CIV/APN/8/87
IN THE HIGH COURT OP LESOTHO In the matter between:
LESOTHO EVANGELICAL CHURCH Applicant
and
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
JUDGMENT
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 Honourable Court why:
/(a)
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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
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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 thereof 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 heard. 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 rule.
However on the anticipated return day the matter could not be proceeded with. Consequently it was agreed by the parties' respective counsel to postpone the hearing till Monday 19th January 1987. On that day Mr. Matsau for applicant submitted that due to brevity 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
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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 respondents.
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 interrupted while proposing that the points appearing under head 2 of his heads of argument should be determined first before arguing on the merits. 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 anything thereafter.
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 affidavit. 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 applicant 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
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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 this contention.
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 plans the 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 out in 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 that if:
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' head 4 (c) and (d). The purpose for referring me to this Article escapes me.
/Article 147 ...
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Article 147 which lists Seboka's working permanent commissions from (a) through (n) makes the position clear above any ambiguity ad "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 the interests of Seboka. I find no conflict between what is envisaged in this Article and Article 140 which says "The Seboka Committee sees 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 where 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 - Unsatisfactory affairs of the Church" signed by all the respondents except 14th Respondent (J. R. Mokhahlane) deposing the Seboka or Synod and themselves
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taking control of the Church". Demurring at the fact that such a thing happened and expressing the view that truth is stranger than fiction he referred me to the portion of the resolution which reads:
" We as priests of the Lesotho Evangelical Church are pressed by the vows we have committed ourselves before God and His Church 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 maintain the 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 and subsequently said "all parish Priests from Now are subject to us".
He submitted that incredible to perceive they maintained
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that authorities running the Church institutions would continue to function under the so-called Council of Priests, and they declared that the whole administration under Lesotho Evangelical Church would be under their Council which is a non-entity in as much as it does not appear in the constitution of the Lesotho Evangelical Church.
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 because it appeared that pursuant to their Resolution the respondents had taken over certain Church buildings including the Casalis House in 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 follows:
/".... They overlook ...
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" 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 can still continue to act and fill in the vacancies if these people are incorrectly or have been incorrectly elected. It does not mean the 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 in 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 (Synod)"
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 included."
Members gathered from these various categories ultimately come to form what is set out in Article 18(a) and known as Seboka (Synod) consisting of 72 members of which under
forty eight (48) members are delegates representingpresbyteries;
Ten (10) are members of the Executive Committees(Committee of Seboka)
/(d) Six (6) ...
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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
Committee.
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 affecting the 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 meeting."
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 so decide."
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 are constituent parts.
The defect that was pointed out by Mr. Sapire in the constitution was with regard to how the ten members appearing in Article 18(c) are elected. However the
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Church has been in existence since 1833 and appears to have functioned very well for over a hundred and fifty years and this particular 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 the Seboka of the Applicant, and is duely authorised to make this affidavit. A copy of the Resolution has been annexed to his affidavit marked "A" signed by the Executive Secretary of the Committee of the Applicant Church which is entitled to sue in its own name 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 disagree 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
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bringing into these proceedings the question of his constitutional capacity. In any event the question of his constitutional capacity 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 knowledge.
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 Committee and of the Seboka which made their decision to transfer respondent participated in the formulation of that decision Cotran C. J. 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 that "The office of a priest is one of status and dignity." To drive home his point Cotran C.J. said at 475 "There is nothing in the Constitution of the L.E.C. to support the contention that as between them and their priests there is a service agreement the 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 was wrongful his only remedy
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was in damages for he could not be reinstated as the position had in any event been filled, further that no servant could be foisted 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 accordingly submitted 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 deal with 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 when
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it was not in session in that it says the Responsibility of the Seboka (is) to examine and acknowledge the report of the Seboka Committee. 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 Seboka 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 in bringing 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 or Articles.
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
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it is, it seems to have one salutary effect for purposes of interpretation: the relevant articles accord with one another. C/F "Optimus 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
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forcible or other wrongful dispossession and said that applicant's son had acquiesced in the removal (c/f present respondents' allegations 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 dispossessed, "spoliation order was accordingly granted with costs."
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 application would 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 because some 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 dispossession, the Court will summarily restore the status quo ante, as a preliminary to any enquiry into the merits of the dispute.
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It is on the basis of the authorities cited above that an inquiry into the constitutionality of the applicant church or the questionability 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 accommodate themselves within the above quoted proposition of the law in view of respondents' Counsel's submission that ...." in fact the respondents have not in anyway despoiled the church, because as clearly indicated in their resolution which has not been denied they are holding the property on behalf of the church. They have actually indicated that when they got to Morija they even took the funds of the church 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 Committee. The reason submitted for this proposition is that they are the people who were in actual possession of
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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 charge
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 the representative 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) S.A. 735.
It is inconceivable that the administration of a body cast in a democratic concrete such as that of the applicant church can just be exterminated or replaced without resort to means incorporated in the Constitution to realise that end. There are various levels 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 democratic manner 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 in several splinter groups (all inspired and pressed by their vows), and final disintegration of the church. Is it not consonant to natural 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
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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 Courts 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 Church Administration.
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 Priests 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 points 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
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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