C of A(CIV)No.3 of 2005
CIV/APN/196/2000
IN THE COURT OF APPEAL OF LESOTHO
In the matter between
BISHOP SEBASTIAN KOTO KHOARAI First Appellant
THE CATHOLIC CHURCH OF LESOTHO Second Appellant
and
THE REVEREND ELIAS THATO MONA Respondent
14 and 20 April 2005
CORAM: STEYN, P
GROSSKOPF, JA
MELUNSKY, JA
Summary
Application by a priest to set aside his dismissal - respondents in court a quo take three technical points in limine - these points dismissed by court a quo - alleged lack of locus standi of first and second respondents considered on appeal - nonjoinder of a third party with alleged direct and substantial interest also considered on appeal - appeal dismissed.
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JUDGMENT
[1] The respondent in this appeal (hereinafter referred to as "the Priest") was the applicant in the court a quo. He brought an application against the first appellant (hereinafter referred to as "the Bishop") and the second appellant (hereinafter
referred to as "the Church") for an order in the following terms:
"(1) That the purported dismissal of Applicant as a priest referred to in 1st Respondent's letter dated 9th December, 1999 be declared null and void and of no legal effect and consequence.
That Applicant be reinstated to his position as Priest and Chaplain of Masentle High School forthwith.
That 1st Respondent be directed to publicize the fact of Applicant's reinstatement to the members of the diocese of Mohale's Hoek.
That Respondents be directed to pay (the) costs of this Application."
[2] The founding affidavit of the Priest sets out that on 2 February 2000 the Bishop served upon him a letter dated 9 December 1999 ("the letter") addressed to him by the Bishop in terms whereof the Bishop informed the Priest that the Congregation for the Evangelization of Peoples ("the Congregation") had dismissed him from priesthood in terms of a decree ("the
decree") dated 15 October 1999, which was enclosed. The letter informed the Priest that the Bishop had been instructed to make the Priest's dismissal known to the faithful of the diocese.
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[3] The Priest alleged in his founding affidavit that the decree
"is of no probative value inasmuch as it is a document in the nature of hearsay."
There is, as a matter of fact, no evidence to show that the Congregation had indeed decreed that the Priest be dismissed. The Priest further maintained that even if it be assumed that the decision to dismiss him from priesthood had truly been made as alleged in the decree
"the said decision would be of no consequence and effect in law by reason of.... not (being) afforded an opportunity to defend myself against any allegations upon which my dismissal is premised."
The Priest also contended that his purported dismissal was in contravention of the Church's Code of Canon Law, Canon 1425, which
sets out the procedures to be followed before a priest can be dismissed.
[4] The Bishop in his answering affidavit conceded that the Church is not above the law and agreed that the discharge of any cleric needs to be done "in accordance with justice, fairness and equity". The appellants did not however come to grips with the case but raised a number of technical points in limine. Counsel for the appellants submitted that both the Bishop and the Church lack locus standi while there was a non-joinder in the case of the Congregation. The court a quo dismissed these points in limine but made no order as to costs. The appellants appeal against the order of the court a quo.
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Locus standi of the Bishop
[5] I do not agree that the Bishop was a mere messenger, as alleged by him in his answering affidavit. The letter referred to in [2] above shows that he was "instructed" by the Congregation to communicate their decree to the Priest and to make his dismissal known to the faithful of the diocese. The Priest's allegation in the founding affidavit that the Bishop did in fact publicize his purported dismissal was not denied by the Bishop in his answering affidavit. That the Bishop has a real interest in the Priest's dismissal is incontrovertible in the light of the concluding paragraph of the Bishop's letter which reads as follows:
"In view of the above development, I have no choice but to ask you to vacate the premises and to leave the parish within 15 days of receipt of this letter."
[6] The Bishop admitted in his answering affidavit that he is one of the officials who represents the Catholic Church in Lesotho. Counsel for the appellants however submitted that the Bishop was not authorised to represent the Church in this matter. Counsel conceded that the Bishop might have a "simple interest" in the matter, but submitted that he has no legal interest in the subject matter of the dispute. It should however be borne in mind that the Priest was a Catholic priest in the Bishop's diocese of Mohale's Hoek and that they have been involved in prior litigation involving the Priest's purported dismissal. I shall later return to the relevance of this prior litigation.
[7] The third prayer in the Priest's notice of motion asks for an order against the Bishop which in itself makes him a necessary party to these proceedings.
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It is not disputed that the Bishop is the one who publicized the Priest's dismissal. In the event of the Priest succeeding for instance in obtaining an order declaring his dismissal null and void the Bishop will have to publicize that fact. The Bishop therefore has a direct and substantial interest in any order the court might make in the matter and in my judgment he had to be cited as a respondent.
Locus standi of the Church
[8] The Priest in his founding affidavit cited the Church as "the Catholic Church in Lesotho a voluntary association subject to the laws of Lesotho". The Bishop filed an answering affidavit on behalf of himself and the Church in which he stated at the outset:
"The Respondents wish to raise two points in limine ....". (emphasis added)
The Bishop went on to assert that
"the Second Respondent [the Church] has no locus standi in judicio"
The inference is therefore irresistible that the Bishop was in fact authorised by the Church, one of the respondents, to represent it in these proceedings. However, in a complete volte-face the Bishop thereafter made the following remarkable allegations in his answering affidavit concerning the Church:
"In fact, no such entity exists. The Catholic Church in Lesotho is. as I have indicated above, not a registered association nor exists in any form, and for that reason is not capable of being sued or suing as a "legal persona."
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[9] The Bishop's allegation that the Church is not capable of being sued as a legal persona should be considered in the light of the Bishop's stance in the previous court case between the same parties. In his previous application the Priest cited the Bishop as first respondent and "The Roman Catholic Church in Lesotho" as the second respondent. The Bishop in his answering affidavit in that case alleged that he "has no knowledge of a religious institution herein referred to as 2nd Respondent" and further denied its existence "in Lesotho or anywhere else in the world". His objection then was not that the Catholic Church "in Lesotho" does not exist as a legal persona, but that there was no Church known as the "Roman" Catholic Church. The High Court in that matter rejected the Bishop's contention and held that the Roman Catholic Church is the same institution as the Catholic Church. (The Bishop has no problem incidentally to refer to the Church as the "Roman" Catholic Church in the present matter.)
[10] The Bishop's contention is that the Church in Lesotho is not a registered association in terms of the Societies Act of 1966 and is therefore not capable of suing or being sued. There are however two reasons why the Church can in my view sue and be sued. The first is that the Church in Lesotho is a universitas that can sue and be sued. The characteristics of such a universitas are set out in the case of Morrison v Standard Building Society 1932 AD 229. The relevant passage at 238 reads as follows:
"The society exists as such quite apart from the individuals who compose it. for these may change from day to day. It has perpetual succession and it is capable of owning property apart from its members..... It has therefore all the characteristics of a universitas and can sue in its name."
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See farther Malebjoe v Bantu Methodist Church of South Africa 1957 (4) SA 465 (W) at 466 G where the court relies on the same characteristics
of a universitas.
[11] The court a quo in my view rightly took judicial notice of the fact that the Church has perpetual succession in Lesotho. It has existed for more than a century. It is also capable of owning property apart from its members. The Bishop on the other hand contended that the Church cannot be a juristic person since it was obliged upon the introduction of the land Act of 1979 to form a property holding company to hold the immovable property "owned" by the Church all over Lesotho. That may be a convenient way to hold the immovable property of the Church, but since it is a holding company it surely holds the immovable property on behalf of the Church who remains the true beneficial owner of such property.
[ 12] There is a second reason why the Church can sue or be sued. Section 3(1) (i) of the Societies Act exempts a "religious community" from the provisions of the Act. One meaning of "community" according to the Concise Oxford English Dictionary is "a group of people having a religion in common". The expression "religious community" would in my view include the Church. It follows from the aforegoing that the Priest was justified in citing the Church as "a voluntary association subject to the laws of Lesotho".
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[13] The Church therefore falls under the definition of "association" in Rule 13 (1) of the High Court Rules which reads as follows:
"13 (1) 'Association' means any unincorporated body of persons other than a partnership."
As such the Church may sue or be sued in its own name according to Rule 13 (2) which provides as follows:
"13 (2) A partnership, a firm or an association may sue or be sued in its own name."
[14] In view of what has been set out above I hold that the Church has locus standi in this matter and that it was properly cited as "The Catholic Church in Lesotho a voluntary association subject to the Laws of Lesotho".
Non-joinder of the Congregation
[ 15] Counsel for the appellants submitted that the Congregation has a direct and substantial interest in any order the court might
eventually make and therefore had to be joined as a respondent. The Bishop in his answering affidavit explained that the Congregation,
''whilst it may be a distinct legal persona, is a division of the Catholic Church."
In Volkskas Bank ('n Divisie van ABSA Bank Bpk) v Pietersen 1993 (1) SA 312 (C) the court pointed out that in South African law there is no legal persona such as a division. The same principle was laid down in De Meillon v Montclair Society of the Methodist Church of Southern Africa
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1979 (3) SA 1365 (D & C) where the court held as follows at 1368 D:
"To be a universitas an association must have perpetual succession and a capacity to acquire rights apart from its members
and, in addition, it must be a separate entity and not simply a subdivision of a main body." (Emphasis added)
See also Spoornet v Watson 1994 (1) SA 513 (W). The Bishop did however allege that the Congregation "may be" a distinct legal persona, but even if that be accepted there still seems to be no reason to join the subsidiary body when the Catholic Church is already represented before the court.
[16] According to Canon 360 the Congregation is part of the Roman Curia through which the Supreme Pontiff conducts the business of the universal church. It is important to note that the Congregation acts on the instructions of the Roman Curia according to the Bishop, and that it was therefore acting on the instructions of the Roman Curia when it dismissed the Priest on 15 October 1999. This appears to be a further reason why the Church rather than the Congregation should be before the court. In my judgment it was accordingly not necessary to join the Congregation in these proceedings. In view of the above findings the appeal must be dismissed.
[17] The appellant did not appear in the court a quo and the learned judge did not consider the merits of the application. It merely dealt with the points in limine which, as we have indicated, were correctly dismissed. Whether the appellants may enter upon the merits in the light of the authorities referred to in Herbstein and Van Winsen, The Civil Practice of the Supreme Court of South Africa at 355 - 356 need not be decided upon by this court. That will be a matter for the discretion of the High Court should the question
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arise. What is of great concern to this court is that the dispute between the parties which commenced six years ago has still not been resolved.
[18] The following order is made:
The appeal is dismissed with costs.
F. H. GROSSKOPF
JUDGE OF APPEAL
I agree
JH STEYN
PRESIDENT
LS MELUNSKY
For the Appellants: Adv. H.P. Jefferys
For the Respondent: Adv. Z. Mda
