Speculative, unreasonable fear

SHARE   |   Thursday, 09 August 2018   |   By Ricardo Kanono
Bishop Lekganyane Bishop Lekganyane

… Declares CoA, as it dismisses ZCC members’ interdiction against facing Disciplinary Hearing    

A three-member bench of the Court of Appeal has ruled that in running to court instead of proceeding to appear before a Disciplinary Hearing for fear of being found guilty and expelled from the church, 17 Zion Christian Church (ZCC) members acted speculatively and not reasonable enough.

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The members had applied to court to interdict the church from proceeding with Disciplinary Procedures and this was granted. But Court of Appeal Judges differed with the lower court’s decision to make the orders final.

“They could not possibly claim that they had a right not to be called for a disciplinary hearing whose outcome would be determined by evidence. It is clear that the nature of the evidence which would be adduced was and still is unknown. The second requirement is that there must be well-grounded apprehension of injury or irreparable harm. In the founding affidavit is said the fear was that if they appeared before the Disciplinary Tribunal at the time they would be found guilty and expelled from the church. The law is that the apprehension must be a reasonable one. In this matter the fears are only speculative. Further it is noteworthy that even if their fears could materialise and they got expelled unlawfully they would still have other avenues of taking the matter to such as the other church structures on appeal and if not successful seek court review,” said Justice Steven Gaongalelwe with Justice J Brand and Justice Abednico Tafa agreeing.

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Justice Gaongalelwe added: “On the material on record the requirements of an interdict were not satisfied. I must say I mean no disrespect to counsel on either side by not having addressed every point they canvassed in detail but only points dispositive of the appeal”. He ruled that the appeal succeeded with the Respondents bearing costs.

The appeal legal team included advocates S.K, Hassim; L. Pillay with attorney Daniel Swabi while attorney Uyapo Ndadi was among the Respondents’ team of lawyers.

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Background

The 17 ZCC members from the Tlokweng branch went to court in December 2015 to block the church and its leader Barnabas Lekganyane from holding disciplinary hearings against 11 of them. Their hearing was set for November 2015 but members had demanded details of the charges ahead of the hearing.

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The members drawn from the ‘mokhukhu’ praise and worship team had a pending case before Mothobi where they are challenging the leaders for violating the church’s governing Constitution. They accused the leadership of having failed from 2009 to appoint a minister to run and head the church in Botswana, saying that had caused the church to be in a state of crisis.

Private attorney Uyapo Ndadi represented them and insisted that the grounds for appeal were a nullity because the grounds of appeal were not in compliance with the Rules of Court, a stand dismissed by Justice Gaongalelwe.

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Bishop Lekganyane

In its judgement over whether the court had jurisdiction over Bishop Lekganyane, the Court of Appeal declared that: “The Law is that the Court’s jurisdiction over a natural person is generally based on whether an order made against the said person would be effective. Where such a person is neither domiciled nor resident in a particular country the courts of such country would have no jurisdiction over. It follows that the court a quo did not have jurisdiction over the Second Appellant. Any orders purporting to interdict him would be a nullity”.

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Justice Gaongalelwe continued: “A somewhat related point was argued by Respondents’ attorney contending that the appeal of the same Second Appellant is a nullity since on the record there no power of attorney signed by himself authorising any counsel to defend the proceedings at the court a quo not to process the appeal. But my view is that since the High Court did not have jurisdiction over him as a matter of law the question of mandate to attorneys does not arise at all. Where a court has no jurisdiction over a person the fact of him or her not athorising any attorneys to act for him cannot clothe such court with jurisdiction. Even if there was no appearance for that person the court would still be obliged to raise the absence of mero motu.”  

Bishop Lekganyane leads a strong church of about 16 million people with presence in seven Southern African countries of South Africa, Botswana, Lesotho, Swaziland, Namibia, Zimbabwe and Zambia. It is headquartered in Moria in Limpopo, South Africa.

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After receiving a revelation from God in 1910 to start a church, Joseph Engenas Lekganyane – Barnabas Lekganyane’s grandfather – ultimately founded it in 1924.



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