Mona v Khoarai and Another (CIV/APN/196/2000 )

Case No: 
CIV/APN/196/2000
Media Neutral Citation: 
[2004] LSHC 150
Judgment Date: 
8 December, 2004

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CIV/APN/196/2000

IN THE HIGH COURT OF LESOTHO


In the matter between:


REV. ELIAS THATO MONA APPLICANT

And

BISHOP SEBASTIAN KOTO KHOARAI 1st RESPONDENT

THE CATHOLIC CHURCH IN LESOTHO 2nd RESPONDENT


JUDGMENT


Delivered by the Honourable Ms Acting Justice N. Majara 8th December, 2004


Applicant approached the court for an order in the following terms :-


  1. That the purported dismissal of applicant as a priest referred to in the 1st respondent's letter dated 9th December, 1999 be declared null and void and of no legal effect and consequence.


  1. That applicant be reinstated to his position as Priest and Chaplain of Masentle High School forthwith.


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  1. That lst respondent be directed to publicize the fact of applicant's reinstatement to the members of the diocese of Mohale's Hoek.


  1. Costs of the application.


  1. Further and/or alternative relief.


On the date of hearing, the 19th September, 2004 there was no appearance for applicant either in person or through his legal counsel. There was also no explanation offered in relation to applicant's non-appearance. After affording applicant the unsolicited indulgence of waiting until 10.50 a.m. with the hope that at least by then there would be something from applicant, either by appearing or by at least tendering an apology/and or excuse for his non-appearance and neither of the two happening, the court having satisfied itself that a notice of set down had been duly served on both parties, proceeded to hear Mr Jeffreys, counsel for respondents.


At the start of his argument, Mr Jeffreys raised two points in limine to wit,


(i) That both 1st and 2nd respondent had no locus standi in the matter and;

(ii) That applicant was guilty of misjoinder.


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It was Mr Jeffrey's contention that on the basis of these points, the application should be dismissed with costs.

In order to put the points raised in limine in context, the facts of the case can be summarized as follows; It is common cause that on the 26th April 1986, 2nd respondent ordained applicant as a priest for the diocese of Mohale's Hoek and in 1995, applicant was posted as the chaplain of Masentle High School.


On the 25th January 1999, 1st respondent issued a decree in terms of which he purported to suspend applicant from his position as a priest for three (3) years. This suspension was preceded by a canonical warning which had purportedly been issued by 1st respondent on the 4th January 1999 whereby applicant was directed to surrender himself to the Bishop's house for rehabilitation, failing compliance of which he would be suspended. On the basis of the two documents, applicant instituted legal proceedings against 1st and 2nd respondent challenging both documents and the court found in applicant's favour.


Subsequent to this matter, on the 2nd February, 2000 applicant received a letter dated 9th December 1999 from 1st


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respondent wherein he was informing applicant about his dismissal from priesthood on the basis of the Evangelization of People decree. At paragraph 6 of his Founding Affidavit applicant averred as follows:


"On the 2nd Day of February 2002 1st Respondent served upon me a letter dated 9th December, 1999 addressed to me by 1st Respondent in terms of which he was communicating the Evangelization of People decree purportedly dismissing me from priesthood; enclosed therein were two documents one written in latin and another allegedly/its unofficial translation..."


It is against this backdrop that applicant brought lst and 2nd respondent to court, challenging the purported dismissal on the grounds which I will summarise as follows; that lst respondent clearly aligned himself with the contents of the decree as evidenced by inter alia, his publicizing the purported dismissal; that there was no evidence that the Pope had endorsed his dismissal; that he was denied a fair hearing contrary to the audi alteram partem rule; that the purported dismissal was in contravention of 2nd Respondent's Constitution as reflected in the Code of Canon Law which sets out procedure to be followed before a priest can be either suspended and/or dismissed.


In support of his points in limine as already stated above, Mr Jeffreys argued that applicant had wrongfully sued 1st and 2nd respondents for the following reasons;


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  1. as per the said decree, applicant was dismissed by the Congregation for the Evangelization of Peoples upon the instructions of the Roman Curia, duly represented by Cardinal Joseph Tomko and Archbishop Macellus Zagoand not by 1st respondent;


(ii) the Congregation for the Evangelization of Peoples is a division of the Catholic Church which is in itself a "legal persona"; the decision to dismiss applicant was not taken by either one of the respondents and lst respondent was merely a "messenger";


(iii) the 2nd respondent does not exist as a "legal persona" within Lesotho and therefore applicant ought to have instituted proceedings against the Congregation for the Evangelization of Peoples.


In the Notice of Motion, 2nd respondent is stated as The Catholic Church in Lesotho and in applicant's Founding Affidavit at paragraph 2.2. it is described as a voluntary association subject to the laws of Lesotho and cited in its capacity as such.'


It was Mr Jeffreys' contention that the 2nd respondent does not exist as a legal persona within Lesotho and that it is only a branch. He referred the court to the affidavit of 1st respondent which states at paragraph 3.3;


"The Roman Catholic Church itself, as opposed to the Congregation for the Evangelization of Peoples, is represented in Lesotho by, inter alia, Archbishop


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Bernard Mohlalisi, myself as also (sic) many clerics, brothers and sisters. The Catholic Church is, however, not registered in Lesotho as an association in terms of the Societies Act of 1966 or any other relevant legislation."


lst respondent went further to state at paragraph 5 thereof;


"The Second Respondent has no locus standi in judicio. In fact, no such entity exists. ...and for that reason is not capable of being sued or suing as a legal persona."


In his replying affidavit, applicant averred that he is justified in joining 1st and 2nd respondent in this application because they have a substantial interest in the matter premised on the fact that they will be affected by the order which will be made by this court. He went further to state that while admitting that the Congregation for the Evangelization of Peoples is a division of the Catholic Church, he however disputed that it has a distinct legal persona.


Of the 2nd respondent, applicant averred that it has been in perpetual existence in Lesotho over a period of a century, during which period it acquired property in its name. He also argued that the Catholic Church in Lesotho has all the attributes of a universitas personarum because apart from having perpetual succession it has the capacity to acquire


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rights apart from its members. Applicant contended that the fact that 2nd respondent is not registered in terms of the Societies Act of 1966 does not derogate from its legal persona as a voluntary association with all the attributes of a universitas.

On the question of locus standi in judicio, Isaacs in Beck's Theory and Principles of Pleadings in Civil Action p1 states as follows;


"In general a person cannot be a defendant unless the plaintiff claims something from him in the nature of a relief. This may be the payment of money or delivery of a thing or an order that the defendant does or refrains from doing certain acts. ...A person may in some cases be joined as a co-defendant, even when no relief is claimed against him, for the reason that he has or may have an interest in the subject matter of the suit"


Interest in this sense is not confined to financial or proprietary interest. It has been said to also mean any legal interest in the subject-matter of the litigation.


In casu, Mr Jeffreys argued that 1st respondent has been wrongfully cited because he did not personally dismiss applicant but was merely the messenger and as such has no


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locus standi to be joined as a co-respondent. Applicant did not dispute the fact that 1st respondent was a messenger. He however averred in his founding affidavit that 1st respondent clearly aligned himself with the dismissal as evidenced by his making public, applicant's purported dismissal.


In my opinion, when applying the above quoted general position to the matter at hand, I am convinced that 1st Respondent does have a legal interest in this matter, a fact which is buttressed by his own admission in his opposing affidavit at paragraph 3.3 as quoted above that he inter alia, represents (my underlining) the Roman Catholic Church in Lesotho. He cannot therefore successfully challenge the fact of his having locus standi to defend these proceedings. This point in limine therefore falls by the wayside.


With regard to the plea of misjoinder, Mr Jeffreys argued that there is no such legal persona as the Catholic Church in Lesotho because as per his submission it is only a branch and therefore applicant ought to have proceeded against the Congregation for the Evangelization of the Peoples.


As I have already shown above, applicant averred that the issue of 2nd respondent non- registration in terms of the


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Societies Act is not per se conclusive that it does not possess status of a legal persona in the form of a universitas.


Where the legal status of an artificial person who is a party to proceedings, is in issue, the general rule as stated in Morrison v Standard Building Society 1932 AD 229 p 230 is that no association has any right to sue or be sued without the sanction of the State, which may be given by a separate act of the Sovereign or by a general Act which prescribes a procedure for creating a universitas. However, communities, religious bodies, (my underlining) institutions ad pias causas and societies formed for public purposes were said to be exceptions to this general rule.


In addition, In Beck's (Supra) p 10 the characteristics of a universitas personarum have been stated in the following terms,


"A universitas personarum in our law is a legal fiction or incorporeal abstraction consisting indeed in a collection aggregation of real or natural persons, but having in itself no existence in nature, and existing merely in contemplation of law. ...It is only those associations which have been endowed by legislative authority with the capacity and power of acquiring rights and undertaking obligations, and those associations which, at common law, have the characteristics of a universitas, which are considered in law to be juristic persons. Whether an association, which has not been given corporate


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personality by statute, is a common law universitas depends on the nature of the association, its constitution, its objects and its activities."


From the above quotation, it is apparent that because of the fact that capacity to sue or be sued can result from factors other than by State sanction, courts felt the need to provide other essentials, the existence of which would result in an association being found to possess the characteristics of a universitas.


Inter alia, these elements include an association's perpetual succession as well as its capability of owning property apart from its members. In the Morrison case, when determining the issue of the legal capacity of the respondents (Standard Building Society), Wessels J.A. took into account the following factors; that the building society had been in existence in the Transvaal since October 1891; that it had been actively operating as such since that time and only its name had changed in 1929; that it had considerable funds and held property in all the provinces and that it had brought many actions in its own name in the law courts. On the basis of these factors, the society was found to fall under the category of associations which had been permitted or suffered to act as corporate bodies without let or hindrance despite the fact that it had not obtained State sanction.


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By the same token, in casu, this court takes judicial notice of the fact that the Catholic Church in Lesotho has been in existence from the past century, it has perpetual succession, it exists as such quite apart from the individuals who compose it, it holds property in its own name (as a church in Lesotho), it has previously sued or been sued as such (a fact not disputed by respondents) and therefore even if not registered as per statute, it possesses the characteristics of a universitas personum. In addition, the present matter flows from or is directly connected to the one which was decided by Ramodibedi J. (as he then was) in November 1999 in CIV/APN/ 207/99 and CIV/APN/258/99 wherein respondents were cited in exactly the same fashion as they have been cited in casu.


This court is fully aware that in his founding affidavit, applicant failed to state that 2nd respondent is a corporate body. He also failed to say anything with regard to the matter of its constitutional situation. However, for the reasons that the characteristics which I have just mentioned above are there in the papers on record, it is sufficient for this court to find that 2nd respondent has been rightly cited as a co­respondent in this matter. In my opinion, this case is distinguishable from the decision in S.A. Cooling Services


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(Pty) Ltd v Church Council 1955 (3) SA because the court therein found that the declaration was completely silent on the constitutional situation of defendants.


This court makes this finding fully cognizant of and having also considered the contents of a document which Applicant handed over to the court which amongst other things, defines the constitutional framework within which the universal Church under the leadership of the Supreme Pontiff operates. Under its Canon 360 to whose particular provisions the court was specifically referred, it is stated;


"The Supreme Pontiff usually conducts the business of the universal Church through the Roman Curia, which acts in his name and with his authority for the good and for the service of the Churches. The Curia is composed of the Secretariat of State or Papal Secretariat, the Council for The public affairs of the Church, the Congregations, the Tribunals and other Institutes (my underlining). The Constitution and competence of all these is defined by special law."


Note 749 thereof states further;


"No detailed description of the various departments of the Roman Curia, their internal structure and competence (my underlining) is to be found in the Code."


It was Mr Jeffreys' argument that as per Canon 360 as quoted above applicant ought to have cited the Congregation for the Evangelization of Peoples as it is a division of the


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Catholic Church which is in itself a 'legal persona'. However, my understanding of the above cited provisions is that there is nothing in the Canon that supports this contention. This is especially the case when regard is had to note 749 above which clearly states that the internal structure and competence of all the mentioned institutions are not contained in this particular document. This court was therefore not able to say with certainty that the above description conclusively supports Mr Jeffreys' argument. It therefore did not advance respondents' case any further. See also Jones & Buckle: The Civil Practice of the Magistrates' Courts in South Africa, 8th Edition by Erasmus atp 161.


For the above reasons, respondents' points in limine are dismissed. There is no order as to costs.


N. Majara Acting

Judge


For respondents : Mr Jeffreys

For applicant : Mr Z Mda


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