Browsing by Author "Muyebe, Stanslaus C."

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    The canon law framework for arbitration of delictual disputes in the Roman Catholic Church of South Africa : a critical and comparative study
    (Stellenbosch : Stellenbosch University, 2005-04) Muyebe, Stanslaus C.; Coertzen, Pieter; Stellenbosch University. Faculty of Theology. Dept. of Systematic Theology & Ecclesiology.
    ENGLISH ABSTRACT: In his analysis of conflict resolution in the church sector, Professor Coertzsen (1998:69) points out that disputes occur also within the churches. While some of the disputes are purely doctrinal, others fall into the category of civil disputes. Professor Rik Torfs in an article (1998:27) observes that the Catholic Church is increasingly becoming a site of civil dispute. These include delict claims. Examples of these are: financial loss as a result of unfair suspension or dismissal from a clerical position; financial loss or loss of reputation resulting from unfair dismissal from a religious congregation; damage to a child or adult arising from being sexually abused by a priest or religious or lay person. When delictual disputes occur, state courts have civil jurisdiction over them. At the same time, the South African Arbitration Act 42 of 1965 allows the parties to a delictual dispute to arbitrate their case as an alternative to civil litigation. This trend is gaining currency in the post-apartheid South Africa. In principle, therefore, church members may refer their delictual disputes for arbitration, instead of entering into civil litigation. Church members, thus, have the choice to have their case arbitrated, and church leaders need to make it clear to members that they also have the right to bring their case to the state courts. This study highlights the need for the churches to have an office of contlict resolution. The office may then advise church members who have a delictual dispute on the options available to them. The office may have a list of lawyers (Christian lawyers) who are willing and able to arbitrate on matters referred to them by other Christians. When the parties decide to have their delictual case arbitrated by lawyers, the determination as to whether a person is legally liable for damage repair requires a legal framework. Unlike the situation in civil litigation, the parties who opt for arbitration have the freedom to decide on the legal framework that the arbitrator should use in determining liability. Catholic Church members who are parties to a dispute may, for example, jointly agree that the arbitrator employ the internal law of the Catholic Church, namely the canon law framework. This study envisages a situation where the parties have jointly agreed to the employment of canon law for the arbitration of their case. When the disputants and the arbitrators engage in discussion and decide on whether to use canon law, they need to ask themselves the following questions: (I) What principles and rules of law has canon law established for the determination of the issue at dispute? (2) How do the standards of justice in canon law differ from those in secular law? What provisions invoked by the arbitrators would result in gross injustice to the claimant? (3) If the provisions of canon law would result in gross injustice to the claimant, the church members who are parties to a dispute may choose to rectify and supersede the limitation inherent in canon law. The question arises: to what provisions in secular law are the arbitrators and Church members able to resort to compensate for the limitations of canon law? (4) How do the standards of justice in canon law differ from Biblical standards? To what biblical messages might the arbitrators and the church members resort to overcome the limitations in canon law? While recognising the value of the fourth question, this study limits itself to the first three. It is hoped that future studies will address the fourth question. The present study attempts to answer the first three questions by means of a critical comparative analysis of the framework that canon law has established for determining the various possible issues at dispute. In the study it is argued that the employment by an arbitrator of some of the provisions in canon law would result in gross injustice. The disputants need to take note of these before they mandate the arbitrator to apply canon law in their case.