Schultz v Congregation of the Dutch Reformed Church Horizon North and Others (JS725/2023) [2024] ZALCJHB 391 (7 October 2024)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: JS 725/23

In the matter between:

JOHANNES JOAGIM CHRISTOFFEL SCHULTZ Applicant and CONGREGATION OF THE DUTCH REFORMED CHURCH HORIZON NORTH First Respondent CHURCH COUNCIL OF THE CONGREGATION OF THE DUTCH REFORMED CHURCH HORIZON NORTH Second Respondent ROODEPOORT PRESBYTERY OF THE DUTCH REFORMED CHURCH Third Respondent GOUDLAND SYNOD OF THE DUTCH REFORMED CHURCH Fourth Respondent GENERAL SYNOD OF THE DUTCH REFORMED CHURCH Fifth Respondent DUTCH REFORMED CHURCH OF SOUTH AFRICA Sixth Respondent In re the matter between: JOHANNES JOAGIM CHRISTOFFEL SCHULTZ Applicant and DUTCH REFORMED CHURCH OF SOUTH AFRICA Respondent

Heard: 30 May 2024

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email and publication on the Labour Court’s website. The date for hand-down is deemed to be on 07 October 2024

RULING – JOINDER APPLICATION

TLHOTLHALEMAJE, J

Introduction and background:

[1] The applicant is a former pastor of the sixth respondent (Dutch Reformed Church). He was dismissed on allegations of misconduct on 4 September 2023 and had referred an automatically unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). He had alleged that his discipline and ultimate dismissal amounted to an occupational detriment as contemplated in the Protected Disclosure Act (PDA)[1]

[2] In the referral before the CCMA, the applicant had cited the respondent/employer as ‘NG Gemeente Horison-Noord en Ring van Roodepoort’, (The first respondent (‘Congregation’)). When attempts at conciliation failed, the Commissioner had issued a certificate of outcome, citing the respondent as ‘NG Gemeente Horison-Noord’.

[3] The applicant subsequently delivered a statement of claim before the Court on 13 December 2023, in which he only cited the sixth respondent (Dutch Reformed Church of South Africa) (‘Church’). Upon the filing of the statement of claim, the attorneys representing the Church in the joinder application had advised the applicant’s attorneys of record that an incorrect respondent was cited in the statement of claim. It was further indicated that the applicant’s employer was the ‘Congregation’, and that the ‘Church’ had no role in the matter.

[4] Against the above, the applicant then brought this application to join the respondents being the first respondent (Congregation); second respondent (‘Church Council’); the third respondent (‘Presbytery’); fourth respondent (‘Goudland Synod)’; and fifth respondent (‘General Synod’). The joinder application is opposed.

[5] The respondents do not contest the joinder off the ‘Congregation, it being common cause that the contract of employment was entered into between it and the applicant. The ‘Congregation’ is deemed by the respondents to be a distinct and separate juristic person and had entered into the contract in its capacity as employer represented by the ‘Church Council’.

[6] The parties are at odds over the role of the other entities and legal nature of the Church and its structure, and the applicant further contends that the opposition fails to consider or appreciate the facts giving rise to his automatically unfair dismissal dispute and the role played by the structures in subjecting him to an occupational detriment.

The legal nature of the Church:

[7] The Church is a voluntary association (universitas). It derives its authority from the Church Order, which is essentially its constitution or founding document. The applicant further contends that the Church Order operates as a contract between the Church, its members, and the employees.

[8] The Church Order establishes the Church and makes provision for the establishment of various structures, viz,

(a) The ‘Congregation’, which is the primary employer of the applicant as pastor;

(b) The ‘Church Council’, which is responsible for inter alia, oversight and governance of the ‘Congregation’ and supervision of the pastor serving the ‘Congregation’ for which the relevant ‘Church Council’ is responsible.

(c) The ‘Presbytery’, which is responsible for the supervision and discipline of all pastors, and exercises powers of supervision concurrently with the ‘Church Council’. The applicant contends that it is this structure that is responsible for initiation and management of discipline against pastors of the Church.

(d) The ‘Goudland Synod’, which the applicant deems as the ‘head office’ of the Church in the area of its jurisdiction, and which prescribes through the Church Order, the conduct of pastors

(e) The ‘General Synod’, which has overall responsibility to grant competence to be called as Minister of the Church as well as the retention and termination of Minister’s status.

[9] The applicant contends that only the Church is a separate legal personality through the Church Order and that each of its structures played a significant role in his employment, discipline and dismissal, hence their joinder is sought.

The legal approach to applications for a joinder:

[10] This application was brought in terms of Rule 22 of the Rules of the Labour Court which rule has since been repealed in July 2024[2]. The rule restates the discretionary powers of the Court to join any party to the proceedings before it, if the right to the relief

depends substantially on the same question of law or facts. It is further accepted that the test to apply in considering whether a party should be joined in proceedings is whether that party has ‘a direct or substantial interest in the subject matter of the proceedings’[3].

The parties’ submissions and evaluation:

[11] The applicant contends that the ‘Presbytery’ and the ‘Synod’ are secondary employers, and that they have a direct and substantial interest in the proceedings hence the seeking of their joinder. Regarding the other structures/respondents, the applicant contends that the facts giving rise to the dispute took place in the discharge of his duties as a member of the Church and the Actuary of the Goudland Synod, and that it was in that capacity that he had laid a complaint against members of the Church Structure including the Presbytery and the Church Council.

[12] He contends that the allegations on which he relied on in claiming an automatically unfair dismissal implicated each of the Church Structures, which demonstrated that each had a role to play in his employment, discipline and dismissal.

[13] The applicant alleged that members of the Goudland Synod sought to persuade him to withdraw that complaint. When he refused, he was subjected to the disciplinary enquiry leading to the dismissal, which was initiated by the Synod on behalf of the Church Council and the Presbytery.

The respondents’ opposition:

(i) Lack of jurisdiction:

[14] The respondents, other than the concession that the ‘Congregation’ is the employer, opposed the application on the grounds of lack of jurisdiction. In this regard, it was submitted that the ‘Congregation’ was a distinct and separate juristic

person as confirmed by Regulation 24, para 4.1 of the Church Order. It was however contended that since the applicant in his statement of claim did not cite the ‘Congregation’ but the ‘Church’, which is equally a distinct and separate juristic person under Regulation 24.1.1.1 of the Church Order, the Court lacked jurisdiction to determine the dispute against the Church in view of the provisions of section 191(5)(b) of the Labour Relations Act[4] (LRA), and that the omission could not be circumvented by a joinder application.

[15] The respondents contended that the same principles were applicable in respect of the joinder of the ‘Presbytery’ and the ‘Goudland Synod’, which were also distinct and separate entities under Articles 2.1 and 3.1 of Regulations 24 of the Church Order.

[16] Reliance for the above legal proposition was placed on National Union of Mineworkers of South Africa v Driveline Technologies[5], which was endorsed by the Constitutional Court in Intervalve[6]. In the latter decision, the enquiry as in this case, was whether a party that was not cited in a referral for conciliation proceedings

and a certificate of outcome could be joined to proceedings before this Court. The Constitutional Court had in consideration of the provisions of section 191 of the LRA, reiterated that its purpose was to ensure that, before parties to a dismissal or unfair labour practice dispute resort to legal action, a prompt attempt was made to bring them together and resolve the issues between them; that the employee must satisfy the council/CCMA that a party was informed of the referral through its service, and to enable it to participate in the conciliation proceedings.

[17] Against the respondent’s contentions on jurisdiction, the applicant submitted that Intervalve was distinguishable on the facts as it involved separate legal entities, whilst in this case, each of the respondents sought to be joined are interlinked or interrelated in the light of the Church Structure as envisaged in the Church Order, from which the Church as a voluntary association derived its separate legal personality.

[18] The separate legal personality of the Church cannot be in dispute arising from Regulation 24.1.1.1 of the Church Order. The applicant however contends that the ‘Congregation’ is not a separate legal entity but is merely one of the Church Structures established in terms of the Church Order that represents the Church in the employment of ministers. He further submitted that in any event, despite not being cited in the referral to the CCMA, the representatives of the Church, Presbytery and the Synod had

attended the conciliation proceedings.

[19] Reliance for the above proposition was placed on the earlier decision of this Court in Mokoena[7], where it was held inter alia that this Court had a discretion to join parties to a matter, even if they did not participate in the preceding conciliation proceedings.

The Court in Mokoena had held that one must not regard the dispute and the parties to the dispute in synonymous terms, and that all that was required was for the dispute to have been the subject of proper conciliation, even if all the parties thereto did not participate in such conciliation proceedings. The Court had also added that a party joined after conciliation has an opportunity to attempt to resolve the matter through conciliation, especially at the pre-trial conference, or the court may even be asked to give appropriate direction relative thereto. The Court had concluded that there was nothing in the Act which prevented the joinder of a party who did not participate in the statutory conciliation proceedings before this Court, if the dispute has itself been properly conciliated, and the requirements for the joinder of the parties were met.

[20] Of course, the approach in Mokoena has since been overtaken by events and the binding authority in Intervalve, in terms of which conciliation is held to be an indispensable requirement or a precondition to this Court's jurisdiction over unfair dismissal disputes[8]. To the extent that the applicant contended that a joinder ought to be granted on the basis that the Church Structure was such that the respondents were intrinsically intertwined, the majority in Intervalve held that a close relationship between the entities was irrelevant in that central to the determination of jurisdiction was the purpose of the provisions of section 191 of the LRA, which was to ensure that before parties to a dismissal or unfair labour practice dispute resorted to legal action, a prompt attempt was made to bring them together and resolve the issues between them[9]. In this regard, the Court concluded as follows;

‘…The focal question narrows to the purpose of the service requirement in s 191(3). The objective cannot be just to let the employer know that a dispute, related to the dispute that affects it, is being conciliated. It must be to put each employer party individually on notice that it may be liable to legal consequences if the dispute involving it is not effectively conciliated. Those consequences may be severe. They may include enterprise-threatening implications: trial proceedings, reinstatement orders, backpay and costs orders. So, the notice must be directly targeted.

This emerges from the provision, which explicitly names the beneficiary of the service requirement: 'the employer'. This makes clear that a referral citing one employer does not embrace another, uncited, employer. The fact that the uncited employer has informal notice of the referral cannot make a difference. The objectives of service are both substantial and formal. Formal service puts the recipient on notice that it is liable to the consequences of enmeshment in the ensuing legal process. This demands the directness of an arrow. One cannot receive notice of liability to legal process through oblique or informal acquaintance with it.

The separate legal personality of the three employers — Steinmüller, Intervalve and BHR — cannot be willed away

because there was some overlap in their corporate operations. They had overlapping boards of directors and interconnected shareholdings,

and a joint holding company. But this does not help NUMSA. NUMSA's argument depends on the proposition that knowledge held by an officer or employee of one corporation may be imputed to other corporations with which she is associated. That approach has long been alien to our law. …’[10]

[21] As a result of the jurisdictional pre-requisite articulated in Intervalve, and it being common cause that none of the respondents other than the Congregation was a party to conciliation proceedings, it is therefore not competent for the applicant to seek to join the other respondents to the Court proceedings subsequent to the referral to conciliation. The fact that these entities were aware or may have attended the conciliation proceedings is of little or no consequence for the jurisdiction of this Court, nor is that a basis for granting the joinder. This is particularly so in the light of the specific

allegations made against them by the applicant in claiming automatically unfair dismissal, their alleged specific roles in the

matter, and the nature of declaratory relief sought against the Church as per the original Statement of Claim.

[22] I further did not understand it to be in dispute that the second and fourth respondents (Church Council and Goudland Synod) do not exist as juristic persons or entities and have no locus standi in judicio. As to what end their joinder will serve is not clear. It is equally not clear overall as to the reason the applicant had pursued the joinder application in view of the ultimate relief sought. In the original statement of claim in which the Church was cited as a party, the applicant sought inter alia, an order of reinstatement and payment of an amount of 24 months’ salary as compensation for the alleged automatically unfair

dismissal. Clearly from the common cause facts, the ‘Congregation’ was the employer, and it is not immediately apparent with this joinder application whether the applicant ultimately sought joint and several liability of the respondents to the extent that it may have been granted, or whether specific forms of relief was sought from them. In the light of the opposition and the grounds thereto, one would have expected the applicant to have invoked the Rules of this Court to seek a substitution of the Church with the Congregation.

[23] To the extent that the various structures (respondents) or individuals within those structures may have been intrinsically involved in any of the issues leading to his allegations of automatically unfair dismissal, clearly these are issues that could have been sufficiently dealt with by means of evidence at trial without the need of a joinder of those structured. The Rules of Court provide several mechanisms to obtain both the evidence of witnesses and documents which may be in the possession of other third parties, including through subpoenas and discovery. Thus, if the purpose of the joinder of the other structures is merely to prove the applicant’s case, the joinder application is bad in law. The allegation that they may have played a role in his alleged automatically unfair dismissal does not justify the joinder.

[24] In conclusion, it is reiterated that in the light of the applicant’s non-compliance with the provisions of section 191(3) and (5) of the LRA in respect of the parties sought to be joined, the joinder application in respect of the second to fifth respondents ought to be dismissed on account of being incompetent. To the extent that the first respondent was a party to the conciliation proceedings before the CCMA, and the Church was incorrectly cited in the original statement of claim, the remedies under Rule 52(4) of the new rules of this Court remain available to the applicant.

Costs:

[25] I have further had regard to the requirements of law and fairness regarding costs. It is my view that in the light of this ruling being interlocutory, any costs claimed ought to be in the cause.

[26] Accordingly, the following order is made:

Order:

1. The applicant’s application to join the first respondent is granted, subject to the applicant’s compliance with the provisions of Rule 52(4) and (5) read with Rule 35 of the Rules of Court, to the extent that the Court lacks jurisdiction in respect of any dispute against the Sixth Respondent.

2. The application to join the Second to Fifth Respondents is dismissed.

3. Costs of this application are to be determined by the trial Court.

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicant: Adv. N Stein, instructed by Malcolm Lyons & Brink Inc.

For the 1st – 6th Respondents: Adv. BC Stoop SC, instructed by Couzyn Hertzog & Horak Inc.

[1] Act 26 of 2000.

[2] The applicable rule is now Rule 52 of the new rules

[3]See J.C.S v J.J.S and Others [2021] ZAGPPHC 647 (16 September 2021), where it was held; ‘[25] The test in a joinder application is whether or not the party has a “direct and substantial interest” in the subject matter of the action, i.e. a legal interest in the subject matter of litigation, which may be affected prejudicially by the judgment of the court. If such interest is shown this will amount to a joinder out of necessity. [26] A party should be joined if an order of the court cannot be sustained or carried into effect without prejudicing that party, unless the court is satisfied that the party has waived its right to be joined. The nature of the relief sought against a party was therefore relevant to the question whether the party concerned had a direct and substantial interest in the matter. [27] Apart from a joinder out of necessity a court can join a party under the common law on grounds of convenience, equity, the saving of costs and the avoidance of multiplicity of actions. The court has the inherent power to order the joinder of further parties in an action which has already begun in order to ensure that that person’s interest in the subject matter of the dispute and whose rights may be affected by the judgment are before court.’ See also NUMSA obo its members v Steinmuller Africa (Pty) Ltd and Others JS 758/10 at paras 18 – 19. See also the dissenting judgment of Nkabinde J in National Union of Metal Workers of South Africa v Intervalve (Pty) Ltd and Others [2014] ZACC 35; 2015 (2) BCLR 182 (CC); [2015] 3 BLLR 205 (CC); (2015) 36 ILJ 363 (CC) (Intervalve), where it was held; [187] The test for joinder at common law is governed by the following principles: (a) There must be a legal interest in the proceedings and not merely a financial interest. (b) A party has a right to ask that someone be joined as a party “if

such a person has a joint proprietary interest with one or either of the existing parties to the proceedings or has a direct and substantial interest in the Court’s order” and “to avoid a multiplicity of actions and . . . a waste of costs”. [187] This Court in ITAC observed that whether it is in the interests of justice for a party to intervene, and the question of direct and substantial interest, is important though not necessarily determinative. It identified the following considerations in the interests of justice enquiry— (a) “the stage at which the application for joinder is made”; (b) “whether the party has furnished adequate explanation for the

delay, if any, in seeking to be joined”; (c) “the nature of the relief or opposition the intervening party

puts up”; and (d) “[w]hether the intervention would materially prejudice the case of any of the other parties to the litigation”.

[3]See J.C.S v J.J.S and Others [2021] ZAGPPHC 647 (16 September 2021), where it was held;

‘[25] The test in a joinder application is whether or not the party has a “direct and substantial interest” in the subject matter of the action, i.e. a legal interest in the subject matter of litigation, which may be affected prejudicially by the judgment of the court. If such interest is shown this will amount to a joinder out of necessity.

[26] A party should be joined if an order of the court cannot be sustained or carried into effect without prejudicing that party, unless the court is satisfied that the party has waived its right to be joined. The nature of the relief sought against a party was therefore relevant to the question whether the party concerned had a direct and substantial interest in the matter.

[27] Apart from a joinder out of necessity a court can join a party under the common law on grounds of convenience, equity, the saving of costs and the avoidance of multiplicity of actions. The court has the inherent power to order the joinder of further parties in an action which has already begun in order to ensure that that person’s interest in the subject matter of the dispute and whose rights may be affected by the judgment are before court.’

See also NUMSA obo its members v Steinmuller Africa (Pty) Ltd and Others JS 758/10 at paras 18 – 19. See also the dissenting judgment of Nkabinde J in National Union of Metal Workers of South Africa v Intervalve (Pty) Ltd and Others [2014] ZACC 35; 2015 (2) BCLR 182 (CC); [2015] 3 BLLR 205 (CC); (2015) 36 ILJ 363 (CC) (Intervalve), where it was held;

[187] The test for joinder at common law is governed by the following principles:

(a) There must be a legal interest in the proceedings and not merely a financial interest.

(b) A party has a right to ask that someone be joined as a party “if

such a person has a joint proprietary interest with one or either of the existing parties to the proceedings or has a direct and substantial interest in the Court’s order” and “to avoid a multiplicity of actions and . . . a waste of costs”.

[187] This Court in ITAC observed that whether it is in the interests of justice for a party to intervene, and the question of direct and substantial interest, is important though not necessarily determinative. It identified the following considerations in the interests of justice enquiry—

(a) “the stage at which the application for joinder is made”;

(b) “whether the party has furnished adequate explanation for the

delay, if any, in seeking to be joined”;

(c) “the nature of the relief or opposition the intervening party

puts up”; and

(d) “[w]hether the intervention would materially prejudice the case of any of the other parties to the litigation”.

[4] Act 66 of 1995.

[5] 2000 (4) SA 645 (LAC) at para 73, where it was held; ‘To me it is as clear as day light that the wording of sec 191(5) imposes the referral of a dismissal dispute to conciliation as a precondition before such a dispute can either be arbitrated or be referred to the Labour Court for adjudication. I cannot see what clearer language the legislature could have used other than the language it chose to use in sec 191(5) if it had intended that the referral of a dismissal dispute to conciliation should be a pre-condition to such dispute being arbitrated or being referred to the Labour Court for adjudication.’

[5] 2000 (4) SA 645 (LAC) at para 73, where it was held;

‘To me it is as clear as day light that the wording of sec 191(5) imposes the referral of a dismissal dispute to conciliation as a precondition before such a dispute can either be arbitrated or be referred to the Labour Court for adjudication. I cannot see what clearer language the legislature could have used other than the language it chose to use in sec 191(5) if it had intended that the referral of a dismissal dispute to conciliation should be a pre-condition to such dispute being arbitrated or being referred to the Labour Court for adjudication.’

[6] Supra at paragraphs 32 and 192.

[7] Mokoena and Others v Motor Component Industry (Pty) Limited and Others [2005] ZALC 55; (2005) 26 ILJ 277 (LC).

[8] At para 40.

[9] At para 46.

[10] At paragraphs 52 - 54