IN THE HIGH COURT
OP LESOTHO In the matter between:
LESOTHO EVANGELICAL CHURCH Applicant
J. C. MOROJELE 1st Respondent
S. N. MOMLOMI 2nd Respondent
E. K. MANDORO 3rd Respondent
D. M. MAFATLANE 4th Respondent
W. T. SEBETOANE 5th Respondent
B. LESOLI 6th Respondent
D. K. LESOLI 7th Respondent
A. NTLALOE 8th Respondent
G. KHECHANE 9th Respondent
S. T. SETLABA 10th Respondent
A. M. MACHEMA 11th Respondent
A. T. KOROTSOANE 12th Respondent
S. L. TSIKOANE 13th Respondent
J. R. MOKHAHLANE 14th Respondent
J. T. MARAISANE 15th Respondent
0. E. MOLETSANE 16th Respondent
P. L. PITSO 17th Respondent
L. S. NTSASA 18th Respondent
Delivered by the Hon. Acting Mr. Justice M. L. Lehohla
On the 26th day of January, 1987
On the 8th January 1987 applicant approached this Court
ex parte seeking an urgent relief couched in the following
terms, to wit, that an order be made for:
1. The granting of Rule Nisi calling upon the
respondents to show cause, if any, on a date to be dermined by this
The respondents each and all, jointly andseverally
shall not forthwith be restrainedfrom interfering with the
administration andrunning of the Applicant church and from
callingthemselves the Leadership of the church underthe
banner of Council of Priests or under anyother title whatsoever;
The Respondents each and all, jointly and
severallyshall not forthwith be directed to return thekeys
of the church administrators office at Morija.
The Respondents each and,all, jointly andseverally
shall not forthwith be directed tovacate the building of the
Church known asCasalis House, situate at Cathedral Area,Maseru
Urban Area and return occupation of thebuilding to the
Applicant's Executive Committee.
The purported abolishment of the Applicant;institution
namely the Seboka, the ExecutiveCommittee of Seboka,
Presbyteries and theirCommittees and Applicant's Advisory
Commissionsby the Respondents in their meeting held on the3rd
day of January, 1987 at Maseru shall not bedeclared null and
void and of no force andeffect.
The Respondents jointly and severally shall
not be directed to pay the costs of this application;
(f) The Applicant shall not be granted such
furtherand/or alternative relief as this HonourableCourt
shall deem fit.
2. That prayers 1(a), (b), (c) operate as interim
interdict with immediate effect.
The application was granted as prayed and the Rule Nisi
issued returnable on 26th January 1987 and an interim
Order was granted embracing a further prayer that
service of the order of Court and Notice of Application be effected
on the 1st,
2nd, 3rd and 13th Respondents and such service shall be
deemed to be proper service upon the Respondents.
In terms of a Notice of Intention to oppose, filed on
12th January, 1987, Respondents indicated in the last paragraph
that they anticipated the rule to 15th January, 1987 at 9.30
a.m. in the forenoon or so soon thereafter as the matter may be
See Rule 8(18) according to which "Any person against
whom an order is granted ex parte may anticipate the return
day upon delivery of not less than 48 hours' notice." This
anticipation was within provisions of the
However on the anticipated return day the matter could
not be proceeded with. Consequently it was agreed by the parties'
counsel to postpone the hearing till Monday 19th January
1987. On that day Mr. Matsau for applicant submitted that due to
of time and other circumstances beyond his control including
the fact that as Saturdays and Sundays are non dies he could
not manage to do all that was necessary to have the matter proceeded
with then; and accordingly prayed for the matter to
be postponed. Mr
Pheko opposed the prayer for postponement to 26th January 1987 on the
grounds inter alia that such postponement
made a mockery of the rule
that entitled respondents to anticipate. The Court however decided
that the matter should be postponed
to 26th January, 1987 and as a
mark of its displeasure against the applicant who seemed to be
basking in the security of the interim
order obtained ordered
Applicant to pay wasted costs of the day and ordered further that
those prayers which
/had been ...
had been granted ex parte should stand except the
one stipulating that service on the 4 Respondents referred to above
should be regarded as service on the
rest of the other Respondents.
On 26th January 1987 the application was argued before
me by Mr. Sapire for Applicant and Mr. Pheko for
At the hearing Mr. Pheko sought to raise and
argue in limine the constitutionality of the present Seboka,
its Executive Committee and its other major organs. However he was
proposing that the points appearing under head 2 of
his heads of argument should be determined first before arguing on
Consequently Mr. Sapire took the bit between his
teeth and argued the merits till completion and submitted that he did
not mind Mr. Pheko arguing his points in limine or
Mr. Sapire submitted that the submissions in
limine were not such at all; i.e. they were not submissions in
limine. Properly conceived points raised in limine
should deal solely with a founding affidavit. A point in limine
is akin to an exception. Therefore in deciding a point in linime
one may not have reference to an answering affidavit, a replying
affidavit, a plea or any affidavits subsequent to the founding
On maturer reflection I concluded that Mr. Sapire's
submission was valid and therefore consider that no breach of
procedure was occasioned by his insisting that he be allowed as
to proceed to argue for confirmation of the rule.
He thus queried respondents' contentions that the
applicant Church had not properly come before Court. In brief reply
thereto Mr. Pheko submitted that it was important to determine
the capacity of the party who has brought the
matter before Court and stated that it was not correct
that the points taken in limine should be regarded as akin to
exceptions confining one to founding papers as such. I disagree with
Mr. Sapire submitted that the Applicant Church in
as much as it can sue and be sued is properly before Court. As a
party that has been dispoiled
it is entitled to restoration of
its possession. As a Church it also has a right to protect its
assets. He argued that it is
not lawful to depose a lawfully elected
Seboka or Synod. Raising a deliberative question he asked "who
is going to come to
the aid of the Church against these priests'
usurpation of Church powers?"
Reference was made to Article 142 of the L.E.C. (i.e.
Applicant for short) Law Book which says "The Seboka Committee
use of Treasury funds (estimates) by consultation with
the Funds Commission".
He urged upon the Court that Article 34 has nothing to
do with what is the clear function of the Seboka Committee as spelt
Article 142 supra. Article 34 appears under Chapter 6 which
is a Chapter on The Law and sub-section (a) (iii) says:
" If there is a misunderstanding in the
interpretation of the rules, the interpretation to be followed is
The priest, in the Parish (at the meeting of the
consistory and at the meeting of the congregation) (b) an appeal may
be taken from
the parish to the presbytery, and from the presbetery
to the Seboka." This was a submission in reply to respondents'
(c) and (d). The purpose for referring me to this Article
/Article 147 ...
Article 147 which lists Seboka's working permanent
commissions from (a) through (n) makes the position clear above any
"Note:" in the penultimate line as follows:
"Committee has power to decide while Commission has power
to advise." (My underlining) Prom the underlined words it
should be clear that the Seboka Committee
has far greater and more
extensive powers than any of the Commissions of Seboka. It is not
inconceivable therefore that it can as
it did in this application
decide to bring what it perceives as urgent to the Courts of
Law without reference to Seboka if such action is taken to preserve
of Seboka. I find no conflict between what is
envisaged in this Article and Article 140 which says "The Seboka
that all plans of the Seboka are executed. It deals
with all matters that require attention when Seboka is not in
session." (My underlining)
Ad 8 of 1st Respondent's opposing affidavit it is
difficult to see how his averment can be believed and be taken as
true that Rev.
Mpobane was in agreement with respondents' actions at
Morija in the light of Rev. Mpobane's supporting affidavit at page 60
Rev. Mpobane corroborates Rev. Sibolla's para 5 re 4.11.
Mr. Sapire elaborating on respondents' actions
submitted as follows: "The respondents, without giving notice to
anybody or giving notice
to the Church itself, had a meeting early in
January in which they passed a resolution (Annexure C2 the translated
version of the
unmarked preceding minutes headed "Meeting of
Ministers of the Losotho Evangelical Church Maseru 3rd January, 1987
affairs of the Church" signed by all the
respondents except 14th Respondent (J. R. Mokhahlane) deposing the
Seboka or Synod
taking control of the Church". Demurring at the
fact that such a thing happened and expressing the view that truth is
than fiction he referred me to the portion of the resolution
" We as priests of the Lesotho Evangelical Church
are pressed by the vows we have committed ourselves before God and
to take steps we are endeavouring on. We call on the
Church as a whole that we have vowed and so we shall preach and
oneness of the Church."
"And the first thing they do in order to achieve
the oneness of the church they say "We declare
that from 5th day of January 1987 the.
following Church bodies : The Seboka and its Committee,
the Presbyteries and their Committees are suspended from operating
in all the affairs of Lesotho Evangelical Church."
Mr. Sapire held in question their source of power
and or authority to sit there in a Committee of their own and in (b)
on page 18 to say:
" All committees to the bodies mentioned above
should cease their functions, all business of the parishes,
Consistories and small
councils shall be left in the Control of the
Priest in charge. All Parish Priests should function
subordinately to the newly
established Council of Priests."
Indeed the Constitution has been perused and nowhere
does it provide for a body called Council of Priests.
He further submitted that "these people without
caring to give notice to anybody sat in Maseru and deposed the Seboka
said "all parish Priests from Now are subject
He submitted that incredible to perceive they maintained
that authorities running the Church institutions would
continue to function under the so-called Council of Priests, and
declared that the whole administration under Lesotho Evangelical
Church would be under their Council which is a non-entity in as
as it does not appear in the constitution of the Lesotho Evangelical
Likening this to a "Hi-jack" Mr. Sapire
further submitted that the respondents without any authority or force
of law whatsoever, unilaterally and without notice to anybody
concerned usurped power. For that the Law sees only one remedy,
namely a Spoliation Order. The interim order had been granted
it appeared that pursuant to their Resolution the respondents had
taken over certain Church buildings including the Casalis
Maseru and possessed themselves of Church property as deposed to by
the deponent to the founding affidavit and affirmed
by Rev. Mpobane.
That order was aimed at restoring the situation. That was the relief
sought. But startling to observe the answer
that cornea in response
to that interim order is an emphatic assertion that the Church is not
entitled to bring this application.
In other words the Church is
being told that it has no right to function. Why? Because certain of
the bodies, the Presbyteries
and the Consistories which appoint the
Members to the Seboka appointed some people, apparently, who should
not have been appointed.
But they were elected notwithstanding that
they would not qualify as delegates.
Mr. Sapire submitted, and with this I agree, that
the responding affidavit is completely a statement of what
respondents think the position
to be. It is supported by no
evidence whatsoever. He gave an illustration to cure the
misapprehension that respondents seemed to
be labouring under as
/".... They overlook ...
" they overlook the essential point that, if one
or two or more of the members of the Seboka are not
properly appointed, this means there are no people who should be
Members of the
Seboka - that does not mean that the Seboka is not
properly constituted, but that there are vacancies, thus the Seboka
continue to act and fill in the vacancies if these people
are incorrectly or have been incorrectly elected. It does not mean
Church comes to a stop." Referring to the Constitution at
this stage he pointed out that it provides for there to be a quorum.
But a quorum does not imply that there should be a hundred percent.
Indeed pages 5 and 6 of the Constitution set out the quorums
various articles of Chapter 4." For instance under Article 17
(c) it is stipulated that :
" In the number representing priesthood ordained
priests will constitute a number not less than one third of all
members of Seboka
Article 19(b) specifies that '
" the number of representatives of each presbytery
shall not exceed ten and it shall not be less than four."
In (c) it is stated that "In the number of
representatives of each and every presbytery, the Executive Committee
of Seboka will
take care to ensure that at least one envagelist is
Members gathered from these various categories
ultimately come to form what is set out in Article 18(a) and known as
consisting of 72 members of which under
forty eight (48) members are delegates
Ten (10) are members of the Executive
Committees(Committee of Seboka)
/(d) Six (6) ...
Six (6) are representatives of various
majorinstitutions/works of the church;
Two (2) members are representatives of mothersunion
and of the Evangelist Association.
Six (6) members are nominated by the Executive
In Chapter 6 matters relating to quorum are set out.
Article 30(a) specifies that
" For the Seboka to have lawfully set or convened
at least two thirds of members should be present. When Batters
Law are discussed, a decision may be reached when at
least half of the
members are present."
With regard to changing of the law Article 31 says "The
laws or rules of the Lesotho Evangelical Church shall not be debated
upon unless at least two thirds of the Seboka are present at a
Article 32 stipulates that "Changes to the
constitution may be effected if three quarters of the members
present at the
meeting of Seboka when it (constitution) is discussed
Respondents in their action cannot be said to have
complied with Article 32 yet in their resolution they purport to
change the whole
administration of the Church. the running of whose
affairs is based on the Law Book in which the above quoted Articles
The defect that was pointed out by Mr. Sapire in the
constitution was with regard to how the ten members appearing in
are elected. However the
Church has been in existence since 1833 and appears to
have functioned very well for over a hundred and fifty years and this
problem does not seem to have arisen.
In his founding affidavit Rev. Sibolla deposes that he
is an ordained Minister and president of the Executive Committee of
of the Applicant, and is duely authorised to make this
affidavit. A copy of the Resolution has been annexed to his affidavit
"A" signed by the Executive Secretary of the
Committee of the Applicant Church which is entitled to sue in its own
in terms of the Rules.
Mr. Pheko has submitted rather lengthy heads of
argument devoted to consitutionallty of the Seboka, the Committee of
Seboka and other bodies
constituting the Applicant Church and also
challenged the President's election as invalid and unconstitutional.
When shown by Counsel
for the Applicant that respondents' response to
the application before Court is irrelevant in that regard, Mr.
Pheko submitted that because Rev. Sibolla averred the capacity in
which he deposed to the founding affidavit on which applicant relies,
therefore the question of constitutionality was brought into play not
by respondents but by Rev. Sibolla's founding affidavit. I
with this submission. As pointed out by Mr Sapire the
points in limine are intricately linked with the merits. Of
significance is the fact that Mr. Pheko submits that by saying
he is authorised to bring these proceedings before Court Rev. Sibolla
"impliedly means that ho is
constitutionally there". My
view is that Rev. Sibolla's averment is merely incidental. This
averment was not
bringing into these proceedings the question of his
constitutional capacity. In any event the question of his
is of such fundamental importance that
if he meant to let it be of consequence in this proceedings he would
have explicitly done so rather than in a manner which, in Mr.
Pheko's submission, is implied.
All that Rev. Sibolla was doing was to give a basis for
his assertion that facts deposed to are within his personal
I was referred by Mr. Pheko to the case of
LESOTHO EVANGELICAL CHURCH vs NYABELA L.L.R. 1980(2)
466 in aid of his submission that because one Masilo who was at
loggerheads with respondent was a member of the Executive
and of the Seboka which made their decision to transfer respondent
participated in the formulation of that decision Cotran
declared the whole of that decision null and void.
My reading of that judgment satisfies me that for the
decision that he took Cotran C. J. as he then was relied on the view
office of a priest is one of status and dignity."
To drive home his point Cotran C.J. said at 475 "There is
the Constitution of the L.E.C. to support the contention
that as between them and their priests there is a service agreement
breach of which renders the L.E.C. liable in damages only."
This was in reaction to L.E.C.'s counsel's submission that the
relationship between the L.E.C. and the respondent (Nyabela) was one
of contract between master and servant and that if his dismissal
wrongful his only remedy
was in damages for he could not be reinstated as the
position had in any event been filled, further that no servant could
on an unwilling master.
Mr. Pheko referred me to the constitution and
argued that the Seboka is the highest governing body in terms of
Article 139 which spells out
the responsibilities of the Seboka and
urged that Article 140 should not be read in isolation from Article
139. Article 140 as pointed
out earlier gives the Seboka Committee
powers to deal with all matters that require attention when the
Seboka is not in session.
He argued that that power should be read in
conjunction with the overall responsibility of the Seboka being
the highest governing
body of the church lest a situation arise where
the Seboka Committee having taken a decision which is final in nature
on behalf and
in the name of the church without the consent,
knowledge and approval of the Seboka would seem to have ousted the
Seboka and deprived
it of the power it retains of the overall
control. He thus urged on me to give consideration to provisions of
Article 127 which says
"Seboka assembles once in two years; the
Committee may call the Seboka to meet any time if necessary." He
that compliance with this Article would have
legitimised the bringing of these proceedings before Court.
My reading of Articles 139, 140 and 127 results in no
conflict at all. While Article 140 empowers the Seboka Committee to
all matters that require attention when Seboka is
not in session, it seems to me that Article 139(c) is calculated to
cure whatever requires
to be put right by Seboka done in its name
/it was ...
it was not in session in that it says the Responsibility
of the Seboka (is) to examine and acknowledge the report of the
This seems to me to have the merit of ensuring
that the church business does not come
to a halt regard being to the fact that the Seboka meets
only once in two years.
In keeping with the spirit of Article 139 Article 127
says the committee may call the Seboka to meet anytime if
necessary. It is significant that the word used is may and
not shall. Therefore it is clear that the requirement to
call the Seboka when it is not in session is in the discretion of the
Committee which is empowered to deal with all matters as spelt
out in Article 140.
The argument therefore cannot hold that there is danger
that the Committee might commit the Seboka to its detriment because
the matter to Courts of Law where dicisions likely to
come are of a final nature there can be no harm unless
implicit in that argument is the suggestion that Courts of Law would
not do justice to the matter in point.
The Court in interpreting the
Articles of the constitution has a duty to preserve its sanctity and
not to do violence to its terms
Mr. Pheko expressed regrets that the copy of the
constitution placed before Court is not an original Sesotbo text but
an English translation.
He expressed doubts whether the effective
words in Article 127 were accurately translated.
In my view however whether by accident or through the
ingenuity of the translators the translation is what
/it is ...
it is, it seems to have one salutary effect for purposes
of interpretation: the relevant articles accord with one another. C/F
later pretandi mudus est sic leges interpreteri ut
leges legibus concordant."
As for the counter - Application filed by the
respondents it seems to be self-defeating in as much as it is
directed against a party
whom they do not regard as before Court.
Moreover members of the Seboka Committee have not been served in
terms of the rules therefore
it is not certain upon whom the order
would be served if it were to issue.
In this connection Mr. Pheko submitted that the
applicant's Counsel's objection was to form and not to substance. I
wish to draw attention however to the decision
in C. of A. (CIV)
No. 16 of 1984 Kutloano Building Construction vs Matsoso &
2 Ors (unreported) where at page 7 Schutz P said "I am
afraid that my decision may smack of the triumph of formalism over
substance. But forms are often important and the
requirements of the sub-rule are such."
Mr. Pheko singled out portions in the Notice of
Mortion and pointed out portions in the Notice of Motion and pointed
out that they do not amount
to spoliation. He illustrated his
contention by referring to the paragraph reading: (applicant
prays for an order) - restraining
the respondents from interfering
with the administration
and from calling themselves the leadership ....
under the banner of the Council of Priests "
but grudgingly conceded that C looks like spoliation. In
a more or less similar situation i.e. PRENTICE HALL 1935(2)f95
LOTHIAN vs WILLIS, where respondent had denied
forcible or other wrongful dispossession and said that
applicant's son had acquiesced in the removal (c/f present
regarding Boyce Mpobane's promise to
cooperate with them in their act) of applicant's servants from the
premises, it was held that
although there was considerable conflict
of evidence, the Court was satisfied that applicant had been
order was accordingly granted with
It would seem futile in my view that in spoliation
proceedings where indeed one or two items in the application show
that it is appropriate
to grant the order such order should be either
withheld suspended or refused because some constituent items of the
best be met by resort to some other remedies. In a
ship destined to sink it is no use hoping that it would not do so
of its constituent parts when dismantled from the main
body are capable of floating on their own.
Mr. Pheko held in question the basis of urgency
and implied that relief could be afforded at the hearing in due
course. But SHAIK DAQOOD vs W. AND M.LURIE P.H. 1934(2) A.44
where it was held that important and complicated issues had often to
be decided on affidavits e.g. trade mark
and sequestration cases.
See also MAHOMED vs MALK 1930 T.P.D. 61. "Moreover, there
was a clear practice to that effect in spoliation case
because these were as a rule matters of urgency." (my
underlining) See also NINO BONINO vs DE LANGE 1906 T.S. 120 where
Ines C.J. at 122 said "where there was a forcible
the Court will summarily restore the status quo ante, as a
preliminary to any enquiry into the merits of the dispute.
/It is ....
It is on the basis of the authorities cited above that
an inquiry into the constitutionality of the applicant church or the
of the credentials of occupiers of its various
Commissions, organs the Seboka Committee including the Seboka itself
must give place
to the restoration of the status quo. c/f
NIENABER vs STUCKEY 1946 A.D. 1050 at 1059 Greenberg J.A. says
"the words ....
seem to connote anything which touches or affects or
disturbs the possession and not to require complete
deprivation." It is to be wondered how respondents' actions
within the above quoted proposition of the law
in view of respondents' Counsel's submission that ...." in fact
have not in anyway despoiled the church, because as
clearly indicated in their resolution which has not been denied they
the property on behalf of the church. They have actually
indicated that when they got to Morija they even took the funds of
and banked them in their account of the
church." How employment of means such as outlined above can help
"maintain the oneness of the church " ad 4
of C2 escapes my
understanding. The wisdom is plain to discern in the words "A
bishop can make the condition of his own church
better, but by so
means worse: melioram conditionem ecclesiae suae facere potest
praelatus deteriorem neguaquam. Co. Litt. 337.
It was urged on me that none of the members of Seboka
Committee was deapolled. It was contended therefore the proper
persons to have
brought these proceedings would be Mpobane and or the
Executive Committee Secretary none of whom is a member of the Seboka
The reason submitted for this proposition is that they are
the people who were in actual possession of
things complained about by the applicant. But see
SCHOLTZ vs FAIFER 1910(1) T.P.D. 243 at 248 where Innes C.J. says
" to preserve his possession (he) must take some
special step, such as placing a representative in
of the work or doing something to enforce right
to its physical control." That Mpobane and the
Executive Committee. Secretary were holding property in their care in
capacity of the Seboka Committee cannot be faulted
as it is in line with the above quoted authority. See also Yeko vs
Qana 1973 (4)
It is inconceivable that the administration of a body
cast in a democratic concrete such as that of the applicant church
be exterminated or replaced without resort to means
incorporated in the Constitution to realise that end. There are
starting from the congregation (the grassy--roots
level) through Consistories, Parishes, Presbyteries and ultimately
the Seboka through
which any necessary and desirable changes can be
debated, nurtured and ultimately put into effect in a dignified and
that befits the phrase "maintenance of the
oneness of the church."
It is to be wondered what the future would hold for a
body conceived in mutiny: nothing except further mutinies resulting
splinter groups (all inspired and pressed by their
vows), and final disintegration of the church. Is it not consonant
justice and equity that anything should be dissolved by
the same means by which it was bound?? See Broom's Leg. Max. 6th
Ed., 832 and 2 INST. 359. Indeed to argue otherwise would
be to bid defiance to reason and fly in the face of common sense and
logic. I know no law - that
can give effect to
such a view and cannot therefore cherish it.
One doubts the sincerity of respondents' assertion in C2
on page 15 that they object to solution of Church matters through
of Law if in the same breath they strain as they did to leave
applicant no option but to seek relief in those Courts. As submitted
by Mr. Sapire the Constitution provides sufficient channels
through which Church matters can be solved by resorting to local
remedies. But spoliation
is the form of relief that only Courts of
Law can grant due to the nature of circumstances that necessitate it.
It makes not much
difference whether priests number 71 or 61. That
does not give authority to the present 18 respondents to subvert the
Thus I find no merit in the group of 18 respondents'
claim and their sanctimonous attempt at representing and
holding themselves out as the quintessence of virtue and
incarnation of grace and piety under the banner "Council of
pressed by their vows to God and His Church."
Applicant has adequately made out a case for spoliation
order. Further more it has been sufficiently demonstrated that the
in limine advanced by respondents should have had
reference to the applicant's founding affidavit and not to any
subsequent affidavit. Mr. Sapire confined his prayer to the
order of spoliation. He however answered to the points raised
in the counter application. It is fitting
therefore that an order
relating to this be pronounced also.
It was for reasons set out above that I granted the
application as prayed and refused the counter
application with costs.
M. L. LEHOHLA ACTING JUDGE
26th January, 1987
For the Applicant : Mr. Sapire For the Respondents
: Mr. Pheko
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