C. of A.
(CIV) No. 9 of 1981
LESOTHO COURT OF APPEAL
Appeal of :
EVANGELICAL CHURCH Appellant
KHIBA MANDORO Respondent
appeal concerns the dismissal by appellant of respondent as parish
priest stationed at Cana Mission.
dated 22nd May, 1979 respondent applied to the Synod committee for
study leave "to go and do a B,A. in Theology at
N.U.L. when it
opens". He also asked for a scholarship for that purpose. On 4th
July 1979 his application was rejected on
the ground that "Church
work must not be hampered in any way ...... due to the shortage of
ministers and the work in general."
July, 1979 respondent asked for his application to be reconsidered
and in the absence of a reply he wrote again on 16th
saying "that because of your delay ......
you that I am already there (The University) but still would like to
know your attitude". He went on to say that he
"to discharge duties at Cana Parish with regards to plans for
feasts and some other things which may require
the services of a
August, 1979 the Executive Committee replied to his letter, ordering
him to vacate church property occupied by him and to
perform any duty as a minister at Cana Parish". He was also
informed that his payments of salary would not continue.
for his dismissal in this manner are set out as follows :
that you are already at N.U.L. contrary to the manner in which
Committee had replied your application, it finds it not
reply your letter dated 26th July because you have made your own
decision contrary to that of the Committee.
again instructed to inform you that as you have gone to N.U.L. on
your own, leaving the Cana Parish without permission of
Committee, you have relinquished yourself from the control of the
Synod and its Committee and that you have on your own left
which the Synod gave you through its Committee",
replied on 3rd September, 1980 that he did not accept the decision to
dismiss him because "it is not based on the
He concluded by informing the Committee that if it did not accept his
"decision" not to accept his
dismissal the Committee "can
go to the Synod".
the decision to relieve him of his duties he continued to perform
duties as a minister mainly during weekends and
to occupy the
dwelling house at Cana Mission. He carried on with his studies at the
highest governing body of appellant is the Seboka (or Synod)
consisting of 72 members. The Seboka elects an Executive Committee
known as the "Committee of the Seboka" and also as the
"Synod Committee". Whenever the Committee relieves a
Minister of his duties such Minister "has a right to appeal to
the Seboka" "Section 210 of appellant's constitution".
Respondent did not appeal.
of the Seboka was held on 30th August, 1980 to discuss this matter at
the request of the Committee. On the 3rd August
Secretary of the Committee went to the University "to advise
(respondent) of the Seboka meeting, but he could
not find him. In
fact respondent was present at the meeting but declined a request to
participate and left while his dismissal
was being discussed. The
Seboka confirmed the
of its Committee.
instituted an action on 4th December, 1979 for an order of ejectment
from the premises occupied by him at Cana Mission.
The claim was
dismissed by a Resident Magistrate and an appeal to the High Court
against this judgment also failed. Appellant now
appeals against its
unsuccessful appeal to the High Court.
contentions for the appellant are as follows Firstly. that respondent
was rightly dismissed on the grounds that he deserted
or left in
terms of section 205 of the Constitution. Secondly that the doctrine
of "audi alteram partem was not applicable"
this was purely administrative decision". Therefore the Court a
quo erred by relying upon the failure to invoke
this doctrine as the
main reason for dismissing appellant's claim and the appeal against
it. Thirdly that in any event the respondent
was afforded but
declined an opportunity to discuss his dismissal at the meeting of
205 reads as follows :
"205. Those who leave for unacceptable reasons or join the
Ministry of other churches without prior permission of the Seboka,
automatically forfeit their rights in the Ministry of the Lesotho
Evangelical Church. Their rights may be restored by the Seboka
Committee when such people return to the Lesotho Evangelical Church
if the Seboka or its Committee considers it proper to
with the decision of the Court a quo that this section does not apply
to a Minister absenting himself from parish duties
permission. The section relates to "those who leave" the
church as such. The relief available to those who "return"
to the church fortifies this view. There is a clear distinction
between being a member of a church and holding office as a Minister
of the church. A minister may be relieved of his duties as a minister
but he remains an ordained minister and member of the church.
even cease to be a minister and remain a member of the church by
adhering to its principles and rules.
relevant that respondent did not leave the church
he cease to fulfil obligations as a minister. The main complaint is
that as student he could not and did not fulfil all
In his letter dated 16th August 1979, he asserted that he would
continue "to discharge duties at Cana Parish".
confirms that he did so. Moreover in the letter dated 31st August
1980 confirming his dismissal he is accused of "working
Minister at Cana despite the Executive Committee having stopped you
from doing so".
respectful view, Cotran C.J. has rightly said that "there is no
authority for the proposition that a priest of a church
denomination) is the servant of the governing body of the church"
(Lesotho Evangelical Church v. Nyabela 1980(2) L.L.R.
446 at 448).
The position in this dispute is that the rights, obligations and
tenure of office of a Minister are governed by the
the church. The relationship between a Minister and appellant is
contractual. The provisions of the constitution
to Which the Minister
subjects himself upon ordination and appointment to a Parish and the
rights conferred and obligations imposed
upon the governing body of
the church constitute the terms of the contract between them. It is
therefore necessary to apply the
relevant provisions of the
constitution to the dispute between the parties. There is no need to
debate the application of the principles
of natural justice if the
constitution in fact provides for it. (See African Congregational
Church v. Dimba 1933 WLD 29 and Motaung
v. Kumbela and Another
1975(1) SA 618 (OPD)).
being ordained as a Minister he is required to take an oath to
subject himself to the authority of the Seboka and its committee
to obey the rules governing the church". "Duties and
rights" of Ministers are set out in great detail
in Chapter 16
of the constitution. The relevant provisions concerning relieving a
Minister of his duties are contained in section
205 quoted above and
in sections 208, 209 and 210 which follow :
"208. The Minister who does not execute his duties properly may
be asked for reasons by the Committee of the Seboka.
209. Any Minister, whether ordained or not,is charged with whatever
offence, or breaks the rules of the Church, is convicted by
Committee of the Seboka. The Committee must invite the Chairman of
the Presbytery under which the Minister is serving and one
the hearing. If the charge relates to the management of schools,, the
Committee must seek the opinion of the Education
210. Whenever the Committee relieves the Minister of his duties,
whether permanently or temporarily, the Minister convicted has
right to appeal to the Seboka. He will however stand suspended until
the Seboka decides either way;" Section 211 provides
"whoever is relieved of his duties in the Ministry will also
forfeit his monthly stipend after three months". It
noteworthy that respondent's pay wad stopped upon being notified of
"charged", "offence" and "convicted"
are usually found in criminal law. It is clear however
church did not assume the powers of criminal courts or the State to
charge and convict Ministers for offences. These terms
apply to any failure to abide by provisions of the constitution in
the performance of duties or obligations. It is relevant
section 210 being relieved of duties is described as a conviction. In
Chapter 20 "punishment" for "offences"
those who fail to obey the rules of the church.
case the respondent could have been charged firstly with the offence
of enrolling as a student contrary to the decision
of the Committee
and secondly with failure to execute his duties properly by absenting
himself from his parish while he is at the
University. These were the
grounds upon which the Seboka Committee dismissed him. The extent and
effect of the periods during which
he was not present at his parish
were not fully canvassed in evidence but could be relevant at a
hearing provided in section 209.
Except that by attending University
he rendered himself incapable of fulfilling all his obligations, it
is not clear on what basis
his going to the University of Lesotho
without permission constitutes a separate offence.
view, therefore, the Constitution provides for a hearing in terms of
section 209 before respondent could be
of his duties. The Committee was not entitled to terminate his
services merely by writing to him as it did, that it had
do so. This is not only contrary to the procedure laid down in
section 209 but is also out of harmony with the practice
and justice required in respect of other offences dealt with in
Chapter 20 of the Constitution. Section 244 provides
that no person
"will be punished before he has personally given evidence before
I would dismiss the appeal with costs.
........... . B. GOLDIN
Judge of Appeal
Signed: ..................... I.A. Maisels
Signed: L. DE V. VAN WINSEN
L.de V. Van Winsen
Judge of Appeal
this 23rd day of April 1982 at MASERU
Appellant : Mr. Ebersohn
Respondent: Mr. Masoabi
C. of A.
(CIV) No. 6 of 1981
CENTRE CONSTRUCTION Appellant
OFS LTD Respondent
was sued by respondent company for payment of the sum of M6,380.00
being in respect of goods sold and delivered by respondent
appellant and services rendered in connection with such goods during
the period May to December 1980 and by virtue of a verbal
entered into between the parties. Interest at 6% per annum and costs
of suit was also claimed. Appellant filed a notice
of intention to
defend whereupon respondent applied in terms of Rule of Court 28(2)
for" summary judgment. The application
was supported by an
affidavit of the credit manager of respondent company in which he
stated that appellant was indebted to respondent
in the amount
claimed in the summons and that he verified the amount of the claim
and cause of action. Mr. P.P. Makhoza, a major
controlling shareholder of appellant company, duly authorised thereto
by that company, filed an opposing affidavit
on the ground that the
summons was so vague as to leave appellant in doubt as to what the
claim related to. He further opposed
the granting of the order
claimed on the same grounds as those advanced by him in his
opposition to respondent's
the case of Barlows O.F.S. Limited v. P.P. Makhoza, Civil Case
a quo, despite the opposition, granted summary judgment as prayed.
The appellant now appeals against this judgment.
arguments advanced by counsel for the parties were the same as those
submitted in Civil Case 122/1981. The relevant facts in
the two cases
do not differ from each other. For the reasons given in the judgment
delivered by the Court in the latter case the
appeal is dismissed
Signed: L. de V. Van Winsen
L. DE V. VAN WINSEN
Judge of Appeal
Signed: ...I .A. MAISELS
Signed...... J.H. Steyn
Acting Judge of Appeal
this 23rd day of April 1982 at MASERU.
Appellant : Mr. Maqutu
Respondent: Mr. Viljoen
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