C OF A
(CIV) NO. 12/06
COURT OF APPEAL OF LESOTHO
DISTRICT OF THE UNITED
MOYEYE SECOND RESPONDENT
MAKOETJE THIRD RESPONDENT
NTAOPANE FOURTH RESPONDENT
'NEKO FIRFTH RESPONDENT
MOTHAE SIXTH RESPONDENT
MOLIBELI SEVEN RESPONDENT
MOTHOKHO EIGHT RESPONDENT
'MAITUMELENG MOTHOKHO NINTH RESPONDENT
LEKETA TENTH RESPONDENT
ATTORNEY GENERAL TWELFTH RESPONDENT
27 MARCH, 2007
: 4 APRIL 2007
Civil application - Interdict - Constitution of a church - The
contractual nature thereof as between the church and its members
appeal revolves around two decisions, namely:-
decision taken on 22 June 2004 by a group calling itself a Special
National Board Sub-Church Board suspending the first respondent's
licence as a Pastor in the appellant church;
decision taken on 10 July 2004 by the Regional Director Africa, Rev.
Jerry Richardson ("Richardson") dismissing second
respondents as members of the appellant Church Board.
 On 28
July 2004, and consequent upon the decisions referred to in the
preceding paragraph, the appellant church launched an
the High Court (Nomngcongo J) in which it sought an order in the
1st respondent from holding and / or continuing to hold himself out
as the Pastor of the applicant.
the 1st to 10th respondents from holding or continuing to hold
themselves out as members of the Church Board of the
Local Church of
the applicant at Khubetsoana.
the Ist to 10th respondents from continuing to run an illegal school
under the name of the applicant on the applicant's
the IIth respondent to remove or cause to be removed, the illegal
school run by the Ist to 10th respondents on the applicant's
the 1st respondent to hand over to Rev. David Allen Kline all
official documents of the applicant that are still in
the respondents herein to pay costs hereof jointly and severally,
the one paying the other being absolved and the 11th
respondents paying only in the event of opposition hereto.
applicant such further and / or alternative relief as this
Honourable Court may deem meet. "
 On 7
August 2006, the learned Judge a quo dismissed the application
principally on the ground that both the Special National
Sub-Church Board and the Regional Director Africa had no power under
the constitution of the appellant church to make the
referred to in paragraph  above.
Concerning the alleged running of an illegal school on appellant's
premises, the learned Judge held that the appellant had failed
show what provision of the Education Act had been breached and that,
in any event, the court would not usurp the right of proper
authorities to administer the Act. The learned Judge felt that this
was especially the case in view of the fact that the appellant
already appealed in writing to such authorities.
understand the judgment a quo it was thus necessary to await the
outcome of the complaint in question before approaching the
appellant has appealed against the correctness of the Court a quo's
admitted facts show that the appellant is a church registered in
accordance with the Societies Act 1966. It has
headquarters at Friebel Estate in Maseru district. The first
respondent is a pastor in the appellant church.
tenth respondents on the other hand are members of the appellant
terms of its constitution the appellant church has a hierarchy of
leadership. At the apex thereof is the National Board of
appears from the affidavits filed in this case that the real upshot
of the dispute between the parties is a subject of much
The main antagonists appear to be the first respondent and one
Reverend David Allen Kline ("Kline") who
has deposed to the
founding affidavit on behalf of the appellant. In paragraph 1 of his
founding affidavit Kline describes himself
superintendent" of the appellant. The first respondent disputes
this. Kline further calls himself "Acting
of the UCP."
respondent claims no knowledge of this, presumably because the
letters UCP ostensibly do not seem to stand for part of
the name of
the appellant church, namely, United Pentecostal Church" (UPC).
that as it may, however, Kline says that the real problem started
when the church was fraudulently charged a fee of M3600.00
services" by a non-existent attorney called Joseph Mohlomi. The
first respondent on the other hand denies
this. He avers that the
problem started with Kline himself by refusing to accept the laudable
and plausible explanation made by
the first respondent concerning a
transaction of landed property of one Motsoahole Moji. The first
respondent avers that this transaction
resulted in the engagement of
the fictitious attorney Mohlomi. More importantly, he charges in
paragraph 7 of his answering affidavit
that the reason why Kline is
"doing everything against me is because 1 challenged him when he
reinstated one Rev. Michael
Mokhoabane while still on pension,
provisions of the constitution or consulting the National Board which
effected the said suspension."
is not necessary to decide on the veracity of the accusations and
counter accusations by the respective deponents. The real
for determination is whether the Special National Board Sub-Church
Board and the Regional Director Africa respectively
had the power
under the constitution of the appellant church to make the decisions
referred to in paragraph  above. The onus
rests on the appellant
to demonstrate this. It shall suffice merely to add that the
respondents challenge the authority of these
bodies to make the
decisions that they did. The first respondent positively avers that
such decisions were made by an "incompetent",
of people". Therein lies the crux of the matter.
the law is well established that the rights and obligations between a
church and its members, as in any voluntary
are derived from the constitution of the church itself. This includes
the power to suspend or dismiss ministers or
officers of the church.
The relationship between the parties is one of a contractual nature.
The terms of such contract in turn
are contained in the constitution.
It follows that a church or voluntary association has no powers to
act except those conferred
on it by its constitution expressly or by
necessary implication. The constitution enjoys paramountcy and the
church or voluntary
association concerned can only act within its
Lesotho Evangelical Church v Nyabela 1980 LLR 446 (HC at 448: Lesotho
Evangelical Church v Mandoro 1980 - 1984
Viewed in the light of these principles, it is instructive to note
that there is not a single clause in the appellant's constitution
which expressly or by necessary implication confers power on either
the so called Special National Board Sub-Church Board
Regional Director Africa to make the decisions that they did on 22
June 2004 and 10 July 2004 respectively as fully set out
 above. There is simply not a body in the appellant's constitution
called a "Special National Board Sub-Church
Similarly, Kline conceded already in paragraph 12 of his founding
affidavit that there is not a body called Regional
Director Africa in
the constitution of the appellant church. He made the point in these
" I must clarify to this Honourable Court that while there is no
provision on the constitution of the UPC for the Regional
this is administrative title that the currently (sic) general
superintendent of the applicant also uses. He is the substantive
general superintendent and it is his powers as such, that he is (sic)
dismissed the said respondents."
averments are not borne out by the appellant's constitution.
terms of Article VII Section 1 of the constitution of the appellant
church, the National Board consists of the following
alia, the General Superintendent and the Assistant Superintendent.
None of these officers were present at the meetings
held on 22 June
2004 and 10 July 2004 respectively. On the contrary, non-members of
the National Board were allowed to attend the
meeting. But worse
still, Richardson chaired the meeting despite the fact that he has no
such power under the constitiuion. Such
meetings are chaired by the
General Superintendent in terms of Article VI Section 1 which reads
in these terms :-
"7. The General Superintendent shall be the UPCI Senior
Missionary, until his successor be appointed by the UPC1. He shall
chairman of the National Conference and the National Board and shall
attend all regular and specifically called meetings of
Board. " (Emphasis supplied.)
2 of section 1 provides that in the event of the General
Superintendent being unable to attend any regular or specifically
called meeting or conference of the National Board, the Assistant
Superintendent, appointed by the General Superintendent, shall
follows from the foregoing that the appellant church did not act in
accordance with the provisions of its own constitution.
differently, the decisions of 22 June 2004 and 10 July 2004
respectively were ultra vires the constitution of the appellant
church. They were as such a nullity.
turn then to deal with the complaint that the respondents are running
an illegal school on appellant's premises. There are
several flaws in
the appellant's case on this aspect:-
complaint was not part of the decisions taken on 22 June 2004 and 10
July 2004 respectively.
terms of the constitution of the appellant church the National Board
is the supreme governing body. There is no evidence that
issue was ever discussed at the meeting of the National Board.
Certainly the Board did not make a decision expelling
from the appellant's premises.
a clear challenge thereto, Kline has failed to attach a resolution
authorising the expulsion of the school in question.
This is more so
in view of the fact that the resolution "RMM2" belatedly
annexed in Kline's replying affidavit specifically
reads in relevant
part as follows:-
"7. Rev. Moyeye and his Committee Members should be sued for
refusal to comply with decisions of the National Board. "
pointed out in paragraph (1)(2) above, and as I repeat now, the
decisions of 22 June and 10 July 2004 respectively did
the decision to expel the school from the appellant's premises.
first respondent has stated the following in paragraph 3 of his
"It is submitted that the conduct of the deponent regarding the
institution of proceedings against the respondents is mala
does not truly and validy relate to the applicant in substance or in
nature. The deponent is solely prompted by the need
to serve his own
personal interests to the extusion of those of the applicant and the
general congregation at large and therefore
his conduct is not in the
best interests of the applicant or congregation at all."
paragraph 4 of his replying affidavit Kline does not appear to deny
the serious allegation of mala fides levelled against him.
"I deny that there is no_ mala fides in these proceedings. "
is then the question of non-joinder. The school, including its
members, had a direct and substantial interest in the matter.
expulsion sought was undoubtedly going to affect it and the students
thereof prejudicially. It should as such have been joined
the point of non-joinder can be raised by the Court mero motu is well
established in this jurisdiction from such cases
as Masopha v Mota
1985-1989 LAC 58: Matime and Others v Moruthoane and Another
1985-1989 LAC 198: Basotho Congress Party &
Others v Director of
Elections and Others 1997-1998 LLR & LB 518 at 531: The National
Executive Committee of the Lesotho National
Olympic Committee and
Others v Paul Motlatsi Morolong C of A (CIV) No. 26/01: Mabusetsa
Makharilele and Others v National Executive
of the Lesotho Congress for Democracy and Others CIV/APN/82/02: The
National Independent Party (NIP) and Others v Anthony
and Others C of A (CIV) No, 1/07. See also Almagamated Engineering
Union v Minister of Labourl949(3)SA637(A).
following remarks of this Court in Matime and Others v Moruthoane and
Another (supra) are singularly apposite:-
"This (non-joinder) is a matter that no Court, even at the
latest stage in proceedings, can overlook, because the Court of
Appeal cannot allow orders to stand against persons who may be
interested, but who had no opportunity to present their case."
follows from these considerations that the appellant should have been
non-suited on this point alone in so far as prayers 3 and
4 of the
notice of motion were concerned.
the result the appeal is dismissed with costs.
JUSTICE OF APPEAL
Appellant : Adv R. Thoahlane
Respondent : Adv T.J. Mokoko
Second to Twelfth Respondents : No appearance
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