CIV/APN/60/2008
IN THE HIGH COURT OF LESOTHO
HELD AT MASERU
In the matter between:-
JOSEPH KOOMA APPLICANT
AND
ANGLICAN CHURCH OF LESOTHO 1st RESPONDENT
VIGAR GENERAL PHILLIP MOKUKU 2nd RESPONDENT
DIOCESAN SECRETARY(o.b.o. Diocesan Council) 3rd RESPONDENT
LITEBOHO TSIKOANE 4th RESPONDENT
MATEBOHO RAITHULE 5th RESPONDENT
(Duly assisted whenever necessary)
MATHABANG TSEKO 6th RESPONDENT
MANEO LIKOTSI 7th RESPONDENT
MOSELLA LETLALA 8th RESPONDENT
RAMABELE MOKATI 9th RESPONDENT
REVEREND PALO MPHETHE 10th RESPONDENT
JUDGMENT
Delivered by the Honourable Mr. Justice G.N. Mofolo On the 13th March, 2008
This is a peculiar case. Peculiar in that from the face of it, it appears as if the applicant's position as a priest is threatened requiring intervention of this court. To this end
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JOSEPH KOMA APPLICANT
'MATEBOHO RAITHULE 5th RESPONDENT
'MATHABANG TSEKO 6th RESPONDENT
'MANEO LIKOTSI 7th RESPONDENT
REVEREND PALO MPHETHE 10THRESPONDENT
Delivered by the Honourable Mr. Justice G.N. Mofolo On the.......................2008
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the applicant has applied for a Rule Nisi calling upon respondents to show cause (if any) why, an order should not be granted in these terms namely:-
That the 2nd respondent's act of verbally discussing alternatively suspending and/or transferring the applicant be and is hereby
declared null and void ab initio for flagrantly encroaching the rules of natural Justice.
That the 2nd respondent be interdicted from interfering with applicant in any manner save in terms of the Canons of the 1st respondent and its appurtenant procedures and other lawfully accepted measures.
That it is hereby declared the 4th to 9th respondents are not official members of the 1st respondent's Lekhotla la Kereke (Church
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Council) for the Parish of St. Agnes Mission for they have not yet taken an oath of office.
That the 4th to 9th respondents be interdicted from interfering with applicant, his family and church services (1st respondent) in any manner save in terms of the Canons of the Church and its appurtenant procedures and other lawfully accepted measures.
That the 4th to 9th respondents be and are hereby directed to restore to the applicant the church's property in their possession which comprises of Analysis Book (Financial Record Book), bank book, church's money in their hands together with their corresponding
records and other property they hold by virtue of purportedly assuming office of Lekhotla la Kereke (Church Council).
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That the 4th to 9th respondents be interdicted from collecting cheques, and any moneys belonging to the church and cease executing any official duties on behalf and/or in the name of the church.
That the 10th respondent be and is hereby interdicted from assuming office at St. Agnes Mission pending finalization of this application.
That prayers 1, 2 (b), (d), (e), (f) and (g) should operate with immediate effect as interim relief
I do not know whether interim relief was granted for there is no certificate to the effect. Suffice it to say when Mr. Molati for the applicant was directed to Provisions of the Oaths and Declaration Regulations, 1964 to the effect that declarations unlike oaths are not sworn to, he conceded that as respondents needed only to make declarations and not take
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oaths of office, he was abandoning any reference to respondents 4 to 9. In the result prayers 2 (c), (d), (e) and (f) were taken as abandoned and not argued.
Regarding prayer 2 (a), Mr. Molati has submitted in either dismissing or suspending the applicant the second respondent did not hear applicant thus violating principles of natural justice. Mr. Phoofolo for the respondents has countered, on the contrary, that there was no need to hear applicant in that the 2nd respondent has neither dismissed or suspended the applicant save proposing to the applicant whether:-
He could go on leave to relieve depression;
He could go to school on church's auspices;
He could work under another priest in the parish;
Be a Rector of another Parish within the Diocese.
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And the applicant elected to be transferred. The applicant denies this. According to Mr. Phoofolo, there was no need to reduce these options to writing because they were transitory with no finality and in any event to date the applicant had neither been suspended, dismissed nor transferred. Mr. Phoofolo also drew the court's attention to 2nd respondent's affidavit at paragraph 12 in which he says:-
"I repeat contents of paragraph. 7 above. Clearly it is my intention to have applicant leave the St. Agnes Parish in view of the instability there that he is responsible for or is unable to resolve."
The 2nd respondent has added:-
"It is quite within my right in terms of the Constitution and Canons of the Church to transfer a Priest if I consider that God's work requires me to do so. I cannot Just verbally tell a Priest that I am
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transferring him without making a record of my decision."
Again: -
"No final decision has as yet been taken by the Senate and myself concerning the ultimate fate and destiny of the applicant and he has been to rush to approach this Honourable Court in the matter. He was still going to get a proper notice."
It is simply clear to this court that the 2nd respondent has in no manner proceeded against the applicant or prejudiced him in any way recalling, at the same time, that this is an application where, if applicant's contentions are denied by the respondent the latter's version is preferred. Mr. Molati has submitted whatever 2nd respondent did in connection with the applicant is invalid by reason of 2nd respondent not having observed principles of natural justice by not hearing applicant before an adverse decision was made against him. With
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respect, there is nothing that 2nd respondent did to violate applicant's rights.
Concerning 2 (b) of the Notice of Motion, 2nd respondent has in no way interferred with the applicant and I am satisfied 2nd respondent's
undertaking to observe Canons of the 1st respondent in dealing with the applicant is to be taken seriously.
I do not see how I can interdict 10th respondent from assuming office at St. Agnes Mission in that, according to the 2nd respondent, (paragraph 11.3 of his Answering Affidavit),
"Whether applicant was going or remains in the Parish of St. Agnes or not, I was still going to place Palo Mphethe there as the Rector, which applicant is not, but a Priest in-Charge, and applicant or any other Priest in that Parish would serve under him. I do intend placing Fr. Mphethe there by the beginning of March."
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Since Fr. Mphethe is going to be a Senior Clergyman over the applicant much the same way as there are Senior Magistrates and policemen over junior officers, Fr. Mphethe's transfer has nothing whatsoever to do with applicant's status and duties and the two officers that of the applicant and Fr. Mphethe not meeting or competing, it would be the height of folly to interdict a Senior Priest at the instance of his junior in circumstances in which the junior priest has no vested right or interest over a Senior Priest afterall, this court has reached the inescapable conclusion deducing from the 2nd respondent's Answering Affidavit that the transfer of Fr. Mphethe to St. Agnes has nothing to do with priestly functions at St. Agnes save preserving the administrative fabric at St. Agnes mindful, at the same time, that this court is loath to interfere with church policies best known to the 2nd respondent.
Both Mr. Molati and Mr. Phoofolo have urged the court to follow or not follow a number of cases pressed on this court. Mr. Molati in particular has quoted cases Noka-Ntso Primary School and Other v Khoboliso and Another LAC (1995-99)
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782 and Kepa v Anglican Church of Lesotho LAC (1995-99) 40. Unfortunately for Mr. Molati, in both cases the pupils and the school mistress were expelled without being heard thus violating principles of natural justice. I have already said applicant in the instant case has neither been transferred nor expelled making invocation of principles of natural justice inapplicable. In any event the instant application is clearly distinguishable from the two cases quoted above.
In all respects, this court is satisfied that this is not a properly taken application and stands to be dismissed in its entirely. Accordingly the application is dismissed.
As to costs, this court did intimate to counsel on both sides that it is reluctant to order costs in cases of this nature and both counsel has appeared understanding. In the result, there will be no order as to costs
G.N.MOFOLO
JUDGE
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For the Applicant : Mr. Molati
For the Respondents : Mr. Phoofolo
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