CIV/APN/440/92
IN THE HIGH COURT OF LESOTHO
In the matter between:
EMMANUEL A.M.E. CHURCH 1ST APPLICANT
MONALETSANA QHOBELA 2ND APPLICANT
TOPOLLO MATLATSA 3RD APPLICANT
MONEHELA POSHOLI 4TH APPLICANT
KHOMO MOLAPO 5TH APPLICANT
LEKHETHO MOSITO 6TH APPLICANT
PULENG MOLAOA 7TH APPLICANT
BENDA MASHOLOGU 8TH APPLICANT
V
BISHOP RICHARD ALLEN CHAPPELLE RESPONDENT
(IN HIS CAPACITY AS BISHOP OF THE
18TH EPISCOPAL DISTRICT OF THE A.M.E. CHURCH)
Before the Honourable Chief Justice Mr. Justice B.P. Cullinan on the 30th day of September, 1993.
For the Applicants: Mr. B.F. Tsotsi
For the Respondent: Mr. P.B. Geldenhuijs
: Mr. S.C. Buys
JUDGMENT
Cases referred to:
Kahn v Louw N O & Anor. (1951) 2 SA 195;
Parker v Jones (1954) 2 All E.R. 553;
Setloaelo v Setloeelo (1914) AD 24;
Sekhonvana v Pitso & Anor CIV/APN/381/88. Unreported;
Webster v Mitchell (1948) 1 S.A. 1186.
THE FACTS:
The African Methodist Episcopal Church was founded at
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Philadelphia in the United States of America over 200 years ago, in 1787. The supreme body of the Church is the General Conference thereof, composed of the Bishops of the Church and an equal number of ministerial and lay delegates, which meets quadrennially. During the interim, the council of Bishops exercises executive control, with the General Board of the Church exercising administrative control.
Church property is vested in a Board of Trustees of the General Conference. Ultimately it was decided that such Board should be incorporated. Incorporation was effected in the State of Pennsylvania in 1933. The corporation was given the name of the "Board of Incorporators of the African Methodist Episcopal Church", as the laws of Pennsylvania prohibited the use of the word "trustee" in the name of any corporation. The articles of incorporation, contained in the Book of Discipline (1988) of the Church (Part III p.56), indicate however that the intent was to incorporate the Board of Trustees of the General Conference, which was to function under the said corporate name, functioning "in all particulars as ascribed to the Board of Trustees of the General Conference".
The General Board of Trustees and its duties is "not to be confounded or confused with the local Boards of Trustees of local
churches of the African Methodist Episcopal Church". The reference to local churches are those churches of the nineteen Episcopal Districts into which the Church expanded over the
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years. The first thirteen districts are located in North America, with the latter six districts located in West. East. Central & Southern Africa, South America. West Indies and London. A Bishop presides over each Episcopal District. The governing body of the Episcopal District is the Annual Conference a corporate body, incorporated, where the Annual Conference covers more than one state in the state of the larger membership. The presiding Bishop of the Episcopal District is the President of each Annual Conference within the Episcopal District. Thus it is that there are five Annual Conferences within the Eighteenth Episcopal District, in respect of Lesotho, Swaziland. Botswana, Mozambique and North-East Lesotho. The respondent to this application presides over the Eighteenth District and is President of those five Annual Conferences.
The first applicant, the Emmanuel A.M.E. Church, Maseru, is a local church within the Annual Conference for Lesotho, in the 18th Episcopal District. As with every other local church, the Emmanuel A.M.E. Church has a Pastor, appointed by the presiding Bishop, as the spiritual head of the church. The church is also governed by an administrative body known as the Board of Stewards, who are nominated each year by the Pastor, their appointment being confirmed by the Quarterly Conference of the Church. The Duties of the Stewards is broadly administrative, ranging from financial matters to the registration of marriages and baptisms, the survey of membership and the relief of the sick and the poor. Another board within the local church is the Board
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of Trustees who are elected annually by the members of the church. The Board, subject to what I shall say later, is required "to manage all the temporal concerns of the church".
The subject matter of this present application arose on 14th January. 1992, when the respondent announced, according to the 2nd applicant, that "he had sold a portion of plot number 36 (Maseru) belonging to the A.M.E. Church, to Enterprise Investment (Pty) Ltd. The 2nd applicant then avers that on the 19th January, 1992 and thereafter local Church Conferences were held at which both the Board of Trustees and the Board of Stewards reported the respondent's announcement and that "we were mandated by the Church Conference to investigate and stop the sale".
On 7th February, 1992 nine trustees and eight stewards (involving 16 persons, as the 3rd applicant signed in both capacities) and also the Pastor of the Emmanuel A.M.E. Church Rev. D.M. Sents'o, addressed a petition to the Council of Bishops, through the respondent, seeking the appointment of a Conciliation Committee in order to resolve the dispute. A Conciliation Committee sat in Bloemfontein on 18th April, 1992 under the chairmanship of the presiding Bishop of the 19th Episcopal District, but failed, at that sitting, to resolve the dispute. The 2nd applicant avers that the respondent declined the Chairman's proposal for a further sitting which as a result "never materialised".
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Thereafter a charge was framed against the respondent (apparently on 3rd June. 1992) with the Emmanuel A.M.E. Church as "Plaintiff". The Book of Discipline provides that such charge must be laid before a Preliminary Inquiry Committee, consisting of 76 persons elected by the General Conference, from amongst whom 13 are selected to determine whether there is "reason sufficient" for a trial. The 2nd applicant avers "that the Judiciary of the Church . .. returned the verdict that the Conciliation process was incomplete".
Thereafter the respondent was reassigned to the 18th Episcopal District. When the Annual Conference was held at Mohale's Hoek from 16th to 22nd November, 1992, the Ministerial Efficiency Committee considered a complaint by the respondent against the Rev. D.M. Seats 'o and recommended that he be suspended. Thereafter the Annual Conference resolved that Rev. Sents'o be suspended from the Lesotho Annual Conference for an indefinite period. The 2nd applicant avers that the respondent then appointed himself as Pastor of the Emmanuel A.M.E. Church.
There followed the 18th Episcopal District Planning Meeting, held at Maseru from 14th to 18th December, 1992, inclusive. The Meeting could be regarded as a meeting of all five Conferences within the 18th District planning the activities of the A.M.E. Church for the next quadrenniurn, and has been referred to as "the Plenary Session" by the parties. In any event, the second applicant averred, on 16th December, 1992, that
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"as a result of the above events the Emmanuel A.M.E. Church is not constitutionally represented at the Plenary Session currently in progress, the Resolutions of which will be binding on the Emmanuel A.M.E. Church and which may be prejudicial to it" and that he was "apprehensive that any decision made at the Plenary Session with regard to the Reverend D.M. Sents'o and Site 36, would be prejudicial and would cause irreparable harm if the Respondent is allowed to convene the session to its conclusion".
THE NOTICE OF MOTION:
That averment was made in the course of a founding affidavit, which with supporting affidavits from the remaining six applicants, grounded an ex parte application on 16th December, 1992, brought on an urgent basis seeking a rule nisi, calling upon the respondent to show cause why
The "purported" suspension of the REVEREND DANIEL MOLETE SENTS'O from office shall not be declared null and void.
The "purported" sale of a portion of Plot 36 to Enterprise Investment (Pty) Ltd. shall not be declared null and void.
The proceedings and decisions of the Plenary Session currently in session shall not be declared null and void and forthwith postponed
until Resolution of prayers (a) and (b) above and the police be ordered to effect this prayer.
The application also contained a prayer that orders under
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prayers (a), (b) and (c) above should operate as interim orders with immediate effect. I granted the application as prayed, with an amendment which deleted the last nine words in prayer (c) above, as I did not appreciate what possible role the police had to play in the matter. The respondent in due course filed an answering affidavit and the second applicant filed a replying affidavit, which was again supported by affidavits from the remaining six applicants. The averments therein can be considered under the heads of argument raised at the subsequent hearing.
THE BOOK OF DISCIPLINE OF THE AFRICAN METHODIST EPISCOPAL CHURCH:
The learned Counsel for the respondent Mr. Geldenhuijs raised a number of heads of argument in limine. It proves convenient to deal with all heads raised. One aspect, which is common to all such heads is the applicability of the Book of Discipline (1988) of the African Methodist Episcopal Church. All parties rely on the contents thereof. As Mr. Geldenhuijs observes, all mattes involving a voluntary association, such as the A.M.E. Church, turn ultimately and essentially, on the terms of its 'constitution'. In the case of Kahn v Louw N O & Anor. (1) De Villiers J.P. observed at p.211:
"The Constitution of a voluntary organisation is the Charter of the organisation, expressing and regulating the rights and obligations of each member thereof."
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Again, in the case of Parker v Jones (2) Lynskey J. speaking of an unincorporated association observed at p.558 that
"The relationship between its members is contractual. That contract is contained in, or to be implied from, the rules."
LOCUS STANDI
(a) Mandate:
As indicated above the second applicant avers that the applicants were mandated by the Church Conference to investigate and stop the sale. The onus is upon the applicants to satisfy the Court on the basis of the material placed before it. that they have Jocus standi (see Herbstein & Van Winsen, The Civil Practice of the Superior Courts in South Africa 3 Ed p.78 and 2 Ed p. 75) . In this respect no reference was made to any particular resolution of the Church Conference and again no copy of any minutes containing such resolution was placed before the Court.
The Book of Discipline (Part IV Section C, Local Church Organization pp.74/78) indicates that the role of the Board of Stewards of a local church is mainly administrative, whereas those of the Board of Trustees, as one would expect, is mainly proprietary. The legal identity of a voluntary association is vested in its trustees, and I cannot see therefore that a Church
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Conference could confer authority on its Board of Stewards to maintain any action before the Courts. In any event, the latter six applicants are trustees. The Book of Discipline indicates that trustees of a local church may extend from three to nineteen in number. There is no averment or evidence however that the six . applicants constitute a majority of the Board of Trustees, an aspect which is emphasized by the form of attestation to a sample form of deed by local church trustees, contained at pp,64/65 of the Book of Discipline.
Mr. Geldenhuijs submits that the Church Conference in this case had no authority to issue any mandate in the matter. He refers to the following extract in the Book of Discipline at p.242:
"THE CHURCH CONFERENCE
Composition
A Church Conference is a meeting of the members and minister residing and worshipping at a given place for the consideration and
transaction of local church business, the minister in charge being the presiding officer."
Paragraph 2 thereafter provides that "the duties of the conference may be many and varied", and then goes on to detail numerous instances of such duties which are clearly designed, as the paragraph indicates, to "promote the kingdom of God on earth".
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The learned Attorney for the applicants Mr. Tsotsi relies upon the words above, "transaction of local church business" and again the words, "the duties of the conference may be many and varied". He submits that the sale of church property and the suspension of the Pastor is "church business". I consider that a number of extracts from the Book of Discipline throw some light on the situation. The following extracts are from Articles 5, 7. 8 and 9 of the Articles of Incorporation (p.57):
"5. ... No personal or real property, movable or immovable, or mixed, corporeal, or incorporeal, or other thing of value, not held by or under the jurisdiction of an Annual Conference of the A.M.E. Church, shall be sold, donated, mortgaged, conveyed, transferred, abandoned and/or encumbered without the written approval of the Board of Trustees; that is, the Board of Incorporators of the African Methodist Episcopal Church. Notice is hereby given to whom it may concern that the right, power and authority to sell, donate, mortgage, convey, transfer, abandon, or encumber personal or real property, movable or immovable or mixed, corporeal, or anything of value not held by or under the jurisdiction of an Annual Conference of the A.M.E. Church, lies solely and exclusively under the jurisdiction and administration of the Board of Trustees of the Board of Incorporators of the African Methodist Episcopal Church". "7. The Board of Trustees is. the legal representative of the Church. Accordingly, it may sue, be sued in matters wherein the fiscal or property matters or interest or rights of the Church are concerned. 8. It shall be the duty of the Board of Trustees to quiet any claim, title, dispute asserted by any person, local church, society; auxiliary, agency; department, or commission which shall be deemed adverse to the general church, or the General Conference; including all property to the
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church whether held in trust or which may be conveyed to, or committed to, or for the benefit of the church, its members, society,
auxiliaries, departments, boards. and commissions, wheresoever located. 9. This board reserves to the local church, society, departments, commission, local trustee boards the right as stated in the Book of Discipline for such transaction and applicable state law." (Italics supplied)
Article 14 of the Articles of Iresporation in part reads thus (p.59):
"14. The proposed Corporation is the owner of several properties located throughout the United States, Africa, the West Indies,
Guyana, Cayenne, and Suriname. Haiti, Bermuda, and the Dominican Republic (in) the nature of churches, episcopal residences, and
buildings housing the various church departments and activities. The title of these properties in many instances is in the various
subordinate churches, departments, auxiliaries, societies, and associations, all being strictly used for the purpose for which the African Methodist Episcopal Church was organized, together with come property held directly by the General Church in the estimated value of $35,000,000, more or less ........" (Italics supplied)
In Section B of Part III of the Book of Discipline, dealing with "General Church Property," at pp.62.63 the following
extracts appear:
"1. PURCHASE, TRANSFER
The African Methodist Episcopal Church,
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Inc. is organized and functions solely as a Connectional Church. The Title(s) to all real, personal and mixed property held at the General, Annual Conference or by the local churches, shall be held IN TRUST for the African Methodist Episcopal Church, Inc.. and subject to the provisions of its Discipline. However, the absence of a trust clause as indicated herein. in deeds, and documents of conveyances previously executed shall not exclude a local church from or relieve it of its Connectional character and responsibilities to the African Methodist Episcopal Church Inc., nor shall the lack of the TRUST phrase excuse or absolve a local congregation, church agency or Board of Trustees of its responsibilities and accountability of the African Methodist Episcopal Church Inc."
"2. LOCAL CHURCH PROPERTY - TRANSFER OF PROPERTY
The Board of Trustees, duly elected by the local church as provided by the Discipline of the African Methodist Episcopal Church, may take such steps to purchase, mortgage, sell, transfer and convey real and personal property, PROVIDED, that such transfer has been duly approved by the resolution in Quarterly Conference of the said church and also by the trustees of the Annual Conference in which the property is located, and of which the presiding bishop is president. The Board of Trustees of the Local Church hold the property in TRUST for the General church and not in their individual capacities, Deeds:\ when the local church shall be incorporared, all property - real, personal, or mixed shall be deeded to it in its corporate name, IN TRUST for the African Methodist Episcopal Church. Inc. That the local church corporation shall have the power to sell, convey and dispose of both real and personal property as directed by the A.M.E.
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Discipline. The proceeds of/from the sale of any local church property shall be held in TRUST for the African Methodist Episcopal
Church or dispersed for another improvement of other property owned by it. or to be purchased by it. No property shall be sold except wifh the approval of the Quarterly Conference, by Resolution.
"MORTGAGING PROPERTY
The Board of Trustees and Incorporators of the local church. elected and organized as prescribed in the Discipline of the African
Methodist Episcopal Church. shall have the power to mortgage or encumber the property of the local church or corporation. PROVIDED.
such action has been authorized by majority vote of the membership present in a duly called church conference called for specific
purpose. It shall be required that NOTICE of such meetings must be given fourteen (14) days previously, including two (2) Sundays, and such action must be approved by resolution in a regular session of the Ouarferly Conference. (Wherever these laws conflict with the laws of the State in which the property is located, the pastor and the trustees shall proceed in a manner to conform with the law)."(Italics supplied)
There follows at pp.64/66 a sample deed of conveyance of local church property by the trustees of such local church. There follows again at Section C of Part III (General Counsel And Attorney) the. following extract emphasising the connectional nature of the Church:
"1. Whereasy the Board of Trustees has the authority to hire and retain General Counsel to represent the Church, as a corporate
entity, such counsel shall
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represent the Church in those matters which pertain to or involve the connectional and/or general property or fiscal affairs, and the rights of the Church. The legal affairs, and matters of local churches, societies, auxiliaries, shall be handled and the costs or fees thereof borne by such local church, entities or persons. Nothing herein, however, shall bar, or prohibit the General Counsel from providing assistance to the local attorney upon a specific request from the presiding Bishop of that particular Episcopal District.
The local church may also petition the presiding Bishop, in writing, to intercede for the Board of Trustees of the Church, to have General Counsel assist it in any legal matter specifically involving realty or church property (real). In such instances, the local church shall pay a fair share of the fees."
It will be seen from the above extracts that a local church may hold property, but that it does so in trust for the A.M.E. Church.
Secondly although such local church is a voluntary association (at p.63 para. no.4 the word 'society' is used) it may adopt the device, as did the A.M.E. Church of incorporating the Board of Trustees. Again it will be seen that the Board of Trustees may purchase, convey and mortgage local church property, but only the after approvals indicated above.
In view of the above extracts, and in view of the temporal and proprietary nature of the duties of the Board of Trustees, while the Book of Discipline is silent on the matter, it seems to me that a Church Conference could authorise its Board of
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Trustees to initiate litigation. In view of the 'connectional' character of the A.M.E. Church however. I cannot but see that such mandate would need in turn to be approved by the Quarterly Conference and at least by the Board of Trustees of the Annual Conference.
I do not see however that it is necessary to decide the point, as there is in any event no sufficient evidence before me. other than a bald statement, that the latter six applicants (the 2nd applicant is not a trustee but a steward) were authorised to bring this application.
Ownership of Property :
That is but one of the applicant's difficulties. The question arises as to the ownership of the property in question. In his founding affidavit the second applicant annexed a letter from the respondent and deposed that the latter therein,
"categorically states that plot 36 and 37 are owned and deeded to the 18th Episcopal District African Methodist Episcopal Church and belong to it, and thus forms a subject of decision by the Plenary Session currently in progress."
That did not correctly represent what the respondent had said, namely,
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"... the land plot 36 and 37 is deeded to the African Methodist Episcopal Church not to Emmanuel. As I said then and as I say now, my interpretation is that the land belongs to the 18th Episcopal District African Methodist Episcopal Church. Emmanuel has been reaping benefits from the plot in question without regard for the other members of the Church who are the true owners of the land." (Italics supplied)
Consideration of the respondent's interpretation can be deferred for the moment. For present purposes, it is apparent that the respondent never said that the property was deeded' to the 18th Episcopal District, he said that it was "deeded' to the African Methodist Episcopal Church. The second applicant himself averred, as earlier indicated, that the respondent "had sold a portion of plot number 36 belonging to the .4.M.E. Church" . On the initial ex parte application, the Court was not supplied with a copy of the Book of Discipline and was therefore not in a position to appreciate the structure of the A.M.E. Church and the existence, much less the structures, of local churches therein. At the time I considered that the respondent's statement that the land belonged to the 18th Episcopal District established, on a prima facie basis, a sufficient nexus in the matter.
In the answering and replying affidavits, however, the respondent and the applicants have annexed copies of relevant certificates of title. Sites no.36 and 37, comprising 9,878 square metres, were allocated to the African Methodist Episcopal Church on 23rd January, 1968, and a registered certificate of
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title was issued on 12th November, 1968. On 24th August, 1976 a certificate of transfer in respect of Sub-division A of Site No.611, comprising no more than 15.48 square metres, whose commercial value was declared to be nil, and immediately adjoining Site 36, was issued by the Land Advisory Committee to the Emmanuel African Methodist Episcopal Church. On 20th September. 1976 however a deed of transfer was registered reciting that the previous occupier had "voluntarily and gratuitously surrendered" the parcel of land "for re-allocation", which had "in consequence been re-allocated by the proper authority" to the African Methodist Episcopal Church. the Registrar of Deeds thereafter certifying that the African Methodist Episcopal Church was entitled to use and occupy the said land.
Again, on 10th november, 1976 the Land Advisory Committee allocated another small parcel of land, to the Emmanuel African Methodist Episcopal Church, that is, Site 150, an "L" shaped parcel adjoining two sides of Site 36, measuring some 60 metres and 13 metres on both extensions thereof and no more than 2 to 6 metres in the width of each extension, comprising 339 square metres in all. Again, on 15th December, 1976 the Registrar of Deeds issued a registered certificate of title in respect of site 150 to the African Methodist Episcopal Church, citing that it appeared that the said Church had "been lawfully granted the right to use and occupy" the site and certifying that the said Church was the lawful occupant of the site.
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Subsequently on 24th January, 1977, the Registrar of Deeds issued a certificate of consolidated title to the African Methodist Episcopal Church, reciting that the said Church was the registered owner of "every right and interest in and to the buildings and other improvements" on Site no.36, Site no.150 and Sub-division A of Site 611, "which have been consolidated into the property hereinafter described". Thereafter the Registrar certified that the African Methodist Episcopal Church was the registered owner of every such right or interest in respect of Site no.151, 1.0218 hectares in extent, that is. the consolidated property.
The second applicant avers in his replying affidavit that "the site in question has a long history of consolidation" and that the certificates of title "support our position in terms of the book of discipline". I cannot see that they do. No averment and no submission whatever has been raised in respect of the certificates of allocation in respect of sites 611A and 150. to which I have drawn attention, and the registered title in respect thereof is vested in the African Episcopal Methodist Church, as is the title in respect of site 36, the consolidated title in. respect of all three sites (now comprising site 151) being similarly vested.
In any event, the Memorandum of an Agreement of Sale (subject to the grant of a lease under section 29(1) of the land Act, 1979 and to Ministerial consent under section 35 thereof)
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which the respondent signed on 26th November, 1991, is in respect of, "portion of Site No.36 ... measuring 82m x 55m (copy of Subdivision of Site No. 36 is attached hereinafter referred to as "36A")". The site plan attached indicates that Site 36A is a portion of the original site 36, and does not encompass any portion of the adjoining marginal strip of land comprising the original Site 150, nor the original Site 611A. The title in Site 36A is then clearly vested in the African Methodist Episcopal Church and not in the Emmanuel A.M.E. Church and has been so vested for the last 25 years.
The applicants rely upon the contents of Article 9 of the Articles of Incorporation (p.58) reproduced above, and paragraph no 2 ("Local Church Property - Transfer of Property") of Section B ("General Church Property") (pp.62/63) reproduced above. Those paragraphs must not be read out of context however. The effect of all of the extracts which I have reproduced above can be summarised thus:
(i) some property is held by the African Methodist Episcopal Church throughout the entire 19 Episcopal Districts;
(ii) some property is held by local churches, but if so, even despite the absence of any clause creating any trust in the documents of title, such property is held by the local church in trust for the African Methodist
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Episcopal Church;
(iii) the Board of Trustees of the local Church is free to purchase property and thereafter to deal with any property held by the local church, subject to the approval specified in the Book of Discipline.
It follows from all that, that a local Church or the Board of Trustees thereof can exercise no power in respect of property held by another local Church, or by the Annual Conference, or the particular Episcopal District, much less by the African Methodist Episcopal Church. It will be seen that the sale of property held by the African Methodist Episcopal Church, can only be effected upon the approval of the Board of Trustees of that Church, but that is a matter for that Board, and clearly the applicants have no locus standi in judjcio in the matter.
The respondent's letter referred to above contains his interpretation that, while Site No.36 "is deeded to the African Methodist
Episcopal Church ... the land belongs to the 18th Episcopal District." In his answering affidavit he avers that the property
is held by the Episcopal District on behalf of the Church. It may be that the words 'belong' and 'held' were used in the layman's sense. As I see it, it may well be that the 18th Episcopal District is charged with the duty of maintaining the property: the old Site No.36 (and therefore Site No. 36A) is held by and belongs to the African Methodist Episcopal Church.
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however. As to the proposed sale of Site 36A, the respondent avers that he "applied for leave from the Board of Incorporators in terms of Part III page 57, of the Articles of Incorporation ... and such permission was granted". The second applicant in his replying affidavit can do no more that deny this, observing that the respondent has not annexed any documentary proof in the matter.
In this respect I observe that the conciliation petition. which accused the respondent of selling the property without authority, was presented to the Council of Bishops in February. 1992. Again, the charge which was subsequently levelled against the respondent was of necessity addressed to the Secretary of the Church and the Secretary of the Council of Bishops, at least three Bishops of which Council are members of the Board of Incorporators. I cannot but then see that the latter Board is fully aware of the situation. There is no evidence therefore before me to suggest that the approval of the latter Board was not sought and gained. In any event, I repeat, that is a matter for the latter Board and not for the applicants.
The Reverend D. M.Sents'o. Pastor:
The application in respect of the Rev. D.M. Sents'o could be described as one in wrongful dismissal, or suspension. The relationship involved is contractual, indeed one of a personal nature. Clearly the right to bring such application vests only in the Rev. Sents'o. He is not a party to the proceedings,
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however, and there is nothing whatever before me to indicate that he has authorised the applicants to bring this application on his behalf. I do not wish to and have no vires to comment on the merits or demerits of the Pastor's suspension. The Pastor is free to pursue any remedy available to him. In this respect the respondent observes that the Pastor has not pursued any appeal under the Book of Discipline. In any event, the applicants have no locus standi in the matter.
CITATION OF PARTIES:
The Applicants
The first applicant is stated to be the Emnmanuel A.M.E. Church. There is again no satisfactory evidence on the affidavits that the said Church authorized this litigation. Secondly, the Book of Discipline indicates that the power to sue and be sued, vests in the Board of Trustees of the said Church on its behalf. There is however, as I said earlier, nothing to indicate that the latter six applicants consitute a majority of the Board of Trustees, as the maxim applies, delegatus est non potesr delegare.
The Resopondent
There are two parties to the particular Memorandum of an Agreement of Sale, namely, "AFRICAN METHODIST EPISCOPAL CHURCH (hereinafter
referred to as "the Seller")" and "ENTERPRISE INVESTMENT (PTY) LTD (hereinafter referred to as "the
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Purchaser")". The agreement provides for signature by "Seller" and "Purchaser". The respondent signed as "Seller", bus so also did another person sign as "Purchaser", both signatures being witnessed by two witnesses. Neither signatory signed "for and on behalf of" the Seller or Purchaser, but in view of the terms of the agreement, that is the only reasonable construction which can be placed upon the signatures.
The applicants' cause of action therefore, in regard to the said agreement, lies against the Seller, namely the African Methodist
Episcopal Church, that is, the Board of Trustees of that Church, as the legal representatives thereof. Mr. Tsotsi submits that the applicants cannot sue the Church (African Methodist Episcopal Church), when "the respondent acts outside the Church". But that is an assumption, which the applicants have not established. The position is simply this. If the applicants wish to impugn an agreement, then they must cite the parties to that agreement. That being the case, whatever about the respondent, both the Board of Trustees of the African Methodist Episcopal Church and also Enterprise Investment (Pty) Ltd., as an interested party, should have been joined as respondents.
More appropriately, Article 8 of the Articles of Incorporation, reproduced above, indicates that it is "the duty of the Board of Trustees of the African Methodist Episcopal Church to quiet any claim ... deemed adverse to the general
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church ...". Article 9 thereafter merely reserves rights to a local church " as stated in the Book of Discipline", that is, in respect of property held by the local church. That was not the case here, and the matter could then have been referred to the said Board of Trustees, in the event that it might wish to initiate litigation. In this respect I observe that the upper hierarchy of the Church has been seized of the dispute since February, 1992 apparently without their taking any action against the respondent.
Again, the second applicant avers that the respondent "purported to suspend Reverend D.M. Sents'o at the first sitting of the Annual Conference held at Mohale's Hoek on 16th to the 22nd November, 1992". The fact of the matter is that the Pastor was suspended by the Lesotho Annual Conference. Whatever about the role that the Respondent played or did not play in the matter, the Board of Trustees of the Annual Conference should have been joined as a respondent.
THE PLENARY SESSION
As indicated earlier, the second applicant averred that " As a result of the above events the Emmanuel A.M.E. Church is not
constitutionally represented at the Plenary Session currently in progress,..." As the respondent avers, it is clear from the
Plenary Session programme, issued on 25th November, 1992, that the invitation to attend the Plenary Session was extended to the
"Episcopal District and (Annual) Conference Leadership". Until
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such time as the suspension of the Rev. D. M. Sents'o is set aside, either by the African Methodist Episcopal Church, or by this Court, I cannot see that the Emmanuel A.M.E. Church "is not constitutionally represented." at the Plenary Session and I cannot therefore see that there is any question of the Plenary Session being "null and void."
Further, as I observed previously, there is nothing before me , other than a bald statement, to establish that the Emmanuel A.M.E. Church Conference authorized the latter seven applicants to pursue an interdict against the Plenary Session and again I observe that I am not satisfied that the latter applicants have locus standi.
Thirdly, prayer (c) in the Notice of Motion seeks a declaration and interdict pending the "resolution of prayers (a) and (b)". The applicant have simply no locua standi in the matter of prayers (a) and (b) so that prayer (c) must fall away.
Fourthly, the Plenary Session is drawn, in effect, from the local churches of four countries in the Southern African region. The granting of a declaration or an interdict is discretionary. It now seems to me entirely inequitable to have suspended that Session at the request of seven members of one local church, with a grievance, imagined or otherwise, which could have been settled under the procedure contained in the Book of Discipline. Had I been given a copy of the Book of Discipline, and an opportunity
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to study it, I confess that I never would have granted prayer (c) ex parfe.
THE REMEDY
Interlocutory interdicts were granted ex parte in this matter. What is now sought are final interdicts. The guiding principles applicable in the grant of an interdict were stated some eighty years ago in the case of Setlogelo v Setlogelo(3) by Innes J.A. (as he then was) in the following words:
"The requisites for the right to claim an interdict are well known; a clear right, injury actually committed or reasonably
apprehended, and the absence of similar protection by any other ordinary remedy".
(See Lee and Honore's The South African Law of Obligations 2 Ed Newman & McQuoid Mason) at pp258/259. I had occasion to consider the above dicta in granting an interlocutory interdict in the case of Sekhonvana v Pitso & Anor (4) . What emerged from consideration
of further dicta by Innes J.A. in Setlogelo (3) and those of Clayden J (as he then was) in Webster v Mitchell (5), is that where the right is "clear", as distinct from "a prima facie right though open to some doubt" in the case of an interlocutory
interdict, the injury involved need not necessarily be "irreparable".
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A Clear Right:
In any event in the present case the applicants seek a final interdict. In the light of what I have already said, they have no right whatever in the matter of the sale of the property the suspension of the Rev. D.M. Sents'o nor the suspension of the Plenary Session.
Injury actually committed or reasonably apprehended:
Suffice it to say, in the light of what I have already said, that the applicants have failed to establish any injury or any reasonable
apprehension of injury to themselves, or the Emmanuel A.M.E. Church, under any of the three prayers in the notice of motion.
The Absence of Similar Protection By Any Other Ordinary Remedy:
I wish to lay emphasis upon the words "similar" and "ordinary" used by Innes J.A. By the use thereof I consider that the learned Appellate Judte (as he then was) meant to convey that the applicant for an interdict did not have to show that he had exhausted every possible remedy which might not perhaps secure for him the same protection which he might secure from the Court. Hence Lee and Honore ibid at p259 use the expressions "no other safiffactory remedy", or "no other effective remedy", which I respectfully propose to adopt.
The respondent refers to Part XI of the Book of Discipline,
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which deals with the Judicial Council of the African Methodist Episcopal Church. Section H thereof deals with the duties of the Council, paragraph (h) thereof reading as follows (at p.285):
" Members of the A.M.E. Church are hereby required to seek a final determination of any dispute arising between said members and the church and/or any department thereof by exhausting all legal remedies provided in the Discipline before civil proceedings are engaged in by the said member in his/her own behalf or any one similarly situated."
Mr. Tsotsi submits that the effect of removing the Pastor is that "conciliation process would be cut off. as they (the applicants)
would have to go through the Pastor and the Pastor is the respondent". I do not agree. Section C of Part X at pp 266/267 of the Book of Discipline provides that "A member of the A.M.E. Church who is in good and regular starding may file a charge against a Bishop of the A.M.E. Church". Section B provides for serivice upon the "accused". Section C however requires no more than that the charge be delivered to the Secretary to the Church.
The conciliation process was initiated and the respondent, as the presiding Bishop, duly placed the petition before the Council of Bishops. There is nothing before me to suggest that the respondent would, or indeed could, block any Church judicial process. As to the conciliation petition, the second applicant deposed, as indicated earlier, that after the Committee at its first meeting had failed to resolve the dispute, "the Chairman
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proposed a subsequent sitting ... and the Respondent declined such that the second sitting never materialised. We then proceeded to charge the Respondent....". The respondent denies that the second meeting did not take place as a result of any of my actions or my conduct." He refers to paragraph 2 of Section A (Conciliation Committee), Part X (Judicial Administration), of the Book of Discipline at p265 which reads:
"Within thirty (30) days after the first meeting of the committee, the Presiding Bishop shall meet informally, separately,
with each party involved, with a view to work out a firm resolution of differences. If it shall appear that the further conference(s) may prove fruitful, the Presiding Bishop and Conciliation Committee shall keep the lines of communication open and do all possible to effectuate settlement of the matter. If the matter is not settled within one hundrend twenty (120) days after the first meeting of the committee, the matter of conciliation shall be closed, and the committee discharched.
The parties shall have the right to file, petition, complaint, or charge with the Preliminary Inquiry Committee, if a Bishop is
involved, and to the Judicial Council if a General Officer or a Connectional Officer is a party to the matter. In cases involving a Pastor or Presiding Elder, the matter shall proceed according to the A.M.E. Discipline trial and then to the Judicial Council thirty (30) days after the Conciliation Committee shall close its consideration of the matter."
The second applicant does not say when the charge was levelled against the respondent. The testimony' by the third applicant against the respondent, presumably forwarded with the charge, is dated 3rd June, that is, 46 days after the first meeting of the Conciliation
Committee and a full 74 days before the charge could properly be laid under the Book of Discipline.
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The second applicant avers, as indicated earlier, that the "Judiciary of the Church ... returned the verdict that the Conciliation process was incomplete." If the matter had not been settled by 16th August, 1992, therefore, there was nothing to prevent the applicants thereafter from availing of "the right to file, petition, (complain against) or (renew the) charge" against the respondent before the Preliminary Inquiry Committee. That was not done. The applicants took no further action against the respondent under the Book of Discipline for a further four months, and on the 16th December they commenced these proceedings ex parfe. The applicants cannot therefore be heard to say that no alternative satisfactory or effective remedy was available to them.
NON-DISCLOSURE :
Which brings me to the reason why, possibly, the second applicant's founding affidavit has nothing to say in respect of the period
between June 1992, when presumably the charge against the respondent was returned, and the holding of the Annual Conference between 16th and 22nd November, 1992. What the second applicant, or the other applicants, failed altogether to disclose was that proceedings had been instituted in this Court (CIV/APN/234/92) by the Eighteenth Episcopal District African Methodist Episcopal Church against the Management Committee of the Emmanuel A.M.E Church, the 7th applicant in this application, the 3rd applicant, the 2nd applicant, the Rev. D. M. Seats'o and
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one Rebecca Nchee. Those proceedings are not yet completed. and I have no wish to say anything which might prejudice the course thereof. Some aspects thereof are nonetheless relevant to these present proceedings. The application in the former proceedings sought to compel the respondents thereto to account for monies, collected as rent from tenants at the F. C. James Centre, Maseru, to the Board of Trustees thereof. An affidavit is filed thereon by the present second applicant, dated 28th August. 1992, wherein he avers, incidentally, that he admits that "the church (The African Methodist Episcopal Church) does own properties on Plot 36 and 37 Maseru Central" and that it does have some interest in the F.C. James Centre, Maseru. He also avers that when he and the other respondents learnt of the agreement of sale of site 36A, they were "forced by the illegal actions of the Bishop" and others to deposit rentals into "one of the many accounts which belong to the church "(apparently the Emmanuel A.M.E. Church), that is, other than the usual bank account, and that such rentals would be all duly accounted for.
That averment was made on 26th August, 1992 despite the fact that as early as 19th June, 1992, the Attornies for all parties had agreed before the Hon. Mr. Justice B.K. Molai that the respondents would pay all funds collected by them, in respect of the affairs of the F.C. James Centre, into the trust account of the respondents' Attornies, Webber, Newdigate & Co., pending finalisation of the application. As late as 12th October, 1992, the present respondent's Attornies (Du Preez, Liebetrau &
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Co.)(who also repesent the 18th Episcopal District) wrote to the present applicants' Attornies (Webber Newdigate & Co.) stating that the 18th Episcopal District was "prepared to consider possible ways in terms of which the existing agreement (for the sale of land) can be cancelled." one of the conditions underlying such settlement being "that a full accounting ... be done by your offices of all funds received to date". The respondent in the present application refers to these aspects in his answering affidavit and deposed that the relevant present applicants have not complied with the undertaking of 19th June, 1992. The second applicant does not even refer to any of such aspects in his replying affidavit.
Whatever about the proposed settlement, quite clearly the existence of previous proceedings, if not between the exact same parties, then certainly involving the same persons and ultimately the same subject, the sale of Site No. 36A, should have been disclosed to the Court in the ex parte application. It is trite that such an application should be conducted with uberrimaa fides. The ex parte application was brought before me during Vacation, at 7p.m. on 16th December. I consider the non-disclosure of the earlier proceedings fatal to this application. Apart from all the other reasons I have given above for the dismissal of this application, I wish to emphasise that I would also be prepared to dismiss it solely on the ground of non-disclosure.
Accordingly the rule is discharged and the application is
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dismissed with costs to the respondent.
Delivered at Maseru This 30th Day of September 1993.
B. P. CULLINAN
CHIEF JUSTICE
