In a guest post, David Scrooby, an attorney of the Republic of South Africa, discusses a highly unusual recent case – the first of its kind in over 150 years…
The case of Bishop Mlibo Ngewu v The Anglican Church of Southern Africa and Ten Others  ZAKZPHC 88 is about the first canonical trial of a Bishop in Southern Africa since that of Bishop Colenso in 1864. The judgment of Her Ladyship Sharmaine Balton J, handed down in the KwaZulu-Natal High Court in Pietermaritzburg on 6 October 2016, may not have the impact of that of the Privy Council in 1865 (to which Colenso appealed) or the canonical depth of that of the South African Labour Court in Cape Town in Church of the Province of Southern Africa, Diocese of Cape Town v Commission for Conciliation, Mediation and Arbitration and Others  ZALC 141. However, the judgment is important in a number of respects.
In A History of Natal, the authors begin the chapter on Colenso by stating:
“Before proceeding to a study of Bishop Colenso and his place in the history of Natal, it may be advisable to answer a question which is prima facie not unreasonable. How can one justify devoting a chapter of the History of Natal to one ecclesiastical figure? That Colenso was a great man does not really admit of doubt, but were there not others? Anglicanism was not the only form of Christianity in Natal. Other missionaries may well have been more saintly, more sensible or more successful. Why single out Colenso?…
In the second place, the intricate constitutional and legal issues arising out of the Colenso controversy really made the Anglican Communion what it is today – a group of independent national churches, in no way subject to the Church of England, and giving no more than the courtesy of an honorary primacy to the see of Canterbury. This great change was as it were the forerunner of the development of the modern British Commonwealth, with its similar features of independence and friendly co-operation…
And thirdly, Colenso was a great tribune of African freedom…”
The Diocese of Umzimvubu (the Xhosa word for hippopotamuses) is the twenty-second of about thirty dioceses in the Province of the Anglican Church of Southern Africa (ACSA) and is defined as “being that area of the Eastern Cape/Transkei to the east of the Tsita and Umzimvubu Rivers, and that part of the area previously known as East Griqualand which now forms part of the province of KwaZulu-Natal. There are no hippos left in the Umzimvubu River, which rises in the grassy foothills of the Southern Drakensberg (Dragon Mountains). It is truly a magnificent river, as it drops from the grasslands of the Drakensberg through lush green pastures into a substantial gorge of cliffs and subtropical forests to its mouth at the beautiful Port St Johns on the Wild Coast of the Indian Ocean, once functioning as a River Port. Describing a similar river valley and mountains to the north, the famous South African author, tribune for African freedom and staunch Anglican Alan Paton wrote in 1949 in Cry, the Beloved Country, “There is a lovely road that rises from (Kokstad) into the hills. These hills are grass-covered and rolling, and they are lovely beyond any singing of it“.
The Archdeaconries of the Diocese reflect the colonial and indigenous names: Clydesdale, Holy Cross, Kokstad, Lusikisiki, Matatiele, Mount Fletcher, Mount Frere and Qumbu. The languages spoken in the Diocese are English, Southern Sotho, Xhosa and Zulu. The writer’s late father told how the Pondo tribe were the only tribe not conquered in a military campaign by the British, who merely annexed the territory. He added that the Pondos owed allegiance to the Bishop of St Johns (Mthatha), the Griquas to the Bishop of Kimberley & Kuruman and the East Griqualand farmers to the Bishop of Natal, due to the Nationalist government gerrymandering! The major town and headquarters of the Diocese is Kokstad. The economy is agrarian with a high rainfall and deep soils. There is no major industry or mining. Despite the poverty, it is a scenically breathtakingly country with culturally rich people.
The Applicant sought to review and set aside a decision of the Archbishop of Cape Town and Metropolitan of ACSA, the Most Revd Dr Thabo Magoba, to institute disciplinary proceedings against him. The Pietermaritzburg High Court found that there was a prima facie case, that the tribunal trial should be allowed to proceed and that his application was premature and unjustified. The judgment highlights the importance of the Synod of Bishops (SoB) in the investigation of impropriety in the Dioceses of ACSA. The process in the Diocese of Umzimvubu, which began in 2011 and continues, involved at least thirteen Bishops, the Provincial Treasurer and the Provincial Executive Officer.
Canon 38-Of Proceedings against Bishops
In December 2011, the Archbishop of Cape Town received written complaints about alleged financial mismanagement in the Diocese of Umzimvubu and requested the Provincial Treasurer to investigate, who reported in May 2011 that:
“The situation in the Diocese of Umzimvubu is extremely tense and there is a very real sense of fear of the Bishop. Governance and transparency are sadly missing from the Diocese and there is a very real sense of autocracy about how things are done. The Diocese has been run into the ground financially.”
The Metropolitan took pastoral steps by meeting with the Bishop and appointed a pastoral team under Bishop Rubin Phillip, then Dean of the Province and Bishop of Natal. Bishop Phillip reported to the SoB in February 2012. The SoB decided to appoint a Provincial Task Team to investigate and address the issues in the Diocese and commence a forensic audit, as well as placing the Diocese under administration. The Applicant agreed to cede his episcopal authority to the Metropolitan. The Archbishop appointed a Vicar General and forensic auditors. The Applicant implemented motion court proceedings in the Pietermaritzburg High Court in 2013 about this agreement – which proceedings are still pending.
The forensic auditors reported in October 2012 that there were multiple suspicious withdrawals from bank accounts and a misappropriation of funds. In March 2013 the Provincial Treasurer presented the forensic audit report to the SoB and recommended that the Applicant should be charged. The SoB then appointed another Provincial Task Team and in September 2013 resolved that the Applicant should stand trial under Canon 38. The Metropolitan then appointed a Board of Preliminary Inquiry, which reported on 30 January 2014 that there was a prima facie case against the Applicant. On 31 January 2014, the Metropolitan issued a notice that he had decided to proceed with a trial in terms of Canon 38. The seven charges were causing scandal or offence; fraudulent, corrupt or dishonest behaviour; negligent management of church property; misappropriation of church property; breach of pastoral standards, values and practices; breach of trust and promoting dissension in the Church. The accused was served with articles of presentment or a charge sheet. A Court for the Trial of a Bishop was appointed, with Bishop Peter Lee as President.
The proceedings of the Tribunal commenced on 1 April 2014 and the Applicant raised various points in limine which the Tribunal dismissed, holding that it should proceed. It was that decision that was taken on review as well as the Metropolitan’s decision to institute disciplinary proceedings against the Applicant.
The Applicant and the Church agreed that the Court could review proceedings of the Church if there had not been compliance with the Church’s Constitution and/or Canons or with the principles of natural justice. The decision of the SoB to institute disciplinary proceedings was not challenged. The judge determined the issue as to whether the Court could interfere in the Tribunal’s unconcluded proceedings, as the Tribunal had not considered the merits of the charges against the Applicant. The Court found that
“a Court will only interfere in unconcluded proceedings if a grave injustice will occur and it is necessary to intervene to attain justice.”
Three other High Court applications
On 29 April 2016, the full bench of three judges in KwaZulu-Natal, in Ngewu v Makgoba N.O and Others (AR256/15)  ZAKZPHC 39, dismissed with costs an appeal by the Applicant in which he had sought an order restoring his position as Bishop of the Diocese of Umzimvubu. And on 15 February 2017, the High Court in Pietermaritzburg dismissed with costs an application by Mlibo Ngewu and Mzuvukile Ngeke (the suspended Diocesan Administrator or Secretary). In fact, the High Court interdicted and restrained the Applicant from attempting to exercise any of his episcopal responsibilities or any vestige of his authority as Bishop of the Diocese of Umzimvubu, pending the determination of the Canon 38 Disciplinary Proceedings. It appears that the Applicant also filed papers in the Eastern Cape High Court under Case No EL 197/2016.
The Archbishop of Cape Town and Metropolitan of ACSA is a highly respected leader in Southern Africa and has led a strong campaign against corruption: unfortunately, however, corruption has also found its way into the Church. The Metropolitan has dealt with reports of impropriety by three Bishops in a transparent way and, through the SoB, has appointed investigating teams.
The Applicant may continue with his Court applications as the Tribunal continues with the hearing in terms of Canon 38 – which process began in 2011. The new Dean of ACSA and Bishop of Mthatha, Bishop Sitembele Mzamane, has done commendable work as Vicar-General of the Diocese. In 2014, after visiting the scene of the fire at the Umzimvubu diocesan centre, the Archbishop of Cape Town wrote:
“Among the buildings destroyed was the Province’s only Eco-Cathedral, made from indigenous stone and thatch, which had been razed to the ground. But there was a sign of redemption: a wooden cross on the sanctuary, charred but still intact. It transformed my sorrow into hope, even in the midst of ruin and destruction.”
Cite this article as: David Scrooby, “The Bishop of the River of Hippopotamuses and the Archbishop of Cape Town” in Law & Religion UK, 20 March 2017, https://www.lawandreligionuk.com/2017/03/20/the-bishop-of-the-river-of-hippopotamuses-and-the-archbishop-of-cape-town/.