Morija v Lesotho Evangelical Church (CIV/APN 25 of 97) [2000] LSCA 2 (20 April 2000)

CIV/APN/25/97 IN T HE H I GH C O U RT OF L E S O T HO In the matter between:- M O P H A TO OA M O R I JA A P P L I C A NT and L E S O T HO E V A N G E L I C AL C H U R CH R E S P O N D E NT J U D G M E NT Delivered by the Honourable Mr Justice S. N. Peete on the 2 0* April 2 0 00 This is an application for leave to stay execution of the j u d g m e nt delivered by me on the 27th January 2 0 00 pending the outcome of the appeal in CIV/A/12/2000. T he notice of appeal and its grounds of appeal w e re filed on the 9th M a r ch 2 0 00 (the last d ay of the six-week period [Rule 3 of Court of Appeal Rules- L N . 10 of 1980]. Rule 6 of the Court of Appeal Rules states:- "(1) Subject to the provisions of the sub-rules infra the noting of an appeal does not operate as a stay of execution of the j u d g m e nt appealed from. (2) T he appellant m a y, at any time after he has noted an appeal, apply to the judge of the H i gh Court w h o se decision is appealed from for leave to stay execution. (3) T he application referred to in sub-rule (2) herein shall be brought by notice of motion, supported by affidavit, delivered to the respondent a nd filed by the Registrar not less than seven days before the date set d o wn for hearing the application. (4) T he respondent m ay deliver opposing affidavits not less than t wo days prior to the hearing of the application. (5) On such and application the j u d ge of the H i gh Court m ay m a ke such order as to h im s e e ms just and in particular without in any w ay depriving h im of his discretion m ay order- (a) that execution be stayed subject to the appellant giving such security as the judge thinks fit for p a y m e nt of the w h o le or any portion of the a m o u nt he w o u ld h a ve to p ay if the appeal should fail, or (b) refuse that execution be stayed subject to the respondent giving security for restoration of any s um or thing received under execution, or, (c) it m ay order that execution be stayed for a specified time but that after the lapse of such time execution m ay proceed unless the appellant has within such time furnished security for such sul as the judge m ay specify. (6) T he judge hearing such application m ay m a ke such order as to costs as he m ay think fit. (7) If the judge w h o se decision is appealed from is unable for any reason to hear such application any judge of the H i gh Court m ay hear it. (8) T he judge before w h om the application is brought m ay refer the application to the full Court of A p p e al for hearing." It should be noted that our Rule 6 changes the c o m m on law wherein noting of an appeal suspends the execution of j u d g m e nt appealed against unless the court otherwise directs. U n d er the c o m m on law once an appeal has been noted the successful party m u st m a ke a special application in favour of execution [South C a pe C o r p. v Engineering M a n a g e m e nt Services - 1 9 77 (3) SA 534] and in such an application for leave to execute a j u d g m e nt pending appeal, the onus rests u p on the applicant w ho is successful party in the court a q u o. T he rationale behind this c o m m on law rule is to protect the intending appellant against irreparable h a rm in the event of his appeal succeeding. In Lesotho, under Rule 6, the noting of an appeal does not perse suspend execution and it is for the judgment debtor to m a ke an application for leave to stay the execution of j u d g m e nt pending the o u t c o me of his noted appeal; and consequently he bears the onus to convince the court to exercise its judicial discretion in his favour. Usually the affidavit m u st allege and s h ow g o od reasons w hy the execution of j u d g m e nt m u st be stayed pending the o u t c o me of appeal - for example the applicant m u st s h ow that the execution of j u d g m e nt shall occasion h im irreparable h a rm (Isaac Jefty S m i th v Minister of Interior - 1 9 74 -75 L LR R 3 6 6) and that he has reasonably g o od prospects of success, and it can also be s h o wn that the balance of convenience favours preservation of status q uo and that execution is likely to place the applicant/appellant in an irreversibly worse position from w h i ch he enjoyed before judgment - A l e x a n d er v Joki a nd O t h e rs - 1 9 48 (3) SA 2 69 w h e re it w as held that the court should be slow to grant an order w h i ch w o u ld cause a judgment under appeal to h a ve immediate operative effect. According to V an W i n s e n. T he Civil Practice of the S u p r e me Court of South Africa (1997) p.885, it is also necessary to s h ow that the matter taken on appeal is of substantial importance to one or both parties (Haine v P o d l a s h uc & Nicholson - 1 9 33 A . D. 104: African G u a r a n t ee & I n d e m n i ty vs V an S c h a l k w v c k& O t h e r s - 1 9 56 ( 1 ) S A- 3 2 6) or of importance to a section of the public (Podbrey v S t em 1 9 46 C P D. 9 6 2, A b r o m o w i tz vs Jacquet & A n o t h er - 1 9 50 (3) SA 378. T he court ultimately has to consider whether it w o u ld be possible restore the status q uo ante if the appeal w e re upheld-Kalahari Salt W o r ks (Pty) L td & O t h e rs vs B o n ne F o r t u ne Beleggings B pk - 1973 (4) SA 471 at 4 76 - 477. It m u st also be recognised that the subject matter of the j u d g m e nt appealed against is one that does not sound in m o n ey and that it w o u ld be rather difficult to restore status q uo ante O m n ia in the event of the appeal succeeding. ( W o od v E d w a r ds & another - 1 9 66 (3) SA 4 43 at 446. Lastly, the court should consider whether the appeal is frivolous vexatious and not b o na fide and intended merely to gain time African Congregational C h u r ch & D u be 1944 W LD 2 04 at 6 - and whether there is a reasonable possibility of the Court of Appeal taking a different v i ew from that of this court. In this case, access to all justice also m e a ns access to the courts including the highest in the land. U n d er Rule 6, the court has very w i de general discretion to grant or refuse leave and if leave be granted to determine conditions u p on w h i ch the stay is granted. This discretion is part and parcel of the inherent jurisdiction w h i ch the court has to control its o wn judgments. In exercising its discretion the court should determine w h at is just and equitable in the circumstances of each particular case bearing in m i nd that the execution of the order of the trial court m ay cause hardship or inconvenience to the intending appellant and that if the appeal succeeds then such hardship or inconvenience will have been suffered unnecessarily. In this application, the applicant seeks to suspend certain orders m a de by the court on the 27th January 2 0 00 the effect of which w as to cause the S y n od of the respondent to re- assemble and reconsider M M4 (the n ew constitution of M o p h a to m a de in N o v e m b er 1997) under a properly constituted Synod. Mr M o h au motivates his application by submitting that he has noted an appeal against the judgment of this court and that unless the execution of that judgment is stayed, the applicant - M o p h a to oa Morija - will suffer irreparable h a rm if its appeal is successful; he submits also that the appeal has arguable prospects of success Isaac Jefty Smith vs Minister of Interior N o .2 - 1974-75 L LR 3 66 where Cotran A CJ stated:- "Noting an appeal from a H i gh Court judgment does not and ordinarily w o u ld not and should not operate as a stay T he highest court in the land m ay take, I am not saying it will, a different view of the matter than the court a quo T he principle is that no court can presume automatically that its judgment is correct and refuse a stay, and should do so only w h en it is clear that the appeal has not merit, or is frivolous or vexatious or its sole purpose is postponement of the evil day." Mr M o h au contents that the applicant would suffer irreversible prejudice if the controversial constitution is put into place by the Synod after, as the court directed, requisite q u o r um is achieved. Whilst there is a real likelihood that the respondent's constitutional proposals will carry the day, I cannot say that the applicant's present appeal is without merit, frivolous or vexatious. He submits that it is a lesser evil to maintain the status q uo ante till the appeal is disposed of because this situation h ad obtained for the last 30 years, a nd that maintenance of status q uo as it has always been w o u ld not disrupt the affairs of the respondent or cause the C h u r ch irreparable harm. Balances of convenience a nd of hardship favour maintenance of the status q u o, he contends. Ms T h a b a ne for the respondent vigorously maintains that the applicant's appeal is without merit and is intended merely to delay execution of judgment. S he further submits that the supporting affidavit of Elisha N k o ka is based on hearsay regarding the threatened dismissals of the Applicant's personnel by the S y n od after the disputed constitution M M4 is put in place by the S y n o d. S he also goes on to submit that correspondence entered into b e t w e en the applicant's attorneys a nd those of the respondent after the j u d g m e nt w as delivered on the 2 7* January 2 0 00 w as "without prejudice" a nd h e n ce inadmissible in litigation - N a i d oo vs M a r i ne a nd T r a de I n s u r a n ce C o. L td - 1 9 78 (3) SA 666. W h i ch decided that correspondence conducted "without prejudice" in the b o na fide efforts of both parties to an action to settle the plaintiff's claim is, in accordance with the general "without prejudice" rule, once a party objects to its being a d d u c ed in evidence, wholly inadmissible. ( L aw of South Africa - Vol.9, p.290). S u ch correspondence is indeed inadmissible in our case in so far as it relates to the issue whether the applicant will suffer irreparable harm. I should at o n ce say that I h a ve not taken into any consideration these correspondence at all in this inquiry. T h ey are unnecessary a nd s e em to cloud the issue with u n f o u n d ed allegations. Ms T h a b a ne further contends that any other potential prejudice is also totally u n f o u n d ed and based on sheer speculation. T he issue of applicant's a u t o n o my w as a crucial o ne in the proceedings before court in regard to w h i ch the court heard lengthy viva v o ce evidence a nd had to c o me to a decision through inferential reasoning a nd concluded that the S y n od h ad the ultimate authority to a m e nd the constitution of the applicant. A n o t h er court can interpret these constitutional d o c u m e n ts that w e re presented differently; all I c an say the matter is arguable. On an application for stay of execution, R u le 6 requires the applicant, the o n us being u p on h i m, to file an affidavit establishing factors w h i ch should, on a balance of probabilities, convince the court to exercise the judicial discretion in its favour a nd stay execution of j u d g m e nt pending appeal. (South C a pe C o rp vs E n g i n e e r i ng M a n a g i ng Services-supral In exercise of its judicial discretion, the court cannot disregard the evidence a nd arguments placed before it during the original court proceedings. Indeed, in exercise of its w i de discretion, the court is entitled to take into consideration all relevant matters raised during those proceedings. T he issue in the present proceedings does not s o u nd in m o n ey but is an intricate issue of interpretation of d o c u m e n ts or constitutions. Considerations of equity a nd fairness m ay h a ve relevance in deciding whether or not to grant the application. ( R u b y 's C a sh Store v Estate M a r ks a nd A n o t h er - 1 9 61 (2) SA 118). It b e c a me quite clear during the proceedings that the tenuous constitutional relationship b e t w e en the respondent, Lesotho Evangelical C h u r ch a nd the Applicant M o p h a to oa Morija is a matter causing great concern in the church. T he importance of this issue in the church is therefore another factor to be taken into consideration. Access to justice m e a ns that a party aggrieved by a decision of a court of l aw should h a ve access to a higher court. If the applicant h ad the legal right to appeal against my decision, it w o u l d, in my v i ew be an improper a nd injudicious exercise of my discretion to refuse the application - thus also rendering his appeal nugatory - merely on the g r o u nd that the applicant's appeal is without merit. In exercise of my discretion u n d er R u le 6 of the Court of A p p e al Rules, I grant the application . T he applicant is directed to undertake in writing to p ay the respondent's costs on appeal in the event of the appeal not succeeding. -The current administration of the M o p h a to to continue to be administered in terms of the Constitution in the G r e e n b o o k. S. N. PEETE J U D GE For Applicant: Mr Mohau For Respondent: Ms Thabane