HIGH COURT OF LESOTHO
JOSIASE METSING LEKHANYA APPLICANT
EVANGELI LESOTHO RESPONDENT
by the Honourable Mr Justice T. Nomngcongo on the 23rd September.
an Application for review of the disciplinary proceedings by the
Respondent which resulted in the termination of Applicant's
employment with the Respondent church. It is couched in the following
the decision and/or proceedings of the Committee of Seboka and that
of the Seboka of the Respondent dated 18th February 1998
April respectively removing the Applicant from Priesthood be
received, corrected and or set aside.
the Respondent be ordered to pay costs of this application in the
event of opposing orders sought herein.
Applicant be granted such further and alternative relief, (sic)
founding affidavit the Applicant says the Respondent is a religious
institution with its head-office at Morija. I will refer
to it as the
Church. He is not only a member but also a priest of the church. He
says following disciplinary charges of adultery
he was dismissed by the Respondent Church. It is this dismissal that
he seeks to be reviewed, corrected and
or set aside on the ground
essentially that in arriving at the decision the rule of natural
justice that one cannot be judge in
one's own cause has been flouted.
This is denied by the Respondent who claims that in the circumstances
Applicant had had a fair
is the summary of events leading up to the dismissal of the Applicant
as garnered from both the founding and answering
affidavits, and they
are by and large common cause:-
during 1997 - the date is not specified - the Applicant was arrested
and subsequently charged with a sexual offence and
arraigned in the
Subordinate Court for the district of Mohale's Hoek.
result, a sub-committee of the Seboka which is apparently the
highest authority of the Respondent church at least as far
disciplinary matters are concerned, was formed to investigate the
matter on behalf of the church. The Committee consisted
of and I
quote from the answering affidavit at par. 4 " its Executive
Secretary, Reverend T.S. Lentsoenyane, its Deputy
A.M. Thebe and the moderator of the Maphutseng Presbytery
Reverend J.L.Thai." I get the impression that the Reverend L.S.
Lentsoenyane was the chairman. The sub-committee heard evidence
various sources including the alleged victim of the sexual offence.
The Applicant was present and was allowed to present his
the 24.10.1997 the Committee of Seboka of which the Reverend
Lentsoenyane is Executive Secretary decided to suspend Applicant
from duty and have him removed from his duty station as it was
alleged, and this is denied by Applicant, that congregants were
becoming restive because of his presence at the Parish.
the 28.10.1997, the Reverend Lentsoenyane in his capacity as
Executive Secretary of the Committee of Seboka wrote to the
Applicant informing him of the decisions and it
appears that the letter was delivered personally by him in the
company of the Chairman of the Presbytery. He was given one day
pack and go. Not surprisingly he complained bitterly indicating in a
letter written to the Executive Secretary that it was most
expect him to round up his affairs within one day. He pointed out for
instance that he had children at school for whom
he had to make
alternative arrangements. In the circumstances he did not move from
the manse and this, I may point out, resulted
in the second
disciplinary charge against applicant - that of insubordination.
the 10th February 1998 the Reverend Lentsoenyane again wrote to the
Applicant advising him of the disciplinary charges against
alleging adultery and insubordination as aforesaid. The letter goes
on to say, in the undisputed translation "....you
to attend the meeting, if you
so please, to answer the charges and defend yourself in any manner
you may wish together with your witnesses, if any". (My
emphasis) The tone of the letter suggests that his attendance was
the 18th February 1998, the disciplinary Committee of the Seboka
then sat to consider applicant's case and right there among
panel and participating was the Reverend Lentsoenyane. Before
presenting his defences to the charges the Applicant immediately
pointed out that he did not expect justice from the adjudicating
body composed as it was. He was overruled and the committee
hearing any evidence a fresh proceeded with the case. No doubt in
the circumstance it must have relied on the findings
sub-committee that investigated the case headed by none other than
the Reverend Lentsoenyane. Other than him in attendance
other committee members, Toloane Makha and Etsang Moletsane.
decision of the committee was to strip the Applicant of all his
priesthood rights and to dismiss him from duty.
due course the matter went on appeal to the Seboka. Sitting there
with other members of the Seboka were Toloane Makha, Etsang
Moletsane and you guessed it, the ubiquitous Reverend Lentsoenyane,
The result was foregone. The decision of the Committee of
confirmed and the appeal dismissed.
position of a Priest has been described as one of status and dignity
and to which rules of natural justice must apply and to
with that of a Principal and a Student as Mr Sello suggested is
The submission that those principles and in particular the principle
of nemo judex in sua causa (one cannot be judge
in his own cause)
apply to the applicant, is a valid one. This is a principle of our
law and it is enshrined in the Holy Scriptures.
An instance of
disqualification under this rule was underscored by Cotran CJ. (as he
then was) quoting with approval from Prof
de Smith, Judicial Review
of Administrative Action 1973 Ed. at pp. 237/238.
"He is however disqualified if he has personally taken an active
part in instituting the proceedings, or has voted in favour
resolution that the proceedings be instituted for then he is in
substance both judge and jury."
Evangelical Church v John Matsaba Bokako Nyabela 1980 (2) LLR 466 at
present case the Reverend Lentsoenyane has had his finger in the pie
at every stage of its preparation. When the Applicant
at the onset
complained that he feared that he would not be fairly treated he must
have had him in his mind. Not only did he write
him letters in
connection with the case, he also as in one instance delivered them.
The tone of the letters, although, the Reverend
professes to be
acting on instruction, surely must also reflect the attitude of its
author and that attitude is one lacking of
sympathy to say the least.
The Applicant interprets the letters as outright hostile and I don't
blame him. For instance, it goes
against the grain of Christianity
itself to ask its own pastor to pack and go from his station within
one day. The Reverend Lentsoenyane
was part of this decision.
held in the case of Nyabela (supra) that:
"The subjective feelings of the party aggrieved must
be in any event be taken into account in deciding the issue........
Was there a real likelihood of bias or a reasonable suspicion
bias." Real suspicion "of bias consists of the
apprehensions of a reasonable man aware of the material facts.
suspicion tests are said to look mainly on outward
appearances," real likelihood "tests are said to focus on
evaluation of the possibilities."
circumstances resembling the present case the learned Chief Justice
went on to conclude:
"Whichever test is applied, I reach .......... the
conclusion......that Mr. Masilo was disqualified and if one person is
disqualified the decision of the whole tribunal is invalid." (My
likelihood if bias on the part of the Reverend Lentsoenyane in the
present case is glaring. Not only that, but two other
the bandwagon and sat both at the hearing and on appeal.
to me that the Respondent Church does not learn. It did the same
thing in respect of the Reverend Mandoro. In CIV/A/11/81
Evangelical Church v E.K. Mandoro, my brother Molai A.J. as he then
was had occasion to remark:
" The Executive Committee had taken the decision to dismiss
Respondent. Its members for obvious reasons [were] interested
confirmation of the decision taken by the committee. They should not
therefore sit in the meeting of Seboka to deliberate
the question of
confirming the decision of their own committee to discuss Respondent
and escape the accusation that they have sinned
against the principle
"no 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 so do
I in the present case.
has argued that the Applicant is estopped from claiming that he was
unfairly dismissed because he accepted termination
of his services.
There is no merit in this argument. Firstly the Applicant's
acquiescence, if such it was, cannot validate invalid
Secondly, the circumstances under which the letter was written cannot
be interpreted as waiving Applicant's right
of recourse to the
courts; it was a letter between legal representatives and we do not
know what compromise they were reaching.
This is rendered even more
equivocal in the light of the Applicant's expressed distate for
to the courts of law in one of his correspondences with the
circumstance Application is granted with costs as prayed for: The
order that I make is that the decision of the Committee
of Seboka and
that of Seboka removing the Applicant from Priesthood is hereby set
aside and declared null and void.
Applicant : Mr Phafane
Respondent : Mr Sello
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