The Bishop of the River of Hippopotamuses and the Archbishop of Cape Town

In a guest post, David Scrooby, an attorney of the Republic of South Africa, discusses a highly unusual recent case – the first of its kind in over 150 years… 

Introduction

The case of Bishop Mlibo Ngewu v The Anglican Church of Southern Africa and Ten Others [2016] ZAKZPHC 88 is about the first canonical trial of a Bishop in Southern Africa since that of Bishop Colenso in 1864. The judgment of Her Ladyship Sharmaine Balton J, handed down in the KwaZulu-Natal High Court in Pietermaritzburg on 6 October 2016, may not have the impact of that of the Privy Council in 1865 (to which Colenso appealed) or the canonical depth of that of the South African Labour Court in Cape Town in Church of the Province of Southern Africa, Diocese of Cape Town v Commission for Conciliation, Mediation and Arbitration and Others [2001] ZALC 141. However, the judgment is important in a number of respects. Continue reading

Dismissing a minister of religion: Celestial Church of Christ

In a recent hearing in the Chancery Division,  the employment status of a minister of religion arose once again…

…in this case, coloured by a factional dispute within the congregation. The Court also addressed the interesting question of whether or not a charity could maintain an action in tort for passing-off, even though it was not engaged in trading.

Background

The facts in Celestial Church of Christ, Edward Street Parish (A Charity) v Lawson [2017] EWHC 97 (Ch) were as follows. The Celestial Church of Christ was founded by the Revd Samuel Oshoffa in the Republic of Benin in 1947 and incorporated in Nigeria in 1958; its present written constitution dates from 1980 [2]. Continue reading

Law and religion round-up – 28th August

Another fairly quiet week in the UK

…although our thoughts are with victims and survivors of Wednesday’s earthquake in Umbria, Lazio and Le Marche, about 105 km north-east of Rome, which was centred on Amatrice and Accumoli. A mass funeral took place on Saturday for 35 of the 290 people killed in the 6.2-magnitude quake; in Scheggino, a few kilometres up the valley from the earthquake’s epicentre, the choir of St Mary’s, Maldon (UK) sang Choral Evensong, including a setting of the Pie Jesu specially composed over by James Davy (Director of Choristers, Chelmsford Cathedral) in remembrance of the victims of the earthquake.

The “British Bill of Rights” saga grinds on

On Monday, Justice Secretary Liz Truss told presenter Nick Robinson on the Today programme that the Government had not ditched plans to replace the Human Rights Act with a British Bill of Rights: Continue reading

Sacking clergy the South African way: Fortuin v Church of Christ

Introduction

In Hosanna-Tabor Evangelical Lutheran Church and School v EEOC 565 US ____ (2012) the US Supreme Court ruled that there is a “ministerial exception” grounded in the First Amendment that precludes the application of employment protection legislation to claims about the employment relationship between a religious institution and its clergy:

“Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause” [p 3 of the slip opinion].

As we suggested in a recent post, Employment status of clergy: goodbye to the ‘Servant of God’?, the situation in the UK has been more nuanced. Now, along comes a South African case that takes a very different view of clergy employment rights from that espoused by SCOTUS. Continue reading

Law and religion round-up – 15th May

Not much domestic news this week apart from the continuing saga of the British Bill of Rights, but quite a lot going on elsewhere… 

A British Bill of Rights? Peers say “think again”

On Monday, the EU Justice Sub-Committee of the House of Lords, chaired by Baroness Helena Kennedy QC, published a report on the Government’s proposals to repeal the Human Rights Act and replace it with a new Bill of Rights – and said that there was a forceful case for a Government rethink. It pointed out that:

“The proposals the Secretary of State outlined did not appear to depart significantly from the Human Rights Act—we note in particular that all the rights contained within the ECHR are likely to be affirmed in any British Bill of Rights. His evidence left us unsure why a British Bill of Rights was really necessary.

If a Bill of Rights is not intended to change significantly the protection of human rights in the UK, we recommend the Government give careful thought before proceeding with this policy. As the former Lord Chief Justice Rt Hon Lord Woolf CH told us, the repeal of the Human Rights Act and its replacement by a Bill of Rights would be a constitutional change of the greatest significance” [Summary of Conclusions and Recommendations 2 & 3: our emphasis]. Continue reading

Law and religion round-up – 20th March

Cathedrals in the Budget, Baptists and same-sex weddings, another glitch for “Vatileaks II” – and some sensible thoughts on church & state…

Pemberton v Inwood

Jeremy Pemberton announced that he had been given leave to appeal against the decision of the Employment Tribunal in his discrimination claim. He had been prevented from taking up a new post as Chaplaincy and Bereavement Manage with Sherwood Forest Hospitals NHS Trust after the Bishop refused to license him because he had married his partner Laurence Cunnington. A two-day hearing is anticipated later in the year. We posted about the ET decision here.

Sacked magistrate to sue Continue reading

Law and religion round-up – 6th December

The round-up gets longer and longer: some interesting case-law, developments in both parts of Ireland, organ donation in Wales, the Lord’s Prayer again – and a sad end to yet another clerical reputation…

Just how far does anti-discrimination reach? 

Can a corporate body which is a member of an LLP claim to have suffered detriment because of the protected characteristic of an individual who happened to be its principal shareholder and member? An Employment Tribunal said “yes”; and Langstaff J upheld that ruling, dismissing the argument that because only an individual can have a protected characteristic, a corporate body cannot raise a discrimination claim under the Equality Act 2010.

In EAD Solicitors LLP & Ors v Abrams (Age Discrimination) [2015] UKEAT 0054 15 0506 the issue, in essence, was whether or not a corporate body could bring a claim for direct discrimination in respect of detrimental treatment that it claimed to have suffered because of the protected characteristic of someone with whom it was associated. In this particular case the protected characteristic was age; but Langstaff J stated that the issue was a general proposition that did not turn on the particular facts of the case. Continue reading