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[2022] ZAWCHC 192
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Richards and Another v Rabie and Others (5330 / 2021) [2022] ZAWCHC 192 (30 September 2022)

IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
Number: 5330 / 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:
16
th
of September 2022
Delivered:
30
th
of September 2022
JUDGMENT
WILLE,
J:
Introduction
[1]
This is the third judgment which I have delivered in this rather
unfortunate
matter and, I foreshadow that this will not be the last
judgment, going forward. This is an opposed application ostensibly
dealing
with the ‘misunderstanding’ of an order which I
granted in terms of a written judgment which I delivered on the 27
th
of October 2021.
[2]
For ease of
reference and to promote a full and proper understanding of the two
prior judgments
[1]
that I
delivered in this matter, the parties will be referred to as they
were cited in the initial application. The first, second
and third
respondents shall be referred to as the ‘respondents’
unless otherwise indicated. When I refer to the church,
I make
reference to the second applicant, unless otherwise indicated.
[3]
This application is at the instance of the respondents who were the
successful
parties in the initial litigation. This litigation was
about certain interdictory relief to prevent the respondents, from in
any
manner or form, acting as members of the board of the second
applicant. These respondents were all previously members of the board

of the second applicant. The first applicant is the chairman of the
board of the second applicant which is a religious organization
which
trades as a non-profit organization.
[4]
The applicants averred that in terms of the constitutions of the
second
applicant, the tenure of the respondents as members of the
board only endured for a period of (2) years and, thereafter had
automatically
lapsed. This was subject to them making themselves
eligible for re-election and being duly re-elected. The first
applicant contended
for the legal position of no automatic renewal of
the respondents' membership to the board of the second applicant.
This was the
core issue to be decided.
[5]
The first application was originally piloted in the form of an urgent
application in 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. The respondents countered by
saying that they considered themselves as extant members of the
board.
[6]
This 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
viva voce
evidence
of a number of limited disputed issues (as agreed to between the
parties).
[7]
The applicants’ case was that the respondents were obliged to
cease
and desist from performing any function or role as members of
the board of the church for,
inter alia
, the following
reasons: (a) that they had ceased to be members of the board of the
church; (b) that they had not been re-elected
and, (c) that they were
constitutionally not members of the board of the church. In short, it
was advanced that the respondents’
membership in and to the
board of the church had automatically terminated and lapsed.
[8]
The respondents contended that historically there never ever existed
any
issue or dispute about them being members of the board of the
church. However, certain disagreements and disputes arose (as a
direct
consequence of the first applicant’s governance of the
church) and, this ultimately became a cause for concern and for the

unfortunate disagreements that followed.
[9]
Prior to this, no issues were ever raised regarding the status of the
respondents' positions as members of the church board. When these
governance issues arose this became the subject of an unfortunate

dispute for the first time.
[10]
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 was based in the United
Kingdom. In order
to preserve the integrity of the judicial process,
I ordered that an independent observer from a discrete law firm in
the United
Kingdom, observe the entire virtual hearing process. A
similar methodology was also followed in connection with the second
witness
for the applicants.
[11]
In his testimony, 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
a pastoral visit
by him to Robertson, the second applicant came into
being in November 2014. He was unable to recall who scheduled the
initial board
meeting in November 2014.
[12]
The
scheduled agenda 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
pandemic.
[2]
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.
[3]
This was his pleaded case.
[13]
Eventually,
after seeking legal assistance, a formal board meeting was scheduled
for the 24
th
of February 2021. It was conceded that no board meeting was scheduled
or held between the period of the 24
th
of November 2019 to the 24
th
of February 2021.
[4]
Further, it
was conceded that a board meeting could have and should have been
convened and held during 2020.
[14]
During cross-examination, Mr Richards conceded that the board members
never formally made
themselves available for re-election and that
these matters historically progressed on the basis of ‘consensus’.
What
is of significance 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 considered as current board members as of the 24
th
of February 2021.
[15]
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
2020. No communication of any nature was sent to them in this
connection.
[i]
[16]
Subsequently,
the first applicant’s wife and son were allegedly appointed as
board members (by him and with him) on the 24
th
of February 2021. This is despite the explicit provisions of the
‘connection clauses’ as set out in the two constitutions

of the church and the fact that this latter meeting was irregular.
[5]
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.
[17]
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
conceded that the appointment of the board members to the board was
never a contentious
issue because this was always done on a
consensual basis.
[18]
Further, he agreed that no meetings were held during the course of
2020 due to the pandemic.
For this, he also accepted responsibility.
Significantly, he could not explain why full disclosure was not made
to the respondents
(prior to the irregular board meeting on the 24
th
of February 2021). This is in connection with their alleged
non-status as members of the board of the church.
[19]
Ms van Tonder testified on behalf of the respondents. She is an
auditor by profession and
volunteered to assist with the finances of
the church. She thereafter became a salaried employee for the church,
until she resigned
in January 2020. The church was a non-profit
organization but, was not officially registered despite her
recommendation to the
first applicant, in this connection.
[20]
Further, as far as the two-year status period was concerned, it was
generally accepted
that a board member’s tenure would continue
beyond this two-year limitation, so imposed. Put in another way, no
discussions
about the re-appointment or re-election of the
respondents were ever initiated during her tenure both as an employee
and as a board
member of the church. This evidence was not engaged
with by the first applicant.
[21]
I issued an order in this matter on the 27
th
of October
2021, in the following terms:
‘…
That
the application for the interdictory relief is dismissed
That as of the 23
rd
of February 2021, the members of the board of the second applicant
were the first applicant and the respondents
That as of the date of
this order, the members of the board of the second applicant are the
first applicant and the respondents
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…’
[22]
Dissatisfied with this result the applicants sought leave to appeal.
Their application
for leave to appeal was dismissed. Thereafter, the
applicants approached the Supreme Court of Appeal by way of
application for
leave to appeal. This application was also dismissed.
[23]
The first applicant now contends that the order that I granted was
ambiguous and is subject
to a misunderstanding. He says that my order
does not indicate whether the first applicant’s wife and son
were and are also
now members of the board of the church. This
position is adopted despite the fact that neither the first
applicant’s wife
nor his son were ever parties to any of the
applications and are also glaringly absent as parties in opposition
to the present
application.
Consideration
[24]
The respondents say the affairs of the church are not progressing as
the first applicant
takes the position that my order does not make it
clear that his wife and son, are not and were not, members of the
board of the
church. The respondents therefore out of caution seek
clarity regarding the content and meaning of my order. For the
avoidance
of doubt, this application by the respondents is notionally
only opposed by the first applicant and no other person.
[25]
No confirmatory affidavits are filed either by the first applicant’s
wife or his
son. No resolution on behalf of the second applicant to
oppose the current application is before the court. In addition, no
notice
of opposition has been filed on behalf of either of the
applicants.
[26]
Notably,
only an opposing affidavit by the first applicant has been filed.
This affidavit does not comply with the court rules and
accordingly
very little probative weight (if any), falls to be attached to this
opposing affidavit.
[6]
In this
affidavit, the first applicant asserts that he has taken legal advice
to the effect that his wife and son are extant members
of the board
of the church. The nature of this alleged advice is absent from these
papers and the legal reasoning underpinning
this advice, also finds
no place in these papers.
[26]
Further, the issue as to whether or not the first applicant’s
wife and son were members
of the board of the church featured as the
sole issue that was piloted on appeal before me and was subsequently
also dismissed
by the Supreme Court of Appeal. I say this because, in
the amended application for leave to appeal, the first applicant took
the
position that this was the only compelling reason warranting the
granting of leave to appeal. So it was argued, that I should have

found as a matter of fact that the first applicant’s wife and
his son were members of the board of the second applicant on
the 24
th
of February 2021 and were also such members as of the date of my
order. I dealt with this in my judgment on the first applicant’s

application for leave to appeal.
[27]
As far as the meeting on the 24
th
of February 2021 was
concerned, the evidence undoubtedly demonstrated that the respondents
were specifically precluded from participating
in this crucial
meeting. They were incorrectly led to believe that the meeting had,
or at least, would be postponed. This much
was wisely conceded by the
applicant’s counsel. Moreover, according to the first
applicant, at this meeting, only he was
left as the sole remaining
extant board member. This was the applicants’ pleaded case.
This is and was always the case piloted
by the first applicant. What
is now contended for in these opposing papers by the first applicant
amounts to a chameleonic change
to his initial stance and is at odds
with his previously pleaded case.
[28]
Put in another way, the first applicant contended in his application
for leave to appeal, that
I should have found as a matter of fact
that Mr J Richards and Mrs A Richards were members of the board of
the second applicant
on the 24th of February 2021 (and, were also
such members as at the date of my order). This in essence amounted to
the introduction
of a new factual issue for determination for the
first time on appeal. In my view, to have allowed this would have
demonstrably
been to the irreparable prejudice of the respondents.
[29]
I say this for,
inter alia
, the following reasons, namely: (a)
that constitutionally, two-thirds of the board members had to be
present to constitute a
quorum
for the meeting; (b) that on
the first applicant’s own version, the only member of the board
of the church (on the 24
th
February 2021), was the first
applicant and, (c) that the first applicant’s son had resigned
from the board of the second
applicant.
[30]
Most significantly, there was not an iota of evidence placed before
me that supported or underpinned
the appointment of Mrs Richards to
the board of the second applicant. Despite this, the first applicant
now argues that my order
is unclear and ambiguous in that the first
applicant’s wife and son were also members of the board of the
second applicant
during this time. By contrast, the respondents argue
that the first applicant, acting alone, was not subsequently
authorized to
appoint his wife and son as board members of the
church. This must be so. Also, the purported appointment of the first
applicant’s
son and wife was and is in direct violation of the
connected-persons clause in both the constitutions of the church as
canvassed
in my initial judgment on the merits.
[31]
Besides, the respondents factually continued as board members with
the assent of all parties
[7]
. In
addition, the meeting at which their tenure was ostensibly terminated
was an irregular meeting for which they were not given
proper notice
and they were undoubtedly ambushed by the first applicant. This was
contrary to the requirements of both the constitutions
of the church
and absent any form of procedural fairness. It was uncontested 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.
[32]
Moreover, according to the first applicant, at this meeting, only the
chairman was left as the
remaining extant board member.
Constitutionally, two-thirds of the board members had to be present
to constitute a
quorum
for a valid board meeting to have been
held. The respondents argue that the first applicant, acting alone,
was not authorized to
appoint his wife and son as board members of
the church. On this, I must agree.
[33]
The first applicant applied to the Supreme Court of Appeal for leave
to appeal. He asserted that
this court had erred in not finding that
James Richards and Adriana Richards were members of the board of the
church. The Supreme
Court of Appeal dismissed the application for
leave to appeal, on the grounds that there was no reasonable prospect
of success
in an appeal and there was no other compelling reason why
an appeal should be heard.
[34]
It is now argued for the first time that the Supreme Court of Appeal
did not precisely say if
there was no reasonable prospect of success
in connection with the issue of an impermissible attempt to raise a
new issue on appeal
and, accordingly this latter issue remains a live
issue and is open for determination.
[35]
By way of elaboration, the first applicant says that James Richards
and Adriana Richards were
not parties to the main application with
the result that they are not bound by any decision of the main
application in this matter.
As a matter of pure logic, this cannot be
so because the first applicant’s entire pleaded case was that
James Richards and
Adriana Richards were appointed as members of the
board at the meeting on the 24th of February 2021 and, at no other
time. Most
importantly, the first applicant conceded that this
meeting was fatally flawed and irregular.
[36]
Besides, the first applicant testified that James Richards and
Adriana Richards were appointed
on the 24
th
of February
2021 only as a ‘stage-post’ measure. The question of
whether James Richards and Adriana Richards were members
of the board
of the church during the main application may have been an issue (in
terms of the agreed order), but it can never
be seriously suggested
that it was a dispute for determination between the parties.
Accordingly, the unfortunate position now taken
by the first
applicant amounts to an exercise in obfuscation and an argument
couched in ‘reverse-engineering’.
[37]
I say this because James Richards testified that he was not a member
of the board of the church
and not an iota of evidence was presented
in any form or manner in support of the now belated contention that
Adriana Richards
was an extant member of the board of the church.
This is after all why they were ostensibly appointed at the flawed
meeting on
the 24
th
of February 2021. The first applicant’s case was that James and
Adriana Richards were not members of the board of the church
and he
is now engaged in a complete summersault
[8]
in this connection.
[38]
As a general proposition court orders must be practical by way of
their implementation. The respondents
approached the court for relief
as to the identity of the members of the board of the church. This
was because the disputes that
existed as to the identity of the
members rendered the board of the church dysfunctional. Now the first
applicant (precisely for
the reason that the orders from the court in
the main application, coupled with the orders in the Supreme Court of
Appeal are not
to his liking), is once again seeking to render the
board of the church dysfunctional by impermissibly attempting to
persuade the
court not to clarify the extent of its orders so that
they are not capable of practical implementation.
Conclusion
and costs
[39]
Regrettably, it is apparent that the first applicant’s
opposition to this application is
premised upon his misguided attempt
to prevent the second applicant from carrying on its church business
and to frustrate the respondents
in their efforts as members of the
board. The first applicant simply refuses to accept the terms of the
court orders granted in
this matter going forward. The first
applicant is continuing to proceed in an irregular and questionable
manner so as to impermissibly
exclude the respondents from the
decision-making process of the second applicant.
[40]
The first applicant is desperately seeking defences and shields
against the various court orders
issued against him. As indicated in
my initial judgment, the second applicant was not validly authorized
to launch the initial
application (nor the appeal) and, is also not
properly before this court. The first applicant is also not properly
before this
court as he has not filed any notice opposing this
application and his affidavit does not comply with the prescribed
court rules
in connection with the proper and valid authentication
thereof. Accordingly, I attach very little weight to his opposing
affidavit.
Most significantly, absent from the papers are any
confirmatory affidavits by either James or Adriana Richards. In the
result,
the following order is granted, namely:
1.
That the application is granted.
2.
That as of the 24th of February 2021, the members of the board of the
second
applicant were the first applicant and the respondents
and
no other person or persons.
3.
That as of the 27
th
of October 2021, the members of
the board of the second applicant were the first applicant and the
respondents
and no other person or persons.
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
second judgment dealt with an application for leave to appeal.
[2]
The
Covid-19 pandemic.
[3]
This is totally at odds with the position now adopted in opposition
to this application.
[4]
The
relevant period.
[5]
This
was conceded by counsel for the first applicant.
[6]
The
affidavit has not been attested to in accordance with the Uniform
Rules of Court.
[7]
Gohlke
and Schneider and Another v Westies Minerale (Edms) Bpk and Another
1970
(2) SA 685
(AA) 694.
[8]
The
Afrikaans word is most descriptive namely - ‘Hy het heeltemal
bollemakiesie omgeslaan’.