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Published online by Cambridge University Press: 07 May 2020
To preserve the integrity and purity of the church, the policies of churches commonly provide for the enforcement of discipline whenever a cleric errs. The concern is that despite these provisions in the governing documents of churches, disputes challenging churches’ disciplinary exercise over their clergy are increasingly finding their way into the civil courts for adjudication. These disputes have implications for the reputation, governance and flourishing of a church. Against this backdrop, this article analyses a number of case studies to examine some legal issues arising from the churches’ exercise of disciplinary powers over their clergy within the Nigerian and South African contexts. From the analysis of the cases, a wide variety of legal issues associated with implementing church disciplinary procedures are identified to offer some lessons that may enhance the quality of legal risk management for churches.
The author is grateful to Professor Helena van Coller and Professor Mark Hill QC for their comments on and support of this research work.
2 Hammar, RPastor, Church and Law (Springfield, MO, 1983), p 19Google Scholar.
3 For instance, a US court in John v State 173 So.2d 824, 825–826 (Ala. 1964) states that ‘there is a difference between a minister and a pastor. A “pastor” is defined in Webster's New International Dictionary, second edition, – “the minister or priest in charge of a church or parish … Ecclesiastically, all pastors are ministers or priests, but all ministers or priests are not pastors. A minister has no authority to speak or act authoritatively for any local church, but its pastor does because he is the designed leader and top official of the local church.”’
4 ‘Pastoral standards, values and practices of the Anglican Church of Southern Africa’, 2011, s 3, available at <https://anglicanchurchsa.org/pastoral-standards-values-and-practices/>, accessed 11 February 2019.
5 J Simpson and E Weiner (eds), Oxford English Dictionary (second edition, Oxford, 1989), vol 3, p 311.
6 H Black, Black's Law Dictionary (fifth edition, St Paul, MN, 1979), p 990, defines ordination as a ‘ceremony by which a bishop confers on a person the privilege and powers necessary for the execution of sacerdotal functions in the church.’ Similarly, according to M Hill, ‘The regulation of Christian churches: ecclesiology, law and polity’, (2016) 72:1 HTS Teologiese Studies/Theological Studies 1–10 at 4, ordination is ‘the process by which the vocation of individuals to serve as ministers is recognised and by which they are “set apart” for ministry’. Although the process by which churches conduct ordination may differ, the approaches in may church traditions are similar. For instance, the Catholic, Anglican, Methodist and Orthodox churches conduct ordination by laying on of hands.
7 13 QBD 253.
8 B Garner, Black's Law Dictionary (7th edition, St Paul, MN, 1999), p 476.
9 Simpson and Weiner, Oxford English Dictionary, vol 4, p 735, emphasis added.
10 T Malaty, Dictionary of Church Terms (Alexandria, 1992), p 39, emphasis added.
11 Hill, ‘Regulation of Christian churches’, p 6. See also Lord Selbourne LC in Mackonochie v Penzance (1881) 6 AC 424, 433: discipline ‘has for its objects, not punishment of individual offenders, but the correction of manners and the discipline of the Church’. In the same vein, article 11(1) of The Methodist Book of Order: the laws and discipline of the Church of the Methodist Church in South Africa (2016) provides: ‘The true spirit of Methodist discipline requires that it be exercised in harmony with the Grace of Christ, with tenderness, patience and fidelity, seeking rather to win members back to Christ than to discontinue them.’
12 (4132/2011) [2011] ZAWCHC 380 (9 September 2011) para 43, emphasis added.
13 N Doe, Christian Law: contemporary principles (Cambridge, 2013), pp 156–157.
14 Hill, ‘Regulation of Christian churches’, p 6; Doe, Christian Law, pp 156–157. See also N Chivasa, ‘Handling of pastoral misconduct and discipline: evidence from the Apostolic Faith Mission in Zimbabwe Church’, (2017) 73:3 HTS Teologiese Studies/Theological Studies 1–8 at 1–2, ‘Pastoral misconduct is seen as a negative force that militates against sustaining harmony in the church … Such behaviours have direct negative implications for the reputation of churches … Within this framework, when a pastor commits an act of misconduct, members of the church or people who might want to convert to Christianity may get frustrated to know that pastors to whom they seek for pastoral care are involved in such vices.’
15 I Akinloye, ‘Human flourishing, church leadership and legal disputes in Nigeria churches’, in C Green (ed), Law, Religion and Human Flourishing in Africa (South Africa, 2019), pp 25–42 at p 34; H van Coller and I Akinloye, ‘The State v Twynham: the (ir)relevance of further regulation of religious organisations in South Africa’, (2019) 30 Stellenbosch Law Review 299–314.
16 T Danchi, ‘Church discipline on trial: religious freedom versus individual privacy’, (1987) 21 Valparaiso University Law Review 387–429 at 389. Similarly, in the South African case of Yiba and Others v African Gospel Church 1999 (2) SA 949 (C), 960E, per Schippers AJ stated that an association such as a church has no inherent power to conduct disciplinary proceeding and to punish a member without express provision in its constitutions. I Ekwo, Incorporated Trustees: law and practice in Nigeria (Durban, 2007) p 157, states: ‘The discipline of a church cannot affect any person except by express sanction of the civil power or by the voluntary submission of the particular person.’ See also H van Coller, ‘The church, the bishop, and the missing money: a reflection on the case of Bishop Ngewu and the Anglican Church of Southern Africa’, (2017) 6 Oxford Journal of Law and Religion 610–618 at 615: ‘The constitution, together with the rules and regulations, form the agreement that sets out the nature and scope of authority of an organization, as well as the functionaries and members of the organization. In the context of churches and religious organizations, the church order determines that the particular organization is regulated by means of internal church or organizational rules, compiled by the institution itself and not the state.’
17 For example, the Bible instructs the Church not to let evil to be present within it in order to remain pure from the unrighteous (1 Cor 5:9, 11; Eph 5:1–3). Further, church leaders are to warn the sinful and admonish them to change their evil ways (2 Thess 3:14–15) because church leaders have the duty of the care of souls and are therefore to be obeyed (Heb 13:17a). The procedure for discipline is found in Matt 18:15–17.
18 Pope John Paul II, ‘The Church and protection of fundamental human rights (first address to the Roman Rota)’, in W Woestman (ed), Papal Allocutions to the Roman Rota 1939–1994 (Ottawa, 1994), pp 153–158 at 156, cited in Doe, Christian Law, p 155; see also Doe, Christian Law, p 187.
19 Even, historically, under the English legal system, in terms of the principle of ‘clergy privilege’, which is also known as the ‘benefit of clergy’, according to which exemptions were given to clergy from being tried in civil courts because of the availability of trial in canonical court. This privilege was abolished after various modifications in 1827. See Black, Black's Law Dictionary, p 229; Simpson and Weiner, Oxford English Dictionary, vol 3, p 312.
20 De Lange v Presiding Bishop of the Methodist Church of Southern Africa 2015 (1) SA 106 (SCA) para 32. Also in R v Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, ex parte Wachmann [1993] 2 All ER 249 at 255, the English court held that ‘the court is hardly in a position to regulate what is essentially a religious function – the determination whether someone is morally and religiously fit to carry out the spiritual and pastoral duties of his office’. See also G van der Schyff, ‘The right to freedom of religion in South Africa’, LLD thesis, Rand Afrikaans University (2001), p 102; J Witte, ‘The South African experiment in religious human rights: what can be learned from the American experience?’, (1993) 18 Journal for Juridical Science 1–30 at 24–25.
21 See Mazwi v Fort Beaufort United Congregational Church of Southern Africa (Case No. 3865/2009, Mageza AJ, 10 December 2010) para 23, per Mageza AJ: ‘These Constitutions provide the Church with the rules framework with which to deal with all matters of discipline, faith and adherence to ecclesiastical norm and custom.’
22 Doe, Christian Law, pp 154, 178, 187; Hill, ‘Regulation of Christian churches’, p 6.
23 See, for example, Canon 37(1) of the Canon of the Anglican Church of Southern Africa 2006; Doe, Christian Law, pp 178–182.
24 Yiba and Others v African Gospel Church para 960E, per Schippers AJ: ‘The constitution of the association and its rules and regulations determine what violations of the rules by members warrant disciplinary action being taken against them, how the domestic tribunal entrusted with the investigation of such violations is to be constituted, the procedure to be followed by the tribunal in the exercise of its functions, and the penalties to be imposed for a violation of the rules.’
25 Doe, Christian Law, p 164; See Methodist Book of Order, art 11; De Lange, paras 9–12.
26 See De Lange, paras 9–12. Similarly, articles 6 and 10 of the Constitution and By-laws of the Baptist Union of Southern Africa, 1933, empower the executive of the Union to appoint arbitrators and to remove an accredited minister on complaint and finding guilty of misconduct. Methodist Book of Order, arts 5(15)–(25) and 11 provide for both hierarchical judicial systems and arbitration.
27 Hill, ‘Regulation of Christian churches’, p 6.
28 Ekwo, Incorporated Trustees, pp 158–159, says that excommunication is of two kinds, the lesser and the greater. The former deprives the offender of the use of the Sacraments and divine office. The latter deprives the offender not only of the Sacraments and the benefits of the divine office, but of the society of and conversation with the faithful.
29 Nigeria: Emeka v Okoroafor (2017) All FWLR (Pt 915) 1166; Anyanwu v Okoroafor Suit No. FCT/HC/CV/1889/2014 (Musa J, 5 July 2018); Egubson v Ikechiuku (1977) LPELR-SC.183/1975; Eternal Sacred Order of Cherubim and Seraphim v Adewunmi (1969) 2 African Law Report 273. For South Africa, see below, note 52.
30 Egubson v Ikechiuku (1977) 6 SC 1.
31 Emeka, para 1207C–D.
32 W Mbamalu, ‘Fellowship at orita: a critical analysis of the leadership crisis in the Assemblies of God, Nigeria’, (2016) 50:1 Die Skriflig 1–8 at 6.
33 Emeka, para 1207D.
34 Ibid, para 1208A–B. At 1201F, the appellant contended that the ‘Body of Ambassadors of the Kingdom’ and the ‘Consultative Assembly’ were not persons authorised or organs cognisable under the extant constitution and bylaws of the Church to be part of the composition of a special session of the General Committee.
35 Ibid, para 1208C–E.
36 Ibid, para 1208F.
37 Ibid, para 1204C–F.
38 Ibid, para 1205A–B.
39 Ibid, paras 1227D–H, 1231G–1232B.
40 Anyanwu, para 2. This amount was the equivalent of about 2 million US dollars at the time that the suit was instituted.
41 Ibid, para 6.
42 Ibid.
43 Section 36(5) states: ‘Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.’
44 Anyanwu, para 19–22.
45 Ibid, para 23.
46 Egubson, para 4.
47 Ibid.
48 Ibid.
49 Ibid, para 8.
50 Ibid, para 9.
51 Ibid.
52 For mainline churches, see, for instance, De Lange; Ngewu v Anglican Church of Southern Africa (Case No. AR 8945/14) [2016] ZAKZPHC 88 (6 October 2016); Church of the Province of Southern Africa Diocese of Cape Town v Commission for Conciliation, Mediation and Arbitration and others (2001) 22 ILJ 2274 (LC); Mbombo v Diocese of Highveld (Case No. 49468/2010) [2011] ZAGPJHC (19 August 2011); Salvation Army (South African Territory) v Minister of Labour (2005) 26 ILJ 126 (LC); Schreuder v Nederduitse Gereformeerde Kerk, Wilgespruit (1999) 20 ILJ 1936 (LC); Presbyterian Church of Africa v Patrick Peter (Case No. 3045/2014, 2 June 2015 Goosen J). For African Independent churches, see, for instance, Fortuin v Church of Christ Mission of the Republic of South Africa (3626/15) [2016] ZAECPEHC 18 (5 May 2016); The Board of Incorporators of the African Episcopal Church v Petrus Heradien (Case No. 9691/12, Louw J, 21 September 2012); Yiba and Others v African Gospel Church; Mazwi v Fort Beaufort United Congregational Church of South Africa; Waanar v Emmanuel Pentecostal Mission Churches (Case No. 27044/04, Gangen AJ, 11 December 2012); Church of God and Saints v Mzileni (Case No. 669/94, Ebrahim AJ, 25 September 1997).
53 De Lange, para 59.
54 Mbombo, para 9.
55 Ibid, para 10.
56 Ibid, para 11.
57 Ibid, para 12.
58 Ibid.
59 Ibid, para 14.
60 Ibid, para 16.
61 Canon 37 provides, inter alia, for a series of charges and offences that are of such a serious nature that they deserve to be referred to a board of inquiry; the procedure for preferring charges; the right of the accused and the complainant to be represented by the counsel of their choice and at their own expense; the procedure to be adopted by the tribunal when taking evidence from witnesses; and the duty of the panel to keep a full record of its proceedings. Canon 39 deals with the requisite logistics in relation to the composition and rule of practice of the board of inquiry. Canon 25(6) provides that ‘If the Bishop of the Diocese considers that for pastoral reasons the work of God in a Pastoral charge demands that there should be a change of incumbent or assistant Curate, the Bishop shall (failing the consent of the said Incumbent or assistant Curate to the change) take counsel with the chapter of the cathedral church, or with the senate, as the case may be, or if there be no chapter or senate, priests of the Diocese, and if the majority of them agree to such a course, after giving the said cleric an opportunity to be heard, and Section 8 of this Canon, the Bishop shall offer the cleric another ministry in the Diocese stipendiary if the ministry was stipendiary. Should there be none in the Diocese, then the Bishop shall seek in consultation with the cleric another suitable ministry within the Province. However, if it appears to the Bishop, either before embarking on this process or during the process itself, that the reason for the need for a change, in fact, relates mainly or substantially to matters which could constitute charges or accusations in terms of Canon 37(1), then in the absence of any charge under Canon 37(1), the Bishop shall proceed in terms of Canon 39.’
62 Canon 25(8) states that ‘If another ministry is not found in the Diocese or within the Province, then if two thirds of the chapter, senate or priests agree that under all circumstances, no other ministry should be offered, then after giving the clergyman an opportunity to be heard, the Bishop may, after explanation and pastoral ministration, upon the expiration of three months’ notice, revoke the clergyman's letters of collation or institution, or his licence, as the case may be, without offering another ministry.’
63 Mbombo, para 31.
64 Ibid.
65 Ibid, paras 31–53.
66 Ibid, para 35.
67 Ibid, paras 33 and 41.
68 Ibid, para 42.
69 Ibid, paras 36 and 42.
70 Ibid, para 35.
71 Ibid, paras 3 and 6.
72 Ibid, para 37.
73 Ibid, para 42.
74 Ibid, paras 32 and 49.
75 Ibid, paras 44 and 47.
76 Ibid, para 54(4).
77 Fortuin, paras 1 and 13.
78 Ibid, para 6.
79 Ibid, paras 8 and 9.
80 Ibid, para 9.
81 Ibid, paras 10–11.
82 Ibid, para 12.
83 Ibid, para 13.
84 Ibid, para 14.
85 Ibid, para 17.
86 No 3 of 2000.
87 Fortuin, para 17.
88 Ibid, para 18. The court further supported its position with other cases, such as Turner v Jockey Club of SA 1974 (3) SA 633; Dabner v SA Railway and Harbours 1920 AD 583, 589.
89 Fortuin, para 20.
90 Ibid, paras 21 and 23.
91 De Lange, para 3.
92 Ibid, paras 5–6. Methodist Church of South Africa: laws and discipline (2000).
93 De Lange, para 8.
94 Ibid, para 1.
95 Ibid, para 18.
96 Ibid, para 15.
97 Ibid, para 19.
98 No 42 of 1965.
99 De Lange, para 23.
100 Ibid, para 26.
101 Ibid, para 28.
102 Ibid, para 29.
103 De Lange v Presiding Bishop of the Methodist Church of Southern Africa, 2016 (2) SA 1 (CC).
104 It should be noted that the contractual relationship here is different from the employment contract between a church and its clergy, which has been the subject of scholarly debate for years. This debate is outside the scope of this article. But for insight into the debate within the South Africa context where it has been prominent, see H van Coller, ‘Religious ministers: working for God or working for the Church? A reflection on Universal Church of the Kingdom of God v Myeni and Others’, 2017 (6) Oxford Journal of Law and Religion 187–193. See also Church of the Province of South Africa (Diocese of Cape Town) v CCMA (2001) 22 ILJ 2274 (LC); Salvation Army v Minister of Labour [2004] 12 BLLR 1264 (LC); Universal Church of the Kingdom of God v Myeni and Others (2015) 36 ILJ 2832 (LAC).
105 See the decision of the Nigerian courts in The Registered Trustees v Adeosun (1986) 3 NWLR (Pt 30) 561; The Registered Trustees of Tabernacle Congregation Church, Nigeria v Ikwechegh (2000) 13 NWLR (Pt 683) 1; Irene Thomas v The Most Revd Timothy Olufosoye (1986) 1 NWLR (Pt18) 669. For South Africa, see Mazwi, para 24.
106 Ngewu, para 33.
107 Emeka, para 1199D–F, emphasis added.
108 Ibid, para 1201F.
109 Anyanwu, para 3–4.
110 Egubson, para 12.
111 Ibid, para 9.
112 Fortuin, para 13.
113 Ibid, para 28, emphasis added.
114 Mbombo, paras 36, 32, 49, 37.
115 Ibid, para 12.
116 De Lange, paras 6–7.
117 A Emiola, Remedies in Administrative Law (second edition, Ogbomoso, 2011), p 116; Ekwo, Incorporated Trustees, p 157. In LPDC v Fawehinmi (1985) 2 NWLR (Pt 7) 392, Oputa JSC said: ‘I can see no valid reason why, if the principles of natural justice have to be applied to a tribunal entrusted with a final decision, the same should not be true of a tribunal which has to decide a preliminary point which may affect the right of the parties.’
118 This position in South Africa and Nigeria can be contrasted with the position in the UK, where a clearer distinction would be made between public and private bodies in respect of the imposition of natural justice standards. In the UK a party cannot obtain judicial review from a church tribunal because it is a private, not a public, body; it is non-justiciable in that jurisdiction. See, for instance, the decision of the Supreme Court of the UK in Shergill v Khaira [2014] UKSC 33.
119 See the South African case of De Lange v Smuts NO 1998 (3) SA 785 para 132, per Mokgoro J.
120 (1993) 6 NWLR (Pt 300) 426, 450.
121 (1716) ER 698, 704.
122 Adigun v Attorney General of Oyo State (1987) 1 NWLR (Pt 53) 678, 721. See also L Baxter, Administrative Law (Cape Town, 1984), p 538; M Wiechers, Administrative Law, trans G Carpenter (Durban, 1985), p 208. Wiechers argues that the principles of natural justice represent a fundamental or primeval justice.
123 (1962) AC 322, 337 (PC).
124 Obaseki JSC, in Garba v University of Maiduguri (1986) 1 NWLR (Pt 18) 550, 584, said: ‘Fair hearing is, therefore, not only a common law requirement in Nigeria but also a statutory and constitutional requirement. The rules of natural justice must be observed in any adjudication process by any court or tribunal established by law.’
125 The South African Constitutional Court in Pharmaceutical Manufacturers Association of SA In re: Ex Parte Application of the President of the RSA 2000 (2) SA 674 (CC), para 33, confirmed that the common law principles of natural justice have been taken up in the right to procedural fairness. Having been subsumed by the Constitution, these common law principles continue to play an important role in giving scope and content to the constitutional right to procedural fairness. See also Y Burns, Administrative Law (London, 2013), p 352: ‘The common law antecedents of procedural fairness are found in the principles or rules of natural justice.’
126 The small difference between the two jurisdictions is discussed below.
127 For the South African cases, see Dhlamini v Minister of Education and Training Heatherdale Farms (Pty) Ltd 1984 (3) SA 255 (N); Zondi v Administrator, Natal 1991 (3) SA 583 (A). For the Nigerian cases, see Adedeji v Police Service Commission (1967) 1 All NLR 67; Adeyemo v Oyo State Public Service Commission (1979) 1 OYSHC 83.
128 For the South African cases, see Zondi v Member of the Executive Council for Traditional and Local Government Affairs 2005 3 SA 589 (CC). In Mafongosi v United Democratic Movement 2002 (5) SA 56 (Tk), the court held: ‘Surely, procedural fairness required that if the disciplinary body had information prejudicial to the applicant, it should furnish them with such information before the hearing so that they could effectively prepare and deal with it.’ See also the Nigerian case of Garba v University of Maiduguri, 589–590.
129 See the South African case of Turner v Jockey Club of South Africa 1974 (3) SA 633, where the disciplinary action by the Jockey Club was set aside after it was found that the applicant had suddenly been confronted with serious allegations which had not been communicated to him before the hearing. See also the Nigerian cases of Garba v University of Maiduguri and Owolabi v Permanent Secretary, Ministry of Education (1969) IK/4M/69 (unreported).
130 See the South African cases of Fraser v Children's Court, Pretoria North 1996 (8) BCLR 1085 (T) and Bam-Mugwanya v Minister of Finance and Provincial Expenditure and others, Eastern Cape 2002 (3) BCLR 312 (Ck); and the Nigerian case of Oyeyemi v Commissioner for Local Government (1992) 2 NWLR (Pt 226) 661.
131 See the Nigerian case of Adigun v Attorney General of Oyo State (1987) 1 NWLR (Pt 53) 678, 708. However, in De Lange, para 26, the South African Supreme Court of Appeal, citing the cases of Commission for Conciliation, Mediation and Arbitration v Law Society of the Northern Provinces 2014 (2) SA 321 (SCA) para 19 and Hamata v Chairperson, Peninsula Technikon Internal Disciplinary Committee 2002 (5) SA 449 (SCA) para 5, stated that ‘our courts have consistently denied any entitlement to legal representation as of right in fora other than courts of law’. Burns, Administrative Law, p 358, in contrast, argues that ‘in that context, a highly technical matter affecting, for example, the individual's status, way of life, reputation, and so on, should entitle him or her to legal representation’.
132 See Garba v University of Maiduguri; Oyeyemi v Commissioner for Local Government.
133 See the Nigerian case of State Civil Service Commission v Buzugbe (1984) ANLR 372, in which the plaintiff had attacked his senior officer in a memorandum, and the officer later took part in the disciplinary process. See also LPDC v Fawehinmi, 300; Osam-Pinanko v West Ghana Zion Church (1967) ALR Comm 52.
134 In De Lange v Smuts NO, para 132, the South African Constitutional Court held that procedural fairness under the Constitution is not restricted to the two rules of natural justice referred to above and that ‘the exact content has eluded judicial definition’. In effect this means that, in appropriate circumstances, the party entitled to procedural fairness is entitled to more than just the application of the audi altarem patem and the nemo judex in causa sua rules. In this case, the court held that a party is entitled to those ‘principles and procedures, which in the particular situation or set of circumstances, are right and just and fair’.
135 Instances where the principles can be limited include where waiver or necessity is proved, or where state legislation expressly excludes the application of the principles. See Emiola, Remedies in Administrative Law, pp 95–96; G Devenish, K Govender and D Hulme, Administrative Law and Justice in South Africa (Durban, 2001), pp 279–280.
136 (1969) 2 African Law Report 273, 282.
137 No 3 of 2000.
138 Janser van Rensburg v Minister of Trade and Industry NO, 2000 (11) BCLR 1235 (CC); Yates v University of Bophuthatsana 1994 (3) SA 815 (B).
139 2001 (4) SA 1361 (T).
140 Ibid, paras 1375–1376; see also Pennington v Friedgood 2002 (3) BCLR 298 (C).
141 Devenish, Govender and Hulme, Administrative Law and Justice, p 25; I Currie and J De Waal, Bill of Rights Handbook (fifth edition, Durban, 2005), pt 645; I Currie and J Klaaren, The Promotion of Administrative Justice Act Benchbook (Witwatersrand, 2001), pp 26 and 64. The position of these authors mirrors that in the UK, where there is no developed principle that natural law or administrative law requirements will apply to church inquiries or tribunals. In the UK, there is a clear distinction between private bodies (such as churches), who are held to their contractual requirements, and public bodies (governmental), to which natural law and administrative requirements apply. See Shergill v Khaira.
142 Burns, Administrative Law, p 182; C Hoexter, Administrative law in South Africa (Durban, 2007), p 124; van Coller, H, ‘Religious institutions and the review jurisdiction of the courts’, (2017) 14 LitNet Akademies 991–1039 at 992Google Scholar: ‘The principles of natural justice were applicable, it was argued, because these domestic tribunals “wield powers as great as, if not greater than, any exercised by courts of law. They can deprive a man of his livelihood.” It is possible to subject private actors to the requirements of lawfulness, procedural fairness and rationality.’ See also G van der Schyff, ‘Freedom of religious autonomy as an element of the right to freedom of religion’, (2003) Journal of South African Law 512–539 at 527.
143 Burns, Administrative Law, pp 182–3; Burns, Y, ‘Do the principles of administrative justice apply to the actions of domestic bodies or voluntary associations such as the South African Rugby Football Union and the United Cricket Board?’, 2002 (17) South African Public Law 372–81Google Scholar. See also Thornton, L, ‘The constitutional right to just administrative action: are political parties bound?’, (1999) 15 South African Journal on Human Rights 351–371CrossRefGoogle Scholar.
144 2002 (2) BCLR 171 (C).
145 Ibid, para 191.
146 See Taylor v Kurtstag NO 2005 (7) BCLR 705 (W), where the court accepted that the decisions of religious tribunals are subject to the same common law review jurisdictions as those of other voluntary organisations. It also found that the Beth Din, like any other religious tribunal, is subject to the common law jurisdiction of the courts. See also Theron v Ring van Wellington van die NG Sendingkerk in Suid-Africa 1976 (2) SA 1 (A), a case involving disciplinary proceedings in a church. Jansen JA held that, as a general rule, the same principles applied whether decisions of statutory or contractual bodies were under review. The only difference was that, in the first instance, the starting point was the intention of the legislature, while in the second it was the intention of the parties. In United Methodist Church of South Africa v Sokufundumala 1989 (4) SA 1055 (O) the church was held liable for not complying with the rules of natural justice when excising its disciplinary powers. See also De Lange, para 38: ‘This standard goes back at least to this statement by Stirling J. in Baird v. Wells (1890), 44 Ch.D at p. 670: “The only questions which this Court can entertain are: first, whether the rules of the club have been observed; secondly, whether anything has been done contrary to natural justice; and, thirdly, whether the decision complained of has been come to bona fide.”’
147 Mbombo, para 52, emphasis added.
148 Emeka, paras 1199G–1201A. Furthermore, para 1200B states: ‘A declaration that the applicant's alleged dismissal from the ministry and suspension as a member of the Assemblies of God, Nigeria, is in contravention of the applicant's right to a fair hearing as secured under section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).’. See further para 1201C–H.
149 Anyanwu, paras 19–20.
150 Egubson, para 12, emphasis added.
151 Fortuin, para 13.
152 Mbombo, para 7.
153 See generally, De Lange, para 26.
154 Jurisdiction is defined as the power of a court or tribunal to adjudicate on a matter. See J Law and E Martin, Oxford Dictionary of Law (seventh edition, Oxford, 2009), p 707.
155 Black, Black's Law Dictionary, p 764, says that it exists when ‘the court has cognizance of a class of cases involved, proper parties are present, and the point to be decided is within the powers of the court’.
156 Halsbury's Laws of England (fourth edition, 2003), vol 1, para 13.
157 In Denloye v Nigerian Medical and Dental Disciplinary Tribunal (1968) 1 All NLR 306, 312, it was established that no tribunal other than the regular court could assume jurisdiction over an allegation imputing the commission of crime. See also Garba v University of Maiduguri; Alalade v Accountants Disciplinary Tribunal (1975) 1 All NLR 138.
158 Egubson, para 12.
159 Mbombo, para 37.
160 Fortuin, para 13.
161 Egubson, para 4, emphasis added.
162 Emeka, para 1207E–F.
163 Ibid, para 1207F–G.
164 Emiola, Remedies in Administrative Law, p 84; Head of the Federal Military Government v Public Service Commission, ex parte Maclean (1974) 1 All NLR (Pt 2) 269, 305.
165 Emeka, para 1208A.
166 Mbamalu, ‘Fellowship at orita’, pp 6–7. The author raises other factors leading to the crisis in the Church, including unhealthy power ambitions and personality clashes.
167 J Augoye, ‘COZA rape scandal: Poju Oyemade, Sam Adeyemi react’, Premium Times, 1 July 2019, available at <https://www.premiumtimesng.com/news/top-news/338226-coza-rape-scandal-poju-oyemade-sam-adeyemi-react.html>, accessed 8 February 2020.
168 Egubson, paras 8–9.
169 De Lange, paras 18 and 21.
170 Doe, Christian Law, pp 180 and 187: ‘Anglicanism, too, is notable for the lack of juridical precision in the definitional elements of its ecclesiastical offences … A substantive law of ecclesiastical offences is employed in all the churches studied here, but generally, offences are expressed with a high degree of generality.’
171 Anyanwu, para 2.
172 For instance, see the following Nigerian legislation: Criminal Code Act 1916, s 383; Penal Code Act 1960, s 286; Administration of Criminal Justice Act 2015.
173 Constitution of the Federal Republic of Nigeria 1999, s 36(5).
174 Ibid, s 6(5).
175 Sofekun v Akinyemi (1981) 1 NCLR 135. See also Odigie v Nigeria Paper Mills Limited (1993) 8 NWLR (Pt 311) 338, 253: ‘The position of the law is now well settled that when an allegation of commission of crime is levelled against a person, it is the court set up under the constitution that must have jurisdiction to resolve the issue. This means that no administrative investigative panel has such jurisdiction.’ See also I Akinloye, ‘Scope and powers of professional disciplinary tribunals in Nigeria’, (2016) 1 Ajayi Crowther Law Journal 224–247 at 228–230.
176 (2001) 7 NWLR (Pt 711) 206, 235.
177 Mangum v Swearingen 565 S.W.2d. 957 at 959 (1978).
178 See I Akinloye, ‘An examination of the legal status, powers and roles of the justices of the peace in the Nigerian legal system’, (2018) 43 Journal for Juridical Science 26–38 at 33; A Akeredolu, ‘Duel to death or speak to life: alternative dispute resolution for today and tomorrow’, inaugural lecture, Ajayi Crowther University, Oyo, Nigeria, January 2018, p 15, available at <https://www.acu.edu.ng/documents/inaugural/7th%20Inaugural%20Lecture%20-%20PROFESSOR%20ALERO%20AKEREDOLU.pdf>, accessed 12 February 2020.
179 (1987) 4 NWLR (Pt 64) 245.
180 Egubson, para 3.
181 Ngewu, para 26.
182 See Danchi, ‘Church discipline on trial’.
183 See for example, ibid; M Strasser, ‘A constitutional balancing in need of adjustment: on defamation, breaches of confidentiality, and the church’, (2013) 12 First Amendment Law Review 325–384; D Mays, ‘Avoiding liability when disciplining pastors or church members’, 2009, <http://www.davidbealaw.com/files/articles/ChurchMemberDiscipline.pdf>, accessed 8 February 2020. See also the US case of Guinn v Church of Christ of Collinsville 775 P.2d 766 (Oklahoma, 1989), where a woman successfully claimed damages from her former church for (among other things) invasion of privacy and the intentional infliction of emotional distress, after it had announced its decision to disfellowship her to the congregation and three neighbouring congregations in their denomination. See also Tim Tubra v The International Church of the Foursquare Gospel 225 P.2d 862 (Ore App 2010).
184 See the US case of Joiner v Weeks 383 So.2d 101 (LA App 3d Cir 1980) at 106–107: ‘To allow defamation suits to be litigated to the fullest extent against members of a religious board who are merely discharging the duty which has been entrusted to them by their church could have a potentially chilling effect on the performance of those duties, and could very well inhibit the free communication of important ideas and candid opinions.’ See also Flowers, R, ‘Can churches discipline members and win in court?’, (1985) 27 Journal of Church and State 483–498 at 492CrossRefGoogle Scholar.
185 1989 (4) SA 551 NPD.
186 Ngewu, para 19.
187 Fortuin, para 14.
188 Grobler, J, The Essential Legal Guide for Pastors and Church Leaders in South Africa (second edition, Westgate, 2014)Google Scholar, preface.