Court name
Supreme Court
Case number
SA 32 of 2009

Father Petrus v Roman Catholic Archdiocese (SA 32 of 2009) [2011] NASC 24 (09 June 2011);

Media neutral citation
[2011] NASC 24


NO.: SA 32/2009


the matter between






Mainga JA, Langa AJA et O’Regan AJA





  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. 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

  1. 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.

  1. 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


  1. 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.

  1. 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.

  1. 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).

  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. 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.

  2. 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

  1. 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.

  1. 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.

  1. 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.

  1. 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

  1. 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.

  1. 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.

  1. 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:

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.”

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.

  1. 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.

  1. 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:

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…..

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

  1. 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.
    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.

  1. 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.

  1. 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).

  1. 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.

  1. 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.

  1. 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

Should condonation be granted?

  1. 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.


  1. 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.


  1. The
    following order is made:

  1. The
    application for condonation for the late filing of the appeal is

  1. The
    appeal is struck from the roll.

  1. The
    appellant is ordered to pay the costs of the respondent, such costs
    to include the costs of one instructed and one instructing counsel.













G. Dicks


See also Allen
and Others, NNO v Gibbs and Others
(3) SA 212 (SE) at 218A-B;
v Edros
(2) SA 690 (C) at 703 G – H.

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.

See, for example, Du Plessis v Synod of the Dutch Reformed Church
1930 CPD 403 at 420; Odendaal v Loggerenberg en andere NNO
1961 (1) SA 712 (O) at 719 C – E; Theron en andere
v Ring van Wellington van die NG Sendingkerk in SA en andere
(2) SA 1 (A) at 13H.