IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT CAPE TOWN)
CASE NO: C619/2000
In the matter between:
THE CHURCH OF THE PROVINCE OF SOUTHERN
AFRICA DIOCESE OF CAPE TOWN Applicant
and
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION First Respondent
G GALANT, N.O. Second Respondent
L Z MATHEBULA Third Respondent
JUDGMENT
WAGLAY J :
[7] The Applicant, commonly known as the Anglican Church of Cape Town, was established
in 1876. It is regulated by its founding document, the Constitution and by the Canons
developed over the years.
[7] The Third Respondent is an ordained priest of the Applicant church and licenced to hold
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the priestly offices of the Canon Pastor of the St George’s Cathedral and Archdeacon of
the Waterfront.
[7] On 16 November 1999, and after being found guilty by Applicant’s ecclesiastical tribunal
on two charges of misconduct, the Third Respondent’s licences to minister the
aforementioned offices were revoked. The sanction imposed by the tribunal upon the
Third Respondent is that the Third respondent is not allowed to hold any office or perform
any ministry within the Applicant church for a period of at least five years. Although the
sanction imposed does not revoke the Third Respondent’s ordination as a priest, he will
not receive any financial benefit which he would have received had his licence not been
revoked.
[7] After the sanction was imposed upon the Third Respondent, he immediately approached
the First Respondent the Commission for Conciliation, Mediation & Arbitration (CCMA)
requesting that it conciliate his dispute with the Applicant which he alleged was that of a
dismissal. According to the Third Respondent, the sanction imposed by the Applicant
amounted to a dismissal and that such dismissal was unfair as provided for in the Labour
Relations Act, no 66 of 1995 (“ the LRA ”). The Applicant denied that the First Respondent
had jurisdiction to entertain the dispute this it did by raising a point in limine .
[7] The point in limine was based on two grounds:
(i) that the Third Respondent was not an employee of the Applicant; and
(ii) that should the First Respondent assume jurisdiction over a decision made by the
Applicant, it would constitute unjustifiable infringement of the Applicant’s rights to freedom
of religion and association, as set out in the Constitution of the Republic of South Africa,
Act 108 of 1996 (“ SA Constitution ”).
[7] The Commissioner the Second Respondent herein after hearing the evidence and
arguments presented by the parties, dismissed the Applicant’s point in limine . The
Applicant now seeks to review and set aside the determination of the Second Respondent.
[7] The evidence that was led before the Second Respondent both orally and by way of
documents and the arguments presented can be summarised as follows:
(10) The Constitution and the Canons constitute the legal framework within which the Applicant
operates. While the Constitution sets out the principles that underlie the functions of the
church and the manner in which it is structured by, for example, providing for , the
establishment of Dioceses and Synods and the powers and duties of such bodies the
Canons give substance to the principles contained in the Constitution. The Canons relate
not only to the appointment and tenure of the clergy, the election of bishops but various
other matters such as matrimony and pastoral discipline. The Canons also deal with the
disciplinary proceedings of priests and bishops. The rules and regulations that constitute
the Canons are applicable not only to the clergy within the Applicant church but also to
Applicant’s parish councils, church wardens, chapel wardens and the general public who
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are members of the Applicant.
(10) The Anglican Church is divided into various diocese and, while each is independent and
autonomous, they are all bound by the same constitution. The Canons may, however,
differ from diocese to diocese depending on the peculiarities of the area in which they are
based . Whatever the difference, if indeed any, all the Canons must be in line with the
Constitution and therefore principally the Canons are similar, if not the same, at every
diocese.
(10) The Applicant is part of the Southern African Anglican Church which not only has close
links to the Church of England but with Anglican churches worldwide, and together form
part of the Anglican Communion subscribing to the same basic principles of faith as set out
in Scripture and Book of Common Prayer and of ordering of Bishops, Priests and
Deacons. The applicant is organized and operates almost identically to the church of
England and with regard to the relationship between the church and the clergy , there is no
difference .
(10) The Applicant like its equivalent elsewhere has three levels of clergy: bishops, priests
and deacons. The position of Canon Pastor is that of a priest. Matters relating to the
appointment, removal and coordination of the clergy are a Diocesan responsibility which
is carried out by the Bishop (or Archbishop as in the present matter) of that Diocese.
(10) In order for a person to become a priest within the Anglican Church generally, the person
must demonstrate a clear vocation. This does not mean a wish or desire to be a priest, but
a calling from God to the priestly office. The Church does not allow a person to proceed
towards priesthood until the truth of his calling is tested and confirmed by the Church.
Once the calling is confirmed, the Church provides the necessary training at the end of
which the candidate is ordained first as a deacon and later as a priest.
(10) At the time the candidate is ordained as a priest (which is done at a service of ordination)
he or she is required to publicly and in the affirmative answer certain standard questions
which, inter alia , confirm that he or she was “ called by God and His Church to the life and
work of a priest ” and that he or she accepts “ the discipline of this Church and [will]
reverently obey [his or her] Bishop and other ministers set over [him or her] in the Lord .”
(10) Once ordained as a priest, a priest is not able to carry out any specific ministry: to be able
to do so he or she must be licenced by the Bishop of the diocese in which he or she is
asked to carry out an active ministry. The licencing is a ritualistic process done either at
the Eucharist or at the Morning or Evening Prayer service. The process by which licence
is issued is as follows:
(2) the priest makes the Declaration required by Canon 16.2 and signs the Form of Oath and
Declaration; and finally
(2) the Bishop reads the Licence and delivers it to the priest ending with the following words
which are said to the priest: “ I commit to you the cure, the care of souls, which is both
yours and mine. ”
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The whole process and the documents read and signed are standard in the Anglican
Communion worldwide.
(10) The oath of “ Canonical Obedience ” is an oath of obedience to the priest’s ecclesiastical
superior to the extent that the superior acts in accordance with the Canons. The Bishop,
therefore, cannot expect obedience from the priest outside the framework of the Canons.
(10) Once licenced, his duties and obligations are defined and described in the Applicant’s
Constitution and Canons. While the Bishop generally exercises supervision and control
over the priest, this appears to be done through motivation, guidance and encouragement
rather than command and control. The system according to both the Applicant and the
Third Respondent operates largely on trust.
(10) The installation of a priest into a ministry carries with it certain financial benefits, in the
Applicant’s case the benefits given consist of:
a)a stipend, being a monthly subsistence allowance (this is sourced from the incumbent’s
parish but paid over by the Diocesan Office and the amount of the stipend is reviewed
annually);
b)a thirteenth stipend;
c)a housing allowance for priests attached to a parish;
d)a travelling allowance;
e)an Archdeacon’s allowances;
f)telephone and electricity charges;
g)annual and special leave;
h)removal allowances;
i)membership of the Sick and Aged Fund;
j)membership of the Provincial Pension Fund.
The Third Respondent received all of the benefits and tax was deducted , as would be
had the benefits constituted salary.
(xi) According to the Applicant, the benefits recorded above, including the stipend, are
regarded by it as its contribution to enable its licenced priest to carry out his or her
calling to the priestly office and is not a reward for services rendered.
(xii) The Constitution and the Canons set out the circumstances in and the procedure by
which, a priest’s licence may be revoked. One of the ways in which this may happen,
as happened to the Third Respondent, is that a licence may be revoked where a
member of the clergy is charged with a disciplinary offence , brought before an
ecclesiastical tribunal and found guilty after being heard.
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(xiii) It was Applicant’s evidence that a priest is not regarded as the servant of the Church:
while the Church provides the framework for the priest’s work (through the
Constitution and Canons), the priest is regarded as working for God, ie. the
relationship between the priest and the Church cannot be regarded as one of
employment. The Applicant simply, according to it, provided the sphere within which
priests serve God arising out of their calling. It is for that reason, so Applicant argued,
that priests are said to be called of God and serving God and offering their lives to
God - this precludes the Anglican Church generally , and the Applicant in particular ,
from speaking of employing priests.
(xiv) Applicant then argued that, while there is a mutual commitment to the relationship
between the priest and the Church, this is not a bilateral and enforceable civil
contract; it is a commitment by the priest to serve God through the ministry and
office of a priest, and a commitment by the Applicant to support the priest in that
ministry. Further that the material benefits attached to the office of the priest was
not remuneration but the provision by the Applicant of means to support the priest in
order for him to carry out his calling. The amount of stipend that is paid to a member
of the clergy is the same irrespective of ability, capability or experience and, in any
event, the clergy has no entitlement thereto.
(xv) Applicant, in its evidence, added that it did have in its employ administrative staff
who were properly regarded as employees and that it did participate in the secular
world and entered into civilly binding agreements, but remained adamant that its
agreement with the clergy was not a civilly enforceable one but one that was
regulated by ecclesiastical or Canon law, that the licencing process was nothing other
regulated by ecclesiastical or Canon law, that the licencing process was nothing other
than giving Deitary authority for a priest to hold office and not one which evinces any
employment contract or any other secular relationship.
(xvi) While not challenging most of the evidence led by the Applicant, the Third
Respondent’s evidence was that the licence to hold office constituted the
employment contract as it was the culmination of negotiations that preceded its
grant. According to the Third respondent, he was invited to join the Applicant’s staff,
informed about the financial benefits attached to the position offered, he accepted
the position and, once he was licenced, that concluded an agreement between
Applicant and him . What was agreed was nothing other than a contract of
employment.
(xvii) Third Respondent further argued that the stipend was in fact a salary, that he was
entitled to it and that his entitlement was supported by biblical text. In his evidence,
Third Respondent conceded that there was a fundamental difference between the
relationship of a priest with a church and a secular relationship because, according to
him, there was no entitlement between the parties in the former case .
(xviii) In essence, Third Respondent’s evidence and argument was to the effect that, having
regard to the process that preceded the licencing (the correspondence containing an
offer to join Applicant’s staff and the benefits that were attached to the post offered)
the licencing itself , the factual position that he is required to fulfil certain obligations
in return for which he receives certain benefits, and that he is answerable to a
superior, demonstrates that his position vis-a-vis the Church is that of employee and
employer.
[9] Based on all of the above, the Second Respondent concluded that the Third Respondent
was in fact an employee and the Applicant his employer as defined by the LRA. In
arriving at his decision, the Second Respondent examined the common law position
9
as well as the statutory definition of an employee and applied the test which is now
commonly referred to as the “ dominant impression test ” (see Smit v Workmen’s
Compensation Commissioner 1979 (1) SA 51 (A) ). The Second Respondent
specifically took into account that the Third Respondent:
(a) was paid a regular amount every month, which amount was subject to income tax and
other deductions for staff benefits;
(b) was eligible for participation in the car loan / travel allowance scheme;
(c) was bound to minister within the confines of the Applicant and in a manner determined
by the Applicant, as set out in the Canons and the Constitution of the Applicant;
(d) was subject to the authority of the Bishop, through an oath of obedience, without which
he could not hold office; and
(e) was bound by Church practises and was expected to perform his duties personally and
to make his time available to the Applicant.
[10] The Second Respondent also found that Applicant has the capacity to contract, has a
large workforce at least of administrative staff and has broad powers to affect the
working life of its staff . He concluded that a contract of employment came into
existence when the Third Respondent was licenced to perform the functions of a
priest.
[11] The grounds upon which the Applicant seeks to review or set aside the award are the
following:
a)that the Second Respondent committed a gross irregularity in that he failed to enquire into
or determine whether or not there was a contract between the Applicant and the
Third Respondent;
b)that had he determined the issue of the existence of a contract between the Applicant
and the Third Respondent and found that there was a contract, the contract was not
one of employment as the key characteristics for the relationship to be one of
employment were absent - the Second Respondent’s decision was therefor neither
justifiable nor rational in relation to the evidence that was properly before him; and
c)that it would be a violation of the rights granted to the Applicant in terms of the S A
Constitution relating to the freedom of religion and association if the First
Respondent were allowed to determine the alleged dispute .
[12] Applicant is quite correct when it states that the Second Respondent failed to
determine whether or not there was any valid and binding contract between it and
the Third Respondent. This was a crucial issue. Applicant’s primary objection to the
First Respondent’s jurisdiction was based upon this contention . The Second
Respondent nonetheless proceeded to determine the matter on the basis that there
was a contract between the parties. In doing so, I am satisfied he committed a
reviewable irregularity. This is so because once a party denies the existence of an
enforceable agreement, it is necessary to determine whether or not an enforceable
agreement exists before determining what the nature of the agreement is . In this
matter, by having regard to the duties and obligations of the parties, the second
Respondent determined the nature of the agreement without taking into account
whether or not the parties had entered into an enforceable employment relationship.
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[13] According to the Applicant, what existed between the Third Respondent and it, was
not a civilly enforceable contract but an ecclesiastical or spiritual agreement, an
agreement that was regulated by its Constitution and Canons and not by secular law.
This argument is based on the following:
(a)no person can enter the priesthood within Applicant’s communion without being called by
God, which calling is tested by the Church;
(b)that ordination to priesthood does not guarantee office, yet an oath of obeisance is
required before ordination;
(c)the licencing process was ritualistic and merely confirmed, yet again, the oath taken
when admitted to priesthood and entrusted the priest with the “ cure of souls ” in
respect of the licensed area;
(d)the rights, duties and obligations as contained in the Constitution and Canons, while
regulatory, did not create rights outside its confines;
(e)that since the function of the priest is to spread the word of God, the priest is therefore
not a “servant” of the Church but a servant of God.
ie. As a priest is one who takes up the position because he is “ called” upon to do so
by God and is a person who serves and offers his life to God, it cannot be said that he
is an employee of the Church - the Church does not employ priests but merely
facilitates their calling by providing the framework within which a priest can serve
God. The only regulatory framework that governs their relationship, therefore, is the
Constitution and the Canons.
[14] The unchallenged evidence led by the Applicant was that the Applicant, as a member
of the Anglican Communion, shares fundamental characteristics with the Church of
England - in particular the way the clergy relate to the Church, and contended that it,
like the Anglican Churches worldwide, do not enter into any contract of employment
with its clergy. This contention is supported in a number of decided cases.
[15] In the most recent case that has been reported - Diocese of Southwalk v Coker [1998]
ICR 140 (CA), a decision of the Court of Appeal in England - Coker, a clergyman with
the Church of England who received a monthly stipend and benefits similar to those
received by the Third Respondent , alleged that he was dismissed and challenged the
fairness of his dismissal. The Church contended that Coker was not an employee for
the purpose of the Employment Protection (Consolidation) Act of 1978 because there
was no contract between Coker and the Church.
[16] Coker’s dispute was first considered by the Industrial Tribunal in England who decided
that he was indeed an employee and the Church his employer. The Church appealed
this decision to the Employment Appeal Tribunal. The Appeal Tribunal reversed the
finding and found that Coker was not employed under a contract of service but was a
holder of an ecclesiastical office and, as such, his rights were confined not by contract
but by ecclesiastical law. Coker then appealed to the Court of Appeal. The Court of
Appeal concluded that he could not be held to have entered into a contract with the
Church at all and it was therefore unnecessary to decide whether he was party to an
employment contract or some other type of contract.
[17] In reaching this conclusion, the Court of Appeal stated as follows (at 146F - 147H per
Mummery LJ):
“In President of Methodist Conference v Parfitt [1984] ICR 176, 183, Dillon LJ
13
said:
‘[T]he courts have repeatedly recognized what is and what is not a contract of service
and I have no hesitation in concluding that the relationship between a church and a
minister is not apt, in the absence of clear indications of a contrary intention in the
document, to be regulated by a contract of service.’
...
Although not explicitly analysed in these terms in the authorities, the simple reason,
in my view, for the absence of a contract between the church and a minister of
religion is the lack of intention to create a contractual relationship ...
In my judgment, the legal position is as follows:
(1) Not every agreement constitutes a binding contract. Offer, acceptance and
consideration must be accompanied by an intention to create a contractual
relationship giving rise to legally enforceable obligations.
(2) That intention is to be objectively ascertained. In the case of an ordinary
commercial transaction, it will be for the person who contends that there was no
contract to establish that the intention to create a binding contract has been
negatived.
(3) In some cases, however, there is no contract, unless it is positively established by
the person contending for the contract that there was such an intention to create a
binding contractual relationship. This is such a case ...
The critical point in this case is that an assistant curate is an ordained priest. The
legal effect of the ordination of a person admitted to the order of priesthood is that he
is called to an office, recognized by law and charged with functions designed by law
in the ordinal, as set out in the Book of Common Prayer. The ordinal governs the
form and manner for ordaining priests according to the order of the Church of
England. Those functions are also contained in the canons of the Church of England
and are discharged by a priest as assistant curate. It is unnecessary for him to enter
into a contract for the creation, definition, execution or enforcement of those
functions. Those functions embrace spiritual, liturgical and doctrinal matters, as well
as matters of ritual and ceremony, which make what might otherwise be regarded as
an employment relationship in the secular and civil courts more appropriate for the
special jurisdiction of ecclesiastical courts.
The legal implications of the appointment of an assistant curate must be considered
in the context of that historical and special pre-existing legal framework of a church,
of an ecclesiastical hierarchy established by law, of spiritual duties defined by public
law rather than by private contract and of ecclesiastical courts with jurisdiction over
the discipline of clergy. In that context, the law requires clear evidence of an
intention to create a contractual relationship in addition to the pre-existing legal
framework.”
[18] Mummery LJ went on to say that he saw no reason why an ordained priest, licensed
by his bishop to assist the incumbent in his cure of souls, is under contract with the
bishop, by whom he is licensed, or with the incumbent he is assisting, or with anyone
else, in the absence of a clear intention to create a contract. He agreed with the
following dictum from In re National Insurance Act 1911: In re Employment of Church
of England Curates [1912] 2 Ch 563:
“[the position of an assistant curate is] not the position of a person whose rights are
15
defined by contract at all. It appears to me that there can be no pretence in reality for
arguing that the relationship between him and his vicar, or between him and his
bishop, or between him and any one else, is the relation of employer and servant.”
[19] Staughton LJ, in concurring majority judgment, stated the following (at 150E - 151B):
“One can say that a minister of religion serves God and serves his congregation, but
does not serve an employer. That seems to me to be accurate in general terms ...
I agree with the analysis of Mummery LJ and his conclusion that in general the duties
of a minister of religion are inconsistent with an intention to create contractual
relations. There may be some subsidiary contract as to a pension, or the occupation
of a house; but there is not a contract that he will serve a terrestrial employer in the
performance of his duties.
...
If a curate or his bishop, or incumbent, intend to create legal relations, then there will
be a contract between them ... But if, as I would hold in the ordinary way, no intention
to create legal relations is to be inferred, there is no contract of employment between
them ...”
[20] As appears from the dictum quoted above from In re National Insurance Act 1911: In
re Employment of Church of England Curtes ( supra), in the early part of the 20 th
Century the English Courts had already held that the authority of an ecclesiastical
superior over an office-holder in the Church is exercised by virtue of ecclesiastical
jurisdiction, and does not depend on an employment contract. The question therefore
was not what kind of employment contract it was (independent contractor or
employer/employee), but whether it was an employment contract at all.
[21] A similar approach was adopted by the House of Lords in Davies v Presbyterian
Church of Wales [1986] 1 All ER 705 (HL). In this case, the ministry of a minister of
the Presbyterian church had been terminated. He claimed reinstatement. Lord
Templeman found that he was not entitled to such relief on the basis that he was not
a party to a contract of employment. He set forth his reasons thus (at 709g-j):
“My Lords, it is possible for a man to be employed as a servant or as an independent
contractor to carry out duties which are exclusively spiritual. But in the present case
the pastor of a Church cannot point to any contract between himself and the Church.
The book of rules does not contain terms of employment capable of being offered and
accepted in the course of a religious ceremony. The duties owed by the pastor to the
Church are not contractual or enforceable. A pastor is called and accepts the call. He
does not devote his working life but his whole life to the Church and his religion. His
duties are defined and his activities are dictated not by contract but by conscience.
He is the servant of God. If his manner of serving God is not acceptable to the
Church, then his pastorate can be brought to an end by the Church in accordance
with the rules. The Law will ensure that a pastor is not deprived of his salaried
pastorate save in accordance with the provisions of the book of rules but an industrial
tribunal cannot determine whether a reasonable church would sever the link between
minister and congregation.”
[22] In Knowles v The Anglican Church Property Trust, Diocese of Bathurst, (1999) 89 IR 47
the Industrial Relations Commission of New South Wales,Australia, followed the
English line of decisions in finding that the relationship between a priest and the
Anglican Church was a religious one, based on a consensual compact to which the
parties were bound by their shared faith, and not based on any common law contract.
17
This was followed by the Supreme Court of South Australia in Greek Orthodox
Community of SA Inc v Ermogenous , SCGRC 99 - 653 (2000) SASC 329 where the
majority of the Court held the English and other Commonwealth case law to be
persuasive, and that the intention of the parties to enter into contractual relations
was the decisive factor. This factor, due to the spiritual nature of the relationship
between a priest and his Church, could not be presumed and was ultimately found to
be lacking. The Court held that:
“the spiritual character of the relationship, the fact that it is ecclesiastical authority
which may be exercised over the person, the nature of the duties of a priest or a
minister, the commitment and decision to the service of God, the fact that the
position may also be regarded as an office and the fact that there is a submission to a
set of pre-determined rules and conditions or orders and to a set of ecclesiastical
discipline will generally militate against a finding that the necessary intention [to
enter] into contractual relations has been formed.”
[23] The New Zealand Court of Appeal followed roughly the same route in its 1998
decision in Mabon v Conference of the Methodist Church of New Zealand , [1998] 3
NZLR 513 which held that no employment relationship existed because the priest had
failed to prove that an intention to create a legal relationship existed.
[24] The common thread that runs through all of these decisions is that, in a church and
clergy relationship, the crucial question is whether, at the time the parties concluded
the offer and acceptance, they intended to create a legally binding contractual
relationship, ie. the mere fact of an offer and acceptance did not equate to a binding
contractual relationship : the offer and acceptance had to be accompanied by the
intention to create the contract.
[25] This Court had to decide a similar point in limine as raised by the Applicant before the
Second Respondent, in the matter of Noel Schreuder v Nederlandse Gereformeede
Kerk (unreported case number J273/97, 5 March 1999). In that matter the Court held,
on the facts, that a ‘predikant’ in die ‘Nederlandse Gereformeede Kerk’ was an
employee because he had been required, at the commencement of his appointment,
to sign a letter of appointment setting out his duties and providing for his receipt of a
salary . The Court there held as follows:
“Die beroepsbrief bepaal dan verder wat die predikant in ruil vir die vervulling van
hierdie pligte ontvang. .... Daar is gevolglik volgens Dr Scholtz ‘n plig op die predikant
om sy ampspligte soos uiteengesit te vervul. Die predikant verkry aan die anderkant
in ruil hiervoor weer ‘n salaris en verlof- en pensioenvoordele asook lidmaatskap van
‘n mediese fonds en assuransiedekking. Die beroepsbrief is dus die dienskontrak
tussen die predikant en die gemeente (kerkraad).
...
In lig van hierdie getuienis is ek oortuid dat die bedoeling van die beroepsbrief is om
kontraktuele verpligtinge in die vorm van ‘n dienskontrak te skep tussen die
predikant en sy of haar gemeente.”
[26] Also in Mankatshu v Old Apostolic Church of Africa and Others , 1994 (2) SA 458 (Tk
AD), the Court considered the nature of the relationship between the church and its
priests who had been excommunicated and held that their relationship was regulated
by the Church’s Constitution and that there were no provisions in that constitution for
a contract of employment between them and that the constitution itself did not
constitute a contract.
19
[27] In our law the principles that are applicable to contracts generally are also applicable
to contracts of employment. Grogan, in his book “Workplace Law” (6th Edition at page
26) sets out the requirements for a valid contract to come into being as follows:
“(a) There must at the time of contracting have been consensus between the parties in
the sense that they had the serious intention to create mutual rights and duties to
which they would be legally bound, and they must have each been aware of such
intention.
(b) Each party must have the capacity to act in the sense that he or she is legally
capable of performing the act which gives rise to the formation of the contract.
(c) The rights and duties assumed must be possible to perform.
(d) The rights created and duties assumed must be permitted by law.
(e) If formalities are prescribed for the formation of the contract, they must be
observed.”
[28] A contract must of course be entered into freely and voluntarily with both parties
being fully aware of the duties to which they have agreed. The only restriction is that
a contract must not be one which is forbidden by statute or is contra bona mores. A
contract may be written or oral, express or tacit. In the case of an employment
contract Grogan ( op cit ) quite correctly states that what is required between the
parties is a voluntary agreement with one party agreeing to perform certain specified
and/or implied duties for the other for an indefinite period, and to be commanded to
carry out such duty in a particular way for a fixed or ascertainable wage (page 27).
There are no formalities that are required to be complied with for the formation of an
employment contract.
[29] An important issue however is whether a contract of employment is a pre-requisite for
the creation of an employment relationship. The foreign cases quoted above dealt
with statutes which defined an employee as “an individual who has entered or works
under ... a contract of employment” , or such similar words. The LRA however defines
an employee in s 213 as
“(a) any person, excluding an independent contractor, who works for another person 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 the employer.
While it is generally accepted that the first leg of the definition of employee refers to
the common law contract of service ( locatio condictio operarum ), the second leg of
the definition has proved to be somewhat contentious with arguments being made
that the definition does away with the need for a valid agreement between the parties
to create an employment relationship. Du Toit et al , in their book “ The Labour
Relations Act of 1995", state that the purpose of the second leg of the definition is:
“... to make clear that in certain circumstances a person may be employed by
another within the meaning of the Act even in the absence of an employment
contract between them.( Page 70)
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[30] I cannot accept that the definition of employee seeks to enforce employment
contracts where this was not intended by the parties. In interpreting provisions
similar to the definition as presently exist in the LRA the old Labour Appeal Court in
the matter of Liberty Life Association of Africa Ltd v Niselow (1996) 17 ILJ 660 (LAC)
recognised the need to restrict the apparent scope of the wording to avoid absurd
consequence (see Du Toit ( op cit )). However, while I accept that the protective
objective of the Act requires a generous interpretation with regard to the meaning of
“employee”, it cannot be interpreted to mean that an employment relationship should
be forced upon parties who did not intend creating one.
[31] In the Explanatory Memorandum to the Draft Bill (Government Gazette, 10 February
1995, No. 16259, page 118) it was stated that the definition as it now exists in the
LRA was chosen “to include the various forms of atypical employment ...” - this is
understandable - the modern work arrangement where employees are often left to
their own devices to carry out their duties necessitates a great degree of flexibility.
Hence, while the definition of an employee in the LRA is designed to give the CCMA
and this Court a degree of flexibility to determine the existence of an employment
relationship, it does not give either the CCMA or this Court the right to create such a
relationship simply by considering the duties and obligations of the parties to each
other.
[32] The duties and obligations together with the other factual issues that are applicable
between parties inter se can only help to determine the nature of the contract once it
has been established that there is a legally binding agreement between them. In this
matter, the Third Respondent argued that what is decisive in determining whether or
not a legally binding contract of employment exists is to look at the duties and
not a legally binding contract of employment exists is to look at the duties and
obligations that one has to the other in a holistic manner. This sounds appealing. It
is patently easier to gather whether or not there is an employer and employee
relationship by reference to the duties and obligations, but to do so would be to go
against the very basic principle that governs our law of contract, and that is that the
parties must have intended to enter into a legally enforceable contract, because the
enforceability of the duties and obligations is dependant upon it. Our law recognises
that not all agreements constitute legally enforceable contracts. In Electronic
Building Elements v Huang, 1992 (2) SA 384 (W) at 387 E, the Court held:
“If the parties choose to exclude from legal enforceability any arrangements arrived
at between them, then it can become no more than a moral obligation or an
obligation of honour, but unenforceable in a court of law.”
[33] The evidence of the Third Respondent at the hearing before the Second Respondent,
was that there was a fundamental difference between the relationship of a priest with
a church as opposed to a secular relationship, because there was no entitlement
between the parties, yet he maintains that once he was issued with a licence a
binding legal contract of employment was concluded between him and the church.
This argument is difficult to comprehend. If he concedes (as he has) that he could
not force Applicant to remit the stipend to him in a court of law or the Applicant
enforce his performance through a secular court, how then could there be a binding
employment contract between them enforceable in the secular and civil court. Third
Respondent refers to the correspondence that was forwarded to him by one of
Applicant’s priests, offering him the post with the Applicant. This offer also indicated
what benefits he would receive if he accepted the position. According to him, the fact
of his being licenced was a demonstration of the acceptance of the offer, and thus
the coming into being of a valid and enforceable legal contract. While I accept that
the coming into being of a valid and enforceable legal contract. While I accept that
there was an offer and acceptance, I do not accept that an offer and acceptance such
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as evinced here gave rise to a binding contract of employment. In this respect I
agree with the dictum set out by Mummery LJ in Coker (supra), where he held that an
offer, acceptance and consideration are not sufficient to create a contractual
relationship giving rise to a legally enforceable obligation - offer, acceptance and
consideration must be accompanied by an intention to create a contractible
relationship giving rise to enforceable obligation. This dictum is in line with the basic
principle of contract applicable in our law.
[34] The undisputed evidence led by the Applicant’s witness was that there never was an
intention on the part of the Applicant to create a legally binding employment
contract. The Third Respondent’s submission that his intention was indeed so was
contradicted by his very evidence that the relationship as a licencee with the
Applicant was governed by ecclesiastical law.
[35] In the circumstances, while it is so that the duties and obligations of one to the other
could be interpreted as constituting an employment contract , the duties and
obligations, like the offer, acceptance and consideration cannot create an
employment contract where the parties themselves had not intended one to come
into existence.
[36] The licencing ritual on which Third Respondent relies as proof of the intention to
create a legally enforceable employment contract does not provide any support for
Third Respondent’s contention. The very basis of the licencing process is religious:
the oath, declaration and “parting” words remove it from the realm of creating civil
obligation. The oath of obedience taken by the Third Respondent is no different to
the oath he took when admitted to priesthood without being given any ministry or
benefits. Committing him to “ cure the carer of souls ” can hardly be seen as a
welcome to an employment relationship.
[37] The licencing process is no more than a formal entry of a priest to the ministry , to put
his calling - which comes from God - into action . While it may be difficult to
comprehend a “calling from God” , the Applicant and the Third Respondent agree that
the very basis upon which upon their relationship exists is that “calling” . This being
so ,the church must be seen as providing the space for those called upon by God to
give effect to that Calling . The fact that in providing that space it may be providing
all the features of an employment relationship cannot make that relationship an
employment one .
[38] Furthermore in the matter of GG Paxton v The Church of the Province of Southern
Africa , Diocese of Port Elizabeth (unreported case no.NH 11/2/1985 (PE) ) the
Industrial Court faced with an identical point in limine and dealing with another
Diocese of the Applicant church , examined the relevant provisions of the constitution
of the church and the canons and concluded as follows :
“The picture which emerges both from a study of the relevant provisions of the
constitution and canons , the acts, and ,the actual features of the relationship
between the parties , is not one of employment. Rather , it is a picture of a spiritual
relationship , commencing in formal terms with the applicant taking an oath of
canonical obedience to the Bishop , being invested with the spiritual office of a
priest , being licenced to officiate as a priest and authorized to administer the
sacraments and perform various other ministrations and duties in accordance with
the canons of the church. Certainly the applicant was subject to the authority and
discipline of the respondent , but such authority and discipline are derived not from
any employment relationship between the parties , but from the ecclesiastical
any employment relationship between the parties , but from the ecclesiastical
authority of the Respondent , as exercised by its institutions and office-bearers in
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positions of ecclesiastical superiority in relation to the Applicant”.
[39] I agree with the above conclusion and I am satisfied that there was in fact no
intention on the part of either the Applicant or the Third Respondent to enter into a
legally enforceable employment contract. The failure by the Second Respondent to
consider this issue as I have stated earlier, constituted a reviewable irregularity
because it goes to the very root of whether or not the First Respondent has
jurisdiction to entertain the dispute.
[38] Since I have found that a contract of employment is necessary for purposes of
establishing an employment relationship and that there was no legally enforceable
contract of employment between the Applicant and the Third Respondent, the parties
are not an employer and employee as defined by the LRA and consequently the First
Respondent has no jurisdiction to entertain the alleged dispute referred to it by the
Third Respondent.
[39] By reason of my decision above, I see no need to deal with the other issues raised by
Applicant, I may however add that had I not found that there was no contract of
employment between the parties, I would not have interfered with the determination
as made by the Second Respondent.
[40] Finally, with regard to costs, I am satisfied that this is not a matter in which an order
of costs against the Third Respondent would be equitable .
[41] In the result, I make the following order:
The determination issued by the Second Respondent under the auspices of the First
Respondent is hereby set aside and substituted with the following:
“The point in limine is upheld - the CCMA does not have jurisdiction to entertain the
alleged dispute referred by the employee party against the employer party.”
WAGLAY J
For the Applicant: JJ Gauntlett SC assisted by MW Janisch instructed by Cliffe Dekker Fuller Moore Inc
For the Respondent: PP de Klerk instructed by De Klerks Attorneys
Date of judgment: 7 September 2001
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