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

1. 
   The appellant is a church organisation of which
   the
   Respondent is a member and a priest

   
   

2. 
   There is a constitution by which the appellant
   and
   its members are governed.

   
   

3. 
   The highest governing body of the appellant
   church
   is the Synod or Seboka

   
   

(4) The Synod or Seboka has an Executive Committee.

5. 
   The Respondent was at all material times posted
   as
   the priest-in-charge at Cana, one of the
   parishes run by the
   appellant church in this
   country,

   
   

6. 
   Early in 1979 Respondent applied from the
   Executive
   Committee for a study leave to
   further his studies at the
   National University
   of Lesotho

   
   

7. 
   Respondent's application was unsuccessful.

   
   

8. 
   Notwithstanding that his application was
   un­
   successful, Respondent went to the University.

   
   

9. 
   The Executive Committee held the view that
   Respondent
   had ipso facto left the ministry and
   therefore decided to dismiss
   him.

   
   

10. 
    Following his dismissal Respondent was ordered
    to
    vacate the mission premises at Cana.

    
    

11. 
    Prior to his dismissal the Executive Committee
    had
    not afforded Respondent the opportunity to
    he heard

    
    

3/ ... . (12)

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12. 
    The decision of the Executive Committee
    was
    subsequently confirmed by the Synod or Seboka.

    
    

13. 
    Likewise, the Seboka had not afforded
    Respondent the
    opportuniby to be heard before
    confirming the decision of the
    Executive
    Committee to dismiss the Respondent and evict
    him
    from the mission premises at Cana.

    
    

The learned Resident Magistrate accepted this evidence
and found that in dismissing Respondent, appellant had acted •

1. 
   against the principle of natural justice,
   audi
   alteram partem,

   
   

2. 
   unconstitutionally and

   
   

3. 
   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

- 5 -

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 his
duties in the
ministry will
also forfeit his monthly stipend
after 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

- 8 -

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