In Hosanna-Tabor Evangelical Lutheran Church and School v EEOC 565 US ____ (2012) the US Supreme Court ruled that there is a “ministerial exception” grounded in the First Amendment that precludes the application of employment protection legislation to claims about the employment relationship between a religious institution and its clergy:
“Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause” [p 3 of the slip opinion].
As we suggested in a recent post, Employment status of clergy: goodbye to the ‘Servant of God’?, the situation in the UK has been more nuanced. Now, along comes a South African case that takes a very different view of clergy employment rights from that espoused by SCOTUS.
In Fortuin v Church of Christ Mission of the Republic of South Africa & Ors (3626/15)  ZAECPEHC 18 the applicant sought judicial review of the Church’s decision to disfellowship him from the performance of his pastoral duties as an ordained minister of Bloemendal Church of Christ Mission of the Republic of South Africa.
In June 2013, Mr Fortuin divorced his wife (he remarried in November 2013). During the Church’s Annual Assembly in September of that year, he wrote to the Provincial Representative to tell the Church about his divorce. His letter was presented to the National Ministers Association for consideration and its Executive Committee summoned him to a meeting. At that meeting, he asked at the outset whether it constituted a hearing and was told that its sole purpose was to obtain confirmation from him about his divorce so that the members could brief the National Executive Committee. On the last night of the conference, however, a Mr Mguzulwa told him that the President of the Church, Mr Gontsana, had announced at the conference that he had been expelled [1-10]. At a meeting in January 2015, with inter alia, the Deputy President, Mr Fortuin was told that he had been disfellowshiped pursuant to the decision allegedly taken in October 2012 .
For Mr Fortuin, it was contended that the Church’s National Assembly was the highest decision-making body competent to agree the resolution relied upon and that it had never passed such a resolution at any of the Annual Assemblies that he had attended. Moreover, the actions of the Church had contravened the tenets of natural justice and he should have had the chance to be heard in his defence before the Church could properly take a decision to disfellowship him . The Church, in response, averred inter alia that the High Court had no jurisdiction in the matter and had no powers to determine what was essentially a religious dispute [14 & 15].
As to the jurisdiction point, Renqe AJ ruled that, pursuant to s 21(1)(a) Superior Courts Act 2013, the High Court had jurisdiction over all persons within its area, all offences triable within it and all other matters of which it might take cognisance according to law. Because the decision to disfellowship the applicant from the performance of his pastoral duties was ratified and confirmed in Port Elizabeth, the cause of action arose within its jurisdiction .
On the matter of the Court’s powers to interfere with the decision, the issue was whether or not the Church tribunal had been competent to make the decision that it did and whether it had complied with the requirements of procedural and substantive fairness. A reasonableness test based on rationality was a competent basis under the Court’s common law powers on which to review decisions of voluntary associations .
As to merits, it was clear from the evidence that the Church had failed to comply with its own Constitution:
“The respondents had ample opportunity to demonstrate to this court that indeed the applicant was given a hearing and not just make bald allegations that are not supported by any cogent evidence such as minutes of the meetings and any record of the proceedings, which could have been easily presented to this court. Furthermore, no details of when and where the so-called hearing took place were provided to the court … [H]ad all prescripts of the disciplinary process had been complied with by the respondents it would have been a simple matter for them to present evidence of that fact in support of their contention” [23 & 24].
The decision of the respondents to disfellowship and/or suspend the applicant from the performance of his duties as Minister of the Bloemendal Church was therefore set aside.
First, unlike the line taken in many of the judgments of the UK and US courts, the Eastern Cape High Court merely took it as a given that the nature of the relationship between Mr Fortuin and the Church was such as to justify it reviewing the decision to sack him: it did not consider whether he was an employee of the Church or an office holder, simply the issue of procedural fairness. Precisely because it was not what SCOTUS described in Hosanna-Tabor as “a mere employment decision”, it was reviewable.
Secondly, the Court’s position in relation to judicial review was rather similar to that taken by the Court of Session in Brentnall v Free Presbyterian Church of Scotland 1986 SLT 470) – though even more inclusive. In Brentnall, the Court of Session was prepared to review the decision of the FPC Synod to suspend John Brentnall and Moshe Radcliffe from ministry sine die because a patrimonial (ie financial) interest was involved. Nor was it necessary for the decision to involve any element of public law, as subsequently confirmed by West v Secretary of State for Scotland 1992 SC 385 (IH):
“… the Court of Session has power, in the exercise of its supervisory jurisdiction, to regulate the process by which decisions are taken by any person or body to whom a jurisdiction, power or authority has been delegated or entrusted by statute, agreement or any other instrument. The public or private nature of the inferior body or tribunal is not decisive, nor is it necessary to enquire whether the decision of the inferior body or tribunal is administrative in character. The essential point is that a decision-making function has been entrusted to that body or tribunal which it can be compelled by the court to perform… The essential feature of all these cases is the conferring, whether by statute or private contract, of a decision-making power or duty on a third party to whom the taking of the decision is entrusted but whose manner of decision-making may be controlled by the court” [per Lord President Hope at page 650, emphasis added].
This is in sharp contrast to the dictum of Simon Brown J in R v Chief Rabbi of The United Hebrew Congregations of Great Britain and The Commonwealth ex parte Wachmann  2 All ER 249, that
“To say of decisions of a given body that they are public law decisions with public law consequences means something more than that they are decisions which may be of great interest or concern to the public or, indeed, which may have consequences for the public. To attract the court’s supervisory jurisdiction there must be not merely a public but potentially a governmental interest in the decision-making power in question” [at 254: emphasis added].
Thirdly, it should be noted that South African private law is essentially Roman-Dutch; and though, almost inevitably, Scotland came under the influence of English law after the Union of 1707, Scots law is still at root a system that owes much to Roman law principles – so perhaps the resemblance between Fortuin and Brentnall is not entirely happenstance.
[With thanks to David Scrooby for drawing the case to our attention.]