo AJJA concurring) dealt with a similar situation.
The following remarks by Ponnan JA (with which I fully agree) are
both persuasive and educative:
‘
As
the main dispute in the instant matter concerns the internal rules
adopted by the Church, such dispute as far as is possible,
should be
left to the Church to be determined domestically and without
interference from a court. A court should only become involved
in a
dispute of this kind where it is strictly necessary for it to do so.
Even then it should refrain from determining doctrinal
issues in
order to avoid entanglement. It would thus seem that the proper
respect for freedom of religion precludes our courts
from pronouncing
on matters of religious doctrine, which fall within the exclusive
realm of the Church.’
[52]
[54] On the facts of
this case, I am satisfied that the mutually agreed relationship
between Mr Myeni and the Church was one in
which Mr Myeni rendered
voluntary devotional service to the Church, under circumstances where
both he and the Church never intended
that such relationship would
constitute an employment relationship between them, producing legally
enforceable rights and obligations
under the LRA. In my view, Mr
Myeni’s claim borders on the label of disingenuousness and
opportunism, to say the least.
[55] Therefore, in
my judgment, I hold that Mr Myeni failed to make out a case that he
was an employee of the Church as defined
in section 213, read with
section 200A, of the LRA at the time his pastoral services with the
Church were terminated. On that basis,
the CCMA did not possess the
requisite jurisdiction to entertain the dispute between Mr Myeni and
the Church.
[56] For these
reasons, I am unable to find the basis upon which the correctness of
the judgment of the Court
a quo
can be justified. Therefore,
the appeal should succeed, with costs.
The order
[57] Accordingly,
the following order is made:
1.
The appeal is upheld with costs.
2.
The order of the Court
a quo
is set aside and substituted with
the following order:
‘
(1)
The review application is granted and the applicant’s point
in
limine
is upheld.
(2) The arbitration
award (Case No. KNDB16320-11 issued on 21 March 2012) is reviewed and
set aside; and is substituted with the
order that: “
The CCMA
does not have the requisite jurisdiction to entertain this dispute,
by virtue of the absence of employer-and-employee relationship
between the parties.”
(3)
The third respondent (Mr Myeni) shall bear the costs of the review
application.’
Ndlovu
JA
Waglay
JP and Davis JA concurred in the judgment of Ndlovu JA
APPEARANCES:
FOR THE
APPELLANT: Mr P Pauw SC (with Mr BD Hitchings)
Instructed
by Martins Weir-Smith Inc
c/o
Livingston Leandy Inc, Durban
FOR
THE FIRST RESPONDENT: Mr M Mfungula
c/o
Noxaka Mfungula
Company, Durban
[1]
Act
66 of 1995.
[2]
Clause
4.1 of the constitution.
[3]
Clause
4.3.1 of the constitution.
[4]
Clause
4.3.2 of the constitution.
[5]
Clause
4.3.4 of the constitution.
[6]
Clause
4.3.5 of the constitution.
[7]
Clause
4.3.6 of the constitution.
[8]
Clause
4.3.7 of the constitution.
[9]
Clause
5.1.6 of the constitution.
[10]
Regulation
4.1.
[11]
Record,
vol 3 at 255 line – 257 line 5.
[12]
If
Mr Myeni received a stipend of R7 500 per month, it is not clear how
the amount of R64 996.96 is arrived at, computed for an
eight
months’ stipend. (R7 500 x 8 would make R60 000.00).
[13]
At
para 30.
[14]
SA
Broadcasting Corporation v McKenzie
(1999)
20 ILJ 585 (LAC) at para 5;
Kloof
Gold Mining Co Ltd v National Union of Mineworkers and Others
(1986) 7 ILJ 665 (T) at 674H-J;
Dempsey
v Home and Property
[1995] 3 BLLR 10
(LAC) at 17F-G.
[15]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
2008 (2) SA 24
(CC); (2007) 28 ILJ 2405 (CC) at para 110.
[16]
SA
Rugby Players Association and Others v SA Rugby (Pty) Ltd
(2008)
29 ILJ 2218 (LAC) at paras 40 and 41, citing with approval
Benicon
Earthworks & Mining Services (EDMS) BPK v Jacobs No and Others
(1994)
15 ILJ 801 (LAC) at 804 C-D.
[17]
(2001)
22 ILJ 2274 (LC); [2001] 11 BLLR 1213 (LC).
[18]
[
2004]
12 BLLR 1264
(LC) at paras 14-16.
[19]
Section
213 of the LRA.
[20]
The
insertion was introduced in terms of
section 51
of the
Labour
Relations Amendment Act 12 of 2002
which came into effect on 1
August 2002, in terms of Government Gazette 25515. The
CPSA
judgment
was handed down on 7 September 2001.
[21]
The
wording of
section 200A
of the LRA is identical to
section 83A
of
the
Basic Conditions of Employment Act 75 of 1997
which, however, is
not of relevance in the present matter.
[22]
The
amount determined by the Minister is currently R205 433.30 per
annum, in terms of Government Gazette No.37795 published
in
Government Notice No.531 dated 1 July 2014.
[23]
In
terms of
Government
Gazette No. 29445,
Part I
(regs
1
-
11
) published in Government Notice
No.1774 dated 1 December 2006.
[24]
Article
2 of the “Code of Good Practice: Who is an employee”.
[25]
The
CPSA
judgment
was handed down on 7 September 2001, whereas
section 200A
took
effect from 1 August 2002.
[26]
See
para 32 above.
[27]
Published
in (2000) 21 ILJ 2195.
[28]
The
Recommendation was issued by the General Body of the ILO at the 90
th
Session of its General Conference which was convened at Geneva on 31
May 2006. The Recommendation was published in the SA Government
Gazette No. 29445 dated 1 December 2006 by virtue of
Government
Printer’s Copyright Authority No. 10505 dated 2 February 1998.
[29]
Article
4(b) of the ILO Recommendation, 2006.
[30]
[2013]
UKSC 29
, 15 May 2013.
[31]
That
is, the Court of Appeals in
President
of the Methodist Conference v Preston
(formerly
Moore)
[2012] IRLR 229
CA.
[32]
Scottish
Union & National Insurance Co Ltd v Native Recruiting
Corporation Ltd
1934 AD 458
at 465.
[33]
Irvin
& Johnson (SA) Ltd. v Kaplan
1940 CPD 647
at 650.
[34]
Bourbon-Leftley
en Andere v Wpk (Landbou) Bpk
1999 (1) SA 902
(C);
Electronic
Building Elements v Huang
1992
(2) SA 384
(W) at 387E
[35]
Scottish
Union & National Insurance Co Ltd v Native Recruiting
Corporation Ltd
1934 AD 458
at 465.
[36]
Macdonald
Ltd v Radin NO and the Potchefstroom Dairies & Industries Co Ltd
1915
AD 454
at 487.
[37]
Robinson
v Randfontein Estates Gold Mining Co Ltd
1921 AD 168
at 189, 237;
Steyn
v LSA Motors
1994 (1) SA 49
(A) at 52I-53A;
KwaZulu-Natal
Joint Liaison Committee v MEC for Education, KwaZulu-Natal and
Others
2013 (4) SA 262
(CC) at 290C-D.
[38]
Record,
vol 3 at 220 line 24 -221 line1.
[39]
Record,
vol 222 lines 16-17.
[40]
Record,
vol 3 at 252 lines15-21.
[41]
Record,
vol 3 at 264 line 12.
[42]
Record,
vol 3 at 266 lines 15-17.
[43]
Arbitration
award, para 33.
[44]
Preston
,
above, at para 10.
[45]
Record,
vol 3 at 242 lines 13-21.
[46]
Section
213(b)
of the LRA.
[47]
CPSA
at
para 38.
[48]
Cooper
and Another NNO v Merchant Trade Finance Ltd
2000
(3) SA 1009
(SCA) at 1027 para.7;
Law
Society, Cape of Good Hope v Berrange
2005 (5) SA 160
(C) at 171
;
Macleod v Rens
1997 (3) SA 1039
(E);
Mohammed
& Associates v Buyeye
2005 (3) SA 122
(C) at 129D.
[49]
Section
15(1) of the Constitution of the Republic of South Africa Act 108 of
1996 (“the Constitution”)
[50]
Section
18 of the Constitution
[51]
2015
(1) SA 106 (SCA).
[52]
At
para 39.