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[2011] ZAGPJHC 93
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Mbombo v Church of the Province of Southern Africa, Diocese of Highveld (49468/2010) [2011] ZAGPJHC 93 (19 August 2011)
REPORTABLE
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO
:
49468/2010
DATE:19/08/2011
In the matter between:
LUVUYO,
GEORGE
MBOMBO
...........................................................
Applicant
and
THE CHURCH OF THE PROVINCE OF
SOUTHERN
AFRICA, DIOCESE OF HIGHVELD
..........................
Respondent
J U D G M E N T
KGOMO, J
:
INTRODUCTION
[1] The Applicant seeks an order
reviewing and setting aside the decision of the Respondent to relieve
him of his duties as a Priest
in the Diocese of Highveld of the
Church of the Province of Southern Africa (Anglican Church in South
Africa).
[2] The grounds of the review
are that the Respondent committed procedural irregularities and that
the decision arrived at is thus
invalid. It seeks a further order
that the matter be remitted back to the Respondent to be heard
de
novo
.
[3] The Respondent is opposing the application.
THE PARTIES
[4] The Applicant, LUVUYO GEORGE
MBOMBO, is an adult male ordained priest who formerly rendered
pastoral services under the Respondent
at the Diocese of Highveld,
stationed at Benoni immediately prior to the institution of these
proceedings and who hails from 205
Summersands, 41 Sol Harris
Crescent, North Beach, KwaZulu-Natal.
[5] The Respondent, the Diocese of Highveld in the Church of the
Province of Southern Africa, the commonly called Anglican Church,
is
a unit of the Church under Bishop Bennerman having its principal seat
relevant to the issues in this case at 101 Woburn Avenue,
Benoni,
Gauteng.
ISSUES TO BE DECIDED
[6] It is accepted by both
parties that in order to relieve the Applicant of his duties in the
Diocese the Constitution and/or
Canons of the Church are applicable.
The issue is whether the Respondent followed the correct and
applicable procedures when doing
so;
Put differently
,
The question is whether Canon 25(6) or Canons 37 and 39 or Canon
25(6) read with Canons 37 and 39 should have been applied.
THE PARTIES’ STAND POINTS
[7] The Applicant contends that the Respondent acted in terms of
Canons 37 and 39, alternatively, Canon 25(6) read with Canons
37 and
39. The Applicant further contends that whether the Respondent relies
on Canon 25(6) or not, its action is an administrative
act which
should conform to the prescripts of the Constitution of the Republic
of South Africa 1996 (Act 106 of 1996), as amended
(the Constitution)
and the rules of natural justice. It is thus the Applicant’s
case that the Respondent flouted its own
procedures in terms of its
Constitution and Canons and did not act in compliance or with due
regard to the prescripts and spirit
of the Constitution of the
Republic of South Africa.
[8] The Respondent contends that it correctly and procedurally acted
in terms of Canon 25(6) and that Canon 37 and 39 were not
of
application or applicable.
CHRONOLOGY AND HISTORY OF EVENTS
[9] At the time events leading
to the ruling by the Respondent that precipitated this application
unfolded the Applicant was the
priest-in-charge at the Parish of the
Holy Name at Thembisa East within the Diocese of Highveld of the
Anglican Church. He was
an ordained priest of the Church of the
Province of Southern Africa (Anglican Church) for the past 36 years
from whom he received
financial support in the form of a monthly
stipend as well as the use of a house and a motor vehicle. He has
been stationed at
the Thembisa East Church under Bishop Bannermann
for the past six (6) years.
[10] During or about December 2009 a dispute arose between the
Applicant and the parishioners of The Holy Name Church in Thembisa.
The parishioners signed a petition directed at Bishop Bannermann and
the Church demanding that the Applicant be removed from the
Thembisa
Church. They alleged among others a breakdown of trust and
confidence in the Applicant, his lack of spiritual leadership
or
direction, lack of pastoral relationship, the use of foul language
and further accusations that the Applicant verbally attacked
certain
members of The Holy Name parish during religious services.
[11] Various meetings took place
between the Applicant and the applicable Bishop’s Chapter
regarding the complaints. The
net results of the meetings was that
it was agreed that an investigation team was to be set up in order to
identify the issues
that were the source of the misunderstanding as
well as try to come up with solutions in order to restore peace
within The Holy
Name parish.
[12] An investigation team was
set up on 14 January 2010 to deal with the allegations. Various
groups or persons from the Church
presented their grievances to the
panel of enquiry. After it all, a recommendation was made by the
investigations team or panel
to the presiding Bishop of the diocese
that due to irrevocable breakdown in relations between the Applicant
and the parishioners,
the Applicant should be removed from the parish
with immediate effect and be offered an alternative parish where he
could continue
with and in his ministry, as long as it was not in the
parish with complaints. It was further recommended that if available
or
possible he could also be installed in a specialised ministry
within the diocese. Should no vacancy be found within the diocese
he
could also be given a calling anywhere within the Republic of South
Africa.
[13] Following the
recommendations, according to the Applicant, the Bishop took a
decision in terms of Canon 25(8) to relieve
the Applicant of his
clerical duties in the diocese. Only subsequent hereto, contrary to
the Bishop’s contention which I
will set out hereunder, the
Applicant and the Bishop tried to manage and mitigate the situation
by trying to find other dioceses
where he could be accommodated
without success.
[14] According to the Bishop,
following up on the recommendations of the investigations team, he
immediately looked around his
diocese, other dioceses and even in the
greater South Africa for a vacancy where the Applicant could be
relocated to without success.
It was only after his failure to so
secure an alternative vacancy all over South Africa that he (Bishop)
decided to relive the
Applicant of his duties.
[15] Nothing was said about any attempts to place the Applicant in a
specialised ministry within the diocese.
[16] Applicant then appealed to the Archbishop of Cape Town who is
the head of the Anglican Church in Southern Africa, including
South
Africa. The appeal failed, hence he called himself to this Court for
assistance.
THE REGULATORY PRESCRIPTS
[17] The parts of the Canons of
the Church as well as our Constitution’s directives that are
applicable to and in this matter
are the following:
[18] Canon 25(6) reads as follows:
“
6.
If the Bishop of the Diocese considers that for pastoral reasons the
work of God in a Pastoral charge demands that there should
be a
change of Incumbent or assistant Curate, the Bishop shall (failing
the consent of the said Incumbent or assistant Curate to
the change)
take counsel with the chapter of the cathedral church, or with the
senate, as the case may be, or if there be no chapter
or senate,
priests of the Diocese, and if the majority of them agree to such a
course, after giving the said cleric an opportunity
to be heard, and
Section 8 of this Canon, the Bishop shall offer the cleric another
ministry in the Diocese stipendiary if the
ministry was stipendiary.
Should there be none in the Diocese, then the Bishop shall seek in
consultation with the cleric another
suitable ministry within the
Province. However, if it appears to the Bishop, either before
embarking on this process or during
the process itself, that the
reason for the need for a change in fact relates mainly or
substantially to matters which could constitute
charges or
accusations in terms of Canon 37(1), then in the absence of any
charge under Canon 37(1), the Bishop shall proceed in
terms of Canon
39
.”
[19] Canon 25(8) correspondingly decrees as follows:
“
8.
If another ministry is not found in the Diocese or within the
Province, then if two thirds of the chapter, senate or priests
agree
that under all circumstances no other ministry should be offered
,
then after giving the clergyman an opportunity to be heard, the
Bishop may, after explanation and pastoral ministration, upon
the
expiration of three months’ notice, revoke the clergyman’s
letters of collation or institution, or his licence,
as the case may
be, without offering another ministry.
”
[20] The latter part of Canon 25(8) deals with the clergyman’s
right and procedure to appeal to the Metropolitan or if the
Bishop
concerned is the Metropolitan, to the Dean of the Province.
[21] Canon 37(4) decrees that –
“
4.
All charges shall be made in writing signed by the presenters,
wherein shall be specified all the particulars of time, place,
and
circumstances, alleged by them, intimation being made of the name and
address of some person to whom all necessary communications
in the
cause shall be made, as the agent of the presenters …
”
[22] According to Canon 37(6)
the charge or accusation shall be entitled “
Articles
of Presentment
”.
In terms of Canon 37(7) the final decision arrived at after the
trial or hearing pursuant to Canon 37 shall be transmitted
to the
Metropolitan or Bishop together with the Articles of Presentment
under cover of a minute of reference and agreement indicating
that
the judgment of the Tribunal over the matters contained in the
Articles of Presentment shall, saving for such rights of appeal
as
may be allowed by the laws of the Church, be held to be final in the
cause. In terms of Canon 37(8) both the accused and the
presenters
may be represented by counsel or representative at their own expense.
[23] Canon 37(9) decrees that no
testimony shall be received at the trial except from witnesses who
should have, before giving
their evidence, made an affirmative answer
to the following question put by the presiding officer at the trial
or hearing:
“
Do
you promise, as in the presence of Almighty God, that you will speak
the truth, the whole truth, and nothing but the truth, whether
in the
declaration which you shall make or in the answers which you are
about to give?
”
[24] Canon 37(15) decrees that
after the sentence has been pronounced in the trial or enquiry, if
within 30 days after sentence
shall have been passed, the President
of the Tribunal come across any new facts which may have a bearing on
the judgment, the latter
shall have the competence to order a
re-hearing of the case. If such new facts come to his knowledge
after the expiry of the 30
days after the date of the handing down of
sentence, the President of the Tribunal shall then refer the matter
to the Diocesan
Bishops, who in turn shall have the power to annul or
modify any such decision.
[25] Canon 37(16) requires the Tribunal to keep a full record of its
proceedings, including the Articles of Presentment, the names
of the
presenters and the accused, the evidence and all retractions together
with the judgment and sentence of the Tribunal or
Court. The record
shall be preserved in the Registry of the Tribunal or Court.
[26] Canon 39 deals with the specifications relating to formal
charges as well as the requisite logistics in relation to the
composition of the Tribunals or Courts.
[27] Canon 39(2)(a) and (b) decrees that –
“
(2)(a)
Subject to Section 4, the Bishop (or in his absence, the
Vicar-General), or receiving the Articles of Presentment under
Canon
37 of Judicial Proceedings must within twenty (20) days constitute a
Board of Preliminary Inquiry. The time periods set out
here and
elsewhere in this Canon must be adhered to, unless there is good
cause not to, in which case the act in question must
be effected as
soon as possible in the circumstances.
(b) The Bishop must, within
seven days of receiving the Articles of Presentment, transmit a copy
of the Articles of Presentment
to the Accused. Should the Accused
wish to deliver a written answer to the Bishop, he must do so within
seven days of receiving
the Articles of Presentment. The Bishop must
send this reply to the Complainant within seven days and advise the
Complainant that
he may respond to the Accused’s reply. Should
the Complainant wish to respond to the Accused’s reply, he/she
must
do so within seven days of receiving the reply.
”
[28] In terms of Canon 39(c) the Board must consist –
“
…
of two priests and a lay person learned in the law (also a
confirmed communicant of the Church of the Province), provided that
should
the charge fall under Canon 37(1)(a) or (b), at least one
person must be a woman.
”
[29] Canon 39(4) provides as follows –
“
(a)
If a charge relates to Canon 37(1)(a) or (b), the Bishop may within
seven days of receiving the Articles of Presentment immediately
suspend the Accused with emoluments.
(b) The Board must in its report decide whether there is a prima
facie case against the Accused, and whether to advise the Bishop
to
confirm any suspension of the Accused under Subsection (a), or if not
already suspended, to suspend him or her.
(c) If the Bishop wishes to
consider suspending the Accused without emoluments after receipt of
the Board’s report, he may
only do so after hearing the Accused
on this and considering all submissions made by or on behalf of the
Accused. Thereafter the
provisions of Section 20 will apply.
”
[30] Canon 39(10) provides that
the judgment of the Tribunal shall be that of the majority of its
members, and all members shall
have the right to state the ground for
their finding. It further decrees that in cases of charges under
Canon 37(1)(a) or (b),
all members of the Tribunal must produce
written reasons for their decisions. Members of the Tribunal may
write joint, concurring
judgments.
APPLICATION OF PRESCRIPTS TO THE FACTS
IN CASU
[31] The applicant contended
that apart from there being no procedural fairness in the processes
adopted, the Respondent also failed
to follow its own Canons, thereby
rendering their decision not only unfair but also
null
and void
. Some of the
manifestations of the above purported irregularities were that he was
not afforded the chance to seek legal representation,
was not allowed
to cross-examine witnesses, incorrect Canons were applied or utilised
during the enquiry that was conducted and
the panel conducting the
enquiry was not properly constituted among others.
[32] Counsel for the Respondent
started arguments on behalf of the latter by quoting emotional
passages from an ecclesiastical authority,
The
Deliberate Church
by
Mark Dever and Paul Alexander the long and short whereof was that
anybody who chooses to lead people spiritually must act in
an
exemplary manner, leading from the front in a manner that is
befitting a man of God.
[33] Emotions aside, the
Respondent’s case was that it acted in accordance with Canon
25, specifically Canons 25(6) and 25(8).
Although the final report
of the Diocese of Highveld titled “
Board
of Preliminary Inquiry Panel
”
dated February 2010, which is the only report by any organ(s) of the
Respondent that dealt with the taking away of the Applicant’s
powers and competencies to serve as a priest specifically mentioned
that the Board of Inquiry was constituted in terms of Canon
39, it
was strongly argued on its behalf that it was a “
slip
of the pen
” and
that the Respondent actually was acting in terms of Canon 25.
[34] It is common cause and our
law that by virtue of the parole evidence rule it is not ordinarily
competent for a person who
is relying on a written document to come
up with verbal extra-documentary interpretations that contradict what
is written in the
document. Nevertheless, I will investigate the
entire course and scope of the Respondent’s actions to
determine whether
its assertion of a
bona
fide
or genuine
mistake can be sustained.
[35] It can be accepted that after the parishioner’s petition
was received, the presiding Bishop did consult with the Applicant
as
well as the relevant Chapter of the Cathedral Church and a decision
was taken to conduct an investigation. The question to be
answered is
: Under which Canon was such an investigation or enquiry conducted?
Applicant contends that it was in terms of Canons
37 and 39,
alternatively Canon 25(6) read with Canons 37 and 39 when regard is
had to the nature and character of the proceedings.
The
Respondent
insists that Canons 37 and 39 never played a part : that it acted in
terms of Canon 25.
[36] Canon 37(1) lists a series
of charges that are of such a serious nature that they deserve to be
referred to a Tribunal constituted
in terms of Canon 39, with or
without a charge sheet or Articles of Presentment as they are called
in the Canons. When one scrutinises
the complaints and/or
allegations that were presented to the investigative team calling
itself the Board of Preliminary Inquiry
Panel which tabled its report
dated February 2010, one can see that the Applicant is accused of
such serious matters as conduct
giving just cause for scandal or
offence (37(1)(e)), violate the Constitution or Canons of the Church
of the Province (37(1)(i)),
evidence gross disobedience (37(1)(j))
and gross neglect of the duties of a priest’s office
(37(1)(k)). These and others,
according to the report and the
chronology of events, came out during the very first investigative
meeting set up to explore and
establish the authenticity of the
complaints which led to the petition that was circulated, calling for
the removal of the Applicant.
The report does not evidence any of the
complainants having taken any oath or affirmation in terms of the
Canons as shown above.
The record equally does not indicate whether
any cross-examination was allowed. Worse still, the report shows that
there were
two distinct sessions : an open session where the
Applicant was present and a closed session where he was excluded.
[37] In terms of the Canons of the Church a three member panel board
of enquiry is authorised or appointed in terms of Canon 39.
The
Bishop appointed three panellists in this instance. The Canons
require that of the three panellists, one of them must be
a lay
communicant with a legal background. According to the Applicant’s
papers, the lay panellist on the panel appointed
to do the
investigations neither has a legal background or legal
qualifications. This was never gainsaid by the Respondent. This
Court thus finds that the panel appointed to do the investigations
was fatally flawed.
[38] In the report itself the
Applicant pertinently brought it to the attention of the
investigative panel that none of the complaints
aired in the open
session were brought to his attention before the panel was
constituted.
[39] In terms of Canon 25(6) which the Respondent purports to
have acted –
“
…
if it appears to the Bishop, either before embarking on this
process or during the process itself that the reason for the need for
a change in fact relates mainly or substantially to matters which
could constitute charges or accusations in terms of 37(1), the
Bishop
shall proceed in terms of Canon 39.
”
[40] As stated above, the individual accusations levelled at the
Applicant by the parishioners fell squarely within the ambit
of the
above quoted part of
Canon 25(6) and they thus called for the
presiding Bishop to invoke Canon 39. The above, coupled with the fact
that the Board of
Preliminary Inquiry Panel understood their process
to have been in terms of Canon 39, renders, in my view, the
Respondent’s
contentions that it acted all the way in terms of
Canon 25 untenable. The above is also consistent with the provisions
of Canon
39(1) which reads as follows:
“
The
Bishop of the Diocese, if he shall see sufficient cause, shall have
the liberty to act without such charge being preferred;
he shall then
at once place the matter in the hands of a Board of Preliminary
Inquiry as defined in the following subsection.
”
[41] The very title of the Board
of Inquiry that conducted the investigations rhymes with the Board as
contemplated under Canon
39. This makes the Applicant’s
contention and submission that the Respondent at all times intended
to act within the provisions
of Canon 39 in conjunction with Canon 37
sound very credible.
[42] The nature of the allegations levelled against the Applicant in
my view called for the Respondent to have invoked Canons
37 and 39. A
charge sheet or Articles of Presentment should have been issued and
served on the Applicant and the matter ventilated
openly and in
keeping with the spirit of the two abovementioned Canons. The
procedural provisions set out in Canon 37 ought to
have been
followed. It is my finding that the Respondent’s failure to do
so is a procedural irregularity that vitiates the
entire proceedings.
The Applicant was not given the right to be heard as required by our
Constitution. It is my further finding
that Canon 25 makes no
provision for the appointment of a Board of Inquiry. That competence
rests with Canon 39.
[43] The recommendations and
conclusions reached and made in the report dated February 2010
constitute a charge and/or an accusation(s).
In terms of Canon
25(6), in the absence of a formal charge, as was the case with the
Applicant here, the Respondent should have
proceeded in terms of
Canon 39 read with Canon 37 once these allegations suffaced
[44] By failing to act likewise the Respondent committed a gross
procedural irregularity in terms of administrative law principles
and
requirements as well as in terms of its own Canons. The above
renders the procedure followed reviewable and the decision arrived
at
stands to be reviewed and set aside.
[45] What complicates the matter
further is what happened on 24 December 2009. On this date, at a
bishop’s meeting attended
by the Applicant, Bishop David
Bannermann and Archdeacon Mpho Masekela, some of the purported
complaints in issue here were discussed.
The status of this meeting
is not clear when the Canons of the Church are considered. However,
it was decided at this meeting
that an investigative team would be
set up. It is clear that the above meeting was not in terms of
Canons 25, 37 or 39. The nature
of the complaints discussed or the
Applicant was confronted with or about fell in my view within the
ambit of Canon 25(6) and thus
called for the procedures in terms of
Canon 39 read with Canon 37, with or without a charge sheet.
[46] In the light of the fact
that the only other investigative team set up subsequent to the above
meeting of 24 December 2009,
was the Board of Preliminary Inquiry the
only inference that can be drawn is that this Investigative Inquiry
Panel which reported
back in February 2010 is the one that was
dealing with the serious accusations that called for the invocation
of Canons 37 and
39.
[47] As seen above the Investigative Inquiry Panel set up did not
comply with the peremptory requirements of the Canons. There
was no
lay person with a legal background, the Applicant was not allowed to
cross-examine his accusers, he was not legally represented
or
represented by any other person of his choice and his fate was
decided on the basis of the unconstitutionally obtained evidence
as
set out above as well as secret evidence that was led in his absence
in that inquiry.
[48] In terms of Canon 39(3) –
“
The
Board shall consider whether there is a
prima facie
case against the Accused, and shall report immediately after reaching
its decision to the Bishop,
who shall decide whether
further proceedings shall be taken or not
…
” (my
emphasis)
My understanding of the above
excerpt from the Canons is that in the circumstances of this case,
after the Investigative Inquiry
Panel had established what they
regarded as a
prima
facie
case against the
Applicant and handed down its recommendations, the presiding Bishop
should have constituted a full and proper
inquiry, invoking the
provisions of Canons 37 and 39. The Applicant’s very future
and livelihood was at stake and he should
have erred on the side of
caution and rather went on a circumlocutiou course that ensured that
the panel or inquiry or hearing
complied fully with the
Canons –
both in form and procedure. Unfortunately, it is my finding that the
Bishop did not do so. As a result, there are
serious structural
faults in the composition of the panel he constituted and procedural
irregularities in the processes the panel
followed.
[49] Canon 37(12) provides that –
“
The
proceedings shall be public, unless the President of the Tribunal
shall deem it preferable, on the grounds of public morals,
that they
should, in whole or in part, be private.
”
There is no indication in the
report of the Board of Preliminary Inquiry Panel what the basis was
for some of the evidence to be
heard secretly and in the absence of
the Applicant, “
nogal
”.
It is an irregularity that goes to the root of the fairness of the
proceedings.
[50] The ultimate decision to relieve the Applicant of his duties in
my view, does not follow the recommendations of the Board
of Inquiry
Panel. The panel recommended that –
“
…
the Rector needs to be removed from the parish with immediate
effect and
be offered alternatives to continue his
ministry elsewhere and differently or in a specialised ministry
within the Diocese …
”
(my
emphasis)
among others. Failure to find an alternative post as a normal priest
should not have been the end of the road for the Applicant.
In line
with the panel’s recommendation the Church authorities ought to
have looked for a specialised ministry position
within the Diocese.
It is common practice that Church headquarters sometimes employ
ordained priests in administrative capacities,
i.e. away from the
normal contact with congregations.
[51] Instead of terminating the
services of the Applicant summarily as he did after what he alleges
he did to find another posting,
the Bishop should or ought to have
placed the Applicant under his wing at the Diocesan head office or
any other comparable place
where the Applicant could be coached and
counselled. The above would have honoured the Board of Inquiry’s
recommendation
to –
“
(1)
(provide) feedback to the Diocesan Chapter and later to a broader
stakeholders and the congregants to identify areas of attention,
learning and action …
(2) … Create a
coaching/mentoring and counselling and development plan for the
Counsel and the Rector.
”
[52] It is common cause that our constitutional jurisprudence and
the rule of law and of natural justice requires any Tribunal
to act
fairly and procedurally. It is my considered view and finding that
the Tribunal in this matter did not do so.
[53] It is my further finding
therefore, that the Respondent committed gross irregularity and
transgressed or infringed on the
Applicant’s rights to a fair
hearing. The decision to relieve the Applicant of his duties is thus
procedurally and substantially
unfair and stand to be reviewed and
set aside. The Applicant should be reinstated to the position he was
in when the decision
to relieve him of his duties was taken pending
compliance with the order I am about to grant.
ORDER
[54] The following order is made –
54.1 The decision of the Respondent in terminating the Applicant’s
pastoral services in the Holy Name Church is declared
unfair and
unprocedural;
54.2 The decision of the investigating committee herein is reviewed
and set aside;
54.3 The procedure followed by the Board of Preliminary Inquiry
Panel of the Diocese of Highveld is declared to have been irregular
for lack of compliance with the Canons of the Church;
54.4 The matter is referred back to the Respondent for a fresh
consideration and/or inquiry before a new panel.
54.5 The Respondent is ordered
to pay the costs of this Application.
_____________________________
N
F KGOMO
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
FOR THE APPLICANT ADV N MANAKA
INSTRUCTED BY DENEYS REITZ INC
JOHANNESBURG
TEL NO: 011 685 8500
FOR THE RESPONDENT ADV M A KRUGER
INSTRUCTED BY TROLLIP, COWLING & JANEKE
ROSEBANK
TEL NO: 011 788-0188
DATE OF ARGUMENT 28 JULY 2011
DATE OF JUDGMENT 19 AUGUST 2011