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[2021] ZAGPPHC 11
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Masoga and Another v Evangelical Lutheran Church in Southern Africa and Others (62810/2018) [2021] ZAGPPHC 11 (18 January 2021)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 62810/2018
In the matter between:
M A MASOGA
1
st
Applicant
M A B
MASHIANE
2
nd
Applicant
and
EVANGELICAL LUTHERAN
CHURCH IN SOUTHERN
AFRICA
1
st
Respondent
THE CHURCH COUNCIL OF
THE EVANGELICAL
LUTHERAN CHURCH IN
SOUTHERN AFRICA
2
nd
Respondent
THE COUNCIL OF THE
CENTRAL DIOCESE OF THE
EVANGELICAL LUTHERAN
CHURCH IN SOUTHERN
AFRICA
3
rd
Respondent
PRESIDING BISHOP OF
THE EVANGELICAL LUTHERAN
CHURCH IN SOUTHERN
AFRICA, THE RIGHT REV.
A M
MNISI
4
th
Respondent
THE BISHOP OF THE
CENTRAL DIOCESE OF THE
EVANGELICAL LUTHERAN
CHURCH IN SOUTHERN
AFRICA, THE RIGHT REV.
DR W M RAKUBA
5
th
Respondent
J U
D G M E N T
MUDAU, J:
[1]
The two applicants are
members of the Evangelical Lutheran Church of Southern Africa (the
first respondent). They have held the
office of self-supporting
pastors of the Tembisa West Parish of the first respondent (“the
church”). This is an application
for relief in the following
terms: (a) an order reviewing and setting aside a decision, number
199 of 24 January 2018 of the third
respondent removing the
applicants as pastors of the Tembisa West Parish; (b) an order
reviewing and setting aside decision
number 141 (taken during on or
about 27 to 30 May 2018) of the second respondent withdrawing the
ordination rights of the applicants
with effect from 24 March 2018;
and (c) an order that the applicants' ordination rights be restored
and that they be reinstated
as pastors of the Tembisa West Parish.
[2]
The first respondent is
the Evangelical Lutheran Church in Southern Africa ("the
church"), with offices situated at No.24
Geldenhuys Road,
Bonaero Park, Johannesburg, is a duly registered non-profit
organisation in accordance with the laws of the Republic
of South
Africa. In terms of Part II, Chapter 1 of its constitution, the
church can sue or be sued in its own name.
[3]
The second respondent is
the Church Council of the Evangelical Lutheran Church in Southern
Africa ("the church council”)
established in terms of the
provisions of Part X, Chapter 4 of the constitution. It purports to
be the highest Administrative Council
of the 1
st
respondent, primarily responsible for the management and
administration of the broader business of the 1st respondent, with
offices
situated at the 1
st
respondent's Head offices.
[4]
The third respondent is
the Diocesan Council of the Central Diocese of the Evangelical
Lutheran Church in Southern Africa established
in terms of the
provisions of Chapter 5 of Part IX of the constitution. The third
respondent (“Diocesan Council”) is
responsible for the
administrative affairs of the Diocese of the 1
st
Respondent, with offices situated at No. 833 Diokane Drive, Central
Western Jabavu, Kwa-Xuma, Soweto, Johannesburg.
[5]
The fourth respondent is
the Presiding Bishop of the Evangelical Lutheran Church in Southern
Africa, the Right Reverend A M Mnisi
("the Presiding Bishop").
The fourth respondent is cited in this application in his official
capacity as an officer of
the church, being the formal head and
representative of the church as determined in Chapter 7 of Part X of
the constitution. His
office is situated at the 1
st
respondent's Head Offices.
[6]
The fifth respondent is
the Bishop of the Central Diocese of the Evangelical Lutheran Church
in Southern Africa, the Right Reverend
Dr W M Rakuba cited in such
capacity as provided for in Chapter 10 of Part IX of the
constitution. The bishop,
inter
alia
is the formal
head and representative of the Central Diocese with his address at
Diocesan Centre, 833 Diokane Drive, Central Western
Jabavu, Kwa-Xuma,
Soweto, 1868.
[7]
The
Evalengical Lutheran Church of Southern Africa, characteristic of
most churches, is an institution dedicated to the propagation
and
practice of the Christian religion. Like most other religious bodies
in South Africa, it is a voluntary association of persons
to which
the rules of law applicable to such an association also apply.
[1]
[8]
The organisation of the
Lutheran Church is set out in its constitution, which makes provision
for the administration of its affairs
and for the discipline as well
as duties of its members. In terms of Part IV of the constitution,
Chapter 1, membership of the
church is,
inter
alia
open to adults
and children who have been received into the church through baptism.
Part III read with Chapter 2 deals with
the office of the ordained
ministry. Clause 2.2 provides that: “
[T]his
office shall be given to and be undertaken and performed only by the
one who has received a regular call by the Church and
who has been
ordained”
. In
terms of clause 2.3 before a person can be accepted into the
ministry, “
that
person shall, during his or her time of training and probation
convince the church of his or her fitness and suitability for
the
office.
”
[9]
Those serving in the
ministry should in terms of clause 2.7 admonish and reprove each
other. The constitution provides in Chapter
3, clause 3.3 that those
in self-supporting ministry are those who have gone through
theological training and are ordained by the
church to assist in an
identified congregation, but do not receive remuneration from the
church and they shall not appear in the
election clergy roster.
[10]
Part V in Chapter 1 makes
provision that a pastor is,
inter
alia
duty-bound to
observe the rules and regulations of the church. He or she shall be
transferable to any place within the area of
the church. In
accordance with clause 7.4 in Part IX of Chapter 7 pastors are also
ex officio
members of the Congregational Council and congregational meetings in
each congregation. The Congregational Council assists the
pastor in
charge of the congregation run the affairs of a particular
congregation.
[11]
Clause 1.1 in Part VII of
Chapter 1 of the constitution of the church makes provision that a
parish is a congregation or a group
of congregations within a defined
area headed by an ordained minister. Each parish has a parish council
with certain duties, which
include assisting congregational councils.
The parish consist of at least 300 members. The parish is defined as
such by the Diocesan
Council upon recommendation by the Circuit
Council. Significantly, clause 7.4 of Part IX in Chapter 7, of the
church’s constitution,
which is uncontested, makes provision
that
"It shall
call, appoint, transfer, suspend and terminate services of church
servants assigned to the and Diocese by the Church
Council.”
[12]
In terms of clause 5.1.5
of the Dossier of self-supporting ministries in the constitution
however, pastors are placed and transferred
according to necessity by
their respective Diocesan Councils. It reads: “
[l]t
follows that if a pastor out rightly refuses to be placed or
transferred, he/she is virtually refusing to function as a pastor
and
forfeits his/her office
”.
In addition, he or she is not entitled to free housing. Section 9
deals with ordination of pastors including self-supporting
pastors.
It provides that: “
The
right and duty to public preaching and administration of the
sacraments is conferred by ordination. In general, the ordination
implies that an employment relationship as Pastor is to be
established.”
[13]
Section 10 deals with loss
of rights conferred by ordination. It provides: “
The
right to public preaching and to administer the sacraments is lost:-
(a)
when the service relationship of the Pastor with the Church is
terminated in accordance with sections 57(5) to (11);
(b) when the Pastor
leaves the service as a result of a breach of his obligation to teach
in accordance with section 57(6);
(c) when the Pastor is
removed from service as a result of a breach of his official duties
in accordance with section 57(10); or
(d) when the Pastor
waives this right.
[14]
Significantly, section
10(2) provides that: “
A
member of the Ecclesiastical Council shall confer with the affected
person about the loss of the right to public preaching and
to
administering the sacraments.
The affected person is
entitled to be assisted by an ordained confidant from within UELCSA
and to a fair and proper disciplinary
hearing
.”
(My underlining)
[15]
It
is clear and not in issue therefore, that the relationship between
the Lutheran church and its members is contractual and that
that
relationship is governed: (a) by the constitution of the Church, the
contents of which form the terms of the contract between
the parties,
and (b) by the relevant principles of the common law.
[2]
The rights which such a relationship gives rise depend,
inter
alia
,
on the contents of the Church's constitution, to which the applicant
has subjected himself and to which each and every member
of the
Church has acknowledged himself or herself to be bound.
CHRONOLOGY
[16]
The events that resulted
in the present application are briefly the following: On 7 December
2016, the third respondent appointed
Reverend Molebatsi, as both the
full-time pastor and the pastor in charge for all the congregations
under the Tembisa West Parish
of the church. On the same day the
applicants accordingly received a letter from the office of the
Central Diocese advising them
that Rev. Molebatsi has been appointed
for the Tembisa West Parish and would commence duties on 15 January
2017. The appointment
of Rev. Molebatsi was not well received by the
applicants and the affected parish.
[17]
On 10 January 2017, the
Tembisa West Parish Council addressed a letter to the Central Diocese
advising the latter that the Tembisa
West Parish
"does
not consider it prudent to welcome the fourth pastor
",
Rev Molebatsi, as pastor in charge. The reason for their unhappiness
was that there was no consultation with the Tembisa
West Parish in
the appointment. The timing and planning of the transfer was
questioned. The applicants also suggest in their founding
papers that
the appointment of Rev Molebatsi was precipitated by allegations that
R40, 000 000-00 of church funds could not be
accounted for.
[18]
According to the
applicants, attempts to meet with the office of the Central Diocese
in 2017 did not yield the desired results.
Subsequently on 13 January
2017, the third respondent responded by way of a letter to the
Tembisa West Parish in which it was pointed
out “
the
deployment and/or placement of pastors is not a mere paper exercise
that disregard the interest of the church or individual.
The Diocesan
Council is well aware of the situation at Tembisa parish council, the
pastors being there at present; and the opportunities
for growth and
service delivery”.
It
was pointed out that the parish does not have a full-time resident
pastor. With this appointment (of Rev Molebatsi), it was pointed
out
that the parish will have the benefit and enjoyment that comes with
it. It was further pointed out that the prevailing situation
at the
parish was “unusual”, which necessitated the appointment.
[19]
In a letter dated 21
February 2018 addressed to all Tembisa West Parish
congregants/parishes, the applicants were informed of a
resolution
taken by the Diocesan Council meeting, No. 199 of 24 January 2018
wherein
inter alia,
it was resolved to remove them from the Tembisa West Parish
immediately and assigning other responsibilities to them in line with
the dossier of the church pertaining to self-supporting ministry.
[20]
The applicants allege that
the decision by the Central Diocese was taken unlawfully and not in
accordance with the principles of
natural justice. They allege they
were denied the right to be heard before the impugned decision was
taken (
audi alteram
partem
). These
principles are, according to the applicants, firmly entrenched in the
constitution of the church. They allege that the
church in all its
structures makes provision for the establishment of
disciplinary/appeal/dispute and mediation committees.
[21]
On the applicants’
version, attempts between the Tembisa West Parish and the office of
the Central Diocese to resolve the
matter failed. On 12 March 2018,
they instructed their current attorneys of record to forward a letter
(“annexure MAM6”)
to the third respondent questioning
their removal and the processes that were followed. On 15 March 2018,
their attorneys of record
received a letter (“annexure MAM7")
from the Central Diocese by which they were informed that the Central
Diocese will
not communicate with them through their lawyers, and
that they have to avail themselves to the internal procedures
provided for
in the constitution of the church.
[22]
On 27 March 2018, their
attorney forwarded a letter (“annexure MAM8”) to the
fifth respondent
inter
alia
enquiring what
those e internal procedures they were required to follow are. There
was no response to this letter. According to
the applicants, they
immediately stopped their pastoral duties in the area, attended
church as ordinary members but resumed duties
upon request by church
elders with effect from 24 March 2018.
[23]
Subsequently, the
applicants received annexures "MAM9" and "MAM10"
respectively advising them of a decision
by the church council, No
141 of 27-30 May 2018 resolving to withdraw their ordination rights
as pastors of the church. They complain
that this was done
irregularly and therefore unlawful, unconstitutional and invalid for
non-compliance with the constitution of
the church. They contend the
decision to take away their ordination rights is in breach of their
rights to natural justice, is
arbitrary and therefore unreasonable
and irrational. They contend that none of the provisions of section
10(1) (a) to (d) of the
law on their removal, have been met. Finally,
they allege clause 7.4 in Part IX of Chapter 7, of the constitution,
relied on by
second respondent to withdraw their ordination rights,
does not entitle or empower the second respondent to do so.
[24]
The deponent to the
respondents’ answering papers, the Diocesan Executive Secretary
of the third respondent, Reverend Prins
alleges that during 2017, the
3rd respondent addressed numerous letters to the Tembisa West Parish
Council, (i.e. “DJP 13”,
“DJP 14”, “DJP
15”) in which the Tembisa Parish Council executive members were
invited to a meeting with
the third respondent. The purpose was to
resolve any issue of disagreement with the decision of the Council.
At a convened meeting,
the issues were discussed but not resolved.
Thereafter all the members of the Tembisa West Parish Council,
including the applicants
failed to attend any further meetings,
without any valid reason or excuse for non-attendance to date.
[25]
Subsequently, the fifth
respondent addressed numerous letters and emails ( "DJP18",
"DJP 19', "DJP 20",
"DJP 21", "DJP 22',
"DJP 23", 'DJP 24', "DJP 25”, "DJP 26”
and "DJP 27")
to the applicants. The correspondences were
aimed at discussing the re-allocating and re-assigning of roles of
the applicants in
the usual manner and as at previous instances, to
different assignments and at different parishes of the church, which
the applicants
defied, as well as the authority of the third
respondent in particular. In response, the applicants always gave
vague or unreasonable
excuses.
[26]
The respondents contend
that this was clearly in flagrant disregard and disrespect of the
third respondent's leadership and authority
granted to the latter by
the church’s constitution, more specifically at Part IX of
Chapter 7 thereof. According to the respondents,
the continued
defiance by the applicants was clearly a manifestation of a
commitment to sabotage all attempts to restore any form
of governance
by the first and third respondents over them. Whilst they continued
to perform activities in the name of the first
and third respondents,
they were not only defiant but also acting outside of the
constitution, laws, rules and regulations of the
church.
[27]
On 20 January 2018, the
fifth respondent for example, issued a letter addressed to the second
applicant in the following terms:
“
Rev Dr MA
Masoga
RE: REQUEST TO MEET
WITH YOU
Earlier
in January 2018 the Executive Secretary communicated the request for
a meeting and up to so far this meeting has not taken
place. I
acknowledge the fact that we had a telephonic conversation about it.
I am therefore making a follow up of this request.
Kindly look at
your schedule and let me know which day is suitable for you.
Yours in His service (signed the Right Rev. Dr.
WM Rakuba)
”
.
This letter apparently,
went unanswered.
[28]
On 21 February 2018, the
first respondent issued the impugned letters (“DJP 19”
and “DJP 20”), addressed
to the applicants. Except for
personal particulars, the letters are worded the same way. The
letters, in relevant parts read:
“
Lenten
greetings to you in the powerful name of our Lord and Savior, Jesus
Christ. At a meeting of DC-EXCO (ELCSA-CD) last night,
it was decided
to call you for a meeting to discuss your pastoral assignment in
Central Diocese (ELCSA). Meeting details are:
Date: Thursday, 22
February 2018
Time: 17:30 Diocesan
Centre
Apologies
for the short notice of the meeting. (Signed: Rev. Prins)
”
It is common cause that
the applicants did not attend the proposed meeting. In an email dated
26 February 2018, the first applicant
(Masoga) wrote to the fifth
respondent. The letter in relevant parts reads:
“
I will
appreciate that your remarks about our failure to meet should not be
blame on my side (sic). I have a trail of papers indicating
how I
clearly responded to your request for us to meet. In fact recently
when I called… I explained to you that I do not
work for you
and the diocesan executive secretary based on the fact that I am a
self-supporting pastor. The latter does not change
the fact that I am
a servant of God. I even requested your office to respect this very
much. I cannot be called upon anytime your
office feels so. There
should be some level of decorum from both sides in determining how we
organise our meetings. I would understand
if my situation was that of
a full-time pastor. I still request that I be respected in this
regard… I… Should not
be treated like one of your full
time pastors and changed anytime and anyhow when councils feel so”
.
[29]
Consequently, the fifth
respondent empowered by the constitution of the church, more
specifically Part IX of Chapter 9 thereof,
compiled a report on the
recommendation of the ministerial council of the third Respondent,
which the fifth respondent tabled and
filed with the same ministerial
council. As a result, it was recommended that the applicants be
removed from their positions as
self-supporting pastors of the church
with immediate effect.
[30]
Subsequent to this
development, on 20 February 2018 at a meeting of the executive of the
third respondent it was resolved to dissolve
the Tembisa West Parish
Council with immediate effect, which decision was ratified by the
third respondent on the 23th to 24th
of March 2018. This resolution
was conveyed to the applicants but they did not vacate their
positions. That being the position,
the fifth respondent tabled a
report on the recommendation of the ministerial council. Flowing from
the said report, the third
respondent resolved that the applicants’
ordination rights be withdrawn with immediate effect. According to
the respondents,
the applicants were advised in writing to their
attorneys to exhaust internal processes before engaging external role
players.
The respondents noted with concern that the applicants never
followed any internal process provided for in the church’s
constitution,
laws, rules and regulations in challenging the
decisions before launching this application.
[31]
According to the
respondents, only full time pastors can be pastors in charge in any
congregation, and can be
ex-officio
members of the congregational council in accordance with the first
respondent's dossier on self-supporting pastors’ ministry
as
provided for in paragraph 7 and 8 thereof, more specifically at sub
paragraphs 7.1 to 8.4. The respondents contend that the
applicants
have failed to comply with the pledge of office “
to
perform all duties of the Pastoral Office with diligence, loyalty and
trustworthiness
"
as required by church laws.
[32]
As to the allegations of
misappropriation of church funds, Rev. Prins stated that there was
never any complaint levelled regarding
the disappearance of R40
million from the books of the church. In fact, following a resolution
of the General Assembly of the first
respondent, the R40 million was
invested in an offshore account on behalf of the church. According to
Rev. Prins, all the leaders
of the church were aware of the
resolution, which was clearly reflected in the books of the church.
The books of the church are
annually audited. Therefore, the
allegations by the applicants in this regard are without basis.
[33]
Rev. Molebatsi deposed to
an affidavit and confirmed the allegations made by Rev. Prins to the
extent he was affected thereby and
so did other church officials.
In addition, he stated that during January 2017, he arrived at one of
the congregations under
the Tembisa West Parish in order to assume
his duties. He was informed by members of the Tembisa West Parish
Council that he was
only a visitor there, not a full-time pastor and
not their pastor in charge as they were in a dispute with the third
respondent
in that regard. From January 2017 until March 2017, he
tried to assume his duties in his newly allocated role, but was
chased away
by the members of the Tembisa West Parish Council during
March 2017. He has since been appointed Dean of the Pretoria circuit
as
of October 2018.
[34]
In reply, the applicants
make it clear that, the rights and authority of the third respondent
as stipulated in the first respondent's
constitution in clause 7.4 of
Part IX in Chapter 7 is not contested. In issue however, is the right
and authority to do so in contravention
of the law of natural
justice, particularly the
audi
alteram partem
rule.
[35]
According to the first
applicant, he received a call on 21 February 2018 from the fifth
respondent's office informing him of the
meeting. He informed the
fifth respondent's assistant that he was attending block classes and
for that reason, he was unavailable.
She promised to come back to him
but never did. He was surprised and shocked when he received the
letter informing him of his removal.
He recorded this in an email
address to Rev. Prins on 22 February 2018 (“MAM13”).
[36]
According to the second
applicant, he was informed by way of a telephone call on 21 February
2018 of the meeting scheduled for 22
February 2018. He was working in
Hendrina, and it was, on his version impossible to attend on 22
February 2018. He requested that
the meeting be postponed and timeous
notice of the postponement be given. He understood that the meeting
would be postponed. He
only later learned that the meeting went ahead
and that it was decided to remove him from Tembisa West Parish. He
was not re-assigned
a position, which he believed was the purpose of
the meeting. The gist of the applicants’ complaint being that
they were
tried in their absence without being charged and without
being given a fair hearing as is required in terms of the provisions
of
the law.
THE LAW
[37]
As indicated above, the
Lutheran Church, like all other religious societies in South Africa
is a voluntary association. The law
to be applied is the law
applicable to such associations. It is a well-settled principle that
courts of law have no power to determine
disputes amongst members of
such an association except for the enforcement of some civil or
temporal right. People are at liberty
to form themselves into any
association as long as its objects are not against the law and good
morals. They may within the framework
of the law agree to any
constitution and frame any rules they choose for the good governance
and discipline of the association.
They are at liberty to establish
any tribunal they wish to decide questions that may arise within the
association. The only remedy,
which a member of a voluntary
association has, when he or she is dissatisfied with the proceedings
of the body with which he or
she is connected, is to withdraw from
it.
[38]
It
is our law that where any religious or any other lawful association
has not only agreed on the terms of its union but has constituted
a
tribunal to determine when its rules have been violated by any member
and the consequences of such violation, the decision of
such tribunal
will be binding when it acts within the scope of its authority,
observes such forms as the rules require, and if
not, the association
has otherwise proceeded in a manner consonant with the principles of
justice. In
Jockey
Club of South Africa v Feldman
[3]
Tindall
JA said: '
The
exclusion of the jurisdiction of the Courts of law on the merits is
not contrary to public policy, and our courts have recognised
that
the decisions of such tribunals on the merits are final; but if the
tribunal has disregarded its own rules or the fundamental
principles
of fairness, the court can interfere.’
[39]
In
Fisher
v S.A. Bookmakers Association
[4]
Malan J held as follows: “
I
am of opinion that in construing the constitution and the bylaws of
an association, the same principle should be applied as in
the
construction of any other written instrument, in terms of which
parties have contracted. The constitution and bylaws embody
the terms
and conditions upon which the members have agreed to become bound and
to remain associated.”
[40]
However,
as Price J stated in
Garment
Workers' Union v De Vries and Others:
[5]
'In
considering questions concerning the administration of a lay society
governed by rules, it seems to me that a Court must look
at the
matter broadly and benevolently and not in a carping, critical and a
narrow way. A court should not lay down a standard
of observance that
would make it always unnecessarily difficult - and sometimes
impossible to carry out the constitution. I think
that one should
approach such enquiries as the present in a reasonable commonsense
way, and not in the fault-finding spirit that
would seek to exact the
uttermost farthing of meticulous compliance with every trifling
detail, however unimportant and unnecessary,
of the constitution. If
such a narrow and close attention to the rules of the constitution is
demanded, a very large number of
administrative acts done by lay
bodies could be upset by the Courts. Such a state of affairs would be
in the highest degree calamitous
- for every disappointed member
would be encouraged to drag his society Into Court for every trifling
failure to observe the exact
letter of every regulation. There is no
reason why the same benevolent rules should not be applied to the
interpreting of the conduct
of governing bodies of societies as one
applies to the interpretation of bye-laws
[sic]”
EVALUATION
[41]
There is no disputing that
the impugned decision number 141 (taken during on or about 27 to 30
May 2018) of the second respondent
withdrawing the ordination rights
of the applicants with effect from 24 March 2018 was taken in
circumstances where the applicants
were not informed of the nature of
the charges they were to face. This court has the authority to
determine the true construction
of the rules and regulations of the
church. In order to justify its actions the church must show that the
processes followed in
dealing with a complaint, as well the decision
taken on the merits of the complaint, the complainant has had
substantial justice
according to general legal principles.
[42]
It is of particular
concern to this court that the purpose of the meeting that led to the
withdrawal of the applicants’ ordination
rights was to discuss
the assignment for other pastoral duties to them. What then followed
were proceedings of a displinary nature
that were inherently unfair
to the applicants. The steps taken by the church in this ultimate
regard is not supported by section
10 (2) of the constitution of the
church referred to above which is worth repeating: “
The
affected person is entitled to be assisted by an ordained confidant
from within UELCSA and to a fair and proper disciplinary
hearing.”
However, in the instant case, the time allocated for that purpose was
unreasonable in that they were given hardly 24 hours’
notice to
present themselves. The applicants were unable to attend, as stated
above.
[43]
The
applicant were also not informed of their right to be assisted by an
ordained confidant from within the ranks of the church.
It is noted
that some of the correspondences addressed to the applicants had a
seven-day notice period as opposed to 24-hour notice
in this regard.
This was not only irregular, but also prejudicial to the applicants.
The applicants were entitled to know the nature
of the accusation
against them to be in a position to bring the necessary evidence of
rebuttal
[6]
. The onus is on the
respondents to show that the applicants were not prejudiced. In this
regard however, the respondents failed
to discharge the onus. It
is of no moment that the applicants at the time were not employees of
the church. Importantly,
it is from supporting ministries that
full-term pastors are drawn. The withdrawal of the ordination rights
is for this reason
prima
facie
prejudicial to the applicants. Under the circumstances, it was
unnecessary for the applicants to exhaust the internal remedies
within the church structures before approaching this court
[7]
.
Accordingly, it follows that this court is entitled to interfere with
the decision to withdraw the ordination rights of the applicants
for
the reason that the church failed to follow its own internal
processes, in addition to the common law ordinary principles of
justice.
[44]
Brink
J refers in De Vos v Die Ringskommissie van die Ring van die N. G.
Kerk, Bloemfontein and Another
[8]
to what was aptly put in Long v Lord Bishop of Cape Town: "
It
may be further laid down that, where any religious or other lawful
association has not only agreed on the terms of its union,
but has
also constituted a tribunal to determine whether the rules of the
association have been violated by any of its members
or not, and what
shall be the consequence of such violation; the decision of such
tribunal will be binding when it has acted within
the scope of its
authority, has observed such forms as the rules require, if any forms
be prescribed, and if not, has proceeded
in a manner consonant with
the principles of justice”
(footnote omitted)
[45]
As
Watermeyer J (as he then was) stated in
Bredell
v Pienaar and Others
[9]
:
'Now it seems to me
that a failure to give the applicant notice of the charge against him
with reasonable particulars of time and
place is not only a breach of
the Church rules, but also opposed to ordinary Ideas of justice, and
the Courts have Interfered in
a number of cases in which this has not
been done”.
[46]
It follows, accordingly,
that the decision to withdraw the ordination rights of the applicants
did not follow due processes as provided
for in the constitution of
the church and falls to be set aside for the simple reason that the
applicants were never cited, and
no proper hearing took place.
Consequently, I conclude that the withdrawal of ordination rights was
procedurally unfair to the
applicants. This however, does not imperil
the earlier decision of the church to have the applicant removed from
their respective
positions at Tembisa West Parish, which in my view,
properly construed, was nothing more than a suspension pending
re-assignment
of duties. To my mind, the applicants were not
prejudiced by the earlier decision as they were yet to be engaged on
the subject
of the assignment of duties.
[47]
For practical
considerations and in the interest of the smooth operation of church
activities, there is no reason why the applicants
cannot be properly
cited and given notices of not less than two weeks to appear at an
identifiable venue, on specified disciplinary
charges if the church
is so inclined. In order to function meaningfully, the church needs
disciplined members and pastors. It is
very unacceptable that the
impasse has dragged this long. The attitude of the applicants and
their role in this regard obviously
did not help matters. The
applicants could and should have done better to have the matter
resolved, particularly, the re-assignment
of their pastoral duties.
[48]
Ordinarily, a successful
litigant is entitled to costs. In this instance, the applicants were
partly successful but for paragraph
(a) of the relief sought (their
removal from the Tembisa West Parish). Prayer (c) of the applicants’
notice of motion is
essentially a combination of the relief sought in
prayer (a) and (b). However, the question of costs is a discretionary
matter.
The church was evidently frustrated regarding the Tembisa
West Parish impasse by the attitude of some of the role players
including
the applicants when it resolved to withdraw their
ordination rights. The role of the applicants in this regard did not
help matters.
I am therefore inclined to make no order as to costs.
[49]
ORDER
49.1
The application for an
order reviewing and setting aside decision number 199 of 24 January
2018 of the third respondent removing
the applicants as pastors of
the Tembisa West Parish is dismissed.
49.2
Decision number 141 taken
during on or about 27 to 30 May 2018 of the second respondent
withdrawing the ordination rights of the
applicants with effect from
24 March 2018 is reviewed and set aside.
49.3
The applicants’
ordination rights are restored.
49.4
There shall be no order as
to costs.
________________
T P MUDAU
[Judge of the High
Court]
Date of Hearing:
19
October 2020
Date of Judgment:
18
January 2021
APPEARANCES
For the
Applicant:
Adv. G L Van der Westhuizen
Instructed
by:
Griesel Breytenbach Attorneys
For the
Respondent:
Adv. R T Ntshwane
Instructed
by:
LLV Marele Attorneys
[1]
De
Waal and Others v Van der Horst and Others
1918 TPD 277
; see also
Bredeli
v Pienaar
1922 CPD 578
;
De
Vos v Die Ringskommissie van die Ring van die N. G. Kerk,
Bloemfontein and Another
1952 (2) SA 83 (O)
[2]
Turner
v Jockey Club of South Africa
1974 (3) SA 633
(AD) at 645B - C
[3]
1942 AD 340
at 351
[4]
1940 WLD 88
at 92
[5]
1949 (1) SA 1110
(W) at 1129
[6]
Bredell
v Pienaar supra at 585
[7]
De Vos v Die Ringskommissie van die Ring van die N. G. Kerk,
Bloemfontein and Another at 84
[8]
Supra
at page 94
[9]
1922 CPD 578
at 585.