CIV/T/130/87

IN THE
HIGH COURT OF LESOTHO

In the
Application of

J.C.
MOROJELE................... 1st Applicant

S.N.
MOHLOMI.................... 2nd Applicant

E.K.
MANDORO.................... 3rd Applicant

D.M.
MAFATLANE................... 4th Applicant

W.T.
SEBETOANE............... 5th Applicant

B.LESOLI........................
6th Applicant

A.
NTLALOE....................... 7th Applicant

G.
KHECHANE...................... 8th Applicant

S.T.
SETLABA.................... 9th Applicant,

A.M.
MACHEMA ................. 10th Applicant

A.T.
KOROTSOANE .................. 11th Applicant

S.L.
TSIKOANE .................... 12th Applicant

J.R.
MOKHAHLANE ................. 13th Applicant

J.T.
MARAISANE ................... 14th Applicant

O.E.
MOLETSANE................... 15th Applicant

P.L.
PITSO ....................... 16th Applicant

L.S.
NTSASA ...................... 17th Applicant

and

LESOTHO
EVANGELICAL CHURCH Respondent

JUDGMENT

Delivered
by the Hon.Mr. Justice B.K. Molai on the 21st day of December, 1987.

On 14th
April, 1987 the applicants herein filed with the Registrar of the
High Court a notice of motion in which they moved the
court for an
order, inter alia, directing the Respondent, its officers, organs and
committees to desist from or in anyway interfering
with applicants in
their exercise and performance of their duties as ordained Ministers,
declaring the present Executive Committee,
presbyteries, their
committees end advisory commissions unconstitutional, declaring the
purported dismissal of 13th applicant from
Gosling L.E.C. (Lesotho
Evangelical Church) Parish null and void, declaring the removal of
7th and 12th Applicants from the school
committees null and void,
granting applicants such further and/or alternative relief,

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The
motion papers were on the same day, 14th April, 1987, served on the
Respondent who on the following day, 15th April, 1987 intimated
the
intention to oppose this application. Affidavits were duly filed by
either parties.

In as far
as it is relevant, the facts disclosed by the affidavits are that on
26th January, 1987 and under CIV/APN/8/87 the Respondent
Church
obtained against the applicants an order, inter alia, interdicting
them from interfering with its administration or calling
themselves
its leadership under the banner of Council of Priests or any other
title whatsoever. The applicants were apparently
unhappy with the
order against which they lodged an appeal. The appeal is still
pending determination by the court of appeal.

According
to them, the applicants have been complying with the order issued on
26th January, 1987 under CIV/APN/8/87. Through its
Executive
Committee, Presbyteries and/or other officers,the Respondent church
has, however, been harrasing them. ft informed its
members that the
applicants have turned against it, they were spreading poison amongst
them (members) and were in fact false prophets.
On 13th February,
1987, the Respondents Secretary of schools removed the 12th Applicant
from the school committee of Thabana-Morena
Parish. On 14th February,
1987, the 7th Applicant was also removed from the school committee of
Maphutseng Parish by the Secretary
of Schools. Before they were
removed, the 12th and 7th Applicants had not been afforded a hearing.
For that reason their removals
were unconstitutional and therefore,
wrongful. On the same day,14th February, 1987, the Executive
Committee of the Respondent church
dismissed the 13th Applicant from
Qoaling Parish, Prior to his dismissal the 13th Applicant was also
not afforded a hearing. The
dismissal was for that reason a violation
of the constitution and, therefore, wrongful.

The
Respondent denied that the Applicants hod complied with the order
issued on 26th January, 1987 under CIV/APN/8/87 and averred
that the
Applicants had continued

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to form a
rebel group and had since been circulating a news-letter called
"Molaetsa oa Baruti" (Priests' message). In
support of its
averment the Respondent church attached inter alia, annexures "B"
"C" "D" and "E".

I have
had the opportunity to read through the above mentioned annexures.
With the exception of annexure-"B" and "E"
which
appear to be undated, annexures "C" and "D" are
clearly dated 26th March, 1987 and 14th March, 1907,
respectively
i.e. after the order in CIV/APN/8/87 restraininq the applicants from
interfering with the administration of the Respondent
church had been
issued. There is not the slightest doubt in my mind that all these
annexures are meant for the members of the Respondent
church and the
contents thereof are highly critical of the way in which the affairs
of the church are being administered. That
is exactly what the
applicants were ordered to avoid doing under CIV/APN/8/87. They
cannot, therefore, be heard to say they complied
with the order

The
applicants' allegations that the Respondent informed its members that
they had turned against it, they were spreading poison
amongst the
church members and were in fact false prophets were denied by the
Respondent. It is significant to note that on the
papers before me it
is not clear whether the allegations were made verbally or in
writing. If in writing the applicants annexed
no document to
substantiate their allegations. It is, however, to be observed that
annexure "G" which was admittedly
written by the
Respondent's Executive Secretary makes no reference to the
allegations which the Applicants claim to have been made
by the
Respondent. We have, therefore, the word of the Applicants against
that of the Respondent on this point and the matter cannot,
in my
view, be resolved on these papers.

It was
not really disputed that the 7th and the 12th Applicants were removed
from the school committees as averred by the applicants.
The
Respondent's contention was, however, that that was a matter within
the powers of the Educational Secretary in terms of the
provisions of
Clause 194 of the constitution.

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That
Clause reads, in part

"194. The Minister may be appointed manager of schools in his
perish by the Educational Secretary after consultation with
the
chairman of the Presbytery ..."

As I
understand it the applicants' case is that the removal of the 7th and
12th Applicants from the school committees of which they
were
managers was unconstitutional in that no prior hearing was afforded
to them. It would appear however, that all that the provisions
of
Clause 194 require is that there should be prior consultation with
the Chairman of the presbytery. The Clause does not seem
to require
that the ministers themselves be afforded a hearing before they are
appointed (or removed) as mangers or members of
school committee in
their parishes.

Likewise
the Applicants' case is that the 13th Applicant was dismissed or
removed from Qoaling Parish without being afforded prior
hearing.
What happened here is that the 13th Applicant who is the Respondent's
assistant accountant at Morija was authorised, in
addition to his
normal duties,to administer the Qoaling Parish. On 14th March 1987 he
was, however, relieved of the additional
duties at Qoaling Parish. It
was therefore, a question of moving the 13th applicant or adjusting
duties assigned to him within
the same church rather than dismissing
him. It will again be seen that in terms of the provisions of the
Respondent's constitution
priests are placed and/or removed in
accordance with Clause 143 which reads,in part

"143. The Seboka committee places and removes Pastors by
consultation with Presidents of Presbyteries ......"

There is
therefore no requirement that priests should be afforded a hearing
prior to their placement or removal. That being so,
there is no
constitutional basis for the averment that the 13th Applicant should
have been afforded a hearing prior to his removal
from Qoaling
Parish.

As
regards the constitutionality of the present executive committee,
Presbyteries, their committees and advisory commissions, it
seems to
me that the question was in a way answered in CIV/APN/8/87 when the
court granted the present

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Respondent's
prayer (d) in which a Rule Nisi was sought calling upon the
Respondents to show cause why

"The purported abolishment of the applicant institutions namely
the Seboka, the Executive Committee of Seboko, Presbyteries
and their
committees and Applicant's Advisory Commissions by the Respondents in
ther meeting held on 3rd day of January, 1987 at
Maseru shall not be
declared null end void and of no force and effect."

As has
been indicated earlier, an appeal has been lodged against the
granting of this and other prayers in CIV/APN/8/87. The decision
of
the Court of Appeal is still pending. I am not prepared to prejudge
the issue that is pending the decision of the Court of Appeal.
The
view that I take is that until it has been set aside by the Court of
Appeal the decision made by the Court in CIV/APN/8/87
stands good.

In the
premises I am of the opinion that this application ought not to
succeed. It is accordingly dismissed with costs,

B.K.
MOLAI

JUDGE

21st
December, 1987.

For
Applicants Mr. Pheko

For
Respondents Mr. Matsau.