In a further guest post, David Scrooby, an attorney of the Republic of South Africa, follows up his previous post on the dispute between Bishop Mlibo Ngewu and the Anglican Church of Southern Africa.
In 1930 a hippopotamus named Huberta became famous as she walked 1600 miles from Lake St Lucia in northern KwaZulu-Natal (KZN) to near Grahamstown in the Eastern Cape, crossing over the great rivers of the Diocese of Mzimvubu (DOM).
Reflecting this epic journey, Mlibo Ngewu has moved from the KZN High Court to the Eastern Cape High Court, and in Ngewu v Archbishop Makgoba & Others (EL197/2016, ECD497/2016  Eastern Cape Local Division, East London Circuit (25 May 2017), (unreported) his position as Bishop of the Diocese of Mzimvubu was the cause of further litigation in a secular court. He was again unsuccessful and Acting Judge Nicola Molony dismissed the application for an interdict against the Anglican Church of Southern Africa, with costs.
The Court considered Canon 14 (Of Resignation of Diocesan Bishops). It noted that on 29 April 2016, a full bench of the KZN High Court had dismissed with costs an appeal by the Bishop Ngewu in which he had sought an order restoring his position as Bishop of DOM, Ngewu v Makgoba N O and Others (AR 256/15)  ZAKZPHC 39. The three judges held that Canon 21(3) (Appointment of Task Team):
“provides inter alia, that when the Metropolitan becomes aware of events, developments or reasons which in his opinion merit investigation of the affairs of a particular diocese, then he shall be entitled to appoint a task team to enquire into and investigate the matters of concern and then to report its finding to Synod. The Synod of Bishops (SOB) are afforded wide powers and may, in terms thereof, thereafter refer the matter to trial under Canon 38″ .
Canon 38 (Of Proceedings Against Bishops) was dealt with in the previous post. On 15 February 2017, the KZN High Court interdicted the Applicant from attempting to exercise any of the episcopal responsibilities in DOM.
In the unreported Eastern Cape judgment on 25 May 2017, above, the court had stated that:
“17.The Church is a voluntary organisation, which is governed by and in accordance with its Constitution and the Canons…
19. Matters relating to the Province as a whole are governed by the Provincial Synod.
20. The synodical structure is replicated in each diocese of the Church, and local affairs in each diocese are dealt with by the relevant Diocesan Synod (comprising the Bishop of the Diocese, with clerical and lay representatives).
21. The decisions of the Diocesan Synod are subject to review by the Provincial Synod.
22. The Church and the clergy are led by the Bishops, who meet at least twice a year in the forum known as the SOB (Synod of Bishops).
23. The Metropolitan (The Archbishop of Cape Town) is the ranking Bishop in the Province, with certain designated powers and functions.
24. Bishops who assume office do so through processes regulated by the Canons. Part of the process is that the Bishops in question must expressly subscribe to the Constitution of the Church, and pledge obedience to the decisions of the Church’s Synod….”
In her conclusion, Molony AJ held that:
“Whilst the Applicant does have a clear right to approach this court for the relief sought in regard to the Canon 14.2 proceedings, the Applicant has failed to establish an injury or potential injury to any of his rights. He therefore fails to establish one of the requirements for a final interdict, and the application must therefore be dismissed.”
In his first epistle to the people of Corinth, the Apostle Paul wrote at 6:1-2: “When you have something against another Christian, why do you file a lawsuit and ask a secular court to decide the matter, instead of taking it to other Christians to decide who is right?”
Cite this article as: David Scrooby, “Huberta the Hippopotamus who wouldn’t resign – and the Diocese of Mzimvubu” in Law & Religion UK, 6 June 2017, http://www.lawandreligionuk.com/2017/06/06/huberta-the-hippopotamus-the-bishop-who-wouldnt-resign-and-the-diocese-of-mzimvubu/.