The South African Constitution and freedom of religion: some labour law imperatives and implications

Abstract

Despite the fact that the 1996 Constitution provides for certain constitutional religious rights, it is clear that the development of the constitutional status of churches, their office- bearers, clergy and employees in South African law is still in an embryonic stage. Some guidance may be obtained from principled approaches adopted in comparative jurisdictions, and increasingly also in the South African jurisprudence. It is now generally accepted that clergy and ministers of religion render services not on the basis of being employees of the church, but on the basis of a particular spiritual relationship. In these cases labour law would, as a matter of principle, not find application, although practical and pragmatic reasons may exist as to why churches may wish to make use of the rich tapestry of labour law tenets to give content to the said relationship.
It remains possible that churches may choose to avail themselves of the contract of employment construction to determine the nature of their relationship with clergy. Other church workers, such as administrative personnel, would in any event be regarded as employees. In these cases labour law would find application although the specific church context of the relationship, as it is reflected in the applicable church documents, should have an important bearing on how the relationship is understood and the respective rights and obligations of the church and those who work for the church are enforced in labour tribunals.