Die regsposisie van die Gereformeerde predikant in the godsdiensneutrale staat van Suid-Afrika : 'n Gereformeerd-kerkregtelike studie

Abstract

The variety of contradictory approaches to the legal position of ministers of religion in South Africa as are apparent from court findings, theological discourse and church practice are indicative of a lack of clarity, and even confusion, regarding a matter that is of cardinal importance to the orderly functioning of the church as the body of Christ on earth. From this confusion in constitutional law as well as in the church, the topicality - actually, the undeniable necessity - of research into the legal position of ministers of religion has become quite apparent. The topicality of the research is indicated in Chapter 1 by reference to court cases (before and after 1996), theological discourse and church practice. The central research question of the study is formulated as follows: What is the legal position of Reformed ministers in South Africa - a religiously neutral state - considered on the basis of Reformed Church polity and against the background of the church-state context in South Africa after 1996? The central theoretical argument of the study is that the legal position of a minister of religion is a unique kind of relationship (alius generis), a relationship / association / connection / obligation that has to be regulated by the church as a unique community (sui generis) in the world. In South Africa courts should recognise and deem the legal position of Reformed ministers to be an internal church matter that falls outside the sphere of regulation of a religiously neutral state's labour legislation. This recognition should be based on the right of the church to define itself and its offices. In Chapter 2 the current confusion in South Africa regarding the legal position of ministers of religion is investigated further. Various points of view are discussed, for example that ministers are 'employees' of churches (church councils), that a minister's legal position has to be regarded as that of an independent contractor and the point of view that ministers are connected to the church by a unique relationship. The way in which the legal position of ministers of the Gospel is regarded in Germany is discussed in Chapter 3. The focus is inter alia on the meaning of religious freedom, neutrality of the state, constitutional provisions regarding the relationship between the state and the church, and the way in which the legal position of ministers of religion is regulated in the light of the German state-church context. The way in which the Reformed Churches in South Africa define and regulate the legal position of Reformed ministers as an internal church matter is investigated in Chapter 4. In this chapter the focus is on the following aspects: the order of the church that applies to the legal position of ministers in terms of Reformed church polity, as expressed in the church order, the meaning of a minister's relationship with the local church as regards his legal position, and the unique nature of a minister's legal position in terms of the relevant provisions of the church ordinances. The findings, recommendations and summary conclusion of the study are given in Chapter 5. The summary conclusion of the study is that an overall impression of the regulation of ministers' positions by the Reformed Churches in South Africa offers the following perspective: the Lord places the church and its ministers in a unique relationship. This relationship must be regulated by means of the church because the church ordinances inherently make provision for the regulation of this unique relationship. Regarded within the broad context of this study, the state may not exercise control over the legal position of ministers of religion because these ministers fulfil a religiously determined command and task.