HIGH COURT OF LESOTHO
ELIAS THATO MONA APPLICANT
SEBASTIAN KOTO KHOARAI 1ST RESPONDENT
CATHOLIC CHURCH IN LESOTHO 2nd RESPONDENT
HON. MR JUSTICE S.N. PEETE
28th MARCH 2007
HEARING : 9th MARCH and 24TH APRIL, 2006
the 7th June 2000, the applicant — an ordained catholic priest
since 1986 — filed an application before this
court seeking an
order couched thus:-
"1. That the purported dismissal of the Applicant as a priest
referred to in 1st Respondent's letter dated 9th December 1999
declared null and void and of no legal effect and consequence.
Applicant be reinstated to his position as Priest and chaplain of
'Masentle High School forthwith.
1st Respondent be directed to publicise the fact of Applicant's
reinstatement to the Members of the diocese of Mohale 's
Respondents be directed to pay costs of this application."
his founding affidavit the applicant alleges in the main that on the
2nd February 2000 the 1st respondent Bishop Sebastian
served upon him a letter dated 9 December 1999 in terms of which he
was informing him the applicant about
"the Evangelization of People's Decree purportedly dismissing me
enclosed therein were two documents - one written in Latin and
another allegedly its unofficial translation R4a.
his para 7 applicant particularly alleges that there is no probable
proof that The Pope ever endorsed his dismissal inasmuch
as The Pope
could never competently have done so without affording [me] a prior
hearing and assuming a decision to dismiss was
ever made, the said
decision would be of no consequence and effect by reason of not
having been afforded an opportunity to defend [myself] against any
allegations upon which [my] dismissal is premised.
maintains that all cases which carry a perpetual penalty of
dismissal from the clerical state are to be governed by
(2) and 1425.
solemnly states that the 1st respondent - Bishop Sabastian Koto
Khoarai — has never alerted him to any impending proceedings
'''for my dismissal from the clerical state" and neither did
the administrative organs ask him to make any representations
respect of such matter.
submits that he has thus been arbitrarily (without being afforded
opportunity to make representations to whatever allegations)
should be noted at this stage that the 1st Respondent only filed an
answering affidavit only after having been granted leave
to do so by
this court. This was a sequel to an unsuccessful application on
points in limine before my Sister Majara J. and appeal
Court of Appeal of Lesotho - (CIV/APN/196/2000 and C. of A. NO.3 of
In his answering affidavit the 1st respondent vouches for the
authenticity of the R4a as having been decreed by the late Pope
Paul II as the Supreme Pontiff. He also in great detail described
hierarchy and structure in the Roman Catholic Church, especially the
position of the Congregation for the Evangelization of Peoples
Roman Curia and pointed out that the Congregation is the Pope's arm
through which He carries out his duties as the Supreme
Pontiff of the
Roman Catholic Church.
admits that a cleric or a priest may lose his clerical state by a
rescript of the Holy See which can do so in terms of Canon
of the Canon Law of the Roman Catholic Church.
further admits that he issued the "Canonical Warning"
dated 4th January 1999. Its full text reads:
Rev. Elias Mona,
Mohale 's Hoek.
It has come to our notice that you are frequently drunk over
weekends, causing many incidents, including a recent occasion when
you were arrested and spent a weekend in jail. These situations bring
scandal to the Christian faithful.
It has also come to our notice that on several occasions you have
been found in a compromising situation: women shielding your
drunken body in the street by squatting over you, women fighting over
you and on once occasion someone alleging forced intercourse
These incidents are public knowledge, to the point that you have
become notorious in our diocese. This situation has caused great
confusion and scandal among the faithful, to the extent that they are
asking whether the
Church is showing any leadership at all or whether the Church's law
on priestly celibacy has been changed.
It is equally a matter of record that many encounters between us
regarding this and other matters, during which we urged you to
your mode of life and to conduct yourself more according to the
example of our Lord Jesus Christ have proved fruitless.
seem to be completely unable to exercise self-control.
It is therefore necessary to issue a canonical warning to you, to the
effect that, should you not come to the bishop's house and
being sent for rehabilitation and thereby immediately refrain from
the external sins against the sixth commandment (c 1395,1),
be forced to issue a decree of suspension a divinis against you.
You have fifteen days in which to respond to this warning, failing
which a decree of suspension will be issued. This will be followed
the fitrther steps envisaged in c 1395,1.
Yours in Christ Jesus,
KhoaraL Bishop of Mohale 's Hoek Phatsoane, VG & Chancellor "
warning was only handed to Applicant on the 9th April 1999.
this warning the applicant replied on the 19 April 1999 as follows:
OF MOHALE !S HOEK
HOEK (BY REGISTERED MAIL)
you to the above mentioned matter and acknowledge receipt of your
letter dated 4/1/99 which I received on the 9/4/99.
outset with due respect I wish to vehemently deny all accusations
leveled against me as being devoid of truth. In particular
that I have ever had any encounter with you regarding my behaviour as
you have alleged or at all.
respect I wish to object to the issue of the canonical warning as it
is being issued without first having afforded me any
prior hearing on
the said obnoxious allegations against me.
I appeal to you to reconsider your decision on this matter and allow
me the opportunity to defend myself in the true
sprit of Christian
sacra congregazzione per II Clero
goes on to explain that the applicant persistently refused to accept
the document when original service was effected on him;
and that it
returned unclaimed when sent by registered post (17/3/99).
proceeds to state that he then personally delivered the Canonical
Warning on the 9th April 1999.
cannot be disputed that this Canonical Warning of the 4 January 1999
which the 1st Respondent describes as a medicinal or corrective
measure designed to rehabilitate an offender in order that he mends
his ways, related to the decree of suspension which was later
certified by the 1st Respondent on the 25th January 1999.
should suffice at this juncture to state that my Brother Ramodibedi
J (as he then was) traversed the issue of suspension and
reasoned judgment setting the suspension aside. (CIV/APN/207/99
-dated 4th November 1999)
is common cause that the 1st Respondent had addressed himself to The
Pope on the 7th May 1999 annexing a large "Dossier
for the case
of Dismissal from the clerical state of Rev. Elias Thato Mona".
This Dossier was submitted to the Congregation
Evangelisation of Peoples in Rome in Italy.
letter addressed to His Holiness late Pope John Paul H dated 7th May
1999 reads in full:
"His Holiness, Pope John Paul II 7 May 1999
Most Holy Father.
I, Sebastian Koto Khoarai, Bishop of Mohale's Hoek Lesotho, in which,
as a result of lack of qualified personnel, there is no
ecclesiastical Tribunal, hereby most humbly petition Your Holiness to
grant a decree of dismissal from the clerical state and of
dispensation from the concomitant obligation of celibacy for Rev
Elias Thato Mono, who has been responsible for many grave offences,
against the sixth commandment and has, also for various other reasons
as will be gleaned from the accompanying dossier, been a
cause of scandal in the local Christian community over a lengthy
period of time.
In spite of advice to amend his ways and to repair the scandal given
to the community of the faithful, given him on many different
occasions over the past eight years, and in spite of the instruction
for him to make a spiritual retreat in order to reconsider
vocation, Rev Elias Thato Mono has persisted in his scandalous way of
On the 9th day of April 1999 a final canonical warning was served on
him at the Masentle Catholic High School where he teaches,
presence of Fathers Patrick Phatsoane, omi, VG and William
Thahanyane, scp, consultor, which he refused either to accept
hear. This was followed by a decree of suspension a divinis on the
30th day of April 1999, served on him in the same manner
and in the
presence of the same consultors. Nevertheless he persists in his
misconduct. Furthermore he refuses to apply to be released
clerical state and for a dispensation from the obligation of
While it grieves us deeply to make this petition, Holy Father, we
consider that the good of the Church demands that Rev. Elias
Mona be dismissed from the clerical state and be dispensed from the
concomitant obligation of celibacy.
your Apostolic blessing, we remain, yours humbly in the Lord
Mohale 's Hoek
Patrick Phatsoane, omi Rev. William Thahanyane. omi
General & consultor consultor"
letter in effect was asking for the dismissal of the applicant from
the clerical state; and we know that the Applicant challenged
suspension on the 24th May 1999 and that when my Brother Ramodibedi
J set aside the suspension on the 4 November 1999, the
- on the 15th October 1999 - already been effectively dismissed from
the clerical State with the approval of The
Pope in forma specifica.
(See R4a). This Decree is worded thus:-
"P/N 4624/99 (Unofficial translation)
FOR THE EVAGELIZATION OF PEOPLES
in mind the notoriety and obstinacy with which the Revd ELIAS THATO
MONA diocesan priest of Mohale 's Hoek, has committed
as referred to in par 1395 par 1;
considered the great difficulties of dismissing him from the clerical
state by the penal process following the norms of canon
1342 par 2,
canon 1425 par 1 section 2a, and canons 1717 to 1719;
before our eyes the special Mandate to this Congregation for the
Evangelization of peoples, granted in (papal) Audience
of 15 October
1999, of derogating from the common norms in similar cases;
considered all these things maturely, and weighing up with (due)
deliberation that the headstrong priest has been warned
again; (now therefore) this Congregation has DECREED:-
Revd. ELIAS THATO MONA, diocesan priest of Mohale's Hoek must be
advised of the penalty of dismissal from the clerical
Rome, from the Offices of the Congregation for the Evangelization of
Peoples, on the 15th of October 1999.
Joseph Cardinal Tomko, Prefect
Archibishop Marcellus Zago, OMI, Secretary
II, by Divine Providence the Supreme Pontiff, observing all the
provisions enacted in article 110 of the General Instructions
Roman Curia, in Audience granted to the undersigned Cardinal prefect
on the 15th day of October 1999, having heard from
him the story of
offences committed by the above-mentioned priest,
approved this present Decree in forma specifica, thus excluding all
possibility of appeal or further recourse, and dispenses
the said priest from each and every obligation connected with the
presbyteral order, not excluding the law of holy
to the contrary notwithstanding.
Joseph Cardinal Tomko, Prefect (Signed) Marcellus Zago, OMI,
appellant's victory over the suspension became pyrrhic when on the
2nd February 2000, he received a letter from the 1st respondent
dated 9th December. The letter reads in full:-
"Dear Mr Mono, 9th December 1999
been instructed by the Congregation for the Evangelization of Peoples
to communicate the enclosed Degree to you, dated 15th
in which you have been dismissed from the priesthood. I have also
been instructed to make your dismissal known to
the faithful of the
enclosed a translation of the Decree for your convenience.
of the above development, I have no choice but to ask you to vacate
premises and to leave the parish within 15 days of receipt
yours in Christ,
Sebastian Khoarai, OMI
Mona Masentle High School P.O. Box 229. MAFETENG 900.
Eminence Cardinal Josephus Tomko, Praefectus
Archbishop B. Mohlalisi, OMI."
crux of the issue is to determine whether the applicant had been
formally called upon to make representations before the Dossier
pleading for applicant's defrockment was dispatched to Rome and this
is principally a question of fact.
Dossier contains the following documents:-
respondents letter to His Holiness dated 7th May 1999;
Warning - dated 4.1.99;
Note proving service on 9.4.99;
of Suspension - dated 24.1.99;
Note proving service - dated 30.4.99;
Vitae of Applicant;
from various people with a covering comments of Examining Judge
Marc de Muelenaer.
people recommended laicization (defrockment) of applicant because of
his alleged drinking and womanizing tendencies.
glance through the Dossier reveals a sad catalogue of events since
1997/8 regarding the standing of the applicants and other
the Roman Catholic Church in the Mohales' hoek Diocese and it seems
as early as April 1998 the 1st respondent had
instructed by the Congregation to prepare a case for the dismissal
from clerical state of Father Mona because of
his alleged alcoholism
and alleged promiscuity which are offences against Canons 1394 and
seems Apostolic Visitations had even preciously been ordered by the
Congregation in October 1996 and July 1997 and were led
by the Most
Reverend Cardinal Napier OFM Archbishop of Durban and several
interviews with Church's faithful and other people
instructions of the Congregation also provided a modus procedendi
for dismissal from clerical state especially of the Applicant.
that Canons 1394 and 1395 were being contravened by applicant;
that Lesotho is a mission territory where there is no
Ecclesiastical Tribunal regularly functioning to handle such
addressed Holy Father countersigned by two diosesan consultors:
that the priest has refused to be dismissed from the clerical state
to this procedure and if all steps had been followed, the
Congregation (Dicastery) "after examining each case carefully
would then present the case to the Holy Father for his approval in
forma specified of the dismissal of the priest from the clerical
state with dispensation from celibacy."
is important to note that the priest - as Petitioner - is also to be
consulted regarding the merits of the cause in the process.
compilation of these affidavits and explanations from the errand
priest is intended to enable the Congregation in Rome to
all the relevant facts before coming to a decision.
seems that a decision having been taken to defrock the applicant
certain procedural steps had to be taken; and canonical warning
suspension were some of these steps.
is lacking though - and cannot be gleaned from the papers - is
whether (a) the applicant was ever formally asked, and he
to be liacised; (b) applicant was ever made aware of the
recommendation for his dismissal from clerical state to be
the Congregation and that he had to make certain representations as
a petitioner. OR was - as Papal Decree states - the
labeled as notoriously obstinate and headstrong and impervious to
multiple warnings. These were the pertinent factors
Congregation for the Evagelization of Peoples surely bore in mind
and considered before decreeing dismissal of applicant
as it did on
the 15 October 1999 and that this Decree was approved by Pope John
Paul having heard Cardinal Joseph Tonko.
these proceedings Applicant's case stresses the following issues:
R4 (the Decree) has no probative value inasmuch as it is a document
in the nature of a hearsay;
there is no evidence that Pope John Paul II ever endorsed the
dismissal - without affording him a prior hearing;
he was not afforded any opportunity to defend himself against
allegations upon which his dismissal is premised;
Canon 1342 (2) excludes dismissal from clerical state (a perpetual
are serious issues of fact; and whilst it is clear that the
applicant replied to the Canonical Warning dated 4/1/99 by his
letter dated 19th April 1999, categorically denying the serious
allegations of drunkenness and womanizing, the applicant still
insisted upon his right to have been afforded prior hearing before
the canonical warning was decreed. (See para 11, supra)
CIV/APN/207/99 my Brother Ramodibedi J. (as he then was) had this to
"It is common cause that before the Applicants were served with
suspensions as fully stated above they should have been given
of "Canonical Warning". It is their case however that even
at that stage that they were not given an opportunity
to be heard.
Indeed in the case of second Applicant I find that his averment in
this regard in paragraph 5(iii) of his founding
remained completely uncontroverted and I accordingly accept it and
proceed on the basis of its correct. I do so on
the authority of
Plascon - Evans Paints v Van Riebeeck Paints 1984 (3) SA 623 at
the same token the respondent has not controverted the specific
allegation in para 7.4. which reads thus:-
"7.4 I verily state that other than the aforementioned canonical
warning and suspension, the 1st respondent has never alerted
any impending proceedings for my dismissal from the clerical state,
neither has any of the 2nd
Respondent's administration staff asked me to make any
representations in respect of such matters. "
court has not been shown any document advising the applicant that
besides the canonical suspension, dismissal proceedings
afoot and applicant being advised of his right then to make
representations responding to the allegations or to apply
voluntary defrockment. The last communication between the 1st
respondent and the applicant was — according to papers
court — his canonical suspension served upon applicant on 30th
April 1999, after which he applied to court to have
way 1st respondent's affidavit is drafted leaves much to be desired
— it does not address specific issues raised in
applicant's founding affidavit paragraph by paragraph but merely
addresses general issues e.g. "APPLICANT'S DISMISSAL".
Under this heading para 7.4 is not directly addressed or
controverted — and this leaves everything to conjecture.
respondent's Para 8 reads:-
"8.2 ...I wrote a petition to His Holiness Pope John Paul II,
which is part of the dossier referred to above, and mentioned
(i) the Applicant had despite advice, refused to amend his ways an
repair the scandal in the community of the faithful
(ii) On 9th April 1999 I served a final canonical warning on him
which he refused to accept or to hear.
(iii) On 30th April 1999, I served the Applicant with a decree of
"8.3. The Congregation considered the dossier and the petition
together with the Applicant's response (to the Canonical Warning
which the Applicant had himself copied to the Congregation for the
Evangelisation of Peoples. After considering all that was presented
before it and having been mandated there by His Holiness People John
Paul II the Congregation for Peoples issued a decree of dismissal."
short, the 1st respondent submits in his answering affidavit that
due to applicant's recalcitrant attitude, the applicant had
abused the opportunity to present his case against what were indeed
very serious allegations against him and that applicant
desired to frustrate all the inquiries into his misconduct.
this, the applicant retorts in his replying affidavit by contending
"8.2 Re: para 8.4, 8.5, 8.6, 8.7 and 8.8
"I deny that I was ever given any opportunity to defend myself
against any allegations of misconduct. It is significant that
(Applicant's reply to Canonical Warning) was my plea to the deponent
to afford me an opportunity to defend myself The deponent
plea: it is ironic that the deponent now dubs REM as my
188.8.131.52 It is significant that I was never apprised of any case
presented against me before the Congregation. The latter never
me any opportunity to defend myself against any such case."
seems fair to infer that having been suspended, the applicant was
taken and treated as a stubborn, headstrong, obstinate priest
did not deserve to be given opportunity. Indeed 1st respondent
"8.7 The Applicant's initial refusal to accept the warning, and
his refusal to deal with the charges brought against him under
canonical warning, means that he did not have to answer to those
charges alternatively he was not prepared to answer them."
1st respondent explains that at the relevant time, as is at present,
there was no Ecclesiastical Tribunal in Lesotho to adjudicate
cases; and that The Pope had given a Special Mandate to proceed
administratively — rather than judicially —
cases and to present directly to Him for approval any decrees of
dismissal from the Clerical State.
is these administrative procedures — modus procedendi —
that needed to be strictly followed in the absence of a
inquiry. A very detailed Modus Procedendi has been attached by the
1st Respondent (Record, vol II, p. 72 etc.). It reads
" ...For this purpose, it would be necessary to abide by the
bishop should officially suspend the priests in question from every
power of order and government for a certain length of
should impose or declare a penalty in an administrative manner, i.e.
by an extra-judicial or administration decree (can. 1342
bishop should compile a petition addressed to the Holy Father, which
is countersigned by two diocesan Consultors as witnesses,
he presents in details the elements and particulars of each specific
case, requesting expressly the dismissal from clerical
state and the
dispensation from the obligation of celibacy for the priests in
question, making it clearly known to the Holy Father
priests are from a mission territory which is deprived of an
ecclesiastical Tribunal; that the priests are involved
in case as
specified in can. 1394 and 1395, 1-2; that they continue to persist
in the offence and for that matter suspended by
the bishop; and that
they have refused to apply to be dismissed from the clerical state
(can. 290, 3") and the dispensation
from the obligation of
celibacy (can. 291).
document should be sent to the congregation for the Evangelization
of Peoples, through the Nunciature in Pretoria. The Apostolic
will include his remarks confirming that all the conditions related
to the case have been fulfilled.
Dicastery after examining each case carefully will then present the
case to the Holy Father for his approval in a specific
form, of the
dismissal from the clerical state with dispensation from celibacy."
this case, it must be fully realized between the applicant and the
2nd respondent there exists no contract of service or employment
such that provisions of the Labour Code may apply e.g. section 66(4)
"(4) Where an employee is dismissed under subsection (1) (a) or
(b) of this section, he or she shall be entitled to have an
opportunity at the time of dismissal to defend himself or herself
against the allegations made, unless, in light of the circumstances
and reason for dismissal, the employer cannot reasonably be expected
to provide this opportunity. The exercise or non-exercise
right shall not act as any bar to an employee challenging the
dismissal pursuant to the terms of a collective agreement
of employment, or under the provisions of the Code." (My
my view, no contract existed in a legal sense. Applicant as the
priest and "man of cloth" has been called by God
undertaken certain solemn vows under the Canons of the Roman
Catholic Church. He is not an employee of the Church in
sense but rather a servant of God. The "numerous benefits"
carried by the respectable status of priesthood
have not been
specified by the applicant in his founding affidavit. The applicant
was admittedly a bible knowledge teacher which
was part of his
"calling'' — for which no stipendiary benefit was derived
or could be claimed as of right.
my view, the administrative modus procedendi held in lieu of
judicial inquiry is intended to garner material facts for the
benefit of the Congregation in Rome so that the Congregation can
then consider the merits and demerits of the allegations against
errant priest and to decide whether to decree a dismissal from
the question whether the applicant was afforded an opportunity to
respond to the allegations, the 1st respondent has not succeeded
show that this was done. But that is not the end of the matter.
are here dealing with the government of a church freedom of
conscience and relationship between a church and its priest. In
interesting case of Mankatshu v Old Apostolic Church of Africa -1994
(2) SA 458, Dumbutshena JA held that the audi alteram
does not apply where a priest who claims that he was denied the
opportunity to be heard, fails to prove that he has
civil right or interest which was prejudicially affected, for
example where there exists contract of service/employment
the church and the applicant
court went so far as to say that "jurisdiction or lack of it,
is an important issue when considering whether a party
his church can take the dispute to a civil court The authorities say
that, when there is an absence of civil rights
prejudicially affected by a decision of a voluntary association, the
civil courts have no jurisdiction." -
Dumbutshena JA at 460-61.
also held in that case that there was no justiciable contract of
service: nor could the constitution be taken as a contract
the English case of Davies v Presbyterian Church of Wales -
All ER 705 (HC) Lord Templeman opined as follows:
"My Lords, it is possible for a man to be employed as a servant
or as an independent contractor to carry out duties which
exclusively spiritual. But in the present case the pastor of the
Church cannot point to any contract between himself and the
The book of rules does not contain terms of employment capable of
being offered and accepted in the course of a religious
duties owed by the pastor to the Church are not contractual or
enforceable. A pastor is called and accepts the call.
He does not
devote his working life but his whole life to the Church and his
religion. His duties are defined and his activities
are dictated not
by contract but by conscience. He is the servant of God. If his
manner of serving God is not acceptable to the
Church, then his
pastorate can be brought to an end by the Church in accordance with
the rules. The law will ensure that a pastor
is not deprived is not
deprived of his salaried pastorate save in accordance with the
provisions of the book of rules but an industrial
determine whether a reasonable Church would sever the link between
minister and congregation.
The duties owed by the Church to the pastor are not contractual. The
law imposes on the Church a duty not to deprive a pastor of
office which carries a stipend, save in accordance with the
procedures set forth in the book of rules. The law imposes on the
Church a duty to administer its property in accordance with the
provisions of the book of rules."
being an ordained priest whose service to God also perhaps involved
teaching Bible Knowledge at 'Masentle High School,
the applicant has
no shown any stipendiary interest that is prejudiced. Between the
applicant and the 2nd respondent there exists
relationship which gave rise to a legitimate expectation which
entitled him to be heard.
should be taken in dealing with matters jurisdictional which are
exclusively spiritual and those temporal and secular. A
vows devoting his whole life to the church - with obedience,
celibacy and sobriety. He is a servant of God through
His Church. We
are not dealing with an administrative or a public official or
the case of Grundling v Van Rensburg No. 1984 (4) SA 680 (WLD) (in
Afrikaans), a preacher had not been informed of the nature
rumour which was being investigated by the Presbytery Commission
until a preliminary investigation was completed and report
to the Presbytery. It was held by Conradie J that the right to rebut
a rumour or a serious allegation at an early stage
was a valuable
right of denial of which amounted to a serious irregularity. But See
Chairman Board on Tariffs and Trade v Brenco
— 2001 (4) SA 511
(SCA) where Zulman JA said:-
" There is no single set of principles for giving effect to the
rules of natural justice which will apply to all investigations,
enquiries and exercise of power, regardless of their nature. On the
contrary courts have recognized and restated the need for flexibility
in the application of the principles of fairness in a range of
I am of the view that the approach of Dumbutshena JA is more
appropriate in the circumstances of this case. The 1st respondent
wrote a letter to His Holiness Pope John Paul II on the 7th May 1999
seeking applicant's dismissal from clerical state and the
probably ignorant of this petition — filed an application in
the High Court on the 24th May 1999 seeking
the setting aside of his
suspension. That the
relationships had so deteriorated and so soured between the applicant
and 1st respondent admits no doubt. Invitations to the 1st
respondent's house were turned down and registered mail from 1st
respondent addressed to applicant was ignored. The opportunity
make representations had been removed and there were no avenues for
assuming that the applicant was not afforded an opportunity to
present his case when the investigations of the allegations
afoot, I hold that in view of the fact of his priestly status not
based on any temporal contract and was hence devoid of
stipendiary interest, the principle of audi alteram partem does not
main thrust of Mr Mda's submission is that the applicant was not
afforded an opportunity to respond to the allegations that
being made against him. Applicant chose not to attend the Bishops'
house to set the record straight but acrimonious litigation
over his suspension.
is plethora of authority to the effect that the audi rule is not a
limitless principle. It must be contextually applied
and where an
opportunity has been occasioned but not taken advantage of but
ignored, the principle cannot later be claimed more
there exists no contractual relationship between the applicant and
the person or body that dismisses.
audi principle is as I have just alluded not an absolute concept or
phenomenon. It has limits and its application may be qualified
particular circumstances of each case. Thus, it has been said, the
maxim audi alteram partem embodies a rule of equity and
a man by his own conduct may deprive himself of any claim to rely on
it — Radloff vs Clocolan Ko-Operatiewe
Landbou BPK - 1955 (3)
SA 418 at 423 per Van den Heever JA (in Afrikaans); where the
learned Judge of Appeal states:-
"In the Court a quo mention was apparently made of the doctrine
audi et alteram partem. Mr Badenhorst wisely did not rely
argument. A man which is invited time and again to state his case and
who ultimately refuses to do so can hardly call upon
of this doctrine. "
concluding this judgment. I should also mention that as regards the
authenticity of the R4a — The Decree of the Congregation
the Evangelization of Peoples, this Decree — ex facie —
is a foreign document purportedly executed at the Holy
See in Rome,
court has an inherent power to consider other evidence other than
formal authentification facta probatum - to determine whether
foreign document has been executed properly. The Latin language and
contents of the document must be looked at their context
relevance and their contemporaneity. The description of the priest
in R4a befits applicant as to location (Mohale's Hoek),
(violation of Canons). All these render it more probable that the
document was executed in Rome and dispatched to
the 1st respondent.
no cogent reason to contemplate a conspiratorial fraudulent escapade
at the in instance of the 1st respondent — Chopra
Cinemas (Pty) Ltd 197 (2) SA 352 (D); Erasmus - Superior Court
Practice -Bl- 407.
all the above reasons I would as I hereby do, dismiss the
application with costs.
Applicant : Mr Z. Mda
Respondents : Mr Jeffreys (assisted by Mr Matsau)
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
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