CIV/APN/425/98
IN THE HIGH COURT OF LESOTHO
In the matter between:
JAMES CHAOLANE MOROJELE Applicant
AND
LESOTHO EVANGELICAL CHURCH 1st Respondent
THE CHAIRMAN OF THE SEBOKA 2nd Respondent
JUDGMENT
Delivered by the Hon. Mr. Justice G. N. Mofolo On the 22nd day of April 2005
This is an application in which the applicant having been for the time being posted to Thaba-Bosiu on account of there being no minister in charge there, on the minister being made available the applicant was asked to leave Thaba-Bosiu and otherwise go on with his duties at Qoaling as Marriage Counsellor. For some reason(s) applicant felt his removal from Thaba-Bosiu was not fair and made representation(s) to both to the Thaba-Bosiu Presbytery and the Executive Committee of Seboka.
The Executive Committee of Seboka being the supreme committee of the Church had, however, called the applicant before it and finding him
guilty of disobedience of its orders had found him guilty and expelled applicant as Minister of the Church. It would appear on appeal to the Seboka applicant has lost his appeal.
It is against the dismissal of the appeal by Seboka that applicant has approached this court on review claiming:
The purported dismissal/removal of applicant from pastorhood by the Seboka of first respondent shall not be declared null and void and of no force or effect;
The purported dismissal/removal of applicant by third respondent from pastorhood shall not be reviewed, set aside and declared null and void.
The purported removal of applicant for his acting position as the Thaba-Bosiu minister shall not be revived and declared null and void and of no legal effect;
The first respondent shall not be directed to pay applicant his monthly stipend from the purported date of his dismissal/removal to date of judgment.
Respondent shall not be afforded such further and/or alternative relief.
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The application was opposed.
When the matter came for argument, applicant's counsel applied that application be referred to viva voce evidence in respect of two issues,
namely;
Whether applicant has been acting Minister of Religion for Thaba-Bosiu parish,
What transpired in the meeting of Seboka held on 3rd April, 1998 concerning applicant's appeal and what Seboka (synod) decided."
By consent of the parties the matter was referred to viva voce evidence and while the applicant gave evidence on his own behalf, Rev. Lentsoenyane gave evidence for the respondents. The court was urged in considering judgment to advert to both evidence tendered and submissions made by counsel.
It was applicant's evidence that in 1995 he was already pastor of the Church having been ordained in 1975 and as such was of long service conversant with the Church's traditions and statutes. He was a marriage
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counsellor at Qoaling where he was stationed and operates from. He has testified by reason of being a marriage Counsellor at Qoaling he was paid for this and his temporary transfer to Thaba-Bosiu attracted no further remuneration except allowances or traveling expenses. The witness has referred to a letter Exh. "A" dated 3 June, 1997 in terms of which he was directed to wind up his affairs at Thaba-Bosiu and return to his normal duties at Qoaling by 13 June, 1997. He says copies of the letter were made to chairman of Seboka Rev. Thebe, Thaba-Bosiu Presbytery and Consistory. He has testified he was not stationed at Thaba-Bosiu for he was stationed at Qoaling. The witness says "hula-nthau" means a substitute horse which must give way to the task horse on its arrival. He says when the chief of Thaba-Bosiu wrote to him Seboka had already dismissed him. In his appeal to Seboka he was asked to state his case and he had done so. He says when Seboka deliberated over its judgment they had been made to go out and in its decision Seboka had not said it was influenced by the Chief of Thaba-Bosiu's letter.
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In cross-examined by Ms. Thabane for the respondents the applicant has stated he is James Chalale Morojele and on 11 December, 1995 he was already a pastor of the Lesotho Evangelical Church having been ordained in 1975 and he has been long in the job as a pastor. He has testified he is familiar with the custom and traditions of the church including its laws. He repeats he is a Marriage Councillor stationed at Qoaling and has been receiving a salary as pastor. He says all he received is a stipend as a marriage councillor he received nothing more though he changes his mind to say he does sometimes receive something extra. He says being counsellor is one of the major tasks of the church and any additional function to that of counsellor makes no difference. He says being counsellor is like being any pastor save that for special duty there are allowances. Mr. Mosito has objected that the defence counsel in her cross-examination is going outside the scope of subjects which were reserved for vica voce evidence. The Court has agreed saying Ms. Thabane is to endeavour to keep the subject in sight. The witness has testified he received a letter from the Executive Secretary of Seboka informing him to go to Thaba-Bosiu. The letter was handed in and
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marked exhibit "A". Reference was made to a pastor who had been serving at Mapholaneng transferred to serve a new mission at Thabana-Morena as was the case with another pastor who was transferred from Malimong to Kolonyama. He says his services at "setsing" (his station) were not terminated but that he will oversee Thaba-Bosiu (being from the translation "o tla hula Thaba-Bosiu"). He has admitted Thaba-Bosiu is different from Qoaling. He has also agreed his services of marriage counselor had not been terminated and effectively he was still at Qoaling. He agrees that church tradition is to hire transport whenever there is a transfer. He says so far as he was concerned there was no hire of transport to move his effects. The witness has testified the reason no transport was hired for him is because he was never transferred from Qoaling. He has also agreed he was merely holding a fort at Thaba-Bosiu as his position was not like the rest of the pastors who had been transferred from their stations to new ones. In course of cross-examination, parties have agreed that "ho hula nthau" means temporary duty; in other words, that "hula nthau" means temporary duty and literally that the horse which you mount is not yours for when the true owner
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arrives you would have to dismount it. The witness has agreed in the administration of the Church and in applicant's case when the owner of the station assumes duty an acting appointee leaves the station; he also agrees in his case it is what happened for when the owner of the station arrived they said the owner has arrived go back to your station. The witness has also agreed he was not transferred. According to the witness, he was dismissed by the committee of the Seboka first and chief Khoabane's letter came after. The witness has testified before Seboka he stated and canvassed his case and so did the committee of Seboka. The witness has testified Seboka confirmed the decision of the Seboka executive committee.
In re-examination the witness has said in holding a fort at Thaba-Bosiu there was no substantive minister-of-religion at Thaba-Bosiu. He says though he was acting he held a substantive post at Qoaling through executing ministerial functions at Thaba-Bosiu and he was vested with the responsibility of baptism, sacraments, consistory meetings, financial and statistical obligations. The witness says he was not transferred but was told
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to vacate Thaba-Bosiu. He says the letter had said "—you are to discontinue your duties at Thaba-Bosiu" and there was no mention of transfer. After a long wrangle the witness says he could be removed anytime from Thaba-Bosiu.
The applicant having closed his case, respondents called Rev. Lentsoenyane (D.W.I) and sworn he had stated he was Rev. Silas Ts'eliso Lentsoenyane, Exexutive Secretary of the Lesotho Evangelical Church having become an Executive Secretary in May, 1997 and he was
fully aware of the traditions and regulations of the Church. The witness has said where there is a vacant position at a parish a Minister acts to do duties of a substantive. He says when a substantive holder is appointed the Executive committee terminates an acting appointment. He says even where there's a consistory there will still be need for a pastor. He says although he is neither a member of the Executive Committee of Seboka or Seboka itself by virtue of his portfolio he attends sittings of these bodies and when Rev. Morojele appeared before the Seboka (Senate) it was in 1997 and he was present. He
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says there was no mention of a letter from the chief of Thaba-Bosiu. He says after deliberation parties were asked to leave but he did not and remained in the meeting of the Seboka (Senate). He has testified members then deliberated on the case during which chief Khoabane's letter was not discussed or considered.
Further cross-examined the witness has stated he stands by his affidavit. The witness has explained that permanent priests lead the consistory and not the acting one. The witness now agrees for the terms of his service Rev. Morojele though acting he did what a substantive minister would do. He says the correct statement is that Rev. Morojele did n5 lead the parish. He says when a minister is transferred it is always in terms of the law. The witness has testified laws of transfer were not relevant to Rev. Morojele because he was not transferred. The witness says the Church governs according to its customs and laws. The witness says although Rev. Morojele was going to Thaba-Bosiu, since he still had his station and was going to Thaba-Bosiu on an acting appointment, this exempted him from
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being provided transport like other ministers of religion. By "o ntse a le setsing" the witness has explained that this means his services at Qoaling are not terminated he will still be a fulltime minister there while he is acting at Thaba-Bosiu. He says the letter does not say when the acting appointment will terminate. He agrees he was present in both sittings of the Executive Committee and the Seboka when the decision relating to the applicant was made and during discussions the Executive Secretary contributes to the discussion though at Seboka stage his contribution was not allowed. He says he was in agreement with the decision of Seboka. He also says when members of the executive committee were asked to leave Seboka to consider its verdict he remained behind.
The witness has explained that he is Executive Secretary of the Seboka and the Seboka has its own secretary. Shown functions of the Executive Secretary according to law and statutes of the church that his function is "to write and keep records and decisions"
of the Seboka, he says that is why he said he did not leave because he was doing the kind of job.
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Put to him it is clear it is not a function of some secretary to the executive secretary but his own function the witness says he never said he had a secretary. He has also said he agrees by arrangement Seboka can elect someone to record minutes. Both the court and applicant's counsel got carried away by DW1 inability to answer the question whether the record in which the applicant appeared on appeal was a true record in that it seemed incomplete not reflecting who were present in the meeting and if present whether there was a quorum and DW1 kept on saying there was a record which reflected the so-called omissions. He says "minutes of Seboka are in the book and not in this pamphlet." The witness has testified though he did not write the minutes he is in charge of them and he is the custodian of the minutes. He has agreed the executive committee of Seboka was the complainant and he agrees the Executive Committee of Seboka found the applicant guilty. Put to the witness that the Executive Committee of Seboka was complainant and judge in its own cause,this appears to have puzzled the Rev. gentleman whose answer was that the Executive Committee was no more than administering statutes of the Church. The witness on being
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pushed has agreed that tiers of the Church organization are "lekhotlana" (subordinate tribunal) consistory, presbytery, the Executive Committee and Seboka (Synod).
Re-examination. There was considerable re-examination but I don't think it elicited anything worth recording.
As usual, cross-examination of Rev. Lentsoenyane was long, repetitive and not purposeful. It did, however, elicit a number of issues, namely:
Whether Rev. Lentsoenyane as Executive Secretary of Seboka took minutes and not taking them whether it was because he participated in the proceedings of the Seboka.
Who prosecuted applicant or put in another way, who was complainant and did the complainant prosecute his own case and sit in judgment in his own cause?
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Whether letter from the chief of Thaba-Bosiu influenced the Seboka in its decision.
Regarding (1) above, Rev. Lentsoenyane explained that he was Executive Secretary of Seboka and not its secretary. I am satisfied with his explanation that in its sitting the Seboka puts in place secretaries to record minutes superintended by the Rev. Lentsoenyane as Executive Secretary.
As for (3) above, I am also satisfied with Rev. Lentsoenyane's explanation therein for he has said that the letter did not influence Seboka. I do not accept Mr. Mosito's contention that because Seboka did not say whether or not the letter influenced it it cannot be said it did not influence it because where there is no evidence whether X did the act or did not do it, he must be given benefit of the doubt. I will go into (2) above later.
In so far as applicant's evidence is concerned, while he was counsellor at Qoaling, he was posted to Thaba-Bosiu temporarily as minister in charge
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at Thaba-Bosiu. I have understood his evidence as being that because effectively he was still counsellor at Qoaling, he had not moved to Thaba-Bosiu, the reason no transport was hired for him to move his effects to Thaba-Bosiu in that once a minister of religion was available at Thaba-Bosiu he would without much ado revert to his substantive post at Qoaling. I have furthermore understood his evidence as being that because effectively he was counsellor he was paid for this post and there was no additional payment except for traveling allowances. Notwithstanding all this, I have understood applicants case as being that he was for all intends and purposes a minister of religion at Thaba-Bosiu and for his tenure of office there deserved to be treated as such. It also appears that in the Canons or Constitution of the 1st respondent, it does not appear that acting appointments are covered these being regulated by custom and practice.
Speaking for myself, this court has no business to interfere with the administration of the 1st respondent and it would seem to me where the practice and custom of the church is to treat acting appointments the way
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they do so as in this particular respect, it does no seem that applicant had any vested interest at Thaba-Bosiu save conducting church services and allied duties of the church. He has also given me the unmistakable impression that as soon as a minister of religion was available at Thaba-Bosiu his was to revert to his post at Qoaling. In this he was supported by Rev. Lentsoenyane who also testified although he is Executive Secretary of the Church, in applicant's absence at Qoaling he deputizes for the applicant and on his arrival he will move away.
In my view there is no particular procedure to be put in place in moving ministers of religion in temporary positions from one place to another and it would seem once informed that a minister of religion is available acting appointees have to give place. Unfortunately,
applicant did not move when, in my view, he should have moved. According to the applicant, he did not move because "of the
commotion caused by Rev. Lentsoenyane at the congregation of Thaba-Bosiu—" (see annexure "C"). It would seem
instead of moving from Thaba-Bosiu applicant appealed to the
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Presbyterry at Thaba-Bosiu. In his letter of August 3, 1997 the applicant (annexure "Dl") further wrote to the Committee of Seboka complaining about the interference "with my duties at the Parish of Thaba-Bosiu which is under my care" via Rev. Lentsoenyane on 4 June, 1997. In his last paragraph he says he fails "to accept the manner in which these cases which involve me have been handled."
I disagree that there was interference with applicant's duties at Thaba-Bosiu for all that was required of him was to vacate Thaba-Bosiu in place of Rev. Thebe. As for failing to accept "the manner in which cases involving me are handled", I don't know what applicant means for the terms of his temporary posting to Thaba-Bosiu were that he would be there pending the arrival of a permanent minister of religion. I am of the view that applicant's dilly-dallying was a thinly disguised attempt to refuse moving from Thaba-Bosiu. In his letter of 26 August, 1997 the Executive Secretary Rev. Lentsoenyane wrote to applicant to the effect it was being noticed he was seen at Thaba-Bosiu parish in defiance of the committee's letter of 3 June,
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1997. The letter further pointed out since his acting (nthau) appointment at Thaba-Bosiu is cancelled, he was to on receipt of the letter to refrain from interfering with duties at Thaba-Bosiu.
On 10 October, 1997 there was a further letter from Acting Executive Secretary of Seboka acknowledging his letter of 3 August, 1997
advising applicant that his letter would be attended to "along with your other issues which are still pending —" and applicant acknowledged this letter by his of 20 November, 1997. In the meantime it appears that the Thaba-Bosiu Presbytery wrote to the Committee of Seboka on 3 October, 1997 intervening on behalf of applicant and making recommendations as to transfer of the clergy. I have already said that in terms of the customs and practice of the 1st respondent, applicant should have moved from Thaba-Bosiu on receipt of the communication that he was so to move vide annexure A dated 3 June, 1997. Further, applicant was wrong to appeal to the Presbytery for there was no valid reason for the appeal. I am also of the view that Thaba-Bosiu Presbytery was also wrong to intervene on behalf of
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the applicant for applicant's terms of service at Thaba-Bosiu were different from those of permanent clergymen.
Be this as it may, on 17 December, 1997 the executive Secretary of Seboka Rev. Lentsoenyane wrote tot the applicant advising him that it had been decided by committee of Seboka to invite him to a meeting of Seboka at the Conference Centre on 6 February, 1998 at 2 p.m. regarding applicant's continued service Thaba-Bosiu parish contrary to the decision of the committee of Seboka. In reply by his letter of 03 February, 1998 the applicant replied that as the matter was still lying with the Presbytery he was unable to attend the meeting. On 20 February, 1998 the Assistant Executive Secretary of Seboka wrote to applicant to the effect that at its meeting of 6 February, 1998 the Executive Committee of Seboka preferred the following charges against the applicant:
Your continuous stay at Thaba-Bosiu LEC against the decision of the committee of the Seboka —.
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Defiance of the call of the Committee of the Seboka to a meeting of 6 February, 1998 per its letter of 17 December, 1997 in terms of section 208 of the Constitution of the Lesotho Evangelical Church.
It was then said the applicant had contravened section 189 of the Constitution of the Lesotho Evangelical Church. Applicant was called upon to appear before it at Casalis House, Maseru on 18 March, 1998 to respond to the accusations.
Clearly then, it would appear the complainant was the Executive committee of Seboka.
On 18 March, 1998 applicant wrote to the Committee of Seboka saying he is prepared to respond to the charges against him though he finds himself compromised should the committee of Seboka be a judge in its own accusations. He requested the committee to reflect on the frame and nature of the case. By his letter of 23 March, 1998 the Executive Secretary of
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Seboka replied to applicant's letter of 18 March, 1998 to the effect that Seboka has considered his plea and the committee of Seboka responded as follows :-
As a long standing clergyman of the Church he was conversant with the statutes of the church and he knew how statute 209 operated in the church and he had never drawn attention to Seboka what he did in his letter of 18 March, 1998.
It was pointed out to the applicant there was a time when Seboka elected him to the position of Executive Secretary of the Church and contents of statute 34 were known to him and yet at no time did he complain of the present law or any other law of the church while he was engaged in important functions of the church.
Up to the present a tribunal which in law is to listen to and adjudicate on clergymen's matters is the Executive Committee of
Seboka.
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Applicant was informed the Executive Committee of Seboka was unable to accede to his plea and he was expected to appear before it on 31 March, 1998 at Casalis House, Maseru at 2 p.m. to answer charges:
Refusal to leave Thaba-Bosiu contrary to the decision of the Committee of Seboka contained in its letter of 03 June, 1997.
You are in contempt of Committee of Seboka's call to a meeting of 06 February, 1998 per its letter of 17 December, 1997 and you have thus breached statute 208 of the laws of the Evangelical church. By so doing you have contravened statute 189 of the laws of the Evangelical Church, Lesotho.
By letter of 31 March, 1998 the applicant was expelled from the church. Of course he was expelled by the Executive Committee of Seboka purportedly pursuant to statutes 209 and 189 of the Constitution of the Church. It would also seem in terms of the statutes and practice of the church, the committee of Seboka is empowered to act as it did.
Applicant had then appealed to the Seboka against the finding of the Executive Committee of Seboka and my view is that since the appeal was
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against their finding, the Executive Committee was obliged to appear before Seboka to defend itself and indeed it did defend itself.
Mr. Mosito for the applicant has submitted that judgment against applicant was flawed in that the Executive Committee of Seboka could not be complainant and judge in own cause. To steer clear of the trouble, at least one of the organs of the church should have presented the applicant before the Executive Committee. Unfortunately, it appears that according to the constitution, it is
the Executive Committee of Seboka that is empowered in prosecuting clergymen. Having said this, the law is clear as to a complainant
being judge in own cause. Can it be said it applies in the instant case? In order to decide whether one is complainant/prosecutor and judge in own cause, this can only be gleaned from the record of proceedings and the court is not unmindful of the fact that what the court is reviewing is judgment of the Seboka.
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I have looked at the judgment of Seboka. According to the index to the paginated record of proceedings the judgment is on pages 95-99; but this is misleading for while the handwritten script of the judgment ends abruptly at page 99, it continues at page 113 to 125 where it abruptly ends showing, in any event, that it is continuing. From page 95, the judgment begins nowhere and at page 99, it ends as abruptly. Beginning at page 113, it starts from nowhere and ending at page 125, it ends as abruptly. The business of abruptly is that it has not been shown before whom applicant was appearing and who, at the end of it all, convicted or found applicant guilty of the offences or breach of discipline. On page 100 of the Record of Proceedings appears "Record of the Proceedings and Decision of the Seboka-----." I am not certain whether this is the original proceedings or a translated copy
of the proceedings though I am inclined to believe that it's a translated version of the original proceedings. Even if I am wrong,
these proceedings do not show before whom applicant appeared nor do they show who convicted him or found him guilty of charges brought him. Rev. Lentsoenyane in his evidence has conceded that the record of proceedings is incomplete but has
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testified that a complete record of proceedings is available. Unfortunately, such a record is not available to the Court to satisfy itself. A court cannot operate on an incomplete record of proceedings for to do so would do an injustice to parties concerned.
Accordingly, since the record of proceedings is incomplete before this court, the proceedings before Seboka are set aside on review and it is ordered that the matter start de novo.
Having said so, there is one or two matters this court would like to comment on. First, the position of the Executive Committee of Seboka as tribunal of first instance and appeal tribunal. Of course there's nothing wrong in this considering that our own High Court is both court of first instance and Appellate Division. The difference of couise is that the High Court does not initiate cases nor can it appear before itself as accuser or complainant. For quite sometime until there was legislation Heads of Department in public bodies acted as accusers and judges in own cause.
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Thus if a head of department transferred a public servant and the latter defied the order, the Head of Department descended into the arena and punished the public servant. By legislation all that has changed and where public servants are in breach of discipline, they appear before a tribunal in which the Head of Department is accuser or complainant. Perhaps the Seboka of the Lesotho Evangelical Church can take a leaf from this? In any event, by reason of the fact that the record of proceedings before Seboka appears incomplete I have set aside the finding of the Seboka with costs to the applicant.
This judgment took quite sometime before delivery the reason being that in most judgments I depend on my hand notes.
Notes went missing in this case and I had to depend on a transcription which was never forthcoming from my transcribers until I appealed to counsel to provide me with one to my utter regret and dismay. The transcription is not only riddled with mistakes, it is unintelligible and I could
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hardly recognize myself with so much gabbled gaffe and hackneyed expressions. It is typical of present crop of transcribers who as I have said not only are they unable to produce transcription timeously, produced my leave much to be desired. There has to be concerted effort to train and expose transcribers to improved methods to avoid subjecting courts to the present shameful odium of transcription.
G.N. MOFOLO
JUDGE
For the Applicant: Mr. Mosito
For the Respondents: Ms. Thabane
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