CIV/A/11/81
IN THE HIGH COURT OF LESOTHO In the appeal of
LESOTHO EVANGELICAL CHURCH Appellant
vs
E. K M NDORO Respondent
JUDGMENT
Delivered by the Hon. acting Judge B K Molai on the12th day of June, 1981
The appellant in this case appeals against the decision of the Resident Magistrate Court of T Y dated 10th December, 1980 whereby Appellant's claim against the Respondent for an order of ejectment, costs of suit and/or alternative relief was dismissed.
In his particulars of claim, Appellant averred that up to and until the 26th August, 1979, Respondent was in the employ of appellant and posted at Cana Mission in the district of Berea. On or about the 26th August, 1979 appellant terminated Respondent's employ and notified him to vacate the dwelling house at Cana Mission which Respondent had occupied in terms of his employment by appellant, on or before the 31st August, 1979. Despite demand Respondent neglected and/or refused to vacate the said premises Appellant therefore claimed for an order of the Court as set out above.
In his plea Respondent admitted that he was and is still in the employ of the appellant at Cana Mission Respondent further averred that appellant's purported termination of his employment at Cana Mission was unlawful in as much as the Executive Secretary had no authority to terminate his employment and such termination was outside the terms of his employment. Furthermore, Appellant's summons were vague and disclosed no cause of action in that the requisites of ejectment or reasons for
2/ . termination
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termination of Respondent's employment were nob disclosed in the summons Respondent therefore prayed for the dismissal of Appellant's claim with costs.
The facts disclosed by the evidence in so far as it is relevant for this case were that
The appellant is a church organisation of whichthe Respondent is a member and a priest
There is a constitution by which the appellantand its members are governed.
The highest governing body of the appellantchurch is the Synod or Seboka
(4) The Synod or Seboka has an Executive Committee.
The Respondent was at all material times postedas the priest-in-charge at Cana, one of theparishes run by the appellant church in thiscountry,
Early in 1979 Respondent applied from theExecutive Committee for a study leave tofurther his studies at the National Universityof Lesotho
Respondent's application was unsuccessful.
Notwithstanding that his application was unsuccessful, Respondent went to the University.
The Executive Committee held the view thatRespondent had ipso facto left the ministry andtherefore decided to dismiss him.
Following his dismissal Respondent was orderedto vacate the mission premises at Cana.
Prior to his dismissal the Executive Committeehad not afforded Respondent the opportunity tohe heard
3/ ... . (12)
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The decision of the Executive Committee wassubsequently confirmed by the Synod or Seboka.
Likewise, the Seboka had not affordedRespondent the opportuniby to be heard beforeconfirming the decision of the ExecutiveCommittee to dismiss the Respondent and evicthim from the mission premises at Cana.
The learned Resident Magistrate accepted this evidence and found that in dismissing Respondent, appellant had acted
against the principle of natural justice,audi alteram partem,
unconstitutionally and
unfairly
For these reasons the learned Resident Magistrate concluded that the decision to dismiss Respondent was invalid. The appellsnt could not therefore rely on an invalid decision to evict the Respondent. Appellant's claim was accordingly dismissed with costs
Appeal was filed to this Court against the decision of the learned Resident Magistrate and the grounds of appeal were that the Resident Magistrate erred in finding, as he did, that in dismissing Respondent, appellant had acted against the rule of natural justice, unconstitutionally and unfairly.
It has been contented before this Court that the relationship existing between the appellant church and the Respondent is that of employer and employee or master and servant. That the position obtaining at common law is that the master is entitled to dismiss the servant who deserts or neglects the work that has been assigned to him by the master That in the present case the Respondent who was posted at Cana Mission went to the University without permission.
4/ .... That in so doing
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That in so doing Respondent had deserted and appellant was therefore entitled to dismiss him without much ado.
The question of whether or not the relationship between the church and its priests is that of master and servant was settled an Lesotho Evangelical Church v John Matsaba bekako Nyebela CIV/ IN/15/60 at p. 7 et seq (unreported) in which Cotran C.J considered a long list of cases that had been referred to him in support of the proposition that the relationship between the church and its priests was one of contract between master and servant and concluded
"... They are no authority for the proposition that a priest of a church (of any denomination) is the servant of the governing body of that church Priests are not servants in a purely contractual sense . . ."
" . . The office of a priest is one of status and dignity ."
On this authority the contention that the relationship existing between appellant and Respondent is that of master and servant and on that basis appellant was entitled to dismiss Respondent, must be rejected.
It is common cause that by its litter of 27th August, 1979, the Executive Committee dismissed the Respondent and as a result ordered him to vacate the mission premises at Cana without first affording him the opportunity to be heard. The question is whether by so doing the Committee violated the principle of natural justice, audi alteram partem Cases of dismissal can be categorised into three classes dismissal of a servant by his master, dismissal from an office held during pleasure, ana dismissal from an office where there must be something against a man to warrant his dismissal - vide page 280 of Leading Cases In Constitutional and Administrative Law by O Hood Phillips. To decide whether the audi alteram partem principle applies in his dismissal it must first be determined in which category of dismissal cases Respondent's case falls. Under cases of dismissal of a servant by his master the common law position is that the master can terminate the contract with his servant at anytime and for any reason or for none.
5/ ... I have already
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I have already taken the view that the relationship between appellant and Respondent is not that of master and servant It follows therefore, that Respondent's case cannot fall under the classification of dismissal of a servant by his master.
As regards the category of dismissal from an office held during pleasure the law is that as the person having the power of dismissal need not have anything against the officer, he need not give any reason. For that reason, the officer has no right to be heard before he is dismissed. Respondent as a priest in the appellant church holds his office by virtue of his ordination and not during pleasure His dismissal cannot therefore fall under this classification.
The law regarding the third class of dismissal cases is that there must be something against a man to warrant his dismissal It is not disputed that the appellant church and the Respondent as a minister in that church are governed by their constitution It has been contested that the Respondent was dismissed under the provisions of Clause 205 of that constitution. Assuming that Clause 205 of the constitution is authority for a dismissal of a minister in the appellant church that clause clearly provides that a priest or minister should have left for unacceptable reasons, or joined the ministry of other churches without prior permission of the Seboka to warrant dismissal or to use the words of the constitution to "forfeit" his right in the ministry of the Lesotho Evangelical Church. Clearly there must have been something against the Respondent to warrant his dismissal under the provisions of Clause 205 of the constitution governing the appellant and the Respondent. That granted, I am left with no doubt in my mind that the dismissal of Respondent is a case falling under the third category. The legal position under this category is that an officer cannot lawfully i e dismissed without not only first telling him what is alleged against him but also hearing his defence or explanation That is to say the principle of natural justice, audi alteram partem applies. It is common cause however that in the present case, the Executive Committee did not afford Respondent the opportunity to be heard before dismissing him.
6/ For that
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For that reason the decision of the Committee to dismiss Respondent was unlawful and therefore invalid. It as also common cause that the Seboka subsequently confirmed the decision of the Executive Committee and dismiss Respondent without first telling him what was alleged against him and hearing his defence or explanation. By so doing the Seboka also violated the audi alteram partem principle and for that reason its decision was unlawful. For those reasons I hold the view that the learned Resident Magistrate was right in finding, as he did, that the dismissal of the Respondent was unlawful in so far as it violated the principle of natural justice.
It has been argued that by leaving Cana Mission, and going to the University without permission, Respondent had rendered himself subject for dismissal under the provisions of Clause 205 of the constitution. In my view the term "leave" in the context of Clause 205 means to abandon the priesthood or the ministry. It does not mean to absent oneself from parish duties. By going to the University, abandoning theministry or his priesthood To hold that a priest who absents himself from his parish duties without permission is subject for dismissal under Clause 205 would imply that a priest who does so, for example, to visit a friend could be dismissed under this clause. This would certainly be unacceptable and the term "leave" in the context of Clause 205 must mean priests who abandon their ministry or priesthood an the Lesotho Evangelical Church. But at no time did Respondent decide to abandon his priesthood. He could not therefore be dismissed under the provisions of Clause 205 of the Constitution. In any event, Respondent cannot lawfully be punished by dismissal before he. has personally been heard in terms of Clause 244 of the Constitution which provides
"A person should not be punished on false evidence. He will not be punished before he has personally given evidence before the Judges".
In the present case, we know what Respondent was dismissed by Appellant purporting to be acting under the provisions of Clause 205.
7/ . . From what
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From what I have said above, it is clear that I hold the view that in the circumstances of this case, Clause 205 is no authority for Respondent's dismissal At any rate Appellant could not have dismissed Respondent without first giving him a hearing in terms of the provisions of Clause 244 of the Constitution. I therefore agree with the finding of the learned Resident Magistrate that in deciding to dismiss Respondent without first giving him a hearing, Appellant's decision was unconstitutional If I may be permitted to digress a little here I wish to point out yet another irregularity committed by the Appellant. In dismissing Respondent, the treasurer was simultaneously instructed to immediately stop payment of Respondent's stipend. But the question of forfeiture of stipend by a minister who is relieved of his duties is governed by Clause 211 which provides inter alia that
"Whoever is relieved of hisduties in the ministry willalso forfeit his monthly stipendafter three months "
This Clause clearly does not authorise immediate stopage of payment o± stipend to a minister he is relieved of his duties in the ministry. Therefore, in ordering immediate stopage of Respondant's stipend, Appellant no doubt acted unconstitutionally
There is evidence that after the Executive Committee had dismissed Respondent, that Committee reported its decision to the supreme governing body of the Appellant church, namely the Seboka for final confirmation. At its meeting at Morija on the 30th August, 1980 the Seboka considered the Executive Committee's decision to dismiss Respondent and confirmed it
We know from the Constitution (Clause 131) that some of the members of the Executive Committe are members of the Seboka whose duties and responsibilities include to examine and acknowledge the report of the Executive Committee Clause 139 (c). From this it can be enferred that at the Seboka meeting of 30th August, 1980 some of the Committee members took part in the Seboka deliberations which resulted in the confirmation of the decision to dismiss the Respondent.
8/ ... Assuming
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Assuming it is correct that some of the Committee members sat as members of the Seboka at the meeting of 30th August, 1980 which confirmed the Committee's decision to dismiss Respondent the question arises whether such a decision could be considered valid. The principle of natural justice relevant to a situation like this is that "no man is a judge in his own cause". The Executive Committee had taken decision to dismiss Respondent. Its members were for obvious reasons interested in the confirmation of the decision taken by the Committee. They could not therefore sit in the meeting of Seboka to deliberate the question of confirming the decision of their own Committee to dismiss Respondent and use put the accusation that they have sinned against the principle the man is a judge in his own cause" I hold the view that the decision of the Seboka confirming the dismissal of Respondent by the Committee was on the basis of the above principle of natural justice, unfair and invalid. The learned Resident Magistrate cannot therefore be considered to have erred in so finding.
I come to the conclusion that Appellant's decision to dismiss Respondent was unlawful. As Appellant's claim for the ejectment of Respondent was based on that unlawful dismissal, it necessarily follows that it could not be allowed
I hold the view, that the appeal should not succeed and it is accordingly dismissed with costs
ACTING JUDGE B K MOLAI
For Appellant Mr. Ebershon For Respondent Mr. Masoabi