Morija v Lesotho Evangelical Church and Another (CIV/APN 25 of 97) [2000] LSCA 41 (27 January 2000)

IN T HE H I GH C O U RT OF L E S O T HO CIV/APN/25/97 In the matter between:- M O P H A TO OA M O R I JA Applicant and L E S O T HO E V A N G E L I C AL C H U R CH R E G I S T R AR - G E N E R AL 1st 2nd Respondent Respondent J U D G E M E NT Delivered by the H o n. Justice S. N. Peete on the 27th January 2 0 0 0. On the 14th d ay of January 1 9 9 8, an urgent application w as m o v ed exparte before Lehohla J. in w h i ch the Applicant sought an interim order c o a c h ed in the following terms - " 1. T h at R u le Nisi issue returnable on the date a nd time to be determined by the H o n o u r a b le Court, calling u p on the Respondents to s h ow cause (if a n y) w h y- (a) 1st R e s p o n d e nt shall not be interdicted forthwith f r om implementing the a m e n d m e n ts a nd or alterations to the Constitution of the M O P H A TO OA M O R I JA passed by the General C o n f e r e n ce of 1st R e s p o n d e nt in its meeting of the 27th - 28th N o v e m b e r, 1 9 97 p e n d i ng the o u t c o me hereof; (b) T he First Respondent shall not be interdicted forthwith from in any m a n n er interfering with the administration of the Applicant herein pending the o u t c o me hereof; (c) T he 2nd Respondent shall not be interdicted forthwith from registering the constitution of M O P H A TO OA M O R I JA passed by the General Conference of the 1st Respondent in its meeting of the 27th-28th N o v e m b e r, 1997 pending the o u t c o me hereof; (d) T he Constitution purporting to be the Constitution of M O P H A TO OA M O R I JA passed by the General Conference of the 1st Respondent in its meeting of the 27th-28th N o v e m b e r, 1997, shall not be declared null and void of no legal force or effect; (e) 1st Respondent shall not be directed to observe and respect the independence of the Applicant herein as an ecumenical centre; (f) T he normal forms and service provided for by the Rules of Court shall not be dispensed with on account of urgency; (g) T he 1st Respondent shall not be directed to pay costs hereof at an attorney and client scale; (h) Applicant shall not be granted further and or alternative relief as this Honourable Court d e e ms fit. 2. That prayers 1 (a), (b), (c) and (f) operate as an interim order with immediate effect." An interim order w as duly m a de by the learned Judge u p on the prayers as sought a nd m a de returnable on the 9th February, 1 9 98 a nd has b e en extended f r om time to time as the proceedings w e nt on. I w as informed that the court file in this application h ad probably burned along with other files w h en the Registry w as incinerated during the political riots a nd looting on the 22nd September 1998. T he counsel for both sides have kindly constructed a d u m my court record from their o wn files. T he Court appreciates this. T he record reveals that the 1st R e s p o n d e nt then filed his notice of intention to oppose along with his answering affidavit to w h i ch w e re a n n e x ed several documents. T he Applicant filed replying affidavits dated 6* June, 1998. On the 23"* October 1 9 98 w h en the matter h ad to be argued before me Ms T h a b a ne for the 1** Respondent filed an urgent application that the 1st R e s p o n d e nt be allowed to file further affidavit(s) in response to n ew facts or allegations raised in the Applicant's replying affidavits. In her affidavit in support of the application, Ms T h a b a ne avers that "It h ad not been the applicant's case that the 1st Respondent's Executive C o m m i t t ee h ad authorized the registration of A n n e x u re " M M 2" as implied in paragraph 5 of Kabeli's (affidavit) nor w as the then Executive C o m m i t t ee of Applicant a w a re of the registration." S he also prayed for a postponement on the ground that her prospective witness, a Mr Tente. w as then out of the country on 1st Respondent's business in Nairobi, K e n y a. Mr M o h au for the Applicant in reply contended that the filing of further affidavit should be refused because the registration (and legality thereof) of M M2 (Applicant's registered constitution) is not being challenged and hence will remain lawful until set aside by the court u p on a formal application (or counterclaim) being m a de by the 1st Respondent. It appeared during argument that a counter application ( C I V / A P N / 3 0 1 / 9 8) w as m a de but I h a ve no papers in support of such. On the issue of filling further affidavits, our Rule 8 (12) states:- " No further affidavit m ay be filed by a ny party unless the court in its discretion permits further affidavits to be filed". E r a s m us - Superior Court Practice (Juta) - submits that the court will exercise this discretion against the backdrop of the fundamental consideration that a matter should be adjudicated u p on all facts relevant to the issues in dispute (Bader v W e s t e n. 1 9 67 (1) SA 1 3 4; D a w o od vs M a h o m e d. 1 9 79 (2) SA 3 6 1) and that s o me flexibility should be permitted in the interests of the administration of justice. It is essentially a question of fairness to both sides as to whether further affidavits should be allowed (Milne vs Fabric H o u se (Pty)Ltd 1 9 57 (3) SA 6 3 ); another consideration, in my view, should be whether the permitting of further affidavit will obviate the need to call oral evidence under R u le 8 ( 1 4 ). In the present application, the dispute arises as to the m a n n er and circumstances under w h i ch ( M M 2) the constitution of the applicant w as registered a nd the legality thereof; I am of the view that the affidavit of Mr Tente m ay be relevant to that issue a nd that the Applicant will suffer no material prejudice in that he will also be entitled to counter - reply the further affidavit. I have not b e en s h o wn a ny m a la fides or culpable remissness on the part of the 1* Respondent and after hearing argument on the 23"" October 1 9 98 I permitted the affidavit of Mr Tente to filed a nd also ordered that costs of the d ay be a w a r d ed to the respondent to r e m e dy any possible prejudice. Main Application T he fundamental issue in this application is whether the 1st R e s p o n d e nt the Lesotho Evangelical C h u r ch is entitled to a m e nd or alter the constitution of the Applicant " M o p h a to oa Morija" a nd be the ultimate controller of the affairs of the Applicant. It is important to give a brief historical survey of the Applicant in this w h o le context. T he Lesotho Evangelical C h u r ch -the First R e s p o n d e nt - is said to be - a nd this is not in dispute - a religious b o dy corporate with capacity to sue a nd to be sued in its o wn n a me a nd is registered in terms of the Societies Act. I am not going to go into deeper annals of the 1st Respondent except to say that it is an evangelical church w h i ch b e g an its missionary w o rk in Lesotho in 1833 during the days of K i ng M o s h o e s h oe I. It has to-day g r o wn to be o ne of the biggest churches in Lesotho and it is alleged that it has a Constitution called L aw of the Church; it has a s u p r e me governing b o dy (the S y n o d ), the Executive C o m m i t t ee a nd other organs of administration. There are other institutions w h i ch h a ve b e en established by the 1st Respondent a nd in this application, the 1st Respondent maintains that the Applicant is the "Morija Ecumenical Centre established by the Lesotho Evangelical C h u r ch in 1 9 56 through assistance of other churches, Christian associations a nd friendly countries overseas." It regards the applicant as o ne of its organs or institutions under its control. In his founding affidavit, Elisha N k o k a. a chairman of the Applicant, having been duly authorized by a Resolution of the Executive C o m m i t t ee of the Applicant held at Seflka H i gh School on 10th D e c e m b er 1997, states that the Applicant " M o p h a to oa Morija" is an independent organization a nd an ecumenical b o dy w h i ch w o r ks in collaboration with the Lesotho Evangelical C h u r ch and is also o p en to other youth m o v e m e n ts of other church denominations. According to ( M M 2) the constitution registered at the L aw Office on the 9th January 1 9 6 9- " 6. T he M o p h a to os Morija has the following characteristics: It is (a) an association of youth leaders and S u n d ay school teachers; (b) the headquarters of the youth m o v e m e n t s; (c) a training centre for the leaders; (d) a research station for all affairs pertaining to the youth; (e) a centre w h e re y o u ng people m ay get to k n ow each other, help o ne another and together prepare themselves for their service." W h at is of importance h o w e v er is the respective p o w e rs of the General A s s e m b ly of the Applicant and the p o w e rs of the S y n od of the 1st Respondent regarding the a m e n d m e nt of the Applicant's constitution. " M M 2" paragraph IX reads : "Alterations a nd A m e n d m e n ts to the Constitution T he Constitution can be altered or a m e n d ed by a special General A s s e m b ly 1. Alterations and a m e n d m e n ts to the Constitution shall be passed by a three quarters (3/4) majority of the presentees at the General A s s e m b ly wherein they are m o v ed 2. T he laws appearing in this constitution cannot be discussed unless t wo thirds (2/3) of the m e m b e rs of the General A s s e m b ly are present 3. Administrative laws shall be altered or a m e n d ed provided the General A s s e m b ly passes t h em by a majority of half ( ½) or over half of the presentees." W h en the Constitution of Applicant " M M 2" w as registered Mr V. Tente appears as being a vice-chairman and R e v. J. Nyabela as being a m e m b er of the Executive Committee. Also annexed to the affidavit is M M3 w h i ch relates to a m e n d m e nt procedure. It reads as follows: M O P H A TO OA MORIJA - ECUMENICAL Y O U TH CENTRE CONSTITUTION. Xn A M E N D M E N T. 1. These laws with the exception of those set out under N O .4 m ay be a m e n d ed by a Special General A s s e m b ly of M o p h a t o. 2. T he Constitution m ay be a m e n d ed by a three quarters (3/4) majority of those present at the General Assembly wherein such a m e n d m e n ts are m o v e d. 3. These laws cannot by discussed unless two-thirds (2/3) of the m e m b e rs of the A s s e m b ly are present. T he notice of such an assembly should be issued at least t wo m o n t hs before the holding of such an assembly. 4. T he Constitution, N o . XI (property), and the Regulation N o. V, 5 (appointment of youth organizer) m ay be a m e n d ed by the Lesotho Evangelical C h u r ch only after consultation with the Executive C o m m i t t ee of M o p h a t o. 5. Regulations m ay be a m e n d ed by a majority of m o re than half (½) of those present at the General Assembly." To the answering affidavit of Reverend Tseliso Silase Lentsoenyane, the Executive Secretary of the 1st Respondent is attached L EC I - T he L aw B o ok of the Lesotho Evangelical Church. This L aw B o ok also contains w h at is termed the Constitution of the Morija Ecumenical Y o u th Centre a nd in affirming that the Morija Ecumenical Y o u th Centre w as established by the Lesotho Evangelical C h u r ch through the assistance of other churches and Christian organizations, it also states that: " 5. Morija Ecumenical Y o u th Centre is a u t o n o m o us at the s a me time guarding the interests a nd religious affiliations of its m e m b e r s ." It is the 1st Respondent's case that the applicant has always b e en regarded as being o ne of the 1st Respondent's organs and institutions and h e n ce it is not an independent or ecumenical institution but that the applicant is also part and parcel of the church a nd as an institution it has voting rights at the S e b o ka (Synod). T he first respondent contends that if it w e re an independent institution, it could enjoy only an "observer" status with no voting rights. This has not been denied by the Applicant. In the founding affidavit of the Applicant, it is alleged that at a Special meeting of the S y n od of the 27-28 N o v e m b e r, 1 9 9 7, the 1st Respondent "purported to a m e nd and/or repeal the entire constitution of the Applicant and discarded its present organizational structure and m a n n er of administration. T he purported a m e n d ed constitution is attached ... a nd m a r k ed " M M 4 ", and in terms of M M4 the Applicant is n ow to be administered by a B o a rd of Governors appointed by the 1st Respondent's Executive C o m m i t t e e. This being an application, oral evidence could only be allowed by the court under Rule 8 (14) with a v i ew to ensuring a just and expeditious decision. In the exercise of my discretion I therefore granted leave to the applicant and respondent to subpoena certain officials in their respective constituencies give evidence on the pertinent issues raised by the papers before court. These were: (a) T he authority of the Synod, if any, over the M o p h a to in the a m e n d m e nt process of the Constitution of M o p h a t o. (b) T he true position of M M2 Constitution registered at the L aw Office on the 9* January 1969. (c) T he validity of the Constitution for M o p h a to oa Morija ( M M 4) m a de by the Special S y n od Meeting of the 27-28th N o v e m b er 1997. (d) Other related issues. Mr J a m es Masitha Tente g a ve oral evidence on behalf of the first respondent, and I will refer to the salient features of his lengthy testimony. He informed the court that he is a devout m e m b er of the Lesotho Evangelical C h u r ch and also o ne of the founding fathers of the M o p h a to oa Morij a w h i ch he aptly described as "a b a by and creature" of the mother church, the first respondent. He told the court that the M o p h a to oa Morija, the present applicant, w as founded in 1956 and he has been a m e m b er of the applicant since then till 1 9 69 during w h i ch period he w as also a m e m b er of the Executive C o m m i t t ee of the Applicant. He described the status of the applicant as being an a u t o n o m o us o ne but o ne subject to the ultimate direction and supervision by the S y n od (Seboka) w h i ch w as the s u p r e me governing b o dy of the Lesotho Evangelical Church. This supreme authority w as vested in the S y n od by sections 24 a nd 139 of the m a in Constitution of the Church. A c c o r d i ng to h im the S y n od h ad p o w er to review and a m e n d, if necessary, any laws governing the institutions of the church and the applicant w as o ne of these. Regarding the registered constitution " M M 2 ", Mr Tente expressed ignorance about its existence and registration a nd stated that it h ad not been blessed a nd allowed by the Synod. He told the court that in 1 9 6 9, the then cordial relations between the S y n od a nd the applicant b e c a me very strained and tensed. This w as caused by a controversy over the issue whether Mr A b ia Moletsane, the applicant's favourite, w as to hold the office of Y o u th Organiser or Reverend Maraisane w ho w as preferred by the S y n o d. It is clear f r om the M o p h a to Minutes of the 14th-16th M a r ch 1 9 69 that the first respondent through the Sibolla delegation succeeded to assert its authority over the applicant w h o se committees w e re then disbanded. This w as on the 3rd January 1970. R e v. Sibolla is reported to h a ve declared to those present that the constitution of the Applicant e m b o d i ed in the G r e en B o ok w as a m e re draft because it h ad not b e en approved a nd blessed by the S y n od of the first respondent. U n d er cross-examination by Mr M o h au for applicant, Mr Tente w as emphatic and insisted that though a u t o n o m o us in running its affairs, the applicant w as still under the ultimate control of the Synod. According to h im and since the Sibolla declaration, the applicant had no constitution but a draft as contained in the G r e en B o o k; he stated that the situation w as normalised w h en the S y n od finally approved a nd passed a n ew constitution for the Applicant in N o v e m b er 1997. Mr M o h au then referred h im to the clause X II of the draft constitution w h o se fair translation w o u ld read: "XII A m e n d m e nt to Regulations 1. T he regulations, except those under 4 below, m ay be a m e n d ed by a special meeting of the Board of Mophato; 2. T he Constitutions m ay only be amended by a 3/4 majority. 3. 4. These regulations m ay only be discussed w h en 3/4 of the m e m b e rs are present. T he invitations to this meeting should be sent at least 2 months before the meeting. Constitution, N o. XI dealing with Property, standing Order No.5 dealing with section of Administrator m ay be amended only by the Lesotho Evangelical Church after consultation with the committee of the Mophato." 5. T he Standing Orders m ay be amended by over half of the m e m b e rs present." and put it to him that the Synod had no authority whatsoever to alter, re-write or a m e nd the Mophato Constitution and that only the General Conference of the M o p h a to enjoyed this prerogative under clause XII and that the first respondent could only a m e nd or vary the provisions dealing with property and the selection of the Youth Organizer. To this Mr Tente responded by saying that the clause XII w as part of a draft constitution which did not bind the Synod; the Synod, he went on, had ultimate authority to vary and a m e nd even this clause. He explained that the n ew Constitution M M4 approved by the Synod w as the result of the w o rk done by the L aw Commission which w as a body constituted by the Synod to deal with all matters legal within the Church. According to Mr Tente, proper consultations had taken place during which the M o p h a to even submitted its o wn submissions; he referred to the letter written by Mr A. S. Buti dated 15 September 1997. Its fair translation reads:- "15th September 1997. Executive Secretary, Lesotho Evangelical Church, P. O. B ox 2 6 0, M A S E RU 100 Sir, Greetings. It is n ow about t wo years since the General C o n f e r e n ce of M o p h a to submitted a m e n d m e n ts to the constitution a nd regulations of the M o p h a to oa Morija. I hereby send to y ou the relevant copies in order that the L aw C o m m i s s i on m ay e x a m i ne the s a me so that the S y n od m ay discuss t h em at its next sitting on the 28th S e p t e m b er 1 9 9 7. I h a ve b e en directed by the Executive C o m m i t t ee of the M o p h a to to send y ou these legal d o c u m e n t s. P e a c e, Y o u r s, A S. B U TI Y o u th Organizer." Mr M o h au then handed in from the bar a document ID " A" which seems to be the proposed a m e n d m e n ts from the M o p h a t o; and also handed from the bar by Ms T h a b a ne w as a document ID " B" w h i ch contained the proposals from the L aw Commission. I m ay here interpolate a nd observe that the proposals in ID " B" w e re quite radical a nd indeed r e m o ve any vestige of a u t o n o my the M o p h a to h ad hithertofore enjoyed; M o p h a to w as to be placed under the control of a B o a rd of G o v e r n o rs w ho are directly accountable to the S y n o d. In maintaining that proper consultation h ad taken place before this n ew constitution ( M M 4) w as approved by the S y n od on the 28th N o v e m b er 1997, Mr Tente described the consultation procedure within the Church: the affected institution w as entitled to forward its proposals to the S y n od through the Executive C o m m i t t ee of the S y n o d; the L aw C o m m i s s i on w as free to c o m m u n i c a te with the affected institution if it so wished. He stated that he did not k n ow if the L aw C o m m i s s i on had ever m et with the Executive C o m m i t t ee of the M o p h a to before presenting its constitutional proposals to the Synod. He refuted the applicant's assertion that the N o v e m b er 1 9 97 constitution w as a nullity or passed ultra vires. Mr Tente w e nt on to state that prior to the approval of the n ew constitution, the S y n od and the M o p h a to h ad b e en using the so-called draft constitution in the G r e en B o ok since 1970. He goes further to state that the constitution ( M M 2) registered in 1969 is u n k n o wn to him; indeed he described it as a fraudulent d o c u m e nt w h i ch had clandestinely b e en registered without the approval of the Church. It s e e ms correct to hold that in 1997 the L aw C o m m i s s i on had decided that the M o p h a to oa Morija w as n ow getting out of control and the church w as unable to exercise any measure of control over the M o p h a to w h i ch in its ecumenical path had permitted other churches to participate in its administration. T he M o p h a to h ad to be brought to order and the only w ay feasible w as to bring about drastic change to the provisions in the draft constitution. T he provisions of the draft constitution e m b o d i ed in the Constitution of the C h u r ch L E CI w h i ch had to be revised are the following: "5. Morija Ecumenical Y o u th Centre is a u t o n o m o u s, at the s a me time guarding the interests and religious affiliations of its m e m b e r s" and XII A m e n d m e nt to Regulations reads thus:- " 1 These regulations, except those under 4 below, m ay be a m e n d ed by a special meeting of the B o a rd of M o p h a t o; 2. T he Constitution m ay only be a m e n d ed by a 3/4 majority. 3. 4. These regulations m ay only be discussed w h en 3/4 of the m e m b e rs are present. T he invitations to this meeting should be sent at least 2 m o n t hs before the meeting. Constitution, N o . XI dealing with Property, standing Order N o .5 dealing with section of Administrator m ay be a m e n d ed only by the Lesotho Evangelical C h u r ch after consultation with the committee of the M o p h a t o ." 5. T he Standing Orders m ay be a m e n d ed by over half of the m e m b e rs present" XI. Property 1. 2. T he site of Morija Ecumenical Y o u th Centre together with the buildings and property belong to Lesotho Evangelical C h u r ch except property of a particular association. Lesotho Evangelical C h u r ch together with associations mentioned in (1) places all property in the Council of the Centre to use it in the execution of the purpose of the Centre." N e xt called w as Reverend A a r on T h e be w ho is a priest in the Lesotho Evangelical Church since 1976. He is also chairman of the L aw C o m m i s s i on since 1997. He told the court that in April 1997 the L aw C o m m i s s i on w as instructed to look into the problems facing the Parish of Gauteng and the M o p h a to oa Morija. On the 30th April 1997 the L aw C o m m i s s i on presented before the General S y n od a proposal that a n ew constitution for M o p h a to oa Morija - Morija Ecumenical Centre - be drafted. In their report ID " C" it w as categorically noted that M o p h a to oa Morija is one of the major institutions of the C h u r ch but it w as evident that the M o p h a to s e e m ed to be operating independently under the M o p h a to constitution as it stood and that the M o p h a to w as also operating in collaboration with other churches or denominations. T he Commission then recommended that this constitution be altered to restore the authority of the Church over the Mophato. This w as also confirmed in the Report of the L aw Commission to the Special Meeting of the Synod of N o v e m b er 1997. In brief this Report contained several proposals for drastic amendments of the M o p h a to Constitution; these constitutional proposals were the subject of the crucial discussions of the Synod meeting of the 28th N o v e m b er 1997. Reverend Thebe states that these proposals were circulated in advance to the m e m b e rs of the Synod as required by the procedures and states that Mr A S. Buti as m e m b er of the Synod and the Mophato Youth Organiser were also supplied with copies. He explains that the M o p h a to suggestions had previously been transmitted to the L aw Commission but most of these had been rejected by the Commission's Executive Board. T he L aw Commission had then prepared a final draft for the n ew M o p h a to Constitution for consideration by the Synod "ID B". According to Rev. Thebe the so-called constitution of M o p h a to w as but a draft and this had been m a de clear to the M o p h a to Executive Committee as far back as 1969 w h en Rev. Sibolla and his Executive Committee had dissolved the then General Assembly of M o p h a to and its committees. In its Report to the Synod, the L aw Commission notes its grave concerns about the existing constitution of the M o p h a to and that the Synod of the Church w as being sidelined and ignored by the M o p h a to in the running of its affairs and that the Synod no longer exercised direct control over Mophato, as one of main institutions of the church and that the M o p h a to w as n ow collaborating with other churches in the general administration of the Centre and w as describing itself as "Lesotho Ecumenical Youth Centre." T he L aw Commission proposed that the M o p h a to be controlled and administered by the Synod through its Executive Committee like w as the case with other institutions. T he Synod, he says, did not w e l c o me the ecumenical route being followed by the Mophato. According to Revered Thebe w h en the Synod ultimately sat on the 27th N o v e m b er 1997, the Mophato had no legal constitution but a draft document (Green B o ok - page 41) and which w as not binding in its entirety on the Synod. He informed the court that the proposals of the L aw C o m m i s s i on were duly present before the special S y n od Meeting w h i ch Mr A. S. Buti also attended as M o p h a to Y o u th Organiser and the S y n od m e m b e r. T he minutes of the S y n od meeting ID " D" indicate that each proposal w as voted u p on separately and w on approval of the Synod. This gave birth to the N ew M o p h a to Constitution " M M 4 ." It c a me out in evidence that the S y n od of the Lesotho Evangelical C h u r ch has a total membership of 114. N ow Section 30 of the m a in Church Constitution reads:- "(a) Q u o r um 30. 31. H o re e tle e be Seboka se phuthehile e ka k h o na e be bonyane karolo tse peli ho tharo (2/3) tsa litho liteng. Ha ho b u u oa litaba tse a m a ng molao, qeto e ka etsoa ha halofo ( ½) ea litho e le teng. Phetoloeamelao Ho ke ke ha b u u oa ka melao ea kereke ea Evangeli Lesotho ha e se ha bonyane karolo tse peli ho tse tharo (2/3) tsa litho tsohle tsa Seboka li phuthehile. 32. M e l ao ea m o t h eo e ka fetoloa ha likarolo tse tharo ho tse 'ne (3/4) tsa litho tse leng teng m o h la e b u u o a ng li rerajoalo. Fair Translation: (a) Q u o r um 30. For the q u o r um of the S y n od to be constituted at least t wo thirds (2/3) of the general membership must be present. W h en dealing with all matters legal, decision shall only be m a de if half ( ½) of the membership is present. (b) A m e n d m e nt of the L a w. 31. There shall be no discussion of the laws of the Lesotho Evangelical C h u r ch unless t wo thirds 2/3 of the m e m b e r s h ip of the S y n od are present. 32. Constitutions can only be altered only w h en three quarters (3/4) of the S y n od are present during the discussion." N ow assuming that the total m e m b e r s h ip of the S y n od stands at 1 1 4. 3/4 of this n u m b er is 84 and 2/3 thereof is 7 6. Sections 32 and 31 are very important provisions in the constitution of the C h u r ch because they requires specific majorities in the a m e n d m e nt process of its Constitutions of the Church.. I am of the v i ew therefore that the N o v e m b er meeting of the S y n od had to observe the mandatory provisions of this section. F r om the Minutes of the S y n od ID " D" exhibited before this court, it is noted that at 8:00 am the counting s h o w ed the q u o r um of 76 to be present. It is not clear whether the requisite q u o r um of 84 w as present. T he inspection of the minutes indicate that w h en the constitutional proposals of the L aw C o m m i s s i on w e re being voted u p on an average only 60 or 70 people w e re present and voting. This w as b e l ow the requisite majority or q u o r u m. It is therefore clear that section 32 of the C h u r ch constitution w as not complied with and this affects the essential validity of the n ew M o p h a to Constitution. It is my view that the Secretary of the S y n od ought to have assured that the proper q u o r um of 84 w as maintained throughout the discussions and voting. During cross examination Reverend T h e be explained that on the m o r n i ng of the 27th N o v e m b er 1 9 97 a head-count s h o w ed that 83 m e m b e rs of the S y n od w e re present and not 8 4, and he specifically stated that on the 28th N o v e m b er 1997, there w as no head-count. There is indeed no convincing evidence that there w as sufficient q u o r um w h en n ew constitution for the M o p h a to w as purportedly passed by the Synod. It is my v i ew that the issue of q u o r um is both o ne of law and of fact. T he constitution of an institution m ay determine the n u m b er of m e m b e rs thereof w h i ch shall form a q u o r um before a valid decision or resolution m ay be taken; the numerical count on the other is a question purely o ne of fact. There is in my view either a q u o r um or no q u o r u m. This cannot be assumed or estimated and it is the duty of the Secretary or C h a i r m an of the meeting to ensure that the q u o r um is maintained at all crucial stages of the proceedings especially at the voting stages. In my view, w h e re a constitution confers p o w e rs on a specific majority present at a meeting, then unless the requisite n u m b er be present at the meeting, the p o w e rs in question cannot validly be exercised. ( G e r a rd R a m o r e b o H& others vs N t su M o k h e h le & others - 1991 -96 L LR 9 27 at 9 3 5; Arthur L e w in - T he L a w, Procedure and C o n d u ct of Meetings in South Africa (4 E d) P a ge 18). Although it m ay be true that whereas all m e m b e rs of the S y n od had been s u m m o n ed to the Special Constitutional Meeting, the numerical figures indicate that the requisite q u o r um w as not maintained through out the voting process. (See also M o n y a n e& others vs Lesotho B a nk - C I V / A P N / 2 7 8 / 99 - Ruling on a Point of L aw by Kheola C. J. p.6 w h e re he says:- "there w as no q u o r um because only three directors took that resolution. It cannot be legally binding inasmuch as it w as taken in breach of the statute governing the procedures of the respondent". According to R e v. T h e b e, the draft constitution of the M o p h a to w as only recognised as such by the S y n od w h i ch considered itself as not b o u nd by its provisions; it is h o w e v er clear that the S y n od sometimes invoked the provisions of the draft constitution as it did in its April sitting in 1990 (ID " E " ). It is quite clear that w h en the S y n od sat in N o v e m b er 1 9 97 its relations with the M o p h a to w e re not cordial and the S y n od h ad decided to bring the M o p h a to to order and curb its autonomous tendencies. T he root of the controversy lay at the ecumenical philosophy of the M o p h a to w h i ch w as also describing itself as "Lesotho Ecumenical Y o u th Centre" and not "Morija Ecumenical Y o u th Centre." It can be noted that in its constitution registered at the L aw Office in 1969, the M o p h a to is described as "an independent organization respecting the rules and regulations of the Churches affiliated to it and those of the world-wide youth m o v e m e n ts (Art 5 ); and it w o r ks in collaboration with the Lesotho Evangelical Church." This w as not acceptable to the S y n o d. According to R e v. T h e be in the Lesotho Evangelical C h u r ch the S y n od is the s u p r e me governing b o dy w h i ch exercises jurisdiction over other organs and institutions or associations of the church and this authority is based u p on Section 24 and Section 1 39 of the Constitution of the Church. Section 24 reads: " E a ch and every Association is governed by its o wn regulations, w h i ch h a ve b e en allowed by the Seboka." Section 139 reads: " T he following are duties and responsibilities of the Seboka: (a) (b) to e x a m i ne all matters relating to the life and service of the Church. to review the rules (laws) of the church." It is c o m m on cause that since its early beginnings the M o p h a to w as created under the auspices of the C h u r ch w h i ch has always regarded it as its o wn organ and institution over w h i ch it h ad ultimate authority. T he M o p h a to h o w e v er enjoyed a large measure of autonomy. I have not been s h o wn any convincing evidence to demonstrate the termination of this state of affairs, though Clause X II dealing with a m e n d m e n ts s e e ms to vest the authority to a m e nd the M o p h a to constitution on the A s s e m b ly of the M o p h a to and not on the S y n o d; sub-article 4 thereof goes to state that clauses dealing with property and election of the Y o u th Organizer can only be effected by the C h u r ch only after consultation with the C o m m i t t ee of the M o p h a t o. Certainly, these provisions cannot be reconciled with the section 24 and section 139 of the Constitution of the Church. R e v. T h e be concluded his evidence by stating that the M o p h a to w as a u t o n o m o us and runs its o wn affairs but does so under the general supervision of the C h u r ch (Section 24). Mr Lehlohonolo Kabeli then g a ve his evidence in w h i ch he told the court that he w as o ne of the founders of the M o p h a to oa Morija in 1956. He described its m a in mission as being to tutor and train the youth of the C h u r ch in the W o rd of G od and in discipline. He w e nt on to state that in 1 9 64 the then President of S e b o ka R e v. Phakisi declared that the M o p h a to Constitution M M3 w as operative and this w as approved by the Synod. In his view, the said Constitution w as not a draft document. He goes on to state that in 1 9 69 the M o p h a to C o m m i t t ee w as paid a surprise visit by R e v. Sibolla and his delegation w h i ch informed t h em that the M o p h a to Constitution w as only a draft. As pointed out earlier, the relations between the S y n od and the M o p h a to w e re at the time not cordial over the competing claims of Mr Moletsane and of R e v e r e nd Maraisane, the latter wanting to hold both portfolios of Y o u th Chaplain and Y o u th Organizer. It is not in dispute that over this wrangling the S y n od asserted its authority and disbanded the M o p h a to Committee. He agrees that registered constitution M M2 does not tally with M M 3. He explained that M M2 w as drafted in order to transform the character of the M o p h a to into a m o re ecumenical o ne and collaborate with other organizations and denominations. He stated that whilst the S y n od k n ew about this n ew constitution M M2 he could not claim that it had obtained the formal approval of the Synod. It is c o m m on cause that since its registration at the L aw Office in 1969, this n ew constitution ( M M 2) had never been used in the running of the affairs of the M o p h a t o, w h i ch continued using M M3 - the so-called draft constitution. U n d er cross examination, Mr Kabeli concedes that their M o p h a to C o m m i t t ee did not question the authority of the Executive C o m m i t t ee of the Synod. He also candidly admitted that the S y n od is the supreme b o dy of the C h u r ch and had authority to review all the laws of the C h u r ch (Section 139). He also admitted that M o p h a to is a branch institution of the C h u r ch and it enjoys its a u t o n o my under Section 2 4. It receives orders from the C h u r ch though it governs its internal affairs. He admitted that M M2 w as never blessed or approved by the S y n od under Section 24 and that it contains m a ny provisions w h i ch are different in m a ny aspects from the draft constitution. But, as already pointed out, whether a draft or not, the M o p h a to Constitution in the Green B o ok seems to have been an operating d o c u m e nt w h o se provisions w e re used by the S y n od in its dealing with the M o p h a t o. It w as not a dead letter. Mr Senekane Azael Buti then gave his evidence as the M o p h a to Y o u th Organizer. He informed the court that he has held this portfolio since 1974 having been nominated by the Lesotho Evangelical C h u r ch after consultation with the C o m m i t t ee of M o p h a t o. He has also been a youth leader since 1962. Mr Buti in narrating the events that precipitated the 1969 crisis, informed the court that after Mr Z i m m e r m a nn w ho w as a B o ys Scout pioneer and a founding leader of the M o p h a to had departed rrom Lesotho, an acrimonious dispute arose between the S y n od and the M o p h a to over w ho should be the youth organizer. T he S y n od preferred Reverend Maraisane and the M o p h a to favoured Mr Moletsane. He w e nt on to say w h en the A n n u al General Conference in January 1 9 70 could not resolve the deadlock, the Executive C o m m i t t ee of the M o p h a to decided to resign along with Mr Moletsane. T he Synod Executive Standing C o m m i t t ee consisting of R e v. Sibolla, R e v. Thakholi, R e v. M a n d o ro and Mr Tiheli arrived in Morija and ultimately disbanded the M o p h a to Committee. T he M o p h a to continued to function after a n ew compliant committee w as elected consisting of Mr Buti as chairman, Mr N z e k u, M i ss Mapetla, Mr Ratsiu and M rs Nkaota. Mr N z e ku w as an Anglican w ho w as then a scout field commissioner and had been coopted on ecumenical grounds. His evidence then c a me to the N o v e m b er 1 9 97 Meeting of the S y n od in w h i ch the n ew M o p h a to Constitution w as discussed and passed. T he evidence goes on like this : "Question: Regarding the 1 9 97 re-writing of the Constitution of M o p h a t o, w as the General Conference of the M o p h a to oa Morija consulted? A n s w e r: N o. Question: It w as suggested y ou were consulted and even m a de submissions? A n s w e r: It w as a matter of routine. I w as not consulted, we of the M o p h a to also had a draft constitution containing proposals d o ne s o me time in 1995 in readiness for submission to the Synod. On 15th September 1 9 9 71 indeed wrote a letter to the Executive Secretary attaching the a m e n d ed constitution for transmission to the S y n od and for perusal by the L aw C o m m i s s i o n. It w as not on invitation of the L aw C o m m i s s i on to submit those counter proposals." He goes on to say that he attended the N o v e m b er meeting of the S y n od as the delegate of the M o p h a t o. Prior to this meeting he had not seen the proposals being presented by Rev. T h e be w ho w as then the Executive Secretary of the S y n od and a m e m b er of the L aw Commission. "Question: M o p h a to oa Morija had nothing to do with it (Constitution)? A n s w e r: It had the right because the Constitution w as going to bind us and this w as in violation of X I I 4. Question: In terms of the Constitution, does the S y n od h a ve the right to redraw the M o p h a to Constitution? A n s w e r: N o, they don't. That is w hy I raised an objection I told the S y n od that I objected because Clause XII did not allow this; secondly because there had been no consultation; and because the S y n od also w a n t ed to do a w ay with Clause XII." He states that he nevertheless took part in the voting on the 28th N o v e m b er 1 9 97 w h en the proposals of the L aw C o m m i s s i on w e re being discussed and voted u p o n. He agreed that since 1974 as a Y o u th Organizer he h ad b e en using the M o p h a to Constitution in the Green b o ok (and not M M 2 ). He insisted h o w e v er that the S y n od does not have the right to re-write or even to a m e nd the constitution of the M o p h a t o, w h o se General A s s e m b ly enjoyed that prerogative. He says "this constitution can only be a m e n d ed or re-written by a special general Conference of the M o p h a to consultation with the S y n od of the Church." He further agrees that the S y n od under Section 139(b) of the L aw of the C h u r ch has p o w er to review all laws of the C h u r ch but only after consulting the affected organization or institution (Section 24). He says that no meaningful consultation occurred prior to the N o v e m b er meeting of the Synod. During cross examination, Mr Buti w as taxed about the founding affidavit of N k o ka in w h i ch reliance is m a de u p on M M2 and not M M3 in the G r e en b o o k; he insisted that he never used M M2 in his dealings as Y o u th Organiser. He stated that he tried to consult with the Executive Secretary of the S y n od concerning the constitutional proposals of the M o p h a to ( E X. B ") and that on the other h a nd the constitutional proposals of the L aw C o m m i s s i on w e re never formally presented to the General Conference of M o p h a to for discussion. M r. Buti then stated clearly that the S y n od in fact k n ew about M M2 w h o se existence they merely chose to ignore. He further explained that the purpose for drafting M M2 in its present form w as "to impress foreign donors. It w as not for local use. I never used M M2 in my official dealings as the Y o u th Organizer." He accepted that the S y n od w as the supreme b o dy of the Lesotho Evangelical Church, and that it h ad p o w er and authority to m a ke decision on behalf of the C h u r c h; and that Section 24 and 139 of the L aw of the C h u r ch give the S y n od the ultimate right to review all laws of the church and even a m e nd the laws of the associations or institutions after having consulted with them. A u t o n o my of the M o p h a t o. T he nature and the extent of the a u t o n o my of the M o p h a to is a very pivotal issues o ne in these proceedings and to determine this a u t o n o my we h a ve to look at the founding documents or constitutions contained in the G r e en B o o k. T he English translation annexed to the first respondent's affidavit is headed "Morija Ecumenical Y o u th Centre .. Constitution. "5. Morija Ecumenical Y o u th Centre is a u t o n o m o us at the s a me time guarding the interests and religious affiliations of its m e m b e r s ". This should be contrasted with Section 5 of M M2 - the constitution registered at the L aw Office in 1969; it reads: "5. T he M o p h a to oa Morija is an independent organization respecting the rules and regulations of the Churches affiliated to it and those of the world-wide youth m o v e m e n t s. X I. Alterations and a m e n d m e n ts to the constitution. T he Constitution can be altered or a m e n d ed by a special General Assembly. (a) Alterations and a m e n d m e n ts to the constitution shall be passed by a three - quarters (3/4) majority of the presentees at the General A s s e m b ly wherein they are m o v e d. (b) T he laws appearing in this constitution cannot be discussed unless two-thirds (2/3) of the m e m b e rs of the General A s s e m b ly are present. (c) Administrative L a ws shall be altered or a m e n d ed provided the General A s s e m b ly passes t h em by a majority of half ( ½) or over half of the presentees G OD BLESS T HE M O P H A T O ." It is quite clear that M M2 excludes the authority a nd supervision of the S y n od and allows participation of the Lesotho Evangelical C h u r ch only to the extent of mutual collaboration; I m ay here add that whilst Mr M o h au submitted that M o p h a to oa Morija is a u t o n o m o u s, he did not go to the length of saying it w as independent and not subject to the authority and control of the Church. T he extent of applicant's a u t o n o my as clearly demonstrated in 1 9 69 w h en the S y n od through its Standing C o m m i t t ee effectively asserted its control and authority over the M o p h a t o. This has never been relinquished; and no convincing evidence has been led to s h ow that M o p h a to ever formally left the supervision of the S y n od after 1970. In fact, the evidence of Mr A. S. Buti clearly demonstrates that the M o p h a to is still an organ and institution of the Lesotho Evangelical C h u r ch and that the so called draft constitution and not M M2 w as always used by h im in his dealings with the S y n od and Executive C o m m i t t ee of the Synod. His only complaint is that he and the M o p h a to C o m m i t t ee and the General A s s e m b ly w e re sidetracked and brushed aside; he says there w as no proper and meaningful consultation between the M o p h a to a nd the S y n od over the proposed n ew constitution for the M o p h a t o. He stated that on the 15th September 1 9 97 he dispatched their o wn constitutional proposals for transmission to the S y n od and for perusal by the L aw C o m m i s s i o n. If at all the General A s s e m b ly of the M o p h a to had the sole authority to a m e nd and approve such n ew constitution under XII (1), indeed I fail to understand w hy Mr Buti's draft had to be sent to the Executive Secretary of the Synod. This only demonstrates the reality-namely, that the S y n od still wielded the ultimate authority in the constitutional a m e n d m e nt process. He also says consultation w as necessary between the M o p h a to and the S y n od over the proposed constitution "because it w as going to bind us." He goes on to say that the M o p h a to Constitution can only be varied by the special conference of the M o p h a to in consultation with the S y n od of the Church. Mr Kabeli also admits that "nothing can be dealt without being presented before the S y n od - w h i ch is the supreme and highest b o dy in the Lesotho Evangelical Church. It can refuse anything;" and he goes on ".... we did not question the authority of the Executive C o m m i t t ee of the S y n od ..." and "it had the authority to disband the M o p h a to C o m m i t t ee ..." According to Mr Kabeli the M o p h a to is a branch and an institution of the Lesotho Evangelical C h u r ch under Section 24 of the L aw of the C h u r ch and it is a u t o n o m o us but receives orders from the Church. He explains further that M M2 w as m a de unilaterally by the M o p h a to and h ad never been blessed by the C h u r ch under section 2 4. T he nature and extent of this a u t o n o my enjoyed by the M o p h a to can therefore be perceived from the standpoint of the constitutional provisions, and from the day-to-day dealings between the M o p h a to and the Synod. T he correspondence between Mr A. S. Buti and the Executive C o m m i t t ee of the S y n od demonstrates clearly that M o p h a to could not act unilaterally in varying or amending its constitutions. It is clear therefore that the M o p h a to is not an independent institution but one w h i ch enjoys a large measure of a u t o n o my under the general supervision of the S y n od of the Lesotho Evangelical Church. This has been amply demonstrated, and it is proper to c o me to the conclusion that the S y n od indeed has authority to a m e nd or review the laws of the M o p h a to because Section 24 and Section 139 s e em to e n d ow the S y n od with ultimate p o w er to approve or review the laws of the church organs and institutions. T he only pernicious question is whether the supreme S y n od w h en approving the n ew constitution for M o p h a to ( M M 4) complied with the mandatory provisions of the q u o r um of the laws of the C h u r ch in the G r e en B o o k. Without revisiting the evidence unnecessarily, I am of the v i ew that the S y n od proceedings of the 28th N o v e m b er 1 9 97 w e re highly irregular a nd indeed the important provisions of Sections 31 and 32 w e re violated. T h ey read:- "31. T he laws/rules of the Lesotho Evangelical C h u r ch shall not be debated u p on unless at least t wo thirds (2/3) of all m e m b e rs of the S e b o ka are present at a meeting. 32. C h a n g es to the constitution m ay be effected if three quarters (3/4) of the m e m b e rs present at the meeting of the S e b o ka w h en it (constitution) is discussed so decide. T he official q u o r um of the S y n od is 76 (this being 2/3 of 114). T he totality of the votes in the minutes on the 28th N o v e m b er 1997 indicate that less than 76 m e m b e rs participated in the S y n od on the 28th N o v e m b er 1997. This, I regret to say, renders the w h o le proceedings on that day a complete nullity. To hold otherwise and say the q u o r um can be a s s u m ed w h en the numerical votes in the minutes explicitly indicate to the contrary w o u ld indeed render m o c k e ry to these mandatory q u o r um provisions. W h en a S y n od meeting lacks the requisite q u o r um or w h e re the n u m b e rs get reduced and fall b e l ow during the conduct of such a meeting, the C h a i r m an or Secretary has the duty to postpone or adjourn the proceedings till the q u o r um is restored. I therefore hold that whilst the S y n od h ad authority to review the laws of the M o p h a t o, its proceedings on the 28th N o v e m b er 1 9 97 w e re irregular in that they did not c o m p ly with the provisions of the Section 31 and Section 32 of the constitution of the Church. It is not necessary therefore to decide definitely whether proper and meaningful consultation b e t w e en the Synod's Executive committee and its L aw C o m m i s s i on on o ne h a nd and the M o p h a to and its organs on the other h a nd h ad taken place . T he M o p h a to as an organ or institution of the Lesotho Evangelical C h u r ch h ad a legitimate right or expectation to be consulted concerning the proposed constitution w h i ch w o u ld bind it; indeed, as it has turned out, M M4 is a s o m e w h at drastic d o c u m e nt that reorganises the M o p h a to and limits its original autonomy. Fairness and natural justice required that M o p h a to as an affected institution be consulted meaningfully about the proposed changes e v en if the ultimate Synod's decision might disregard M o p h a t o 's proposals. It is my v i ew that o ne aspect of the M o p h a t o' s a u t o n o my is the right to be consulted in matters involving a m e n d m e nt or changes to its constitution so that it could h a ve a fair opportunity to submit objections or suggestions. Consultation does not m e an agreement or consent but m e a ns a fair and full opportunity for views to be stated - R. v M b e te 1 9 54 (4) SA 4 9 1. O n ce b o na fide communication of proposals on a reciprocal basis h ad truly taken place, the S y n od could lawfully review and a m e nd the constitution of the applicant at its properly constituted meeting and in accordance with the laws and procedures contained in the G r e en B o o k. I therefore m a ke the following findings:- (a) T he applicant M o p h a to oa Morija w as created by the Lesotho Evangelical Church in 1956 to spread the W o rd of G od a m o n g st the Y o u th of the C h u r ch being, the first respondent; it is therefore one of the m a in organs and institutions of the Church. (b) T he applicant enjoys a large measure of a u t o n o my to run its o wn affairs but it is subject to the ultimate supervision and control by the S y n od of the Church. (c) the first respondent does in law and in fact possess authority through its S y n od to review the laws of the C h u r ch and its institutions o ne of w h i ch is the applicant. (d) T he Constitution registered at the L aw Office in 1 9 69 " M M 2" h ad not obtained the formal approval of the Synod. (e) T he n ew Constitution " M M 4" purportedly passed by the S y n od on the 28th N o v e m b er 1997 is null and void because requisite q u o r um w as not present at the said N o v e m b er meeting. I also m a ke the following directives:- 1. T he Executive Secretary of the S y n od is hereby ordered a nd directed to fulfil the following: (a) to circulate the printed English and Sesotho draft Constitution M M4 to all m e m b e rs of the S y n od and to all m e m b e rs of the General A s s e m b ly of the M o p h a to and its Executive C o m m i t t ee for written c o m m e n ts thereon. (b) to convene a Special Meeting of the S y n od within three m o n t hs or before end of April 2 0 00 in terms of the provisions of the L aw of the Church. (c) to ensure that the Special S y n od Meeting observes during its deliberations the mandatory q u o r um provisions under sections 30,31, and 32 of the L aw of the Church. (d) to ensure and guarantee a free, full and fair discussion of all proposals for and against any a m e n d m e nt of the present Constitution of the M o p h a t o. 2. T he Constitution " M M 2" to be tabled on the A g e n da of the S y n od for discussion and decision thereon. 3. T he Executive Secretary submit a written Report to the Registrar of this Court about the final decisions of the S y n od within t wo w e e k s. T he question of costs is deferred until after the a b o ve directives h a ve b e en complied with. J U D GE For Applicant: Mr Mohau For Respondent: Ms Thabane