IN THE HIGH COURT OF ESWATINI

JUDGMENT

In the matter between: Case No. 1276/2017

SISTER CONCETTA GININDZA Applicant

And

SISTER STEPHANIA NGWENYA

(IN HER CAPACITY AS PRIORESS GENERAL

FOR THE SERVANTS OF MARY) 1st Respondent

THE ROMAN CATHOLIC CHURCH OF SWAZILAND 2nd Respondent

Neutral citation : Sister Concetta Ginindza v Sister Stephania Ngwenya and

Another (1276/2017) [2019] SZHC 225 (29th November,

2019)

Coram : M. Dlamini J

Heard : 16th August, 2019

Delivered : 29th November, 2019

Summary: The parties in the present motion proceedings are all of ecclesiastes. The

applicant is challenging respondents’ decision dismissing her from the

congregation of sisters. The respondents argue that the applicant is

barking at the wrong tree. The impugned decision was taken by the

Holy Sea.

The Parties

[1] The applicant is an elderly female, aged in 2017, seventy four years. Her parental

homestead is at Mahlabane, district of Manzini. She joined the

congregation of sisters under the Servants of Mary in 1964 under the

Roman Catholic Faith. The 1st respondent is also an elderly female.

She holds the reigns of Prioress General (Mother General) having

succeeded applicant.

Applicant’s version

[2] The applicant has deposed that having joined the Servant of Mary (sisterhood) at

the age of fourteen years old, she served as a nurse in all the 2nd

respondent’s clinics. At the same time she rose in the ranks to occupy

the highest position of Mother General. She then asserted that in the

year 2007, when she was still Mother General;

“ [I] caused to be incorporated a company styled ST. JULIANAH’S CONVENT

(PTY) LTD being a company registered under the laws of

Swaziland trading as St. Juliana Conference and

Accommodation. The directors of the aforementioned

company were myself and one Sister Mary Maqwele.”1

[3] She further stated under oath:

“11. The business of the Company, St. Julianah’s Convent (Pty) Ltd, primarily

consisted of rendering conferencing and accommodation

services to the public. The income generated from business

of the company was then used for the welfare of the sisters

within the Convent.”

[4] She deposed further that in 2011, 1st respondent was elected as Mother General.

As soon as she occupied this position, 1st respondent demanded

applicant’s resignation as director of the company. This demand

intensified in 2015. The matter found its way to the Magistrate Court of

Manzini under case No. 3563/17 where 1st respondent was seeking for

her eviction following her dismissal from the sisterhood. Applicant then

referred the court to the impugned decision by the 1st respondent and the

Honourable Bishop Jose Luis Pouce de Leon dated 20th May 2017. She

highlighted that the letter stated the reasons for the dismissal as follows:

“[I] have persisted in contumacious disobedience against lawful requests of [my]

superior to remove [myself] completely from all matters

relating to the administration of the congregation’s

apostolic works,”2

1 See page 7 para 9 of book of pleadings (book) 2 See page 9 para 16

[5] The causa for the orders for review and setting aside the said decision of

dismissal is pointed out by applicant as:

“17.1 The said decision violates the rules of natural justice in so far I was never

given any hearing prior to my dismissal.

17.2 The alleged disobedience and decision to dismiss me is predicated upon

unlawful instructions, being a call by the 1st respondent that

I should surrender my powers of being a company director

contrary to the Articles of association of the company on

the removal of a Director thereof.

17.3 The dismissal from the church pertains to issues beyond the powers of the 1st

Respondent and 2nd Respondent. The company, St.

Julianah’s Convent (Pty) Ltd, is a distinct persona from the

Roman Catholic Church with its own rights and obligations

separate from those of the Roman Catholic Church.

17.4 The dismissal from the communion of sisters and the excommunication from

the Roman Catholic Church violates my right to freedom of

religion in so far as I am denied the right to be a member of

the Roman Catholic Church (which neither 1st nor 2nd

Respondents own) yet still denied the right to pursue the

matter on appeal in any other forum.

17.5 The dismissal from the communion of sisters violates my right to dignity in so

far as I have been given a paltry E5000.00 (Five Thousand

Emalangeni) to start a new life elsewhere, contrary to

settled practice and custom regarding the compensation of

relocating members.”3

The Respondents’ Averments

[6] The respondent commenced their case by highlighting the structural facet of the

sisterhood. 1st respondent described the sisterhood as following:

“5. It is an evangelical and apostolic community of woman gathered under the guidance of the

Holy Spirit under the faith of the Roman Catholic Church

in Swaziland Diocese of Manzini who dedicate their lives to

helping the people of God in our different communities.

The Servite Sisters are under the direct control and

supervision of the second respondent, which is in turn

headed and administered by The Congregation for the

Evangelisation of Peoples, based in Rome, Italy.”4

[7] 1st respondent also pointed out that as Mother General, she exercises “full

authority and administrative powers over the entire” 5 sisterhood. She

expatiated on the procedures undertaken before one becomes a member

of the sisterhood. She deposed:

3 See pages 10-11 paras 17.1-17.5 of book 4 See page 90 para 5 of book 5 See page 90 paragraph 5 of book

“The consecration of a Nun is a process which is preceded by a sufficiently

long period of teachings and prayer wherein the willing

aspirant is taught the beliefs, culture and practices of the

congregation until she fully understands the same. Most

importantly, upon consecration as a religious, a Nun

undertakes to abide by three major vows of Chastity,

Poverty and Obedience. Through the chastity vow, a Nun

makes to commitment to celibacy throughout her religious

life. The vow of Poverty speaks to the Nun committing to

share all her income and possession with the community of

God’s People and the congregation. She does not derive

any personal financial benefit during her consecrated life.

As a result if this vow, a Nun is precluded from engaging or

establishing her own business enterprise. Under the vow of

obedience a nun undertakes to accept and obey all

decisions of her superiors without a challenge.”6

[8] 1st respondent proceeded to highlight that any failure to abide by the three vows

attracts an ultimate sanction of dismissal from the sisterhood. 1st

respondent pointed out that applicant was admitted to the sisterhood in

1975 after having undergone the above process. Applicant further

served as Mother General from 1998 to 2007. In 2007, applicant caused

to be established a company in the name of St. Julian Convent (Pty) Ltd

trading as St. Juliana’s Conference and Accommodation. Applicant did

so without seeking prior approval or consent of the General Council, a

body overseeing the sisterhood. She then deposed:

6 See page 91 para 9 of book

“Upon discovery of the unauthorised registration of the company and out of

Christianity values, the respondents decided not to legally

challenge the registration of the same. This was on the

basis and understanding that the company was being

operated for the benefit of the entire Sisterhood family.

Noteworthy is the fact that the applicant at paragraph 11 of

her founding affidavit acknowledges and confirms that the

income generated from the business of the company was

used for the welfare of the sisters within the Convent.”7

[9] What followed were a litany of maladministration actions at the instance of

applicant. These were highlighted by respondents as mainly that in 2005

it was discovered that applicant ran the company and mero motu

maintained a bank account. She then made large sum of cash

withdrawals. This was despite that the company utilised premises and

facilities belonging to the 2nd respondent. In the process, applicant failed

to pay staff salaries, remit tax dues to eSwatini Revenue Authority, make

monthly contribution for employees to the eSwatini National Provident

Fund, pay rates to Manzini Municipality. Her conduct was confounded

by her failure to keep financial books. She further failed to pay 2nd

respondent any levy for utilising its premises and facility. Worse still

she failed to pay suppliers as well. The total sum due to various

creditors escalated to E6, 000, 000. Some of the creditors have already

filed law suits against the company and 2nd respondent. 1st respondent

then deposed:

7 See page 93 para 17 of the book

“22. As a result of the aforesaid and in the exercise of my powers as a Prioress

General and after consulting the applicant, I caused to be

issued a correspondence to applicant dated 25th May 2015

ordering the applicant to do a hand-over of the company’s

affairs (project house) and to withdraw from its

administration altogether.”8

[10] There was no response to the correspondence of 25th May, 2015. 1st respondent

authored a follow up letter dated 14th August 2015. Applicant responded

by correspondence dated 14th September, 2015. Following applicant’s

failure to comply with her undertaking communicated to 1st respondent

on 14th September 2015, 1st respondent caused a meeting between

applicant, his Excellency the Bishop and herself. The results were:

“25. at that meeting the applicant out of her own volition agreed as follows:

25.1 That she be transferred back to St. Juliana’s convent on 31st March 2016.

25.2 That she would do the handover of the company’s affairs on the 1st March

2016.”9

[11] However, applicant persisted with her defiance. His Excellency wrote to the

applicant on 1st March 2016 pleading with her to comply as per her

undertaking in the meeting of 14th September 2015. Upon receipt of His

Excellency’s plea, applicant instead:

8 See page 95 para 22 of the book 9 See page 95 of the book

“28. Instead, the applicant lodged an appeal against the order for the handing over

of the administration of the company/project house to The

Apostolic Nunciature, which is a regional administrative

body of the second respondent, above the office of The

Bishop, which sits in Pretoria in the Republic of South

Africa.”10

Issue

[12] Is applicant entitled to the order sought i.e. reviewing and setting aside

respondents decision of 20th May, 2017? Applicants’ second prayer

presents no issue as during the hearing it was conceded on her behalf

that she was not ex-communicated from communion and the church.

The second prayer was accordingly withdrawn by her Counsel.

Ecclesiastes

[13] The applicant deposed of the 1st and 2nd respondents:

“2. The First Respondent is Reverend Sister Stephania Ngwenya cited herein her

capacity as the Prioress General (Mother General) of the

Servants of Mary, a congregation of sisters under the

Roman Catholic Church of Swaziland. She is based at the

Sisters’ Family home at Mahlabane (Mzimpofu) area in the

Manzini District.

10 See page 96 of the book

3. The Second Respondent is the Roman Catholic Church of Swaziland, a

universitas with capacity to sue and be sued under the laws

of Swaziland with its principal place of business at Manzini

in the Manzini district.”

[14] She also attested about herself:

“5. During the year of 1964 at the age of fourteen years, I joined the Servite Sisters

of Mary, a family of nuns under the Roman Catholic

Church. At that time the 2nd respondent was under the

command of the then Bishop Barneski.”

[15] The respondents confirmed this description of the parties by applicant. In

brief, the parties herein are members of the ecclesiastical class. This

means that they enjoy a spiritual relationship among themselves. It

follows therefore that their interaction on the day-to-day affairs is

regulated by precepts different from what would guide ordinary

individuals. Van der Westhuizen J11 faced with similar parties of

standing, introduced the subject as follows:

“And they have the last word. What they decides, even with a

narrow…majority, no person can change. It can declare

elections….invalid…it can ban political parties …[Its judgement]

reach out into the last office, into the last house”. [Richter

11 De Lange v Presiding Bishop of the Methodist Church of Southern Africa for the Time Being and Another [2015] ZACC 35 at para 68

Machen Politik (Fischer Taschen buchverl, Frankfurt 1979) at

11-2]

[16] The learned Justice was quick to point out that the above criticism was directed

to the German Federal Constitutional Court. He then embarked on a

lengthy discussion of how far secular laws were, particularly the

constitution, could regulate the affairs of individuals and society. He

enquired in this regard:

“How far do the Constitution and its interpretation and enforcement-by courts

reach into our private and social lives? Is there, somewhere in

our churches, temples, mosque and synagogues – or for that

matter kitchens and bedrooms – a constitution – free” zone? 12

[17] The learned Justice of Constitutional Court of South Africa referred to Sachs

J13:

“The underlying problem in any open and democratic society

based on human dignity, equality and freedom in which

conscientious and religious freedom has to be regarded with

appropriate seriousness, is how far such democracy can and must

go in allowing members of religious communities to define for

themselves which laws they will obey and which not. Such a

society can cohere only if all its participants accept that certain

basic norms and standards are binding. Accordingly, believers

cannot claim automatic right to be exempted by their beliefs

12 See paragraph 70 supra 13 In Christian Education South Africa v Minister of Education [2000] ZACC 11

from the laws of the land. At the same time, the State should,

wherever reasonably, possibly, seek to avoid putting, believers to

extremely painful and intensely burdensome choices of either

being true to their faith or else respectful of the law.”14

[18] The learned Judge having pointed out that rights and values do often compete

among themselves and against such other, then espoused:

“Is it contradictory to say that the Constitution does have a role to play in

every sphere, but that we do not want a court to intrude into

private spaces with the bluntness of its orders? After all, the

Constitution is law; we mostly want law to be enforceable;

enforcement is important for the rule of law, because

unenforceable law can hardly “rule”. The Constitution is more

than law, however. It is the legal and moral framework within

which we have agreed to live. It also not only leaves, but

guarantees space to exercise our diverse cultures and religions

and express freely our like, dislikes and choices, as equals with

human dignity. In this sense one could perhaps talk about a

“Constitutionally permitted free space. This is quite different from

contending that certain areas in a constitutional democracy are

beyond the reach of the Constitution, or ‘constitution-free’. ”15

14 See para 71 of de Lange supra 15 At para 83 De Lange supra

[19] Van der Westhuizen J then held that the doctrine of entanglement was

correctly upheld by the court a quo and agreed with the unanimous

judgement by Moseneke DCJ.

Doctrine of entanglement

[20] This doctrine was well articulated by their Leaderships in the Supreme Court16

as follow:

“In the open and democratic society contemplated by the Constitution there

must be mutually respectful co-existence between the secular

and the sacred. The function of the court is to recognise the

sphere which each inhabits, not to force the one into the sphere

of the other.”17

[21] The court referred to Farlam J 18 to the effect that the doctrine was then part of

South African law: The court then explained about the doctrine:

“This doctrine entails a reluctance of the courts to become involved in

doctrinal disputes of a religious character (Taylor v

Kurstag par 39) . the reason underlying the rule has been

expressed by Woolman and Zeffert as follows:

‘[I]n a radically heterogeneous society governed by a Constitution

committed to pluralism and private ordering, a polity in

16 De Lange v Presiding Bishop of the Methodist Church of Southern Africa for the time being and Another (726/13 [2014] ZASCA 151; 2015 (1) SA 106 (SCA) 17 De Lange Supra at para 31 18 Ryland v Edros 1997 (2) SA 690 (c) at 703E

which both the state and members of a variety of religious

communities must constantly negotiate between the sacred

and the profane, courts ought to avoid enmeshment in

internecine quarrels within communities regarding the

content or the truth of particular beliefs.’”

[22] In the United States, their Lordships expatiated, this doctrine has found its way

into the Amendment. With reference to United States v Ballard,19 they

quoted as follows:

“The law knows no heresy, and is committed to the support of no

dogma, the establishment of no sect… The First Amendment

has a dual aspect. It not only ‘forestalls compulsion by law

of the acceptance of any creed or the practice of any form

of worship’ but also ‘safeguards the free exercise of the

chosen form of religion.

As a result, American courts will not entertain religious disputes at all.

Decisions of religious tribunals are subject only to such

appeals as the religious body itself allows. In Presbyterian

Church v Hull Church [1999] USSC 24; 393 US 440

(1969) it was stated:

19 [1944] USSC 72; 322 US 78 (1944)

‘But it would be a vain consent and would lead to the total subversion

of such religious bodies, if any one aggrieved by one of

their decisions could appeal to the secular courts and have

them [sic] reversed. It is of the essence of these religious

union, and of their right to establish tribunals for the

decision of questions arising among themselves, that those

decisions should be binding in all cases of ecclesiastical

cognizance, subject only to such appeals as the organism

itself provides for.’

[23] Again with reference to Serbian Orthodox Diocess v Milivojevich, 20 the court

pointed on the court’s power to review decisions of the church body:

“For civil courts to analyse whether the ecclesiastical action of a

church judicatory are in that sense ‘arbitrary’ must

inherently entail inquiry into the procedures that cannon or

ecclesiastical law supposedly requires the church

judicatory to follow, or else into the substantive criteria by

which they are supposedly to decide the ecclesiastical

question. But this is exactly the inquiry that the First

Amendment prohibits, recognition of such an exception

would undermine the general rule that religious

controversies are not the proper subject of civil court

20 [1976] USSC 178; 426 US 696 (1976)

inquiry, and that a civil court must accept the ecclesiastical

decisions of church tribunals as it finds them.”

[24] The court then turned to the English21 jurisprudence and highlighted:

“ ‘I think that the reason is to be found in this. There has

always been in England more than one system of law. I will

not say that the cannon and civil law is as old as the

common law, but it is, at any rate, of ntiquity approaching

the common law, and was very vigorous and had great

effect in the days of the Plantagenets. The common law

existed side by side with the civil law, and there were the

two sets of courts, the cours spiritual and the common law

courts.’

Thus in R v Chief Rabbi of the United Hebrew

Congregation of Great Britain and the Commonwealth ex

parte Watchmann22the court held:

‘That consideration apart, the court is hardly in a position

to regulate what is essentially a religious function – the

determination whether someone is morally and religiously

fit to carry out the spiritual duties of his office. The court

must inevitably be wary of entering so self-evidently

sensitive an area, straying across the well recognised

divide between church and state.

21 R v ST Edmundsbury and Ipswich Diocese (Chancellor); Ex parte White and Another [1946] 2 All ER 604 at 605 22 [1993]2 All ER 249 at 255

One cannot, therefore, escape the conclusion that, if

judicial review lies here then one way or another this

secular court must inevitably be drawn into adjudicating

upon matter intimate to a religious community.’”

[25] It was pointed out that a line of demarcation was drawn by the court in

England.23

“ ‘This distinction between a religious belief or practice and its

civil consequences underlies the way that the English and Scottish

courts have always, until recently, approached issues out of

disputes within a religious community or with a religious basis.

In both jurisdictions the courts do not adjudicate on the truth or

religious beliefs or on the validity of particular rites. But where a

claimant asks the court to enforce private rights and obligations

which depend on religious issues, the judge may have to

determine such religious issues as are capable of objective

ascertainment. The court addresses questions of religious belief

and practices where its jurisdiction is invoked either to enforce

the contractual rights of members of a community against other

members or governing body or to ensure that property held on

trust is used for the purpose of the trust,’ “

[26] At the end the court in De Lange held on the merits:

23 Shergill v Khaira [2014] UKSC 33 para 45

“it is also inappropriate for this court to require the Church to

recognise same-sex unions as religiously ordained-particularly

when the church is itself involved in a complex and lengthy

process to determine that doctrinal issue itself. To do so would be

to prescribe religious tenants to the members and ministers of the

Church in violation of the right to freedom of religion and

religious association. Indeed, the doctrine of entanglement

militates strongly against the court becoming involved in religions

doctrinal disputes.”

[27] Having referred to the above, I see no reason why I should not import this

doctrine to the present case. After all just like in South Africa, our

Constitution reigns supreme. I say this bearing in mind that the only

instance where our courts could intervene is as per the Australian

position as propounded by Stirling J:

“[F]irst, whether the rules of the club have been observed; secondly,

whether anything has been done contrary to natural justice,

and thirdly, whether the decision complained of has been

come to bona fide.”24

[

Case in casu

[28] When the matter was mentioned on the roll, I highlighted the doctrine of

entanglement to both Counsel. I suggested that the parties go back to

the drawing board and settle their dispute amicably in terms of their faith

and convictions. To my dismay the matter resurfaced. The parties had

24

failed to reach common ground. Judging from its long protracted

history, negotiations were bound to fail however.

[29] The applicant lamented as a decision taken by 1st and 2nd respondents dismissing

her from the sisterhood. I must however put into perspective the events

as they unfolded, evident by the voluminous exchange of

correspondences in this matter.

Common cause

[30] It is not disputed that applicant rose to the ranks of Mother General in 1998 until

2007. On her last year, she together with Sister Maqwele registered a

company. It is common cause that Sister Maqwele resigned from the

sisterhood and returned to the secular world. It does not appear however

that she resigned as director and shareholder of the company. What is

certain though from the pleadings serving before court is that the

company has no properties. On its inception it took over the business of

2nd respondent. This business had been operating for many decades

under the supervision of Mother General by virtue of her office. The

business had been up and running for decades before applicant

registered the company which utilised the premises and the facilities of

the 2nd respondent as its own.

Determination

[31] Applicant has failed to answer to the respondent’s allegation that she formed the

company to take over 2nd respondent’s business without obtaining

consultation and authority from any of the respondent’s. In her reply,

she referred this court to affidavits filed by 1st respondent and Sister

Maqwele as evidence of consent to the formation of the company. This

is totally misleading. Neither 1st respondent nor Sister Maqwele

deposed to the effect that they consented to the formation of the

company. Their affidavits were defending a claim against the company

occasioned by applicant while she was no longer Mother General. In as

much as the affidavits filed at the Industrial Court showed that 1st

respondent and Sister Maqwele accepted the existence of the company,

they were not evidence of consent to its initial formation.

[32] Ponnan JA 25 pointed out that in a religious set up there must be acceptance that

even though certain activities or conduct is contrary to the precepts of

the church, the church may tolerate such conduct. Tolerance should

therefore not be taken as an unequivocal embracement or acceptance in

the legal sense of the word. Similarly in casu, the respondents upon

discovery of the existence of the company tolerated it. The averment in

reply therefore by applicant that deponent [1st respondent] “is one

person who can tell lies under oath, a whole Reverend for that matter”

are certainly uncalled for as they are unjustified and cold. They further

do not depict applicant’s calling and office as a follower of Christ, let

alone a nun, if at all.

[33] The applicant’s bone of contention is that the respondents have no right in terms

of the company laws of this country to compel her to resign from the

company. The reason being that there is no resolution of the company’s

directors authorising her to relinquish her shares and directorship. Again

this averments calls for me to put the events into perspective. Applicant

25 De Lange Supra

has not disputed that she occupied the office of Mother General not by

contract but as a hierarchy of the sisterhood. This office is for a specific

term. When her term ended in 2007, she was expected to make a hand

over to the incoming Mother General. This handover was for the long

existing business commenced by the sisterhood.

[34] In her founding affidavit she deposed:

“The call for my resignation as director intensified during the year 2015 as

the 1st respondent sent numerous correspondence to me to that

effect.”

[35] She then attaches annexure CG2 as evidence of the above. I must point out that

I have read annexure CG2. Nowhere does the 1st respondent asserts that

the applicant should resign as director of the company. On the contrary

the 1st respondent deposed that applicant was refusing to “relinquish her

position as director of St. Juliana’s Conference and Accommodation. At

paragraph 20 she again states that applicant” refused and neglected to

relinquish her directorship powers of over the Holy Family Convent in

Manzini (St. Juliana’s Conference and Accommodation).

[36] The company is not mentioned in the entire affidavit served before the

Magistrate Court as annexure CG2. The affidavit (CG2) is evidence of

1st respondent previous numerous correspondences to applicant calling

upon her to make a handover as she had been in charge of the business

of St. Juliana’s Conference and Accommodation. This name and the

business existed even before applicant became Mother General and her

subsequent formation of the company. The company’s name is St.

Juliana’s Convent (Pty) Ltd. Nowhere does this name feature in any of

the affidavit and correspondence. It is not in issue that since the 1st

respondent was elected into the office of Mother General, applicant has

failed to make a handover.

[37] This is despite that the dictates of the office of mother General calls upon the

incumbent to hold fort and be at the apex of St. Juliana’s Conference and

Accommodation. Applicant wants to remain in this office under the

guise that she is a shareholder and director of the company. This is

despite that the company has no business of its own.

Audi alteram partem

[38] The applicant prays that this court reviews and set aside the decision of

respondents communicated to her by correspondence dated 20th May

2017. As correctly agued by learned Counsel on behalf of respondents,

firstly, the applicant has attached a number of correspondences between

her and 1st respondent. She further points out that there was also a

meeting held between 1st respondent, the Honourable Bishop and

herself. This meeting was on the same issue of handing over or

complying with 1st respondent’s instruction to hand over the business of

the sisterhood.

[39] The respondents have attested to various exchange of correspondences and

meetings on applicant’s call for a handover. Applicant herself has

deposed that since 2011 when 1st respondent was elected as Mother

General, she has been calling for her resignation. She deposed further

that this intensified in 2015. The question is, what right of hearing does

she want this court to order in light of all the exchange of

correspondence and the meetings held?

[40] What confounds her application further is that she subsequently appealed. Her

appeal was dismissed and she was ordered to comply with the

instruction of 1st respondent. She then appealed to the Holy Sea. Again

her appeal was dismissed. Now what right of hearing does she expect

the court to grant her as she exercised it throughout the internal

structures of the Church.

[41] The second misnomer at the instance of applicant is that she seeks this court to

review and set aside the “decision of respondents dated 20th May 2017”.

The undisputed evidence is that upon her appeal to the Holy Sea in

Rome, Italy, the Holy Sea in dismissing her appeal authored:

“Having said the above, I would also like to communicate to you that at this

point you do not have any right to make any legitimate and valid

recourse against the decision of our Superior General because all

the peremptory time limits have already expired long ago.

Therefore, your continuation in the present office is fully illicit

and you have no canonical authority to continue there or to do

anything concerning the administration of the “Project House

Conference Centre”; all your acts are completely illicit after

August 25th 2015, the final date set by your Superior General for

your handing over of the administration of the Centre, Moreover,

from that date onwards your position is of “obstinate

disobedience” to the legitimate superiors and “unlawful absence

from the community” (ca, 696,91), both of which are sufficient

reasons for your dismissal from the religious Institute.

“Hereby I also order you to obey immediately and unconditionally the

above-mentioned decision, duly communicated to you by your

Superior General, within 30 days of receiving this letter. If you

do not obey this order you shall be dismissed from your religious

Institute without any further warning because you already have

had enough time to think and rethink on your position and accept

the decision of the Superior, who has been extremely patient with

you.”

[42] From the above, upon the Holy Sea considering her appeal he came to the

decision that applicant’s persistent refusal to comply with 1st respondent

orders ought to attract a penalty of dismissal. However, applicant was

given a thirty (30) days grace period to comply failing which a

dismissal. She was further advised that this was a final decision and no

further indulgences would be afforded to her. In other words when 1st

and 2nd respondent authored the correspondences of 20th May 2017, they

were merely reminding applicant of what the Holy Sea had decided. In

brief even if this court may set aside the correspondence of 20th May

2017, the dismissal sanction by the Holy Sea still stands. In the result,

applicant’s prayers would have no force and effect on their grant by

reason that they have been rendered abstract.

[43] The wise observations by Counsel Gerhand van der Schyff are apposite in

casu:

“The right to admit members and clergy would also imply the right to

discipline such people in order to enforce conformity and

encourage conduct in harmony with religious precepts and

teaching.”26

[44] Further, following the ratio decidendi in De Lange on the acceptance of the

doctrine of entanglement, I do not wish to be drawn to the argument that

the applicant has spent almost her entire life in the sisterhood

congregation and that the mere E5000 offered to her to commence life

elsewhere is unreasonable. These matters are best dealt by the religious

tribunals themselves. After all, applicant conceded that she took the

vow to poverty. It is not clear why she had to insist on a higher figure

and further why she decided to venture into the secular world by

acquiring shares in a company. It is needless of me to make an inquiry

on these questions. They are best suited to those who are fully vests with

canonical laws. However, what is clear is that applicant cannot enjoy of

both worlds. It is certain though that her dismissal from the sisterhood

congregation would provide her with the opportunity to enjoy her

directorship and shares in the company she has so dearly clung on over

the years.

[45] In the result, I enter the following orders:

26 Para 32 of De Lange supra

45.1 The applicant’s application is dismissed;

45.2 Costs to follow the event.

For Applicant : T. Mavuso of Motsa Mavuso Attorneys

For Respondent(s) : L. Manyatsi of Manyatsi & Associates