Father Petrus v Roman Catholic Archdiocese (SA 32 of 2009) [2011] NASC 24 (09 June 2011);
REPORTABLE
CASE
NO.: SA 32/2009
IN
SUPREME COURT OF NAMIBIA
In
the matter between
FATHER GERT | APPELLANT |
and
ROMAN | RESPONDENT |
Coram:
Mainga JA, Langa AJA et O’Regan AJA
Heard
on: 07/04/2011
Delivered
on: 09/06/2011
APPEAL
JUDGMENT
O’REGAN
AJA:
The
appellant, Father G D Petrus, seeks to appeal against a judgment of
the High Court refusing to rescind a judgment of the High Court. As
the appeal was launched more than eighteen months after the High
Court judgment was handed down the appellant must first be granted
condonation for his late filing of the appeal before the appeal
itself can be considered.
The
appellant was ordained as a Catholic Priest in Namibia in 1986 and
was appointed parish priest in Khomasdal in 1993. The respondent is
the Archdiocese of the Catholic Church in Namibia, represented in
these proceedings by the Archbishop of Windhoek. The respondent
initiated these proceedings in the High Court by notice of motion in
April 2005. The respondent sought an order, amongst other things,
declaring that the appellant had been excommunicated from the Roman
Catholic Church, interdicting the appellant from conducting
religious services at the respondent’s premises situated at
4882 Borgward Street, Khomasdal, Windhoek and ejecting the appellant
from the parish residence situated on the same property. The
appellant opposed the application.
The
main application was set down for 31 May 2005 but the appellant did
not file answering affidavits by that date. Before the hearing on 31
May, the parties agreed that the Court would grant an interim
interdict pending the return date of a rule nisi. The appellant also
agreed to vacate the parish residence and return the keys to the
respondent. The appellant has thus not been residing in the
premises since mid-2005. In the light of the agreement between the
parties, Manyarara J made the order as agreed. 18 July 2005 was set
as the return date and the appellant was ordered to file answering
affidavits opposing the relief by 15 June 2005.
Once
again the appellant failed to file answering papers, although a
draft unsigned affidavit was furnished to the respondent’s
representatives. When the matter was called on 18 July, in the
absence of any opposition by the appellant, Heathcote AJ issued an
order confirming the rule.
Six
months later, the appellant lodged an application seeking rescission
of the order made on 18 July 2005. Pickering AJ heard the
rescission application on 9 July 2007. Judgment was reserved and on
14 January 2008, the application was dismissed with costs. In his
judgment, Pickering AJ concluded that the appellant should not be
granted condonation for the late filing of the rescission
application, as he had not provided a reasonable or satisfactory
explanation for the delay in launching the rescission application.
Pickering AJ also addressed the merits of the dispute between the
parties, and after an analysis of canon law, concluded that the
appellant had indeed been validly excommunicated. He accordingly
found that the rescission application did not bear prospects of
success.
More
than eighteen months later, on 3 August 2009 the appellant lodged a
notice of appeal, subsequently amended on 15 November 2010, against
the judgment of Pickering AJ. On the same date the appellant lodged
an application for condonation for the late filing of the appeal.
The condonation application was filed 2 years and 10 months after
the judgment against which the appellant seeks to appeal was handed
down. The respondent opposes the grant of condonation for the late
filing of the appeal and the appeal itself.
Argument
in respect of the application for condonation and appeal was heard
on 4 April 2011. The respondent raises two points in limine. The
first is that the appellant has failed to tender security for costs
in terms of rule 8(2) of the Supreme Court Rules and the second is
based on rule 5(6)(b) of the same rules which provides that if an
appeal record is not lodged within three months of the date of the
judgment appealed against (rule 5(5)), the appeal shall be deemed to
be withdrawn. As will appear from the reasoning that follows, it is
not necessary for the court to adjudicate these two preliminary
issues.
Condonation
The
above account of the course of this litigation makes plain that at
every turn the appellant has failed to comply with the rules of the
court. He failed to lodge answering affidavits in the High Court,
both before the application was first heard on 31 May 2005, and
before the return day of the rule nisi. Once the order had been
confirmed, the appellant took six months to lodge an application for
rescission. After that application was refused, the appellant took
more than eighteen months to lodge an appeal, and a further 15
months to lodge a formal application for condonation for the late
filing of the notice of appeal.
It
is trite that a litigant seeking condonation bears an onus to
satisfy the court that there is sufficient cause to warrant the
grant of condonation. Moreover, it is also clear that a litigant
should launch a condonation application without delay. In a recent
judgment of this Court, Beukes and Another v SWABOU and Others
[2010] NASC 14 (5 November 2010), the principles governing
condonation were once again set out. Langa AJA noted that “an
application for condonation is not a mere formality” (at para
12) and that it must be launched as soon as a litigant becomes aware
that there has been a failure to comply with the rules (at para 12).
The affidavit accompanying the condonation application must set out
a “full, detailed and accurate” (at para 13) explanation
for the failure to comply with the rules.
In
determining whether to grant condonation, a court will consider
whether the explanation is sufficient to warrant the grant of
condonation, and will also consider the litigant’s prospects
of success on the merits, save in cases of “flagrant”
non-compliance with the rules which demonstrate a “glaring and
inexplicable disregard” for the processes of the court
(Beukes, at para 20).
The
appellant’s explanation for the dilatory filing of his notice
of appeal is the following. He sought legal advice once his
rescission application had been dismissed in January 2008. In
February 2008, he was advised not to pursue an appeal as his
explanation for the late filing of his rescission application was
inadequate and, he was advised, the appeal court would accordingly
dismiss any appeal.
The
appellant then pursued several other avenues to seek redress. In
his affidavit, he states that he was uncertain which avenue he
should pursue for relief. In his view, it had been improper for the
respondent to seek relief against him in a civil court (this is a
matter to which I return below). Accordingly, he wrote to the
Ombudsman as well as to senior figures within the Roman Catholic
Church to obtain redress. He also approached the South African High
Commission. None of these avenues proved fruitful.
In
July 2009, the appellant was presented with a taxed bill of costs by
the respondent’s attorneys in an amount of N$143,763,24 and
requested to effect payment of them. It was then that he decided to
appeal the matter.
The
appellant argued that because it was his view that the respondent
should not have approached a civil court for relief against him, he
was confused as to what his remedies were when the court order was
granted. Although the appellant is right to raise the question of
the civil court’s jurisdiction to investigate the question
whether the appellant has been validly excommunicated, the appellant
cannot have been in any doubt that if he wished to have the order
made by the High Court refusing to grant rescission set aside, he
would have to appeal to this Court. The High Court judgment was
clear that the appellant’s delay in launching the rescission
application was fatal to that application. Moreover, his counsel
advised him that the appeal court was unlikely to take a different
view to the High Court on the effect of his delay in relation to the
rescission application.
Whatever
else the appellant may have understood from both the High Court
judgment, and counsel’s advice, it must have been clear to him
that if he wished to lodge an appeal, he needed to do so in good
time, because a failure to do so would imperil the success of the
appeal. Nevertheless, the appellant delayed once again, this time
by eighteen months, and now, again, he is before a court seeking
condonation for his non-compliance with the rules of court.The
appellant’s explanation for his delay in lodging the appeal is
not sufficient to warrant the grant of condonation. Indeed, the
appellant’s disregard for the rules of this Court could be
said to amount to a flagrant disregard for them. Although, as stated
above, a court may in circumstances of flagrant violation of the
rules, not even consider the prospects of success when deciding a
condonation application (paragraph 10 above), we consider it
appropriate to consider the appellant’s prospects briefly.
Prospects of success
The
relief sought by the respondent in these proceedings is out of the
ordinary. The respondent sought an order in the High Court declaring
that the appellant had been excommunicated from the Catholic Church,
as well as an order preventing the appellant from conducting
services in the respondent’s Church, and ejecting him from the
parish residence.
In
the founding affidavit, deposed to by the Archbishop of the
Archdiocese of Windhoek, Archbishop Nashenda states that from 2003
onwards he received reports that the appellant was abusing alcohol.
In June 2004, the Archbishop thus wrote to the appellant affording
him an opportunity to undertake a programme of physical and
spiritual renewal, failing which he was asked to resign with effect
from 31 July 2004. The appellant did not reply to this letter. The
Archbishop wrote another letter to the appellant on 11 July 2004 in
similar terms to which the appellant replied stating that he was
aware of his responsibilities as a parish priest. According to the
Archbishop, the appellant then left his parish for three months and
only returned in October 2004 when the Archbishop again received
reports that the appellant was abusing alcohol. A meeting was held
between the archbishop and the appellant and his father but the
difficulties were not resolved.
Finally,
during October 2004 the Archbishop received a report stating that
the appellant was engaged in the practice of witchcraft. The
Archbishop investigated the matter and apparently his investigations
confirmed that the appellant had done so. According to the
Archbishop, he then held a meeting with the appellant and his
father, which again produced no satisfactory result. According to
the Archbishop, he then sought the advice of canon lawyers who
advised him that the practice of witchcraft constitutes “a
defection from the Catholic Church” with the result that the
appellant was, according to canon law, deemed “to have
excommunicated himself”. The Archbishop wrote to the
appellant informing him that he had been excommunicated and
instructing him to desist from conducting services in Khomasdal.
In
February 2005, according to the Archbishop, he was informed that the
appellant was continuing to conduct services and it was in order to
prevent him doing so that the respondent approached the court for
relief.
As
set out above, the appellant never lodged answering affidavits
opposing the relief sought by the respondent and so the relief was
granted, effectively unopposed. In his application for rescission,
the appellant argued that the respondent was not entitled to request
civil courts to provide relief based on canon law, as according to
both canon law and civil law, that is a matter that does not fall
within the jurisdiction of the civil courts. As mentioned at para 5
above, the High Court found that the appellant had not provided
sufficient explanation for his late filing of the rescission
application and could have dismissed the application on that basis
alone. Instead, the High Court considered the merits of the matter,
investigated the canon law rules and concluded that the appellant
had indeed been validly excommunicated from the Church and should be
interdicted from conducting services at Khomasdal.
It
is not clear on what basis the High Court considered that the
question of whether or not the appellant was excommunicated was an
issue that could be determined as a matter of law by a civil court.
In argument before this Court, respondent’s counsel conceded
that the question of whether a priest had been excommunicated
according to canon law was not a question of law that falls within
the jurisdiction of a civil court.
As
Dumbutshena JA stated in a judgment he delivered as a judge of
appeal in the Transkei, Mankatshu v Old Apostolic Church of
Africa and Others 1994 (2) SA 458 (TkA) at 460 H:
“Jursidiction
or the lack of it is an important issue when considering whether a
party aggrieved by his church can take the dispute to a civil court.
The authorities say that, when there is an absence of civil rights or
interests prejudicially affected by a decision of a voluntary
association, the civil courts have no jurisdiction.”1
The same principle must apply when a
church seeks relief from a civil court. Is the relief sought, relief
based on civil rights and civil law or is it, in effect, an attempt
to ask a civil court to apply or determine ecclesiastical rules? If
the relief, properly construed, is the latter, a civil court will not
have jurisdiction over the matter.
A
court has jurisdiction over legal questions that arise within its
jurisdiction. Ordinarily, the question whether a priest has breached
the rules of ecclesiastical or canon law are not legal questions
within the jurisdiction of the court. They may be factual questions
that may be proved by expert evidence, but a court will only have
jurisdiction in respect of them if the underlying causa is one
within the jurisdiction of the court.
It
is not necessary for the purposes of this case to consider the
precise relationship between this rule and article 21(1)(c) of the
Constitution, which provides that “all persons shall have the
right to practise any religion and to manifest such practice.”
But it is worth noting, that courts in other jurisdictions consider
that the right to freedom of religion requires courts to abstain
from interfering with the practice of religion. In Attorney-General
for New South Wales (at the relation of Neil MacLeod and Another) v
Grant and Another (1977) 51 ALR 10 (HC) at 20, for example, the
Australian High Court stated:
“…courts
may properly determine church property disputes on neutral
principles, and also interfere where decisions of ecclesiastical
government are based on fraud, collusion or arbitrariness. Otherwise,
only marginal enquiry into church government is permissible. …
[T]he decisions of the governing body of the church should be
accepted on issues of practice and procedure of ecclesiastical
government, as well as issues of doctrine…..
Many
of the appellant’s submissions would require this Court to
inquire into and decide controversial questions of doctrine (or
departure from doctrine) or practice or procedure in ecclesiastical
government. In my opinion, however forceful these arguments appear
to be, they are outside the judicial sphere, and I do not entertain
them.”2
Nor
is it necessary to consider whether a civil court will require
church authorities to follow fair processes in making decisions that
affect members of the church. It has long been established that
churches are considered to be voluntary associations and are subject
to the common-law review jurisdiction of the courts on review
grounds only.3
It may be that the adoption of the Namibian Constitution, and in
particular chapter 3 of the Constitution which entrenches
fundamental human rights and freedoms, including article 21(c)
mentioned above, may have some influence on the principles that
govern the grounds on which courts will review the decisions of
religious associations. However, these are not issues that arise
crisply for decision in this case and I say nothing further
concerning them.
The
High Court apparently did not consider the question whether it had
jurisdiction to determine whether the appellant had been validly
excommunicated in terms of canon law either when the original rule
was confirmed in July 2005 or in January 2008 when the application
for rescission was refused.
Yet
it is clear that the relief sought by the respondent declaring that
the appellant has been excommunicated from the Church is relief
based entirely on ecclesiastical or canon law, matters over which
neither the High Court, nor this Court has jurisdiction. On the
other hand, the relief sought in the other two prayers (the eviction
of the appellant from the parish residence, and the interdict
preventing the appellant from performing services in the parish
church) are at least forms of relief which are based on civil law,
in particular the rights of the respondent as owner of the property
to exclude the appellant from that property. These two latter
prayers do involve an assertion by the respondent of its “civil
rights” (in the words of Dumbutshena JA in the Mankatshu
case, cited above).
At
common law, all the respondent needed to do to entitle it to an
order of eviction was to assert its right of ownership and the fact
that it did not consent to the respondent continuing to reside on
the premises or to conduct services at the church. However, instead
the respondent sought an order declaring that the appellant had been
excommunicated, relief beyond the jurisdiction of the High Court.
This
brief examination of the merits of the case makes plain that there
are good prospects that the first prayer granted by the High Court
may be overturned on appeal. Even were the appellant to succeed to
this extent, however, the appellant’s status as a member of
the Church would not be affected. As the appellant admitted in
argument in this Court, ultimately his status as a member of the
Church is a matter that can only be determined by canon law, not by
the civil courts.
The
appellant’s prospects of success in relation to the eviction
order and interdict are less promising as they involve the
adjudication of civil rights. It is clear that the respondent has
withdrawn its consent to the appellant residing in the parish house
and to the appellant’s conducting services in the parish
church. Accordingly, although the appellant may have prospects of
success in relation to the first order made by the High Court, his
prospects of success in relation to the other two orders are less
pronounced.
Should condonation be granted?
The
appellant has failed to provide a sufficient or reasonable
explanation for his failure to prosecute his appeal timeously and he
has also failed to comply with the time limits imposed for the
lodging of the appeal record. These are flagrant lapses that cannot
be overlooked, particularly because during the entire course of this
litigation, the appellant has shown no respect at all for the rules
of the courts. Although the appellant has some prospects of success
upon appeal, those prospects are not sufficient to outweigh his
repeated and substantial non-compliance with the rules of this Court
and the absence of any detailed or convincing explanation therefor.
In the circumstances, condonation for the late filing of the appeal
cannot be granted to the appellant and his appeal must therefore be
struck from the roll.
Costs
The
ordinary rule in this Court is that costs follow the result. The
appellant is therefore ordered to pay the respondent’s costs,
such costs to include the costs of one instructed and one
instructing counsel.
Order
The
following order is made:
The
application for condonation for the late filing of the appeal is
refused.
The
appeal is struck from the roll.
The
appellant is ordered to pay the costs of the respondent, such costs
to include the costs of one instructed and one instructing counsel.
________________________
O’REGAN
AJA
I
agree.
________________________
MAINGA,
AJA
I
agree.
________________________
LANGA
AJA
COUNSEL | In |
COUNSEL Instructed | Mr. LorentzAngula |
1
See also Allen
and Others, NNO v Gibbs and Others 1977
(3) SA 212 (SE) at 218A-B; Rylands
v Edros 1997
(2) SA 690 (C) at 703 G – H.
2
The approach in the United States is clear. Courts may not interfere
with decisions of ecclesiastical law. See, for example, United
States v Ballard 322 US 78 (1944). The issue has not yet arisen
sharply for determination in Namibia or by the Constitutional Court
in South Africa, but see Taylor v Kurtstag NO and Others 2005
(1) SA 362 (W) at para 61 and Rylands v Edros, cited above n
1, at 703.
3
See, for example, Du Plessis v Synod of the Dutch Reformed Church
1930 CPD 403 at 420; Odendaal v Loggerenberg en andere NNO
(1) 1961 (1) SA 712 (O) at 719 C – E; Theron en andere
v Ring van Wellington van die NG Sendingkerk in SA en andere 1976
(2) SA 1 (A) at 13H.