Namibia: Protecting the Blinded

It is a strange world that we live in. Stranger though, if you believe as Jehovah’s Witnesses do, that “the whole world is lying in the power of the wicked one.” (1 John 5:19) Why so? If the wicked one is the Devil, and Jehovah’s Witnesses are followers of the true God, surely the Devil would do all that he can, using his worldly power, to harm Jehovah’s Witnesses. But is that the case? Let’s look at a recent court case in Namibia.

On the 10th of February, 2017, the Labour Court in Namibia heard an Appeal by the Christian Congregation of Jehovah’s Witnesses of Namibia (Jehovah’s Witnesses) against a decision by the Social Security Commission (SSC), a government agency that oversees the rights of employers and employees in Namibia, refusing to de-register the Jehovah’s Witnesses’ organization as an employer.


Note: If you do not have the time or patience to read this entire article, feel free to skip to the sections in bold to obtain the meat of the judgments made in this appeal by the Jehovah’s Witnesses and/or read the Summary at the end of this article.


Background:

In Namibia, all employers are to be registered as per the Social Securities Act (SS Act), Act 34 of 1994. As per the SS Act, the appellant registered as an employer. However, in 2012, the appellant awakened to the idea and conveyed to the SSC that it believes that the members of the Worldwide Order of Special Full-Time Servants of Jehovah’s Witnesses (the Order) in Namibia are not employees of the Jehovah’s Witnesses and as a result the Jehovah’s Witnesses cannot be regarded as an employer in terms of the SS Act. More specifically, on the 20th of May, 2014, the Jehovah’s Witnesses asked the SSC whether it could be de-registered as an employer in terms of the SS Act as it did not consider itself to be an employer in respect of such a definition.

On the 16th June, 2014, the SSC replied to the Jehovah’s Witnesses’ request by confirming that the Jehovah’s Witnesses is considered an employer in terms of the SS Act and consequently should be registered with the Employees’ Compensation Fund established by the Employees’ Compensation Act, 1941, as well as having the Order register its members with the Maternity, Sick Leave and Death Benefit established by the SS Act.

In full opposition to the response of the SSC, the Jehovah’s Witnesses sent another letter on the 16th January, 2015, requesting reasons for the SSC’s conclusion. In response, the SSC lodged an investigation into the matter including
conducting interviews with the members of the Order at the Jehovah’s Witnesses’ premises, on the 19th October, 2015, to establish the type of relationship between them.

The SSC released its decision on the 1st March, 2016, in which it confirmed its advisory opinion to the appellant. It is on this premise that the Jehovah’s Witnesses approached this court to grant a declaratory order that neither the Jehovah’s Witnesses nor the Order can be regarded as an ‘employer’ and consequently should order the SSC to de-register the appellant as an employer under the Act as well as the members of the Order.

This case, the first of its kind, produces many intertwining issues which include:

  1. Whether the court had jurisdiction to hear the matter.
  2. Whether the appeal noted was proper before the court.
  3. Whether there is an employer-employee relationship between the Jehovah’s Witnesses and the members of the Order.
  4. Whether the SSC had the power to de-register the Jehovah’s Witnesses as well as the members of the Order in terms of the SS Act.

Had the Court jurisdiction to  hear the matter?

Jurisdiction refers to the competency of a court to hear and determine a matter. If jurisdiction is not established, a court lacks the power to make a competent order in a matter.

Section 117 of the Labour Act confers exclusive jurisdiction on the Labour Court to hear inter alia ‘all matters necessary or incidental to its functions under the Act concerning any labour matter, whether or not governed by the provisions of this Act, any other law or the common law.’ In other words, the labour court will have jurisdiction in any matter if any law
confers jurisdiction on such court.

In this matter, the appeal was noted in terms of section 45 of the SS Act which holds that:

Any person aggrieved by any decision of the Commission taken in the performance of the Commission’s functions in terms of this Act may, within a period of 60 days from the date upon which he or she was notified of such decision, appeal by notice in the prescribed form against such decision to the Labour Court established by section 15(1)(a) of the Labour Act…’

Accordingly, the SS Act specifically section 45 thereof confers competency on the Labour Court to hear and determine the matter. Therefore, the Labour Court had the necessary jurisdiction to adjudicate over the matter.

Was the appeal noted proper before the court?

In the SSC’s listed grounds of opposition, it noted that the appeal filed by the Jehovah’s Witnesses was not proper as it failed to complete Form 11 as contemplated in Rule 17(2)(a) of the Rules of the Labour Court.

In response, the Jehovah’s Witnesses explained that there was no ‘prescribed form’ when appealing a decision of the SSC in terms of section 45 of the SS Act. Further, the Jehovah’s Witnesses noted that section 45(3) of the SS Act states that an appeal should be dealt with as if it is an appeal from the District Labour Court. Due to the fact that the District Labour Court is no more, reference to this court cannot be made and should be treated as if it never existed (pro non scripto).

Furthermore, the Jehovah’s Witnesses stressed that the appeal as submitted should be understood in the ‘wider’ sense i.e. in the sense that the SSC’s decision was solely based on the investigations carried out by its office and failed to consider a
recommendation from an independent decision maker and in addition followed an adversarial process.

As discussed above, any aggrieved person may lodge an appeal to the labour court in the prescribed form. Unfortunately, the SS Act does not set out a certain form which the appeal should take, however section 45(3) does state that:

‘An appeal to the Labour Court in terms of this section shall be subject to the provisions of the Labour Act and its regulations and such appeal shall, for the purposes of that Act, be deemed to be an appeal from a district labour court established by section 15(1)(b) of that Act.’

As a result, the appeal noted must comply with the form prescribed for appeals as set out in the Labour Act including the Rules of court and its regulations. The problem with this sub-section as quoted above is that the district labour court is no
longer operational, so how should the appeal be noted in terms of legislation which no longer exists?

The SSC suggested that such appeal should be noted in terms of the new Labour Act and its Rules. In other words, the Labour Act states that a party wishing to note an appeal in terms of section 86, should do so in accordance with the Rules of the Labour Court. The Labour Court Rules stipulates that a party appealing may do so if its against a decision by the Labour Commissioner, or a compliance order issued in terms of section 126 of the Labour Act or an arbitration award issued in terms of section 89 of the Labour Act; and such appeals should comply with Form 11, setting out concisely and distinctly which part of the decision or order is appealed against and the grounds they are relying on.

Furthermore, the Rules state that one must be cognisant of the Rules of Conciliation and Arbitration before the Labour Commissioner. In such terms, an appeal must be noted on a Form LC 41 outlining whether the judgment is appealed in part or wholly, the point of law or fact appealed against if it concerns a breach of section 7(1)(a) of the Labour Act or just the point of law appealed against if the appeal relates to another dispute and lastly, the grounds upon which the appeal lies.

It is clear that neither the SS Act nor the present Labour Act outlines a specific form which an appeal should take when it is done in terms of another Act of Parliament. However, the SS Act does state that an appeal noted in terms of the SS Act should be done in accordance with the prescribed forms as outlined in the Labour Act, that being the repealed Labour Act.

To repeal a law means that there is an ‘annulment or abrogation of a previously existing statute by the enactment of a later law that revokes the former law’. Accordingly, if such Act has been repealed, then all its provisions have no force or effect and as a result cannot be applied. Accordingly, the legislature in these circumstances had intended that one look to the law replacing it and how it deals with appeals.

In light of that fact, the Jehovah’s Witnesses should have noted their appeal on both a Form 11 and Form LC 41 in order to have been proper before the labour court. The Jehovah’s Witnesses’ appeal so noted was not in terms of the Labour Act and its Rules including the Rules of Conciliation and Arbitration and was not found to be proper before the court.

Although the Court found that the appeal by the Jehovah’s Witnesses was not found to be proper before the court, and therefore dismissed the appeal, the court decided to adjudicate the merits of the case as though it had not been dismissed. In other words, if the appeal hadn’t been dismissed, would the Jehovah’s Witnesses have had a fighting chance? Read on.

Is there an employer-employee relationship between the Jehovah’s Witnesses and the members of the Order?

The Law on who are Employees

The concept of who is an employee has been defined by many statutes, those of relevance have been quoted below.

The Labour Act defines an employee as:

‘an individual, other than an independent contractor, who –
(a) works for another person and who receives, or is entitled to receive, remuneration for that work; or
(b) in any manner assists in carrying on or conducting the business of an employer;’

The Labour Amendment Act stipulates that:

‘For the purposes of this Act or any other employment law, until the contrary is proved, an individual who works for or renders services to any other person, is presumed to be an employee of that other person, regardless of the form of the contract or the designation of the individual, if any one or more of the following factors is present:

(a) the manner in which the individual works is subject to the control or direction of that other person;

(b) the individual’s hours of work are subject to the control or direction of that other person;

(c) in the case of an individual who works for an organisation, the individual’s work forms an integral part of the organisation;

(d) the individual has worked for that other person for an average of at least 20 hours per month over the past three months;

(e) the individual is economically dependent on that person for whom he or she works or renders services;

(f) the individual is provided with tools of trade or work equipment by that other person;

(g) the individual only works for or renders services to that other person; or

(h) any other prescribed factor.’

An employee in terms of the SS Act means:

‘any person younger than 65 years, who –

(a) is employed by or working for any employer; or

(b) in any manner assists in the carrying on or the conducting of the business of an employer,

for more than two days in any week, and who is receiving or is entitled to receive any remuneration in respect thereof, and includes, in the case of an employer who carries on or conducts business mainly within Namibia, any such natural person so employed by, or working for, such employer outside Namibia or assisting such employer in the carrying on or conducting of such business outside Namibia, if such person is a Namibian citizen or lawfully admitted to Namibia for permanent residence therein, and “employed” and “employment” shall have corresponding meanings;’

The Affirmative Action (Employment) Act defines an employee as ‘defined in section 1 of the Labour Act, 1992…’ Accordingly, the old Labour Act defines an employee as:

‘any natural person-

(a) who is employed by, or working for, any employer and who is receiving, or entitled to receive, any remuneration; or

(b) who in any manner assists in the carrying on or the conducting of the business of an employer,’

The Common-law describes an employee as a locatio conductio operarum (the hire of services). Accordingly, Parker in his book Labour Law in Namibia, sums up the position of an employee in the common-law accurately by stating that

‘the servant in a contract of service is under the orders of the master to render his personal service upon the master’s personal command. The service that is to be rendered is, therefore, subject to the orders and decisions of the master, and the servant is subordinate to the disposition of the master. He is, therefore, obliged to obey the lawful commands or instructions of the master who has the right of supervising and controlling him by prescribing to him what work he has to do, as well as the manner in which it has to be done.’

These laws all share common features, namely, an employee is someone who renders a service to another and such service rendered assists such person or entity in conducting or carrying on his/her/its business; for a stipulated or agreed
remuneration.

The labour court engages in a balancing act of factors against one another in order to determine which carry more weight and where a dominant impression of an employment relationship is created, the court rules accordingly. The facts of each case considering modern employment practices should be the compass directing which test or tests have relevance in the matter.

The Law on who are Employers

The concept of who are employers have been defined by many statutes, those of relevance have been quoted below.

Section 1 of the Labour Act defines an employer as:

‘…any person, including the State who –

a) Employs, or provides work for, an individual and who remunerates or expressly or tacitly undertakes to remunerate that individual;

b) Permits an individual to assist that person in any manner in the carrying on or conducting that person’s business; …’

An employer for the purposes of this Act includes a natural person or legal person or the State.

Section 1 of the SS Act defines an employer as:

‘…any person, including the State who –

a) employs, or provides work for, any person and who remunerates or expressly or tacitly undertakes to remunerate that person;

b) who permits any person to assist him or her in any manner in the carrying on, or conducting of, his or her business, …’

Section 1 of the Affirmative Action (Employment) Act defines an employer as ‘defined in section 1 of the Labour Act, 1992…’ The old Labour Act defines an employer as:

‘…any person, including the State who –

a) employs, or provides work for, any person and who remunerates or expressly or tacitly undertakes to remunerate him or her;

b) who permits an individual to assist him or her in any manner in the carrying on, or conducting of, his or her business; …’

At common law an employer, also known as a conductor operarum, is ‘any person – natural or legal – who has entered into a contract of employment with a natural person who has contracted to render his personal service to this other person’.

Such laws all share commonalities in defining the concept of an employer. In other words, all laws refer to someone or an entity who employs someone to render a service to him/her or it in order for him/her or it to carry on or conduct his/her or its business and in return such person is remunerated therefore.

The Employment Relationship

In addition to noting who is an employee and an employer, it is equally important to look at the relationship between the parties to establish whether or not it can be classified as one of employment.

‘A contract of employment is an agreement between two parties who have the legal capacity to enter into such agreement whereby one of the parties (the employee) agrees to render personal service to the other party (the employer) for an indefinite or definite period in return for an ascertainable wage or other remuneration. The agreement also entitles the
employer, among other things, to determine what the employee’s personal service will be, to generally supervise the employee when performing his personal service, and to generally control the manner in which the employee discharges such personal service.’

O’Linn, J as he then was stated in the case of Paxton v Namib Rand Desert Trails (Pty) Ltd that there is no requirement in Namibian law for contracts of employment to be reduced to writing unlike other agreements. The essential requirements for a contract of employment to exist, include:

  1. an agreement;
  2. parties to the agreement;
  3. an undertaking by the employee to perform a service for the employer;
  4. such service be rendered for an indefinite or definite period of time;
  5. an undertaking by the employer to remunerate the employee for the service so rendered; and
  6. the right of the employer to assign tasks to the employee and supervise and control how the employee performs his/her service.

If there is a dispute regarding whether a contract of employment exists between the parties, reference can also be made to the written agreement entered into between the parties. However, where there is no written agreement, the court finds itself in a position to determine, from the circumstances the parties find themselves in, whether an employment relationship exists or not. Accordingly, the court must assess whether the above listed elements are present or not to come to a well-reasoned decision.

Parties and their Employment contracts

The normal principles regarding the law of contract should be noted here. As stated above, contracts of employment need not be in writing in terms of Namibian law. As long as it can be proven that there are two parties who freely entered into the agreement on mutually acceptable terms, an agreement exists. Many a times, parties never reduce their agreement to writing and there is a dispute regarding whether a valid contract, if any, came into being. Where no written agreement exists between the parties, the ‘court may hold a tacit contract has been established where, by a process of inference, it concludes that the most plausible probable conclusion from all the relevant proved facts and circumstances is that contract came into existence.’

In the circumstances of this case, a contract of employment would need to have been proven to exist between the Jehovah’s Witnesses as well as the members of the Order. It is common cause between the parties that the SSC and its members never entered into written contracts of employment. The members of the Jehovah’s Witness do however complete an application form to become a member of the Order in order to serve God in a full-time capacity. Once an applicant is accepted as part of the Order, he/she will need to take a vow – ‘Vow of Obedience and Poverty for one serving as a regular member of the Worldwide Order of Special Full-Time Servants of Jehovah’s Witnesses’ (the ‘Vow’).

This vow is merely indicative of the member accepting that he/she is prepared to live a modest lifestyle as traditionally established by the Order as well as performing any tasks designated to him/her by the Order. In addition, the vow makes provision that a member should abstain from gaining outside employment and any remuneration received should be given to the local organisation of the Order. The vow therefore results in a ‘rule book’ by which the member lives his/her life.

The Jehovah’s Witnesses argue on this point that by reading the memorandum of association as well as the articles of association of the Jehovah’s Witnesses, one can draw the conclusion that the Jehovah’s Witnesses is not a ‘business’ in the ordinary sense of the word, but rather concerns itself with the teachings and preaching of Jehovah/Jesus Christ.
Further to that extent, being part of this Order is considered a desire to serve God and not for gaining a monetary reward.

The Jehovah’s Witnesses’ representative drove this point home by relying on the confirmatory affidavits filed by the members of the Order. He argued that it was clear from such affidavits that not one of the members of the Order regard themselves as employees or their relationship with the Jehovah’s Witnesses as one of employment. The SSC, on the otherhand, argued that the relationship established between the Jehovah’s Witnesses and/or the Order and its members is descriptive of an employment relationship considering the compliance with section 128A of the Labour Act as amended and failure by the Jehovah’s Witnesses to rebut these presumptions.

The court agreed entirely with the SSC’s view.

Although no written agreement existed, the conduct of the parties was reflective of an employment relationship considering the vast compliance with section 128A of the Labour Act as amended. The order for relief sought in prayers 1.1 and 1.2 of the Notice of appeal was therefore rejected.

Accordingly, the SSC believed that the Jehovah’s Witnesses’ failure to contribute towards the various funds including section 21(2) of the SS Act, section 64 of the Employees’ Compensation Act, etc. remained an intentional disregard for the law which aimed to protect those exact members, who they said had a desire to follow in this relationship.

Services rendered

The parties must agree that one party will render a service to another. Such service or services to be rendered must fall within the four corners of the law.

It is also common cause between the parties that the members of the Jehovah’s Witnesses perform religious works in furtherance of the objectives of the church. These ‘works’ or ‘task’s or ‘duties’ performed include translating the bible into various Namibian languages for distribution to persons who so wish to acquire one, free of charge; preparing food for other members of the Order; ensuring that the premises are maintained and kept clean; and other assignments so given.

The Jehovah’s Witnesses, on this point, argued that the services so rendered by the members of the Order are of a religious nature and is considered a lifestyle rather than ‘work’ or a ‘job’. The SSC on the other hand, with the court in agreement, noted that the Jehovah’s Witnesses had subjected itself to the laws of Namibia in that it registered itself as a company not for gain.

The members of the Order do perform services or duties for the Jehovah’s Witnesses which remain integral to the ‘business’ of the Jehovah’s Witnesses and although this was a church being dealt with, they could not simply disregard the law or be automatically exempted due to their religious work.

Remuneration

Grogan states that ‘an employee may be paid wholly in money, wholly in kind or partly in money and partly in kind. In other words, remuneration as such does not only have to sound in money, it may take other forms, for example accommodation, meals, transport, etc.

It remains common between the parties that such members receive an estimated allowance of N$940.00 per month regardless of what services they perform or the number of sick leave taken or whether such person can perform such duties due to old age or infirmity.

However, the Jehovah’s Witnesses argued that such stipend should not be seen as the equivalent of remuneration, that which is received by an employee who renders a service in exchange for a salary or wage. Such stipend could rather be described as assistance to such members for purchasing basic necessities of life, and accordingly, such support is not owed to the members, so they could not claim or demand such assistance. Furthermore, the stipend is non-negotiable and the amount thereof is set regardless of the work or time spent performing their duties.

The Jehovah’s Witnesses’ representative therefore argued that their stipend could not be equated to any compensation received in kind for their services rendered. The SSC on the other hand held the view that each member receives N$940.00 per month, which is paid at the end of the month, in addition to full board and lodging. The court agreed with the view of the SSC in that this allowance as paid by the Jehovah’s Witnesses complies with the definition under section 1 of the Labour Act.

Supervision and Control

It also remains common between the parties that the hours of service remains fixed, between 07h45 to 16h45, Mondays to Fridays. Furthermore, all members are at liberty to terminate their services rendered at any time, although a thirty (30) days’ notice is requested, if possible. And finally, as no provision is made for children in the Order, any members having children will have to leave the Order as soon as their spouse is impregnated.

The Jehovah’s Witnesses’ response to this element as argued by the SSC held that supervision and control cannot be seen as a decisive factor when establishing an employment relationship. Regard must be given to the intention of the parties, which in this instance, is not to create an employment relationship but rather that such members have voluntarily devoted their lives to God and in doing so they carry out ‘his works’ as a lifestyle, not a job. The SSC was in exact opposition of this argument.

As stated above, the level of control and supervision the members have in terms of the hours they work, the notice upon termination of their services, the out-casting of members who fall pregnant, etc. is indicative of an employment relationship. Again, the court cannot turn a blind eye to this factor, although not decisive, is influential. The Jehovah’s Witnesses had laid out the rules of the church and all the members must comply. Just because the Jehovah’s Witnesses is a church which considers its operations to be unique does not by or in itself rule out that the presumptions of section 128 of Amended Labour Act had been rebutted.

The court has given much weight to the intention of the parties, however, the court has however outweighed such intention holding that the Jehovah’s Witnesses through its conduct simply wishes to evade the law and the court should protect those members blinded by the arguments of the Jehovah’s Witnesses. Therefore the relief sought in paragraph 1.1 and 1.2 of the notice of motion is hereby rejected.

Has the SSC the power to de-register the Jehovah’s Witnesses in terms of the SS Act?

The Employment Equity Commission’s (EEC) Decision

On the 28th October 2009, the Jehovah’s Witnesses sent a letter to the EEC requesting that it should not be considered a relevant employer in terms of the Affirmation Action (Employment) Act. Finally, on 31 January 2014, the EEC informed the Jehovah’s Witnesses that based on the advice forwarded by the Office of the Attorney-General, the Jehovah’s Witnesses was not considered a relevant employer in terms of the above-mentioned Act. On the basis of this, the Jehovah’s Witnesses sent a similar letter to the SSC requesting advice on whether the Jehovah’s Witnesses was considered an employer in terms of the SS Act.

The Jehovah’s Witnesses on this point argued that the SSC failed to take into account the EEC’s decision when it made its decision. Further, the Jehovah’s Witnesses note that the definition outlined in the Affirmation Action (Employment) Act and the Labour Act were almost identical to that given in the SS Act. Accordingly, the same conclusion should have been reached by the SSC as the EEC. Also, the Jehovah’s Witnesses noted that the Labour Amendment Act came into force after the EEC took its decision, so the statutory circumstances were the same.

The SSC noted that the EEC’s decision cannot bear reference on the SSC’s decision, because firstly the EEC took the position that the Jehovah’s Witnesses was not an employer considering the Affirmation Action (Employment) Act and not the SS Act. Secondly, the Labour Amendment Act was not yet enforceable when the EEC made its decision and accordingly they never considered the presumptions outlined in section 128A thereof. Accordingly, the statutory circumstances in which the EEC took its decision were very different from that of the SSC’s decision.

This court cannot say with certainty what exactly was taken into account when the EEC made its decision or what the Office of the Attorney-General took into account when delivering its advice to the EEC. However, the phrasing and wording of the response in the letter from the EEC was clear and regard had to be given to it. The letter of the EEC explicitly states that:

‘… your institution is not a relevant employer in terms of the Act referred to above.’

In other words, it appears that the EEC stated that the appellant cannot be a relevant employer for the purposes of the Affirmation Action (Employment) Act. This does not mean that the finding of the EEC is set in stone and the SSC is suppose to follow it. The SSC is an entity of its own, ruled entirely by a different statute and as a result, these entities may see things differently considering the Act and their considerations.

Since the EEC’s decision is not under the microscope of this court, it merely could be used for persuasive value not for direct authority of the Jehovah’s Witnesses’ claim, that being, it’s not an employer.

Social Security in Namibia (SS Act)

The SS Act was promulgated not only to establish the SSC and outline its powers, duties and functions; but also to provide for the payment of maternity leave, sick leave and death benefits to employees as well as to provide for payment of medical benefits and pension benefits to employees, the disadvantaged and unemployed persons.

The SS Act is a vital piece of legislation, especially for employees who are not very well off, as the Act protects employees in the event they fall pregnant, become sick and assist their dependants in case such employee dies, etc.

In order to reap the benefits provided for in terms of the SS Act, every employer and employee working for such employer must be registered. Registration is provided for in terms of section 20 of the SS Act:

‘… every employer shall, in the prescribed manner and within the prescribed period, register –

a) himself or herself with the Commission as an employer; and

b) every employee employed by him or her, as an employee, for the purposes of this Act.

(4) Any person who fails to comply with subsection (1) shall be guilty of an offence.’

Accordingly, this section presupposes that all entities or persons who are employers must register themselves under this Act as well as its employees. Failure to register constitutes an offence, which is punishable by law.

Furthermore, after registration, the employer is obliged to deduct a certain amount, determined in terms of the SS regulations, from the employee’s remuneration. Such contribution made and paid over to the SSC consists of an amount payable by the employee (which is deducted from his/her remuneration) as well as a contribution payable by the employer within a prescribed period. If such employee’s contribution towards the SSC is up to date, including the contributions payable by the employer, such employee is entitled to the benefits as provided for under this Act, subject to the provisions of the Act. Failure to pay over or make such contributions to the SSC, the SSC may institute legal proceedings subject to section 25 of the SS Act.

The SS Act does not provide for de-registration of employers. Accordingly, logic follows that once an employer has been registered under this Act, the obligations created in terms of this Act ceases to exist only where the employer (who is a natural person) dies or becomes insolvent or is sequestrated or is liquidated or wound up (where the employer is a juristic person). Employees may be ‘de-registered’ under that employer in the event they die or their services have been terminated.

The SSC is noted as a statutory body who must operate within the four corners of the SS Act – its powers are outlined in section 9 of the SS Act. The SS Act does not empower the SSC to exempt certain entities from paying the prescribed contributions nor does the Act allow for de-registration.

There is no dispute that the Jehovah’s Witnesses is registered as an employer under the SS Act. The Jehovah’s Witnesses sought a declaratory order from this court compelling the SSC to de-register the Jehovah’s Witnesses as well as the members of the Order under the SS Act.

As a backbone to this contention or relief sought, the Jehovah’s Witnesses explained that they are not ‘employers’ in terms of Namibia’s law and sensibly their registration under the SS Act could not stand. In addition to their standing, the Jehovah’s Witnesses illustrated that their reasoning had legal basis considering that the EEC took a decision that the Jehovah’s Witnesses was not an employer and accordingly the SSC must take the same approach.

The SSC on the other hand examined the Jehovah’s Witnesses’ reasoning as a ploy to try and evade their obligations under the SS Act.

As discussed in detail above, the SSC took into account the EEC’s decision, however, pointed out that the Jehovah’s Witnesses misunderstood the EEC’s decision, in that, the EEC regarded the Jehovah’s Witnesses not as a relevant employer for the purposes of the Affirmation Action (Employment) Act. In other words, the EEC’s decision had no bearing on the SSC’s decision as the EEC made their decision in light of the Affirmation Action (Employment) Act and
not in light of the SS Act.

In terms of the relief sought in paragraphs 1.3 and 1.4 of the notice of motion, the SSC persisted in arguing that the SS Act does not provide for de-registration and accordingly the court cannot give effect to the Jehovah’s Witnesses’ wishes in that respect.

The Jehovah’s Witnesses failed to submit to the court why it registered itself as an employer in the first instance and why after a lengthy period of time considered itself not to be an employer for purposes of the SS Act anymore. In light of the above, the court made the finding that the Jehovah’s Witnesses intended that it be an employer, which intention is drawn from its own conduct, that being when it registered itself under the SS Act as an employer. Furthermore, the court agreed with the SSC’s submission that the Jehovah’s Witnesses was trying to evade its obligations under the SS Act and the labour court could not allow the Jehovah’s Witnesses’ employees to be unprotected in the event they fall ill, become pregnant or die, etc.

Further, the SS Act does not provide for de-registration or exemption of certain entities in respect of the liabilities created in terms thereof. The court cannot therefore create or attribute functions and powers to the SSC, not explicitly provided for in terms of the SS Act or for that matter, any other law. Ordering a declaration of de-registration of the Jehovah’s Witnesses and the members of the Order would be an impossibility as such act by the SSC would be ultra vires. Accordingly, the court dismissed prayers 1.3 and 1.4 of the relief sought under the notice of motion.

Constitutional argument raised by appellant

Interestingly enough, the Jehovah’s Witnesses raised a constitutional argument in that an interference by the court of imputing an employment relationship onto the parties is in clear violation of the right to freedom of religion and association. The Jehovah’s Witnesses stated that

‘The application of the Social Security Act to the Jehovah’s Witnesses and to the members of the Worldwide Order in Namibia would change the entire relationship between members of the religious organization of Jehovah’s Witnesses from one governed entirely by religious and spiritual considerations to one regulated by secular standards, which are contrary to their beliefs… The Jehovah’s Witnesses and the members of the Worldwide Order cannot be forced to recognize a secular, commercial motive and relationship that they do not have and that are contrary to their core beliefs. Such an imposition would violate the right to church autonomy, which is a fundamental element of the freedom of religion. Therefore, this would run contrary
to the approach set out above and would constitute a violation of article 21(1)(c) of the Constitution of the Republic of Namibia.’

The SSC articulated that the Jehovah’s Witnesses is a registered section 21 company and accordingly is incorporated under the laws of Namibia and should not be afforded a ‘get out of jail – free card’ just because it is doing the work of God.

Conclusion

The Jehovah’s Witnesses cannot pick and choose which laws should apply to them and which not. The labour court found an employment relationship evident between the parties for the reasons stated above.


Summary of the Court Case: Jehovah’s Witnesses v Social Security Commission

  • The Labour Court had jurisdiction to hear the case as to whether Jehovah’s Witnesses are or are not an employer to the members of the Worldwide Order of Full-time Servants of Jehovah’s Witnesses.
  • The Jehovah’s Witnesses appeal was not found to be proper, and on that fact alone was dismissed. However, the court decided to hear the case all the same as if it was not dismissed to determine if the Jehovah’s Witnesses’ arguments were valid.
  • The SSC believed that the Jehovah’s Witnesses’ failure to contribute towards the various funds to support employees who got sick, pregnant or died showed an intentional disregard for the law which aimed to protect those exact members, who they said had a desire to follow in such a flippant relationship.
  • The members of the Worldwide Order of Full-time Servants of Jehovah’s Witnesses do perform services or duties for the Jehovah’s Witnesses which remain integral to the ‘business’ of the Jehovah’s Witnesses and although this was a church being dealt with, they could not simply disregard the law or be automatically exempted due to their religious work.
  • The Jehovah’s Witnesses’ representative argued that the Jehovah’s Witnesses’ members’ stipend could not be equated to any compensation received in kind for their services rendered. The SSC on the other hand held the view that each member receives N$940.00 per month, which is paid at the end of the month, in addition to full board and lodging. The court agreed with the view of the SSC in that this allowance as paid by the Jehovah’s Witnesses complies with the definition under section 1 of the Labour Act. In other words, they were being compensated for services rendered.
  • The court held the view that the Jehovah’s Witnesses, through its conduct, simply wished to evade the law and the court moved to protect the members blinded by the arguments put forth by the religion.
  • The SS Act does not empower the SSC to exempt certain entities from paying the prescribed contributions nor does the Act allow for de-registration.
  • The SSC examined the Jehovah’s Witnesses’ reasoning as a ploy to try and evade their obligations under the SS Act.
  • The Jehovah’s Witnesses failed to submit to the court why it registered itself as an employer in the first instance and why after a lengthy period of time considered itself not to be an employer for purposes of the SS Act anymore.
  • The court agreed with the SSC’s submission that the Jehovah’s Witnesses was trying to evade its obligations under the SS Act and the labour court could not allow the Jehovah’s Witnesses’ employees to be unprotected in the event they fall ill, become pregnant or die, etc.
  • The SSC articulated that the Jehovah’s Witnesses is a registered section 21 company and accordingly is incorporated under the laws of Namibia and should not be afforded a ‘get out of jail – free card’ just because it is doing the work of God.
  • The Jehovah’s Witnesses cannot pick and choose which laws should apply to them and which not.

Click here to read the full court judgement.


If the whole world is lying in the power of the Wicked One, why is the Devil using his worldy powers to protect Jehovah’s Witnesses should they fall ill, get pregnant or die? Why would the Devil be interested in the welfare of God’s people? It’s a sobering question. As usual, the members blindly follow their leaders, implicitly trusting them, never thinking about what the future may hold. The argument that “the end is so close” needs to be weighted against the fact that such a statement has been said for over 100 years. Jehovah’s Witnesses would do well to take into consideration two scriptures: Psalms 146:3 and Proverbs 6:6-11.