IN THE INDUSTRIAL COURT OF SWAZILAND
HELD AT MBABANE CASE NO. 308/05
In the matter between:
THE SWEDISH FREE CHURCH APPLICANT
REVEREND SIMON J. MANANA RESPONDENT
N. NKONYANE : JUDGE
DAN MANGO : MEMBER
PHUMELELE THWALA : MEMBER
FOR APPLICANT : MR. M.E. SIMELANE
FOR RESPONDENT : MR. M. MKHWANAZI
RULING ON ABSOLUTION FROM THE INSTANCE
 The Applicant is a church based in Manzini. The Respondent is a former priest or pastor of the Applicant’s branch which is based at Malkerns.
 There is now a dispute between the two parties. The nature of the dispute is a very simple one. The evidence that was led in Court showed that the Respondent was at some point the General Secretary of the Applicant’s Church Board. He had a misunderstanding with the Board and he resigned from the Church Board by letter dated 9th September 2003. Later, on 4th April 2004, the Malkerns Church, which is a branch of the Applicant of which the Respondent was a pastor, withdrew its membership from the Swaziland Region of the Applicant.
 The Malkerns branch of the Applicant having withdrawn its membership from the Applicant, the Applicant church wrote to the Respondent on 22nd June 2004 and requested the Respondent to hand over all the assets of the Malkerns branch. The assets include the plot on which the Malkerns branch was built, the structures thereon and the offerings.
 The Respondent responded to this request by saying that he was not answerable to Swedish Free Church Swaziland Region, but to Swedish Free Church Southern Africa. The dispute before Court therefore relates to the ownership of the assets of the Malkerns branch of the Applicant following the withdrawal of its membership from the Applicant.
 The Applicant has thus filed the present application and is seeking an order in the following terms:
That the Respondent hands over all the assets of the Applicant.
That the Respondent be restrained and/or interdicted from occupying or making use of the property of the Applicant at portion 57 of Farm No. 65 situated in the Manzini District.
Respondent be restrained from collecting any church offering or tithes and to refund the Regional Church Board with all offerings collected from 4th April 2004 to date.
Costs of the application.
 In its particulars of claim the Applicant averred inter alia that:
“3. By a letter dated 4th April 2004 the Respondent resigned as a member of Swedish Free Church Swaziland region. The copy of the letter is attached here to as ‘A’.
4. The letter of resignation was accepted by the Regional church Board and the Respondent was requested to hand over and or deliver property of the Swedish Free Church by virtue of a letter dated 27th July 2004. A copy of which is annexed hereto as ‘B’.”
 The Court is specifically mentioning these paragraphs because the Applicant based its argument on these paragraphs for its main contention that the Respondent was an employee and that the case was amenable to be heard by this Court.
 Two witnesses testified before the Court on behalf of the Applicant. The Applicant then closed its case. At the close of the Applicant’s case, the Respondent’s attorney made an application for absolution from the instance. He argued that:
8.1 This Court has no power to hear this case as it involves a dispute between two churches and not an employer and employee.
8.2 The Respondent is an ordained pastor whose duty is spread or teach the word of God and is therefore not an employee of the Respondent.
8.3 None of the witnesses have told the Court that the Respondent was ever employed by the Applicant.
8.4 The Applicant is not an employer but only a platform that enables the pastors of the Applicant to carry out their calling by God.
8.5 The Constitution of the Applicant itself does not state that pastors are employed.
8.6 The allowance that the Respondent received was not for hours worked but only to help him in his calling.
8.7 The dispute about the ownership of the property of the Malkerns branch of the Applicant arose after the Respondent had resigned, and, assuming that there was an employer/employee relationship between the parties, the dispute arose after that relationship had ended upon the Respondent’s resignation.
8.8 There was no evidence of control by the Applicant in the way that the Respondent carried out his work of preaching the gospel.
 The application was strenuously opposed by the Applicant. On behalf of the Applicant it was argued that:
The question of jurisdiction could not properly be raised at this stage and more so as the High Court in the case between the same parties in High Court case No. 2291/04 has already ruled that there was an employer/employee relationship between the parties.
The Respondent has submitted to the jurisdiction of this Court and cannot now put in issue the jurisdiction of this Court.
Section 8 of the Industrial Relations Act of 2000 dealing with the jurisdiction of this Court should be given a wider interpretation to include matters that are outside those laid down where there was consent to jurisdiction.
The date of the Respondent’s resignation was the date on which the dispute arose.
The application before Court is not about payment of terminal benefits but seeks to interdict and evict the Respondent from using or occupying the Applicant’s property and this matter could therefore be decided on neutral law.
It was not put to the Applicant’s witnesses that the Respondent will deny that he was an employee of the Applicant.
The Respondent’s counsel’s arguments are not sufficient to meet the test laid down in the case of Gascoyne v. Paul & Hunter 1917 TPD 170.
 As already pointed out, the facts of this case are simple and straight forward. This is a dispute between the Applicant and its breakaway branch. The parent church wants the breakaway church at Malkerns to return its property. This Court is a creature of statute and its jurisdiction is set out in Section 8 of the Industrial Relations Act No.1 of 2000 as follows:-
“The Court shall … have exclusive jurisdiction to hear, determine and grant appropriate relief in respect of an application, claim or complaint or infringement of any of the provisions of this, the Employment Act, the Workmen’s compensation Act or any other legislation which extends jurisdiction to the Court, or in respect of any matter which may arise at common law between an employer and employee in the course of employment or between an employer or employee’s association and a trade union, or staff association or between an employees’ association, a trade union, a staff association, a federation and a member thereof.”
 This provision of the Industrial Relations Act makes it clear that this Court’s function is to hear and determine disputes arising from employer/employee relationships. It is a specialized Court set up by the Act to deal only with Labour related issues.
 The Applicant’s attorney’s main argument in opposition of the application for the absolution from the instance was that the Respondent was not entitled to raise the question of lack of jurisdiction to hear the matter by this Court as that should have been raised early as a preliminary objection. As I understood the Respondent’s attorney, all that he was saying in Court was that, after having heard the Applicant’s case, the evidence is not sufficient to warrant him to be brought to his defence because the evidence had not shown that there was an employer/employee relationship between the parties. Mr. Simelane prefers to view this as an objection to the Court’s jurisdiction.
 First of all the argument by Mr. Simelane that the Respondent must be taken to have submitted to the Court’s jurisdiction is misguided especially when made before this Court which was established to apply or deal only with labour law related issues. For example, an Applicant cannot bring a divorce application before this Court and argue that the defendant has submitted to its jurisdiction by filing a plea and not objecting to the Court’s jurisdiction. In the case of William Spilhaus & Co. (MB) (PTY) Ltd v. Marx 1963 (A) S.A. 994 (C) referred to by Mr. Simelane, Winsen J at p. 996 stated that:
“It is clear that a party not ordinarily amenable to the jurisdiction of a particular tribunal may, provided that such tribunal is not in law prohibited from hearing the suit, by consent, given expressly or tacitly, submit himself to the jurisdiction of that tribunal …..”
 This Court is prohibited by law to hear any suit which is not based on an employer/employee relationship.
 Mr. Simelane argued that this Court cannot at this stage entertain the question of whether or not there was an employer/employee relationship between the parties because the High Court had already made that finding in the matter involving the same parties. In its judgement at page 4 the High Court held that:
“From the Applicant’s founding affidavit it is clear that the occupation of the church premises by the Respondent arose out of his appointment as the pastor of the Malkerns branch of the Swedish Alliance Church. This therefore places the church in the position of employer and the Respondent in the position of an employee.”
 It is clear to the Court that the High Court came to the conclusion that there was an employer/employee relationship between the parties merely because the Respondent was appointed as the pastor of the church in Malkerns. It seems, with respect to the late Judge, no factual enquiry was made whether or not there was a valid and binding contract of employment between the parties. In any event, there was no order that the Industrial Court, to which the matter was remitted, should not make its own finding on this issue.
 The evidence led before the Court revealed that the Respondent was the pastor of the Respondent’s branch situated in Malkerns. There was no evidence that there was a contract of employment between the parties. Mr. Simelane argued that it was never put to the Applicant’s witnesses that the Respondent will deny that he was an employee of the Applicant. We do not agree with this submission. It was put to AW2 Reverend T. Nzima that Respondent had no contract of employment. To this AW2 responded by saying that “but the Respondent did write to the Applicant claiming his salary”.
 From the evidence led before the Court on behalf of the Applicant the Court is of the view that the Respondent was correct in applying for an absolution from the instance because the evidence did no show that there was an employer/employee relationship between the parties. The Court says this because of the following:-
Ordainment is not proof of an intention to create legally enforceable contract of employment. The basis of the relationship between the church and the pastor is a calling from God, the church only provides a platform for those called by God to give effect to their calling.
See:- Church of the Province of Southern Africa Diocese of Cape Town v. Commissioner for Conciliation, Mediation & Arbitration & Others (2001) 22 ILJ 2274 (LC).
The ordainment of the Respondent did not create a legally enforceable contract of service but it was an ecclesiastical or spiritual agreement that was regulated by the Applicant’s Constitution and canons and not by secular law. The Applicant’s witnesses failed to show the Court any provision in the Constitution of the Applicant that pastors were employees of the church.
The evidence led only showed that the Respondent was doing pastoral work. He was therefore clearly not employed under a contract of service, and there was no evidence of such, but was a holder of an ecclesiastical office and such his rights were defined not by contract but by ecclesiastical law.
A minister of religion serves God and serves his congregation, but does not serve an employer. A pastor is called and accepts the call. He does not devote his working life, but his whole life to the church and his religion. His duties are defined and his activities are dictated not by contract but by conscience. He is the servant of God. If his manner of serving God is not acceptable to the church, then his pastorate can be brought to an end by the church in accordance with the rules of the church.
See: Davies v. Presbyterian Church of Wales  1 All ER 705 (HL).
From the Applicant’s evidence there was nothing suggesting that the parties intended to create a legally binding contract of employment when the Respondent was appointed to pastor the Malkerns church.
See:- The Alliance Church in Swaziland v. Judge Kenneth Nkambule N.O. and Meshack Zwane case No. 1936/2004 (H.C.).
The stipend that the Respondent received was merely a means to support him to carry out his calling, it was not payment for work or services rendered to the Applicant.
 In this case there was so much emphasis placed on the assertion that the Respondent resigned and he was therefore an employee of the Applicant. The Respondent only resigned as a member of the Church Board of the Applicant. (See letter on page 18 of Applicant’s Bundle). He continued to be the pastor of the Malkerns branch of the Applicant until 4th April 2004 when that branch withdrew from the Swaziland region of the Applicant.
 The Applicant’s case in its particulars of claim is based on the letter of 4th April 2004 that the Respondent resigned. It was clearly not correct to say that the Respondent resigned by virtue of this letter. In terms of this letter it was the Malkerns church that was withdrawing its membership from the Applicant. That letter appears in full as follows:-
“Re:Withdrawal from Swaziland Region
We, the undersigned, on behalf of the Malkerns Swedish Free church hereby tender our resignation from membership of the Swedish Free Church Swaziland Region.
Kindly also be informed that the decision relinquishing our membership has been taken by the church members in collaboration with the local pastor, pastor S.J. Manana. We have resolved that the decision is with effect from 4 April 2004.
Thanking you in advance for your understanding and flexibility in this decision. May the Lord God bless you richly as you prepare for Easter Services.
Yours in Christ.”
The letter is signed by three people, the chairperson, the pastor (the Respondent) and the secretary. It was clearly not the Respondent’s resignation letter, but it was a letter of withdrawal of membership by the Malkerns church from the Applicant.
 It became clear to the Court from this evidence that the Respondent was being sued in his capacity as the pastor of the Malkerns church and not in his personal capacity. The Court will not however take this into account against the Applicant as this issue was not addressed by the parties.
 In terms of the principles formulated in the leading case of Gascoyne v. Paul & Hunter, 1917 TPD 170, at the close of the case for the plaintiff, the question which arises for the consideration of the Court is, is there evidence upon which a reasonable man might find for the plaintiff. It is the judgement of the Court that in the present case, having regard to the evidence led by the plaintiff there is no evidence upon which a reasonable man might find for the Applicant, the Applicant having failed to show that there was an employer/employee relationship between the parties.
 A Courtmay grant absolution from the instance at the close of the plaintiff’s case if the plaintiff has failed to establish an essential element of his claim even though the defendant could have succeeded on exception or by way of a special plea had the issue been raised by either procedure. The fact that an exception was not taken or that a special plea was not taken or that a special plea was not filed can affect only the question of costs.
See:- Herbstein and Van Winsen: The Civil Practice
Of the Supreme Court of South Africa 4th edition
(Juta & Co Ltd) p. 683.
 The Court will not make an order against the Respondent in this case however as it transpired that both parties were influenced by the judgement of the High Court by the late Nkambule J which has since been superceded by the High Court judgement delivered on 23rd March, 2007 in the matter between The Alliance Church In Swaziland v Judge Kenneth Nkambule N.O. and Meshack Zwane civil case No. 1936/2004.
 Taking into account all the foregoing observations and also all the circumstances of this case the Court will make the following order:
a) The application for absolution from the instance is granted.
b) No costs order is made.
The members are in agreement.
JUDGE OF THE INDUSTRIAL COURT