HIGH COURT OF LESOTHO
OA MORIJA Applicant
EVANGELICAL CHURCH 1st Respondent
– GENERAL 2nd Respondent
by the Hon. Justice S. N. Peete on the 27th January 2000.
14th day of January 1998, an urgent application was moved exparte
before Lehohla J. in which the Applicant sought an interim order
coached in the following terms –
That Rule Nisi issue returnable on the date and time to be determined
by the Honourable Court, calling upon the Respondents to show cause
(if any) why-
Respondent shall not be interdicted forthwith from implementing the
amendments and or alterations to the Constitution of the MOPHATO OA
MORIJA passed by the General Conference of 1st Respondent in its
meeting of the 27th - 28th November, 1997 pending
First Respondent shall not be interdicted forthwith from in any
manner interfering with the administration of the Applicant herein
pending the outcome hereof;
2nd Respondent shall not be interdicted forthwith from registering
the constitution of MOPHATO OA MORIJA passed by the General
Conference of the 1st Respondent in its meeting of the 27th-28th
November, 1997 pending the outcome hereof;
Constitution purporting to be the Constitution of MOPHATO OA MORIJA
passed by the General Conference of the 1st Respondent in its
meeting of the 27th-28th November, 1997, shall not be declared null
and void of no legal force or effect;
Respondent shall not be directed to observe and respect the
independence of the Applicant herein as an ecumenical centre;
normal forms and service provided for by the Rules of Court shall
not be dispensed with on account of urgency;
1st Respondent shall not be directed to pay costs hereof at an
attorney and client scale;
shall not be granted further and or alternative relief as this
Honourable Court deems fit.
prayers 1 (a), (b), (c) and (f) operate as an interim order with
interim order was duly made by the learned Judge upon the prayers as
sought and made returnable on the 9th February, 1998 and has been
extended from time to time as the proceedings went on.
informed that the court file in this application had probably burned
along with other files when the Registry was incinerated during the
political riots and looting on the 22nd September 1998. The counsel
for both sides have kindly constructed a dummy court record from
their own files. The Court appreciates this.
record reveals that the 1st Respondent then filed his notice of
intention to oppose along with his answering affidavit to which were
annexed several documents. The Applicant filed replying affidavits
dated 6 June, 1998.
On the 23
October 1998 when the matter had to be argued before me Ms Thabane
for the 1 Respondent filed an urgent application that the 1st
Respondent be allowed to file further affidavit(s) in response to new
facts or allegations raised in the Applicant's replying affidavits.
In her affidavit in support of the application, Ms Thabane avers that
"It had not been the applicant's case that the 1st Respondent's
Executive Committee had authorized the registration of Annexure "MM2"
as implied in paragraph 5 of Kabeli's (affidavit) nor was the then
Executive Committee of Applicant aware of the registration."
prayed for a postponement on the ground that her prospective witness,
a Mr Tente. was then out of the country on 1st Respondent's business
in Nairobi, Kenya. Mr Mohau for the Applicant in reply contended that
the filing of further affidavit should be refused because the
registration (and legality thereof) of MM2 (Applicant's registered
constitution) is not being challenged and hence will remain lawful
until set aside by the court upon a formal application (or
counterclaim) being made by the 1st Respondent. It appeared during
counter application (CIV/APN/301/98) was made but I have no papers in
support of such. On the issue of filling further affidavits, our Rule
8 (12) states:-
"No further affidavit may be filed by any party unless the court
in its discretion permits further affidavits to be filed".
Superior Court Practice (Juta) - submits that the court will exercise
this discretion against the backdrop of the fundamental consideration
that a matter should be adjudicated upon all facts relevant to the
issues in dispute (Bader v Westen. 1967 (1) SA 134; Dawood vs
Mahomed. 1979 (2) SA 361) and that some flexibility should be
permitted in the interests of the administration of justice. It is
essentially a question of fairness to both sides as to whether
further affidavits should be allowed (Milne vs Fabric House (Pty)Ltd
1957 (3) SA 63); another consideration, in my view, should be whether
the permitting of further affidavit will obviate the need to call
oral evidence under Rule 8(14).
present application, the dispute arises as to the manner and
circumstances under which (MM2) the constitution of the applicant was
registered and the legality thereof; I am of the view that the
affidavit of Mr Tente may be relevant to that issue and that the
Applicant will suffer no material prejudice in that he will also be
entitled to counter - reply the further affidavit. I have not been
shown any mala fides or culpable remissness on the part of the 1
Respondent and after hearing argument on the 23"" October
1998 I permitted the affidavit of Mr Tente to filed and also ordered
that costs of the day be awarded to the respondent to remedy any
fundamental issue in this application is whether the 1st Respondent
the Lesotho Evangelical Church is entitled to amend or alter the
constitution of the Applicant "Mophato oa Morija" and be
the ultimate controller of the affairs of the Applicant. It is
important to give a brief historical survey of the Applicant in this
Lesotho Evangelical Church -the First Respondent - is said to be -
and this is not in dispute - a religious body corporate with capacity
to sue and to be sued in its own name and is registered in terms of
the Societies Act. I am not going to go into deeper annals of the 1st
Respondent except to say that it is an evangelical church which began
its missionary work in Lesotho in 1833 during the days of King
Moshoeshoe I. It has to-day grown to be one of the biggest churches
in Lesotho and it is alleged that it has a Constitution called Law of
the Church; it has a supreme governing body (the Synod), the
Executive Committee and other organs of administration. There are
other institutions which have been established by the 1st Respondent
and in this application, the 1st Respondent maintains that the
Applicant is the "Morija Ecumenical Centre established by the
Lesotho Evangelical Church in 1956 through assistance of other
churches, Christian associations and friendly countries overseas."
It regards the applicant as one of its organs or institutions under
founding affidavit, Elisha Nkoka. a chairman of the Applicant, having
been duly authorized by a Resolution of the Executive Committee of
the Applicant held at Seflka High School on 10th December 1997,
states that the Applicant "Mophato oa Morija" is an
independent organization and an ecumenical body which works in
collaboration with the Lesotho Evangelical Church and is also open to
other youth movements of other church denominations. According to
(MM2) the constitution registered at the Law Office on the 9th
The Mophato os Morija has the following characteristics: It is
association of youth leaders and Sunday school teachers;
headquarters of the youth movements;
training centre for the leaders;
research station for all affairs pertaining to the youth;
centre where young people may get to know each other, help one
another and together prepare themselves for their service."
of importance however is the respective powers of the General
Assembly of the Applicant and the powers of the Synod of the 1st
Respondent regarding the amendment of the Applicant's constitution.
"MM2" paragraph IX reads :
and Amendments to the Constitution
Constitution can be altered or amended by a special General Assembly
and amendments to the Constitution shall be passed by a three
quarters (3/4) majority of the presentees at the General Assembly
wherein they are moved
laws appearing in this constitution cannot be discussed unless two
thirds (2/3) of the members of the General Assembly are present
laws shall be altered or amended provided the General Assembly
passes them by a majority of half (½) or over half of the
Constitution of Applicant "MM2" was registered Mr V. Tente
appears as being a vice-chairman and Rev. J. Nyabela as being a
member of the Executive Committee. Also annexed to the affidavit is
MM3 which relates to amendment procedure. It reads as follows:
OA MORIJA - ECUMENICAL YOUTH CENTRE CONSTITUTION.
laws with the exception of those set out under NO.4 may be amended
by a Special General Assembly of Mophato.
Constitution may be amended by a three quarters (3/4) majority of
those present at the General Assembly wherein such amendments are
laws cannot by discussed unless two-thirds (2/3) of the members of
the Assembly are present. The notice of such an assembly should be
issued at least two months before the holding of such an assembly.
Constitution, No.XI (property), and the Regulation No. V, 5
(appointment of youth organizer) may be amended by the Lesotho
Evangelical Church only after consultation with the Executive
Committee of Mophato.
may be amended by a majority of more than half (½) of those
present at the General Assembly."
answering affidavit of Reverend Tseliso Silase Lentsoenyane, the
Executive Secretary of the 1st Respondent is attached LEC I - The Law
Book of the Lesotho Evangelical Church. This Law Book also contains
what is termed the Constitution of the Morija Ecumenical Youth Centre
and in affirming that the Morija Ecumenical Youth Centre was
established by the Lesotho Evangelical Church through the assistance
of other churches and Christian organizations, it also states that:
"5. Morija Ecumenical Youth Centre is autonomous at the same
time guarding the interests and religious affiliations of its
It is the
1st Respondent's case that the applicant has always been regarded as
being one of the 1st Respondent's organs and institutions and hence
it is not an independent or ecumenical institution but that the
applicant is also part and parcel of the church and as an institution
it has voting rights at the Seboka (Synod). The first respondent
contends that if it were an independent institution, it could enjoy
only an "observer" status with no voting rights. This has
not been denied by the Applicant.
founding affidavit of the Applicant, it is alleged that at a Special
meeting of the Synod of the 27-28 November, 1997, the 1st Respondent
"purported to amend and/or repeal the entire constitution of the
Applicant and discarded its present organizational structure and
manner of administration. The purported amended constitution is
attached ... and marked "MM4", and in terms of MM4 the
Applicant is now to be administered by a Board of Governors appointed
by the 1st Respondent's Executive Committee.
being an application, oral evidence could only be allowed by the
court under Rule 8 (14) with a view to ensuring a just and
expeditious decision. In the exercise of my discretion I therefore
granted leave to the applicant and respondent to subpoena certain
officials in their respective constituencies give evidence on the
pertinent issues raised by the papers before court. These were:
authority of the Synod, if any, over the Mophato in the amendment
process of the Constitution of Mophato.
true position of MM2 Constitution registered at the Law Office on
the 9* January 1969.
validity of the Constitution for Mophato oa Morija (MM4) made by the
Special Synod Meeting of the 27-28th November 1997.
Masitha Tente gave oral evidence on behalf of the first respondent,
and I will refer to the salient features of his lengthy testimony. He
informed the court that he is a devout member of the Lesotho
Evangelical Church and also one of the founding fathers of the
Mophato oa Morij a which he aptly described as "a baby and
creature" of the mother church, the first respondent. He told
the court that the Mophato oa Morija, the present applicant, was
founded in 1956 and he has been a member of the applicant since then
till 1969 during which period he was also a member of the Executive
Committee of the Applicant. He described the status of the applicant
as being an autonomous one but one subject to the ultimate direction
and supervision by the Synod (Seboka) which was the supreme governing
body of the Lesotho Evangelical Church. This supreme authority was
vested in the Synod
sections 24 and 139 of the main Constitution of the Church. According
to him the Synod had power to review and amend, if necessary, any
laws governing the institutions of the church and the applicant was
one of these.
the registered constitution "MM2", Mr Tente expressed
ignorance about its existence and registration and stated that it had
not been blessed and allowed by the Synod. He told the court that in
1969, the then cordial relations between the Synod and the applicant
became very strained and tensed. This was caused by a controversy
over the issue whether Mr Abia Moletsane, the applicant's favourite,
was to hold the office of Youth Organiser or Reverend Maraisane who
was preferred by the Synod. It is clear from the Mophato Minutes of
the 14th-16th March 1969 that the first respondent through the
Sibolla delegation succeeded to assert its authority over the
applicant whose committees were then disbanded. This was on the 3rd
January 1970. Rev. Sibolla is reported to have declared to those
present that the constitution of the Applicant embodied in the Green
Book was a mere draft because it had not been approved and blessed by
the Synod of the first respondent.
cross-examination by Mr Mohau for applicant, Mr Tente was emphatic
and insisted that though autonomous in running its affairs, the
applicant was still under the ultimate control of the Synod.
According to him and since the Sibolla declaration, the applicant had
no constitution but a draft as contained in the Green Book; he stated
that the situation was normalised when the Synod finally approved and
passed a new constitution for the Applicant in November 1997. Mr
Mohau then referred him to the clause XII of the draft constitution
whose fair translation would read:
Amendment to Regulations
regulations, except those under 4 below, may be amended by a special
meeting of the Board of Mophato;
Constitutions may only be amended by a 3/4 majority.
regulations may only be discussed when 3/4 of the members are
present. The invitations to this meeting should be sent at least 2
months before the meeting.
No. XI dealing with Property, standing Order No.5 dealing with
section of Administrator may be amended only by the Lesotho
Evangelical Church after consultation with the committee of the
Standing Orders may be amended by over half of the members present."
it to him that the Synod had no authority whatsoever to alter,
re-write or amend the Mophato Constitution and that only the General
Conference of the Mophato enjoyed this prerogative under clause XII
and that the first respondent could only amend or vary the provisions
dealing with property and the selection of the Youth Organizer. To
this Mr Tente responded by saying that the clause XII was part of a
draft constitution which did not bind the Synod; the Synod, he went
on, had ultimate authority to vary and amend even this clause.
explained that the new Constitution MM4 approved by the Synod was the
result of the work done by the Law Commission which was a body
constituted by the Synod to deal with all matters legal within the
Church. According to Mr Tente, proper consultations had taken place
during which the Mophato even submitted its own submissions; he
referred to the letter written by Mr A.S. Buti dated 15 September
1997. Its fair translation reads:-
Secretary, Lesotho Evangelical Church, P.O. Box 260, MASERU 100
It is now about two years since the General Conference of Mophato
submitted amendments to the constitution and regulations of the
Mophato oa Morija.
send to you the relevant copies in order that the Law Commission may
examine the same so that the Synod may discuss them at its next
sitting on the 28th September 1997.
been directed by the Executive Committee of the Mophato to send you
these legal documents.
then handed in from the bar a document ID "A" which seems
to be the proposed amendments from the Mophato; and also handed from
the bar by Ms Thabane was a document ID "B" which contained
the proposals from the Law Commission. I may here interpolate and
observe that the proposals in ID "B" were quite radical and
indeed remove any vestige of autonomy the Mophato had hithertofore
enjoyed; Mophato was to be placed under the control of a Board of
Governors who are directly accountable to the Synod. In maintaining
that proper consultation had taken place before this new constitution
approved by the Synod on the 28th November 1997, Mr Tente described
the consultation procedure within the Church: the affected
institution was entitled to forward its proposals to the Synod
through the Executive Committee of the Synod; the Law Commission was
free to communicate with the affected institution if it so wished. He
stated that he did not know if the Law Commission had ever met with
the Executive Committee of the Mophato before presenting its
constitutional proposals to the Synod. He refuted the applicant's
assertion that the November 1997 constitution was a nullity or passed
ultra vires. Mr Tente went on to state that prior to the approval of
the new constitution, the Synod and the Mophato had been using the
so-called draft constitution in the Green Book since 1970. He goes
further to state that the constitution (MM2) registered in 1969 is
unknown to him; indeed he described it as a fraudulent document which
had clandestinely been registered without the approval of the Church.
correct to hold that in 1997 the Law Commission had decided that the
Mophato oa Morija was now getting out of control and the church was
unable to exercise any measure of control over the Mophato which in
its ecumenical path had permitted other churches to participate in
its administration. The Mophato had to be brought to order and the
only way feasible was to bring about drastic change to the provisions
in the draft constitution. The provisions of the draft constitution
embodied in the Constitution of the Church LECI which had to be
revised are the following:
Ecumenical Youth Centre is autonomous, at the same time guarding the
interests and religious affiliations of its members"
Amendment to Regulations reads thus:-
regulations, except those under 4 below, may be amended by a special
meeting of the Board of Mophato;
Constitution may only be amended by a 3/4 majority.
No.XI dealing with Property, standing Order No.5 dealing with
section of Administrator may be amended only by the Lesotho
Evangelical Church after consultation with the committee of the
Standing Orders may be amended by over half of the members present"
site of Morija Ecumenical Youth Centre together with the buildings
and property belong to Lesotho Evangelical Church except property of
a particular association.
Evangelical Church together with associations mentioned in (1)
places all property in the Council of the Centre to use it in the
execution of the purpose of the Centre."
called was Reverend Aaron Thebe who is a priest in the Lesotho
Evangelical Church since 1976. He is also chairman of the Law
Commission since 1997. He told the court that in April 1997 the Law
Commission was instructed to look into the problems facing the Parish
of Gauteng and the Mophato oa Morija. On the 30th April 1997 the Law
Commission presented before the General Synod a proposal that a new
constitution for Mophato oa Morija - Morija Ecumenical Centre - be
drafted. In their report ID "C" it was categorically noted
that Mophato oa Morija is one of the major institutions of the Church
but it was evident that the Mophato seemed to be operating
independently under the Mophato constitution as it stood and that the
Mophato was also operating in collaboration with other
or denominations. The Commission then recommended that this
constitution be altered to restore the authority of the Church over
the Mophato. This was also confirmed in the Report of the Law
Commission to the Special Meeting of the Synod of November 1997. In
brief this Report contained several proposals for drastic amendments
of the Mophato Constitution; these constitutional proposals were the
subject of the crucial discussions of the Synod meeting of the 28th
November 1997. Reverend Thebe states that these proposals were
circulated in advance to the members of the Synod as required by the
procedures and states that Mr AS. Buti as member of the Synod and the
Mophato Youth Organiser were also supplied with copies. He explains
that the Mophato suggestions had previously been transmitted to the
Law Commission but most of these had been rejected by the
Commission's Executive Board. The Law Commission had then prepared a
final draft for the new Mophato Constitution for consideration by the
Synod "ID B". According to Rev. Thebe the so-called
constitution of Mophato was but a draft and this had been made clear
to the Mophato Executive Committee as far back as 1969 when Rev.
Sibolla and his Executive Committee had dissolved the then General
Assembly of Mophato and its committees. In its Report to the Synod,
the Law Commission notes its grave concerns about the existing
constitution of the Mophato and that the Synod of the Church was
being sidelined and ignored by the Mophato in the running of its
affairs and that the Synod no longer exercised direct control over
Mophato, as one of main institutions of the church and that the
Mophato was now collaborating with other churches in the general
administration of the Centre and was describing itself as "Lesotho
Ecumenical Youth Centre." The Law Commission proposed that the
Mophato be controlled and administered by the Synod through its
Executive Committee like was the case with other institutions. The
Synod, he says, did not welcome the ecumenical route being followed
by the Mophato.
to Revered Thebe when the Synod ultimately sat on the 27th November
1997, the Mophato had no legal constitution but a draft document
(Green Book - page 41) and which
binding in its entirety on the Synod. He informed the court that the
proposals of the Law Commission were duly present before the special
Synod Meeting which Mr A.S. Buti also attended as Mophato Youth
Organiser and the Synod member. The minutes of the Synod meeting ID
"D" indicate that each proposal was voted upon separately
and won approval of the Synod. This gave birth to the New Mophato
out in evidence that the Synod of the Lesotho Evangelical Church has
a total membership of 114. Now Section 30 of the main Church
e tle e be Seboka se phuthehile e ka khona e be bonyane karolo tse
peli ho tharo (2/3) tsa litho liteng. Ha ho buuoa litaba tse amang
molao, qeto e ka etsoa ha halofo (½) ea litho e le teng.
Ho ke ke ha buuoa ka melao ea kereke ea Evangeli Lesotho ha e se ha
bonyane karolo tse peli ho tse tharo (2/3) tsa litho tsohle tsa
Seboka li phuthehile.
ea motheo e ka fetoloa ha likarolo tse tharo ho tse 'ne (3/4) tsa
litho tse leng teng mohla e buuoang li rerajoalo.
30. For the quorum of the Synod to be constituted at least two thirds
(2/3) of the general membership must be present. When dealing with
all matters legal, decision shall only be made if half (½) of
the membership is present.
of the Law.
31. There shall be no discussion of the laws of the Lesotho
Evangelical Church unless two thirds 2/3 of the membership of the
Synod are present.
32. Constitutions can only be altered only when three quarters (3/4)
of the Synod are present during the discussion."
assuming that the total membership of the Synod stands at 114. 3/4 of
this number is 84 and 2/3 thereof is 76. Sections 32 and 31 are very
important provisions in the constitution of the Church because they
requires specific majorities in the amendment process of its
Constitutions of the Church.. I am of the view therefore that the
November meeting of the Synod had to observe the mandatory provisions
of this section. From the Minutes of the Synod ID "D"
exhibited before this court, it is noted that at 8:00 am the counting
showed the quorum of 76 to be present. It is not clear whether the
requisite quorum of 84 was present. The inspection of the minutes
indicate that when the constitutional proposals of the Law Commission
were being voted upon an average only 60 or 70 people were present
and voting. This was below the requisite majority or quorum. It is
therefore clear that section 32 of the Church constitution was not
complied with and this affects the essential validity of the new
Mophato Constitution. It is my view that the Secretary of the Synod
ought to have assured that the proper quorum of 84 was maintained
throughout the discussions and voting. During cross examination
Reverend Thebe explained that on the morning of the 27th November
1997 a head-count showed that 83 members of the Synod were present
and not 84, and he specifically stated that on the 28th November
1997, there was no head-count. There is indeed no convincing evidence
that there was sufficient quorum when new constitution for the
Mophato was purportedly passed by the Synod.
It is my
view that the issue of quorum is both one of law and of fact. The
constitution of an
may determine the number of members thereof which shall form a quorum
before a valid decision or resolution may be taken; the numerical
count on the other is a question purely one of fact. There is in my
view either a quorum or no quorum. This cannot be assumed or
estimated and it is the duty of the Secretary or Chairman of the
meeting to ensure that the quorum is maintained at all crucial stages
of the proceedings especially at the voting stages.
view, where a constitution confers powers on a specific majority
present at a meeting, then unless the requisite number be present at
the meeting, the powers in question cannot validly be exercised.
(Gerard RamoreboH& others vs Ntsu Mokhehle & others -1991 -96
LLR 927 at 935; Arthur Lewin - The Law, Procedure and Conduct of
Meetings in South Africa (4 Ed) Page 18). Although it may be true
that whereas all members of the Synod had been summoned to the
Special Constitutional Meeting, the numerical figures indicate that
the requisite quorum was not maintained through out the voting
process. (See also Monyane& others vs Lesotho Bank -
CIV/APN/278/99 - Ruling on a Point of Law by Kheola C. J. p.6 where
"there was no quorum because only three directors took that
resolution. It cannot be legally binding inasmuch as it was taken in
breach of the statute governing the procedures of the respondent".
to Rev. Thebe, the draft constitution of the Mophato was only
recognised as such by the Synod which considered itself as not bound
by its provisions; it is however clear that the Synod sometimes
invoked the provisions of the draft constitution as it did in its
April sitting in 1990 (ID "E"). It is quite clear that when
the Synod sat in November 1997 its relations with the Mophato were
not cordial and the Synod had decided to bring the Mophato to order
and curb its autonomous tendencies. The root of the controversy lay
at the ecumenical philosophy of the Mophato which was also describing
itself as "Lesotho
Youth Centre" and not "Morija Ecumenical Youth Centre."
It can be noted that in its constitution registered at the Law Office
in 1969, the Mophato is described as "an independent
organization respecting the rules and regulations of the Churches
affiliated to it and those of the world-wide youth movements (Art 5);
and it works in collaboration with the Lesotho Evangelical Church."
This was not acceptable to the Synod.
to Rev. Thebe in the Lesotho Evangelical Church the Synod is the
supreme governing body which exercises jurisdiction over other organs
and institutions or associations of the church and this authority is
based upon Section 24 and Section 139 of the Constitution of the
"Each and every Association is governed by its own regulations,
which have been allowed by the Seboka."
following are duties and responsibilities of the Seboka:
examine all matters relating to the life and service of the Church.
review the rules (laws) of the church."
common cause that since its early beginnings the Mophato was created
under the auspices of the Church which has always regarded it as its
own organ and institution over which it had ultimate authority. The
Mophato however enjoyed a large measure of autonomy. I have not been
shown any convincing evidence to demonstrate the termination of this
state of affairs, though Clause XII dealing with amendments seems to
vest the authority to amend the Mophato constitution on the Assembly
of the Mophato and not on
Synod; sub-article 4 thereof goes to state that clauses dealing with
property and election of the Youth Organizer can only be effected by
the Church only after consultation with the Committee of the Mophato.
Certainly, these provisions cannot be reconciled with the section 24
and section 139 of the Constitution of the Church. Rev. Thebe
concluded his evidence by stating that the Mophato was autonomous and
runs its own affairs but does so under the general supervision of the
Church (Section 24).
Lehlohonolo Kabeli then gave his evidence in which he told the court
that he was one of the founders of the Mophato oa Morija in 1956. He
described its main mission as being to tutor and train the youth of
the Church in the Word of God and in discipline. He went on to state
that in 1964 the then President of Seboka Rev. Phakisi declared that
the Mophato Constitution MM3 was operative and this was approved by
the Synod. In his view, the said Constitution was not a draft
document. He goes on to state that in 1969 the Mophato Committee was
paid a surprise visit by Rev. Sibolla and his delegation which
informed them that the Mophato Constitution was only a draft. As
pointed out earlier, the relations between the Synod and the Mophato
were at the time not cordial over the competing claims of Mr
Moletsane and of Reverend Maraisane, the latter wanting to hold both
portfolios of Youth Chaplain and Youth Organizer. It is not in
dispute that over this wrangling the Synod asserted its authority and
disbanded the Mophato Committee. He agrees that registered
constitution MM2 does not tally with MM3. He explained that MM2 was
drafted in order to transform the character of the Mophato into a
more ecumenical one and collaborate with other organizations and
denominations. He stated that whilst the Synod knew about this new
constitution MM2 he could not claim that it had obtained the formal
approval of the Synod. It is common cause that since its registration
at the Law Office in 1969, this new constitution (MM2) had never been
used in the running of the affairs of the Mophato, which continued
using MM3 - the so-called draft constitution.
cross examination, Mr Kabeli concedes that their Mophato Committee
did not question the authority of the Executive Committee of the
Synod. He also candidly admitted that the Synod is the supreme body
of the Church and had authority to review all the laws of the Church
(Section 139). He also admitted that Mophato is a branch institution
of the Church and it enjoys its autonomy under Section 24. It
receives orders from the Church though it governs its internal
affairs. He admitted that MM2 was never blessed or approved by the
Synod under Section 24 and that it contains many provisions which are
different in many aspects from the draft constitution. But, as
already pointed out, whether a draft or not, the Mophato Constitution
in the Green Book seems to have been an operating document whose
provisions were used by the Synod in its dealing with the Mophato. It
was not a dead letter.
Senekane Azael Buti then gave his evidence as the Mophato Youth
Organizer. He informed the court that he has held this portfolio
since 1974 having been nominated by the Lesotho Evangelical Church
after consultation with the Committee of Mophato. He has also been a
youth leader since 1962. Mr Buti in narrating the events that
precipitated the 1969 crisis, informed the court that after Mr
Zimmermann who was a Boys Scout pioneer and a founding leader of the
Mophato had departed rrom Lesotho, an acrimonious dispute arose
between the Synod and the Mophato over who should be the youth
organizer. The Synod preferred Reverend Maraisane and the Mophato
favoured Mr Moletsane. He went on to say when the Annual General
Conference in January 1970 could not resolve the deadlock, the
Executive Committee of the Mophato decided to resign along with Mr
Moletsane. The Synod Executive Standing Committee consisting of Rev.
Sibolla, Rev. Thakholi, Rev. Mandoro and Mr Tiheli arrived in Morija
and ultimately disbanded the Mophato Committee. The Mophato continued
to function after a new compliant committee was elected consisting of
Mr Buti as chairman, Mr Nzeku, Miss Mapetla, Mr Ratsiu and Mrs
Nkaota. Mr Nzeku was an Anglican who was then a scout field
commissioner and had been coopted on
evidence then came to the November 1997 Meeting of the Synod in which
the new Mophato Constitution was discussed and passed. The evidence
goes on like this :
"Question: Regarding the 1997 re-writing of the Constitution of
Mophato, was the General Conference of the Mophato oa Morija
It was suggested you were consulted and even made submissions?
Answer: It was a matter of routine. I was not consulted, we of the
Mophato also had a draft constitution containing proposals done some
time in 1995 in readiness for submission to the Synod. On 15th
September 19971 indeed wrote a letter to the Executive Secretary
attaching the amended constitution for transmission to the Synod and
for perusal by the Law Commission. It was not on invitation of the
Law Commission to submit those counter proposals."
on to say that he attended the November meeting of the Synod as the
delegate of the Mophato. Prior to this meeting he had not seen the
proposals being presented by Rev. Thebe who was then the Executive
Secretary of the Synod and a member of the Law
Mophato oa Morija had nothing to do with it (Constitution)?
Answer: It had the right because the Constitution was going to bind
us and this was in violation of XII4.
Question: In terms of the Constitution, does the Synod have the
right to redraw the Mophato Constitution?
No, they don't. That is why I raised an objection.......I told the
Synod that I objected because Clause XII did not allow this; secondly
because there had been no consultation; and because the Synod also
wanted to do away with Clause XII."
that he nevertheless took part in the voting on the 28th November
1997 when the proposals of the Law Commission were being discussed
and voted upon. He agreed that since 1974 as a Youth Organizer he had
been using the Mophato Constitution in the Green book (and not MM2).
He insisted however that the Synod does not have the right to
re-write or even to amend the constitution of the Mophato, whose
General Assembly enjoyed that prerogative. He says "this
constitution can only be amended or re-written by a special general
Conference of the Mophato consultation with the Synod of the Church."
further agrees that the Synod under Section 139(b) of the Law of the
Church has power to review all laws of the Church but only after
consulting the affected organization or institution (Section 24). He
says that no meaningful consultation occurred prior to the November
meeting of the Synod.
cross examination, Mr Buti was taxed about the founding affidavit of
Nkoka in which reliance is made upon MM2 and not MM3 in the Green
book; he insisted that he never used MM2 in his dealings as Youth
Organiser. He stated that he tried to consult with the Executive
Secretary of the Synod concerning the constitutional proposals of the
Mophato (EX. B") and that on the other hand the constitutional
proposals of the Law Commission were never formally presented to the
General Conference of Mophato for discussion.
then stated clearly that the Synod in fact knew about MM2 whose
existence they merely chose to ignore. He further explained that the
purpose for drafting MM2 in its
"to impress foreign donors. It was not for local use. I never
used MM2 in my official dealings as the Youth Organizer."
accepted that the Synod was the supreme body of the Lesotho
Evangelical Church, and that it had power and authority to make
decision on behalf of the Church; and that Section 24 and 139 of the
Law of the Church give the Synod the ultimate right to review all
laws of the church and even amend the laws of the associations or
institutions after having consulted with them.
of the Mophato.
nature and the extent of the autonomy of the Mophato is a very
pivotal issues one in these proceedings and to determine this
autonomy we have to look at the founding documents or constitutions
contained in the Green Book. The English translation annexed to the
first respondent's affidavit is headed "Morija Ecumenical Youth
Centre .. Constitution.
Morija Ecumenical Youth Centre is autonomous at the same time
guarding the interests and religious affiliations of its members".
should be contrasted with Section 5 of MM2 - the constitution
registered at the Law Office in 1969; it reads:
The Mophato oa Morija is an independent organization respecting the
rules and regulations of the Churches affiliated to it and those of
the world-wide youth
Alterations and amendments to the constitution.
Constitution can be altered or amended by a special General Assembly.
and amendments to the constitution shall be passed by a three
-quarters (3/4) majority of the presentees at the General Assembly
wherein they are moved.
laws appearing in this constitution cannot be discussed unless
two-thirds (2/3) of the members of the General Assembly are present.
Laws shall be altered or amended provided the General Assembly
passes them by a majority of half (½) or over half of the
quite clear that MM2 excludes the authority and supervision of the
Synod and allows participation of the Lesotho Evangelical Church only
to the extent of mutual collaboration; I may here add that whilst Mr
Mohau submitted that Mophato oa Morija is autonomous, he did not go
to the length of saying it was independent and not subject to the
authority and control of the Church. The extent of applicant's
autonomy as clearly demonstrated in 1969 when the Synod through its
Standing Committee effectively asserted its control and authority
over the Mophato. This has never been relinquished; and no convincing
led to show that Mophato ever formally left the supervision of the
Synod after 1970. In fact, the evidence of Mr A. S. Buti clearly
demonstrates that the Mophato is still an organ and institution of
the Lesotho Evangelical Church and that the so called draft
constitution and not MM2 was always used by him in his dealings with
the Synod and Executive Committee of the Synod. His only complaint is
that he and the Mophato Committee and the General Assembly were
sidetracked and brushed aside; he says there was no proper and
meaningful consultation between the Mophato and the Synod over the
proposed new constitution for the Mophato. He stated that on the 15th
September 1997 he dispatched their own constitutional proposals for
transmission to the Synod and for perusal by the Law Commission. If
at all the General Assembly of the Mophato had the sole authority to
amend and approve such new constitution under XII (1), indeed I fail
to understand why Mr Buti's draft had to be sent to the Executive
Secretary of the Synod. This only demonstrates the reality-namely,
that the Synod still wielded the ultimate authority in the
constitutional amendment process. He also says consultation was
necessary between the Mophato and the Synod over the proposed
constitution "because it was going to bind us." He goes on
to say that the Mophato Constitution can only be varied by the
special conference of the Mophato in consultation with the Synod of
the Church. Mr Kabeli also admits that "nothing can be dealt
without being presented before the Synod - which is the supreme and
highest body in the Lesotho Evangelical Church. It can refuse
anything;" and he goes on ".... we did not question the
authority of the Executive Committee of the Synod ..." and "it
had the authority to disband the Mophato Committee ..."
According to Mr Kabeli the Mophato is a branch and an institution of
the Lesotho Evangelical Church under Section 24 of the Law of the
Church and it is autonomous but receives orders from the Church. He
explains further that MM2 was made unilaterally by the Mophato and
had never been blessed by the Church under section 24.
nature and extent of this autonomy enjoyed by the Mophato can
therefore be perceived
standpoint of the constitutional provisions, and from the day-to-day
dealings between the Mophato and the Synod. The correspondence
between Mr A. S. Buti and the Executive Committee of the Synod
demonstrates clearly that Mophato could not act unilaterally in
varying or amending its constitutions. It is clear therefore that the
Mophato is not an independent institution but one which enjoys a
large measure of autonomy under the general supervision of the Synod
of the Lesotho Evangelical Church. This has been amply demonstrated,
and it is proper to come to the conclusion that the Synod indeed has
authority to amend or review the laws of the Mophato because Section
24 and Section 139 seem to endow the Synod with ultimate power to
approve or review the laws of the church organs and institutions.
pernicious question is whether the supreme Synod when approving the
new constitution for Mophato (MM4) complied with the mandatory
provisions of the quorum of the laws of the Church in the Green Book.
Without revisiting the evidence unnecessarily, I am of the view that
the Synod proceedings of the 28th November 1997 were highly irregular
and indeed the important provisions of Sections 31 and 32 were
violated. They read:-
The laws/rules of the Lesotho Evangelical Church shall not be debated
upon unless at least two thirds (2/3) of all members of the Seboka
are present at a meeting.
Changes to the constitution may be effected if three quarters (3/4)
of the members present at the meeting of the Seboka when it
(constitution) is discussed so decide.
official quorum of the Synod is 76 (this being 2/3 of 114). The
totality of the votes in the minutes on the 28th November 1997
indicate that less than 76 members participated in the Synod on the
28th November 1997. This, I regret to say, renders the whole
day a complete nullity. To hold otherwise and say the quorum can be
assumed when the numerical votes in the minutes explicitly indicate
to the contrary would indeed render mockery to these mandatory quorum
provisions. When a Synod meeting lacks the requisite quorum or where
the numbers get reduced and fall below during the conduct of such a
meeting, the Chairman or Secretary has the duty to postpone or
adjourn the proceedings till the quorum is restored. I therefore hold
that whilst the Synod had authority to review the laws of the
Mophato, its proceedings on the 28th November 1997 were irregular in
that they did not comply with the provisions of the Section 31 and
Section 32 of the constitution of the Church.
It is not
necessary therefore to decide definitely whether proper and
meaningful consultation between the Synod's Executive committee and
its Law Commission on one hand and the Mophato and its organs on the
other hand had taken place . The Mophato as an organ or institution
of the Lesotho Evangelical Church had a legitimate right or
expectation to be consulted concerning the proposed constitution
which would bind it; indeed, as it has turned out, MM4 is a somewhat
drastic document that reorganises the Mophato and limits its original
autonomy. Fairness and natural justice required that Mophato as an
affected institution be consulted meaningfully about the proposed
changes even if the ultimate Synod's decision might disregard
Mophato's proposals. It is my view that one aspect of the Mophato' s
autonomy is the right to be consulted in matters involving amendment
or changes to its constitution so that it could have a fair
opportunity to submit objections or suggestions. Consultation does
not mean agreement or consent but means a fair and full opportunity
for views to be stated - R. v Mbete 1954 (4) SA 491. Once bona fide
communication of proposals on a reciprocal basis had truly taken
place, the Synod could lawfully review and amend the constitution of
the applicant at its properly constituted meeting and in accordance
with the laws and procedures contained in the Green Book.
therefore make the following findings:-
applicant Mophato oa Morija was created by the Lesotho Evangelical
Church in 1956 to spread the Word of God amongst the Youth of the
Church being, the first respondent; it is therefore one of the main
organs and institutions of the Church.
applicant enjoys a large measure of autonomy to run its own affairs
but it is subject to the ultimate supervision and control by the
Synod of the Church.
first respondent does in law and in fact possess authority through
its Synod to review the laws of the Church and its institutions one
of which is the applicant.
Constitution registered at the Law Office in 1969 "MM2"
had not obtained the formal approval of the Synod.
new Constitution "MM4" purportedly passed by the Synod on
the 28th November 1997 is null and void because requisite quorum was
not present at the said November meeting.
make the following directives:-
Executive Secretary of the Synod is hereby ordered and directed to
fulfil the following:
circulate the printed English and Sesotho draft Constitution MM4 to
all members of the Synod and to all members of the General Assembly
of the Mophato and its Executive Committee for written comments
convene a Special Meeting of the Synod within three months or before
end of April 2000 in terms of the provisions of the Law of the
ensure that the Special Synod Meeting observes during its
deliberations the mandatory quorum provisions under sections 30,31,
and 32 of the Law of the Church.
ensure and guarantee a free, full and fair discussion of all
proposals for and against any amendment of the present Constitution
of the Mophato.
2. The Constitution "MM2" to be tabled on the Agenda of the
Synod for discussion and decision thereon.
3. The Executive Secretary submit a written Report to the Registrar
of this Court about the final decisions of the Synod within two
question of costs is deferred until after the above directives have
been complied with.
Applicant: Mr Mohau
Respondent: Ms Thabane
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