Phori v Bishop of the Lesotho Diocese of Church of the Province of Southern Africa (CRV/APN/487/2001)

Case No: 
CRV/APN/487/2001
Media Neutral Citation: 
[2003] LSHC 142
Judgment Date: 
26 November, 2003

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CRV/APN/487/2001

IN THE HIGH COURT OF LESOTHO


In the mater between:


REENTSENG PHORI Applicant

and

BISHOP OF THE LESOTHO DIOCESE OF CHURCH

OF THE PROVINCE OF SOUTHERN AFRICA Respondent


For the Applicant : Mr. Kulundu

For the Respondent : Mr. Phoofolo


JUDGMENT


Delivered by the Honourable Mr. Justice T. Monapathi on the 26th day of November 2003


Counsel could have made their Heads of Argument more useful. They did not. I mostly blame Applicant's Counsel. This case is typical in one particular respect in that connection. Counsel are always abundantly and regrettably unmindful of the remarks of Harms J.A. in the Supreme Court of Appeal in Caterham Car Sales and Coachwork v Birkins Cars (Pty) Ltd 1998(3) SA 93A SCA at 955 B-F, in that:


"......Heads means points not a dissertation. Lastly "argument" involves a process of reasoning which must be set out in the heads, a recital of the facts and quotations from authorities do not amount to argument."


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The learned judge then quoted from Van Der Westhuizen No. V United Democratic Front 1989(2) SA 242 (A) at 252 B-G. The first mentioned case also found approval in Ensign-Bickford (SA) v AECI Explosives and Chemicals Ltd 1999(1) SA 70 at 84-85.


Heads of Argument can be very useful when they are about "a process of reasoning." If not it can be a problem to the judges of this Court (and they have their own faults) in seeming to adopt questionable approaches to problems in their reasons of judgment in the context of our adversarial systems of jurisprudence. This could have been the query in Jessie Ramakatane v Lesotho Bank C of A (CIV) No.4/2002 11 October 2002 where at page 3 Steyn P said:


"While I entertain serious misgiving about the correctness of the Court a quo's approach, I am persuaded that I should deal with the Court's corder so as to dispose of the matter once and for all because appellant's arguments are based on a misconception as law the meaning and effect of the bond. This will, I consider, best service the interests of the parties."


I suspect that this was an occasion where the learned President of the Court of Appeal actually said very little out of caution and humility towards a judge of this High Court and one of those who are collapsing under unremitting case allocations which unavoidably results in rulings by judges unaccompanied by reasoned judgments. It was much different from some remarks from the Court of Appeal, and they are indeed very few, which should not even be used by a


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judge of the High Court against the most delinquent of practitioners except in clear cases of mala fide. See James Rajane v Mamahali Monese and Another C of A (CIV) No.6/2003, 3rd October 2003.


In the instant case the Applicant was an ordained full-time priest of the Respondent's Church (the Anglican Church). Applicant later wrote on the 25th June 2001 to Respondent (the Bishop) requesting that he be removed from being a full-time priest to being one of with general licence. See Annexure"A". In the letter Applicant applied to the Respondent and briefly records that:


"I wish to be allowed to move from full-time ministry to general licence. I was ordained priest in 1992 and I worked as a full time minister to date."


What is a General Licence? Is it a licence or a priest's right to work in any parish of his choice? Does it have any meaning other than that the priest becomes self-supporting? If not what is its true meaning? In any event was the Bishop bound to give the Applicant a General Licence once he had accepted Applicant's wish to be removed from full-time ministry even if a form of a licence called a General Licence existed in the past as a fact?


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Subsequently, on the 28th June 2001, Respondent wrote back to Applicant acknowledging receipt of Applicant's letter and asking to be furnished with the reasons for his request. Applicant supplied the same. At the same time Respondent had said in the second paragraph of his letter that:


"I have asked the Rev. Joseph Ntlamelle to:


  1. Meet with you and the Parish Council so that you can give him all the records of the parish financial statement for 2000 of parish income and expenditure financial statement from the Bank Cheque Book and receipt books of the parish and general information about the parish.


  1. Supply me with reasons for leaving full time ministry. A reply to your letter will come as soon as you have furnished me with above." (My emphasis)


The natural question would be why the Bishop, having asked Rev. Joseph Ntlamelle to do things itemized in paragraph 1 above, cannot be said to have effectively sanctioned the Applicant's removal? In paragraph 4.3 Applicant made no remark about this. It may be it had to do with the meaning of General licence which Applicant places much reliance on. In any event I would conclude at the end of it all that the most useful approach should be the inquiry as to what the discretion of the Bishop is in the circumstances and whether such discretion ought to be fettered by any consideration. Why this has to be asked is by adverting to Applicant's replying affidavit at paragraph 7 where he says:


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"AD PARAGRAPH 7


I admit that it is respondent's prerogative to decide where a priest works. I am however advised.........that this prerogative is not extra-legal. It had to be exercised properly and I have to be heard before I am dispatched to a new location or moved from my old one. This did not happen. I also deny that I have prayed for a interdict ordering deponent to let me serve at Sekamaneng Parish I have prayed for a declarator and consequential relief." (My emphasis)


This Court has to point out at the onset that it was not a successful inquiry to find a valid basis for the complaints underlined in the above paragraph. I found it truly philosophical not to interpret the effect of the declarator sought to mean that that the Applicant contended that he was entitled to remain at Sekameng Parish whether this was expressed as an interdict or not.


Applicant then on the 10th July 2001 supplied the reasons for his wanting to remove from full time ministry and he said:


" I want to move from full-time Ministry to General licence because being in General licence I will stay at home and I believe that there


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will be an advantage for the Church because it won't pay me. Another reason is that I want to further my studies."


To the above response by Applicant then followed the reply by the Bishop, on the 30th July 2001, which is the "hub" of the dispute. In a letter of that date the Bishop said:


"..............I confirm that I have approved of your request to leave full-time Ministry.


Please note however, that I cannot at this stage confirm that I will grant a General Licence. Your three (3) months notice to me will end on the 26th September 2001 and that means you will effectively cease to be full-time priest and Rector of the Parish of Sekameng on that date." (My emphasis)


It is clear from above that the Bishop makes a distinction between removing from full-time Ministry (which he acceded to) and being granted a General Licence (which he did not accede to). Most noteworthy should be the fact that once one is ordained a priest one becomes a priest for life. And this is common cause. See also Lesotho Evangelical Church vs Mandoro LAC (1980-84) 127 at 129B-C and cases cited therein especially Lesotho Evangelical Church vs Nyabela 1980(2) LLR.


The Bishop deposed on page 15 paragraph 3.2 that priests in his church are given two types of licences, namely a licence to perform his ministry at a


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particular parish or a licence to serve as a self-supporting priest. The differences between the two licences was well stated in the Respondent's affidavit on page 15 at paragraph 3.2. Significantly that was not challenged by the Applicant. I took those to be admitted. This aspect is developed further in the judgment.


The Applicant became dissatisfied and then filed an application on notice of motion in which he sought for the following orders:


" 1. Declaring applicant to be full-time priest and rector of the Parish of Sekameng.


  1. Restraining respondent and all officers subordinate to him from unduly interfering with Applicant in the performance of his duties


  1. Costs of suit.


  1. Further and alternative relief." (My emphasis)


Mr. Phoofolo for Respondents aptly and correctly, in my view, remarked at the irony of the Applicant's first prayer. It is that once Applicant had asked to be removed as full-time priesthood, which was acceded to by the Bishop, Applicant would not insist that he was to remain as the Rector of the Sekameng Parish, which removal from the parish Applicant must have anticipated as soon as he receiving the letter of the Bishop of the 28th June 2001. At the very least Applicant must have anticipated that the Bishop would choose where to post the Applicant whether he remained full-time or not. And indeed the Bishop's


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thinking is clearly shown in Para. 3.4 of his answering affidavit which reads:


"Applicant on the 25th June 2001 applied to be moved from full-time to the general licence ministry. By that he meant he did not want to serve in any particular parish i.e. he did not seek any transfer. He had applied to cease to be a priest under any control in the Diocese depending on his choice and convenience, and on the availability of his own time. Since he wanted to leave Sekamaneng parish without asking for a transfer to other parish. I asked him to give me reasons and these were given to be in writing and it was precisely why I asked him by my letter dated the 28th June to hand over the parish financial accounts to his Arch-deacon. (My underlining)


I did not see how the response contained in Applicant's replying affidavit at paragraph 4 AD PARA 3 and 4 is genuine to his contention that the crisp issues were the following:


Whether Respondent's decision was reasonable or unreasonable, fair or unfair and regard being had to Applicant's request to be removed from full-time ministry and secondly, whether Applicant by his action cancelled his own licence to full-time ministry.


I equated the question in the last issue above to the inquiry whether, on the analogy of the Applicant having offered his resignation the Bishop did or did not accept the resignation. I took this to be a matter of fact whether or not this was so. This seemed to be even putting aside the question whether having sought the resignation from the full time ministry Applicant would be permitted


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to work in any parish of his choice. Again the paragraph 3.5 of the Respondent's answering affidavit proves most insightful about tenor or Bishop's attitude about the above issues:


"By the letter of the 30th July I accepted applicant's request to leave full time ministry and gave him 3 months notice to leave. But I did not issue him a general licence or self-supporting priest license, which are my prerogative. From September I appointed another pries to work in that parish. It is significant to note that after I informed applicant in July that I would not issue him a general license, he did not withdraw his request to leave full-time ministry. Instead he caused his lawyers to write me a letter which I annex hereto marked "JJ1". I replied his letter through my attorney and his is marked "JJ 2". The purport of my attorney's letter is clearly that applicant had by his own act, cancelled his licence to perform full time ministry at Sekameng and at any parish, but that he was not deprived of his rights and vocation to being a priest. Applicant still had not written to me to request to be reissued with a licence to perform full time ministry anywhere within this diocese. Therefore this Honourable Court would be assuming the role that it doesn't have to order me to issue him with a license which applicant has not requested up until now." (My emphasis)


I will conclude that more than anything else the Applicant cannot have withdrawn his intention to remove from the full time ministry. With particular attention to the aspect of the Applicant's wish to resign from the full-time ministry, again besides the issue of the General Licence, it has been difficult for this Court to discover the manner in which the Bishop's action in accepting the Applicant's resignation was said to be unreasonable and unfair. Indeed in paragraph 3.4 the Bishop says that he was not at anytime motivated by ill-feeling or such like where Applicant "voluntarily" decided to leave the full-time


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ministry.

It should be interesting now to address the Applicant's response to Respondents' answering affidavit (AD para 3 and 4) in paragraph 4 of Applicant's replying affidavit. Therein he says:


"Contents are noted, save to deny that deponent has, since the advert of his reign, ceased the practice of General Licence. I wish to inform this Honourable Court that the Deponent took over reins in or about December 1999. I verily aver that since then there has been no circular or other communication issuing from deponent's office not notifying that the practice of General Licence has been abolished. Indeed deponent has not attached any such circular to his affidavit. I wish to point out that the deponent acknowledges the existence of the practice. This is the context in which I would like the Honourable Court to regard Annexure "A" to my founding affidavit. I was applying for General Licence which to all outward appearances still existed." (My emphasis)


The contention that the abolition of the General Licence had not been publicised was undeniable. Indeed one would safely contend that up until the time of Annexure "D". the Respondent had explicitly stated that the General Licence did not exist when he say "I cannot at this stage confirm that I will grant you a General Licence." In the end the Respondent refused to grant a General Licence to the Applicant. He concedes however that the General Licence may have been granted in the past. On the other hand he had since over the reign of his bishophood stopped the practice because it was difficult to control and monitor a priest who had been granted such a licence. He contended that there was


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nothing called a General Licence in the cannon of the church. See paragraph 3.4


It must be remembered that neither the Applicant nor the Respondent has told us what a General License is except that a suggestion in that direction is made by the Respondent in paragraph 7 of the answering affidavit. A meaning of what a General License ought to be found therein may be by way of inferential reasoning. It is said in that paragraph:


" Applicant has no right to officialise or work in a parish of his choice, least of all Sekameng parish. Where a priest work is a prerogative of the Bishop based on his own consideration. Therefore applicant's prayer that I be ordered to let him serve at Sekameng is not feasible because not only have I appointed another priest at Sekameng parish after appointment had volunteered to leave full time Ministry and I accepted his request, but he also has no right to stay at a particular parish and leave wherever he likes, to which parish he chooses and in whatever capacity he prefers." (My emphasis)


One may deduce that a General License means that a priest who has such a licence has a right to work at any parish he likes in "any" capacity that he prefers. See unchallenged statement by Respondent on page 16, at paragraph 3.4. It is clear from his attitude that the Respondent would naturally take none of this. I will conclude that there is no clear right to such a licence in favour of Applicant. The Applicant has not indicated why the Respondent's attitude would be untenable.


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Respondent above cites his own prerogative based on his considerations.


These he has spelt out. The issue would then be whether he has exercised it wrongly. I will come to the aspect of this prerogative which he claims. What I considered to be more damaging to the Applicant case is that he accepted that his full ministry was terminated but he wanted this to be done on his own terms.


We are reminded, at the risk of repetition, that the Respondent has openly come out to say that there was no ulterior motive nor had faith in doing what the Applicant had in fact asked him to do. That is to remove him from full time ministry of the Church. The Applicant was not able to point at anything showing the opposite.


I now come back to the issue of the Bishop's prerogative. To start with it became of further interest what the Applicant says about the prerogative in paragraph 7 (AD para 7 thereof) of his replying affidavit. It is this that:


".........I admit that it is respondents' right to decide where a priest works. I am however advised by my attorneys of record and verily believe same to be true and correct that this prerogative is not extra legal. It has to be exercised properly and I have to be heard before I dispatched a new location or moved from my old one......." (My


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emphasis)


The confusion that results from the above non-sequitur is that it became unclear what the Applicant's case in reality was. It is not being made clear why the prerogative was wrongly exercised.


It is furthermore unclear as to why there was need for hearing, when by doing what the Applicant requested, it could not be said there was prejudice in the conduct of the Bishop against the Applicant nor that the Bishop acted unfairly or unreasonably nor abused his power nor discretion nor committed an error of law or acted on bad faith.


I concluded that none of the above wrongs were proved against the Respondent. It did not require me to debate what the Bishop's prerogative entails in the light of the fact that it was admitted that he had such a prerogative.


I have consequently concluded that the application ought to fail with costs to the Respondent.


T. MONAPATHI

JUDGE

26th November 2003