Religious Freedom vs. Labour Laws in South Africa
- John Botha
- Apr 14
- 4 min read
Updated: 1 day ago
In a groundbreaking case that has sent ripples through South Africa's religious institutions, female pastor Lerato Makombe recently won her constructive dismissal claim against the Seventh Day Adventist Church in the Labour Court. This landmark ruling highlights the complex and often contentious relationship between religious freedoms and labour laws in South Africa—a tension that many religious organisations are now being forced to confront.
The Makombe Case: A Turning Point
Acting Labour Court Judge Tapiwa Gandidze overturned an earlier CCMA ruling when finding that Makombe had indeed suffered constructive dismissal after enduring persistent sexist abuse from congregants who opposed women in senior church positions. The details of her experience are troubling:
Congregants and church elders demeaned her and prohibited her from performing duties they claimed were reserved for male pastors
The church repeatedly transferred her between posts without proper consultation
When transferred to George in 2019, she faced open rejection from congregants
Despite multiple written complaints, church leadership provided no meaningful support
She eventually developed severe mental health issues requiring hospitalization before resigning in November 2020
In the ruling, Judge Gandidze stated that the church "folded its hands and allowed her to fend for herself under the guise that it could not tell its congregants what to do." The court ordered the church to pay Makombe the equivalent of 12 months' salary plus legal costs, noting that the church's treatment was "unfathomable" for an institution that "subscribes to the ethos of care and compassion".
The Legal Framework: Employment Equity Act and Constitutional Provisions
South Africa's post-apartheid legal framework places significant emphasis on equality and non-discrimination. The Employment Equity Act (EEA) explicitly prohibits unfair discrimination on various grounds, including gender, sex, and sexual orientation. Section 6(1) of the Act states:
"No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or on any other arbitrary ground."
Simultaneously, the South African Constitution guarantees freedom of religion, belief, and opinion under Section 15, and protects the rights of religious communities under Section 31. This creates an apparent tension: how do we reconcile religious autonomy with anti-discrimination provisions?
The Doctrine of Religious Autonomy vs. Employment Law
Religious institutions have traditionally argued for a special exemption from certain labour laws under what is known as the "ministerial exception" or "doctrine of religious autonomy." This principle suggests that religious organisations should have the freedom to select their leaders according to their religious tenets without state interference.
In De Lange v Presiding Bishop of the Methodist Church of Southern Africa (2015), the Constitutional Court acknowledged this principle but stopped short of fully endorsing it. The case involved a minister who was dismissed after announcing her intention to marry her same-sex partner. The court emphasised that while religious organisations have significant freedom in doctrinal matters, this does not automatically exempt them from constitutional scrutiny, particularly concerning labour practices.
The Makombe case builds on this jurisprudence, making it clear that religious institutions cannot hide behind doctrinal autonomy when allowing discriminatory practices that violate fundamental employment rights.
International Perspective
South African courts have increasingly looked to international jurisprudence for guidance. The European Court of Human Rights has developed a "balancing approach" that weighs religious autonomy against employees' rights. In Schüth v. Germany (2010), the court recognised that while churches have the right to demand loyalty from employees, this must be balanced against workers' right to privacy and non-discrimination.
In contrast, the United States Supreme Court has traditionally given stronger protection to religious autonomy through the "ministerial exception", as seen in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012) and more recently in Our Lady of Guadalupe School v. Morrissey-Berru (2020).
The South African approach appears to be charting a middle path—recognising religious autonomy while insisting that it does not create a blanket exemption from labour laws.
Defining the Boundaries: When Do Labour Laws Prevail?
Based on emerging case law, including the Makombe decision, certain principles are becoming clear:
Core vs. Peripheral Doctrines: Courts are more likely to defer to religious institutions on matters central to their faith. However, when discriminatory practices appear peripheral to core religious tenets, labour laws will prevail.
Severity of Harm: The more severe the harm to the employee, the more likely courts will intervene. In Makombe's case, the psychological harm requiring hospitalisation weighed heavily in the court's decision.
Institutional Response: How religious organisations respond to complaints of discrimination is crucial. The church's failure to adequately address Makombe's complaints was deemed particularly egregious.
Public-Facing Functions: When religious organisations engage in services beyond worship (such as education, healthcare, or social services), they may face stricter application of labour laws.
As Judge Gandidze's ruling in the Makombe case powerfully illustrates, religious institutions that profess values of care and compassion may be held to an even higher standard when their employment practices conflict with these very principles. This suggests that for many religious organisations, the most sustainable path forward may involve re-examining how their employment practices align with both their core religious values and South Africa's constitutional commitment to equality and human dignity.
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