Download - SISTER CONCETTA GININDZA Applicant And
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