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[2016] ZAKZPHC 39
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Ngewu v Makgoba N.O and Others (AR256/15) [2016] ZAKZPHC 39 (29 April 2016)
IN
THE HIGH COUR OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: AR256/15
DATE:
29 APRIL 2016
In
the matter between:
MLIBO
MTELELELE
NGEWU
.....................................................................................
APPELLANT
And
THABO
CECIL MAKGOBA
NO
....................................................................
FIRST
RESPONDENT
THE
SYNOD OF BISHOPS OF THE ANGLICAN
CHURCH
OF SOUTHERN
AFRICA
.........................................................
SECOND
RESPONDENT
THE
ANGLICAN CHURCH OF SOUTHERN
AFRICA
.............................................................................................................
THIRD
RESPONDENT
THE
ANGLICAN CHURCH OF SOUTHERN
AFRICA,
DIOCESE OF
UMZIMVUBU
...................................................
FOURTH
RESPONDENT
JUDGMENT
VAN
ZÿL, J
(JAPPIE
JP and HENRIQUES J concurring):-
1.
The appeal in
this matter, with leave of the court
a
quo
(Bezuidenhout, AJ), is against the dismissal of an application
wherein the appellant as the applicant sought an order restoring
him
to his position as Bishop of the Diocese of Umzimvubu and for an
interdict as against the various respondents restraining them
from
interfering with the exercise by the appellant of his rights and
duties as such.
2.
The
respondents comprised the Anglican Church of Southern Africa (the
third respondent) and its functionaries. Of these the first
respondent was cited in his capacity as the Archbishop of Cape Town
and Metropolitan of the third respondent. The second respondent
was
the Synod of Bishops of the third respondent and the fourth
respondent was the Diocese of Umzimvubu, being part of the third
respondent. These respondents, as a matter of convenience, are herein
referred to respectively as the Church, the Metropolitan,
the Synod
and the Diocese.
3.
Despite the
voluminous application papers, the disputes between the parties
ultimately relate to a relatively narrow question of
interpretation.
At issue was the nature, effect, terms and interpretation of an
agreement admittedly concluded between the appellant
with the
Metropolitan by virtue of an exchange of letters.
4.
The first of
these was a letter dated 9 February 2012 and addressed by the
appellant to the Metropolitan against a background of
a schism which
had developed within the Diocese of Umzimvubu. In his letter the
appellant suggested the appointment of a Vicar
General and a
Provincial Team to work with the Metropolitan in facilitating a
“
lasting
solution
”
to the divisive problems within the Diocese. The letter concluded
that the appellant agreed that:-
“…
the
Episcopal responsibilities and authority vested in me (
the
appellant
) at my Collation are hereby
placed in your (
the Metropolitan’s
)
good hands for the time being. I undertake not to exercise any
Episcopal ministry during this time.
We
further agree that this agreement shall only be terminated by mutual
agreement between ourselves and the Metropolitan in terms
of Canon 21
of the Anglican Church of Southern Africa.
We
reserve our right as the Bishop of Umzimvubu to enjoy all the rights
and emoluments of the Bishop pertaining to our office.
”
5.
It is common
cause these proposals were accepted by letter dated 9 February 2012.
Therein the steps to be taken were set out and
included a Pastoral
Team to meet with the appellant and his family to plan for his
retreat and pastoral care, to consult with the
Diocesan leadership
including lay officials and to prepare for the arrival in the Diocese
of the Vicar General and the Provincial
Management Team (the PMT).
The latter would
inter
alia
appoint an external company to conduct a forensic audit of the
Diocesan and Parishioners’ accounts while a separate account
would in the meantime be opened for the Diocese and administered
directly by the provincial trustees, in order to receive payments
from disaffected parishes. From available funds payments due to
pension funds, the S A Revenue Services and other commitments would
be brought up to date and maintained. Such further or remedial steps
as may become necessary from time to time would also be taken.
6.
As indicated,
the essential dispute before the court
a
quo
then
related to and flowed from an interpretation and application of the
relevant terms of this agreement. According to the founding
affidavit
of the appellant the firm PKF was appointed as the external auditors
tasked with the investigation of and reporting upon
the financial
affairs of both the Diocese and its parishes. They reported and
thereafter the PMT in turn reported to the Synod,
which then resolved
that the appellant stand trial under the provisions of Canon 38 on
charges of misconduct.
7.
The applicant
alleged that since the PMT, to which he also referred as the
Provincial Task Team, had completed its work, the proceedings
had
entered a new phase, namely one of confrontation during the course of
which the appellant would be charged with misconduct
in terms of
Canon 38. He alleged that this new phase did not fall within the
contemplation of the agreement regarding his voluntary
suspension
from the office of Bishop and accordingly that his undertaking to be
suspended was no longer binding. Put differently,
it was contended
that the “(suspension)
agreement
terminated upon the completion of the process contemplated in terms
of Canon 21
”,
as it was put in a letter by the appellant’s attorneys of
record and addressed to the Metropolitan on 20 November
2013. In the
same letter demand was made for the appellant to be permitted to
resume his duties as Bishop of the Umzimvubu Diocese
“
until
the finalization of the Canon 38 process
”.
In response the Metropolitan refused the demand and noted that
termination of the suspension required mutual agreement.
8.
The Court
below approached the dispute on an interpretation of the agreement.
It concluded that upon a reading of the agreement
in its totality the
provisions of Canon 21 needed to be completed before the agreement to
suspend could be brought to an end. Since
the disciplinary hearing in
terms of Canon 38 still needed to be completed and since no
additional agreement to terminate the suspension
during the interim
had been concluded, the appellant had not established any entitlement
to the relief sought. Accordingly, so
it was held, the voluntary
suspension to which the appellant had agreed remained effective until
completion of the Canon 38 disciplinary
proceedings, unless some
other agreement were to be reached. In the result the application
failed and costs, including the costs
of two counsel, followed the
result.
9.
Mr Blomkamp,
who appeared for the appellant in the appeal before us, submitted
that the primary issue to be determined was whether
the
interpretation placed by the court below upon the agreement was
correct and more particularly, whether the finding that the
appellant
would remain suspended from his post until the Canon 38 proceedings
were finally concluded was correct. In this regard
counsel submitted
that on a proper construction of the agreement the court should have
found that the agreement terminated once
the “Provincial Task
Team” PMT had rendered its report to the Synod.
10.
In developing
his argument counsel for the appellant submitted that the court
a
quo
should
have held that the effect of the agreement was for the appellant to
submit to suspension, or to stand aside, in order to
afford the PMT
the opportunity to perform its investigative functions and to report
thereon, but that the agreement was not intended
to regulate the
position beyond the report of the PMT to the Synod. Accordingly, so
counsel contended, once the report had been
submitted the PMT had
performed its intended functions and the position should have
reverted to what it was prior to the agreement
for the appellant to
stand aside being concluded. On the approach of counsel for the
appellant this meant that the appellant should
then have resumed his
normal duties as Bishop of the Diocese and that this would have
remained the position irrespective of the
disciplinary proceedings in
terms of Canon 38 thereafter instituted by the Synod against the
appellant. This was so because the
Canons of the Church did not
provide for any right to suspend the appellant pending the outcome of
these proceedings.
11.
According to
counsel for the appellant the proper approach to the interpretation
of the agreement was to have considered the language
used in
formulating the agreement, read in context and having regard to the
purpose for which it was concluded. In this regard
emphasis was
placed upon the contents of Canon 21(3) which empowered the
Metropolitan to appoint a task team,
inter
alia
, to
investigate and report to the Synod through the Metropolitan.
12.
With reliance
upon the authority of
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA)
at paragraph 18 counsel submitted that it was necessary to emphasise
that the object of the agreement, as expressed therein,
was for
“
giving
space
”
to the PMT to “
find
a lasting solution to the divisive problems that we have been
experiencing
”,
as a result of which the appellant agreed to step back and surrender
his authority to the Metropolitan “
for
the time being
”.
It was submitted that these latter words were indicative of an
agreement to relinquish his position temporarily only
and that they
suggested a suspension for a limited period, as opposed to an
open-ended suspension.
13.
Counsel
further drew attention to the fact that Canon 21 contained no
provisions for either an agreement, or for the consensual
termination
thereof. Pointing out that the Synod are given wide powers in terms
of Canon 21(3),
inter
alia
,
following the report to it to “
take
whatever decision it feels appropriate in the circumstances in
consultation with the Diocese concerned”,
counsel
submitted that a proper interpretation of the agreement was that the
suspension agreement should have been held to have
terminated once
the PMT had reported. Insofar as the Synod then might have decided
upon any further action, this was a new phase
and was neither
contemplated, nor provided for in the suspension agreement because
the agreement was merely intended to provide
an interim solution “
for
the time being
”
and that the words “
lasting
solution
”,
in context, did not suggest that the voluntary suspension would
endure beyond the report of the PMT.
14.
Likewise, the
Vicar General appointed to the Diocese at the same time was intended
to work with the PMT and upon the latter reporting,
the need for the
continued functioning of the former would also have fallen away. To
interpret the agreement in the manner in which
the court
a
quo
did,
so it was submitted, amounted to that court giving such an expansive
meaning to the words so as to make a bargain for the
parties, which
was impermissible.
15.
Mr Dickson SC,
who appeared with Mr Swain for the respondents, supported the
judgment of the court
a
quo
and
submitted that the appeal and the interpretation of the agreement
required consideration at two levels. In the first instance
the
respondents contended that the court
a
quo
was
correct in its consideration of the agreement in context and in
attributing meaning thereto upon what may conveniently be called
a
grammatical approach. An alternative or different approach, so
counsel submitted, would entail a so-called purposive interpretation.
That is, to identify and consider in context the mischief sought to
be addressed by the agreement in order to attribute a sensible
meaning thereto. However, in the final analysis counsel for the
respondents submitted that in the present matter either route gave
rise to the same result, so that it mattered not that the court
a
quo
appeared to have confined itself to the former approach.
16.
Canon 21(3)
provides,
inter
alia
, that
when the Metropolitan becomes aware of events, developments, or
reasons which in his opinion merit investigation of the affairs
of a
particular diocese, then he shall be entitled to appoint a task team
to inquire into and investigate the matters of concern
and then to
report its findings to the Synod. The Synod of Bishops are afforded
wide powers and may, in terms thereof, thereafter
refer the matter to
trial under Canon 38.
17.
It is not in
dispute that the admitted schism which had developed in the Diocese
of Umzimvubu whilst under the control of the appellant
as its bishop
merited investigation and that the appointment of the PMT was
justified. The consensual suspension of the appellant
from his duties
as the Bishop of Umzimvubu was also not controversial. But the
difficulty arose as to when such suspension would
terminate.
18.
In the
appellant’s letter of 9 February 2012 to the Metropolitan the
appellant postulated not only the appointment of a “Provincial
team” (the PMT) but also his own withdrawal from the functions
as Bishop of the Diocese as contributing to the finding of
a “
lasting
solution
”
to the divisive problems experienced. The object, with reference to
the wide ambit of the investigative, remedial and disciplinary
powers
envisaged in Canon 21, including the power to charge and require a
Bishop to resign from office in terms of Canon 14(2),
was thus not
merely to obtain a report from the PMT, but rather to finally resolve
the difficulties which had beset the Diocese
of Umzimvubu.
19.
The mere
reporting by the PMT to the Synod of Bishops, in context and whilst a
step in the process of finding a lasting solution
would not, by
itself necessarily create such a solution. This is all the more so
where the Synod then decided, as here, to initiate
charges of
misconduct as against the allegedly offending Bishop, a process which
would probably be time consuming and might well
end in the removal of
the Bishop from office and thereby his permanent withdrawal from the
Diocese concerned.
20.
Objectively it
would serve little purpose to suspend the Bishop concerned from his
duties within the Diocese only until the PMT
had delivered what is
effectively an interim report and then to reinstate the Bishop within
the Diocese whilst further disciplinary
actions were pursued against
him conceivably resulting in his permanent removal. Such a process
would be unlikely to contribute
to any lasting solution of the
difficulties experienced within the Diocese concerned and may well
have the effect of exacerbating
such difficulties and to reverse
whatever interim remedial measures had been put in place by the PMT
to protect the Diocesan interests,
or assets, or both, as envisaged
in Canon 21(3).
21.
In the view I
take of the matter the interpretation of the agreement represented by
the appellant’s letter of 9 February 2012
and as contended for
by the appellant is, in context, untenable. As set out in prayer 1 of
the appellant’s notice of motion
he sought reinstatement and an
order entitling him to resume his episcopal duties and rights as
Bishop of the Diocese “
pending
the Applicant’s removal or suspension from the office as Bishop
of the Diocese of Umzimvubu of the Anglican Church
of Southern Africa
(Church) in terms of the Canons of the Church”.
22.
Objectively
the meaning to be preferred is that the suspension of the appellant
would endure until a lasting solution was found,
or until the parties
consensually decided otherwise. It is manifest that no agreement had
been achieved, or was likely in the circumstances
to be achieved,
which would permit the appellant to resume his duties as the Bishop
of the Diocese of Umzimvubu, at least until
the disciplinary
proceedings under Canon 21(3) read with Canon 38 had run its course.
23.
It follows
that in my view Bezuidenhout, AJ in the court below was correct in
concluding that the voluntary suspension to which
the appellant had
agreed would remain in force at least until final completion of the
disciplinary proceedings under Canon 38 and
that the appellant was
not in the circumstances entitled to the relief sought.
24.
I am of the
opinion that the appeal cannot succeed and should be dismissed.
Costs, as in the court below, should follow the result.
Although at
the appeal the appellant was represented by only one counsel, both
sides were represented by two counsel in the court
of first instance
and the costs order made on that occasion included the costs of two
counsel. In the appeal before us the respondents
were again
represented by and asked for the costs of two counsel. Counsel for
the appellant did not make any submissions in regard
thereto in
reply.
25.
In the result
I would propose that the appeal be dismissed, with costs, such costs
to include the costs of two counsel, wherever
employed.
VAN
ZYL, J. JAPPIE, J.P. HENRIQUES, J.
Counsel:
For
Appellant:
ADV
P J BLOMKAMP
Instructed
by Llewellyn Cain Attorneys Pietermaritzburg
Telephone
number: 033 344 1030
Ref:
L. Cain/mm/08/B255
For
Respondents:
ADV
A K DICKSON SC
ADV
M SWAIN
Instructed
by Tatham Wilkes Attorneys
Pietermaritzburg
Tel:
033 3453501
Ref:
NR Tatham/Michele/06g0255/13
Argued:
3 February 2016
Delivered:
29 April 2016