HIGH COURT OF LESOTHO
Application of :
BIBLE MINISTRIES 1st Applicant
BURKE 2nd Applicant
NKOROANE 1st Respondent
ALPHEUS MAKHUBU 2nd Respondent
the Hon. Mr. Justice M.L. Lehohla on the 11th day of January, 1991.
February, 1990 this Court confirmed the rule with costs.
following are the reasons for that decision.
ex-parte application moved on 21st March 1989 the applicants sought a
Rule Nisi requiring the respondents to show cause why
shall not he restrained from holding themselves out as authorities
of the Open Bible Ministries of Lesotho - O B M for short
their suspension from membership of the society has been lifted.
shall not he restrained from interfering with the affairs of the O B
shall not he restrained from attempting to register the site of O B
M at Ha Pokane, Qalo, in the district of Butha Buthe
in their names
or as authorities of O B M.
prayers under (a), (b) and (c) were ordered to operate as an interim
interdict by this Court. On an extended return day almost
later the application was heard.
lengthy affidavit Bruce Burke has averred on behalf of the applicants
that O B M is a religious missionary society registered
Societies Act 1966 under number 84/9 on 23rd March 1984.
further averred that O B M is a branch of a United States of America
missionary society known as Open Bible Ministries Incorporated
its headquarters at Honesdale County Wayne in the State of
U.S.A. Missionary Society extended its "pastorality to Lesotho
in 1982. In order to facilitate the proposed base of the
Lesotho Bruce Burke after taking advice for purposes of registering O
B M in Lesotho appointed the respondents to respective
Chairman and Vice Chairman of Lesotho.
deponent has filed along with this application a Constitution marked
"A" setting out the Directorate of O B M. It
was in terms
of Article XVII Section 6 thereof that the two respondents were
appointed committee members.
capacity as General Director the deponent delegated the respondents
to approach the Chief of Ha Pokane Qalo with a view to
site for O B M. This was done and a letter of allocation marked "B"
was secured and is before Court.
XVII Section 7 K.3 of Annexture "A" shows
entire missionary work was funded by General Headquarters in
Pennsylvania U.S.A. (G.H.Q. for short).
the deponent found that the respondents had not properly accounted
for monies received from various mission projects in
that they were not submitting any monthly reports and thus were
breaching provisions of Article XVIII Section 2A he
sent them a
letter dated 9th May, 1988 warning them about their conduct leading
to possible loss of their association with O B
M. See Annexture "C".
August, 1988 the deponent suspended the respondents from operations
of the O B M because of their failure to comply with
Section 6 H.7 of
deponent averred that O B M had spent M150,000 for buildings and
improvements on the site. Of this amount M100,000 came from
G H Q.
deponent complains that the deponents now claim the O B M site as
theirs. He avers also that the respondents despite being invited
conference of O B M in January 1989, failed to attend.
The O B M
had resolved that the site allotted to it he registered in accordance
with the Land Law of Lesotho. When members were
informed in January
1988 by some group of men that the chief of Pokane Qalo had no power
to allocate land, the respondents and
others were detailed to
investigate and rectify the position.
deponent later received a report in August 1988 that the respondents
were trying to register the site in their own names, the
being to oust the American leadership of O B M from the site.
urged on the Court by the applicants to take note of the fact that
Jason van den Heuvel is a linkman and a representative
of G H Q in so
far as G H Q has any dealings with O B M. See page 25F of the record
which stipulates the
of a treasurer to the O B M. There is also a NOTE appearing
immediately below 25 F saying "In the absence of a committee
any field then all references to "committee" shall revert
to the O B M representative or liaison at this printing,
this is Mr.
Jason den Heuvel".
seem therefore in the teeth of Jason being recognised by name in the
constitution an argument that his affidavit at page
73 is defective
and fails to comply with the requirement that it he administered by a
Commissioner of Oaths or be authenticated
is not in the right hall
park. In my view an acknowledgement in the constitution giving
identity and function of an individual
cannot be prevailed upon by
any breach of procedure in administering an oath to him. The fact
that his affidavit can be said to
he defective or even non-existent
cannot detract from the position that the constitution accords him.
contended by the respondents that the 2nd applicant is none of the
things that he states he is hut just an honorary ambassador.
page 63 the names, specimens signatures and capacities of office
holders clearly indicate that Bruce Burke is a Director
while the 2nd
respondent whose signature appears first in the list of signatories
has signed his name immediately below the respective
the three office holders. Surely if he maintained that Bruce Burke is
an ambassador he should have declined to
append his signature below
the contents of a document which in clear and big letters shows that
Bruce Burke is Director. Or if
the 2nd respondent recognised Bruce
Burke as Director as his signature below Bruce Burke's title seems to
indicate he should not
in these papers have associated himself with
the 1st respondent who regards Bruce Burke as an honorary ambassador
and nothing else.
indeed mystifying that after Bruce Burke has all along been shown in
all transactions as Director and recognised as such it
suggested that a director is yet to he elected or appointed.
applicants' attorney submitted that there is no real dispute of fact
in this application.
respondents concede that annexture "A" is O B M'S
Constitution. They suggest that O B M is autonomous. But page 6
the Constitution at.p. 19 of the record clearly states that each
officer shall sign a doctrinal statement every year and send
it to G
at p. 16 shows that each country shall have a committee. Clause XVII
2(a) at 13 hinds every member to send reports to
G H Q. This is the
practice that the respondents followed until they decided to seize
control of O B M unilaterally. But the point
is that there are
sanctions if the doctrinal statement is not signed by an
office-bearer: He cannot continue in office. That is
the long and the
short of it.
in their respective capacities as chairman and
vice-chairman-cum-secretary the respondents arc of a lower rank than
inasmuch as Clause XVII section 1 f under the caveat shows that in
the event of the committee not functioning all powers
shall revert to
O B M liason or representative Jason van den Heuvel it seems logical
to conclude that the constitution never intended
the respondents to
he the sole representatives of O B M.
"E" and "F" clearly show that until June 1986 the
authority of the 2nd applicant as Director of O
B M was not
questioned. It was only when the respondents attempted to take over O
B M that they started calling Bruce Burke a foreigner.
shows clearly that all money came from U.S.A. through the Director.
Thus the respondents' assertion that
they do not know him is a
falsity that should he interpreted adversely against its authors; the
contended for the respondents that they were not given an opportunity
to be heard. It is to he wondered what
they could he given by a body they did not recognise. Moreover
nowhere do the respondents in papers make this assertion
complaint. This constitutes an unsubstantiated submission. The
evidence before me shows that the 2nd applicant on page 6 para.
states that the respondents were invited to a conference of O B M in
January 1980 but they failed to attend. In response thereto
respondent on page 50 stated
"Contents of this paragraph are admitted; second applicant had
no legal authority to hold a conference."
respondent docs not dissociate himself from the 1st respondent's
attitude in this regard. So clearly they denied themselves
opportunity to be heard with their eyes open and of set purpose.
Their contention being that they could not be heard by a body
authority they did not recognise.
contended for respondents that there is dispute of fact. But at p. 49
para. 7 their attorney does not deny that in response
required of him by the other side he portrayed the respondents'
attitude as being that they were never accountable
to the 2nd
"who since 1987 appeared to he imposing himself as Director
trying to take over the administration of the 1st applicant......."
significant that in their deliberate misconception of 2nd applicant's
functions the respondents seek to read into the 2nd
discharge of his functions as Director something different
interpreted by them as imposing himself as Director trying
over the administration.
store was laid on respondents' behalf by the fact that the
Constitution says it is imperative that the indigenous must he used
as "foreigners cannot effectively evangelize the populace."
For this attitude the constitution relies on Paul's missionary
activity which is said to have been five fold. One of this being to
congregations. The submission in this regard seems to ignore the fact
that local congregations are to he established in an
and not by usurpation of the still existent authority. Moreover
nowhere is it suggested in this constitution that
refers to Paul that
he at any stage countenanced usurpation of church authority by local
congregations. Furthermore the constitution
does not say foreigners
should not envangelise the populace it only says they cannot
effectively do so. Thus reference on page
14 to these factors is
merely an indication of how the missionary business is to be run in
order to be 'aggressive' and ultimately
made effective. To suggest
that it is wrong for the mission to he run by foreigners and that it
is therefore right to forcefully
topple the properly constituted
authority of the church is not only wrong in principle hut disastrous
contended for the respondents that G H Q is to he in Lesotho. The
constitution does not specify where the G H Q is to he
The respondents registered it in Lesotho knowing that the G H Q is in
the U S A. Thus they cannot he heard to say that
they arc correct in
seeking to rely on their own fault.
brief hut relevant heads of arguments it was contended for the
applicants that rules governing application proceedings show
affidavits constitute not only evidence hut also pleadings; therefore
answering affidavits should contain what would he set
out in a Plea
plus evidence that would have been led in court. See Herbstein and
van Winsen - Civil Practice of the Superior Courts
in S.A. 3rd Ed. at
p.79. Also Hart vs Pinetown Drive-In-Cinama (Pty) Ltd 1972(1) SA 464
very often stated the parties stand or fall by what is contained in
their affidavits. See Herbstein et al at pp 80-81 - where
dispute of fact which had been forseen the Court in its discretion
may dismiss the application. See Rule 18(14) of the
High Court Rules
of Court and indeed the practice itself reprobate misuse of answering
affidavits if employed to defeat application proceedings.
words of Murray A.J.P. in Room Hire Co. (Pty) Ltd vs Jeppe Street
Mansions 1949(3) SA 1155 at 1165 are appropriate that
"..... A bare denial of applicant's material averments cannot he
regarded as sufficient to defeat applicant's right to secure
by way of motion proceedings in appropriate cases".
court has to ascertain –
(a) "Whether denials are not fictitious; intented merely to
delay the hearing ........"
(b) "Respondent's affidavit must at least disclose that there
are material issues in which there is a bona fide dispute of
(c) "The right to make tactical denials to force the opponent
into the witness box..... must perforce yield to the applicant's
right to the more expeditious and less expensive method of enforcing
a claim by motion".
(d) "Once the absence of such dispute of fact is apparent
applicant is entitled to have his relief given to him speedily and
cheaply on affidavits .............".
to reason that any disagreement with the applicant that is disclosed
in the replying affidavit is not enough.
stated in Engar & Ors vs Omar Salem Essa Trust 1970(1) SA 77 at
83 "The Court must not permit simple and blatant
denial to circumvent its effective functioning". The same case
is authority for the view that "If a statement
denial is an inference from facts, the affidavit in question must
disclose facts supporting the inference".
See page 83 F.
Mashoane vs Mashoane 1962(2) SA 684 at 685 it is stated that
"It may assist the Court to decide whether or not it can he said
on the papers as a whole that the denial in question, which
constitutes the conflict is mala fide or unsupportable in all the
circumstances disclosed by the papers".
come to the conclusion that this is a case richly deserving of speedy
and cheap disposal by virtue of total absence of what
one might call
serious dispute of fact.
is confirmed with costs and the respondents' contentions dismissed as
totally lacking in substance.
Applicants : Mr. Maqutu
Respondents : Mr. Matete
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law