In a guest post, David Scrooby comments on a recent South African judgment on the employment status of clergy.

A recent judicial review by the Free State High Court, Bloemfontein, South Africa of a decision by the Dutch Reformed Church revived the debate on whether ministers, pastors or priests are employees.

The background

The Free State is a province of South Africa and features in the history of the Anglo-Boer War. The Boers skirmished with the Basotho, led by the legendary Chief Moshoeshoe, who used mountain fortresses and gained protection from the British, Lesotho becoming a colony and is now the independent Mountain Kingdom of Lesotho.  Whilst the DRC Synod includes both the Free State and Lesotho, in the Anglican Church of Southern Africa they are two separate dioceses.

In Melaletsa v Regional Synod Free State and Lesotho of “Die Nederduitse Gereformeerde Kerk in Afrika – Oranje Vrystaat” and Others (6722/2023) [2025] ZAFSHC 32 the applicant, the Revd Mokweetsi Simon Melaletsa, sought judicial review of two decisions: the appointment of a commission of inquiry and the decision by the Regional Synod to release him from service or dissolve his bond with the Thaba Nchu (Black Mountain) congregation.

As an ordained minister of the DRC, in 2013 he had accepted a call to serve at the Thaba Nchu congregation. In 2015, instability arose, the church council resigned, and the Regional Synod appointed a commission of inquiry to investigate the discord. The commission recommended his release in terms of the Church Order (Rules), and another commission made similar recommendations in February 2020. He was suspended in September 2021 and formally released from service by the Bloemfontein Circuit in October 2022 and the Ladybrand Circuit in June 2023.

The arguments

The respondents argued the point in limine that it was an employment matter and should be heard by the Labour Court. The Court rejected that submission and held that Mr Melaletsa’s case was based on the Church Order and procedural fairness, not on the employment relationship. He contended that there was clearly no employer/employee relationship. The Court and the applicant referred to Church of the Province of Southern Africa Diocese of Cape Town v Commission for Conciliation Mediation and Arbitration and Others(C619/2000) [2001] ZALC 141at [37]:

“…the church must be seen as providing the space called upon 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.”

The Court found that the applicant considered himself bound by the Church Order and that in serving as a minister, he was conducting the Church’s mission through reliance on the Word of Christ.  The applicant did not rely on a contract of employment.

The respondents raised the point in limine of Non-joinder, arguing that the applicant had not joined the General Synod to the proceedings [33]. The Court dismissed this point, in that the General Synod had no direct or substantial interest, and the applicant gave informal notice. The respondents also raised the point in limine that the applicant failed to exhaust his internal remedies.  The Court found that while internal remedies should be exhausted, they need not be, as in this matter, an appeal to the same body that recommended the “release” of the applicant would have been ineffective.

The last point in limine was that of the existence of a material factual dispute. The Court found that factual disputes were peripheral to the central issue of procedural compliance with the Church Order (Rules).

Merits and judgment

The Court followed De Lange v Presiding Bishop of the Methodist Church of Southern Africa for the time being and Another (CCT223/14) [2015] ZACC 35 at [24 n 21]:

“The Supreme Court of Appeal held that the doctrine of entanglement strongly informs courts not to get involved in religious doctrinal issues. The effect of the doctrine is that courts are reluctant to interfere with religious doctrinal disputes.”

Interestingly, at [60] the Court referred to and quoted the minority Supreme Court of Appeal judgment in the Anglican case of Hendricks v The Church of the Province of Southern Africa, Diocese of Free State (108/2021) (2022) ZASCA 95, as follows:

“the following dictum in De Lange is significant, …

In Lakeside Colony of Hutterian Brethren v Hofer, Gonthier J said of the complex issues involved in reviewing the decisions of a religious tribunal in Canadian law:

‘It is not incumbent on the court to review the merits of the decision to expel. It is, however, called upon to determine whether the purported expulsion was carried out according to the applicable rules, with regard to the principles of natural justice, and without mala fides.’

It is plain from the passage above that there are circumstances in which courts are required to intervene in disputes involving religious bodies. To my mind, this can only mean that where religious bodies have proceeded in a manner that is not consonant with the principles of natural justice, courts will intervene” [emphasis in original].

(The lower court’s judgment in Hendricks is here.)

The Court held that the majority judgment by the SCA in Hendricks “did not introduce a blanket prohibition on the determination of disputes that involve religious bodies…” [61]:

“The present matter is one such exception, here the focus is on the fairness in process rather than doctrinal beliefs or practices nor about an individual who has voluntarily committed himself to a religious association’s rules and finds himself now in conflict with same” [62]

The Court examined the Church Order’s structure with regard to the establishment of commissions and the release of ministers. The Court found that the Church Order establishes hierarchical structures and that the Regional Synod intervened without proper authority. The commission of inquiry was problematic in that it was formed by the Regional Synod without proper authority, and it did not follow the procedural requirements: the applicant was not given a proper opportunity to defend himself, and the commission had focused on complaints against the applicant without following proper disciplinary procedures.

The Court found that Article 10, which deals with releasing a minister from service, was misapplied because it was for issues of capacity rather than disciplinary matters, and the principles of natural justice and the audi alteram partem rule had not been observed. The Court also found that the Judicial Commission had exceeded its authority in that its role was limited to legal advice. The Court concluded that proper procedures had not been followed in the investigation of the complaint and the release of the applicant as a minister.

Mr Melaletsa was deemed to be an employee and, effectively, was reinstated by the Court. The Court set aside the Synod’s decision to appoint a commission of inquiry and the decision to release him from the Thaba Nchu congregation.

David Scrooby