'Makhotso Phalima V Lesotho Evangelical Church of South Africa & Ano. (CIV/APN/333/2019) [2023] LSHC 207 (25 September 2023)

# 'Makhotso Phalima V Lesotho Evangelical Church of South Africa & Ano. (CIV/APN/333/2019) [2023] LSHC 207 (25 September 2023) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2023/207/eng@2023-09-25) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2023/207/eng@2023-09-25) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2023/207/eng@2023-09-25) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2023/207/eng@2023-09-25) [ __](mailto:?subject=Take a look at this document from LesLII: 'Makhotso Phalima V Lesotho Evangelical Church of …&body=https://lesotholii.org/akn/ls/judgment/lshc/2023/207/eng@2023-09-25) [ Download PDF (426.7 KB) ](/akn/ls/judgment/lshc/2023/207/eng@2023-09-25/source) Report a problem __ * Share * [ Download PDF (426.7 KB) ](/akn/ls/judgment/lshc/2023/207/eng@2023-09-25/source) * * * * * Report a problem __ ##### 'Makhotso Phalima V Lesotho Evangelical Church of South Africa & Ano. (CIV/APN/333/2019) [2023] LSHC 207 (25 September 2023) Copy citation * __Document detail * __Related documents * __Citations 2 / - Citation 'Makhotso Phalima V Lesotho Evangelical Church of South Africa & Ano. (CIV/APN/333/2019) [2023] LSHC 207 (25 September 2023) Copy Media Neutral Citation [2023] LSHC 207 Copy Hearing date 11 August 2023 Court [High Court](/judgments/LSHC/) Case number CIV/APN/333/2019 Judges [Hlaele J](/judgments/all/?judges=Hlaele%20J) Judgment date 25 September 2023 Language English Summary Read full summary * * * Skip to document content **IN THE HIGH COURT OF LESOTHO** **HELD AT MASERU****CIV/APN/333/2019** In the matter between **‘MAKHOTSO FLORINA PHALIMA 1 ST APPLICANT** **LIMPHO ABIA MACHAEL 2 ND APPLICANT** **MASEKOANE ELISHA MOTIA 3 RD APPLICANT** **AND** **LESOTHO EVANGELICAL CHURCH OF SOUTH** **AFRICA 1 ST RESPONDENT** **REV. FISO SEKULISA 2 ND RESPONDENT** **Neutral Citation** : ‘Makhotso Florina Phalima and 2 others v Lesotho Evangelical Church of Southern Africa and the other [[2022] LSHC 207](/akn/ls/judgment/lshc/2022/207) CIV (25th September, 2023) **CORAM : HLAELE J.** **HEARD : 11 TH AUGUST 2023** **DELIVERED** **:** **25 TH SEPTEMBER 2023** **SUMMARY** _: Evangelist in the Lesotho Evangelical Church of Southern Africa seeking reinstatement to the outstation. They claim their removal irregular. The removal of the Evangelist not in terms of the Constitution of the Lesotho Evangelical Church of Southern Africa. The Presbytery of the church not consulted._ **_ANNOTATIONS_****:** **_CITED CASES_** : 1. Nyabela V Lesotho Evangelical Church CIV/APN/150/80 2. Selikane and 33 others v LTC and others C of A (CIV) No 7/99 3. Plascon-Evans Paints Ltd V Van Riebeck Paints (Pty) Ltd 4. Islam v Kabir (CA: 280/2010) [[2011] ZAECGHC 9](/akn/za-ec/judgment/zaecghc/2011/9) (11 April 2011) 5. The president of the Republic of South Africa v South African Rugby Union (2001) ZACC 5 6. President of the Republic of South Africa and others 7. Pages Stores (Lesotho) (Pty) Ltd v. Lesotho Agricultural Development Bank and Others LAC (1990-94) 51 at 63B-E 8. Administrator, Transvaal and Others v Traub and Others 1989 (4) SA 741 9. Attorney General and others v Tšeliso Sehloho and 41 others C of A (CIV) 29/2009 [[2011] LSCA 20](/akn/ls/judgment/lsca/2011/20)(20 April 2011) 10. Femilana v Vice-Chancellor of Nul & Another (CIV/APN/517 of 1) [2002] LSCA 94(25 April 2002) 11. Motaung v Makubela and Another NN.0 1975 (1) SA 618 at 626H-627A. 12. D.R Mission Church in South Africa and Others 1976(2) SA 1(AD). 13. Odendaal v Loggerenberg en Andere NN. O (1) 1961 (1) SA 712(0) at 719 14. Garment Workers Union v DE Vries and others 1949 (1) SA 110 (0) AT 1129 **JUDGMENT** **HLAELE J** **[1]****__****_INTRODUCTION_** 1.1 This is a review application brought on behalf of the applicants for an order of court in the following terms. 1. Directing and ordering that the decision discharging or removing the Applicants as Evangelists in the 1st Respondent communicated by letters dated the 11th June 2019 be reviewed, corrected and set aside. 2. Directing and ordering to reinstate the Applicants as Evangelists in the 1st Respondent in the branches or outstations where they stationed before their purposed discharge or removal. 3. Directing and ordering the Respondent to restore to the Applicants all the benefits, rights, privileges, duties and stipend that they enjoyed as Evangelists before their purposed discharge or removal. 4. Directing the 2nd Respondent to dispatch, within Fourteen (14) days of receipt of this notice, to the Registrar of the above Honourable Court, the record of proceedings ( if any) of the Morija Consistory sitting of the 8th June 2019 which purportedly resolved to remove or discharge the Applicants as Evangelist in Moria Parish and the record of a subsequent sitting of the Morija Consistory ( if any) where the record of the 8th June 2019 would have been considered for confirmation and to notify the Applicant’s Attorney that he has done so. 5. Directing the Respondent to pay costs hereof. 6. Granting the Applicants further and /or alternative relief. **[2]****_ISSUES THAT ARE COMMON CAUSE_** 2.1 At the commencement of the hearing, together with the parties before me, we mapped what were issues that were in dispute. The purpose was to curtail the lengthy and of times, unnecessary submissions that prolong the case. The issue identified were: 1. That the applicants are all evangelists of the 1st Respondent as envisaged and defined by the constitution of the 1st Respondent. 2. That the Applicants are currently no longer at the out stations they were assigned to as at the August 2018 **[3]****_ISSUES FOR DETERMINATION_** 3.1**** In the same way, the following were identified as issues for the court to determine -these were: 1. Whether the decision to remove the applicants was in terms of the constitution of the 1st Respondent in that the consistory collectively took the decision. 2. Who removed the Applicant from their positions as Evangelists in the Morija Parish, and was the decision lawful? 3. Whether the Presbytery of the 1st Respondent was the final arbiter in the removal of the Applicants as envisaged by the Constitution of the 1st Respondent. 4. Whether the removal of the Applicants was in terms of the rules of natural justice in that such decision lacked malice and was not based on improper motive. These are outlined as grounds of review on the Applicants papers. **[4]_WAS THE DECISION TO TRANSFERE THE APPLICANTS MADE COLLECTIVELY BY THE CONSISTORY._** 4.1 The narration I will make below will tackle two questions. The first is whether the transfers complied with the expected standards of a transfer. The interrogation will centre around whether the transfers were not unfair, bias or in any manner prejudicial to the Applicants. The second leg will be to ask whether the transfers were in accordance with the constitution of the 1st Respondent. To this second inquiry emanates two matters for determination. The one is whether the 2nd respondent acted _ultra vires_ , the other is whether the full component of the consistory decided on the transfers. 4.2 The journey leading to the dispute before this court started in August 2018. This is indeed common cause for, in their affidavits both contesting parties refer to this date although the Applicants refer it as “during or about August 2018.”[1] The Respondents are more specific and set the date as the 4th August 2018.[2] The Respondents have also and to prove that the meeting took place, annexed for the consideration of the court the minutes of the said meeting under annexure **_S1_** _.**[3]**_ According to this annexure, which is not disputed by Applicants, the Applicants were indeed present at the meeting. This leads the court to the conclusion that they participated in the decisions that were taken at the meeting. 4.3 Item six (6) of the agenda of the said meeting centered around the “transfer of parish evangelist.”[4] What is recorded as reflected in the minutes of the meeting is that the 1st Applicant was effectively transferred from Morija to Reisi. The 2nd Applicant from Reisi to Letlapeng, and the 3rd Respondent was transferred from Letlapeng to Toloane. 4.3.1 I therefore, come to the conclusion that indeed the transfers were discussed in the presence of the Applicants. There seems to have been no objections to these resolutions emanating from the deliberations of the meeting. I specifically mean that the Applicants had an opportunity to object to these transfers but did not exercise it. leading me to believe that they accepted these transfers without reservation. 4.4 The question that stems out immediately therefore is whether as at the 4th August the transfers of the Applicants and the resolution to transfer them by the consistory was lawful. Put differently, did the consistory comply with the dictates of natural justice, in relation to transfers of people from their posts. I am reluctant to say work posts in this particular case due to the dictum in **_Nyabela V Lesotho Evangelical Church_**** _**[5]**_****__** where it was said members of the frock are not employees. This compliance with natural justice by administrative bodies in relation to transfers of people from one work post to another, was spelled out in the case of **_Selikane and 33 others V LTC and Others,**[6]** _**where the court said: _“There are no specific rules and/or regulations that require a hearing before a transfer of an employee could be made. It is demanded by the principles of natural justice together with fundamental principles of fairness, that prior to the making of the final and potentially prejudicial decision the person whose rights are likely to be adversely affected by such decision should be given an opportunity to be heard before it is made”_ 4.5 From the minutes of the meeting as appears in **_S1_** , the Applicants were part of the decision for transference. They did not raise any objections to the transfers. Neither did they show any reservations or prejudice that they may suffer as a result of the transfers. 4.5.1 The minutes also disclose that the decision was taken collectively by the consistory as apposed to the allegation by the Applicants that it was unilaterally taken by the 2nd Respondent as the parish pastor. To this end, the Respondents have complied with clause 42.10 of the 1st Respondents constitution that a reverend must consult with the consistory. This is glaringly obvious from the minutes of the meeting. 4.5.2 The minutes of the meeting also disclose that the consistory deferred the date of the execution of the transfers.[7] The importance of this minute will become apparent later in the judgment. 4.6 In terms of the constitution of the 1st Respondent clause 42.10, the consistory has the power to appoint and remove from office, evangelists after consultation with the Presbytery committee. 4.7 It is the contention of the Applicants throughout their affidavit that it was not the full composition of the consistory. Their allegation specifically bemoans the fact that the decision to having concluded on the transfer not being prejudiced now turn to the ground that the Applicants rescued ultra _vires_. **ULTRA VIRES** 4.71**** Mr. Rasekoai on behalf of the Applicants argued that decision to transfer the Applicants was reviewable on the ground that the 2nd Respondent acted _ultra vires_ the powers of the enabling clause of the constitution of the church. Although falling under the category of trite law, it is prudent to put the argument into legal perspective. _Ultra vires_ in its simplest form translates to ‘beyond the powers’. It is used to describe an act which requires legal [authority](https://www.lexisnexis.co.uk/legal/glossary/authority) or power but is then completed outside of or without the requisite authority.[8] The exercise of a power by an administrative official or body will be invalid unless the official or body is authorised to exercise that power. If an official purports to exercise a power he or she does not have or acts in excess of a power he or she possesses, his or her action will be invalid on the basis that it is _ultra vires_. Meaning that, if an administrator purports to exercise a power he does not have or acts in excess of a power he possesses, his action will be invalid on the basis that it is _ultra vires._ In the case of **_Femilana v Vice-Chancellor of NUL & Another_******[9]****, the court declared the body which refused to extend the contract of employment of the Applicant acted ultra vires the powers it had under the enabling law. Pittied against these legal principles relating to what constitutes ultra vires, the measures taken by the 2nd Respondent cannot be viewed as one who flew solo in as far as the decision to transfer the Applicants was concerned. The minutes do exonerate him in this regard. 4.8 The allegation therefore that the 2nd Respondent acted unilaterally and _ultra vires_ the dictates of the 1st Respondents constitution when the decision to transfer the Applicants was made, falls away. 4.9 The question where the consistory distanced itself from the decision to transfer the Applicant. This is central to the claim by the Applicants that the transfer should be declared a nullity because the consistory distant itself from the transfer. The far-reaching consequences of this all allegation is that if found correct, it crumbles all other decisions that follow the alleged distance act. For this reason, I will engage in a full lengthy discussion and analysis of this. **[5]_DID THE CONSISTORY DISTANCE ITSELF FROM THE DECISION TO TRANSFER THE APPLICANTS?_** 5.1 Moving forward, I therefore interrogate this claim by the applicants that “in its sitting in September 2018, the consistory distanced itself from the purported or alleged decision to transfer us as a result the transfers did not take place.”[10] 5.2 The answer to this claim (i.e., that the consistory distanced itself from the decision to transfer the Applicants) at glance seems to be creating a dispute. This is so because the Respondents make issue by stipulating 2 things, the first is that the execution of the resolution to transfer the Applicants was interrupted by church activities which seem to be the calendar events of the church as a whole. Secondly, the Respondents allege that there has never been a meeting of the consistory in September 2018.[11] A dispute seems to be created because there is no meeting of the minds by the litigants on this issue. The order for a court to determine whether a dispute of fact has orison in motion proceeding, there has to be a factual dispute, which can only be resolved through oral evidence. Such a factual dispute has to be real and genuine. In the case of **_Attorney General and others v Tšeliso Sehloho and 41 others C of A (CIV)29/2009 [2011] LSCA 20(20 April2011_**** _**[12]**_**) the court had their where an allegation is met by bear denials and genuine dispute does not exist. I will apply this dictum to the facts of this case. 5.3 Applying the principles outlined in the **_Plascon rule_**[13], to the dispute whether there was a meeting in September 2018 which reversed the transfers of the applicants, I am persuaded as thus; that the Plascon rule serves as a guide to the courts in determining which party’s version should prevail when disputes of fact are found in motion proceedings. The Rule holds that when factual disputes arise in circumstances where the applicant seeks final relief, the relief should be granted in favour of the applicant only if the facts alleged by the respondent in its answering affidavit, read with the facts it has admitted to, justify the order prayed for. Worded differently, the rule allows the courts, in certain circumstances, to make a determination on disputes of fact in application proceedings without having to hear oral evidence and on the respondent’s written version of events. 5.4 A denial by the respondent of a factual allegation in the applicant’s founding affidavit must be real, genuine and _bona fide_ before it can be considered prohibitive to the applicant being granted final relief. This issue was touched upon in the decision of _**Islam v Kabir**_ _**[14]**__where the court said:_ ___“_ _When in application proceedings there is a dispute of fact which has to be resolved on the papers and on the basis of the principle enunciated in the Plascon-Evans Paints matter, the court can only reject the version of the respondent if the absence of bona fides is abundantly clear and manifest and substantially beyond question_ _”_. 5.5 The question therefore is, should the court reject the version of the Respondent for want of bona fides? To this, two set of facts stand out. Firstly, the Applicants answer a direct and unwavering fact with a bare denial.[15] Secondly, nowhere do they annex proof that a meeting of the September 2018 ever took place. Directed by the Plascon rule, I am persuaded to make a finding that the version of the Respondent lacks _mala fides_ and it is therefore abundantly clear that it is beyond reproach. This therefore means that I reject the version of the Applicant in favour of that of the Respondent. 5.6 Having made a finding that the version of the Respondent in as far as the reversal of the transfers of the Applicants prevails, it follows therefore that the allegation by ‘Mamabusela Semethe that the consistory reversed the decision to transfer the Applicants is an incorrect statement of fact.[16] This is coupled by the absence of the minutes of the said meeting on the record of the proceedings. Contrary to all other meetings whose attendance is recorded and annexed to the record for the perusal of the court. 5.7 Contrary to the contention by the Applicants that the Consistory had a meeting wherein it distanced itself from the decision to transfer the Applicants, no such meeting forms part of the record before court. The Respondents in turn categorically deny the existence of this meeting. There being no record of this meeting, I inclined to conclude that it never occurred. This therefore means that the transfers remained intact awaiting a definite date. 5.8 In fact, what seems to be the correct version of events is recorded in the letters that were written to the 3 applicants individually by the Assistant Secretary of the consistory. The letters are all dated the 17th December 2018.[17] The gist of the letters is they inform the Applicants they should report to their new duty stations in terms of the decision of the consistory of Aug 2018. 5.9 The conclusion that the transfers were never reversed brings into question the subsequent and further allegations by Semethe who is the secretary of the meeting. There will unravel as the judgement continues. **[6]****_THE SHOW CAUSE LETTERS_** 6.1 according to the flow of events, what follows is that the record reveals that on the 17th December 2018, letters were peened to the Applicants to the effect that they should assume their posts as resolved[18]. To this the Applicants collective response is to insist that the dates were fixed by the 2nd Respondent unilaterally. 6.2 On the 3rd May 2019, the secretary of the Consistory, Mamabusela, wrote letters to the 3 Applicants. The letters are similar in most respects more specifically the subject matter. They are what is commonly now referred to as ‘show cause’ letters. These letters request the applicants to show cause why their appointments cannot be terminated due to their failure to adhere to their outstations transfers as mandated by the sitting of the consistory presumably of the 04th August 2018. The same letters advise that they should show cause by the 6th May 2019 why their appointments within the Morija Parish cannot be terminated.[19] 6.2 The response to these letters by the Applicants is that they rejected these letters. This was displayed by their protest action of handing back the letters to the 2nd Respondent.[20] Effectively, through this protest, the applicants denied themselves an opportunity to show the Respondents why they should not be removed from services at the Morija parish. Ordinarily, a show cause letter allows the receiving party to tell their side of the story and explain why further action should not be taken. In other words, it offers procedural fairness to the party receiving the notice. The protest defies not only logic, but the procedural requirements of a fair hearing. A recipient who defies a show cause letter cannot later cry fowl about detrimental consequences of their protest.[21] 6.3 As a result of their failure to show because why an adverse decision cannot be taken against them for defying the consistory, a meeting was held on the 8th June 2019 at Reisi.[22] The attendance registration reveals that indeed they were present at the meeting. The agenda of the meeting also depicts “4\. Matters relating to Evangelists.” The deliberations as minuted show that issues relating to the evangelist were discussed. It was in this meeting that the 2nd Respondent tabled the motion that he cannot work with the Applicants, (presumably after their show cause fall out). The consistory members accepted this motion, thereby agreeing to the removal of the Applicants as evangelists. The resolutions recorded also reflect the appointment of the Applicants as evangelists ceases.[23] I must state that the minute of the adoption for the removal of the Applicants is inelegantly recorded, both in its original format in Sesotho and even the translation does not do any better. Be that as it may be, the meaning and intention can be ascertained. The recording that “the consistory did not disagree with the parish priest.” has no other meaning other than that the consistory as a whole agreed and or took a collective stance to terminate the services of the applicants at the parish. The Applicants contention that the decision was not collective is therefore without merit. 6.4 From the aforementioned facts, which are not denied by the Applicants, it is apparent to the court that the removal from service in the Morija parish was a collective decision of the consistory 6.5 This contradicts the contention by the Applicants that, in taking the decision to remove them, the 2nd Respondent acted _ultra vires_ the powers stipulated in the constitution of the 1st Respondent. This could not be so in the light of the fact that the 2nd respondent did not act on his own accord but complied with the dictates of the constitution of the 1st Respondent. **[7]****_CONSULTATION WITH THE PRESBYTERY_ ** 7.1 The next issue to determine is in relation to the provisions of clause 42.11of the constitution of the 1st Respondent. The same provides that it shall be the function of the Consistory to appoint or remove from office an evangelist, _after consultation with the presbytery._ [_own emphasis_] 7.2 The question posed here is whether the Presbytery was indeed consulted when the Applicants were removed or not. Absent the consultation, the removal of the Applicants stands to be reviewed. 7.3 I agree with Mr. Rasekoai that consultation presupposes what was stated in the case of **_President of the Republic of South Africa and others v South African Rugby Union_**[24]**__** where the court correctly stated that _“To consult in general means to inquire as that someone’s views regard to a proposed course of action. A consultation in this sense can range from a protracted and deliberate**exchange of views** to obtaining a swift significant consent. If the views of the person consulted concur with the action proposed, further consultation is obviously redundant”. _ 7.4 Put simply and in the context of the present case, the question is, after the decision to terminate the services of the Evangelist from the parish, were the views of the presbytery incorporated regarding the proposed cause of action. Did the presbytery deliberate and exchange views with the concerned parties on the issue pertaining to the termination of the services of the Applicants in this particular parish? 7.5 The facts as pleaded according to the version of the applicants is that there is no evidence that the presbytery was “consulted” as envisaged by the dictum outlined in the **_President of the Republic of South Africa and others._****_**[25]**_** 7.6 It is for this reason that there is a need to put the question whether the presbytery was consulted under the microscope. In Nyabela the court, referring to appellate bodies of an establishment, reasoned, as follows; _“_ _Where the tribunal or official which was established to afford the remedy has already prejudged the case or has already decided adversely to him without having heard him on the merits, the remedy need not be pursued_ _”.__**[26]**_ 7.7 At paragraph 31 of the founding affidavit. The applicants charge that the decision to remove them as evangelists presumably from their outstations would still be wanting in law because it was not taken in consultation with the presbytery. To which the Respondents reply that the conduct of the presbytery is indicative from the act of ratifying the decision to terminate applicants’ appointment as evangelists within the Morija parish. Meaning, this consultation envisaged in clause 42.11 should be extracted from the mannerisms of the body of the presbytery. Advocate Mohau KC dissuades the court form viewing the matters in what he terms, under a strong magnifying glass. He submits the court should adapt a practical common-sense approach- he cited in this regard the cases of **_Motaung v Makubela and Another NN.0 1975 (1) SA 618 at 626H -627A._****_**[27]**_** _(b)**** “_In the case of associations, strict compliance with all the procedural rules was not required if nobody was burdened by the deviation there from and neither during the meeting nor thereafter had any objection been raised by those concerned”. Thereon and others v circuit of wellington of the** _D.R Mission Church in South Africa and Others 1976(2) SA 1(AD).**[28]**_** (c)__ “It is common cause that a court of law will only interfere with a decision of a domestic court of a voluntary association of persons, like the church …where at the trial or conviction of the convicted person, a violation of the rules or statues of the association concerned occurred or elementary principles of justice were ignored and where such violation or inobservance actually prejudiced the convicted person.” Per Botha j in **_Odendaal v Loggerenberg en Andere NN.O (1) 1961 (1) SA 712 (0) at 719_**** _**[29]**_** quoted with approval in Theron (supra)at 36H-37.__ He also relied on the case of __**_Garment Workers Union v DE Vries and others 1949 (1) SA 110 (0) AT 1129_**** _**[30]**_**__ where the court dismissed the Applicant’s complaint against what they termed the unconstitutional make up of the meeting whose proceedings they sought to nullify. The court said when even if that meeting had not been properly constituted, the Applicants had not shown that prejudiced them. It is submitted that in the instant case, the alleged non-consultation of the presbytery committee is of no consequence for two reasons: 1. The Applicant were not prejudiced by such non-consultation because the decision still served before the Presbytery and or its committee that had the right to set it aside if it was against church laws. (Section 44.13). 2. The decision was actually endorsed and not reversed with result that the 1st Applicant was even removed from the Presbytery committee. 7.8 To this end, the Respondents, whose version has to determine the state of the facts, is content with the allegation that the court should determine the fate of the applicants on the basis of the indicative behaviour of the Presbytery. This is against the clear mandate of the constitution of the 1st Respondent that requires the Presbytery to be consulted.[31] It is clear from undisputed facts that the Applicants tried to place their case before the presbytery, to which the door was slammed in their face that their case can only be brought before the it(presbytery) by the consistory. 7.9 Before I conclude whether the consistory was consulted, I should explore the meaning of the word “consultation. I found this article relevant for this purpose. It states: _“_ _In the Thesaurus, “consultation” means: “discussion, talk, session, conference, meeting, sounding, soundings” whereas in that leading law dictionary, “consultation” is defined as: an “act of consulting or conferring: e.g. patient with doctor; client with lawyer. Deliberation of persons on some subject. A conference between the counsel engaged in a case, to discuss its questions or arrange the method of conducting it.” From these sources, it is clear that “consultation” as discussed in this context, is about discussions, talks, conferences, sounding of opinions, and deliberations between the public authority and members of the public or organisations, groups or community in respect of the policy or decision which the public authority or functionary is engaged in taking or about to take that will have an adverse effect on the interests of the persons or groups concerned_ _”_ _.**[32]**_ 7.10 Thus, Consultation includes listening to what others have to say and considering the responses. The consultative process must be genuine and not a mere farce. Sufficient time for consultation must be allowed. consulted to be adequately informed so as to be able to make intelligent and useful responses. 7.11 Meaning, to consult presupposes discussions and deliberations from those involved. It is not a one-one process. In the context of the present case, I find what Cotran CJ said in the Nyabela matter relevant. He was discussing the various provisions of the constitution of the 1st Respondent. He stated: _“_ _A provision requiring consultation with named bodies before a statutory power is exercised is also likely to be construed as mandatory".**[33]**_ 7.12 The cumulative effect of these is that article 42.11 requires the presbytery to have discussions, talks and conference with the consistory regarding removal of the evangelist. This cannot be relegated to mere ratification. 7.13 Contrary to the meetings of the consistory which were placed before the court, neither of the parties have paced before the court the minutes of the presbytery meeting where there was consultation regarding the decision to remove the Applicants. In any event, if such decision was made, wouldn’t it not only be prudent but also a legal requirement to have the Applicants present so that could be heard? More so because they are members of the consistory. 7.14 Intrinsic to the issue of consultation is the requirement that those who have to be consulted have a right to be heard. Immediately this attracts the _audi alteram partem_ principles. These were articulated in the case of **_Pages Stores (Lesotho) (Pty) Ltd v. Lesotho Agricultural Development Bank and Others_**[34] Aaron JA captured the _audi alteram partem_ rule and its application in Lesotho faultlessly as thus, and I align myself with his words that _"The right to be heard is generally referred to by means of the maxim audi alteram partem; and the law regarding this right has recently been reviewed by Corbett CJ in the case of**Administrator, Transvaal and Others v Traub and Others 1989 ( 4) SA 731 (A). At p. 748** he stated: 'The maxim expresses a principle of natural justice which is part of our law. The classic formulations of the principle states that, when a statute empowers a public official or body to give a decision prejudicing an individual in his liberty or property or existing rights, the latter has a right to be heard before the decision is taken ( or in some cases, thereafter ... ) unless the statute expressly or by implication indicates the contrary._ 7.15 In the context of the present case, the audi rule would require that the applicants be given a right to be heard by the presbytery before their fate was determined. 7.16 The Applicants were effectively denied this right because they were informed that they could only approach the Presbytery via the consistory. There seems to be no further evidence that indeed the Applicants were given a fair hearing when the presbytery confirmed the decision of the consistory. More so where they have made it apparent that they wanted audience with the presbytery before an adverse decision could be made against them. This ground of review is well articulated in paragraph 31 of the founding affidavit. From these set of facts, I am persuaded to make the decision that the decision of the presbytery violated the principles enunciated in the case of **_Pages Stores_** above. This is so because no meaningful consultation took place. I am not persuaded by the submission of Advocate Mohau that this would be putting the events unnecessary under a microscope. 7.16 As a result of this finding that the decision of the presbytery violated the rules of natural justice, I conclude that the decision to remove the applicants as evangelists in the Morija Parish outstations where they were stationed/ transferred to before their purported discharge stands to be reviewed and set aside. 7.17 The Respondents have not discharged the evidential burden that the mandatory meeting took place. It is essential and indeed the turning point of this case that the final arbiter to determine the fate of the Applicants is the Presbytery. Absent clear evidence of the existence of this meeting, this court cannot be satisfied that the consultation did occur which consultation is in terms of the 1st Respondent constitution the final determinant. This is compounded by the fact that the Respondents have provided no detail as to when and how the consultation was done. **[8]****_CONCLUSION_** 8.1 I have already made a finding that the transfers of the Applicants from their stations as resolved by the meeting of the 4th August 2018 was in line with the principles of Natural Justice in that they were fair and not prejudicial in any way. The 2nd Respondent did not act _ultra vires_ neither did he unduly influence the consistory in any manner. 8.2 I have also concluded that the subsequent show cause letters served on the applicant and the decision to remove them by the consistory was within the powers of the consistory and did not violate the principles of natural justice. 8.3 The 1st Respondent however failed to comply with the “after consultation with the Presbytery Committee” requirement of the clause. 8.4 I therefore conclude that the Applicants removal was not in consultation with the Presbytery as envisaged by Clause 42.11 of the Constitution of the Applicant. This is so because there is no evidence that the to persuade the court that indeed such consultation transpired. **[9]****_THE PRAYERS SOUGHT_ ** 9.1 It is prudent perhaps to mention that Advocate Mohau enlightened the court that removing an evangelist from his or her outstation does not _per se_ defrock such an evangelist. They remain in the service of the church but are not stationed or given any duties. This however affects the stipend and other benefits that they receive because if they are not stationed, they do not receive these. 9.2 This enlightenment puts into perspective the prayers sought by the Applicants in their Notice of Motion. Prayer 1 presupposes that the Applicants are defrocked or discharged as Evangelists. In the light of Advocate Mohau KC’s enlightenment, the order sought cannot therefore be granted. 9.3 The other 2 prayers sought by the applicants are premised on failure of the respondents to observe the principles of Natural Justice. I have already dealt with the allegation made that the 2nd Respondent acted _ultra vires_ and have made a finding that the evidence tendered contradicts that allegation as the decision was made by the full membership of the consistory. 9.4 I have however concluded that the 1st respondent violated articled 42.11 for failure to consult. This speaks to prayer sought by the Applicants 3 sought. I therefore make the following order: **[10]****_ORDER_** Having reached these conclusions, I make the following order: 1. The application is upheld in respect of prayers 2 and 3 2. The Applicants are reinstated as Evangelists in the 1st Respondents branches/outstations as decided by the consistory on the 04th August 2018. 3. The 1st Respondent is ordered to restore to the Applicants all the benefits, rights and privileges, duties and stipends that they enjoyed as evangelists before their purported removal from the date of judgment. 4. There is no order as to costs as this involves parties within the same institution. \------------------------------ **M. G. HLAELE** **JUDGE** For Applicants: Adv. M. Rasekoai For Respondents: Adv. Mohau KC * * * [1] Paragraph 17 of the founding affidavit. At page 17 of the record [2] Paragraph 3.5 of the Answering affidavit at page 48 of the record [3] Annexure S1 to the Answering affidavit at page 60-65 of the record [4] Page 64 of the record. [5]**_Nyabela v Lesotho Evangelical Church_** _.**[5]**_ [6] **_Selikane and 33 others v LTC and others_** C of A (CIV) No 7/99 [7] Page 64 of the record resolution 12 of the meeting of the 4th August 2018 [8] Lenis Nexis [9] **_Femilana v Vice-Chancellor of Nul & Another_** (CIV/APN/ 517 of 1) [[2002] LSCA 94](/akn/ls/judgment/lsca/2002/94) (25 April 2002) [10] Paragraph 17 of the founding affidavit. [11] Paragraph 11 of the Answering affidavit at page 54 of the record. [12] **_Attorney General and others v Tšeliso Sehloho and_** _41 others C of A (CIV)29/2009[[2011] LSCA 20](/akn/ls/judgment/lsca/2011/20)(20 April2011**[12]**_) [13]_**Plascon-Evans Paints Ltd V Van Riebeck Paints (Pty) Ltd**_ ## **[14] Islam v Kabir (CA: 280/2010) [[2011] ZAECGHC 9](/akn/za-ec/judgment/zaecghc/2011/9) (11 April 2011)** [15] Paragraph 20 of the Replying affidavit page 124 of the record. [16] Annexure “MP7” at page 36 of the record. [17] Pages 84-86 of the record. [18] Para 3.8 and 3.9 of the answering affidavits of the record [19] Pages 90-95 of the record. [20]Para 3.9 of the Answering affidavit at page 49 of the record. Confirmed by paragraph 9 of the Replying affidavit at page 114 of the record. [21] Paragraph 11.4 of the Replying Affidavit page 115 of the record [22] Translation of” S**8 “at** page**** 96- 99**** of the record reflects the minutes of the meeting. [23] Page 98 of the record. [24] **_The president of the Republic of South Africa v South African Rugby Union_** [[2001] ZACC 5](/akn/za/judgment/zacc/2001/5) [25] _President of the Republic of South Africa and others**[25]**_ [26] **_Lesotho Evangelical Church v John Matsaba Bokako Nyabela_** CIV/APN/150/80 p8. [27] **_Motaung v Makubela and Another_** _NN.0 1975 (1) SA 618 at 626H -627A.**[27]**_ [28] D.R Mission Church in South Africa and Others 1976(2) SA 1(AD). [29] **_Odendaal v Loggerenberg en Andere_** _NN. O (1) 1961 (1) SA 712 (0) at 719_ [30] **_Garment Workers Union v DE Vries and others_** _1949 (1) SA 110 (0) AT**1129**_ [31] Clause 12.11 [32] Okpaluba and Abioye "_Consultation as the Hallmark of South Africa’s Participatory Democracy: Lessons from the Courts"_ 2020 (34) Spec Juris 130 [33] Nyabela at page 18 [34] Pages Stores (Lesotho) (Pty) Ltd v. Lesotho Agricultural Development Bank And Others LAC (1990-94) 51 at 63B-E #### __Related documents ▲ To the top >