The recent judgement by the Court of Appeal (CoA) that the courts in Botswana have no jurisdiction over the Bishop of the Zion Christian Church (ZCC) Barnabas Lekganyane, is catastrophic, according to attorney Uyapo Ndadi.
“The outcome is a catastrophic one. It means the government and the members of the ZCC cannot touch the Bishop if he violates the laws of Botswana or the constitution of the ZCC as we contend he does, yet he has reserved himself absolute powers such as refusing constitutional amendments.”
“He is essentially above the law in South Africa, as he cannot be sued in SA for Botswana matters. Other churches that have founders abroad who reserved themselves powers are going to be in trouble also.
“Remember the Societies Act that governs these churches are supposed to be owned by the members, but if their constitution is like that of the ZCC, then it is an illusion to say power is with the people, governance power that is, not spiritual,” Ndadi said.
He said it is likely to open floodgates in many churches in the country. The CoA on Friday ruled that the courts could not arbitrate in dispute matters because they have no jurisdiction because he is not domiciled nor ordinarily resident in Botswana.
The ZCC is one of the churches with the largest following in Botswana, and its leader Lekganyane holds office for life.
Some of the churches in Botswana with a leadership outside Botswana include prominent ones like the Roman Catholic and the Anglican.
The CoA ruling follows an appeal by the church and Lekganyane on a judgement in which the Lobatse High Court had interdicted and restrained him from holding any disciplinary hearings against Tshiamo Tladi and 16 other
Lekganyane argued that the High Court erred in misdirecting itself by assuming jurisdiction on a matter involving ecclesiastical or ecumenical or theological/ administrative disputes between the church members and that they are entitled to an interdict restraining the church from conducting disciplinary hearings pending the outcome of the case before Justice Michael Mothobi.
However, after Justices Monametsi Gaongalelwe, Jacobus Brand and Abednego Tafa, all agreed with Lekganyane’s lawyers and set aside all the orders of the court a quo, Ndadi who represented the respondents in the matter said that the judgement has rendered Lekganyane untouchable.
He said this could bring anarchy in the church, and be a challenge to other churches whose leaders are not domiciled in Botswana like the Roman Catholic Church.
Ndadi indicated that although the constitution of the ZCC gives powers to the leadership in Moria, the problem will be when disputes erupt, because no court would have jurisdiction to arbitrate and that would bring about anarchy.
The CoA Justices said in their judgement that the law is that the court’s jurisdiction over a natural person is generally based on whether an order made against him would be effective.
“Where such a person is neither domiciled nor resident in a particular country, the courts of such a country would have no jurisdiction over him.
“It follows that the court a quo did not have jurisdiction over the second appellant. Any orders purporting to interdict him would be a nullity,” read the CoA judgement.