Lekhanya v Kereke EA Evangeli Lesotho (CIV/APN/52/2002)

Case No: 
CIV/APN/52/2002
Media Neutral Citation: 
[2003] LSHC 104
Judgment Date: 
23 September, 2003

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CIV/APN/52/2002

IN THE HIGH COURT OF LESOTHO


In the matter between:

REVEREND JOSIASE METSING LEKHANYA APPLICANT

vs

KEREKE EA EVANGELI LESOTHO RESPONDENT


JUDGMENT


Delivered by the Honourable Mr Justice T. Nomngcongo on the 23rd September. 2003


This is an Application for review of the disciplinary proceedings by the Respondent which resulted in the termination of Applicant's employment with the Respondent church. It is couched in the following terms:


  1. That the decision and/or proceedings of the Committee of Seboka and that of the Seboka of the Respondent dated 18th February 1998 and 29th April respectively removing the Applicant from Priesthood be received, corrected and or set aside.


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  1. That the Respondent be ordered to pay costs of this application in the event of opposing orders sought herein.


  1. That Applicant be granted such further and alternative relief, (sic)


In his founding affidavit the Applicant says the Respondent is a religious institution with its head-office at Morija. I will refer to it as the Church. He is not only a member but also a priest of the church. He says following disciplinary charges of adultery and insubordination he was dismissed by the Respondent Church. It is this dismissal that he seeks to be reviewed, corrected and or set aside on the ground essentially that in arriving at the decision the rule of natural justice that one cannot be judge in one's own cause has been flouted. This is denied by the Respondent who claims that in the circumstances Applicant had had a fair hearing.


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Following is the summary of events leading up to the dismissal of the Applicant as garnered from both the founding and answering affidavits, and they are by and large common cause:-


  1. Sometime during 1997 - the date is not specified - the Applicant was arrested and subsequently charged with a sexual offence and arraigned in the Subordinate Court for the district of Mohale's Hoek.


  1. As a result, a sub-committee of the Seboka which is apparently the highest authority of the Respondent church at least as far as disciplinary matters are concerned, was formed to investigate the matter on behalf of the church. The Committee consisted of and I quote from the answering affidavit at par. 4 " its Executive Secretary, Reverend T.S. Lentsoenyane, its Deputy Chairman, Reverend A.M. Thebe and the moderator of the Maphutseng Presbytery


Reverend J.L.Thai." I get the impression that the Reverend L.S. Lentsoenyane was the chairman. The sub-committee heard evidence from various sources including the alleged victim of the sexual offence. The Applicant was present and was allowed to present his case, which he did.


  1. On the 24.10.1997 the Committee of Seboka of which the Reverend Lentsoenyane is Executive Secretary decided to suspend Applicant from duty and have him removed from his duty station as it was alleged, and this is denied by Applicant, that congregants were becoming restive because of his presence at the Parish.


  1. On the 28.10.1997, the Reverend Lentsoenyane in his capacity as Executive Secretary of the Committee of Seboka wrote to the Applicant informing him of the decisions and it


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appears that the letter was delivered personally by him in the company of the Chairman of the Presbytery. He was given one day to pack and go. Not surprisingly he complained bitterly indicating in a letter written to the Executive Secretary that it was most unfair to expect him to round up his affairs within one day. He pointed out for instance that he had children at school for whom he had to make alternative arrangements. In the circumstances he did not move from the manse and this, I may point out, resulted in the second disciplinary charge against applicant - that of insubordination.


  1. On the 10th February 1998 the Reverend Lentsoenyane again wrote to the Applicant advising him of the disciplinary charges against him alleging adultery and insubordination as aforesaid. The letter goes on to say, in the undisputed translation "....you are invited to attend the meeting, if you


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so please, to answer the charges and defend yourself in any manner you may wish together with your witnesses, if any". (My emphasis) The tone of the letter suggests that his attendance was dispensable.


  1. On the 18th February 1998, the disciplinary Committee of the Seboka then sat to consider applicant's case and right there among the panel and participating was the Reverend Lentsoenyane. Before presenting his defences to the charges the Applicant immediately pointed out that he did not expect justice from the adjudicating body composed as it was. He was overruled and the committee without hearing any evidence a fresh proceeded with the case. No doubt in the circumstance it must have relied on the findings of the sub-committee that investigated the case headed by none other than the Reverend Lentsoenyane. Other than him in attendance were also two


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other committee members, Toloane Makha and Etsang Moletsane.


  1. The decision of the committee was to strip the Applicant of all his priesthood rights and to dismiss him from duty.


  1. In due course the matter went on appeal to the Seboka. Sitting there with other members of the Seboka were Toloane Makha, Etsang Moletsane and you guessed it, the ubiquitous Reverend Lentsoenyane, The result was foregone. The decision of the Committee of Seboka was confirmed and the appeal dismissed.


The position of a Priest has been described as one of status and dignity and to which rules of natural justice must apply and to equate it with that of a Principal and a Student as Mr Sello suggested is


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unsupportable. The submission that those principles and in particular the principle of nemo judex in sua causa (one cannot be judge in his own cause) apply to the applicant, is a valid one. This is a principle of our law and it is enshrined in the Holy Scriptures. An instance of disqualification under this rule was underscored by Cotran CJ. (as he then was) quoting with approval from Prof de Smith, Judicial Review of Administrative Action 1973 Ed. at pp. 237/238.


"He is however disqualified if he has personally taken an active part in instituting the proceedings, or has voted in favour of a resolution that the proceedings be instituted for then he is in substance both judge and jury."


Lesotho Evangelical Church v John Matsaba Bokako Nyabela 1980 (2) LLR 466 at 498.


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In the present case the Reverend Lentsoenyane has had his finger in the pie at every stage of its preparation. When the Applicant at the onset complained that he feared that he would not be fairly treated he must have had him in his mind. Not only did he write him letters in connection with the case, he also as in one instance delivered them. The tone of the letters, although, the Reverend professes to be acting on instruction, surely must also reflect the attitude of its author and that attitude is one lacking of sympathy to say the least. The Applicant interprets the letters as outright hostile and I don't blame him. For instance, it goes against the grain of Christianity itself to ask its own pastor to pack and go from his station within one day. The Reverend Lentsoenyane was part of this decision.


It was held in the case of Nyabela (supra) that:


"The subjective feelings of the party aggrieved must


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be in any event be taken into account in deciding the issue........ Was there a real likelihood of bias or a reasonable suspicion of bias." Real suspicion "of bias consists of the apprehensions of a reasonable man aware of the material facts. "Reasonable suspicion tests are said to look mainly on outward appearances," real likelihood "tests are said to focus on the courts evaluation of the possibilities."


In circumstances resembling the present case the learned Chief Justice went on to conclude:


"Whichever test is applied, I reach .......... the conclusion......that Mr. Masilo was disqualified and if one person is disqualified the decision of the whole tribunal is invalid." (My emphasis)


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The real likelihood if bias on the part of the Reverend Lentsoenyane in the present case is glaring. Not only that, but two other members joined the bandwagon and sat both at the hearing and on appeal.


It seems to me that the Respondent Church does not learn. It did the same thing in respect of the Reverend Mandoro. In CIV/A/11/81 Lesotho Evangelical Church v E.K. Mandoro, my brother Molai A.J. as he then was had occasion to remark:


" The Executive Committee had taken the decision to dismiss Respondent. Its members for obvious reasons [were] interested in the confirmation of the decision taken by the committee. They should not therefore sit in the meeting of Seboka to deliberate the question of confirming the decision of their own committee to discuss Respondent and escape the accusation that they have sinned against the principle "no man is a


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judge in his own cause". I hold the view that the decision of the Seboka confirming the dismissal of Respondent by the committee was on the basis of the above principle of natural justice, unfair and invalid".


And so do I in the present case.


Mr Sello has argued that the Applicant is estopped from claiming that he was unfairly dismissed because he accepted termination of his services. There is no merit in this argument. Firstly the Applicant's acquiescence, if such it was, cannot validate invalid proceedings. Secondly, the circumstances under which the letter was written cannot be interpreted as waiving Applicant's right of recourse to the courts; it was a letter between legal representatives and we do not know what compromise they were reaching. This is rendered even more equivocal in the light of the Applicant's expressed distate for


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recourse to the courts of law in one of his correspondences with the Respondent.


In the circumstance Application is granted with costs as prayed for: The order that I make is that the decision of the Committee of Seboka and that of Seboka removing the Applicant from Priesthood is hereby set aside and declared null and void.


T. NOMNGCONGO

JUDGE


For Applicant : Mr Phafane

For Respondent : Mr Sello


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