Mphethi v Tsubella and Others (CIV/APN/62/03)

Case No: 
CIV/APN/62/03
Media Neutral Citation: 
[2003] LSHC 90
Judgment Date: 
15 August, 2003

Downloads

CIV/APN/62/03

IN THE HIGH COURT OF LESOTHO


In the matter between:


REV. PALO JOHN MPHETHI APPLICANT

AND

THE RIGHT REV. BISHOP JOSEPH TSUBELLA 1ST RESPONDENT

REV. PHILLIP POSHOLI 2nd RESPONDENT

DIOCESE 01- LESOTHO OF THE CHURCH OF

THE PROVINCE OF SOUTHERN AFRICA 3rd RESPONDENT


JUDGMENT


Delivered by the Hon. Mr. Justice G. N. Mofolo On the 15th day of August 2003.


The applicant Rev. Palo John Mphethi has approached this court in the matter of an urgent applicant for mandament van spolie seeking an order in the following terms:.


  1. Dispensing with normal modes and periods of service provided for by the Rules of this Honourable Court due to urgency of this mater.

  2. Directing Respondents to show cause, if any, on a date to be determined by this Honourable Court, why the following order should not be made final and absolute:

2


    1. Declaring 1st Respondents purported transfer of Applicant from Quthing Parish as being null and void and of no legal force and effect;

    2. Ejecting 2nd Respondent from Applicant's Rectory in the Quthing Parish;

    3. Re-instating Respondent to the Quthing Parish to excise his priestly duties;

    4. Directing 2nd Respondent to vacate the Quthing Parish.

    5. Interdicting 1st Respondent from interfering with Applicant's administration of the Quthing Parish save as otherwise provided by law.

    6. Directing Respondents to pay costs of this application on an attorney-and-client scale.


When the matter came before my brother Peete J., it appears that prayers 1 (a) and 2 were made to operate with immediate effect as interim orders. The application was opposed. Before me the parties have agreed that points taken in limine be not pursued.

On a reading of this case, it would seem that facts of the case are as follows:-


3


Applicant before his transfer to Holy Trinity, Quthing served at the Theological Education Extension (T.E.E.) Maseru (annexure "JPM3"). On 5th December, 2002 the 1st Respondent by copy of a letter to Church Wardens and Councillors of the Holy Trinity Church, Quthing informed the applicant that a decision had been taken that 'Rev. John Palo Mphethi should return to Quthing Parish as your priest and Rector.' The reason for the transfer was the 'shortage of the clergy in the Diocese which made it imperative to' make the maximum use of available clergy. It was said hence there was the necessity and 'need for the Rev. J. P. Mphethi to get involved in parish work.' The wardens and councillors had been exhorted to receive back the applicant 'warmly as he starts his work again among you.' He was to start work from January, 2003.


In another letter dated 5lh December, 2002 the 1st Respondent had written to the applicant confirming 'that you have agreed to go to the Parish of Holy Trinity, Quthing from January, 2003 after you have been asked to do so by the Senate.' The applicant's attention had been drawn to the fact that 'you decided to resign from T.E.E. office on your own' by reason of pressure of work 'you will not be able to do T.E.E. work as well.'


'You also resigned from the Senate.' Further, that on Monday 2nd December, 2002 you asked me to write to USPG to stop the money they were going to give you to complete your studies next year 2003, because being at Quthing you will not be able to study well and you do not want the money to


4


be wasted unnecessarily. The 1st Respondent had then looked forward to the applicant settling well in Quthing.


From the above synopsis, there can be no doubt that in order to answer the Quthing call, Applicant appears to have forgone a number of positions and opportunities. As I see things, he was prepared to 1stace his career at risk to satisfy ministerial needs. He impresses me as thrifty and tight-fisted and more, relations between him and 1st Respondent were warm. And yet, a month later on 22 January, 2003 the 1st Respondent writes to the applicant to the effect that the Senate together with the Bishop has decided 'that you be appointed the Rector of St. James Mants'onyane and Chaplain to the St. James Hospital' beginning of February, 2003. The 1st Respondent has gone on to say that there were many letters from Quthing Parish, 'that they do not want you back in Quthing1. But after much thought and discussion it was agreed that 'we do not want to jeopardize your Ministry-------and put your life in danger in Quthing.


Being under the impression that the applicant had not finished his work with the T.E.E. the 1st Respondent had observed 'consequently, you will have to finish your work at the T.E.E. office soon.' The applicant had then been asked to make an appointment 'with my Secretary to discuss this further as well as some comments from the letters I have received.'


On 2nd February, 2003 the 1st respondent had written to the applicant


5


thus: the Rev. John Palo Mphethi, Diocese of Lesotho, giving the impression that then the 1st respondent believed the applicant to be still in Maseru, if I am right. The 1st respondent draws the applicant's notice to the fact that 'you should by now have been to see me in my office' to tell me when you will be going to work at St. James, Mants'onyane, as Rector. Also, so long as the applicant is not at Mants'onyane and not doing work it would not be fair to pay him end of February, 2003 and following months for doing nothing. The 1st Respondent goes on to saying Applicant should have been to seeing him about his transfer from T.E.E. as he had been asked to do so after 14th January, 2003 and that Applicant not having come to see the 1st Respondent this amounted to disobedience. Applicant had been given 14 days to present himself in 1st Respondent's office otherwise Canon 19 would be deemed to be in force immediately. Reference was also made to a letter from Rev. Ossie Swartz of U.S.P.G. inquiring about applicant's position concerning his (applicant's) training and whether they were to go ahead to procure funding for applicant's training and the 1s' Respondent was saying he cannot give a positive reply to Rev. Swartz 'until I know your position in the Diocese.' And yet, responding to Applicant's communication on the subject the lsl Respondent by his letter of 5th December, 2002 had assured the applicant "your stoppage of the U.S.P.G. fund will be effected/1


I am of very strong impression that the 1st Respondent for some reason was not recalling the fact that for all intends and purposes the applicant had


6


been transferred to Holy Trinity, Quthing where, according to annexure"JPM2" he was expected to 'begin work-----from January, 2003.' And although the applicant in terms of his transfer he was to start work at Quthing sometimes in January, 2003, a note by the applicant (annexure "JPM3") surprises one for it is dated 16 January, 03 from Theological Education Extension, Maseru with a copy to the 1sl Respondent. The note reads: -


Dear Archdeacon,


This is to inform you that I will be away from the Parish and T.E.E. office for a short leave for two Sundays, beginning from 19-01-03 to 26-01-03. I will be back into the Parish to resume my priestly duties on 3 1.01.03.'


This is hardly surprising for by his letter of 22 January, 2003 the 1st Respondent had intimated to the Applicant that 'consequently you will have to finish off your work at T.E.E. office soon.' All that this means is that rightly, when Applicant went on leave he was operating from the Theological Education Extension. There can be no doubt that 1st Respondent knew or was aware that Applicant went on leave and that when Applicant went on leave it was not from Holy Trinity but from T.E.E., Maseru. Quite clearly therefore, and going by Applicant's note of 16 January, 2003, Applicant for the whole of January 2003 was on leave operating from the Theological Education Extension where, according to the letter, he returned after the expiry of his leave. This explains the reason why, on 22 January, 2003 the 1SI Respondent wrote to the


7


Applicant at T.E.E. office, as explained above. I do not know how clergymen operate, but it is expected that they would operate like any business executive afterall they arc a highly educated and motivated class. By this I mean that by January, Applicant should have commenced duties at Quthing. Instead; the Quthing affair arises only on 22 January, 2003 when, already Applicant should have been serving in Quthing. The lsl Respondent knows that the Applicant did not go to Quthing afterall but that for the month of January, 2003 (excluding his leave) Applicant served at the Theological Extension where, after 22nd January, 2003, he was expected to finish off his work before proceeding to Mants'onyane. If so, why didn't the 1st Respondent inform Applicant that his transfer to Quthing was cancelled and on completion of his work at the Theological Extension he was instead to proceed to Mants'onyane? Why claim that the Quthing parishioners did not want him back there? Maybe they did. But why provide, as evidence, inadmissible evidence and after the court has acquainted itself with it withdraw it? The 1st Respondent in his letter of 22 January, 2003 speaks of 'I did inform you about the letters I received from Quthing parish. They are many, and I emphasise they do not want you back in Quthing.' If what the 1st respondent is saying is true, then where are these many letters? A bishop is entitled to transfer a priest and I doubt he has to give reasons for this. But if he gives a reason, it must be true. Since evidence on which the 1st respondent relied for the transfer has been withdrawn, how can I say that the transfer was not motivated by ill-will? I will not call it malice.


8


Applicant's Founding Affidavit paragraph 1 is to the effect that, amongst other things, he is Rector of the parish of Holy Trinity in the Quthing district.


Paragraph 8 of the Founding Affidavit applicant says having consulted with the Rev. Ven. Joseph Ntlamelle he had also communicated with Parish Church Warden Thabo Nyaba-nyaba as a result of which a Parish Council meeting was held on 4 January, 2003 and a Parish Business Meeting for reports and 1stanning was scheduled to be held on 1st February, 2003 and on 5th he had held a Eucharistic Service at which he was warmly welcomed and made an announcement that he was proceeding on leave for two Sundays with effect from 19 January, 2003 to 26 January, 2003. He says he had then started work in the Parish. It would seem when, as Applicant says, he started work in Quthing Parish, he was operating from the Theological Education Extension finishing off his work there and may have commuted from the Theological Extension to Quthing. Certainly though Applicant's presence at the Theological Extension was acknowledged by the lsl Respondent.


Applicant's paragraph 9 shows that on 7 January, 2003 he came to Maseru for transportation of a few items to Quthing being when 1st Respondent informed the applicant that people in the Quthing Parish did not like him and on disclosure that he had been to Quthing a number of times where he was warmly welcomed, 1st Respondent seemed surprised. He had gone through a pile of papers looking fora letter in vain. On 15 January, 2003 he had spent all


9


morning working hours at T.E.E. and had met lsl Respondent. At paragraph 11 Applicant says that ho reported at the Quthing rectory on 29 January, 2003 and had returned earlier to make schooling arrangements for a child. There he had found Mr. Thabang Phori and some ladies cleaning the rectory who said they were not expecting him but 2nd Respondent who had since been appointed as his successor. He says he had then been told and had no reason not to believe Mr. Phori that he had been transferred to St. James, Mants'onyane. He says the meeting held to transfer him must have been held at the time when the Commission knew he was not within the parish and suspected may be the 1st Respondent had found the letter saying he was not wanted by Quthing Parish Congregation. He also says he was surprised because if the 1st Respondent intended to remove him from the parish he would have to act on the basis of a report from the Parish Council that is mandated to communicate to the Bishop or Archdeacon any evidence of misbehavior on his part within the Parish.


According to paragraph 12, 2nd Respondent had arrived to unload his luggage at the Rectory but as 2nd Respondent had no letter of transfer he had been turned away on Applicant showing 2nd Respondent his letter of appointment as Rector of Holy Trinity, Quthing.


At paragraph 14 the Applicant has alleged he asked 1st Respondent as to whether that is how clergymen are transferred i.e. a letter being written to them. He says he asked this question because in terms of the Constitution and Canons


10


of the 3rtl Respondent 'it is a requirement that I should be afforded an opportunity to be heard before I can be removed from the Parish.' He says since he had not been afforded a hearing he knew that the Respondent was acting unlawfully. He says 1st Respondent was furious and he walked away to avoid confrontation.


The 15th paragraph is to the effect the 1st Respondent and his entourage had broken into the Rectory to let 2nd Respondent and family into the house. He says the following day he found 2nd Respondent and family in his house and his belongings were lucked away in one room.


At paragraph 16 the Applicant has deposed he has been using the house ever since he was transferred to Quthing parish; that he has a clear right to the house by virtue of being Rector of Quthing Parish. He has never parted with possession of the house and has enjoyed a peaceful and undisturbed possession of it until 31 st January, 2003 where he was unceremoniously ejected by 1st and 2nd Respondents.


1st Respondent's Answering Affidavit is found on page 29 of the record and in particular it is of significance that the lsl Respondent has admitted that at the material time the Applicant was 'Rector of the parish of Holy Trinity in the district of Quthing, within the Diocese of Lesotho of the Church of the Province of Southern Africa.'


11


Paragraph 6 of the Answering Affidavit is of particular interest in that it illuminates some grey areas of the application and particularly the relationship between the 1s' Respondent and some of the clergy. The 1st Respondent has said that before his pastoral duties in Lesotho he was a priest in the Republic of South Africa but his assignment by the Archbishop of Cape Town to administer the a ffairs of the church had been met with fierce resistance by some of the clergy including open defiance of his orders and instructions by some priests. The tendency had culminated in challenges of order to priests ending up is courts of law. According to the 1st Respondent, 'applicant is one of the priests whose mission is to be disobedient and obstructive------.'


According to 1st Respondent's paragraph 6.2, Applicant after his ordination subjected himself to the Bishop's authority and Canons of the Church; for some time after his ordination applicant was stationed at Quthing as a priest; Applicant had gone away to improve his education and returning had not gone back to Quthing but worked at T.E.E. office in Maseru. While he was at T.E.E. he was stationed at Masite Mission 'where he remained until he clandestinely moved back to Quthing Mission (para. 7.1).'

And yet at paragraph 7.2 1st Respondent says during December, 2002 Applicant was ordered to return to Quthing with effect from January. And then wonder of wonders, 1sl Respondent says that (para.8) the effect of his letter ("JPM") was not to transfer 'him to Quthing as he was never officially transferred from Quthing' meaning Applicant while at T.E.E. was 'stationed at Masite Mission'


12


(para. 7.1) and Holy Trinity, Quthing at the same time. And yet "JPM1" is clear that--------you have agreed to go to the Parish of Holy Trinity — after you have been asked to do so by the Senate.' Again, '-----you decided to resign from the T.E.E. office on your own because-----being at Quthing and knowing what Quthing parish is like, you will not be able to do T.E.E. work as well.' Surely even if Applicant had not been formerly transferred from Quthing the Senate asked him to return there from his base at T.E.E. I don't know what 1st Respondent means by 'effect my letter (-----) was not to transfer him —' for transfer is no more than to move from one 1stace to another.


According to 1st Respondent's paragraph 8, Quthing parishioners were against the Applicant returning to Quthing and the information had come from Canon Ntlamelle who, apparently, is also Archdeacon Ntlamelle.


According to the 1st Respondent, Archdeacon Ntlamelle told the Applicant to await a farther decision regarding his fate in view of new developments that had 'arisen after the Senate decision to have him return to Quthing.' According to the 1st Respondent, it would appear the Applicant disobeyed the Archdeacon's order and proceeded to make arrangements for his eventual settling in Quthing. The lsl Respondent has annexed "JT2" and JT3" as the basis for his allegations against the Applicant for the 1st Respondent add: 'Although I ought not to conduct the Church's administration on the basis of rumours and gossip, I could not, however, ignore these allegations as Applicant


13


would be required to work with and among these people,' 1st Respondent has further deposed that 'the Senate and I had to give careful thoughts to the parishioner's attitudes as balanced against the need to jeopardise Applicant's ministry and to ensure the safety of the Applicant.' With respect, lsl Respondent has already said that Applicant was never officially transferred from Quthing meaning, for practical purposes that Applicant was still stationed at Quthing and liable to return there at any time. If Canon Ntlamelle cautioned Applicant to await new developments, I am at pains to understand what the new developments were because the 1st Respondent's letter had no hint of obstacles on Applicant's return to Quthing. It is expected that if Applicant in his previous stay in Quthing had misbehaved himself this would have been reported to lsl Respondent and he would be cautious whether or not to have Applicant return to Quthing. On his return to Quthing after the transfer, there is no evidence of dissatisfaction by parishioners of Applicant's services except perhaps circulating rumours against the Applicant. If there was objection, it is expected that the objecting body would have communicated their objection to 1st Respondent with a copy to the Applicant. If one is to go by 1st Respondent's assertion, there were such objections except that these were not served the Applicant nor is the 1sl Respondent in possession of them. In deciding to recall Applicant's posting to Quthing, it was in pursuit of noble ideas according to 1sl Respondent not to jeopardise Applicant's ministry and to ensure his safety. I cannot think of anything more beneficial and ennobling. And yet, factors "JT2" and JT3" which precipitated Applicant's recall from Quthing were withdrawn


14


leaving no reason for Applicant's recall from Quthing. Since 1st Respondent's case rested squarely on these documents being complaints from Holy Trinity Parish, Quthing by parishioners, having been withdrawn and therefore non­existent, can it be said that there were complaints against the Applicant by Holy Trinity parishioners? Does this not amount to 1st Respondent conducting the churches administration on the basis of rumour and gossip as he has deposed in his affidavit? The Senate and 1st Respondent have a right to transfer a priest whenever there is need for such transfer and doubt, as I said, whether a reason is called for so long as God's work requires that a priest be transferred. But where there is reason for the transfer of a priest, it has to be substantiated; and although in the beginning it was lsl Respondent's case that Applicant had to be transferred because Quthing parishioners did not want him anymore, there is not an iota of evidence that Applicant is not wanted by Quthing parishioners.


I am aware of Canon Joseph Ntlamelle's supporting affidavit and particularly his paragraph 2 and 3 which read, respectively, 'I adhere to and associate myself with the averments in the first Respondent's affidavit so far as my name is concerned and------I can confirm that Applicant ought to have reported to me before taking over the Quthing Parish and he did not do that. I confirm further my discussions and directions to the Applicant when we met on 3 lsl January, 2003.


15


This court takes the view that it would seem Canon Ntlamelle has associated himself with 1st Respondent's affidavit in so far as (1), his name is mentioned; (2) that Applicant should have reported to him before taking over the Quthing parish and his discussions and direction to the Applicant when they met on 31st January, 2003. Indeed 1st Respondent so far as Canon Ntlamelle's name is concerned did depose to the fact that "before 31st December, Canon Ntlamelle who is responsible for the administration of the Church in the South informed me that the Quthing parishioner's were against Applicant returning to Quthing.' Notice has to be taken of the fact that Canon Ntlamelle is an officer of the church in the South and I wonder whether in that capacity he can pass as and speak on behalf of the parishioners. Another bothersome factor is that while the parishioner's complaints against the Applicant were annexed to 1st Respondent's answering affidavit and complaints which, according to the lsl Respondent, he had acted on, it is not clear why, if such complaints existed the original documents were not annexed to support 1st Respondent's and Canon Ntlamelle's allegation. How can I believe that there were complaints against the applicant by parishioners? After the withdrawal of annexures "JT2" and "JT3", I understood Mr. Phoofolo as changing course and saying that his case, afterall, rested on the fact finding mission or Commission by Dean Duma, Venerable Ntlamelle and Canon Riet which Commission reported to the 1st Respondent that Applicant was not wanted at Quthing. Mr. Phoofolo is adamant it was in the light of the Commission report that the Applicant was transferred from Quthing to


16


Mants'onyane. And yet, according to 1st Respondent by his letter of 22nd January, 2003 to the Applicant, there is no mention of the Commission the decision having been taken by the Bishop's Senate and the Bishop. The Bishop has also referred to 'letters I received from Quthing Parish. They are many, and emphasise they do not want you back at Quthing.' I have also perused the Constitution and Canons of the Church ofthe Province of Southern Africa and find that the right to transfer a priest rests with the Bishop who will transfer a priest if he considers God's work so requires and if the curator is unwilling he shall lake Counsel with the chapter ofthe Cathedral Church, his Senate or if there be no Senate or Chapter with three priests ofthe Diocese who, if the majority agree with such a course, after giving the clergyman an opportunity to be heard, he shall offer the said clergyman other paid work. In other words, on Applicant refusing the transfer to Mants'onyane, 1st Respondent should have consulted with Church bodies shown above —. (my emphasis).


Instead of the lsl Respondent consulting with church bodies as above, 1 ' Respondent proceeded to Quthing to eject the Applicant. As I have said so many limes above, the Applicant was not given an opportunity to be heard before the transfer for the last paragraph of letter of 22 January, 2003 above reads: 'Please make an appointment with my secretary to discuss this further as well as some comments from the letters I have received.' Clearly the appointment was with the Secretary not with 1st Respondent. I may emphasise


17


that as to transfer, church statutes to not seem to be confrontational reflecting, as they do, a spirit of true brotherhood and understanding consonant with ecclesiastical morality.


Applicant's case is worth taking seriously. Applicant had very good rapport with 1st Respondent. He agreed to go to Quthing foregoing some of his rights and privileges to serve in Quthing. Applicant has been to the Holy Trinity, Quthing parish before; had gone to school, returned, worked at T.E.E. and Masite Mission; was not officially transferred from Quthing according to the 1st Respondent, the 1st Respondent in writing to caretakers of the church in Quthing there was no hint at all that Applicant was not wanted there and all of a sudden applicant is not wanted by Quthing parishioners and there is no evidence he was not wanted by the parishioners. Instead priests and not a single member of the congregation appears or testifies to the fact that Applicant is not wanted in Quthing; rather it is a case of priests fighting against another priest. The whole thing disintegrates into a farce, whether Applicant was not wanted at Quthing because of parishioners complaints or whether it was as a result of Commissioners' report to the bishop.


1st Respondent at paragraph 13 of his Answering Affidavit says he does confirm that he did sent a fact finding mission to Quthing parish following the parishioners representations. Question is: if 1st Respondent did sent such a commission based on parishioners complaints against the Applicant, why was


18


Applicant's attention not drawn to these complaints for him to defend himself against them? More, where are these parishioners' complaints against the Applicant? Why were false ones annexed to 1st Respondent's Answering affidavits and withdrawn? Otherwise how can I believe that there were parishioners complaints and representations against the applicant, complaints which resulted in the setting up of a commission of three priests on whose findings the 1st respondent acted against the Applicant? If there were such written complaints against the Applicant, he should have been served with these and the court should also have seen them.


Since, as far as this court is concerned, there are no such complaints by parishioners of Quthing against the Applicant, how can I, by the same token, take it that the Commission set up by the lst Respondent was tasked on the parishioner's complaints against the Applicant' when, failing production of the complaints, not a single parishioner has furnished the court with evidence to the effect? Even were there such a Commission, I am not satisfied that it gave the Applicant an opportunity to defend himself.


As for 1st Respondent's assertion that before transferring Applicant to Mants'onyane Applicant was given a hearing in terms his letter "JT4" dated: 22 January, 2003, I don't know where the Bishop gets this for his Lordship's last paragraph explains it well namely: "please make an appointment with my secretary to discuss this further as well as some comments from letters I have


19


received".


All that the Bishop asked of Applicant was to consult with his secretary presumably to discuss Applicant's transfer and to comment on letters he received. In the first 1stace, the Bishop referred Applicant to his secretary for discussion, if the Bishop meant that Applicant was to see him regarding his transfer, why has he not said so? As for 'letters I have received' it is a mystery which letters 1st Respondent is talking about for 1st Respondent did not serve Applicant with these and it would seem the 1st Respondent hasn't got them either. If the Bishop intended that the Applicant should see him regarding his transfer, the 1st Respondent should have said so instead of going vial third parties. As I understand the audi principle, a party is heard where he is given notice of where and when the parties are to meet to discuss a particular issue. This did not materialise in so far as the Applicant is concerned. If I have not said this already, I have no doubt that before Applicant was transferred or re­routed from Quthing to Mants'onyane the Applicant had not been heard.


As to collation, institution or presentation of the Applicant to his congregation in Quthing, the Bishop intimated nothing of the sort to the Applicant except writing directly to Church Wardens and Councillors of Holy Trinity Parish to 'receive him back warmly as he starts work again among you.' Further, the bishop had said 'he will have to communicate with you and Archdeacon Ntlamelle as to the exact date of his arrival' and 'I ask you to make


20


proper arrangement for his accommodation.' Noticeably, Applicant had not been alerted to communicate with anybody as to the exact date of his arrival so that all that was required of Applicant was to begin work at Quthing sometime in January, 2003. Applicant's communication with Church Wardens, Councillors and Archdeacon Ntlamelle was adverted to by the bishop in a letter to Church Wardens and Councillors not to the Applicant. Be this as it may, the Applicant in his Founding Affidavit has deposed that around 31s1 December, 200.! he duly consulted with Archdeacon South the Ven. Reverent Joseph Ntlamelle and also communicated with Parish Church Warden Mr. Thabo Nyakmyaha and the meeting was successful. Applicant has also deposed 'on 5lh I held a Eucharistic Service at which I was warmly welcomed.' Neither Archdeacon Ntlamelle has gainsaid this except associating himself with 1st Respondent's affidavit nor has Mr. Thabo Nyabanyaba denied Applicant's allegations.


In his Answering Affidavit the 1st Respondent does admit that Canon Ntlamelle informed him that Applicant did consult with him on 3 lsl December. 1st Respondent does not deny that Applicant communicated with Church Warden Mr. Thabo Nyabanyaba one of the officers of the Church given a directive by the 1st Respondent to receive Applicant back warmly nor has it been denied that Applicant was received back warmly.


According to 1st Respondent, Archdeacon Ntlamelle told Applicant to


21


await a further decision as new developments had arisen concerning his return to Quthing. Account has to be taken of the fact that in his Replying Affidavit Applicant has denied allegations against him by Canon Ntlamelle that he told Applicant to wait a while as there were new developments subsequent to the transfer. This is an application and it would seem whether Applicant was told to hold his horses owing to new developments in the parish is Archdeacon Ntlamelle's word against the Applicant's. Point of interest is that Archdeacon Ntlamelle is not a mountain and works with some other people and yet, in defending himself (if he did) he does this alone; surely if Applicant was not wanted at Quthing one or the other of Church Wardens or Councillor would have said so. 1 do not agree that Applicant went to Quthing by stealth for as I have shown above as to Applicant's communication with Church Wardens, Councillors and Archdeacon Ntlamelle as to his exact date of arrival, this was communicated to the Church Wardens and others but certainly not to the Applicant.


I do not agree that lsl Respondent and some priests are disobedient and flout Bishop's orders for Canon 25.6 of the Constitution and Canons of the Church of the Province of Southern Africa is to the effect that it the Bishop of the Diocese considers the work of God in a pastoral charge demands that there should be a change of incumbent or assistant curator he shall (failing the consent of the said incumbent or assistant curator to the change) take counsel with the chapter of the Cathedral Church or with his Senate or if there be no


22


Senate or chapter with three priests of the Diocese and if the majority agree with such a course, after giving the said clergymen an opportunity to be heard, he shall offer the said clergyman other paid work in the Diocese. In other words, should the Bishop find there is need for a priest to be relocated, it shall be done. Where, however, a priest resists transfer the Bishop shall seek Counsel as shown above and after giving the clergyman an opportunity to be heard he shall offer the clergyman other paid work in the Diocese. (The underlining is by me for emphasise).


I don't know what the Bishop has done with the Applicant but it seems to me where a priest resists a transfer, in terms of the statutes of the Church, the above is the course to be followed by the Bishop. The Canons and Constitution of the Church is awash with recalcitrant clergymen being given an opportunity to be heard. What's more, the law of the Church is not confrontational but benign, benevolent and generous for the reason that framers of the legislation understand that even among clergymen difference of opinion may arise and when it does it is to be treated with care and circumspection by Church authorities. As I understand Canons of the church, it is certainly not a tooth or eye for an eye, but giving the other cheek, much as common sense dictates that this can't go on for ever.


As for clergy residence, Canon 26 is to the effect every Parish clergyman whether incumbent or assistant shall reside within the limits of his Parish (------


23


if there be no Parsonage House). In the instant case there is a Parsonage house in which Applicant lived.


So far as case law is concerned, in Motaung vs. Mothiba. N.O.. 1975 (1) SA 618 (O.P.D.) it appeared that the Applicant had been demoted without being heard and in his absence contrary to precepts of the Constitution. On application to court to set aside the demotion the application had been granted.


Grungdling vs. Van Rensburg. NO. 1984(4) SA 680 (WPA) is a case where a preacher was not informed of the nature of rumour which was investigated against him by the Presbytery Commission and he was only informed when investigation was completed and report submitted to the Presbytery. The court on review had found the right to rebut a rumour at an early stage is a valuable right and its denial amounted to serious irregularity. The court also found potential prejudice to the Applicant material. The Appeal Court had found the Presbytery Commission should have, in accordance with the Constitution of the Church, called upon the Applicant and his witnesses to appear before it 'to throw light upon the matter.' The Court in addition found the test where natural justice was in issue was whether there was potential prejudice.


I n Evangelical Lutheran Church in Southern Africa (Western Diocese) vs. Sepeng and Another, 1988 SA 958 the Bishop in transferring the


24


respondent had asked that the respondent vacate a house allocated him. Respondent had resisted both the transfer and quitting the house. The magistrate had found for the respondent and on appeal the court had reversed the order of the magistrate for the reason that according to the Constitution of the Church respondent was liable for transfer at any time. Secondly, it appears there was nothing obliging the church to provide respondent with accommodation being purely a privilege. It was on this basis that the Appeal Court overturned the magistrate's finding. Of importance is the fact that in the Evangelieal Lutheran Church the Bishop had not taken the law into his hands but relied on due process of law.


There can be no doubt that the Applicant was liable for transfer at anytime and it was hardly necessary for the Bishop to justify the transfer so long as he considered that God's work required services of a priest somewhere. Hut this is not such a case for Applicant was transferred from Quthing to Manis'onyane because of rumours circulating. And when a priest is transferred because of rumours circulating, according to the judgement in Grungdling above, the court had found the right to rebut a rumour at an early stage was a valuable right and its denial amounted to serious irregularity. There can be no doubt that because of rumours circulating around the Applicant should have been given an opportunity to rebut these. He was not only materially prejudiced but potentially prejudiced.


25


As to the allegation that Applicant was despoiled, the Applicant had alleged that he refused the 1st Respondent entry into his house and when argument became heated 'I decided to remain quiet. I subsequently walked away avoiding a confrontation. 1st Respondent shouted at me to bring back the key as I walked away and I ignored him.' In answer to Applicant's allegations, (para. 16) 1st Respondent says Applicant is distorting facts because, as problems were anticipated they came with a policeman and had gently asked the Applicant lor keys telling him the Parish people did not want him there. I wonder what parish people 1st Respondent is referring to for I have no evidence of such parish people before me. lsl Respondent also says 'I also told him that I was still expecting him to report to my office to discuss my letter of transfer — to Mants'onynne.' With respect, I am aware of no such letter from 1st Respondent inviting Applicant for a discussion regarding Applicant's transfer to Mants'onyane. If 1st Respondent is referring to letter of 22 January, 2003, I have already said that the letter is not an invitation to Applicant by the 1st Respondent. Letter of 6 February, 2003 is peremptory, it is no invitation to Applicant.


At paragraph 17 of his Answering Affidavit 1st Respondent says although the Applicant had walked away 'we simply opened the door and walked in.' This court does not understand how 1st Respondent could ask for keys from Applicant and the latter refusing with the keys 'we simply opened the door and walked in. Fact of course is that 1s' Respondent had not been allowed entry


26


and he forced his way into the house. By doing so lst Respondent took the law into his lands. Courts don't take kindly to parties taking the law into their hands. Hack home, in RollandLeenhardt vs. William Monoko. 1926- 1957 LICTLRp229, the Respondent after dismissal had refused being ejected from a house by the appellant claiming the house belonged to the Nation and not the church. The appellant a minister of the church had gone to court to have the respondent ejected instead of taking the law into his hands. As has been said again and again, I am of the view that whatever the circumstances, a landlord cannot lake the law into his hands lest there be bloodshed. Applicant has said (paragraph 15) after 1st Respondent broke into the rectory 'all his belongings were tucked away in one room.' Applicant at paragraph 17 has also said 'I presently have no other clothes to wear except those that I am now using for the simple reason that 2nd Respondent has without my consent taken possession of the house where 1 kept my belongings.'


In answer to Applicant's allegations, 1st Respondent has not denied that 'Applicant's belongings were tucked away in one room' and as for having no clothing 1st Respondent has alleged (para 19 of his Answering Affidavit) that Applicant is not prejudiced in any way for he still has his residence at Masite Church Mission nor has he been denied right of access to the Quthing house to lake his clothes. If I understand the 1st Respondent well, he is saying that he was entitled to force his way into Applicant's house and by doing so Applicant suffered no prejudice. It would seem to me 1st Respondent's position is that he


27


was entitled to take the law into his hands given the circumstances of the case. My reaction to this is that as generally accepted in our law, whatever the circumstances, a landlord cannot take the law into his hands.


Accordingly, this court confirms the Rule and grants the Application to the extend that:-


  1. The purported transfer of Applicant from Quthing Parish to Mants'onyane is rendered null and void and of no legal force or effect;

  2. 2nd Respondent be ejected from Applicant's rectory in Quthing Parish;

  3. Applicant is to be re-instated to Quthing Parish of the Holy Trinity with immediate effect;

  4. 2nd Respondent is to vacate Quthing Parish;

  5. lst and 3rd Respondents pay costs of this application as between party and party.


28


G. N. MOFOLO

JUDGE


For the Applicant: Adv. Mosae

For the Respondent: Mr. Phoofolo