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.