Richards and Another v Rabie and Others (9530/2021) [2021] ZAWCHC 214 (27 October 2021)

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[2021] ZAWCHC 214
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Richards and Another v Rabie and Others (9530/2021) [2021] ZAWCHC 214 (27 October 2021)

IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case Number: 9530 / 2021
In
the matter between:
ANDREW
WESLEY
RICHARDS
First Applicant
KINGS
CHURCH INTERNATIONAL
Second
Applicant
and
GHER
RABIE

First Respondent
PHILIPPUS
JAKUBUS LODEWIKUS SWART

Second Respondent
ELAINE
PAULSEN

Third Respondent
Coram:
Wille, J
Heard:
7
th
of October 2021
Delivered:
27
th
of October 2021
JUDGMENT
WILLE, J:
INTRODUCTION
[1]
This
is an opposed application which initially was about certain
interdictory relief to prevent the respondents, from in any manner,
acting as members of the board of the second applicant.  The
first, second and third respondents shall be referred to as the
respondents, unless otherwise indicated.  These respondents were
all ‘previously’ members of the board of the second applicant.
[1]
[2]
The
first applicant is the chairman of the board of the second
applicant.  The second applicant is a religious organization
which
merely trades as a non-profit organization.  Regrettably,
the second applicant is not registered in terms of the Act
[2]
.
More about this later.  The second applicant will be referred to
as the ‘church’ unless otherwise indicated.
[3]
The
respondents were members on the board of the second applicant.
The applicants say that in terms of the constitution of the
second
applicant, the tenure of the respondents as members of the board,
only endures for a period of (2) years and, thereafter automatically
lapses.  Put in another way, that this is a guillotine clause in
the constitution of the church.  This, subject to them
making
themselves eligible for re-election and being duly re-elected.
The first applicant contends for the position of no automatic
renewal
of the membership to the board of the respondents, at all.
THE
FACTUAL MATRIX
[4]
The
first applicant and the respondents are all members of the church.
The church is a voluntary association that initially
came into being,
styled as an entirely different entity, under a different name.  The
church amended its name during the course
of 2009, to the ‘Kings
Church International - Robertson’.
[5]
In
turn, the affairs of the church are governed by the initial
‘constitution’ which they adopted in 2014.  It is further
common cause that the spiritual principles of the ‘apostolic faith’
regulate the philosophy and governance of the church.
[6]
The
application was originally piloted in the form of an urgent
application during March 2021.  At this time, the first
applicant
contended for the position that the respondents were no
longer members of the board of the church.
[7]
The
respondents,
inter
alia,
say that their appointments, as members of the board, are in any
event governed by the ‘second’ constitution of the church, that
came into effect in September 2017.  According to them, they are
still duly appointed members of the board of the church.
This,
even if their membership only endured for (2) years at a time,
because they were re-elected in September 2019.  In addition,
their membership in and to this board could not have expired, until a
duly constituted board meeting took place, during this intervening
period.
[8]
Besides,
the first applicant, by omission,  failed in his duty to convene
at least (2) meetings of the board (as constitutionally
obligated),
during 2020.  Thereafter
,
during
February of 2021, the first applicant, after having secured legal
assistance, issued out an ‘invitation’ to the respondents
to
attend a meeting of the board (to be held virtually).  This
contentious meeting was scheduled for the 24
th
February 2021.
[9]
The
respondents countered by indicating, in writing, that they considered
themselves as extant members of the board.  Thereafter,
a
further board meeting was scheduled by the first applicant for the
5
th
of March 2021.  Prior to the launch of the application, the
respondents had requested that the financial institution of the
church and its auditors, ignore any directions given to them from the
‘
newly
appointed’
fresh board of the church.  No doubt, this triggered the urgent
application by the applicants.
[10]
The
‘urgent’ application thereafter took on a life of its own and
morphed into a full blown application for final relief, instead
of
interim relief, together with a referral to oral evidence of a number
of limited issues of dispute, as agreed between the parties.
THE ‘CONSTITUTIONS’ OF THE
CHURCH
[11]
The
church has (2) constitutions.  This in itself makes this matter
more complicated than necessary.  The ‘first’ constitution
of the church was signed on the 30
th
of November 2014.  The first and second respondents were
undoubtedly inaugural members of the board of the church in terms of
this constitution.  The ‘second’ constitution was adopted in
September 2017.  Again, first and second respondents were
undoubtedly inaugural members of the board of the church in terms of
this ‘second’ constitution.
[12]
The
applicants say that the second constitution merely amended certain of
the terms of the first constitution and that the first constitution
is the document that regulates their affairs and is the enabling
document of the church which governs the management of the non-profit
organization.  I do not agree.  It is unfortunate that the
church was not registered as a non-profit organization under
the
NPOA. This, because had it so been registered, it would have rendered
this application totally unnecessary.
[3]
The ‘second’ constitution is a fully fledged document that
consists of no less than (10) pages and it specifically records
that
it was adopted as such on the 10
th
of September 2017.
[13]
Some
of the important clauses of these ‘constitutions’ relevant to the
adjudication of this matter,
inter
alia
,
are the following:
‘
The Board,
comprised of the leaders of the church, is the body that has overall
responsibility for the management of the organization.
The Chair of the
Board, the Apostolic Leader of the church, is responsible for setting
the agendas for Board meetings and for chairing
those meetings.
In matters of
appointment and removal the Board will always attempt to reach a
consensus.  Only where a consensus does not seem
possible, may
decisions be made on the basis of the majorities’ indicated below.
The Board shall
consist of at least three Board members.  At least two Board
members must be Spiritual Leaders of Kings Church
International in
the UK.
At least three
Board members will not be connected persons in relation to each other
and no single person controls the decision making
powers relating to
such organization.
Any subsequent
members are appointed by a resolution of the Board: a two third
majority of those participating in the meeting is required.
Board members are
appointed for a period of two years after which they may offer
themselves for re-appointment…’
THE APPLICANTS’ CASE
[14]
The
applicants’ case is that the respondents are obliged to cease and
desist from performing any function or role as members of
the board
of the church, for the following reasons:  that they have ceased
to be members of the board of the church:  that
they were not
re-elected and that they are ‘constitutionally’ not members of
the board of the church.  In short, that their
membership of the
board in and to the church had automatically lapsed.
[15]
The
applicants advance that the first and second respondents were
appointed on the 30
th
of November 2014.  They continued in office upon their
re-appointment to the board until the 30
th
of November 2016, thereafter until the 30
th
of
November 2018 and, finally until the 30
th
of November 2020.
THE
RESPONDENTS’ CASE
[16]
The
respondents contend that their never ever existed any issue or
dispute about them being members of the board of the church.
However, certain disagreements and disputes arose and as a direct
consequence, the first applicant’s governance of the church became
a cause for concern.  Prior to this, no issues were ever raised
regarding the status of the respondents positions as members
on the
board of the church.  When these governance issues arose, the
respondents membership of and to the board of the church,
became the
subject of an unfortunate dispute for the first time.
[17]
The
respondents contend,
inter
alia
,
for the following:  that at no time has any member of the board
ever expressly been re-appointed or re-elected:  that
the
respondents simply continued in office, both consensually and
unanimously as members of the board:  that the constitution
makes it clear that as far as the appointment of board members is
concerned, a clear attempt must be made to reach consensus:  that
in the past, board members were simply re-appointed by consensus and
their terms of office were merely tacitly or impliedly extended:
that when the February 2021 board meeting was scheduled (and
which they requested, be postponed), they were precluded from
the
meeting and in addition, were led to believe that the meeting would
be postponed.
[4]
THE VIVA VOCE EVIDENCE
THE APPLICANTS’
WITNESSES
[18]
The
first applicant testified in connection with certain of the issues in
dispute.  This evidence was presented via the medium
of a
‘virtual hearing’ as this witness is based in the United
Kingdom.  In order to preserve the integrity of the system,
I
ordered that an independent observer from a discrete law firm in the
United Kingdom, observe the entire virtual hearing process.
This process was also followed in connection with the second witness
for the applicant,
[19]
The
first applicant confirmed the correctness of his founding affidavit ,
his confirmatory and replying affidavit.  His late
father
started the ‘main church’ in the United Kingdom.  Following
upon a pastoral visit by him to Robertson, the second
applicant came
into being during November 2014.  He was unable to recall who
scheduled the initial board meeting during November
2014.
[20]
The
scheduled agenda’s for the board meetings would be set by him in
his capacity as the chairman.  He conceded that no board
meetings were scheduled or held during 2020.  This, he said was
due to the effects of the pandemic.
[5]
According to him, after November 2020, he was the only board member
left on the board of the church, without the respondents
or any other
board members.
[21]
Eventually,
after seeking legal assistance, a formal board meeting was scheduled
for the 24
th
of February 2021.  It is conceded that no board meeting was
scheduled or held between the period 24 November 2019 to the 24
February 2021.
[6]
Further,
it was conceded that a board meeting could have and should have been
scheduled and held during 2020.
[22]
During
cross-examination, Mr Richards conceded that the board members never
formally made themselves available for re-election and
that matters
were historically progressed on the basis of ‘consensus’.
What is of significance however, is that the first
applicant was
driven to concede that he never in any manner whatsoever informed the
respondents that they would not be appointed
as board members and
that they were not board members as at the 24
th
February 2021.  Put in another way, the first applicant could
not explain why he did not tell the respondents they were no longer
board members after November of 2020.  No communication of any
nature was sent to them in this connection.
[23]
Subsequently,
the first applicant’s wife and son were appointed as board members
by him and with him on the 24
th
of February 2021.  This,  despite the explicit provisions
of  the ‘connection clauses’ as set out in the constitutions
of the church.  Prior to this, the only indication of any change
to the composition of the board at the instance of the first
applicant, was that he  suggested that a ‘re-shuffle’ of the
board was necessary, as he no longer wanted ‘couples’ to
be on
the board.  However, this notwithstanding, he could not explain
the subsequent appointment of his wife to the board on
the 24
th
of February 2021.
[24]
Much
was made about the request for a postponement of the board meeting
scheduled for the 24
th
of February 2021.  Indeed, there are some features of the
failure to agree to postpone this meeting which bear scrutiny, which
are
inter
alia
,
the following:  that this was the first scheduled board meeting
to be held in over (14) months:  that it was at this meeting
that the first applicant appointed his wife and son to the board of
the church and most importantly, the first applicant never made
it
clear, to the respondents, as to whether or not, the meeting would be
postponed.
[7]
[25]
Mr
James Richards is the first applicant’s son.  He grew up in a
church environment.  He married one of the church pastor’s
daughters from Robertson.  The persons involved in the church in
Robertson initially all enjoyed a very close relationship.
He
was driven to concede that the appointment of the board members
to the board was never a ‘big issue’ because, this was
always
done on a consensual basis.  Further, he conceded that no
meetings were held during the course of 2020 due to a ‘blind-spot’
caused by the pandemic.  For this, he also accepted
responsibility.  Significantly, he could not explain why a full
disclosure
was not made to the respondents, prior to the board
meeting on the 24
th
of February 2021, as to their alleged non-status as members of the
board of the church.
THE RESPONDENT’S
WITNESS
[26]
Ms van
Tonder testified on behalf of the respondents.  She is an
auditor (CA(SA), by profession and works for PWC
[8]
,
in Robertson.  She volunteered to assist with the finances of
the church.  She thereafter became a salaried employee for
the
church, this until she resigned in January 2020.  The church was
a non-profit organization but, was not registered in terms
of NPOA,
despite her recommendation to the first applicant, in this
connection.  The church purchased a property during the
course
of 2018.  A new church was going to be built on the property so
purchased.  Funds were raised to the extent of R13.8
million in
support of this project.
[27]
She
confirmed that no formal nomination process was followed for the
appointment of any board members of the church.  Further,
that
as far as the (2) year status period and process was concerned,  it
was generally accepted that a board members tenure
would continue
beyond the (2) year limitation, so imposed.  Put in another way,
no discussions about the re-appointment or re-election
were ever
initiated during her tenure both as an employee and as a board member
of the church.
[28]
She
endeavoured to register the church as a non-profit organization in
terms of NPOA. Indeed, an application was submitted for this
registration, but same was rejected with certain queries.  These
queries were never attended to by the first applicant, despite
her
request.  The church remained un-registered as a non-profit
organization in terms of NPOA.
DISCUSSION
[29]
The
first respondent’s membership in and to the board of the church (in
terms of its previous incarnation), goes back even further
[9]
,
prior to the involvement of the first applicant.  His status as
such became contentious, prior to the first applicant appointing
his
wife and son as board members, on the 24
th
of February 2021.
[30]
Put in
another way, only when issues emerged regarding the alleged
questionable governance of the second applicant, by the first
applicant,
did the status of all the respondents on the board of the
church, become an issue and contentious.  Until this time, it
was
accepted by all that the respondents were fully fledged board
members of the church.
[31]
Undoubtedly,
at no time were any members of the board expressly re-nominated,
re-appointed or re-elected.  The respondents simply
continued in
office consensually and unanimously, without any complaint or
resistance.  This was also in accordance with the
‘consensus’
provisions in the ‘constitutions’ of the church.
[32]
The
minutes of the meeting of the 28
th
of November 2018, reflect,
inter
alia,
as
follows:  that the first and second respondents would simply
continue as members of the board:  that the then board
‘considered’
that a structure be put in place for members only
serving (2) years and that no such structure was formally adopted.
[33]
Of
equal importance, is that when the board meeting was called on the
24
th
of February 2021, the respondents were precluded from participating
in this meeting and, they were led to believe that the meeting
had,
or at least, would be postponed.  Moreover, according to the
applicants, at this meeting, only the chairman was left as
the
remaining extant board member.
[34]
Constitutionally,
two-thirds of the board members have to be present to constitute a
quorum for a valid board meeting to be held.
The respondent
argues that the first applicant, acting alone, was not authorized to
appoint his wife and son as board members of
the church.  On
this, I agree because, the appointment of the first applicant’s son
and wife, was in any event, in direct
violation of the ‘connected
persons’ clauses in the ‘constitutions’ of the church.
[35]
Besides,
at all material times after November 2020, the respondents continued
with their functions of office as board members openly
and with the
full knowledge and acquiescence of the first applicant.
Significantly, the respondents were also issued with an
invitation to attend the board meeting scheduled for the 24
th
of February 2021.  The argument is made that in these peculiar
circumstances, the board had, in its entirety, assented to and
acquiesced in the continued membership of the respondents as board
members of the church.  Again, on this, I agree.
[36]
As I
have said, all the board members were acutely aware of the continued
tenure of the respondents as board members of the church.
Ultimately, the respondents clearly continued as board members with
the assent of all parties.
[10]
Besides, the meeting at which their tenure was ‘terminated’
was, a meeting for which they were not given proper notice.
This, contrary to the requirements of the ‘constitutions’ of the
church and, absent any form of procedural fairness
[11]
.
[37]
The respondents in the main and strongly contend for an application
of the doctrine of unanimous assent
in so far as this is connected to
the continued membership of the respondents in and to the board of
the church.  The minutes
of the various board meetings as
presented to me in the papers, do not in any manner exhibit any
‘issue’ discussed or raised
pursuant to the termination of any
(2) year period of any of the members of the board of the church.
[38]
The first applicant concedes a split between himself and the
respondents regarding certain of the affairs
of the second respondent
and accordingly they undoubtedly embarked on taking steps to unseat
the respondents.  Until these differences
of opinion reared
themselves, the status of the respondents remained unquestioned.
Absent the papers, is any communication
to the effect that the
respondents’ status was in any manner, in jeopardy, prior to the
meeting scheduled for the 24
th
of February 2021.
[39]
The first applicant added into the agenda for the scheduled meeting
on the 24
th
of February 2021, the issue of the
respondents’ membership in and to the board.  This is
precisely why the respondents requested
that the meeting be postponed
to obtain legal assistance.  Regrettably, it is apparent that
the respondents were somewhat ‘ambushed’
in this connection.
[40]
Notably, the request for refusal was not met with an ‘
out and
out
’ refusal.  Moreover, the first applicant agreed that
his stance in connection with the request for a postponement, was
ambiguous.
The inevitable result was that the respondents were
‘ostensibly’ removed from the board of the church.  This, in
less than
ideal and transparent circumstances.
[41]
In answer to this, the applicants say that this was merely a
‘holding-pattern’.  This in view
of the fact that the board
(in accordance with the advice they received), only consisted of the
first applicant, as the chairman
of the board of the church.
The problem with this argument is that despite the election of a
further new fresh board since,
the first applicant’s wife and son
currently still ‘purportedly’ remain members on the board of the
church.
[42]
Moreover, both the first applicant’s son and the respondent’s
witness without hesitation, conceded
that if the re-appointment of a
board member, after his or her (2) year term, was not raised at a
meeting of the board members, these
board members would simply
continue as before on the basis of unanimous assent.
CONCLUSION AND COSTS
[43]
Regrettably, it is apparent that this entire application was premised
on the notion that the respondents
had voiced their displeasure and
expressed their concerns about the first applicant’s governance of
the second applicant
[12]
.
To make matters worse, the first applicant proceeded in an irregular
and questionable manner so as to impermissibly exclude
the
respondents from the decision-making process of the second
applicant.  The evidence offered up by the applicant’s
witnesses
was not satisfactory and was at times, extremely evasive.
I am rather persuaded by the evidence presented by the respondent’s
witness.  For these reasons and, mostly on the commons cause
facts, I also find favour with the doctrine of ‘unanimous assent’
as contended for on behalf of the respondents.
[44]
Even if I am wrong in this connection, I hold the view that the
provisions, time-lines and time-periods
of the ‘second’
constitution of the second applicant, find application.  What
this really means is that when this application
was launched the
respondents were extant members of the board, at the very least,
until the 9
th
of September 2021.  The second
applicant was, in these circumstances, not validly authorized to
launch this application by way
of the resolution upon which it
purportedly relied for this authority.
[45]
In addition, there is also no plausible or cogent reason why, in
these peculiar circumstances, the applicants
should not have
approached the court for a declarator. This, instead of the
interdictory relief which was chartered.  This brings
me to the
court order which governed the introduction of viva voce evidence and
which regulated the further conduct of the application
proceedings.
[46]
From the content of the agreed order in this connection,  it
seems clear to me that at least, in
part and, by agreement, the
parties are now seeking a declarator from the court.  I say this
because the agreed order requests
a ‘determination’ of the
question of the identity of the persons who made up the board of the
church, as at the 23
rd
of February 2021.  Further, a
declarator is sought as to the identity of the persons who comprised
the board of the church as
at the date of the determination of this
opposed application.
[47]
For the reasons mentioned in this judgment, I hold the view that the
first applicant should never have
embarked on this litigation and
that the second applicant was not properly authorized to launch this
application.  Accordingly,
neither the second applicant,
nor the respondents should have to bear the costs of and incidental
to this application.
[48]
In the result, the following order is granted, namely:
1.
That
the application for the interdictory relief is dismissed.
2.
That
as at the 23
rd
of February 2021, the members of the board of the second applicant
were the
first
applicant and the respondents
.
3.
That
as at the date of this order, the members of the board of the second
applicant are the
first
applicant and the respondents
.
4.
That
the first applicant is liable to pay the costs of and incidental to
this application on the scale as between party and party,
as taxed or
agreed.
E. D. WILLE
Judge
of the High Court
Cape
Town
[1]
The
respondents say they are indeed presently board members of the
second applicant.
[2]
The
Non-Profit  Organisations Act
No.
71 of 1997 (‘NPOA’).
[3]
The
‘NPOA’ provides for a host of regulatory codes of good practice,
including an arbitration process for disputes.
[4]
It
was at this meeting that the first applicant elected his wife and
son as members of the board of the church.
[5]
The
Covid-19 pandemic.
[6]
The
relevant period.
[7]
The
postponement was not refused, but the respondents were ‘left in
the air’ on this score.
[8]
Price
Waterhouse Coopers Limited.
[9]
The
first respondent initially became a board member in 2003.
[10]
Gohlke
and Schneider and Another v Westies Minerale (Edms) Bpk and Another
1970
(2) SA 685
(AA) 694.
[11]
Premier,
Mpumalanga v Association of State-Aided Schools
1999 (2) SA 91
(CC) at para [39].
[12]
That
is why the meeting was called for the 24
th
of February 2021, followed by the meeting on the 5
th
of March 2021.