IN THE HIGH COURT OF SOUTH AFRICA EASTERN CAPE DIVISION GRAHAMSTOWN

Transcription

1 1 REPORTABLE/NOT REPORTABLE IN THE HIGH COURT OF SOUTH AFRICA EASTERN CAPE DIVISION GRAHAMSTOWN In the matter between Case No: 1860/2011 Date Heard: 18/08/11 Order Delivered: 30/09/11 Reasons Available: 30/09/11 REVEREND SIMON GUZANA ZAZAZA First Applicant LLC DUZE CONGREGATION CHURCH Second Applicant and UNITED CONGREGATIONAL CHURCH OF SOUTHERN AFRICA First Respondent REVEREND HENDRICK PILLAY: THE PRESIDENT OF THE UNITED CHURCH OF SOUTHERN AFRICA Second Respondent REVEREND DR MP DIBEELA: THE GENERAL SECRETARY Third Respondent REVEREND ERIC MTHANA Fourth Respondent REASONS FOR JUDGMENT [1] The first applicant ( the Reverend ), was suspended by the Assembly Executive Committee of the first respondent, (the committee)

2 pending an investigation into certain allegations of misconduct. The Reverend, aggrieved by his suspension approached this court, allegedly joined by the second applicant, on 3 June 2011 in urgent proceedings, seeking a rule nisi aimed by setting aside the decision of the committee to suspend him and interdicting the respondents from interfering with the contractual obligations of the Reverend as Minister in charge of his church namely the second applicant. It is not apparent from the papers on what basis the second applicant is cited in these proceedings. The applicants also seek a punitive costs order against the first three respondents. [2] The first respondent opposes the application on its merits. The second and third respondents only oppose the interdict and cost order sought against them. The fourth respondent who has been appointed as an acting minister in the Reverend s place, while the latter is on suspension, has indicated that he abides the decision of the court. The first respondent also instituted a counter-application for a mandatory order, directing the first applicant to comply with his suspension and to refrain from any involvement in the affairs of the second applicant during his suspension, or any extension thereof. An interdict was also sought to restrain the Reverend from instigating or causing disorder and disruption in the affairs of the second applicant aimed at preventing or frustrating the implementation of his suspension. A punitive costs order is similarly sought against the applicants. [3] The first respondent raised three points in limine. The matter was about to be argued, when counsel for the first respondent indicated that these points would no longer be pursued and that the application would be opposed on its merits. [4] The applicant challenged his suspension on two grounds. The first was that his suspension was ultra vires in that the first respondent and its

3 3 Executive Committee( the Committee ) were not empowered to suspend him. The second ground was that the first respondent had breached the audi alteram partem rule by not affording him an opportunity to state his before the suspension. [5] The applicant also challenged the authority of Reverend Dibeela, (cited as the third respondent) to oppose the application on behalf of the first respondent. The third respondent is the General Secretary of the first respondent. The second respondent, the president of the third respondent, Reverend Pillay, stated in his affidavit that Reverend Dibeela was duly authorised to act on the first respondent s behalf by the officers of the Assembly in accordance with the provisions of the first respondent s constitution. There is accordingly no merit in this point taken and I will proceed to deal with the two main challenges. [6] The applicant answered the Call as Minister of the church (second applicant) in July In July 2008 certain members of the church, which falls under the Kei Region, lodged complaints about the Reverend to the Regional Council (the Region). The Region then referred the matter to the Deacons of the church. Nothing much happened and the members, who raised the complaints in July, raised these complaints again in September A meeting was scheduled by the Kei Ministerial Committee for 11 October 2008 which was not attended by the Reverend. Various procedural objections were raised by him then. [7] According to the first respondent, the Kei Regional Council (the Region) appointed a Commission to investigate the allegations or complaints which concerned the Reverend s alleged irregular use of church funds and several other complaints which resulted in acrimony

4 amongst members of the church. There were certain investigations which apparently came to nought. During June 2010, the Synod again had cause to consider the continued conflict in the church and decided upon an independent investigation. There were also further complaints. The main problem appears to be the rift between supporters and nonsupporters of the Reverend. It is important to stress here that the guilt of the Reverend in respect of all the accusations has never been established. The first respondent is only desirous to investigate the allegations at the point. [8] According to the first respondent, it was decided that an investigation should be held without the involvement of the Reverend and to suspend him because the first respondent believed that the Reverend was obstructive and hampered the investigation. The Reverend seems to have great difficulty in accepting the position adopted by the first respondent. [9] In support of the argument that the committee (as opposed to the Regional Council) did not have the necessary power to suspend the Reverend, reliance was placed on clause of the first respondent s constitution ( the Constitution ) in Procedure 13 thereof, which deals with complaints against ministers. It reads as follows: In the event of a preliminary investigation establishing that there are grounds for a full investigation, the Region may suspend the Minister, with full stipend, against whom the charges were laid from the Ministerial duties. An Acting Minister will be appointed for the period, to the Church concerned (emphasis added). [10] The aforesaid clause indeed confers on the Region the power to

5 5 suspend a minister. However this does not exclude the power of the higher structures such as the Synod or the Assembly from doing the same. The Region s powers are ultimately subject to those of the Assembly. The constitution provides that the Assembly (and therefore its executive committee) enjoys appellate as well as original disciplinary jurisdiction over the church. [11] The following clauses are significant: In terms of clause of the constitution the Assembly has general pastoral and disciplinary oversight over the Church in its entirety. [12] The Assembly normally exercises its pastoral and disciplinary oversight in cases brought before it by Regional Councils and Synods by reference, complaint and appeal, but it retains the right of full investigation in all cases of discipline. The Assembly and the committee therefore have original as well as appellate powers. [13] Clause 6.1 of the constitution provides that the Assembly is the governing body of the Church and its highest court. [14] In effect, the Reverend challenges this highest authority with reference to the clauses cited above, and a proper interpretation of the constitution regarding disciplinary powers is, that although the Regional Council would be the first structure seized with the matter, the committee, who would normally be seized with appeals, is also empowered to suspend or take other disciplinary action as a structure of the first instance.

6 [15] As I understand it, the Reverend s further argument on this point was that because he is an employee of the church he can only be suspended by the Region. It is not necessary in this matter to determine whether the Reverend is an employee or not. Even if he were an employee of the Church, and not of Assembly or the Committee, he is still subject to their disciplinary powers. That is a matter of common sense. A useful comparison referred to by counsel for the first respondent in support of this point was, that this situation could be compared to that of persons in other professions with regard to their governing structures, e.g. an advocate and the Bar Council; an attorney and the Law Society; a nurse and the Health Professions Council. [16] When the Reverend noted an appeal against his suspension in a letter addressed to the denomination or Assembly against the decision to suspend him taken by the Synod, he stated the following in a letter: Lastly I have heard and saw a synod ministerial committee report that states that I need to go on three months leave, which is unconstitutional. It is my understanding that such a recommendation should go to the UCCSA Executive (emphasis added). Significantly, this is an acknowledgement on the Reverend s own part, that he is subject to the committee s disciplinary powers. [17] The complaint which was the subject-matter of the suspension, was laid against the Reverend with the Kei Regional Council. In terms of clause of Procedure 13 of the constitution, the Regional Ministerial Committee must institute a full investigation into such a complaint, when a preliminary investigation reveals that there is substance to the complaint. The Reverend however, appealed to the Synod before the

7 7 Region made any pronouncement on the issue. The Synod then decided to suspend the Reverend pending a full investigation. Before the investigation process was completed, the Reverend appealed to the Committee who also then decided to suspend him pending a full investigation. In my view, the applicant s complaint that the committee was not empowered to suspend him, is without any merit. [18] The second complaint, namely that he was not afforded a hearing before his suspension, is equally without merit. Before his suspension, the Reverend was heard by the Elders or Deacons of the Region who wanted to discuss the complaints which were made. The respondent raised procedural objections. The Reverend was given a charge sheet, and he did present a case thereon or responded thereto before the Kei Region according to the first respondent. Pursuant to the appeal, the Assembly Executive Committee, the Commission scheduled meetings for 15 and 17 November 2010 at the LLC Duze Church and later on 23 and 24 March 2011 at King Williams Town. No new charges were formulated after the Kei discussions. The meetings aforesaid were convened inter alia with the purpose of hearing the Reverend on the question of the suspension. He did not attend the November meetings on the March meetings. [19] It can hardly be said that the Reverend was unaware of the charges, or that the audi alteram partem rule was breached with regard to him. He did receive a charge sheet and did not attend several meetings held to discuss the matters surrounding him. Where a party is afforded an opportunity to attend at a tribunal and to be heard, but fails to do so, he may be regarded as a person who has been properly summoned and has failed to appear, and a decision is made in his absence will not on that account be set aside on review. A person who is

8 invited to put his case and refused cannot reply upon a breach of the audi rule. (Rose-Innes in Judicial Review of Administrative Tribunals in South Africa page 157. See also: Radloff v Clocolan Ko-Operatiewe Landbou Bpk 1955 (3) SA 418 (A) at 423 B). [20] The Reverend s explanation for not attending the March 2011 meetings was not acceptable. He informed the committee that he had to take his children to school and therefore could not attend the meeting. I agree with counsel for the first respondent s description of this explanation as a lame excuse. A person who genuinely wanted to persuade the committee that there was no merit in the charges levelled against him, would have made alternative arrangements for his children and attend the meeting. The Reverend seems to labour under the misguided notion that was entitled to a full hearing before he could be suspended. The opportunity he was qiven, namely to appear at two scheduled meetings was clearly sufficient. Therefore, the complaint of not being heard before his suspension was entirely of the Reverend s own making. The Reverend has made out no grounds for interference with the decision of the first respondent. The Counter-Application [21] The Reverend has clearly demonstrated that he would not comply with the conditions of his suspension, and in particular, to desist from participating in the activities of the LLC Duze Church. He has in his reply stated categorically that he would continue to do so at the behest of the congregation. He has also added to the existing prolixity of his papers by attaching a petition to his replying affidavit, purportedly signed by members of his congregation, seeking to drum up support for his

9 9 continued presence in the church. Such antics are entirely inappropriate in a review application. [22] Violence has also broken out in the church community and a manse has been burnt down. The first respondent contends that the Reverend and his followers made it impossible for it to implement the Reverend s suspension and to investigate the complaints against him. The first respondent clearly should be permitted to investigate the complaints and be permitted to restore calm and order to the Congregation. It is therefore entitled to the relief it seeks in its counter-claim. [23] The manner in which the Reverend has chosen to litigate in this matter leaves much to be desired. He burdened the record with voluminous papers consisting of irrelevant material, mostly typed in a very large font which created unnecessary volume. He introduced new evidence (including the petition) into his replying affidavit. This was entirely unnecessarily in this relatively simple matter. There is no justification for the denomination to be out of pocket because the Reverend does not tolerate any challenge to his authority. The Reverend also could not provide any evidence, despite being invited to do so, in the answering affidavit, that the actual congregational of the LLC Duze Church is properly before court as second applicant. That should have been done in accordance with a decision taken at a church meeting, authorising the church to join the Reverend as second applicant. [24] A punitive costs order against the Reverend personally is therefore warranted in these circumstances.

10 [25] Accordingly the following order is made: 1. The application brought by the first applicant is dismissed. 2. The counter-application brought by the first respondent succeeds and the first applicant is hereby interdicted from: 2.1 involving himself in the affairs of the LLC Duze Congregational Church during his period of suspension or any extension thereof; 2.2 from instigating or causing disruption in the affairs of the church; 2.3 from instigating conduct designed to prevent the implementation of his suspension. 3. The applicant is to pay the costs of the main application and the counter-application on a scale as between attorney and client. E REVELAS JUDGE OF THE HIGH COURT Counsel for the Applicants: Adv Sandi Grahamstown Instructed by: NN Dullabh & Co Grahamstown Counsel for the Respondents: Adv D Potgieter (SC)

11 11 Instructed by: Netteltons Grahamstown Date Heard: 18 August 2011 Date of Order Delivered: 30 September 2011 Reasons Available: 30 September 2011