CIV/APN/61/89

IN THE HIGH COURT OF LESOTHO In the
Application of :

OPEN BIBLE MINISTRIES 1st Applicant
BRUCE
BURKE 2nd Applicant

vs

RALITSIE NKOROANE 1st Respondent

SEPHIWE
ALPHEUS MAKHUBU 2nd Respondent

REASONS FOR JUDGMENT

Filed by the Hon. Mr. Justice M.L. Lehohla on the 11th
day of January, 1991

On 15th February, 1990 this Court confirmed the rule
with costs.

The following are the reasons for that decision.

In an ex-parte application moved on 21st March 1989 the
applicants sought a Rule Nisi requiring the respondents to show cause
why

(a) they shall not he restrained from holding themselves
out as authorities of the Open Bible Ministries of Lesotho - O B M
for short
- until their suspension from membership of the society has
been lifted.

(b)they shall not he restrained from interfering with
the affairs of the O B M.

/(c) they

- 2 -

(c) they shall not he restrained from attempting to
register the site of O B M at Ha Pokane, Qalo, in the district of
Butha Buthe
in their names or as authorities of O B M.

The prayers under (a), (b) and (c) were ordered to
operate as an interim interdict by this Court. On an extended return
day almost
a year later the application was heard.

In a lengthy affidavit Bruce Burke has averred on behalf
of the applicants that O B M is a religious missionary society
registered
under the Societies Act 1966 under number 84/9 on 23rd
March 1984.

He further averred that O B M is a branch of a United
States of America missionary society known as Open Bible Ministries
Incorporated
with its headquarters at Honesdale County Wayne in the
State of Pennsylvania,U.S.A.

The U.S.A. Missionary Society extended its "pastorality
to Lesotho in 1982. In order to facilitate the proposed base of the
society in Lesotho Bruce Burke after taking advice for purposes of
registering O B M in Lesotho appointed the respondents to respective
positions of Chairman and Vice Chairman of Lesotho.

The deponent has filed along with this application a
Constitution marked "A" setting out the Directorate of O B
M. It was
in terms of Article XVII Section 6 thereof that the two
respondents were appointed committee members.

In his capacity as General Director the deponent
delegated the respondents to approach the Chief of Ha Pokane Qalo
with a view to
obtaining a site for O B M. This was done and a letter
of allocation marked "B" was secured and is before Court.

Article XVII Section 7 K.3 of Annexture "A"
shows

/that

- 3 -

that the entire missionary work was funded by General
Headquarters in Pennsylvania U.S.A. (G.H.Q. for short).

Because the deponent found that the respondents had not
properly accounted for monies received from various mission projects
in 1987/88,
and that they were not submitting any monthly reports and
thus were breaching provisions of Article XVIII Section 2A he sent
them
a letter dated 9th May, 1988 warning them about their conduct
leading to possible loss of their association with O B M. See
Annexture
"C".

Around August, 1988 the deponent suspended the
respondents from operations of the O B M because of their failure to
comply with Section
6 H.7 of Article XVIII.

The deponent averred that O B M had spent

M150,000 for buildings and improvements on the site. Of
this amount M100,000 came from G H Q.

The deponent complains that the deponents now claim the
O B M site as theirs. He avers also that the respondents despite
being invited
to a conference of O B M in January 1989, failed to
attend.

The O B M had resolved that the site allotted to it he
registered in accordance with the Land Law of Lesotho. When members
were informed
in January 1988 by some group of men that the chief of
Pokane Qalo had no power to allocate land, the respondents and others
were
detailed to investigate and rectify the position.

The deponent later received a report in August 1988 that
the respondents were trying to register the site in their own names,
the
intention being to oust the American leadership of O B M from the
site.

It was urged on the Court by the applicants to take note
of the fact that Jason van den Heuvel is a linkman and a
representative of
G H Q in so far as G H Q has any dealings with O B
M. See page 25F of the record which stipulates the

/functions

- 4 -

functions of a treasurer to the O B M. There is also a
NOTE appearing immediately below 25 F saying "In the absence of
a committee
on any field then all references to "committee"
shall revert to the O B M representative or liaison at this printing,
this
is Mr. Jason den Heuvel".

It would seem therefore in the teeth of Jason being
recognised by name in the constitution an argument that his affidavit
at page
73 is defective and fails to comply with the requirement that
it he administered by a Commissioner of Oaths or be authenticated is
not in the right hall park. In my view an acknowledgement in the
constitution giving identity and function of an individual cannot
be
prevailed upon by any breach of procedure in administering an oath to
him. The fact that his affidavit can be said to he defective
or even
non-existent cannot detract from the position that the constitution
accords him.

It is contended by the respondents that the 2nd
applicant is none of the things that he states he is hut just an
honorary ambassador.
But at page 63 the names, specimens signatures
and capacities of office holders clearly indicate that Bruce Burke is
a Director
while the 2nd respondent whose signature appears first in
the list of signatories has signed his name immediately below the
respective
designations of the three office holders. Surely if he
maintained that Bruce Burke is an ambassador he should have declined
to append
his signature below the contents of a document which in
clear and big letters shows that Bruce Burke is Director. Or if the
2nd
respondent recognised Bruce Burke as Director as his signature
below Bruce Burke's title seems to indicate he should not in these
papers have associated himself with the 1st respondent who regards
Bruce Burke as an honorary ambassador and nothing else.

It is indeed mystifying that after Bruce Burke has all
along been shown in all transactions as Director and recognised as
such it
should he suggested that a director is yet to he elected or
appointed.

/ The

-5-

The applicants' attorney submitted that there is no real
dispute of fact in this application.

The respondents concede that annexture "A" is
O B M'S Constitution. They suggest that O B M is autonomous. But
page 6
of the Constitution at.p. 19 of the record clearly states that
each officer shall sign a doctrinal statement every year and send
it
to G H Q.

Section 6 at p. 16 shows that each country shall have a
committee. Clause XVII 2(a) at 13 hinds every member to send
reports to
G H Q. This is the practice that the respondents followed
until they decided to seize control of O B M unilaterally. But the
point
is that there are sanctions if the doctrinal statement is not
signed by an office-bearer: He cannot continue in office. That is
the long and the short of it.

Significantly in their respective capacities as

chairman and vice-chairman-cum-secretary the respondents
arc of a lower rank than the Director.

Furthermore inasmuch as Clause XVII section 1 f under
the caveat shows that in the event of the committee not functioning
all powers
shall revert to O B M liason or representative Jason van
den Heuvel it seems logical to conclude that the constitution never
intended
the respondents to he the sole representatives of O B M.

Annexures "E" and "F" clearly show
that until June 1986 the authority of the 2nd applicant as Director
of O B
M was not questioned. It was only when the respondents
attempted to take over O B M that they started calling Bruce Burke a
foreigner.
Annexture "J" shows clearly that all money came
from U.S.A. through the Director. Thus the respondents' assertion
that
they do not know him is a falsity that should he interpreted
adversely against its authors; the respondents .

It is contended for the respondents that they were not
given an opportunity to be heard. It is to he wondered what

/opportunity

- 6 -

opportunity they could he given by a body they did not
recognise. Moreover nowhere do the respondents in papers make this
assertion
or complaint. This constitutes an unsubstantiated
submission. The evidence before me shows that the 2nd applicant on
page 6 para.
8.3 states that the respondents were invited to a
conference of O B M in January 1980 but they failed to attend. In
response thereto
the 1st respondent on page 50 stated

"Contents of this paragraph are admitted; second
applicant had no legal authority to hold a conference."

The 2nd respondent docs not dissociate himself from the

1st respondent's attitude in this regard. So clearly

they denied themselves the opportunity to be heard with
their

eyes open and of set purpose. Their contention being
that

they could not be heard by a body whose authority they
did

not recognise.

It was contended for respondents that there is dispute
of fact. But at p. 49 para. 7 their attorney does not deny that in
response
to information required of him by the other side he
portrayed the respondents' attitude as being that they were never
accountable
to the 2nd applicant

"who since 1987 appeared to he imposing himself
as
Director trying to take over the administration of
the 1st
applicant "

It is significant that in their deliberate misconception
of 2nd applicant's functions the respondents seek to read into the
2nd applicant's
discharge of his functions as Director something
different interpreted by them as imposing himself as Director trying
to take over
the administration.

Much store was laid on respondents' behalf by the fact
that the Constitution says it is imperative that the indigenous must
he used
as "foreigners cannot effectively evangelize the
populace." For this attitude the constitution relies on Paul's
missionary
activity which is said to have been five fold. One of
this being to establish

/local

- 7 -

local congregations. The submission in this regard
seems to ignore the fact that local congregations are to he
established in an
orderly fashion and not by usurpation of the still
existent authority. Moreover nowhere is it suggested in this
constitution that
refers to Paul that he at any stage countenanced
usurpation of church authority by local congregations. Furthermore
the constitution
does not say foreigners should not envangelise the
populace it only says they cannot effectively do so. Thus reference
on page 14
to these factors is merely an indication of how the
missionary business is to be run in order to be 'aggressive' and
ultimately made
effective. To suggest that it is wrong for the
mission to he run by foreigners and that it is therefore right to
forcefully topple
the properly constituted authority of the church is
not only wrong in principle hut disastrous in consequence.

It was contended for the respondents that G H Q is to he
in Lesotho. The constitution does not specify where the G H Q is to
he in
Lesotho. The respondents registered it in Lesotho knowing that
the G H Q is in the U S A. Thus they cannot he heard to say that
they arc correct in seeking to rely on their own fault.

In very brief hut relevant heads of arguments it was
contended for the applicants that rules governing application
proceedings show that affidavits constitute not only
evidence hut also pleadings; therefore answering affidavits should
contain what would he set out in a Plea plus evidence that
would have
been led in court. See Herbstein and van
Winsen - Civil Practice of the Superior Courts
in S.A. 3rd Ed. at p.79. Also Hart vs Pinetown Drive-In-Cinama
(Pty) Ltd 1972(1)
SA 464 at 469.

As so very often stated the
parties stand or fall

by
what is contained in their affidavits. See Herbstein et al at pp
80-81 - where there is dispute of fact which had been forseen
the
Court in its discretion may dismiss the application. See Rule
18(14) of the High Court Rules 1980.

/The

- 8 -

The rules of Court and indeed the practice itself
reprobate misuse of answering affidavits if employed to defeat
application proceedings.
Thus the words of Murray A.J.P. in Room
Hire Co. (Pty) Ltd vs Jeppe Street Mansions 1949(3) SA
1155 at 1165 are appropriate that

"..... A bare denial of applicant's material
averments cannot he regarded as sufficient to defeat applicant's
right to secure
relief by way of motion proceedings in appropriate
cases".

Thus the court has to ascertain -

(a) "Whether denials are not fictitious;
intented
merely to delay the hearing ... "

(b)"Respondent's affidavit must at least disclose
that there are material issues in which there is a bona fide dispute
of fact".

(c)"The right to make tactical denials to force

the opponent into the witness box must

perforce yield to the applicant's right to the more
expeditious and less expensive method of enforcing a claim by
motion".

(d)"Once the absence of such dispute of fact is

apparent applicant is entitled to have his
relief
given to him speedily and cheaply on
affidavits ".

It stands to reason that any disagreement with the
applicant that is disclosed in the replying affidavit is not enough.

As was stated in Engar & Ors vs Omar Salem Essa
Trust 1970(1) SA 77 at 83 "The Court must not permit simple
and blatant stratagems of denial to circumvent its effective
functioning".
The same case is authority for the view that "If
a statement constituting a denial is an inference from facts, the
affidavit
in question must disclose facts supporting the inference".
See page 83 F.

In Mashoane vs Mashoane 1962(2) SA 684 at 685 it
is stated that

"It may assist the Court to decide whether or not
it can he said on the papers as a whole that the denial in question,
which
constitutes the conflict is mala fide or unsupportable in all
the circumstances disclosed by the papers".

/I have

- 9 -

I have come to the conclusion that this is a case richly
deserving of speedy and cheap disposal by virtue of total absence of
what
one might call serious dispute of fact.

The rule is confirmed with costs and the respondents'
contentions dismissed as totally lacking in substance.

JUDGE
11th January, 1991

For Applicants : Mr. Maqutu For Respondents : Mr.
Matete