Management Committee of Emanuel and Others v Eighteenth episcopal African Methodist Episcopal Church (C of A (CIV) 25 of 94) [1995] LSCA 15 (13 January 1995)

C. OF A (CIV) NO.25/94 IN THE COURT OF APPEAL In the matter between: THE MANAGEMENT COMMITTEE OF EMANUEL PULENG 'MOLAOA TOPOLLO MATLATSA REBECCA NCHEE MONALETSANA QHOBELA REVEREND D. SENTSO ZAKARIA NTOI ARTHUR PHOLO PETER KEMENG AND 1ST APPELLANT - 2ND APPELLANT - 3RD APPELLANT 4TH APPELLANT - 5TH APPELLANT - 6TH APPELLANT - 7TH APPELLANT - 8TH APPELLANT - 9TH APPELLANT - THE EIGHTEENTH EPISCOPAL AFRICAN METHODIST EPISCOPAL CHURCH RESPONDENT HELP AT MASERU CORAM MAHOMED P. KOTZE LEON J. A. J. A. KOTZE J. A. J U D G M E NT On the 4th May, 1994, MONAPATHI J. confirmed with costs against the nine appellants a rule nisi in terms of which they were inter alia restrained from making public broadcasts on behalf of the respondent church, conducting meetings or services under its name, occupying any of its property and threatening, assaulting or insulting any of its office bearers. The rule as confirmed furthermore restrained the 6th, 7th, 8th and 9th appellants from holding themselves out as pastors of the said church and to perform services, functions or activities in its name. The confirmation of the rule was based on allegations by the respondent church, and disputed by the appellants, that they (the appellants) were lawfully expelled from the positions they held in the church and the resulting deprivation of their rights, duties and privileges attaching thereto. Briefly stated the approach of MONAPATHI J. was that the expulsions were valid "as shown in the replying affidavit of the applicant" (i.e. the respondent in this appeal). The approach of the learned Judge was wrong. The respondent (unrepresented at the appeal} approached the Court a quo on motion. The crucial allegation was disputed. The respondent did not apply for the hearing of viva voce evidence and chose to let the matter run its course on the disputed crucial allegation. In the circumstances the proper approach would have been to assume the truth of the denial of the factual allegation. In the circumstances the appeal is upheld with costs. G. P. C. KOTZE JUDGE OF THE COURT OF APPEAL I agree I agree I. MAHOMED PRESIDENT OF THE COURT OF APPEAL JUDGE OF THE COURT OF APPEAL Delivered at Maseru this 13th day of January, 1995.