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[2016] ZAKZPHC 88
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Ngewu v Anglican Church of Southern Africa and Others (AR8945/14) [2016] ZAKZPHC 88 (6 October 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: AR 8945/14
In
the matter between:
MLIBO
MTETELELI
NGEWU
Applicant
and
THE
ANGLICAN CHURCH OF SOUTHERN AFRICA
First
Respondent
THE
ANGLICAN CHURCH OF SOUTHERN AFRICA,
DIOCESE
OF UMZIMVUBU
Second
Respondent
THABO
CECIL MAKGOBA
N.O.
Third
Respondent
THE
SYNOD OF BISHOPS OF THE ANGLICAN CHURCH
OF
SOUTH
AFRICA
Fourth
Respondent
DONO
GABRIEL
Fifth
Respondent
CLIVE
BANNERMAN
Sixth
Respondent
PETER
JOHN LEE
N.O.
Seventh
Respondent
GARTH
QUINTON COUNSELL
N.O.
Eighth
Respondent
MOLOPI
STEPHEN DISEKO
N.O.
Ninth
Respondent
MARGARET
VERTUE
N.O.
Tenth Respondent
ELLINAH
WAMUKOYA N.O.
Eleventh
Respondent
JU
DGMENT
Delivered
on: 6 October 2016
BALTON
J
1.
This is an application in which the applicant seeks:
1.1
To review and set aside:
1.1.1
The decision of the third respondent to institute disciplinary
proceedings against him; and
1.1.2
The
finding of the panel consisting of the seventh and eighth to eleventh
respondents that the institution of disciplinary proceedings
against
the applicant and the continuation thereof is lawful and valid.
1.2
Costs
by the respondents opposing the application.
2.
2.1
The applicant is a Bishop for the Diocese of Umzimvubu.
2.2
The
first respondent is the Anglican Church of South Africa (the Church),
regulated by its Constitution and the Canons promulgated
in terms of
such Constitution and adopted by the Church’s Supreme
Legislative Body, the Provincial Synod which comprises
the Church’s
Bishops, clerical and lay representatives from each of the Church’s
dioceses.
2.3
The
second respondent is the Umzimvubu Diocese of the Church.
2.4
The
third respondent is the Archbishop of Cape Town and Metropolitan of
the Church (the Metropolitan). The Metropolitan is
responsible
for presiding over meetings of the Synod of Bishops, the election of
Bishops and attends to ecclesiastical discipline.
2.5
The
fourth respondent is the Synod of Bishops of the Church (the Synod).
2.6
The
fifth and sixth respondents are bishops of the Church and are the
co-presenters of the charges brought against the applicant
by the
first respondent.
2.7
The
seventh to eleventh respondents are bishops of the Church and members
of the panel of bishops of the ‘Court for the Trial
of a
Bishop’.
3.
It
is necessary to set out the background to the dispute.
4.
The
applicant was consecrated as the Bishop of Umzimvubu, KwaZulu-Natal
in 2003. In December 2010 the Metropolitan received
written
complaints from members of the Diocese (the Concerned Group) about
the applicant’s leadership of the Diocese relating
to,
inter-alia, alleged financial mismanagement.
5.
According
to the Metropolitan, the complaints were not addressed to the
Concerned Group’s satisfaction and the situation worsened.
In April 2011 he requested the Provincial Treasurer, Mr Rob Rogerson
to investigate and report on the concerns.
6.
After
meeting with the applicant, officials of the Diocese and some members
of the Concerned Group, Rogerson reported in May 2011
that:
The
situation in the Diocese of Umzimvubu is extremely tense and there is
a very real sense of fear of the Bishop… Governance
and
transparency are sadly missing from the Diocese and there is a very
real sense of autocracy about how things are done.
The Diocese
has been run into the ground financially
[1]
”
.
7.
The
Metropolitan took the following remedial actions:
7.1
In
May 2011 he met with the applicant and his wife.
7.2
He
led a pastoral team to meet with the applicant, chapter members of
the Diocese, Diocesan officials and members of the Concerned
Group.
7.3
He
appointed a pastoral team under Bishop Phillip to meet with the
interested parties in the Diocese to attempt to resolve the various
issues.
7.4
He
met with the applicant to try and resolve the situation through
consultative and pastoral means rather than initiating a formal
legal
process.
7.5
The
problems worsened. Members of the Concerned Group preferred
Articles of Presentment or draft disciplinary charges against
the
applicant which alleged financial mismanagement, the irregular
appointment of diocesan officials and ‘sexual aberration’
on the part of the applicant but did not result in further
proceedings against the applicant due to a technical flaw.
8.
In
February 2012 at the Synod of Bishops held at Modderpoort, in
response to the concerns and the report of Bishop Phillip, the
Bishops of the Church in an agreement with the applicant and in
accordance with Canon 21(3)
[2]
decided that:
8.1
A
task team under the leadership of Bishop Brian Germond of
Johannesburg be appointed to investigate and address the various
issues
in the Diocese, including the commencement of a forensic
audit.
8.2
The
Diocese should be placed under administration and the applicant
should cede his episcopal authority to the Metropolitan.
9.
The
applicant agreed in a letter dated 9 February 2012
[3]
to the Metropolitan to temporarily relinquish his episcopal
responsibility with a view to a Provincial Task Team (the PTT)
appointed
by the Synod of the Church investigating and mediating the
conflict within the Diocese. A dispute as to whether this
agreement
remains in force is the subject of motion proceedings
before this court under Case No. 13144/2013.
10.
The
Church subsequently appointed PFK Consulting PE Pty Ltd (PFK), a
fraud investigation team, as forensic auditors to investigate
the
financial affairs of the Diocese and it parishes.
11.
In
May 2012 Bishop Funginkosi Mbhele was appointed as Vicar General of
Umzimvubu to ensure continued episcopal leadership in the
Diocese
during the applicant’s absence.
12.
On
19 October 2012 PKF submitted a report with the following findings:
12.1
The
existence of multiple suspicious internal withdrawals from the bank
accounts and an extensive misappropriation of funds.
12.2
A
substantial lack of accounting records and supporting documentation
and a lack of internal accounting controls with no evident
oversight
or monitoring thereof.
12.3
One
partner holding total control over the bank accounts creating an
environment that is open to and conducive to fraud, mistakes,
lack of
oversight, waste and/or abuse.
12.4
The
responsible individuals must be held accountable for the wrongdoings.
13.
In
March 2013 Rogerson presented the PFK report at the first Synod of
Bishops.
13.1
He
noted inter-alia that:
[4]
The concerns raised
by the “concerned group” have been shown to be justified
and clearly there has been misappropriation
of funds, specifically
those raised for the Cathedral project.
13.2
He
recommended that the Bishops of the Church should, inter alia
,
consider
charges against the applicant for reckless conduct, misappropriation,
breach of trust and failure to fulfil canonical duties.
14.
The
Bishops resolved in terms of Canon 21(3) to appoint a Provincial Task
Team (PTT) under the leadership of Bishop Ntlali to follow
up on
issues raised in the PFK report.
15.
From
6 to 10 May 2013 Bishop Ntlali’s Team visited the Diocese, met
with various diocesan structures and submitted its final
report to
the Metropolitan on 30 September 2013. It read inter alia as
follows:
15.1
The
exercise of intervention is costly and expensive.
15.2
Whilst
the situation remains volatile, the PTT has great difficulty
discerning the cause of conflict as the ‘Concerned Group’
keeps changing from pillar to post stating their demands, creating
their own parallel Diocese and administration.
15.3
It
appears that the Concerned Group’s ultimate goal is to oust the
applicant.
15.4
The
majority of the people are still content with the applicant’s
pastoral ministry.
15.5
The
applicant be restored to his episcopal ministry in the Diocese,
subject to various conditions requiring the applicant to:
15.5.1
Effect
a reconciliation process.
15.5.2
Appoint
two task teams, the first from the Diocese and the Concerned Group to
ensure proper administration and financial management
and the second
from the Diocese and the Concerned Group to deal with land and
development issues.
15.5.3
To
take a year-long sabbatical within three months. During his
absence a Vicar General would take over his episcopal duties.
16.
The
Synod meeting on 30 September 2013 did not support the PTT’s
proposals and resolved that the Applicant should stand trial
under
Canon 38.
17.
On
3 December 2013 the Metropolitan appointed a Board of Preliminary
Inquiry in terms of Canon 38(3)(a) to consider whether the
applicant
had a
prima
facie
case
to face in relation to the charges set out in the Articles of
Presentment.
18.
Canon
38 (3) (a) and (b) reads as follows:
a.
The
Metropolitan on receiving such Articles of Presentment, may within
twenty-one days constitute a Board of Preliminary Inquiry,
consisting of two Diocesan Bishops not being presenters of the charge
and not more than two lay persons, one of whom is learned
in the
law (being confirmed by the Communicants of the Church of the
Province), and shall forthwith inform the accused of
the Appointment
of such Board and, if such a Board is constituted, invite the Accused
to submit to the Board an answer to the Articles
of Presentment, if
the Accused so desire.
b.
The
Board shall consider whether there is a
prima
facie
case against the Accused and shall report within thirty days of their
appointment to the Metropolitan, who shall decide whether
further
proceedings shall be taken or not. If the Metropolitan so determines,
he may exercise his visitational powers under section
2 (g) of Canon
2 of the Metropolitan.
19.
The
Board of Preliminary Inquiry consisted of Bishop Nopece, a member of
the Provincial Task Team, Bishop Phillips, the Dean of
the Province
and Advocate Raubenheimer who chaired the Board.
20.
On
12 December 2013 the Metropolitan informed the applicant that he had
appointed a Board of Preliminary Inquiry and invited him
to respond
to the Articles of Presentment. On 24 December 2013 the
applicant provided the Board with his response.
21.
The
Board issued a report dated 30 January 2014 in terms of which it
found that there was a
prima
facie
case against the applicant on most of the charges. The report
was only signed by Advocate Raubenheimer and reads inter alia
that
the Board:
22.1
Considered
the Articles of Presentment, the PFK report and the applicant’s
representations to the Board.
22.2
Was
of the view that its role was not to determine the applicant’s
guilt or innocence or whether the charges against him should
be
quashed, but rather to determine whether or not there was sufficient
evidence to indicate that the applicant had a
prima
facie
case to face.
22.3
Concluded
that there was insufficient evidence to support a
prima
facie
finding of the applicant having given just cause for "scandal
and offence".
22.4
Concluded
that there was sufficient evidence to support a
prima
facie
finding that the applicant had mismanaged funds, been negligent in
relation to the Church's funds and property, misappropriated
or
misused Church funds, managed Church finances inappropriately and
provoked dissension in the congregation, committed a breach
of trust
and promoted dissension.
[5]
22.
On
31 January 2014 the Metropolitan issued a notice under the hand of
the Provincial Executive to the applicant that he had decided
to
proceed with a trial in terms of Canon 38.
23.
He
duly informed the applicant and the Presenters (Bishops Bannerman and
Gabriel) of his decision.
24.
It
emerged from email correspondence
[6]
between Bishop Nopece and the Metropolitan that Bishop Nopece was not
privy to the deliberations of the other two Board Members
or the
report prepared by the Board. Nopece expressed his
disappointment that he had not had prior sight of the report and
disagreed with the report’s conclusion that there is a
prima
facie
case against the applicant.
25.
The
Metropolitan replied to Nopece in an email that he would ‘factor
in’ Nopece`s input and discuss it with the other
Members of the
Board.
The
Metropolitan reconsidered all the reports and Nopece’s concerns
and did not consider it necessary to retract or amend
his decision to
charge the applicant.
26.
On
18 November 2014, the fifth and sixth respondents presented the
following seven charges against the applicant:
(1)
Causing
scandal or offence;
(2)
Fraudulent,
corrupt or dishonest behaviour;
(3)
Negligent
management of Church property;
(4)
Misappropriation
of Church property;
(5)
Violating
Resolution of Permanent Force No 5;
(6)
Breach
of trust relationship; and
(7)
Promoting
dissention in the Church.
27.
The
applicant was served with Articles of Presentment or disciplinary
charges in terms of Canon 38 on 22 November 2013.
28.
A
Court for the Trial of a Bishop (‘the Tribunal’) was
appointed in terms of Article XIII of the Constitution and Canon
36(1) and (3). The Tribunal comprised of the seventh to
eleventh respondents.
29.
The
Metropolitan and Bishop Phillip did not participate in the Canon 38
trial due to their involvement in the matter. In terms of
Canon
36(3), the Diocesan Bishop senior by consecration should preside at
the ecclesiastical trial. Bishop Lee agreed to
act as President
of the Tribunal.
30.
The
proceedings commenced on 1 April 2014 and the applicant raised
various point
in
limine
.
31.
The
Tribunal dismissed the applicant’s points
in
limine
and held on 29 May 2014 that the trial should proceed to consider the
merits of the charges contained in the Articles of Presentment.
32.
It
is accordingly this decision to proceed with the trial that is before
this Court on review. The application also challenges
the
Metropolitan’s decision to institute disciplinary proceedings
against him.
33.
It
is common cause between the parties that this court can review
proceedings of the Church if there has been non-compliance with
the
Church’s Constitution and/or Canons or with the principles of
natural justice.
34.
It
is important to note that the decision to institute disciplinary
proceedings was taken by the Synod at a meeting on 30 September
2013. This decision is not challenged. The decision of
the Metropolitan to institute disciplinary proceedings upon
the Board
of Preliminary enquiry’s report is being challenged on the
basis that Nopece did not see the report or agree with
it.
35.
In
my view the issue to be decided is whether this court can interfere
in the Tribunal’s unconcluded proceedings. The
Tribunal
has not considered the merits of the charges against the applicant.
Its proceedings have been stayed pending the
outcome of this
application.
36.
In
WAHLHAUS
& OTHER v ADDITIONAL MAGISTRATE, JOHANNESBURG AND ANOTHER
[7]
the Appellant Division set out a salutary general rule that appeals
are not entertained piecemeal. The Court held that:
Nor, even if the preliminary point
decided against the accused by a magistrate be fundamental to the
accused’s guilt, will
a Superior Court ordinarily interfere –
whether by way of appeal or by way of review – before a
conviction has taken
place in the inferior court. (See
Lawrence
v A.R.M. of Johannesburg,
1908 T.S. 525
,
and
Ginsberg v
Additional Magistrate of Cape Town,
1933 C.P.D. 357).
In
the former of these two cases INNES, C.J., said at p 526:
“
This
is really an appeal from the magistrate’s decision upon the
objection, and we are not prepared to entertain appeals piecemeal.
If the magistrate finds the applicant guilty, then let him appeal,
and we shall decide the whole matter”.
It is true that, by virtue of its
inherent power to restrain illegalities in inferior courts, the
Supreme Court may, in a proper
case, grant relief – by way of
review, interdicts, or
mandamus
– against the decision
of a magistrate’s court given before conviction. (See
Ellis v Visser and Another,
1956 (2) S.A. 117
(W), and
R v
Marais
1959 (1) S.A. 98
(T) where most of the decisions are
collated). This, however, is a power which is to be sparingly
exercised. It is
impracticable to attempt any precise
definition of the ambit of this power; for each case must depend upon
its own circumstances.
The learned authors of
Gardiner and
Lansdown
(6
th
ed., vol. 1 p. 750) state:
“
While
a Superior court having jurisdiction in review or appeal will be slow
to exercise any power, whether by
mandamus
or otherwise, upon the unterminated course of proceedings in a court
below, it certainly has the power to do so, and will do so
in rare
cases where grave injustice might otherwise result or where justice
might not by other means be attained…
In general,
however, it will hesitate to intervene, especially having regard to
the effect of such a procedure upon the continuity
of proceedings in
the court below, and to the fact that redress by means of review or
appeal will ordinarily be available.”
In my judgment,
that statement correctly reflects the position in relation to
unconcluded criminal proceedings in the magistrates’
courts.
I would merely add two observations.
[8]
37.
In
MAGISTRATE,
STUTTERHEIM v MASHIYA
[9]
the
Supreme Court of Appeal held that:
The
power to intervene in unconcluded proceedings in lower courts will be
exercised only on cases of great rarity where - grave
injustice
threatens and where intervention is necessary to attain justice.
38.
In
CONSOLIDATED
NEWS AGENCIES (PTY) LTD (IN LIQUIDATION) v MOBILE TELEPHONE NETWORKS
(PTY) LTD AND ANOTHER
[10]
this
court said the following:
Before concluding we are constrained
to make the comments that follow. Piecemeal litigation is not
to be encouraged.
Sometimes it is desirable to have a single
issue decided separately, either by way of a stated case or
otherwise. If a decision
on a discrete issue disposes of a
major part of a case, or will in some way lead to expedition, it
might well be desirable to have
that issue decided first.
This court has
warned that in many cases, once properly considered, issues initially
thought to be discrete are found to be inextricably
linked. And
even where the issues are discrete, the expeditious disposal of the
litigation is often best served by ventilating
all the issues at one
hearing. A trial court must be satisfied that it is convenient
and proper to try an issue separately.
39.
It
is thus clear that a Court will only interfere in unconcluded
proceedings if a grave injustice will occur and it is necessary
to
intervene to attain justice. I will proceed to determine
whether the applicant has in fact satisfied this Court that it
should
intervene in the unconcluded proceedings
40.
The
applicant submits that:
40.1
He
will incur the same costs twice and may not be able to afford to
defend the matter if it starts
de
novo
.
40.2
The
Panel pointed out in their reasons for dismissing the applicant’s
points in
limine
that this appears to be the first trial of a Bishop by the Church
since the trial of Bishop Colenso in the nineteenth century.
40.3
The
process prior to the institution of the disciplinary proceedings
against him was not carried out in accordance with the requirements
of the Canons and is flawed.
40.4
The
decision to institute disciplinary proceedings against him is
ultra
vires
,
alternatively, irrational.
40.5
Bishop
Nopece was not privy to the deliberations that led to the report on
which the Metropolitan relied. The report is null
and void.
40.6
The
composition of the Panel is not in accordance with the principals of
natural justice.
41.
The
Metropolitan submits that:
41.1
Various
canonical and pastoral remedial actions were initiated and undertaken
in response to the problems that arose. He had
due regard to
Act XV of the Provincial Synod and was of the view that the problems
in the Diocese needed to be addressed through
a formal ecclesiastical
process in accordance with the Canon Law.
41.2
On
8 January 2014 the Metropolitan granted the Board an extension to 30
January 2014 to submit its report.
41.3
Due
to scheduling difficulties it was not possible for the Board to meet
and they agreed that the members of the Board would discharge
their
duties via correspondence.
41.4
On
11 January 2014 Advocate Raubenheimer submitted a draft report to
Bishop Phillip and Nopece for their consideration. On
13
January 2014, having considered the applicant’s
representations, the draft report was amended in response thereto and
again circulated for consideration to the members of the Board.
There followed email and telephonic correspondence between
Bishop
Phillip and Advocate Raubenheimer relating to further changes to the
draft report. Bishop Nopece did not interact
with the other
members of the Board and they took his silence as agreement.
41.5
The
Metropolitan requested Bishop Nopece's views and that Bishop Nopece
revert to him by 31 January 2014.
41.6
At
18h59 he had communicated his initial decision to the applicant,
Bishop Nopece finally expressed his views in an email indicated
that
it was "difficult" for him to "agree entirely"
with the findings contained in the Board's report and recommended
that the Church follow the recommendation of Bishop Ntlali's team, to
reinstate the applicant and mandate a diocesan reconciliation
process.
42.
This
Court notes that the applicant has submitted that the ecclesiastical
trial will be a great cost to him. However, from
the
applicant’s version it is clear that he has already engaged in
litigation concerning the terms of his episcopal duties
which
indicates that he is not being financially prejudiced when regard is
had to the nature of the litigation he may already engaged
in.
43.
In
considering the applicant’s submission I am of the view that
the applicant’s contention that he will incur substantial
costs
and that this is a significance process as it is the first time since
the 19
th
century that a Bishop is being tried do not constitute a grave
injustice for this Court to intervene in the unconcluded
proceedings.
The applicant has failed to satisfy this Court
that it should intervene in reviewing the proceedings of the
Tribunal.
44.
There
is
prima
facie
evidence
before the Tribunal and it should proceed to determine the merits of
the case against the applicant. It is clearly
not know what the
outcome will be. The applicant can decide at the conclusion of
the trial if it is not in his favour whether
he wishes to review and
or appeal against the finding. At this stage the application to
this Court to intervene is premature
and unjustified.
45.
There
is no reason for this Court to intervene and consider whether the
proper procedures were followed in charging the appellant.
Those are clearly points
in
limine
which
the Tribunal has ruled upon and there is no need for this Court to
intervene at this stage of the proceedings.
46.
The
applicant sought costs against the respondents who opposed the
application. It accordingly follows that costs must follow
the
successful party or parties in this application. The applicant
has refused to accept despite the clear case law regarding
unconcluded proceedings to proceed with this application. I am
satisfied that the applicant should be ordered to pay the
respondents
costs of this application.
47.
The
application is accordingly dismissed with costs.
__________________
BALTON
J
Date
of Hearing:
29 April 2016
Date
of Judgment:
6
October 2016
For
the Applicant:
PC
BLOMKAMP
Instructed
by:
LLEWELLYN CAIN ATTORNEYS
TEL:
033 344 1030
REF: L
CAIN/mm/10/B255
For
the 1
st
, 2
nd
, 3
rd
, 4
th
,
5
th
S BUDLENDER SC &
And
6
th
Respondent:
D
BERGSTRŐM
Instructed
by:
CLIFFE DEKKER HOFMEYER INC
TEL:
(021) 481 6424
LET/1030765
c/o
:
STOWELL & CO INC
TEL:
033 845 0500
REF: S
Myhill
For
the 7
th
, 8
th
, 9
th
, 10
th
and
11
th
Respondent:
Instructed
by:
BICCARI, BOLLO & MARIANO INC.
TEL.:
011 628 9300
REF:
MR D REDDY/dp/RT1785
c/o
:
TATHAM WILKES
TEL:
033 345 3501
[1]
Paragraph 22 on Page 159 of the Indexed Papers
[2]
Canon 21(3) reads as follow:
When the Synod of Bishops becomes
aware of events, developments or reasons which indicate to it that
in its opinion the affairs
of a Diocese merit an inquiry or
investigation in relation to possible support, or other action that
might need to be taken by
the Diocese or the Province or both, it
shall have the power to appoint a task team to inquire into or
investigate these matters
at the cost of the Common Provincial Fund.
The task team shall report its
findings and recommendations directly to the Synod of Bishops.
The Synod of Bishops shall
make whatever decision it feels
appropriate in the circumstances in consultation with the Diocese
concerned.
[3]
Pages 78 - 79 of the Indexed Papers
[4]
Paragraph
32, Page 164
of the Indexed Papers
[5]
Page 169 – 170 of the Indexed Papers
[6]
Page 133 of the Indexed Papers
[7]
1959 (3) SA 113 (A)
[8]
At 119 F – 120 C
[9]
2004 (5) SA 209
(SCA) para 14
[10]
2010 (3) SA 382
(SCA) para 89 and 90