Court name
High Court of eSwatini
Case number
3117 of 2010

African Apostolic Mission v Dlamini and Others (3117 of 2010) [2011] SZHC 124 (10 June 2011);

Law report citations
Media neutral citation
[2011] SZHC 124













IN
THE HIGH COURT OF SWAZILAND



HELD
AT MBABANE







CASE
NO. 3117/2010











In
the matter between:







AFRICAN
APOSTOLIC MISSION
…................................................................................APPLICANT







VS







MR
PEARSON ONE BIKINISI DLAMINI
…..........................................................1st
RESPONDENT







THE
REGISTRAR FOR THE PROTECTION



OF
NAMES, UNIFORMS AND BADGES



FOR
SWAZILAND
….................................................................................................2nd
RESPONDENT







THE
ATTORNEY GENERAL AND MINISTER



OF
JUSTICE AND CONSTITUTIONAL AFFAIRS
…..........................................3rd
RESPONDENT











Coram
Ota, J.







For
the Applicant: Mr. M.Z. Mkhwanazi







For
the
1st
Respondent: Mr. Manana











JUDGMENT







OTA
J.







The
Applicant commenced this application by way of Notice of Motion,
claiming
inter
alia
the
following reliefs from the Respondents.



1)
Setting aside and / or canceling the certificate of Registration No.
N.U.B 11/1995 issued in favour of the 1
st
Respondent
in accordance with Section 6 of the Protection of Names, Uniforms and
Badges Act, No 10/1969, as read together with Legal Notice No. 58 of
1969, alternatively,



2)
Costs of application



3)
Further and or alternative relief











The
facts upon which the Applicant contends this application, are
predicted on a founding Affidavit of one
Lucas
Deli Zwane,
described
in that process as a male Bishop of the Applicant. The case for the
Applicant as alleged in the said founding Affidavit, is that on or
about February, 1995, the new Bishop of the Applicant, together with
the Executive Committee of the Applicant, delegated the 1
st
Respondent,
who was then the General Secretary of the said Executive Committee,
to Register the Constitution of the Applicant and to apply and obtain
a certificate of Registration in terms of Section 6 of the Protection
of Names, uniforms and Badges Act, 1969. That on or about the 6
th
of
April 1995, the Applicant's constitution was registered with the
Registrar for the Protection of Names, Uniforms and Badges for
Swaziland, the 2
nd
Respondent
herein. That when the 1
st
Respondent
applied for the Certificate of Registration, he applied in his own
name and did not disclose to the 2
nd
Respondent
that he was sent by the Applicant to Register the Church as an
Institution or Association, as defined in Section 2 of the Act.
Therefore, on the 8
th
of
May 1995, the 2
nd
Respondent
issued a certificate to the 1
st
Respondent
in his personal capacity, as opposed to a certificate in the Name of
the Applicant, as is evidenced by annexure A.







That
the application made by 1
st
Respondent
did not comply with Section 4 of the Act, in that it was not made by
the Applicant as an Institution or Association, but by the 1
st
Respondent
who is neither an Institution nor an Association, who is entitled in
terms of the Act to make such an application. That the 2
nd
Respondent
therefore acted
ultra
vires
the
Act, by issuing the Certificate to an individual as opposed to an
Institution or Association, pursuant to Section 4 of the Act. That
the 2
nd
Respondent
failed to publish the application lodged by the 1
st
Respondent
in the Government Gazette as required by Section 5 of the Act, before
issuing the said Certificate, thereby denying the applicant, the
opportunity to scrutinize the application and object to the 1
st
Respondent
being named the applicant therein. That because the 2
nd
Respondent
failed to advert it's mind to the application, it committed a gross
irregularity and it's decision was grossly irregular and totally
unjustified in the circumstances. That the decision to issue the
certificate in the name of the 1
st
Respondent
was arrived at arbitrarily or
mala
fide,
in
order to further an ulterior or improper purpose by the 1
st
Respondent,
who has now ordained himself as the Bishop of the Church and has
taken with him some of the Applicant's congregants as his members.
Applicant prayed for the orders sought.











The
foregoing facts were confirmed by the supporting Affidavit of
Mrs
Mary Motsa,
the
Secretary General of the Applicant.











It
is on record that the 1
st
Respondent
filed an Answering Affidavit in these proceedings, wherein he raised
points in
limine,
which
are best summarized as follows:-




  1. The
    Applicant being an Association lacks the legal capacity to sue or be
    sued in it's own name.



  2. The
    Applicant's Constitution (hereinafter called the Constitution) does
    not provide for the Applicant to institute proceedings in it's own
    name.



  3. Article
    14 of The Constitution anticipates that any legal proceedings shall
    be instituted in the name of the officers listed in Article 14(1)



  4. The
    application is premature regard had to Articles 12 of the
    Constitution, which advocates alternative resort to legal
    proceedings only after the options in Article 12 (a) and (b), have
    been exhausted



  5. Disputes
    of fact












On
the 12
th
of
April, 2011, I heard oral argument from Counsel on both sides of this
contest on these legal points. Suffice it to say that I have
carefully considered the oral submissions by Counsel, the heads of
argument filed of record, and the facts stated herein, with the
accompanying annexures. I have no wish to reproduce them in extenso,
but I shall make references to such of them as I deem expedient in
due course.











Now,
there is absolutely no doubt in my mind that the deponent of the
founding Affidavit,
Lucas
Deli Zwane,
who
is a Bishop in the Applicant church has the
locus
standi
to
institute proceedings in Court on behalf of the Applicant. This is a
power which is expressly conferred on him by Section 14 of the
Constitution of the Applicant, exhibited in these proceedings, as
annexure A. The Constitution by that Section, lists the officers
within the Applicant church, who are conferred with powers of
Attorney, amongst whom fall the Bishop. For avoidance of doubts that
Section reads as follows :-



"14
Powers
of Attorney



i)
The
following leaders and officers shall have powers
of attorney:-



Arch
Bishop



Bishop



President



Executive
Secretary General Secretary



ii)
The
members mentioned in sub-section (1) may seek legal advice or hire,
an attorney if need be"







It
goes beyond any per adventure from the foregoing, that as a Bishop in
the Applicant Church, the said
Lucas
Deli Zwane,
is
clothed with the power to institute proceedings on behalf of the
Applicant. It was suggested by learned counsel for the 1
st
Respondent,
Mr
Manana,
in
oral argument, that, pursuant to Section 14 of the Constitution, the
Bishop was not to act alone, but in concert with the other members
named under that section, who would confer him with the said powers
via a resolution reached at a meeting of the Executive Committee of
the Applicant. I find that this line of argument cannot be maintained
in the face of the clear and ambiguous language of Section 14, which
by it's use of the phrase
"Powers
of Attorney"
clearly
demonstrates, that each of those officials named therein, has power
of Attorney to institute the said proceedings. Besides, I hold the
view that if the intention of the Applicant's Constitution was for
the powers of Attorney to be held collectively, and to be exercised
only after a resolution reached at a meeting of the Executive
Committee, it would have said so in clear and unambiguous language.



Furthermore,
it was also suggested in argument by learned Counsel for 1
st
Respondent,
Mr
Manana,
that
this action is premature. His contention on this wise is premised on
the provisions of Section 12 of the Applicant's Constitution which is
headed Disciplinary Actions. That section provides as follows:-











"12
Disciplinary
Actions



When
any Church member has committed an unlawful act, the Executive
Committee shall have powers through the Arch-Bishop, Bishop or
president to take the following action:-




  1. warning
    the member on two occasions



  2. deliver
    judgment to the member which shall include amongst other things:-




i)
charging
a certain fee as a fine



ii)
removal
from office if the member hold office of any sub committee of the
Church



iii)
suspension



iv)
demotion



v)
ex
communication from the Church for a period determine by the Executive
Committee of the Church



vi)
withdrawal
of Church membership



vii)
any
penalty



C)
Taking member to Court if he:-



i)
refuses
to obey the decision of the Executive Committee



ii)
Interfers
by any means with the congregation or person anointed in his/her
position if sub-section (a) and, or, (b) have been applied



iii)
Pulling all or part of the congregation to follow him if subsections
(a) and, or, (b) have been applied"







Mr
Manana
contended
that pursuant to Section 12 ante, the Applicant was required to have
exhausted the options enumerated in 12 (a) and (b), before commencing
proceedings pursuant to 12 ( c ). I must say that I do not agree with
this proposition. I agree entirely with
Mr
Mkhwanazi
for
the Applicant, that Section 12 should not be construed as operating
as an ouster clause to litigation as a measure of first resort. I see
absolutely nothing in the said constitution stopping the Applicant
from approaching the High Court of Swaziland for redress, in the way
and manner it is presently in court pursuant to it's rights under the
Constitution of the Kingdom of Swaziland Act No. 001,2005. Moreso as
I hold the view that the remedy sought herein is not one that is
capable of being dealt with internally.











Now
we come to the contention by 1
st
Respondent
that the Applicant lacks the
locus
standi
to
commence this action in it's own name simpliciter, as it was wont to
do. I have hereinbefore held that the deponent of the Applicant's
founding Affidavit, one
Lucas
Deli Zwane,
by
reason of being a Bishop in the Applicant church, has the
locus
standi
to
institute proceedings on behalf of the Applicant, pursuant to the
Applicant's Constitution. Whether the action instituted by the said
Lucas
Deli Zwane,
can
be commenced in the name of the Applicant simpliciter, is a different
matter altogether. I say this because, the way and manner that this
action is instituted, raises the legal question as to whether the
Applicant is a juristic person with the legal capacity to sue or be
sued
eo
nominee
(in
it's own name). Put in another way, does the Applicant have any
locus
standi
to
institute these proceedings in it's own name?











The
term
locus
standi
denotes
legal capacity to institute proceedings in a Court of law and is used
interchangeably with terms like
"standing"
"or title to sue".
It
is the right or competence to institute proceedings in a Court for
redress or assertion of a right enforceable at law











A
law suit is in essence the determination of legal rights and
obligations in every given situation. Therefore, as a general rule,
only natural persons i.e., human beings and juristic or artificial
persons i.e bodies corporate, are competent to sue or be sued. This
trite principle of law was expressed by
Mocatta
J,
in
the case of
knight
and Seale V Dove (1964) 2 ALL ER 307 at 309,
in
the following terms
"no
action can be brought by or against any party other than a natural
person or persons unless such party, has been given by statute,
expressly or impliedly or by common law either (a) legal personality
under the name by which it sues or is sued or (b) a right to sue or
be sued by that name_____".







See
also Foss V Harbottle (1843) 2Ha.461



Mr
Mkhwanazi
contends,
that the Applicant is an institution established in terms of it's
constitution and has the powers to sue and be sued in it's own name.
He drew the Court's attention to Case No. 1006/2010, wherein the 1
st
Respondent
sued the Applicant in it's own name, contending, that the 1
st
Respondent
is thus estopped from raising this point on the Applicant's
locus
standi, in the case instant.



Let
me say it straight away here but with respect, that I completely
disagree with
Mr
Mkhwanazi
on
his stance on this subject matter. I say this because the Applicant
is not a body coporate, with perpetual succession, a common seal and
a capacity to sue or be sued in it's own name. It is an
unincorporated, non statutory, body of persons. It is an Association
of persons with no distinct existence from that of it's members. It
is not a legal personam. It is not a juristic entity. At best it can
be regarded as a juridical entity. It is recognized by law as an
Association, but law has not conferred it with a personality separate
from it's members. It did not acquire such a personality by reason of
it's registration or via it's constitution. It is not a legal entity
with the capacity to sue or be sued
eo
nominee.
Legal
proceedings by or against the Applicant in the circumstances, can
only be properly constituted, if the suit is commenced by any of the
officers enumerated in paragraph 14 of it's constitution, as having
powers of Attorney, on behalf of the Applicant. Instituting
proceedings for or against the Applicant in it's own name
simpliciter, automatically renders the suit incompetent. In the
circumstances therefore, the application instant which is commenced
in the name of the Applicant simpliciter, is incompetent for lack of
standing on the part of the Applicant. I find a need to add here,
that the mere fact that the Applicant was cited as a defendant in
it's own name in Case No. 1006/2010, cannot avail it, as this fact
does not confer the Applicant with the standing which it obviously
lacks. In the light of the totality of the foregoing, I hold that
this action isincompetent.











Mr
Manana
calls
for a dismissal of this action by reason of the said incompetence. I
do not think that that is the proper order to follow such a
declaration of incompetence. This is because when the standing of a
Plaintiff to institute proceedings is questioned, all that is being
said in effect, is, that the Court before which such an action is
brought cannot entertain the adjudication of such an action. It
affects the jurisdiction of the Court to entertain and determine the
action. The course of action open to the Court, if it finds such an
action incompetent for lack of standing, is to put an end to it by
striking it off the roll. If the Court has no competence to
adjudicate, it cannot dismiss the action. The Court cannot dismiss a
claim, the merits of which it is not competent to inquire into. A
dismissal presumes that the Court has looked in the claim and found
it wanting in merits. But it can only so look into the claim, if that
claim is competent before the court. A dismissal therefore postulates
that the action was properly constituted, and thus competent.











On
these premises, since I have found this application incompetent, it
is accordingly struck off the roll, with costs.







DELIVERED
IN OPEN COURT IN MBABANE ON THIS THE 10
th
DAY
OF JUNE 2011







OTA
J.



JUDGE
OF THE HIGH COURT