IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
Case No.: J 464/02
In the matter between
THE SALVATION ARMY
(SOUTH AFRICAN TERRITORY) Applicant
and
THE MINISTER OF LABOUR Respondent
JUDGMENT
MAYA AJ:
[1] The applicant is a worldwide church organisation operating also
in South Africa. It is regulated by covenants, orders and regulations, a
constitution and an enactment of the Parliament of the United
Kingdom, The Salvation Army Act of 1980. It describes itself in
terms of this Act, as a “ body corporate not for gain with perpetual
succession with the power to acquire rights and incur obligations, to
acquire, hold and dispose of property, to enter into contracts and to
sue and be sued in its own name, independently of its members, who
are not liable for its debts, and have no rights to its assets ”. Its
primary objective is to advance the Christian religion and, in
pursuance thereof, to carry out acts of charity and humanitarian relief,
to aid suffering humanity. Its leadership is carried out by its clergy,
called Officers who are ordained and commissioned ministers of
religion. It also engages a number of employees, a majority of whom
are unionised under various trade unions in the country, who do not
necessarily have religious ties to it, but perform specific duties in the
conduct of its affairs in terms of the contracts of employment it
concludes with them.
[2] It seeks a declaratory order that its officers are not employees as
defined in the Labour Relations Act, 66 of 1995 (“the LRA”, the
Basic Conditions of Employment Act,75 of 1997 (“the BCEA”), the
Employment Equity Act, 5 of 1998 (“the EEA”), the
Unemployment Insurance Act, 30 of 1966 (“the UIA”), the Skills
Development Levies Act, 9 of 1999 (“the SDLA”), the Skills
Development Act (“the SDA”), 97 of 1998 and the
Compensation for Occupational Injuries and Diseases Act ,
103 of 1993 (“the COIDA”); and that the provisions of these
statutes are not applicable to the said officers.
[3] The respondent, the Minister of Labour, who is cited in his
capacity as the official in charge of the Department vested with the
administration of this legislation, did not oppose the application
on condition that the relief sought with reference to the SDLA be
withdrawn. The applicant accordingly withdrew the relevant
prayer.
[4] The basis of the application is that the applicant does not treat
its officers as employees. Officers join the Salvation Army as cadets
on a voluntary basis, in response to a call of God to spiritual ministry.
They are trained for several years. Upon ordainment they sign an
undertaking which explicitly excludes an employee/employer
relationship, providing as follows:
“I give myself in response to the call of God and on my own
free will to the ministry of the Salvation Army, and in
doing so I acknowledge that as an officer I regard the fundamental
nature of my relationship to the Army as spiritual…. I
understand that there is neither a contract of service or
employment nor a legal relationship between me and the Army,
and accordingly I shall have no legal claims upon the Army or the
Army upon me. I understand and agree that, although I may
expect to receive allowances according to an official scale, no
allowance is guaranteed to me. I accept that any such
allowance is not a wage, salary, reward or payment for
services rendered. ”
[5] The applicant does not therefore implement and comply with
the above labour legislation on behalf of the Officers. For example, it
does not make unemployment insurance payment, did not file an
employment equity plan, does not make payments to the
Compensation Commissioner and does not pay skills levies on their
behalf. It is thus concerned that should its interpretation of the word
“employee” be wrong, severe consequences will follow in the
form of deductions and payment of interest and penalties for failure to
comply with the relevant law. Reference was made to a notice issued
against the applicant by the Compensation Commissioner warning it
for failure to report an accident and injuries allegedly sustained by
an alleged “employee”. Further reference was made to an unreported
case decided by the CCMA, Morris Ndarha and Another v The
Salvation Army , Case No.: KN 64726 where two Officers
referred a dispute which was decided in the applicants’ favour on an
objection in limine raised by the latter, that the parties had not
concluded an employment contract and that the Officers were not
employees of the applicant.
[6] Section 158 of the LRA sets out the powers vested in the
Labour Court. Section 158(1)(a)(iv) thereof empowers the court to
make a declaratory order. It is now established that this power
is similar to that conferred upon the High Court to make such an order
in terms of section (19)(1)(a)(iii) of the Supreme Court Act, 59 of
1959 and that the approach adopted by the High Court in
making such orders should be applied by the Labour Court. See:
NUMSA v CCMA & Others [2000] 11 BLLR (LC ) at
1331J1332A.
[7] Section 19(1)(a)(iii) of the Supreme Court Act reads:
“A provincial or local division …shall … in addition to any powers or
jurisdiction which may be vested in it by law, have power in its discretion,
and at the instance of any interested person, to enquire into and determine
any existing, future or contingent right or obligation, notwithstanding that
such person cannot claim any relief consequential upon the
determination.”
[8] The test which a court faced with an application for a
declaration of rights is set out in decided cases such as that of Shoba v
Officer Commanding, Temporary Police Camp, Wagendrift
Dam 1995 (4) SA 1 (AD) where Corbett CJ said at 14FI:
“Generally speaking, the Courts will not, in terms of s 19(1)(a)(iii), deal with
or pronounce upon abstract or academic points of law. An existing or
concrete dispute between persons is not a prerequisite for the exercise by the
Court of its jurisdiction under this subsection, though the absence of such a
dispute may, depending on the circumstances, cause the Court to refuse to
exercise its jurisdiction in a particular case (see Ex parte Nell 1963 (1) SA 754
(A) at 759H760B). But because it is not the function of the Court to act as an
adviser, it is a requirement of the exercise of jurisdiction under this
subsection that there should be interested parties upon whom the declaratory
order would be binding (Nell’s case, at 760BC). In Nell’s case, supra at
759AB, Steyn CJ referred with approval to the following statement by
Watermeyer JA in Durban City Council v Association of Building Societies
1942 AD 27, at 32, with reference to the identically worded s 102 of the
General Law Amendment Act 46 of 1935: ‘The question whether or not an
order should be made under this section has to be examined in two stages.
First the Court must be satisfied that the applicant is a person interested in
an “existing, future or contingent right or obligation”, and then, if satisfied
on that point, the Court must decide whether the case is a proper one for
the exercise of the discretion conferred on it’.”
the exercise of the discretion conferred on it’.”
See also ex parte Chief Immigration Officer, Zimbabwe 1994 (1)
SA 371 (ZS) at 376E377F.
[9] It was contended on the applicant’s behalf, inter alia , that:
• It is an interested party with an interest in both an existing and future
right and obligation and has locus standi to bring the application
because the legislation in issue places an obligation on it to perform
certain acts and pay certain monies; the declaration sought is therefore
part and parcel of its obligations;
• The status of its officers is not defined statutorily or in common law;
• Its dispute with the Compensation Commissioner is one of the factors
which warrants the grant of the declarator which shall be binding on
all interested parties; and
• It has no alternative remedy except to argue this issue at various forae
whenever a dispute arises; a grant of the declarator at this stage will be
more practical and ensure a saving on legal costs as it will bring about
legal certainty on the relevant issue.
[10] It seems to me on a consideration of these submissions and
other relevant facts alleged by the applicant in its papers that the issue
raised is a live and important one which no doubt will at some
stage come before this court or another appropriate forum. It is
also undoubted in the circumstances that despite the
undertaking which the Officers sign on ordainment there is real
uncertainty and some measure of anxiety in the minds of the
relevant parties. I am satisfied therefore that the applicant has
established suitable circumstances which render a ruling on the
issue necessary.
[11] It now remains to determine the nature of the relationship which
exists between the applicant and its Officers. Section 213 of
the Act, as amended by s 51 of the Labour Relations Amendment
Act No 42 of 1996 , defines the term “employee” as follows:
“ ‘Employee’ means:
(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 the carrying out
or conducting the business of an employer”.
The term is similarly defined in the BCEA and EEA. The definitions
in the SDA and UIA are structured differently but carry substantially
the same meaning as those set out in the former Acts.
[12] Commenting on the nature and meaning of employment,
Myburgh JP said in the case of SA Broadcasting Corporation v
McKenzie (1999) 20 ILJ 585 (LAC) at 591EG:
“The legal relationship between the parties must be gathered primarily from
a construction of the contract which they concluded (Smit v Workmen’s
Compensation Commissioner at 64B; Liberty Life Association of Africa Ltd v
Niselow at 683DE), ‘although the parties’ own perception of their
relationship and the manner in which the contract is carried out in practice
may, in areas not covered by the strict terms of the contract, assist in
determining the relationship’ (Borcherds v C W Pearce & J Sheward t/a
Lubrite Distributors at 1277HI). In seeking to discover the true relationship
between the parties, the court must have regard to the realities of the
relationship and not regard itself as bound by what they have chosen to call it
(Golber v Durban City Council 1970 (3) SA 325 (N) at 331BC). As Brassey
‘The Nature of Employment’ at 921 points out, the label is of no
‘The Nature of Employment’ at 921 points out, the label is of no
assistance if it was chosen to disguise the real relationship between the
parties, ‘but when they are bona fide it surely sheds light on what they
intended’.”
[13] In addition to the fact that the applicant does not conduct
employment contracts with its Officers, who instead sign the
undertaking mentioned hereinabove which expressly excludes an
employment relationship, it was further submitted that the nature of
the relationship is clearly not one of employer and employee. The
following features thereof were highlighted:
• The relationship between the applicant and the Officers is spiritual and
is governed by religious conscience and the Officers’ covenant with
God; the Officer responds to a call of God to spiritual ministry and the
applicant merely provides the sphere within which the Officers serve
God;
• An Officer does not sell his services nor does the applicant buy such
services; no salary nor allowance is guaranteed to the Officers who
only receive a living allowance to enable them to forgo secular
employment and carry out a Christian spiritual ministry through the
applicant;
• An Officer’s leisure pursuits must be in keeping with his spiritual
calling;
• An Officer does not retire from his calling; devotes his entire life to
God and the applicant and remains a minister of religion until death;
• Save for direction in respect of administrative matters there is no
control over the manner in which an Officer fulfils his spiritual calling
and ministry; he then chooses when and where to pray, the style of
preaching, his pastoral care and other aspects of the ministry.
[14] In the case of The Church of the Province of Southern Africa
Diocese of Cape Town v CCMA & Others (2001) 22 ILJ 2274
(LC), Waglay J collected and analysed the relevant authorities
decided by South African courts and courts in other jurisdictions on
the nature of the relationship between a church minister and his
church. He concluded at 2285E:
“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…”
The learned judge continued thus at 2287G: “ 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 ”.
See also Lewis & Another v Contract Interiors CC (2001) 22
ILJ 466 (LC) at 471F.
[15] In my view, it is clear in all the circumstances of this matter that
the applicant does not enter into contracts of employment with
its clergy. There is no such intention on the part of both the applicant
and the Officers concerned. The Officers are therefore not
“employees” of the applicant as envisaged by the labour legislation.
The applicant has made out a case for the grant of the declarator it
seeks.
[16] The following order is accordingly made:
The Officers of the applicant are declared not to be employees as
defined in the Labour Relations Act, 66 of 1995; The Basic Conditions
of Employment Act, 75 of 1997; The Employment Equity Act, 5 of
1998; The Unemployment Insurance Act, 30 of 1966; The Skills and
Development Act, 97 of 1998; The Compensation for Occupational
Injuries and Diseases Act, 103 of 1993, and the said Acts are not
applicable on such Officers.
__________________
MAYA, A.J.
For the Applicant: Mr H Gerber
Instructed by Van Staden & De Beer Inc.
Date of hearing: 20 August 2004
Date of judgment: 2 September 2004