News / National
High Court rules against SDA Church
17 Jul 2017 at 01:50hrs | Views
THE High Court has reversed a decision by the Seventh Day Adventist (SDA) to censure the husband of a prominent city lawyer who was indecently assaulted by a pastor at the church last year.
The ruling by Bulawayo High Court judge Justice Lawrence Kamocha followed an application for review by the abused lawyer's husband challenging the church's decision to slap him with a seven month censure without conducting a proper disciplinary hearing.
In papers before the court, the lawyer's husband cited SDA's Bulawayo City Centre branch and the church's headquarters, South Zimbabwe Conference of the SDA Church as respondents.
In his founding affidavit, the applicant, who cannot be named to protect the identity of his wife, argued he was censured by members of the board, deacons and deaconess and elders' councils for confronting the pastor who indecently harassed his wife and reporting him to the police.
He sought an order nullifying the censure. The applicant also wanted an order compelling the church to hold a proper hearing which excludes church elders who participated in the decision to convict and censure him within 14 days of the order.
The censure barred the applicant from participating, by voice or vote, in the affairs of the church. It also prevented him from leading any church related activity and terminating his election or appointment to all positions in church.
Justice Kamocha said the church's decision to censure the applicant was a total disregard of the rules of natural justice.
"The proceedings were also in flagrant disregard of the fundamental rights of the church members as enshrined in the church's manual 2015 edition. The respondents were aware or ought to have been aware of this eloquent rule of the church rule, but decided to breach it with impunity," said the judge.
"While the main matter between the parties was indeed acrimonious and emotional that cannot be a licence for the respondents to flout the rules of natural justice and rules of their own church."
Justice Kamocha said the church leadership deliberately chose to conduct an unfair hearing against the applicant.
The judge ordered the church leadership to pay the legal costs incurred by the applicant.
"When a party blatantly conducts an unfair hearing whose outcome the party knows will adversely affect the other party, such party lacks bona fides and I conclude that the hearing would have been done with malice. The court shows disapproval of such conduct by the respondents and applicant must be compensated the costs that he incurred," said Justice Kamocha.
"The proceedings and decision of the first respondent to ensure applicant to a period of seven months within which he cannot participate in the affairs of the church either by vote or voice are both declared null and void and not binding on the applicant," ruled the judge.
In March, Justice Nicholas Mathonsi ruled that the censure had the effect of curtailing the applicant's rights as a member of the church. The ruling followed an urgent chamber application pending review by the lawyer's husband.
The applicant said the church set in motion a process of investigating him and his wife after Pastor Brighton Ndebele was convicted of indecently assaulting his wife in October 2016.
He said Gasiano Ngulube, the church's district pastor, launched an attack on him and his wife for taking the matter to the police.
The applicant said his traumatised wife went through a counselling process after the abuse.
Ndebele (32) was last year convicted by Bulawayo magistrate Ms Adelaide Mbeure of indecent assault and sentenced to 12 months in jail. Three months were suspended for three years on condition that he did not within that period commit a similar offence. The remaining nine months were further suspended on condition that Ndebele performed 315 hours of community service at Hillside Police Station.
The church under the leadership of Pastor Ngulube subsequently rejected the conviction of Pastor Ndebele and launched an investigation on both the lawyer and her husband.
The investigation was headed by Elder Felix Matsika, the SDA's Bulawayo City Centre Church, elders of the deacons and deaconesses. The applicant said the church leadership categorically stated that the church was not bound by the decision of the magistrate's court which convicted Ndebele.
He said he was not given an opportunity to defend himself.
On April 20 last year at around midday, Ndebele went to the lawyer's workplace to discuss church business since the complainant was also a head of social committees in the church.
After the discussion and when he was about to leave office, the pastor solicited for a hug from the complainant and she declined.
He then forcibly pulled the woman by the hand and squeezed her to his chest, before holding her waist and caressed her back and buttocks.
The complainant narrated her ordeal to a fellow congregant before she reported the matter to the police leading to Ndebele's arrest.
The victim said the church's failure to deal with the matter gave her an impression that it accepts as normal "predatory sexual proclivities from its pastors".
She accused the church of allegedly trying to sweep Pastor Ndebele's sexual mess under the carpet.
The ruling by Bulawayo High Court judge Justice Lawrence Kamocha followed an application for review by the abused lawyer's husband challenging the church's decision to slap him with a seven month censure without conducting a proper disciplinary hearing.
In papers before the court, the lawyer's husband cited SDA's Bulawayo City Centre branch and the church's headquarters, South Zimbabwe Conference of the SDA Church as respondents.
In his founding affidavit, the applicant, who cannot be named to protect the identity of his wife, argued he was censured by members of the board, deacons and deaconess and elders' councils for confronting the pastor who indecently harassed his wife and reporting him to the police.
He sought an order nullifying the censure. The applicant also wanted an order compelling the church to hold a proper hearing which excludes church elders who participated in the decision to convict and censure him within 14 days of the order.
The censure barred the applicant from participating, by voice or vote, in the affairs of the church. It also prevented him from leading any church related activity and terminating his election or appointment to all positions in church.
Justice Kamocha said the church's decision to censure the applicant was a total disregard of the rules of natural justice.
"The proceedings were also in flagrant disregard of the fundamental rights of the church members as enshrined in the church's manual 2015 edition. The respondents were aware or ought to have been aware of this eloquent rule of the church rule, but decided to breach it with impunity," said the judge.
"While the main matter between the parties was indeed acrimonious and emotional that cannot be a licence for the respondents to flout the rules of natural justice and rules of their own church."
Justice Kamocha said the church leadership deliberately chose to conduct an unfair hearing against the applicant.
The judge ordered the church leadership to pay the legal costs incurred by the applicant.
"When a party blatantly conducts an unfair hearing whose outcome the party knows will adversely affect the other party, such party lacks bona fides and I conclude that the hearing would have been done with malice. The court shows disapproval of such conduct by the respondents and applicant must be compensated the costs that he incurred," said Justice Kamocha.
"The proceedings and decision of the first respondent to ensure applicant to a period of seven months within which he cannot participate in the affairs of the church either by vote or voice are both declared null and void and not binding on the applicant," ruled the judge.
The applicant said the church set in motion a process of investigating him and his wife after Pastor Brighton Ndebele was convicted of indecently assaulting his wife in October 2016.
He said Gasiano Ngulube, the church's district pastor, launched an attack on him and his wife for taking the matter to the police.
The applicant said his traumatised wife went through a counselling process after the abuse.
Ndebele (32) was last year convicted by Bulawayo magistrate Ms Adelaide Mbeure of indecent assault and sentenced to 12 months in jail. Three months were suspended for three years on condition that he did not within that period commit a similar offence. The remaining nine months were further suspended on condition that Ndebele performed 315 hours of community service at Hillside Police Station.
The church under the leadership of Pastor Ngulube subsequently rejected the conviction of Pastor Ndebele and launched an investigation on both the lawyer and her husband.
The investigation was headed by Elder Felix Matsika, the SDA's Bulawayo City Centre Church, elders of the deacons and deaconesses. The applicant said the church leadership categorically stated that the church was not bound by the decision of the magistrate's court which convicted Ndebele.
He said he was not given an opportunity to defend himself.
On April 20 last year at around midday, Ndebele went to the lawyer's workplace to discuss church business since the complainant was also a head of social committees in the church.
After the discussion and when he was about to leave office, the pastor solicited for a hug from the complainant and she declined.
He then forcibly pulled the woman by the hand and squeezed her to his chest, before holding her waist and caressed her back and buttocks.
The complainant narrated her ordeal to a fellow congregant before she reported the matter to the police leading to Ndebele's arrest.
The victim said the church's failure to deal with the matter gave her an impression that it accepts as normal "predatory sexual proclivities from its pastors".
She accused the church of allegedly trying to sweep Pastor Ndebele's sexual mess under the carpet.
Source - newsday
