C of A (CIV) No. 12 of 2000
IN THE LESOTHO COURT OF APPEAL
In the matter between:
MOPHATO OA MORIJA APPELLANT
LESOTHO EVANGELICAL CHURCH RESPONDENT
Mophato oa Morija ("the appellant"), also known as the Morija Ecumenical Youth Centre, was established by the Lesotho Evangelical Church ("the respondent") in 1956 as its youth association. According to the respondent's law
book its youth association, like each of its other associations, was governed by its own regulations which had been authorised by the respondent's synod. The law book actually contains the appellant's regulations in a document called "the Constitution of Mophato", hereinafter referred to as "the law book constitution". The legal status of this constitution is doubtful. A constitution was registered in 1969 in terms of the Societies Act, 20 of 1966 ("the Act"), hereinafter referred to as "the registered constitution". The validity of the registration was questioned by the respondent.
At a special session of the respondent's synod held on 27 and 28 November 1997 the respondent purported to amend the appellant's law book constitution, but in effect repealed it and replaced it with a constitution to which I shall refer as "the disputed constitution". The concluding paragraph of the disputed constitution reads as follows:
"It is hereby made known that the regulations known as the former Constitution of Mophato oa Morija [the law book constitution] has been repealed with effect from the 31st December, 1997. These regulations will come into force on the 1St January, 1998."
The appellant objected to the adoption of the disputed constitution. It maintained that whereas previously, in terms of the law book constitution, it had
been an autonomous institution administered by its own general conference through its own executive committee, it would now, in terms of the disputed constitution, be administered by a board of governors appointed by the respondent's executive committee. The appellant contended that the respondent, in amending the law book constitution, acted ultra vires since the respondent's right to amend the law book constitution was limited in terms of that constitution. The appellant further submitted that the disputed constitution was adopted by the synod at the meeting on 28 November 1997 when there was no quorum and that the disputed constitution was therefore in any event null and void.
The appellant brought an urgent application in the High Court against the respondent as first respondent and the Registrar-General as second respondent. The Registrar-General is the official who is responsible for registering societies in terms of the Act and she was cited as second respondent because the appellant sought an order inter alia interdicting the Registrar-General from registering the disputed constitution. The Registrar-General abided the decision of the Court.
The appellant brought the application as a society registered in 1969 under the Act. In terms of its notice of motion the appellant sought an order interdicting the respondent from implementing the amendments and alterations contained in
the disputed constitution and from interfering with the administration of the appellant. The appellant further asked for an order declaring the disputed constitution null and void and for an order directing the respondent to observe and respect the independence of the appellant as an ecumenical centre.
The High Court granted the appellant a rule nisi and a temporary interdict pending the outcome of the case. The respondent opposed the application and the matter was eventually referred to oral evidence. The respondent alleged that it had no knowledge of the registered constitution, and that it had never been approved by the respondent. The respondent accordingly maintained that the registered constitution was of no force and effect and that the appellant was not an independent body as alleged. The Court a quo (Peete J) found that the registered constitution "had not obtained the formal approval of the synod", but made no order as to its validity. The respondent, moreover, did not bring any counter application to have the appellant's name removed from the register kept by the Registrar-General. The appellant consequently remained a registered society under its registered constitution in terms of the Act. (Cf Collin v Toffie 1944 AD 456 at 463-4; Mbagamthi v Phalatsi 1980-1984 LAC 179.)
The respondent further alleged that the law book constitution was merely
a draft constitution which had never been approved by the respondent's synod and that the respondent was therefore not bound by the restrictions concerning amendments to that constitution. The Court a quo made no finding or order as far as the law book constitution was concerned. It did, however, make the crucial finding that the disputed constitution was null and void because there was no quorum when the synod approved the disputed constitution. Notwithstanding this last-mentioned finding the Court a quo decided not to confirm the rule nisi or any part thereof. Instead thereof it gave the following "directives" and made the following cost order which neither of the parties had asked for:
"1. The Executive Secretary of the Synod is hereby ordered and directed to fulfil the following:
to circulate the printed English and Sesotho draft Constitution MM4 [the disputed constitution] to all members of the Synod and to all members of the General Assembly of the Mophato and its Executive Committee for written comments thereon.
to convene a Special Meeting of the Synod within three months or before end of April 2000 in terms of the provisions of the Law of the Church.
to ensure that the Special Synod Meeting observes during its deliberations the mandatory quorum provisions under sections 30, 31 and 32 of the Law of the Church.
to ensure and guarantee a free, full and fair discussion of all proposals for and against any amendment of the present Constitution of the Mophato [the law book constitution].
The Constitution 'MM2' [the registered constitution] to be tabled on the Agenda of the Synod for discussion and decision thereon.
The Executive Secretary submit a written Report to the Registrar of this Court about the final decisions of the Synod within two weeks.
The question of costs is deferred until after the above directives have been complied with."
The appellant lodged an appeal against the judgment of the Court a quo while the respondent filed a cross-appeal against the Court's finding that the disputed constitution was null and void because it had not been adopted by a quorum.
The appellant's first ground of appeal was that the Court a quo erred in making the above order when neither the appellant nor the respondent had asked for it. Counsel for the respondent, on the other hand, submitted that the Court a quo was fully entitled to grant such an order since the notice of motion included a prayer for further and/or alternative relief. I do not agree. The relief which a Court may grant a litigant in terms of such a prayer cannot in my view be extended to relief which he has never asked for and which is not even remotely related to what he has asked for. It is equally clear that the order was not granted at the request of the respondent and it does not appear on what grounds the Court a quo could order the respondent, a private body, how to arrange its own internal affairs.
In the recent case of Tsepo Qefate Sempe Nkuebe v Attorney-General and
Others (C of A (CIV) No 37/2000) this Court (per Plewman JA) held as follows at pages 7 and 8 of the as yet unreported judgment dated 12 April 2001:
"This brings me to Orders 2, 3 and 4. It is, with respect to the presiding judge, difficult to understand how these orders came to be made. From counsel's arguments it seems as if the orders were not sought by counsel for the Committee. If that is correct, there is simply no basis upon which they could be made. But even if they had been asked for, there is no basis upon which the orders can stand. The Act makes it clear that disciplinary proceedings are to be initiated and prosecuted by the Secretary. This is not a power which can be usurped by the Court. Nor, in any event, can the Court of its own motion order proceedings to be taken by a party not subject to its control in relation to such matters."
(cf Salisbury Municipality v Macmuldrow 1916 AD 252 at 264; Hodd v Hodd - D'Aubrey v D'Aubrey 1942 NPD 198 at 204-205; Transvaal Canoe Union v Butgereit and Another 1990(3) SA 398(T) at 405-406 H.)
The learned judge in the Court a quo clearly tried to resolve the unfortunate dispute between the church and its youth centre, but in my judgment he was not entitled to issue "directives" not asked for by either party. Those "directives" should accordingly be set aside. I shall later deal with the order that should have been made.
The appellant further submitted that the Court a quo erred in declaring the
registered constitution to be null and void. As pointed out before, the Court a quo did not make such a finding. Further support for the conclusion that the Court a quo never intended to declare the registered constitution null and void is to be found in directive number 2 above which presupposes an existing registered constitution. I have also mentioned before that the respondent failed to bring an application for the deregistration of the appellant as a society. In the result the appellant remained a registered society in terms of its registered constitution.
In view of the aforegoing there seems to be no reason why the appellant should be granted the further relief claimed in the notice of motion, i.e. an order directing the respondent to observe and respect the independence of the appellant as an ecumenical centre. The Court a quo declared the disputed constitution to be of no force and effect while the registered constitution and the law book constitution on the other hand remained of full force and effect, as pointed out above. In these circumstances the "independence" of the appellant, such as it was before the introduction of the disputed constitution, has not been affected. No order is accordingly required in this regard.
Once the Court a quo found that the disputed constitution was null and void the appellant became entitled to the main relief claimed in the notice of motion.
The crucial question therefore is whether the Court a quo was correct in finding
that there was not a quorum on 28 November 1997 and that the disputed constitution was accordingly not properly adopted by the synod. The respondent submits that this finding was wrong. The appellant on the other hand supports this finding of the Court a quo.
The respondent's law book deals with the question of a quorum in sections 30, 31 and 32. Section 31 provides as follows:
"The laws/rules of the Lesotho Evangelical Church shall not be debated upon unless at least two thirds (2/3) of all members of the Seboka [synod] are present at a meeting."
It is common cause that there was not a quorum on 27 November 1997. On 28 November the members who arrived late were registered and their names were merely added to the list of persons who were present on the previous day. The reverend Arone Thebe was the chairman of the law commission of the synod. According to his evidence the list contained more than 76 names on 28 November 1997. There were 114 members on the synod and 76 would therefore have constituted a quorum. It is the respondent's case that they established a quorum when the meeting was opened on the morning of 28 November 1997 and they proceeded on the basis that there was a quorum throughout the meeting. However,
when the total number of votes in respect of each proposed amendment of the law book constitution is considered it becomes apparent that they never had a quorum. The votes for and against each amendment together with the number of abstentions were recorded in the minutes of the meeting. At no stage did the total amount to more than 71. In some instances the total dropped below 60. In my view this shows that none of those resolutions passed at that meeting in favour of the disputed constitution was a valid resolution.(cf Woods v East London Municipality and others 1974(4) SA 541(E).) I accordingly agree with the learned judge in the Court a quo that the disputed constitution was not validly adopted by the synod. In my view the appellant therefore became entitled to the main relief claimed in the notice of motion
The following order is made:
The appeal is allowed with costs and the cross-appeal is dismissed with costs.
The "directives" and costs order of the Court a quo are set aside and substituted with the following order:
"(a) The first respondent (the Lesotho Evangelical Church) is interdicted from implementing the amendments and alterations to the constitution of the applicant (the law book constitution) passed by the General Conference of the first respondent at its meeting on 27 and 28 November 1997.
The second respondent (the Registrar-General) is interdicted from registering the constitution of the applicant (the disputed constitution) passed by the General Conference of the first respondent at its meeting on 27 and 28 November 1997.
The constitution purporting to be the constitution of the applicant (the disputed constitution) passed by the General Conference of the first respondent at its meeting of 27 and 28 November 1997 is declared to be of no legal force or effect.
The first respondent is ordered to pay the applicant's costs."
F H Grosskopf
JUDGE OF APPEAL
M M Ramodibedi
JUDGE OF APPEAL
JUDGE OF APPEAL
Delivered at Maseru on this---------day of October 2001.