• Justice Michael Mothobi not amused by the delays in the case
Zion Christian Church (ZCC) legal battle of the church’s Constitution has consumed time and resources, High Court Judge, Michael Mothobi said this week.
The tussle over the church’s constitution has pitted the church, its leader Bishop Barnabas Lekganyane against 11 members of the church and another member who wants to save the church from the current mess. The 11 members of Mokhukhu based in Tlokweng have brought the church and its leader before court challenging the way the church is governed in Botswana.
They argue that ever since 2009 no Annual General Meeting has been held and that the head office in Botswana has no minister as per the constitutional requirement. They want an order declaring that ZCC and Lekganyane are violating the Constitution by not convening annual general meetings on a yearly basis or at all as provided for by the ZCC Constitution; appointing a Minister since July 2009; Appointing the executive Council in accordance with the Constitution; Putting in place structures such as the property committee; and that the church and its leader should be ordered to correct the aforementioned anomalies.
When the case resumed this week there were applications and counter applications placed before the court. The date was however set for arguments on the main application by the 11 church members. Things took a twist when a member of the church, Josta Isaac, who last year the court ordered that he would be Amicus Curiae (friend of the court) wanted to now be admitted as a player in the case.
Isaac last year applied to the court so that he would be a friend of the court with the aim of assisting the judge in solving the case. This year he changed his mind and indicated that he wants to be a player and be a respondent together with the church and Lekganyane because he wants to fight for the church. The church, its leader and the 11 applicants have opposed the request by Isaac saying it is an after thought. ZCC and Lekganyane made a counter application that the order granted in favour of Isaac in September last year where he was admitted as friend of the court should be nullified because he seems to be confused regarding what he wants. The 11 applicants in the matter supported the church.
This left the court seized with the option of dealing with the entire case or dealing with it in bits and pieces, something that did not sit well with Justice Mothobi. “I do not want to deal with the matter in a fractured manner. Expenses have been incurred in travel and legal representation. The court’s time that could be used for other cases is now consumed by this case. The future here is not clear and the case might be concluded around October 2018 if we move in this pace.
“This is an ancient church with a lot of supporters who could be worried. Out there it might be presumed that I am the one delaying the case while it is the Counsels with their truncated submissions,” explained Justice Mothobi.
The parties however agreed that the court should deal with Isaac’s request before argument for the main application could be dealt with. In the heart of Isaac’s application is the choice of the ZCC Constitution that has to be followed. The 11 applicants sued the church using the 2009 Constitution while Isaac, a lawyer by profession, argues that the proper Constitution is the 1994 Constitution.
His attorney, Advocate Duma Boko, told the court that his client is exercising his right to protect his interest as a member of the church. He said the respondents in the matter have filed their opposition to the case late and the court should not consider their affidavit. “An affidavit is evidence. Their affidavit filed late was not accompanied by a condonation application requesting the court to condone their late filing. So without condonation application to this court, they are improperly before this court. This cannot be allowed by this court and the affidavit should be disregarded,” argued Boko.
Lawyer for the church, Senior Counsel Soroya Hassim from the Pretoria Bar, said the order to admit Isaac as the friend of the court should be set aside because he initially never wanted to be a friend of the court but rather wanted to maneuver his way into becoming a player in the matter. She explained that Isaac as an officer of the court could have known from the onset what was good for him and failing to do so means he got the order deceitfully.
“Our counter application is that the order set in his favour in September last year should be set aside. He said he did not want to be partisan. The case has claimed untold time and resources for my clients,” she said.
Uyapo Ndadi, representing the 11 members, said Isaac has not demonstrated his substantive interest in the case. “He knew about this matter about 18 months ago. This is abuse of court processes. The ZCC Constitution does not mandate him to defend the church because the church has structures in place when it comes to the defense of the church. We understand he wants to defend the church using the 1994 Constitution but as far as we know the 2009 Constitution is the valid one”.
Advocate Boko hit back saying looking at the affidavit of the Registrar of the Societies holistically filed with the court on the 25th of August 2017, it suggests that the 1994 Constitution is the valid one. He said the church and the Mokhukhu 11 want to twist facts of the matter while his client wants to put the fact bare in the public.
“They have acted in collusion and attempted to reach a settlement based on the 2009 Constitution which Constitution we say is not the legitimate one. My client was prepared to assist the court as friend of the court but would later discover that something was not right and he could not sit on the side and watch. Nothing according to the law precludes him from changing his mind,” he explained.
He said his client has a binding contract with the church and as a member in good standing he has to protect his interests. Ndadi argued that the request by Isaac is delaying the litigation and puts parties at expenses that are otherwise avoidable. Senior counsel Hassim said Isaac is disgruntled because as a friend of the court he is limited to participate in the proceedings of the matter. Ruling for the matter has been set for October 24th this year.