CIV/APN/131/82

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

STEPHEN
SIMON MOLEFI PHAKISI Applicant

v

LESOTHO
EVANGELICAL CHURCH Respondent

JUDGMENT

Delivered
by the Hon. Chief Justice, Mr. Justice T,S. Cotran on the 23rd day of
March 1983

The
applicant Mr. S.S.M. Phakisi is seeking an order directing the
respondent to allow him to attend and participate at all meetings
of
the Seboka or Executive Council thereof and enjoy all the rights and
duties attached to being a member of the Seboka.

The
respondent Lesotho Evangelical Church(the Church) oppose the
application.

The
papers are volumenous but the dispute is simple. Phakisi's home is in
Mokhotlong and he is an elder of the Church in the parish
bearing the
same name which falls under the Presbytery of Lotl I.

The
supreme governing body of the Church is the Seboka and its affairs
are governed by a written constitution. It is annexture D
of the
founding affidavit. Seboka consists of 72 members elected by various
organs of the Church. The Presbyteries elect 48 members
(s.18) and
the number of persons elected to represent each Presbytery at Seboka
meetings (once every two years) vary from 4 to
10 and depend on the
numerical strength of congregations in the parishes (s.19).

Phakisi
says in his founding affidavit that he was

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elected
by the Mokhotlong parish to represent the parish at the Presbytery of
Loti I and the latter elected him on the 17th January
1981 under
s.122(g) of the constitution to represent that Presbytery at a Seboka
meeting that was scheduled for the 22nd April
1981. He was excluded
from that meeting. Section 122(g) provides :

" Duties and rights of the presbytery are :

(g) To elect representatives to the Seboka among its members."

Phakisi
attributed his exclusion at this Seboka meeting to the following
reasons :-

1. that
   it was an unconstitutional act in terms of s.122(g), and

   
   

2. that
   he was firmly of belief that it was based on animosity of the person
   who moved his exclusion because of alleged inhospitable
   reception of
   a Seboka delegation to the Presbytery of Loti I in January (para 8),
   and

   
   

3. 
   that the person who introduced the motion was actuated by ulterior
   motives on account of Phakisi's "stance" in the
   case of
   LEG v Nyabela 1980(2) LLR 466. A letter circulated by a member of
   Seboka allegedly supporting Phakisi's beliefs is appended
   as
   annexure E2 (paras 8 and 10).

   
   

What
actually happened transpired from the answering affidavit of the
Church which was to the effect that the manner in which Phakini
came
to sit on Seboka was unconstitutional in terms of S.13(a) as read
with s.17(a) and (b).

Section 13(a) provides:

"Each and every parish is represented at the presbytery by four
delegates; priest, one evangelist, and two members of the

congregation". These latter two must be elders (Phutheho e
Kholo).

Section 17 provides:

1. At
   the meeting of Seboka(Synod) attends an equal number of priests to
   that of laymen.

   
   

2. Evangelists
   are included in the number representing the priesthood".

   
   

Phakisi
is neither a priest nor an evangelist in the parish of Mokhotlong.
Mokhotlong parish elected four elders to represent it
at the
Presbytery of Loti I Phakisi assuming the mantle of an evangelist and
one other elder Ramasike(who was also excluded from
the Seboka
meeting of the 22nd April 1981) assuming the mantle of the priest.

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Phakisi's
(and Ramasike's) election at the Presbytery to represent it at Seboka
however was based on his status as elder so that
for this election
Phakisi reverted to his former true status.

The gist
of the replying affidavit is that there is a shortage of priests and
evangelists (there was one evangelist at Mokhotlong
who refused to
stand) in some parishes of the Church (a report to Seboka on the
subject was attached to the reply and does indeed
refer to the
general difficultis of recruitment to the priesthood and to the
evangelisthood) and that elders and even student theologians
(whose
names were mentioned) have been allowed to represent parishes at
meetings of Presbyteries and no objection was raised by
Seboka to
this practice. Phakisi says he must have been singled out for the
other reasons mentioned.

After the
filing of the reply what was thought to be mainly a constitutional
dispute with allegations of personal animosity and
malice as side
issues has been enlarged into something quite different,viz, whether
Phakisi was excluded by a diabolical manoeuvre
of an establishment
prepared to prostitute the constitution if it suits its purpose and
uphold it if it does not. That was not
the original issue. This
matter cannot be resolved on the papers (or perhaps on any papers)
but by action-or a declaration. An
attempt has been made to bring
Phakisi's complaint within principles that have been enunciated in
Nyabela's case, supra, but I
think it is clear that the facts there
bear no resemblance, or have any bearing, to what had befallen
Phakisi. Nyabela's, supra,
was a case involving disciplinary
proceedings resulting in dismissal of a priest from a vocation or
calling. There is no such thing
here. The question that can be
decided on these papers is whether the provisions of s.13(a) are
mandatory or merely directory.

It seems
clear to me that if as 122(g) 13(a) and 17(a) and (b) are read
together the election at grass root level, i.e. at parish
level, must
conform to s.13(a) in order to achieve the balance required by
s.17(a) and (b). If not, it would be theoretically possible
for three
or four of the large Presbyteries to elect only elders (as s.122(g)
permits them to do if literally interpreted) and
thus stifle the
working of

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Seboka.
The only reasonable interpretation that can be placed on s,13(a) is
that the elected representatives of the parish must
in fact hold
substantive appointments of priest and evangelist respectively. The
interpretation of Seboka to 8.13(a) is not, at
any rate, palpably
perverse.

It may be
that Phakisi's allegation that because of the shortage of priests and
evangelists the election of elders have in the past
been allowed is
true. The Presbytery may then conceivably rectify the situation by
ensuring that in the elections of representatives
to Seboka there are
enough duly elected priests and evangelists not to upset the balance
required by s.17 but if the chairman of
Seboka's allegation (though
hearsay) had any basis of truth, i.e. that Phakisi had at the
Presbytery of Loti I originally put forward
his name for election to
represent the Presbytery at Seboka on the basis of the status he has
assumed, i.e. evangelist, and not
on his actual status, i.e. Phutheho
e Kholo, then surely there would be no need for s.17 at all.

Phakisi'a
exclusion can be treated no differently from that of a member of a
club or association. A court of law will intervene
if necessary but
it does so sparingly and then for only clear and flagrant breach of
the club or association rules. If there was
breach of a well
established convention this must form the basis of the application.
If s.13(a) of the constitution has been allowed
to lapse by its
custodians as Phakisi makes plain in his reply, the remedy would lie
within the Church itself, certainly in the
first instance. Phakisi
cannot rely on the lapse, if such was the case, to obtain redress
when he has not suffered loss of office,
or loss of status as an
elder, or loss to his pocket and had not taken the matter up with
Seboka as a preliminary issue, or had
not made it plain in the
founding affidavit that redress was impossible there and made this
the graveman of his complaint justifying
his bringing up the matter
directly to Court.

I would
dismiss the application with costs.

CHIEF
JUSTICE

23rd
March, 1983

For
Applicant : Mr. Moiloa

For
Respondent: Mr. Sello