Mbombo v Church of the Province of Southern Africa, Diocese of Highveld (49468/2010) [2011] ZAGPJHC 93 (19 August 2011)

Mbombo v Church of the Province of Southern Africa, Diocese of Highveld (49468/2010) [2011] ZAGPJHC 93 (19 August 2011)

The Court found that the Respondent failed to follow the correct procedures as required by its own Canons and the Constitution. The allegations against the Applicant were of a serious nature and fell within the ambit of Canon 37(1), necessitating the invocation of Canons 37 and 39, which provide for formal charges, a properly constituted tribunal, and procedural fairness. The investigative panel was not properly constituted, lacking a lay person with legal background, and the Applicant was denied the opportunity to cross-examine witnesses and have legal representation. The process was further tainted by secret evidence and procedural irregularities. The Respondent's reliance on Canon 25...

Citation
[2011] ZAGPJHC 93
Parties
Applicant: Luvuyo George Mbombo; Respondent: The Church of the Province of Southern Africa, Diocese of Highveld
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
19 August 2011
Case Number
49468/2010
Procedural Posture
Review Application / Judgment
Outcome
Application granted. The decision to terminate the Applicant's pastoral services is declared unfair and unprocedural, reviewed and set aside. The matter is referred back for fresh consideration before a properly constituted panel. Costs awarded to the Applicant.
Judges
N F Kgomo
Legal Topics
Procedural Irregularity, Right to Fair Hearing, Review of Administrative Action, Church Governance, Natural Justice
Administrative Law Civil Procedure Procedural Irregularity Right to Fair Hearing Review of Administrative Action Church Governance Natural Justice

Case Brief

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Parties

Luvuyo George Mbombo

Applicant

The Church of the Province of Southern Africa, Diocese of Highveld

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the Respondent followed the correct and applicable procedures under its Canons when relieving the Applicant of his duties.
  2. 2 Whether the decision to terminate the Applicant's pastoral services was procedurally fair and in compliance with the Constitution and rules of natural justice.
  3. 3 Whether the investigative panel was properly constituted in accordance with the Church's Canons.

Ratio Decidendi

The Court found that the Respondent failed to follow the correct procedures as required by its own Canons and the Constitution. The allegations against the Applicant were of a serious nature and fell within the ambit of Canon 37(1), necessitating the invocation of Canons 37 and 39, which provide for formal charges, a properly constituted tribunal, and procedural fairness. The investigative panel was not properly constituted, lacking a lay person with legal background, and the Applicant was denied the opportunity to cross-examine witnesses and have legal representation. The process was further tainted by secret evidence and procedural irregularities. The Respondent's reliance on Canon 25...

Court Disposition

Application granted. The decision to terminate the Applicant's pastoral services is declared unfair and unprocedural, reviewed and set aside. The matter is referred back for fresh consideration before a properly constituted panel. Costs awarded to the Applicant.

Orders

  • The decision of the Respondent in terminating the Applicant's pastoral services in the Holy Name Church is declared unfair and unprocedural.
  • The decision of the investigating committee is reviewed and set aside.