CIV/APN/4/05

IN THE HIGH COURT OF LESOTHO

In the matter between:

BENJAMIN M. MASILO & 5 OTHERS Applicant

VS

REV J.T. MAKAKANE & 35 OTHERS Respondent

JUDG MENT

Delivered by the Honourable Mr. Justice WCM Maqutu on the 16th February, 2005

In this matter applicants brought an application in which they were seeking an order in the following terms :-

1. Dispensing with the normal rules as to form and service on account of urgency and giving directions as to how the matter may expeditiously be heard.

2. That a Rule Nisi issue returnable on the date and time to be determined by this Honourable Court calling upon the Respondents to show cause (if any) why:-

1. Consistory elections and or any by elections for the replacement of the Applicants as church elders for the SEFIKA LESOTHO EVANGELICAL CHURCH, MASERU

scheduled for the 9th January, 2005 shall not be suspended pending the outcome of this application.

2. The decision of the Maseru Parish Consistory of the Lesotho Evangelical Church (LEC) rejecting the election of the applicants herein as church elders shall not be declared to be null and void and of no legal force or effect;

ALTERNATIVELY:

The decision of the Maseru Parish Consistory of Lesotho Evangelical church shall not be declared recommendatory unless and until tabled before, and approved by, the Sefika Lesotho Evangelical Church meeting of Phutheho ea balumeli;

3. The Applicants shall not be declared validly elected church elders of the Sefika Lesotho Evangelical Church;

4. The Respondents shall not be directed to pay costs hereof in the event of their opposition hereto;

5. That prayers 1 and 2 (a) operate with immediate effect.

This application was served on the respondents on the 5th January 2005 before it was moved before Monapathi J on the 6 th January 2005. There was already a Notice of Intention to Oppose dated 5th January 2005 filed of record when Monapathi J issued the following interim order:

1. By agreement, the elections scheduled for the 9th January, 2005 be and are hereby deferred to a later date pending the finalisation of this application;

2. The Respondents are to file their answering affidavits on or before the 12th January, 2005 and the Applicants may file replying affidavits (if any) by the 14th January, 2005

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3. The matter is postponed to the 18th January, 2005 to enable the parties to find a date of hearing once all affidavits have been filed.

The matter was postponed to the 11th February 2004. On this day it was argued before me and postponed to the 16th February 2004 for judgment.

Nature of the dispute

This is a dispute of the members of the Lesotho Evangelical Church. The organs of the church and their names is confusing even among the parties themselves because they have to translate their Sesotho constitution into English. In terms of Clause 137 the official language of synod (seboka) is Sesotho. Every four years all of the organs of the Lesotho Evangelical Church (from the lowest to the highest) have to go for elections. Every church whether it is the main church or its branch is expected to elect elders to help the evangelist or pastor in the running of that church. See Clause 148 read along with Clause 151 of the Constitution of the Lesotho Evangelical Church. These elders from the churches along with the pastor and evangelists constitute the parish council known as the consistory.

There is no dispute that on the 19th December 2004 the Sefika Church in Maseru elected its elders in terms of the constitution. Although the number of elders that were elected in the Sefika Church is not mentioned, both parties

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informed the court that they were 40 in number. It is common cause that 40 elders (among whom were applicants) were elected by the Sefika Church by members of the Congregation. Clause 152 of the constitution provides that the members of the congregation should elect people who qualify to be elected as Church elders. No specific qualifications for being an elder are stated in the constitution of the church.

The names of the 40 elders were (in terms of Clause 153) forwarded to the consistory for scrutiny which would be followed by confirmation by the consistory. Applicants were not confirmed by the consistory while the others elected with them as elders of the Sefika Church were confirmed. In a nutshell the applicants submission is that the consistory acted in a capricious and high-handed manner in not confirming them as Church elders like the others. Applicants are inter alia asking this court to declare them duly elected elders of the Sefika Church.

Applicants' Complaint

The applicants say they do not know if they were not confirmed because they are not in good and regular standing in much as they might be in breach of the basic tenets of clause 46, and Chapter 19 of the Church Constitution. They have been kept guessing. This causes them to have self-devouring doubts.

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They also believe the situation they have been put in causes whispering and rumours in the congregation. In short they feel their stature in congregation that elected them is being diminished by this non- confirmation that has no reasons or explanation.

It would seem that on the face of what respondents said, applicants had done nothing to forfeit their membership of the church in terms of clause 46 read with chapter 19 of the Lesotho Evangelical Church Constitution. Since no reasons were given, it might be thought applicants are unsuitable to be church leaders. The church constitution is silent about this - members of the congregation have to decide. Qualifications that are found in the Bible only emphasize ability to lead, honesty and exemplary personal and family life as the criteria for appointment to church offices.

Respondents' answer

Respondents take the view that

(i) The matter is not urgent

(ii) The Sefika Church should have been joined as a party to the proceedings.

(iii) Khafo Lenka is not the second applicant.

(iv) Fourth Respondent is not a member of the Sefika congregation

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(v) Until new members of the consistory and new elders take office the current incumbents are still in office.

(vi) Sub-parish elections of the 19th December 2004 began the process in terms of which those elected would be elders if confirmed by the consistory.

At paragraph 14.2.2 and following paragraphs Reverend Makakane says the following concerning the non-confirmation of applicants as elders:-

(i) In terms of the well-established practices and traditions of the Church the non-confirmation of applicants elders was only a preliminary stage of the process. Applicants were free to discuss the specific reasons that gave rise to the preliminary non-confirmation of the names of applicants.

(ii) The Lesotho Evangelical Church is governed by the principles of the Bible and the message of God's Love and Forgiveness. The Church is not run like a political party or a football club.

(iii) Applicants should have first discussed the matter with the Consistory, if not satisfied take their case to the Presbytery Council and finally to the Executive Committee of the synod of the Lesotho Evangelical Church.

(iv) "The announcement in the Church on 2nd January was merely a report to the congregants on the state of play." In paragraph 14.2.5 Reverend Makakane says "applicants know very well that the announcement in church on 2nd January 2005 is not a forum where reasons for non-confirmation are given before the full process of dealing with individual cases through the entire chain of domestic tribunals is completed." Consequently applicants are wrong to say their names have been rejected.

(v) Reverend Makakane denies speaking to first applicant about the minutes. He however admits that second applicant asked to see the consistory minutes of the 1st January 2005 and that he told second applicant that the minutes were with the secretary. Reverend

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Makakane consequently denies obstructing applicants from gaining access to the minutes.

(vi) Reverend Makakane at paragraph 13.3.1 says applicants are well aware of the provisions of Clauses 152 and 153 of the Church Constitution. Applicants have accepted to be bound by the provisions of Clause 152 and 153 of the constitution of the Lesotho Evangelical Church. The only legitimate expectation they had was that their names might or might not be confirmed.

(vii) At Paragraph 15.3.3. Reverend Makakane said the consistory did not sit in judgment over the propriety of the elections of Church on 19th December 2004 what the consistory did was to exercise its powers under Clause 153 of the Constitution of the Lesotho Evangelical Church.

POINTS IN LIMINE

1. Urgency

Respondent argue that the matter is not urgent contrary to what the applicants claim. I was puzzled when respondents claimed the matter was not urgent for the following reasons:-

1. The sub-parish meeting of 19th December 2004 had been held as part of the elections of the entire Lesotho Evangelical Church which take place every four years. Consequently my understanding is that unless the sub-parishes had elected elders, the consistory would not be able to function with new members as is required by Clause 105. I thought therefore that this matter was urgent as this in turn would affect the work of the Presbytery because lay representative of the parish in the Presbytery would also not be changed. This would also affect the synod because there would be no new delegates from the presbyterys in terms in terms of Clause 18 (b) of the Constitution.

2. Nothing was being done to inform applicants between the 1st January and the 5th January 2005 that their election has not been

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confirmed by the consistory. Yet the Consistory of which they ought to be members in terms Clause 105 of the Constitution was to meet on the 8th January 2005 and hold elections on the 9th of January 2005. I was unable to comprehend what respondents meant when they said the matter was not urgent.

2. Non-joinder of the Sefika Church

Parties that have to be joined are those who have a substantial interest and or can be prejudicially affected by an order the court might make. Fagan A J A in Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 at page 649 said the objection of non-joinder should not be "a purely technical one, taken for the purpose of causing a delay and trouble and not from a real concern for the interests" of the party that has not been joined. In Wholesale Provision supplies CC v Exim International CC 1995 (1) SA 150 at page 158 DE Mahomed J said:

"These observations clearly show, to my view, that the rule which seeks to avoid orders which might affect third parties in proceedings between other parties is not simply a mechanical rule which must ritualistically be applied regardless of the circumstances of the case... The party not joined is BD Neill... He is a party who controls first respondent... He has now had the fullest opportunity to be heard in the matter.... To deprive the applicants of relief in these circumstances because BD Neill was not formally joined is without any justification in law and would not advance the interests of justice.

In Van Vuuren v Kerkraad van die Morelig Gemmente Kerk van de NG Kerk in die OVS 1979 (4) SA 548, it was held that the congregation of a church in

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which applicant was serving in Johannesburg had no direct or substantial interest in any way by any order that the Court might make in the application.

I was unable to understand why the Sefika Church should be joined when the pastor, every Church elder and evangelist who runs it and is a member of the Consistory had been joined. See Clause 97 and 105 read with Clause 160 of the Constitution. In other words in terms of clause 97 the Lekhotlana or Church council of the Sefika Church had been joined in its entirety through "the Minister, Evangelist, elders of station and outstations' of the Sefika Church. The leaders of the prayer groups are part of the Congregation that had elected the applicants. Joining the Sefika Church council (Lekhotlana ) could well be a misjoinder because there was no complaint against the elections of the 19th December or anything that the Sefika Church or its council had done.

3. Failure to exhaust domestic remedies

In Ndara v Umtata Presbytery, Nederdiutse Gereformeerde Kerk in Afrika (Transkei) & others 1990 (4) SA 22 it was held that the fact that there are unpursued domestic remedies like appeal or further appeal, is not a circumstance that preclude an applicant from bringing proceedings of review

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in respect of a fundamental irregularity. In that case applicant had not been informed of charges that were made against him and been given an opportunity of stating his case. Consequently the court will in requiring domestic remedies to be exhausted in a church depending on the circumstances of each case.

In accordance with Clause 244 of the Constitution no person can be condemned unheard. By the same token a decision of the Presbytery Commission suspending a minister on ground of rumours was set-aside in Grundling v Van Rensburg No 1984 (4) SA 680. The court held that the right to rebut a rumour at an early stage was a valuable right. What was important was not whether the decision was provisional or final. What had to be determined was the potential prejudice to applicant.

It seems to me that although Acts 6:3 in the Bible gave the early disciples a right to select good men among them - for the 12 apostles to appoint over church business, I find nowhere in the Bible where it is said the twelve apostles could refuse to appoint those selected by the disciples without giving reasons. The failure to confirm applicants without giving reasons has no Biblical base from the test that Reverend Makakane gave the court in his answering affidavit. I also do not understand how there can be "love and

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forgiveness" where the person in error has not been told where he has gone wrong so that he can ask for forgiveness.

This to me is a very serious objection leveled against the consistory. These courts are not meant to settle domestic disputes if there are reasonable alternate dispute resolution machineries. The first problem I have is that applicants were not being informed why their election had not been confirmed. Only then could they challenge or make representation before the consistory or a senior organ such as the presbytery. It was then that issues such as being condemned unheard could be dealt with and the merits of their condemnation if any. This being the case, I shall have to deal with those merits of this case that I consider this court ought to deal with.

ISSUE OF IMPUNITY

In the Lesotho Evangelical Church in the case Lesotho Evangelical Church v JMK Nyabela 1980 LLR 466 at page 475 Cotran CJ held it does not mean that merely because the clergy in the Lesotho Evangelical Church have submitted to the Church constitution they "can be dismissed with impunity." Arbitrariness and capriciousness cannot be upheld by the courts.

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In Lesotho Evangelical Church v BMK Nyabela the issue was also that the church judicial organs were prejudiced, in this case the consistory is not providing reasons for dismissal. The consistory is suggesting there should be Christian reconciliation without each side stating where each side went wrong. How can there be a dislogue in such circumstances? To say a decision has not been taken to reject the names of applicants is difficult to understand. It was argued that applicants heard of the decision of the consistory prematurely from unauthorized source. Yet the consistory was not informing applicants of the decision not to confirm them as church elders in terms of clause 153 after their election, although the consistory was to meet on the 8th January 2005 and elections be held on the 9th January, 2005. The respondents speak of a procedure and a process that is not grounded on the constitution. Their dilatoriness and evasiveness as to how the applicants should take the matter forward did not impress me.

Clause 153 does not lay down the procedure to be followed after the names of elected elders have been put before the consistory for scrutiny that precedes confirmation. This section does not state the criterion that has to be met so that the elected people can be confirmed as elders by the Consistory. I was referred by respondents' counsel to paragraph 20.2 of First Respondent's (Reverend Makakane's) affidavit for the criteria found in the Bible that

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applicants were supposed to meet in order to qualify as elders. They had to possess the following qualities.

Exodus 18:21 Able men such as fear God, men of truth, hating covetousness.

Exodus 20 Obey the Ten Commandments.

Acts 6:2-5 "Then the twelve called the multitude... and said...wherefore, brethren, look ye out among you seven men of honest report, full of the Holy Ghost and wisdom, whom we may appoint over this business." "But we will give ourselves continually to prayer."

1 Timothy 3-15

Must be blameless, the husband of one wife, vigilant, sober, of good behaviour, given to hospitality, apt to teach, not greedy of filthy lucre, not a brawler, one that ruleth well his own house, not doubletongued, wife not slanderous, the pillar and ground of truth.

Titus 1: 7-11 says almost the same thing I Timothy above

Mathew 5:3-16 have the 9 beatitudes, be the salt of the earth. Let their light shine upon the earth, so that people can see their good works and glorify the father that is in heaven.

After reading the Bible I found that all that is required of church elders is that they should be able to lead and live exemplary lives as far as it is possible. This makes it all the more necessary to say exactly where the applicants fall short because no man is perfect. Clause 159 states that the Office of Church elder is honourable, although it is unremunerated.

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Consequently Ogilvie -Thompson JA in N.S. Maseribane '& 3 Others v JRL Kotsokoane 1978 LLR 451 at page 456 said:

"Bearing in mind the function of the corporation and its place in the community, the position of Director, although unremunerated save for expenses (vide section 11 (1)), must, I consider be regarded as carrying with it both rights and a position of some standing in the community. As counsel for the appellants points out, summary dismissal from such a position must inevitably entail some stigma:

"Particularly so perhaps in the case of first appellant, a former Deputy Prime Minister and holder of various potfolios."

In this particular case first respondent has time and again said first applicant has held high office in the Lesotho Evangelical Church and consequently must know the rules. If that is so the stigma of being not confirmed as an elder must be particularly pronounced. Other applicants such as second applicant may also have held position of church elder before, as second applicant is still a serving member of the consistory. Being people of such status who with the others have been elected to the dignified office of church elder - they ought to know where they fell short.

The Church is eternal, consequently its leaders cannot be dismissed without reasons as an act of political power like ministers in a government. Consequently the case of Lesotho Evangelical Church v JMB Nyabela has established that power in the church cannot be abused or used capriciously and unjustly.

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I am satisfied that applicants were entitled to be informed of the reasons for failure to confirm them after being elected to the honourable office of church elder. If a process of dialogue was to begin, as respondents claim it should have commenced - the first step was to inform them and discuss the reasons and the issue with them before their non-confirmation was made public. This was not being done, and was not being done until applicants who wanted to be members of the consistory had to approach court for redress.

I am not informed sixth respondent is no more a member of the consistory -This fact applicants do not dispute. Consequently no order need be made against him.

It is only the fourth applicant who has been given a reason for failure to confirm him. It appears on the papers before me that he had paid his church dues, but was not issued a receipt. It seems the other applicants are also entitled to be informed of reasons for not confirming them as church elders after their election so that they can clear their names like the fourth applicant.

I am unable to agree that the election that had been ear-marked for the 9' January 2005 were intended for the Sefika Church as well as the consistory

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meeting of the 8th January 2005. These meetings were both for the consistory - if the "JTMI" to first respondents affidavit is correct. This court should not be called upon to declare applicants validly elected because their election is not questioned. What is challenged is the failure to confirm them. This failure to confirm them which has not been communicated to them cannot take effect until applicants have been heard.

I do not understand the alternative prayer because the consistory as a senior organ of the church and its decision cannot validly be treated as a recommendation to the lower organ of the Lesotho Evangelical Church the Council of the Sefika church and its congregation.

I am satisfied that applicants were entitled to approach the court to restrain respondents from acting capriciously by not confirming them as church elders without giving reasons and giving them a hearing before making a final decision.

IT IS THEREFORE ORDERED:

1. That respondents for the time being are restrained from saying the applicants are not confirmed as church elders of Sefika Church.

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2. That respondents give each of the applicants reasons at this stage for failing to confirm him within 10 days - and call upon each of the applicants to make representations before the consistory rebutting any adverse reasons before the consistory makes a final decision.

3. Respondents are directed to pay costs of this application.

W.C.M. MAQUTU

JUDGE OF THE HIGH COURT

For Applicants : Mr Mohau

For Respondents : MrMotete

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