Lobatse High Court Judge Key Dingake last Friday heard a case in which some priests of the Church of the Providence of Southern Africa, in the Diocese of Botswana, want him to declare that the revocation of their licences effectively preventing them from performing their duties amounted to dismissal without a hearing as required by law and was, therefore, unfair.
The priests say that it is trite that the dismissal in this instance would be both procedurally and substantively unfair and ought to be set aside and that they, the applicants, be restored to their former posts as they had not been charged or a hearing held before their dismissals.
Further, they say that there are conditions of service as between the applicants and the Church and that the Church could not unilaterally amend them without reference to the priests and, more particularly, without their consent. They contend that given the submissions made by the Church, the Acts have been amended and it would be unfair as that constitutes unilateral variation or amendment of the terms and conditions of employment of all the priests and that it would, therefore, be set aside as well.
The question to be answered as submitted by the lawyer, Kgalalelo Monthe, representing the priests, is what procedures are to be followed by the Church in revoking the priests’ licences.
The two possible ways of doing so, Monthe submitted, are that the Church gives the priests six months notice in writing of its intention to do so or the licence may only be revoked at the instance of a properly constituted Church court.
After the consideration of the matter, he submitted that it was clear that proper procedures that are contained in the Acts of the Diocese of Botswana were not followed.
The proper procedure, Monthe submitted, is that after the Church had made up its mind to revoke a license of a clergyman, he must be informed of that intention and the reasons for such an act given. The clergyman may consent to the revocation, in which case the matter does not reach the commission and neither is the Reverend Trevor Mwamba, as second respondent, obliged to make reference of the matter to the Commission.
But, said Monthe, if the clergyman objects then Mwamba can not revoke the license and that he is then obliged to refer the matter to the commission. The Commission will then hear both parties and that witnesses may be called to decide whether the license shall be revoked. He said that if the clergyman objects, the bishop can not revoke because he is obliged to make a reference to the Commission, which has the power to revoke after hearing evidence. Monthe said that such a proposition is sound given that the commission is not an appellate body to the decisions of the bishop for, were it so, the words of Canon 16,2 would have stated that in express unambiguous and clear terms.
He further submitted that it would be absurd for both the Bishop and the Commission to revoke the clergyman’s license and thereby duplicate each other’s role given that the Commission does not stand as an appellant body to the Bishop.
Mothe said that the Bishop is part of the Commission and that there can not be any less amount of absurdity and repugnancy to have the Bishop sit in appeal of his own decision. The Church, he said, contends for an interpretation that the bishop is entitled to revoke the clergyman’s licence and that the clergyman who objects will refer the matter to the Commission. Further, the respondents submitted that the bishop is entitled to revoke and then refer the matter to a commission which is also entitled to revoke which commission the bishop is part of.
He further submitted that the interpretation contended by the Church and the Bishop is one which is both repugnant and absurd for it requires the Bishop to make the same decision twice in revoking a clergyman’s license and being part of a commission to do the same thing. That Canon 16-2, given its proper construction and being properly considered, does give to a clergyman a right to a hearing by the Bishop for, if any reason, the bishop had intended to revoke a clergyman’s license upon objection to the bishop he might find reason to refer the matter to the commission and that would end the matter. Finally, that the bishop did not have authority to revoke the priests’ licenses on the basis of the charges which can only be tried by a church court and that in that way the bishop constituted himself into a Church Court as well.
