IN THE HIGH COURT OF ESWATINI
In the matter between: Case No.1715/2018
SWAZILAND REFORMED CHURCH Applicant
BHEKI MABENA Respondent
Neutral citation : Swaziland Reformed Church Hhohho v Bheki Mabena (1715/2018)  SZHC 229
Coram : M. Dlamini J
Heard : 22nd November, 2019
Delivered : 28th November, 2019
Interdict : Ecclesiastes – Swaziland Reformed Church constitution provides that Synod has legal personality – this in simple language means that only Synod has the power to sue and be sued –
: applicant cannot act outside Synod
: application dismissed
Summary: The applicant prays for an interdict and restraint orders against the respondent from setting his foot on its premises. The respondent is opposed to the orders on the grounds that the applicant has no locus standi, authority to discipline, suspend and seek such orders against him.
 The applicant has described the parties as follows:
The applicant is a voluntary non-profit making association which became an independent entity on the 12th July, 1991. The foundation principles of the Applicant (Church) are well spelt out in its constitution (the Church Order – 1991) and include that the Swaziland Reformed Church is built upon the foundation Jesus Christ and founded upon the Bible, the holy and unfailing word of God…”
The Applicant is a member of the Swaziland Reformed Church, an association of four (4) regional associations in Swaziland. The others are the Shiselweni Church Council, Manzini Church Council, and Lubombo Church Council. Each of the Church Councils are autonomous and enjoy separate legal status. They are responsible for the supervision and discipline of the congregation and the governing thereof is trusted.
 The respondent as:
The Respondent is BHEKI MABENA, an adult male Swazi who was allowed by the Applicant to be a tent maker.”
The Founding affidavit
 The applicant has averred in support of its interdict and restraint orders:
The applicant is a tenant in the premises where the Swaziland Reformed Church, Mbabane branch is situated. This gives the Applicant authority over the premises to which it is a tenant. The Applicant is vested with exclusive control of the property for the purpose mentioned in the lease agreement.”
 It then averred that it was unable to find a copy of the lease agreement. It then pointed out against respondent:
The current copy of the lease agreement is not available because the Respondent then usurped the Applicant’s powers and signed same without consulting the applicant. Those actions of his are part of the reasons for this application to have him interdicted.”
 It further set out:
“In terms of article 12.1 tent makers are people who are employed in a secular work but who have been approved by the Church Council (Applicant) as a church worker at a certain branch. For this work they receive no salary but they provide for themselves.”
 The respondent was employed as a teacher and a tent maker. Applicant asserted that the applicant was “autonomous in the discipline of workers of the church called by it.
 Applicant then stated:
“15. During the course of 2012 and afterwards a number of events, the details of which are not material for purposes of the present application, culminated in the Hhohho Church Council (Applicant) suspending the Respondent from preaching and other administrative duties in the Mbabane branch. The Respondent was suspended through a letter dated the 25th July, 2015 and it spelt out the reasons for the suspension. A copy of the letter is hereby annexed and marked “B.”
 Applicant resisted the suspension. Thereafter, applicant embarked on setting up a disciplinary hearing. Respondent was invited to appear for a disciplinary hearing. He declined to honour the invitation. The main charge in terms of annexure BM4 was that for a period of three years, respondent refused to send money to the Hhohho Church Council. Although there were about ten chares, they are all related as they pertain to respondent’s failure to carry instructions. This was viewed as an act of insubordination in the charges facing respondent.
 The disciplinary hearing was conducted in the absence of respondent on 19th August, 2017. The end result was that respondent was found guilty on all counts. The verdict was dismissal as a tent maker. Respondent refused to accept the letter of dismissal. He continued with his work as a preacher in the Mbabane, enjoying support of his congregation. The applicant resorted to court.
 The respondent commenced by warranting the background to the issues at hand which culminated to the application by applicant. He explained that at all material times, the deponent to the founding affidavit (deponent) had from the inception been vying to be stationed at the Mbabane branch contrary to Synod’s directive which is in line with the Churches Orders or constitution. He mentioned that the deponent is the parochial priest in charge of the Hhohho Parish. He is not supposed to be attached to any branch but should revolve among all the branches in the Hhohho Parish as an overseer. This matter escalated to synod. Synod refused deponents’ request to be stationed at Mbabane branch. It pointed out that Mr. Gama should continue preaching at Ararat branch while there was a vacancy there following the demise of the preacher pending replacement. This was the beginning of tension between him and Mr. Gama.
 On 13th February, 2011 he was served with a letter. It reflected that at a synod meeting of 2nd September 2010 a decision was taken to the effect that every branch should close its bank account and transfer money to the church Council. Mr. Gama and Mr. Zwane had attended the Synod meeting. The minutes of Synod of the meeting of that date however did not reflect such a decision. This matter was discussed in the next Synod meeting of 12th March 2011. The Hhohho Church Council and Mbabane congregation were present. It became clear that synod never took such a decision but it was by Hhohho Church Council. The meeting decided that Mbabane branch should continue to keep and monitor its bank account.
 Again in this meeting Mr. Gama renewed his request to be attached to the Mbabane branch where respondent was. His request was declined as he was reminded that as an overseer he could not be attached to a specific branch.
 A third issue arose in the synod meeting of 17th August, 2012. The respondent was authorised to administer the Holy Communion and baptism sacraments. This was because he had completed the necessary training. However, the Hhohho Church Council rejected his admission to administer the sacraments, citing that it had authority to admit the respondent and not synod.
 Again the issue of respondent’s admission to administer the sacraments was raised in a meeting of 26th June 2013 with Synod. It was pointed out that in terms of the orders, the authority to admit an individual to administer sacraments was vested only in Synod.
 Another thorn in the flesh pertained to the premises of Mbabane branch. Following that it did not have its own premises, the Dutch Reformed Church Goedgegun was approached where it was agreed that:
“27. One of the two properties in the possession of the Hhohho congregation, i.e., a house in Checkers, Mbabane and a 100 hectare farm at Dalriach (Nkoyoyo), be swopped for the church building belonging to the DRC Goedgegum and situated in Mbabane.”
 This decision was taken in Synod’s meeting of 27th September 2013. Hhohho Church Council had to process necessary documents to effect this decision. It however refused.
 Following the acrimonious relationship between the Hhohho Church Council and its chair, Mr. Gama and the Mbabane Church congregation where respondent is its chair, Synod solicited the intervention of Dr. Van Wyngaard to mediate between the two. Two sessions were arranged for the mediation. It was successful. A plan was devised on each given responsibilities. However, when it came to implementation, it became clear that both parties could not work in harmony.
 They resorted to return to mediation. Synod appointed Rev. Shongwe to be the mediator. As they were planning to attend the session, he received a letter from Hhohho Church Council suspending him. He pointed out that first the suspension disregarded that mediation was pending and secondly in terms of the constitution, only Synod could suspend him. Thirdly, he was not invited to the council’s meeting where the decision to suspend him was taken. Synod reacted by e-mail correspondence notifying Hhohho Church Council that it did not have authority to terminate respondent services but Synod and that the Hhohho Church Council ought to have table its grievance against respondent to Synod.
 Rev. Shongwe arranged a meeting between the two parties for the 5th September, 2015. The agenda was inter alia, withdrawal of respondent suspension. The Hhohho Church Council did not budge. Instead it later authored a correspondence dated 11th September 2015 emphasising that it shall not withdraw respondent’s suspension. Again a meeting took place on 26th September 2015 where it was reiterated that respondent’s suspension was unconstitutional. It was further found that the Hhohho Church Council had fed church members with incorrect information and manipulated facts.
 Dr. Wyngaard was directed to take over as minister in the Hhohho congregation. The Hhohho Church Council refused. On 24th February 2016, Synod requested a meeting with Hhohho Church Council. Hhohho Church Council by correspondence demanded that there should be a neutral mediator. A meeting did take place on 21st May 2016. Again the Hhohho Church Council declined to withdraw its suspension against respondent. On 12th July 2017 he was served with a letter advising him of charges he had to answer before Hhohho Church Council. He refused to accept it and directed the messengers to Synod.
 A meeting chaired by Ms Lungile Kolobi took place at Makholokholo where a hearing was conducted in his absence. The responded also averred:
“46. After the service of the present application herein, the deponent was written by the moderam dated the 22nd November 2018 advising him that he has no powers to discipline me nor terminate my services nor take me to Court. The deponent was requested to immediately withdraw the case in Court and also lift my suspension. The letter is attached marked “BM 23”. The letter was served on the deponent and his attorneys but up to date that has not been done in clear and calculated defiance to the senor [sic] body of the Church.”
 Answering on the merit, the respondent denied that this court has jurisdiction. It also disputed that the causa for the application that the respondent was sued because he had signed the lease agreement. He also pointed out that applicant had an alternative remedy which was to approach Synod or Swaziland Conference of Churches of which Swaziland Reformed Church is a member.
 The respondent raised as points of law the following:
“46. I therefore oppose this matter on substantive and procedural grounds:
46.1 The Mbabane Church Council has no power to suspend, discipline and/or dismiss me. Those powers are for the synod in terms of the Church Order. It is clear from the above that this was no done in violation of the Constitution of the Church. Any unlawful acts cannot be condoned by this Court;
46.2 The applicant has no power (locus standi) to institute the present proceedings as it is not the SRC but a Branch. A Branch is subject to the control and direction of the process of the court by the deponent having regard to the background facts. The application stands to be dismissed with costs;
46.3 The applicant and/or deponent has alternative remedies available to him other than approaching the Court for the interdict sought. The applicant can approach the synod of the Church. The applicant can also approach the Conference of Churches. This matter should not be in Court at all. It is clear abuse of the process of the Court. The Court should frown upon the conduct of the deponent by dismissing the application with costs at punitive scale in his personal capacity.”
 I think the first issue should be whether applicant has locus standi.
 The answer lies in the Swaziland Reformed Church Constitution. It is entitled “Swaziland Reformed Church - Church Order – 1999” Article 23.4 reads:
“The synod has legal personality”
 It is apposite to immediately refer to the following except an interpretation:
“It is not allowable, says Vettel, to interpret what has no need of interpretation – Absoluta Sententia expositore non indigest:”
 The learned authors meant that there is no duty to interpret what the legislature clearly expressed in simple plan language. In the present case, Article 23.4 of the Order simple points out that “Synod has legal personality.” In other words, it has the right to sue and be sued. The maxim, “expressio urius, exclusio alterius – the express mention of one thing is the exclusion of another” is all on fours in this matter. In as much as this maxim is to be applied with great caution its application in this the case at hand is legitimate for the reason that Synod is the highest governing body of applicant and respondent. It is at the apex of the Swaziland Reform Church hierarchy.
 In the result, the applicant has no locus standi. It has not been granted authority by Synod to institute litigation. In fact from the pleadings it is clear that Synod is opposed to the present application. It is unnecessary for me to adjudicate upon the rests of the points in limine.
 The principle that costs follow the event is much alive in my mind. However, owing to the fact that the parties herein are classified as ecclesiastic, it would be folly to call upon applicant to pay costs. The reason is that it would be akin to calling upon Synod to pay costs. Synod has for all intent and purpose tried its level best to mediate or solve the impasse between the parties herein but in vain. By no means do I suggest that respondent has contributed to applicant filing this application. Justice favours that I make no order as to costs.
 I appreciate that respondent has prayed that the deponent to the founding affidavit pays costs of suit from his own pocket. I am no inclined to do so for the reason that it appears that deponent is not alone in this matter. He appears to have a backing of the Hhohho Church Council as evident by the various letters emanating from his Council. They are signed by other members other than himself. However, this does not distract from the finding that applicant cannot act outside Synod.
 I therefore enter as follows:
31.1 Applicant’s application is dismissed;
31.2 No order as to costs.
M. DLAMINI J
For Plaintiff : N. Ntshangase of Ntshangase Attorneys
For Respondent : N. D. Jele of Robinson Bertram
 Page 5 book of pleadings
 Page 4 para 2 book of pleadings
 Page 5 of book of pleadings
 Page 6 of book of pleadings
 See page 7 book of pleadings
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 Para 27 page 106-107 para 27
 page 117 of the book of pleadings
 Para 46 Page 118 of the book of pleadings
 Maxwell on Interpretation of Statutes, G. Granville Sharp and Brian Galpin 10 ED at page 4
 See SA Estates and Finance Corporation Ltd v Commissioner for Inland Revenue 1927 AD 230 at 236