C. of A.
(CIV) No.2 Of 1986

IN THE
LESOTHO COURT OF APPEAL

In the
Appeal of

ESAIA
THITE Appellant

v

LESOTHO
EVANGELICAL CHURCH Respondent

HELD AT
MASERU

Coram

Schutz, P

Odes.
J.A.

Miller, J
A

JUDGMENT

Odes,
J.A.

This
appeal arises out of an interdict granted by the Court a quo in which
the Appellant was restrained at the instance of the Respondent
from
operating a bank account originally named L.E.C. Secondary School
account with the Standard Bank P.L C The bank was cited
in the
application as the Second Respondent but plays no part in this
appeal. For the purposes of this judgment it will be referred
to as
"the Bank" The Appellant was also restrained "from
interfering with or otherwise having any dealings with
the
Teyateyaneng Lesotho Evangelical Church Secondary School presently
run in the

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Lesotho
Evangelical Church building at Teyateyaneng without the consent and
authority" of the Respondent or its agent. The
Bank was
restrained from paying out any monies from the named account to the
Appellant or his agent and it was further directed
to permit the
Respondent or its duly authorised agent to operate that account.

The rule
nisi was confirmed on the basis of affidavits which were filed by the
parties. The Appellant, being dissatisfied with the
judgment,
appealed to this court, which in turn, after hearing argument,
referred the matter back for the taking of oral evidence
on the
factual issues set out in the order of this Court. The latter , order
reads as follows –

"The disputes of fact relate to, and the issues to be determined
by the High Court are –

1. Who
   is entitled to run and administer the school at Teyateyaneng known
   as "T Y L.E C. Secondary School" or Teyateyaneng

   Secondary" School or "Teyateyaneng F.P A. High School".

   
   

2. Who
   is entitled to utilise the funks in and operate upon the banking
   account at the Standard Bank Maseru previously under the
   name
   "Teyateyaneng L E.C. Secondary School" and at present
   under the name "Teyateyaneng F.P.A. High School".

   
   

Accordingly whether the Applicant was and is entitled to all or any
of the relief sought in the Notice of Motion".

The Court
a quo then heard viva voce evidence from the various witnesses who
were called on behalf of the parties to the interdict
proceedings.

3

The
learned Judge proceeded to give judgment which sub­stantially
repeated (for the most part verbatim with certain omissions)
the
judgment which he had delivered at the previous hearing The judgment
then proceeds (at page 259 of the Record) as follows –

"The question to be decided by this court is whether, having
heard oral evidence of both parties and their witnesses, there
are
any new facts that could persuade the Court to arrive at a different
conclusion. I have found no new facts".

Later, on
the same page of the record, the judge makes the following
observation –

"I must emphasise that as far as I am concerned there has never
been any dispute of fact in this application"

And in
concluding that the Respondent was entitled to the relief which the
Court originally granted to it, the Judge ordered the
Appellant to
pay the costs of the previous appeal "because there was never
any dispute of fact which could not be resolved
by the evidence in
the affidavits".

It is
clear from the above passages that the learned Judge has totally
misconceived the order of this Court. He was directed to
hear
evidence on what this Court held to be disputes of fact and to make
findings thereon. It was not the function of the Court
a quo to
determine whether there were any new facts which could persuade it to
arrive at a different conclusion, its function was
to determine what
the facts were

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Regrettably
no factual Findings were made by the Court a quo on either of the
issues referred back to it, and we do not have the
benefit of its
findings in relation to the acceptability of the various witnesses

The
proper approach of the appellate tribunal in circumstances such as
these is aptly set out by Schreiner J A in Van Aswegen v.
de Clerca
1960 (4) SA 875 at 882A-E in the following terms –

"In the present case the learned Judge's view on the effect of
the money-raising scheme led him away from a decision on the
two
issues now in question. It happens, of course, even where a trial
Court has made findings of fact. that on appeal those findings
are
shown to have been wrongly arrived at, and in such cases the
appellate tribunal may have to decide the appeal on the record

without regard to the findings. It seems to me that the position is
similar where, as here, no findings have been made. The appellate

Court has to do its best on such material as it has before it. The
importance that the onus may assume in such cases is pointed
out in
Rex v. Dhlumayo and Another, 1948 (2) SA 677 A D at p. 703.

"If
the appellate Court."

said
DAVIS, A.J.A.

"is left in doubt, then .. the result of the appeal must be such
as to give effect to the non-discharge of the onus".

By "left in doubt" was meant, I apprehend, what LORD
THANKERTON in Watt v Thomas, supra at p. 487, intended to convey
by
the words "is ultimately unable to come to a definite conclusion
on the evidence" The onus should not be allowed to
operate in
such a case unless and until, after all the relevant evidence has
been examined to see whether there is a sufficient
balance of
probabilities on one side or the other, the state of inability to
decide is reached."

It is
convenient, at this stage, to observe that during the course of the
hearing of the evidence, Appellant's counsel requested

5

that the
written application made by the Respondent be produced. Respondent's
Counsel objected to this request on the basis that
because Respondent
did not itself intend to use that document in the trial, it was
therefore not discoverable The learned Judge
upheld the Respondent's
objection. In my view, the learned Judge misdirected himself in
upholding the objection and appears to
have overlooked the provisions
of the Rules relating to discovery .

Rule 34
(1) of the High Court Rules empowers a party to an action to require
any other party to make discovery on oath within 21
days of receipt
of a notice in writing of all documents "relating to any matter
in question in such action"

It is
apparent from the terms of the Rule that the duty to disclose
documents is much wider than the learned Judge conceived it
to be
There is nothing in the Rule which limits the documents to be
discovered to those which the party making discovery intends
to use
in the trial in support of his own case. Indeed such an approach
would defeat the very purpose of discovery which is after
all, to
disclose all relevant documentation "which may - and not must -
either directly or indirectly enable the party who
requests
discovery, either to advance his own case or damage the case of his
adversary." Robinson v Farrar & others 1907
TS 740 at 742 ,
Nathan, Barnett & Brink Uniform Rules of Court (2nd Ed ) p 218 -
20 and the authorities there cited) The document
which the Appellant
s Counsel requested disclosed was highly relevant to the issue before
the court a quo and should have been
discovered The ruling of the
learned upholding the objection to its disclosure therefore
constituted a misdirection It therefore
becomes necessary to examine
the evidence given and to determine where the probabilities lie.

6

The
Respondent, which at all times bore the onus of establishing that it
was entitled to the relief which it claimed, adduced its
evidence
first in support of its contention that the school in question and
therefore control of its funds, vested in it and not
in the Appellant

Mr
Mosaase, the Commissioner of Lands, testified that the application
for a site for a school was originally made on the 15th December,

1981 in the name of the Respondent However, he received a letter
dated 19th January, 1983 from the Appellant on behalf of the
"Committee of Parents" which read as follows –

"re
SITE TY LEC SECONDARY SCHOOL.

We
started the Secondary School mentioned above in 1982 We applied for a
site, which was promised to us under the same name T Y.
LEC Secondary
School and it was surveyed We all along believed that it was a school
under the LEC church and the LEC's also believed
likewise But as
things went along, the Ministry of Education wanted to know as to who
had granted permission for the school with
what letter It is then
that LEC then started denying it and we as parents took
responsibility for it

I now
request that this site which has been applied for in the name of LEC
should please be changed over to us as the parents of
children who
attend that school, particularly, because it was applied for by us in
the name of the LEC originally

We now
call the school Teyateyaneng Community Secondary School

E THITE on behalf of the Committee of Parents"

Mosaase
proceeded with the application on the basis of the above letter's
contents but stopped processing it when he received a
query from the
Respondent relating to the Appellant's authority to alter the
registration of the site Under cross-examination,
Mosaase conceded
that no official of the Respondent had ever

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approached
him in connection with the allocation of the site, that the site had
never been allocated to the Respondent or the L
E C Secondary School
and that the Parents Association had paid the fees for the legal
documentation which and been drawn up

Mr Tiheli
gave evidence in his capacity as Secretary for Respondent's schools
In that capacity, it was his responsibility to know
all the schools
controlled by the Respondent He stated that he could not openly
associate with this particular school because it
was operating
illegally but averred that the Parents Committee controlled it on his
behalf He disputed that the school was a community
school but
persisted in his view that it was a school under the control of the
Respondent

Mr Tiheli
was unable to produce any documentary evidence from the Committee of
the Presbytery of Respondent from which he normally
obtained his
instructions, advising him that a school had to be opened He
explained that he did not exercise any control over the
spending of
funds of the school and had no knowledge of the funds deposited into
the bank account nor of the school's financial
state­ments He
sought to explain these anomalies on the basis that the school had
been operating illegally.

The
Respondent then called its main witness, Mr. Lebeko, the principal of
the school, who expressed the view that the school belonged
to the
Respondent He stated that the Appellant had altered the school stamp
on his own and had replaced it with a Founders Parents
Association
(F.P A ) stamp Lebeko testified that he was present when the
Constitution of the F.P A was drawn up but stated that
the F P A was
going to act on behalf of the Respondent, that it had never met
officially and that it never purported to run the
school. This
evidence is not entirely accurate Correspondence

8

before
the Court a quo emanating from the school not only bore the F P.A
stamp but was in fact signed by this witness in that form.

Under
cross-examination, Lebeko stated that the application to the
Educational Secretary was signed by 5 members of the Church Community

and that they represented the Church, It is clear from the evidence
given on this aspect that the witness infers that because they
were
all members of the Church, they were therefore its representatives In
fact the letter of application was written on behalf
of the Church
and the community The witness was unable to explain why the
application was made on behalf of the community as well
as the Church
and was most evasive on that aspect He also gave contradictory
evidence on the role and membership of Mr Mongangane
and his presence
when the F.P A Constitution was approved

Lebeko
further denied that the school was run by the F.P.A alone after the
formation of that body. He testified that the committee
was appointed
by the Appellant on behalf of Rev. Seotsanyana, who was the manager
of the Church schools in the area He conceded
that the Church did not
contribute any funds towards the running of the school, and that all
the members of staff were appointed
and paid by the committee, the
latter - according to the witness - in consultation with Rev
Seotsanyana. It should be noted at
this stage that there was no
suggestion by any other member of the committee or the Appellant that
the Reverend was ever consulted
Although he was one of the deponents
in the original application, the Reverend was not called as a
witness.

There are
other unsatisfactory features in this witness's testimony He had
difficulty in explaining why in his affidavit he

9

had said
that the Reverend had refused to sign the application to open the
school because he had not been consulted, whereas in
evidence he had
stated that the did not sign because of lack of time and other
commitments His evidence that the committee did
not consult the
Reverend before applying because "we were not prepared to let
him know" is most improbable if the intention
was that the
school was to be Church controlled. The failure to inform the Manager
of the Church schools in the area for the reason
suggested is not
without significance in relation to the overall probabilities

Mrs Agnes
Baholo, the Secretary of the Committee was called to testify simply
that she was present in May 1983 when the F.P A. was
formed but that
it acted on behalf of the Church to whom the school belonged Under
cross-examination she averred that the Appellant
had informed them
that he was reporting to the Church Council and that he had made
three such reports in two years She conceded
that the Church played
no part in the appointment and payment of teachers, which aspects
were dealt with by the Committee but she
stated that the Church had
knowledge of what was being done She admitted having signed a letter
to the bank informing it that the
name of the account was to be
changed from TY L.E.C Secondary School to TY F P.A High School. She
contended that the contents of
the letter did not reflect the true
position and that she was ordered to sign it She did not however
report to the Church that
the name of the banking account had been
changed

The
Appellant who was Chairman of the Committee stated that his committee
represented the parents of the school, who came from all

denominations and included non- Church goers The committee did not
represent the Church The original application for a school site
was
made on behalf of the Respondent, which then distanced itself from
the project

10

When the
project, thus, launched, failed, they formed the association sometime
in 1982 (although its constitution was registered
in May 1983). They
re-applied, this time as the F P A , and wrote a letter stating that
everything which they had done on behalf
of the Respondent without
its mandate, they were now doing on their own Reverend Seotsanyana
had nothing to do with the school
and when the school was to be
inspected, he had told the inspector that he did not know the school
The Appellant told the inspector
in the Reverend's presence that the
responsibility for the school vested in the committee and the parents
and not the Church It
should be noted that the Reverend, in his
affidavit admitted that he had told the inspector that "I was
not the one responsible
for opening the school contrary to the law"
The Appellant stated that the Reverend wanted to follow the correct
procedure
and therefore wanted to wait until the application had been
lawfully granted. The Appellant did not agree with that approach and

the committee then decided to open the school on its own The Reverend
allowed them the use of the Church premises for that purpose
but held
them liable for any damage to the building

In
support of his contention that the F P A controlled the school, the
Appellant testified that the school principal, Lebeko, corresponded

on behalf of the school under the F P A letterhead, that the F P.A
stamp was used on all cheques and that except for the initial
period,
the committee employed and paid the teachers in its own right and not
as agent for the Respondent The committee was not
accountable to the
Church for any of the funds and prior to the application for the
interdict the Respondent had never interfered
with the use and
control of those funds He stated that although the committee intially
purported to act on behalf of the Respondent,
the latter had at no
stage

11

requested
it to do so The Appellant mentioned that the Reverend had previously
denied responsibility for the Mamathe High School,
which was now
controlled by another Church

Although
this witness's evidence had a number of unsatisfactory features, (he
was particularly evasive when Questioned about Mongangane's

membership of the F P A ), it was not contradicted insofar as it
related to the attitude adopted by the Respondent represented
by
Reverend Seotsanyana As indicated earlier, [he latter was the pivotal
figure who was the link between the Appellant and the
Respondent ana
his failure to testify must raise inferences adverse to the
Respondent, particularly where he is able to elucidate
the facts and
is the one witness available to the Respondent who might be able to
refute much of the Appellant's testimony (of
Tilus v Shield Insurance
Co Ltd 530(3) S A 119 (AD) at 103 )

Tello
Mongangane, the Vice-Chairman of the Committee was the final witness
to testify He stated inter alia that the school was originally
called
the TY L E C School although the committee did not have the
permission of the Respondent to use that name His evidence
corroborates the Appellant in relation to the background and
establish­ment of the school This witness was very unimpressive

and his evidence must be approached with reservation especially where
uncorroporated

As can be
seen from the above analysis of the various witnesses, a clear
dispute of fact emerged in relation to the central issue

The
evidence reveals that it was common cause that in 1982 the Appellant
and his committee applied for permission to open a Church
school
under Respondent's auspices The in trial correspondence indicates
that the Appellant purported to act on behalf of the Respondent
and
this is conceded by him He states that he and his committee had hoped
that the Church would confirm or ratify their conduct
and assume
control of the school which in fact - so he states

12

the
Church did not go This he avers compelled his committee to form its
own association, which they did and which later controlled
the school
it is also common cause that a school was established before
permission was granted for its lawful operation it seems
to be clear
furthermore that the Reverend Seotsanyana, Respondent's
representative in the area distanced himself from the school,

certainly during the period it was operating without permission The
permission to establish the school was granted only in December,
1983

The real
question to be decided is whether the Appellant and his committee had
taken matters into their own hands by assuming control
of the school,
not as agent of the Respondent but totally independently The various
witnesses have given evidence which is contradictory
While certain
witnesses state that the Appellant and his committee acted on behalf
of the Respondent ana others that they acted
as an independent body,
these statements are by no means conclusive and must be viewed
against the background of the objective
facts insofar as it is
possible to ascertain them without the benefit or any findings
thereon by the Court a quo

A perusal
of the Constitution handed into the Court a quo reveals that its
members purported to establish an association which was
completely
independent One searches in vain within it provisions for a hint of
involvement by the Church

That the
F P A was more than a vehicle For the application for a school site
admits of little doubt The correspondence of the school
was conducted
in its name a banking account was controlled by it and it collected
school fees from its members The Association
appointed and paid
teachers It appears that from its inception some time an 1982 until
the Respondent commenced the interdict proceedings
in January 1985,
the Respondent played no part whatever in managing the school indeed,
it is clear from the evidence of Lebeko,
the

l3

Principal
of the school, called as a witness by the Respondent that the manager
of all Respondent's school in the area was not even
consulted by the
committee before it applied for authority to open the school Lebeko's
reason for such non-consultation viz "we
were not prepared to
let him know' is totally inconsistent with the Respondent's assertion
that the F P A controlled the school
on its behalf Nothing had been
placed before the Court a quo to show that Respondent gave the F P A
or the Appellant a mandate
to act on its behalf indeed there is no
suggestion by any of the witnesses whether in the affidavits or in
the evidence that the
Respondent ever instructed or authorised the
Appellant or the F P A to act on its behalf it appears that the
Appellant had hoped
that his conduct would be ratified by the
Respondent but when such ratification was not forthcoming the F P A
decided to continue
on its own

in the
light of the above considerations I am unable to find that the
Respondent, as Applicant in the interdict proceedings, has
discharged
the onus resting upon it indeed the considerations mentioned above
indicate that the probabilities point in the opposite
direction This
conclusion renders it unnecessary for me to determine the other
arguments raised by

1. the
   Appellant the appeal accordingly is upheld with costs

   
   

2. The
   judgment of the Court a quo is altered to head as follows –

   
   

"The Rule Nisi is discharged with costs'.

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The
Respondent is ordered to pay the costs of the previous Appeal as well
as the costs of adducing the viva voce evidence.

M.W. ODES

JUDGE OF
APPEAL

I concur

W.P. SCHUTZ

PRESIDENT OF THE COURT OF APPEAL

I concur

S. MILLER

JUDGE OF APPEAL

Delivered
on this 25th day of July, 1986 at MASERU.

For the
Appellant Mr. C. Edeling

For the
Respondent Mr. D. Kuny S.C.