CIV/APN/502/03
IN THE HIGH COURT OF LESOTHO
In the matter between:
REV. PALO JOHN MPHETHI Applicant
AND
THE RIGHT REV. BISHOP JOSEPH TSUBELLA 1st Respondent
DIOCESE OF LESOTHO OF THE CHURCH
OF THE PROVINCE OF SOUTHERN AFRICA 2nd Respondent
JUDGMENT
Delivered by the Honourable Mr. Justice G. N. Mofolo On the 3rd day of March. 2005
On the face of it, this appears to be a case of the die is cast; rather odd because parties involved are men of cloth expected to find common ground and let bygones be bygones.
When this matter started, because of its nature it was suggested parties settle their differences amicably and to this end applicant's counsel wrote to 1st respondent's counsel for an offer of settlement in the following terms:
That Reverend Mphethi's pension fund and all the benefits associated with the termination of the licence to operate as a priest in the diocese be revived.
That Reverend Mphethi be allowed to continue with the recently undertaken studies at the National University of Lesotho in view of the fact that they were undertaken as an occupational option at a time when he was idling because of the then pending legal proceedings between the parties herein. This aspect must be considered in light to the fact that Reverend Mphethi's job had a training component. The course duration is four years at the end of which Reverend Mphethi will acquire a degree.
That the USPG Scholarship be revived in order to support Reverend Mphethi's currently undertaken studies.
That Bishop Tsubella bear costs incurred as a consequence of this litigation to the extent of M8,000.00.
That Reverend Mphethi be allowed to enjoy and to use the Church property like any other clergy in the Diocese.
The letter was dated 26 February, 2004.
The offer was rejected outright. Among some of the reasons rejecting the offer it was pointed out on behalf of the Bishop that:
The applicant had committed himself to study at NUL without the authority and consent of the Bishop. Applicant had been expected to report at Quthing parish from 15 August, 2003 from where proceedings for his intended transfer to Mants'onyane would take place.
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The Bishop was prepared to comply with the order and would remove and relocate Rev. Posholi to coincide with the arrival and assumption of duty by the applicant. The applicant would have the benefit of using church property provided he operated as a parish priest. Applicant who was regarded as a priest was expected to report to the Bishop's office within 10 days of the letter being on 22 March, 2004 and failing to report this would be taken as breach of the Canons and in particular Canon 19.
On the settlement failing the case had proceeded in which the applicant had launched an application seeking an order as follows:
Dispensing with the normal modes and periods of service provided for by the Rules of Court due to the urgency hereof.
Directing respondents to show cause, if any, on a date to be determined by this Honourable Court, why the following orders should not be made final and absolute:
Declaring 1 st respondent's termination of applicant's appointment as Chaplain to the Mother's Union to be null and void and of no legal force or effect.
Declaring 1st respondent's purported revocation of applicant's licence to be null and void and of no legal force or effect.
Declaring 1st respondent's purported revocation of applicant's licence to constitute contempt of an order of court.
(d)Committing 1st respondent to prison for contempt of court.
(e) Directing 1st respondent to pay applicants stipend including arrears that accumulated with effect from March, 2003 to date.
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Directing 1st respondent not to interfere with applicant's duties and functions as a priest as well as his appointment as Chaplain to the Mother's Union save as otherwise provided by law.
Directing respondents to revive applicant's pension fund, medical aid, death benefit and funeral benefit with Sanlam as well as applicant's provincial housing scheme with STANLIB.
Directing respondents to pay costs of this application on attorney and client scale.
Further and/or alternative relief.
3). That prayer 1 should operate with immediate relief
The application was opposed.
I am not aware that immediate relief was granted for the reason that as the writer had previously been engaged in this matter, he recused himself. The recusal having been turned down by the Acting Chief Justice Molai J., the writer proceeded to hear the application.
In a previous judgment in CIV/APN/62/03 in which the present applicant was applicant and the 1st respondent, 1st respondent, I inter alia reinstated applicant as rector of Holy Trinity Parish, Quthing, ordered that the incumbent Fr. Posholi be ejected as the transfer of applicant from Quthing to Mants'onyane was found to be irregular. It is this court's view that the ball
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was squarely in applicant's court to return to Quthing after all it was him who claimed he was wrongly removed from Quthing. The case for the applicant after his application was granted was one of restitution ab initio as this court sees things. It is also the court's view that no formalities or consultations were required to enable applicant to comply with the court order unless for ethical reasons such consultations were deemed necessary in that all that the applicant required was to acquaint the 1st respondent as his superior and head of the church with the court order and do the same to the occupier of the rectory at Quthing being the 2nd respondent in CIV/APN/62/03 above.
It is also this court's view that barring frustration applicant should have complied with the court's order. I have gone through applicant's papers and find that in his paragraph 10 of the Founding Affidavit the applicant alleges that on 4 September, 2003 he received a letter in terms of which 1st respondent informed him that he would not operate within the Diocese for the reason that he had refused to go to 1st respondents' office for a fresh discussion of his appointment.
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I have acquainted myself with the letter "JPM5" dated 4 September 2003 from the 1st respondent and find that the 1st respondent speaks of applicant's refusal to come to his office to discuss "your appointment afresh after I have asked you not to go to Quthing "and" I hereby make you aware that you cannot operate in this Diocese without my license." "Also, because you are not active in the work of the Diocese, please note that I hereby terminate your appointment as chaplain to the Mother's Union ......" According to the applicant, judgment was delivered on 15 May, 2003 in his favour and written judgment came on 15 August, 2003 and it would seem to me when 1st respondent wrote his letter of 4 September, 2003 applicant had not reported himself at his parish in Quthing. In his affidavit the applicant is silent on his inability to report himself at work in Quthing considering this was the most important aspect of his case.
Although the 1st respondent charged "you are not active in the work of the Diocese" I am not aware that in his Founding Affidavit applicant refuted this. It is my view that facts known to the applicant should have been denied and discounted in his original papers. In this aspect of the case though, 1st respondent has countered in his paragraph 5.1 that after delivery of judgment "I waited for applicant who was aware of the terms of the court's judgment
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to approach my office with a view to arranging for his moving to Holy Trinity, Quthing Parish" "but applicant never came to my office" and I did not know where he was up to the present save learning that he was studying fulltime at the National University. This court is of the view that whatever may have been the circumstances between the applicant and the 1st respondent, by virtue of applicant being answerable to 1st respondent, it is the applicant who should have presented himself to 1st respondent and apprised the 1st respondent of the terms of the court's order informing, at the same time, the 1st respondent that he (the applicant) intended abiding by the court's order by immediately resuming his duties aforesaid. Failing this the applicant should have informed the 1st respondent of developments since the court case and pleaded for accommodation. It is my strong view that applicant should have made full disclosure to 1st respondent of his circumstances. Had he done so and been denied by the 1st respondent, it was the reason to come to court to seek relief. As it is, my view is that applicant let slip his opportunity which he now attempts to seek by hindsight. We do not know what the Bishop and 1st respondent's reaction would have been had, after the judgment, applicant sought audience with the 1st respondent instead of the latter going out of his way to seek such audience. As it is now, the Bishop and 1 respondent's attitude is that applicant did not seek
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him when there was an opportunity to do so and he has no reason to seek applicant either. I cannot agree more with the Bishop's frame of mind if this is what is crossing his mind. It was not, by any stretch of imagination, the Bishop's errand to find the applicant but applicant's bounden duty to find the Bishop and plead his case with him. I don't know much of the Bishop and needn't do so but I am certain by reason of his training and call there is compassion in him not dictated to by emotions of love and hate but brotherly love. In case I have not said this, despite the relationship between applicant and 1st respondent engendered by litigation, applicant was obliged to consult with the 1st respondent regarding his ministry and any intended pursuits by him.
I have perused applicant's replying affidavit and find that at paragraph 4 the applicant has deposed:
"I submit that I did not have to go to Respondent's office to arrange anything. There was nothing to arrange. The court order was not directed at me but the respondent. All respondent had to do was to comply with the court order and remove Reverent Posholi from Quthing so that I could have free access to the rectory where I was unlawfully ejected. Respondent did not and has not up to now removed the said priest that he placed in Quthing unlawfully. I do not see the relevance of the statement that I am studying full time at NUL. I have my life to care of. I do not think for a moment that respondent expected me to just sit around vegetating while he sat back not complying with orders of this Honourable Court. The fact that I am currently studying at NUL is a direct result of failure on respondent's part to comply with orders of this Honourable Court. Nothing turns on this issue."
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I do not agree that where an occupier is ejected from the premises by the owner, on the former being re-instated it is the owner who should physically place the occupier in place for it is the occupier and successful party in action who should assume occupation in compliance with the court's order. If the successful party is prevented or frustrated from occupying the premises, it is a classic case of contempt of the court's order. It was not enough that overtly or expressly 1st respondent prevented applicant from going to Quthing and on evidence before me there is no such suggestion. Even had 1st respondent attempted to stop applicant from resuming his occupation of premises at Quthing, it was up to applicant to have gone to Quthing to occupy the premises and if Fr. Posholi prevented applicant from occupation this would be another case of frustration and hence contempt of Court for the basis of contempt proceedings is frustration and refusal to comply with an order of court. I have said it was up to the applicant to have gone to the Bishop to inform him of the court order and that in terms of the court order he intended occupying the rectory at Quthing. Even if the applicant had not gone to the Bishop for he was no obliged to do so save out of deference, at least he should have gone to Quthing and occupied the premises and if at Quthing either the Bishop or Fr. Posholi denied him occupation of the premises, this would without doubt amount to
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contempt of court. As it is, applicant did not go to Quthing to occupy the premises and would have this court surmise that since Fr. Posholi is still at Quthing the court should reach the conclusion that 1st respondent refused him occupation of the rectory at Quthing. I cannot countenance a case in which a party obliged to occupy premises has not shown that he attempted to occupy the premises but was prevented from doing so because another party was in occupation and from this to draw the inference that both the party in physical occupation and owner of the premises had somehow colluded that the successful party be prevented from occupying the premises. For the court to reach such a conclusion there has to be solid and substantial proof that the applicant was refused occupation of the premises at Holy Trinity, Quthing. I am not satisfied that there is such evidence.
At paragraph 5 of his Replying Affidavit applicant says that he has not been paid his stipend and in another breadth says:
"The sum of M13,605.30 was paid during settlement negotiations that subsequently collapsed and the reason the matter is still
proceeding before this Honourable Court."
Again, "the said payment is kept in my lawyer's trust account pending finalization hereof." The applicant has gone further to say the case was
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instituted as result of "respondent's failure to pay my stipend." "Respondent cannot therefore simply frustrate due process of law by effecting payment after proceedings have commenced."
It is not true that applicant has not been paid his stipend. What is true is that after lodging this application, it was applicant who initiated offer of settlement per "JT2" of 26 February, 2004. Of particular importance is clause 2 of the applicant's offer namely, that he be allowed to continue with his studies at the National University of Lesotho. It is an admission by the applicant that he was not authorized by the Bishop to undertake the study. In the same clause he says the studies were undertaken "as an occupational option at a time when he was idling because of the then pending legal proceedings between the parties herein." Maybe, but it is important to note that applicant idled as he did to await the result of a case he had instituted in court. The view of this court is that despite the case, the relationship between the applicant and 1st respondent had not been severed in that neither was the applicant suspended from duty or awaiting a disciplinary hearing making it impossible or impracticable to communicate with the Bishop on matters of mutual interest. Indeed until well after judgment, it does not appear that 1st respondent had in any way moved against the applicant.
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Back to annexure "JT2" above, this offer of settlement was rejected in the main by the 1st respondent with the rider that the applicant who was still regarded as a priest of the Church, report for duty. There can be no doubt that had applicant's offer of settlement succeeded as a whole, it is unlikely that the application would have been pressed forward; it proceeded as it did because settlement negotiations failed and I see no reason to blame the 1st respondent for their failure because 1st applicant was seeking an indulgence from the 1st respondent. There is no doubt in my mind that the settlement negotiations mooted by applicant were an arm twisting exercise and it is absurd to say because they failed 1st respondent is responsible for their failure and therefore guilty of contempt of court. Oddly, as against accepted practice where an applicant must make his case in the Founding Affidavit, applicant has preferred to make his case in his Replying Affidavit where, for example, at paragraph 6 he claims:-
"The reason is that respondent has refused to comply with the court order by keeping Reverend Posholi in the Quthing Parish as well as in the rectory thereby denying me access. As an illustration of respondent's unwillingness to comply with orders of this Honourable Court I annex two letters written on 18 February, 2004 that gave me the full impression the respondents' understanding was that his earlier decision to transfer me to Mants'onyane was still effective. Despite the judgment of this Honourable Court to the effect that said transfer was null and void respondent still wrote to me saying that I should long have reported to Mants'onyane Parish. I submit that when writing those letters respondent had the intention to defy the order of the
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Honourable Court because subsequent to the judgment of this court I was never transferred to Mants'onyane."
The applicant has a wrong end of the stick for as to transfer, servants of the Church are transferable so long as it is in accordance with the Canons and statutes of the Church. The judgment of this court was not to the effect that applicant is not transferable or that he cannot be transferred to Mants'onyane. Applicant's mindset also leaves much to be desired. By his admission, applicant is studying at NUL, and has successfully pleaded with the Bishop to continue his studies; the Bishop having refused to condone applicant's study at NUL, applicant is now claiming the Bishop threatens to transfer him to Mants'onyane. No, all that the Bishop said in his letter was that the applicant as a priest of the Church and not knowing of his whereabouts was to report for duty at Quthing in compliance with the Court's order but that having so reported and complied with the court's order there was still the intention to transfer him to Mants'onyane. Of significance is that all that this court found was that applicant's transfer to Mants'onyane was faulty and insupportable; there was no suggestion that having resumed his duties at Quthing the applicant could not be transferred and I reject the contention that because the Bishop threatened to transfer applicant after he settled at Quthing transferring him thereafter amounted to
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contempt of court. Contempt of court is no more than defiance of a court order in a particular case and circumstance and put in another way, it is noncompliance with a courts' order.
Moreover, because the court set aside the transfer to Mants'onyane it does not mean that applicant cannot hereafter be transferred to Mants'onyane. I have gone into matters raised in the Replying Affidavit to put the record straight notwithstanding that, as I have already said, strictly these matters should have formed part or subject-matter of the founding papers.
There are too many problems with this application. I have said that while in an application material facts are canvassed in founding papers or as it were Founding Affidavit, these were canvassed in the Replying Affidavit. It is, according to the general established rules, established that in motion proceedings the applicant must make out his case in the founding affidavit and that he may not introduce new matter in his replying affidavit -see Manerberger vs. Manerberger, 1948 (3) SA 231 (C) at 732; Jitty's Bar and Bottle Store (Pty) Ltd vs ABC Garage (Pry) Ltd and others, 1974 (4) SA (362 (T) at 368B-369A; Director of Hospital Services vs.
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Mistry 1979 (1) SA 626(A) at 635-636F. It has been said the rule is not an absolute one as was said in Bayat and Others vs. Hansa and Another, 1955 (3) SA 547 (N) where at 553D Caney J. said: "-----that it applies save in exceptional circumstances." It is, of course, in the discretion of the court to allow or disallow fresh matter being introduced in a replying affidavit and I understand court's discretion as fluctuating and dependant on circumstances of each particular case. Thus in Triomf Kunsmis (Edms) Bpk Andere, 1984 (2) SA 255 (NKA) it was held the discretion can hardly be exercised in favour of an applicant who discloses a new, substituting cause of action.
In the instant case the applicant knew that the reason he did not report for duty at his parish in Quthing is that he had enrolled himself at the National University of Lesotho making it impossible to abide the court's order. Instead of disclosing the fact in his founding affidavit he waited conveniently for this to be disclosed by the 1st respondent. The truth, by any stretch of imagination, is that it is the applicant who is in contempt of the court's order and not the 1st respondent. Not to be branded in contempt or hiding material facts, this is a fact which the applicant should have disclosed in his founding affidavit for its disclosure in the replying affidavit is hardly
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proper. I am of the view that this information was withheld so as to find fault with the 1st respondent while, in effect, it is the applicant who failed to honour the court's judgment by failing to take up his post at Quthing. Since it was the applicant that moved the court in CIV/APN/62/03, applicant should have been patient and awaited the result of his application and the application having been decided should have taken up his post at Holy Trinity, Quthing. Mr Phoofolo has submitted there is no way the applicant could have honoured the court's judgement for already he was enrolled at NUL. I could not agree more.
There is this problem of non-disclosure of material facts which I have adverted to in this application. I have above shown what cannot be contained in a replying affidavit save in exceptional circumstances. It is now appropriate to highlight or bring into perspective the effect of nondisclosure of material facts in originating papers or affidavits filed with notice of motion. The law appears to be that, as I said above, material facts are to be disclosed by a party in motion proceedings as aforesaid, particularly facts known to the party which may help the Court to reach a just decision.
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In Cometal-Momental SALR V CORLANA ENTERPRISES (PTY) LTD, 1981 (2) 412 (WLD) applicant failed to disclose every circumstance which might influence the court in deciding to grant or withhold relief and the respondent claimed that the applicant had breached the uberrima fides rule. The court refusing to set aside attachment ad fundandam juriodictioneer found that the applicant had furnished a reasonable explanation of the non-disclosure and, further, that, if those facts had been disclosed, it was doubtful if the court might have been influenced thereby.
I find as a fact that there has been no reasonable explanation of failure by the applicant to disclose the facts except that he was happy to put the 1st respondent on a wild goose chase. I am also of the view that had the facts been disclosed they would have influenced the court somehow. The undisclosed facts were known to the applicant at the time of launching the application, these were material facts which, if disclosed, would have influenced the court in granting or refusing the application. In my view, disclosure in a replying affidavit is not proper or full disclosure for the applicant was, as it were, prompted into disclosing the facts. Disclosure is such if it is free and voluntary and not prompted by circumstances. Not only were these facts to have been disclosed to court as we have shown above,
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they should have been disclosed to the 1st respondeat on the occasion of applicant reporting himself for duty to the 1st respondent. As was said in Spilg v Walker, 1947 93) SA 495 (E), such failure "tends to create a grave suspicion of the bona fides of the respondent." Substituting respondent for applicant, I cannot but associate myself with these remarks. There are, indeed, several reasons why this application should be dismissed least of which being non-discloure of material facts. The court though, has a discretion whether or not to dismiss the application the discretion depending, as shown above, on the circumstances of the particular case. Further, it appears suppression of material facts need not be wilful or mala fide - see Venter v Van Graan, 1929 TPD 345, Barclays Bank v Giles 1931 TPD G; Hillman Bros v Van den Henvel 1937 WLD 41.
In a recent case as to non-disclosure (Trakman NO v Livchitz and others, 1995 (1) SA 282 (AD) the Appeal Court has held failure to disclose material facts is no basis for extending the principle that an ex parte application can be dismissed solely on ground that applicant failed to disclose fully and fairly all material facts known to him in motion proceedings for material non-disclosure, malafides, dishonesty and the like in relation to motion proceedings should be dealt with by making adverse or
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punitive order as to costs as it cannot serve to deny a litigant relief to which he would otherwise have been entitled. In my view the instant case is distinguishable from the above case in that non-disclosure apart, there is no way the applicant could have been entitled to relief.
It has also been submitted on behalf of the applicant that when his licence was cancelled and he was deprived of Mother's Union chaplaincy he was not heard. I have said on several occasions that the revered principle of audi alteram partem is more often than not abused. The 1st respondent has denied he cancelled or withdrew applicant's licence. Since this is an application 1st respondent's denial is preferred. As to revocation of applicant's appointment as chaplain Mother's Union, this is a gratuitous appointment conferring no particular rights on the applicant. Besides, this court has believed the 1 respondent that applicant's whereabouts were unknown to him and since the work of the Church had to continue in applicant's absence, this function could not be allowed to flounder. This court cannot countenance a situation where an officer of the Church absents himself from duty and materializing at his own sweet time claim he was available at all material times. It is amply clear why applicant was unable
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and would be unable to report himself at Quthing and perform other functions of the Church; he was and is undergoing a lengthy course of study at the National University. Instead of having approached the Bishop to sanction his absence from duty, applicant took it upon himself to absent himself without leave. When, having taken the Bishop to court he attempted a settlement including the bishop's indulgence to condone his absence from the diocese, the bishop refused. Notice in his paragraph 4 of the Replying Affidavit applicant has deposed:
"I submit that I did not have to go to Ist Respondent's office to arrange anything. There was nothing to arrange---------. I do not see the relevance of the statement that I am studying full time at NUL--------------------------------- —. The fact that I am currently studying at NUL is a direct result of failure on respondent's part to comply with order of this Honourable
Court---------."
If, as the applicant says he did not have to go to 1st respondent's office, how then, would he have been heard were this necessary? He says he does not see the relevance of studying full time at NUL; well, it is relevant for how can the applicant study full time at NUL and be able at the same time to be a fulltime priest at Quthing and attend other functions like the Chaplaincy of Mother's Union while at the same time not consulting with the Bishop about his course of study at NUL? He also says that the fact that he is studying at NUL is a direct result of failure on 1st respondent's part to
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comply with orders of the court. I have already rejected above this contention with the contempt it deserves.
At paragraph 9 of his Founding Affidavit applicant says;
"On 28th August, 2003 after I made several futile attempts to persuade 1st respondent to pay my stipend, I presented my problem to my lawyer—".
I am not aware of these attempts and in any event "JPM4" was concerned solely with payment of applicant's stipend and not resuming duty at Quthing. Paragraph 9 above has to be read together with paragraph 4 and if these are read together there can be no doubt that the applicant is giving an unmistakable impression that while he made several attempts to have 1st applicant pay his stipend in any event it was not necessary to go to respondent's office "to arrange anything" and "there was nothing to arrange." in any event, if these attempts were made, since it was not necessary to go to 1st respondent's office "to arrange anything" as "there was nothing to arrange" how did applicant communicate with the 1st respondent?
I do not know the form these "futile attempts" took to persuade 1st respondent to pay applicant's stipend and since the applicant is not clear what form they took and 1st respondent denies there were such attempts, this contention cannot but be also rejected and it is accordingly so rejected
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particularly having regard to paragraph 5 of 1st respondent's Answering Affidavit to the effect:-
"After the delivery of this Honourable Court's judgment I waited for applicant who was aware of the terms of the court's judgment to approach my office with a view to arranging for his moving to Holy Trinity, Quthing Parish. Applicant never came to my office and I did not know where he was. I still do not know where he is up to present time."
I cannot lose sight of the fact that applicant has deposed "I did not have to go to Respondent's office to arrange anything." Also: "There was nothing to arrange." And yet I would have thought it was necessary for applicant to go to 1st respondent's
office to claim his stipend and arrange assumption of duty at Quthing in terms of the court's order? In the face of this, how can a Court well instructed not reject applicant's version of events in preference to 1st respondent's?
Applicant has also claimed that 1st respondent be committed to prison for contempt of court. I have already death with this above though it is worth emphasis that contempt of court is committed as I said above where a Court's order is not complied with. I understand contempt of an order of court being a party's disobedience of the order by, for example, refusal to give up possession of and quit a farm (Gingxa v. Kula), 1912 EDL 22. This is a case in point for here we are concerned with, according to the applicant, 1st respondent's refusal to return applicant to Quthing parish and allow
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applicant to occupy the rectory at the Holy Trinity Anglican Church, Quthing for, on the contrary, 1st respondent threatens applicant with transfer to Mants'onyane and Fr. Posholi still occupies the rectory at Holy Trinity Church. I have already above rejected these contentions as I also do now.
In motivating has case at paragraph 10 of his Founding Affidavit, applicant says "on 4 September, 2003 I received a letter from 1st respondent informing me that I would not operate within the Diocese the reason given being that I had refused to go to 1st respondent's office for a fresh discussion on my appointment, in any event, I fail to see how 1st respondent could have called me to his office for the stated reason while the matter in CIV/APN/62/03 was still pending." Applicant is so adept in twisting facts; 1st respondent's letter of 4 September did not say that applicant would not operate within the Diocese. All that 1st respondent said was "I hereby make you aware that you cannot operate in this Diocese without my licence." Although 1st respondent's words have been twisted by the applicant, it is for twisting and misrepresenting Ist respondent's words that applicant would have this court commit 1st respondent to gaol for contempt of court for the reason that while the court in its judgment re-instated applicant to his position, 1st respondent in flouted and/or frustrated the court's order by
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stripping applicant of his powers. In this the applicant is terribly mistaken. Just to show applicant's expertise in misrepresenting facts to suit his case, it is the same applicant who, in his Founding Affidavit at paragraph 8 deposed.
"On 15 May, 2003 Mofolo J. delivered judgment in my favour in CIV/APN/62/03 but reserved reasons for judgment. On 15th August, 2003 a written judgment was delivered, which was to the effect that my purported transfer from Quthing Parish to Mants'onyane Parish was null and void-----."
Since judgment in applicant's case by 4 September, 2003 was fully delivered and determined, what judgment was still pending? I take exception to applicant's misrepresentation of true facts and his nondisclosure of material facts. 1st Respondent is applicant's superior and applicant is accountable to 1st Respondent. It is the general expectation that vis-a-vis the 1st respondent-applicant will behave in accordance with dictates of good faith. There is, therefore, on the part of the applicant a duty to speak arising by virtue of there being an involuntary reliance by the 1st respondent on the frank disclosure of certain facts necessarily lying within the exclusive knowledge of the applicant to an extend where, in fair dealing, the 1st respondent right to have such information communicated to him would be mutually recognized by honest men in the circumstances (see Millner (1957) 74 sALJ (7) at 189). It has been said conversely, a party may remain innocently silent "where matters are open to common observation, or
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ascertainable by ordinary diligence, or accessible to both parties alike" (see Millner (1957) 74 SALJ 177 at 189) so that each party could reasonably be expected to exercise his own judgment in the matter- see also Drysdale Union Fire Insurance Co. (1890) 8SC 63 at 65.
I am of the view that knowledge that applicant was undergoing a course of study at the National University was within the exclusive knowledge of the applicant and in fair dealing it was 1st respondent's right to have such information communicated to him by applicant and that applicant's course of study at the National University was not, in any event, common observation or ascertainable by ordinary diligence or accessible to 1st respondent but that there was the utmost faith on the part of the applicant to disclose to the 1st respondent his whereabouts particularly because the court had ordered that applicant resume his duties at the Holy Trinity in Quthing.
Indeed there was greater duty of disclosure by reason of a fiduciary relationship between the applicant and the 1st respondent. As for applicant's terminal and other benefits including his stipend, the latter can only have been paid up to judgment for after judgment as applicant did not report for
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duty and from his circumstances it was impossible to report for duty, there is no way applicant's stipend beyond the day judgment was read can be paid. Regarding other benefits, applicant has himself to blame that these are not paid as it would seem there is the prospect of their revival on condition applicant report for duty as the court has ordered, failing which to receive special dispensation from the 1st respondent to continue his course of study at the National University, something which lies within the competence of 1st respondent and not this court.
Even if this aspect may be said not to have been raised at the right juncture, this court is nevertheless troubled by the form the
application has taken. There is a certificate of urgency pursuant to Rule 8 (22) (c) of Rules of Courts and annexed is Notice of Motion endorsed in small letters with "In the matter of an urgent application for a declaratory order and other relief; there is also a prayer for dispensation of the Rules of Court on account of the urgency of the matter and for all intends and purposes the application appears ex parte except it is not dubbed as such.
A question which arises is whether this is an ex parte application or an ordinary application not withstanding that paragraph 3 of the Notice of
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Motion is to the effect, "that prayer should operate with immediate effect." The application is dated 03 December, 2003. And yet it does not appear that the Court was approached on an urgent basis as the application suggests for from the judge's file it appears that on 4th June, 2004 appeared Mr. Mosae and Mr. Phoofolo for the applicant and respondents respectively with a view of settlement and the court noted that both counsel and parties were to appear on 16 June, 2004 regarding the proposed settlement. However, only Mr. Phoofolo appeared on 15 June, 2004 saying the Bishop was not interested in settlement negotiations and the case proceed. On account of the court being familiar with the case it recused itself only to be overruled by the Acting Chief Justice, Molai J. and the case proceeded as before. I am making the point that at no stage and the application assume urgency.
Regarding the application, Rule 8(7) of the Rules of Court, 1980 is to the effect:-
"Every application other than one brought ex parte shall be brought on notice of motion as near as may be in accordance with Form "J" of the First Schedule hereto and true copies of the notice" etc., etc. All that this means is that except for an ex parte application, all applications are to
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Certainly the instant application is not in the nature of form "J" though dubbed as such. It must be so dubbed to differentiate it from other applications. The reason for this is that unless an urgent application proceeds as such it risks dismissal. The present
application considering when it was filed and heard (18/08/04) while it has features of an urgent application it also bears features of an ordinary application making it a hybrid application.
Mr. Mosae for the applicant and while he was arguing merits of the case has raised what I consider a point of law namely,
"Whether respondent can rely on evidence of negotiations for a settlement" He has said in law respondent cannot rely on evidence of negotiations for a
settlement in that annexure "JT3" forms part of settlement negotiations that did not bear fruits and, according to him, the said letter together with annexure "JT1", "JT2" and "JT4" constitute inadmissible evidence in this matter and cannot be utilized by this Honourable Court. According to Mr. Mosae, there is clear evidence that respondent is trying to convince this Honourable Court by relying on privileged evidence, something that is not permissible.
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Hoffman, the South African Law of Evidence, 4th Ed. at 238 says "privilege is a personal right to refuse to disclose (and in one case, to permit certain others to disclose) admissible evidence." In this case the applicant is alleging that there is certain evidence which even though disclosed to the 1st respondent cannot be used by him against the applicant.
In effect, though, privilege has to do with exclusionary rules. It has also been said it is not only the maker but also the recipient of the statements who may refuse to disclose them for they are completely inadmissible except with the consent of the parties - see Theodoropoulus -vs. Theodoropolous (1964) p. 311, (1963) 2 ALL ER 772. A typical example is the one in terms of the Criminal Procedure Act which restricts the right of the prosecution to cross-examine an accused person on his previous convictions or misconduct. The rule actually prevents the prosecution from leading or eliciting evidence of accused's disposition or is the rule which prevents the 1st respondent from leading, eliciting or to rely on evidence of applicant's dispositions in previous communication. Thus in Mandela vs. Minister of Prisons, 1983 (1) SA 938 (A) Jansen JA as to the evidentiary rule, it was said there was the fundamental common-law right that entitles a person to seek legal advice in confidence. Also note in Giovagnoli vs. Di Meo, 1960 (3) SA 393 (D) a
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litigant sought to prevent his attorney from disclosing that he had been authorized to conclude a settlement. Caney J. had, however, ruled that such a communication could not be privileged because, if made, it must have been intended to be disclosed to the other party. In the instant application applicant is saying that annexure "JT3" is privileged information and hence inadmissible evidence, this despite the fact that it was disclosed to the 1st respondent with the possibility that 1st respondent could have divulged it to other people as there was nothing in the communication impelling 1st respondent to treat the communication as privileged.
I understand applicant's case as being that the communication contained in "JT3" is privileged and therefore inadmissible in evidence because it is communication between attorney and client though as I have shown above, the communication was availed 3rd parties such as 1st respondent. In Danzfuss vs. Additional Magistrate, Bloemfontein, (1981 (1) SA 115 (O) it was held it is a question of fact whether the communication was made in confidence. I understand question of fact as meaning depending on circumstances of each particular case.
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According to the judgment in Danzfuss case above, if there is one person suited to say whether he acted as professional legal advice to another, it is the attorney himself And although there is no onus on him to speak, if however he ventures an opinion on a point in favour of the person seeking advice, it is, it would seem, him who should give a detailed evidence as to the circumstances under which that person approached him for advice as well as reasons for the alleged attitude of that person during the interview. It was said in Dazfuss case above at p.l 19H that "the evidence of the applicant in the present matter is vague and does not comply with what I have said above. Needless to say the present application is on all fours with Dazfuss case above." Although the relationship between applicant and his counsel was one of attorney and client, it has to be borne in mind that with regard to confidence two principles should be borne in mind namely:
all communications cannot be presumed to have been made in confidence.
it is a question of fact to be determined from the circumstances under which the communication was made whether it was made in confidence see Nathan vs Anderson NO and the Attorney
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General of Transvaal, 1939 WLD 13 and 18. (p. 121 Danzfuss case above).
It was also said ibid if the money, according to the instructions was paid over to someone else by the applicant, the instructions must have been intended to be directed to that person and they could accordingly have been privileged communications, c/f Gioragnoli v Di Meo, 1960 (3) SA 393 (D) where at 399 Caney J. said:
"An instruction to an attorney to negotiate and effect a settlement is clearly not confidential, but intended to be communicated to the other party. It is not privilege - see Conlon vs Conlons Ltd (1952) 2 ALL ER 462 (CA)."
This settles the question whether communication between the applicant and his attorney and 1st respondent was confidential and being
confidential was privileged and not admissible in evidence. The crux of precedence in this regard is that such communication is not confidential when by settlement negotiations it was intended to be communicated to the other party. Applicant's negotiation for settlement was not a matter between the applicant and his attorney alone, it was intended to be communicated to the 1st respondent who, naturally, reacted as he did. I have dismissed the point of law taken in this regard. For no reason other than to add additional ammunition to the judgment, it was held in S vs. Kearney, 1964 (2) SA 495
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(A) at 499 and 500 that there is no reason why a statement unconnected with the giving of legal advice should be privileged merely because it was made in confidence.
Also, in Minter vs. Priest, 1930 AC 558 Lord Buckmaster at 568 said;
"The relationship of Solicitor and client being once established, it is not a necessary conclusion that whatever conversation ensued was protected from disclosure - The conversation to secure this privilege must be such as, within a wide and generous ambit of interpretation, must be fairly referable to the relationship, but outside that boundary the mere fact that a person is speaking as a solicitor, and the person to whom he speaks is his client affords no protection."
It has also been said Phipson on Evidence 11th ed. para 591, too points out that communications must be necessary and confidential and the learned author then states:
"The communication must have been confidentially made for the purpose of the employment, the knowledge confidentially obtained
solely in consequences of it, to be privileged. A conversation between solicitor and client is not necessarily privileged."
It is indeed for the above reasons and others that I have dismissed the assertion that the respondent (in fact 1st respondent) cannot, to butteress his case, rely on evidence of negotiations for a settlement for my view is that he can considering that the communication was not privileged nor is it inadmissible evidence.
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Applicant has twisted facts giving a false impression that 1st respondent is guilt of contempt of court when it is applicant who did not comply with the order of court to resume his priestly duties at Quthing. Apart from the point I have decided, the court was addressed fully and extensively on merits. The result is that this application is dismissed.
As to costs, although I have found for the Bishop, it was by no means an easy task save that I have found as a fact that the applicant did not exercise options at his disposed as he should have done.
I am not unmindful though of the fact that this court did hint as to the advisability of this matter being settled out of court and according to Mr. Phoofolo although the applicant was willing to do so, the Bishop was unwilling.
In our era hard-headed politicians are able to forgive and reconcile and put the past behind them. Mercy, forgiveness and reconciliation are tenets and cornerstones of the Christian faith. It is the prerogatives of the church and its patrons to forgive and reconcile.
And although it cannot be in
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all cases, when those who are vested with this power are unable in their conflicts to do so, Christianity becomes not only a riddle but a mockery.
The Bishop has too many bodies at his disposal to clear waters of discontent if he appeals to them and I am not satisfied that he went the necessary length. I am not inclined to award costs in the instant application to show the court's displeasure at being burdened with cases that should properly be solved within the church's hierarchy of authority; in addition, costs are not awarded to caution what in future may happen to these sort of cases being brought to court. Moreover, this court is of a strong view that these cases come to court by reason of there being lack of control and abdication of responsibility by proper organs of the Church.
To some, the court's reasoning in this regard might appear a contradiction in terms. I don't think so because this court is averse to harden attitudes and inflame the already strained relationships.
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There will accordingly be no order as to costs.
JUDGE
For the Applicant : Mr. Mosae
For the Respondents : Mr. Phoofolo
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