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[2011] ZAGPJHC 43
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United Apostolic Faith Church v Boksburg Christian Academy (08/18662) [2011] ZAGPJHC 43; 2011 (6) SA 156 (GSJ) (2 June 2011)
REPORTABLE
IN THE SOUTH GAUTENG HIGH
COURT
JOHANNESBURG
CASE No. 08/18662
DATE:02/06/2011
In the
matter between:
UNITED
APOSTOLIC FAITH
CHURCH
......................................................
Plaintiff
and
BOKSBURG
CHRISTIAN
ACADEMY
.....................................................
Defendant
JUDGMENT
WILLIS J:
[1] The Plaintiff claims
an order that “the school or any person claiming occupation
through or under it, be ordered to forthwith
vacate the immovable
property described as erf 1029, Boksburg North and situated at 24
Paul Kruger Street, Boksburg North to restore
vacant possession
thereof to the plaintiff” together with costs. In addition, the
plaintiff seeks an order that, in the event
that the defendant or any
other person claiming occupation refuses to vacate the premises as
ordered by the court so to do, the
sheriff may effect an eviction.
[2] The plaintiff
originally approached the court by way of motion proceedings but, by
reason of the disputes of fact, the case
was referred to trial. I
think it will simplify matters if, as a general rule, I refer to the
plaintiff as “the church”.
It will appear later that the
“defendant” has, in fact, no legal personality. It
therefore, cannot be evicted. I shall,
however, in order to
facilitate the reading of this judgment, refer to what several
witnesses described as “The Boksburg
Christian Academy”
as “the school”. Mr Barry Peter Hill and his wife,
Brenda, have been operating a school known
as the “Boksburg
Christian Academy” on the premises in question since 1999. They
have applied the “ACE”
system of education. “ACE”
stands for “Accelerated Christian Education”. Mr Hill is
an engineer. His wife
is a teacher. In 2000 Mr and Mrs Hill were
ordained as elders of the church. They have since left the fold and
worship elsewhere.
[3] It is common cause
that the school remains in occupation of the property despite having
been given notice by the church to vacate
on 6 March 2007, having
been requested by the local church council to do so on 10 November,
2006. After various attempts, involving
attorneys acting for both
the church and the school, had failed to negotiate a settlement
between the parties a further letter
was sent to the school on behalf
of the church on 28 November 2008 advising the school to vacate the
premises by 31 December 2007.
The school has pleaded that it is
entitled to remain in occupation until it has been paid the sum of R1
937 900- together with
VAT and has counterclaimed for payment of this
amount. In this regard the school relies on an agreement,
alternatively an enrichment
lien. The curial theatre of conflict in
this matter has focused on a number of issues which are reasonably
discrete.
[4] Accordingly, I shall
depart from the usual judicial practice of enumerating all the
relevant facts in the case and then, at
the end, applying to law to
those facts before making an order. It seems to me that the issues
will be easier to follow if I deal,
seriatim, with the facts and the
law in regard to each separate issue, insofar as this is reasonably
possible. Where there has
been any conflict between the church’s
version of events and that of Mr and Mrs Hill, I have referred that
of the church,
on a balance of probabilities. Mr and Mrs Hill were
evasive witnesses, contradicting themselves and each other on several
occasions.
The church’s witnesses all impressed me with their
longsuffering candour.
[5] The first issue
relates to the question of the ownership of the immovable property in
question. The church has alleged its ownership
of this property in
Boksburg. In addition, the church has alleged and led evidence on the
fact that, according to it, the school
has no right, recognized in
law, to occupy the property.
[6] In support of the
allegation that it is the registered owner of the immovable property
in question, the church produced in evidence
a copy of a title deed,
the currency and validity of which were not challenged by the school,
in which the registered owner is
described as “The General
Governing Council of the United Apostolic Faith Church, its
successors in title or assigns”.
The date of registration was
14 June 1945.
[7] Pastor William John
Anstruther, who testified on behalf of the church, gave evidence that
ever since he had first gone to this
particular property in the early
1960’s, it has been known and understood by all concerned to
have been owned by the United
Apostolic Faith Church in South Africa.
He had known personally a certain Pastor Brooke who had been
instrumental in acquiring
the property in 1945. Pastor Anstruther has
held the highest office in the church, having been the General
Overseer from 2004 to
2007. Pastor Anstruther had, himself, been the
local pastor at this church for many years. Pastor Russell Thomas
Peters, who is
the current General Overseer and who was general
secretary of the church for more than ten years, similarly gave
evidence to the
effect that “for as long as anyone can
remember, the property has belonged to the church” and that the
church has provided
ministry to its followers in that area from these
premises upon which has stood a church building which everyone agrees
is “very
old”.
[8] It is clear from the
evidence as a whole that, as is the case with so many institutions in
South Africa, including churches
such as the Anglicans, Methodists,
Congregationalists, as well as certain banks and insurance houses,
the United Apostolic Faith
church had its origins in England,
eventually acquiring administrative autonomy from the parent body in
the United Kingdom of Great
Britain and Northern Ireland. From the
evidence of Pastors Anstruther and Peters as well as various
documents put before me, including
the present constitution of the
church which contains a narrative of certain key historical events
that the United Apostolic Faith
Church was originally incorporated in
England in 1927 having jurisdiction over the fellowship of the
assemblies of its followers
in the United Kingdom of Great Britain
and Northern Ireland, Canada and Southern Africa. In 1951 the church
in Southern Africa
gained administrative autonomy from this body
incorporated in England. Since then, its constitution has been
revised in 1983 and
in 1993. The latest version reflects the racial
integration of what were previously segregated divisions within the
fellowship
of the faithful.
[9] The church’s
current constitution provides that its name shall be the United
Apostolic Faith (SA Region) and that it shall
be a body corporate
with perpetual succession, capable of suing and being sued in its own
name, and of acquiring rights and incurring
obligations separately
and distinctly from its members. The constitution furthermore
pertinently provides that the church shall
have the power to own land
and buildings, to incur obligations and to acquire assets separately
from its members.
[10] With regard to
immovable property, the constitution provides that land and buildings
of the church shall be vested in a board
of trustees, which shall be
appointed by the executive council of the church which shall at all
times act only as directed by the
executive council. The constitution
furthermore provides that all immovable property owned by the church
shall be registered in
the name of the church. The constitution
provides that the executive council shall have the power of attorney
to acquire by lease
or purchase, immovable property. The undisputed
evidence is that the executive council of the church has resolved to
bring these
proceedings on behalf of the church and in its name.
[11] Moreover, it was the
undisputed testimony of Pastor Anstruther that the church has always
enjoyed the ability to incur obligations
separate from its members
and operates its own bank account. It is clear that the church is
indeed a universitas capable of acquiring
rights and obligations
separate from its members. It is also capable of suing and being sued
and suing in its own name.
[12] Counsel for the
school, Mr Botha, submitted that the church had failed to establish
locus standi in judicio. To the extent
that ownership of the property
was a question separate from locus standi, he submitted that the
church had failed to prove its
ownership of the property. He placed
strong reliance on the following provisions of
Section 16
of the
Deeds Registries Act, 1937
:
Save as otherwise
provided in this Act or in any other law, the ownership of land may
be conveyed from one person to another only
by means of a deed of
transfer executed or attested by the Registrar…
Mr Botha submitted that
the plaintiff did not prove its alleged ownership of the property and
therefore it is not entitled to an
eviction order.
[13] He submitted that
the church would have to go back to the highest governing body of the
United Apostolic Faith Church in England
and seek to get their
approval for the eviction order alternatively seek their approval for
the transfer from the English church
(or its governing body) into the
name of the United Apostolic Faith Church in South Africa.
[14] This argument cannot
hold water. It is instructive to read what the then Appellate
Division of the Supreme Court of South Africa
decided in the case of
Group Areas Development Board v Hurley N.O.
1
although the Group Areas Development Act, No. 69 of 1995, of unhappy
memory, is a feature of our law which many would rather forget.
It
held that where immovable property had been registered in 1923 and
1925 respectively in the name of “the Right Reverend
Bishop
Dellalle, O.M.I., Roman Catholic Bishop in Natal for the time being,
or his successors in office”, the bishop and
his successors
held the property in a representative capacity on behalf of the Roman
Catholic Church which was the juristic person
that was the real
owner.
2
[15] Upon a proper
understanding of the facts and the law pertaining to the situation in
casu, the highest governing body of the
church in South Africa at any
particular time has always had authority to exercise the rights and
duties relating to ownership
of the property and which flow from the
registration in the name of “the General Governing Council of
the United Apostolic
Faith Church, its successors in title or
assigns” in 1945. The church has been properly cited as the
plaintiff. It is the
owner of the property in question and has locus
standi in judicio.
[16] Even if it is
accepted that ownership of the property remains vested in the English
church or the General Governing Council
thereof in a representative
capacity, this does not mean that the church in South Africa cannot
apply to court for an eviction
order. In Buchholtz v Buchholtz
3
Botha J (as he then was) held that a person in bona fide possession
of immovable property acquires a right in rem which gave rise
to the
right to apply for an eviction order. Botha JA went so far as to
distance himself from the impression that may have been
created by a
series of cases decided in what was then the Natal province to the
effect that either transfer or cession was necessary
to give rise to
a right to apply for an order for ejectment.
4
The church is clearly the bona fide possessor of the property and, as
such, entitled to apply for the ejectment of others occupying
it.
[17] The Buchholtz
judgment is binding upon me, unless, of course, I am persuaded that
it was clearly wrong.
5
I am not. In any event, if it be assumed that transfer or cession is
indeed a necessary requirement for person to seek the ejectment
of
persons occupying immovable property, then it is clear, on a balance
of probabilities, that the church in South Africa (or its
governing
body) must, by necessary implication have taken cession from the
church in England (or its governing body) of all rights
in respect of
immovable properties owned in South Africa. Accordingly, the church,
in seeking the eviction which it does is acting
in conformity with
the line of cases, which in the absence of a transfer of ownership to
the applicant having taken place, require
that there should at least
have been a cession of rights.
[18] I shall move on to
consider the question of the lease agreement upon which the school
relies. Although an earlier document
had been signed, the document
upon which the school relies for its occupation of the property is
one described as a “memorandum
of agreement between Boksburg
Christian Academy and New Life Christian Fellowship leadership and
the UAFC (United Christian Faith
Church) leadership”. It was
signed in January 2005. It provides that “this supersedes the
last agreement”. It
was signed on 17th January, 2005 by Barry
Hill as “administrator”, Brenda Hill as “principal”
and Gary
Baxter as “board member”. It seems that the
impression that was intended to be conveyed was that these persons
signed
on behalf of the school. Gary Baxter gave evidence for the
church. Barry and Brenda Hill were the only witnesses for the school.
The document was also signed by Pastor Rolf Dieter Gericke “on
behalf of NLCF and the UAFC Church”. He is recorded
as having
signed the document on 18th January, 2005. It is common cause that at
the time when he signed the document, Rolf Gericke
was the pastor of
the church at Boksburg North operating from the premises where the
dispute has been focused. No one else signed
the document, apart from
the persons mentioned in this paragraph. Mr Hill was the author of
the document. He has approached Pastor
Gericke to sign because he was
the pastor of the church at Boksburg North at the time. Mr Hill had
not sought approval from the
executive council of the church. Pastor
Gericke regrets having signed the document. He attributes his action
to immaturity, naivety
and enthusiasm at the time.
[19] The clause in this
document upon which the school relies reads as follows: “Should
the school be required to move by
the Church, then the buildings
erected by the school shall be purchased from the school at an agreed
reasonable amount, depending
on the going rate per m².” It
was apparent during the evidence of Barry and Brenda Hill that they
could not make sense
of these words. Neither could anyone else.
Despite much questioning from both sides of the respective witnesses,
it was clear
that there was never any meeting of minds on what had
been intended or agreed to between the church and the school in
regard to
this clause.
[20] Accordingly, I
conclude that this clause could not have given rise to a contract
with certain or ascertainable terms and on
this ground alone the
clause is void for vagueness.
6
I am mindful of the fact that, although the focus in this case has
been this particular clause, that focus should not obscure the
fact
that the case has been concerned with the enforceability of the
agreement as a whole.
7
I also have not lost sight of the following extract from the author
SJ Cornelius to which counsel for the school referred me:
While
keeping in mind the presumption in favour of v
alidity,
a term to which no sensible meaning can be ascribed, is considered to
be void for vagueness. This can only occur if all
the rules and
presumptions of interpretation have been exhausted, without success,
in an attempt to ascribe some sensible meaning
to that term.
8
[21] This, in my view,
makes it unnecessary to consider the estoppel point raised by the
school. The church has taken the point
that Pastor Gericke had no
authority to sign any agreement of lease in respect of the premises.
The church has claimed, correctly,
that only its executive council
could approve or agree to any lease of the premises to anyone else.
Pastor Gericke has never even
been a member of the church’s
executive council. Whether or not Pastor Gericke as Pastor had
ostensible authority to sign
on behalf of the church becomes
irrelevant in the light of the finding as to vagueness. Besides, it
is clear that no one –
not even Pastor Gericke himself -
represented to the Hills that Pastor Gericke had authority to sign a
lease agreement of the premises
with them. In any event, it is not
probable, in the light of the evidence as a whole, that Mr and Mrs
Hill could have believed
that Pastor Gericke had authority to bind
the whole church by way of a lease agreement in respect of the
premises. Significantly,
Mr Hill agreed that he had sight of and had
perused the title deed in question before he prepared the document
for signature. In
that document he would have seen that it was the
“governing council” (or its equivalent) of the church and
not “the
pastor for the time being” who had authority
over the property in matters pertaining to its ownership.
[22] One hardly needs to
be well acquainted with the Christian religion to know that,
ordinarily, when it comes to matters temporal,
pastors and priests
(the clergy) have to operate within a definite hierarchy of
authority: in matters pertaining to the administration
and control of
church property, both movable and immovable, the clergy cannot act
autonomously. In my view, the case of Glofinco
v Absa Bank Ltd t/a
United Bank
9
makes it clear that, even if the agreement were not void for
vagueness, the Hills would not have been entitled to assume that
Gericke had authority to enter into it. Ordinarily, it is no more
believable that a local pastor has authority to enter into a lease
agreement in respect of the premises at the church where he ministers
than judge has authority to enter into lease agreements pertaining
to
High Court buildings. Besides, the evidence of Pastor Gericke is that
the Hills were given a copy of the constitution of the
church when
they were ordained. The Hills denied having received a copy of the
church’s constitution contemporaneously with
their ordination.
According to Pastor Anstruther who ordained them, the presentation of
a copy of the constitution has always been
the standard procedure for
newly ordained elders.
[23] Counsel for the
school considers that it is a matter of particular importance that
Hammond Pole, a firm of attorneys acting
for the church at the time,
addressed a letter to the school’s attorney on 25 April 2007 in
which (so counsel submitted)
“their client clearly relied on
the terms of the agreement of the lease”. This is not correct.
On 13 March 2007, Pastor
Gericke wrote a letter to the school
advising it that the local church (i.e the church in Boksburg North)
had unanimously decided
at two meetings held on 18 February and 11
March 2007, “after much consideration, prayer and fasting”
to call upon
the school to vacate the premises by the end of June,
2007.
[24] This was met by a
letter dated 26 March 2007 from Leon van Rensburg, the attorneys
acting for the school, in which they advised
that the school was “not
prepared to vacate the school at all”. In this letter the
attorneys relied on the document
in contention. The letter from
Hammond Pole dated 25 April was in response to this letter from Leon
Van Rensburg. Clearly the response
of Hammond Pole was to say, in
effect, “even in terms of the document which your client
relies, the school may be required
to move by the church and our
client is relying on this clause”. The immediately preceding
underlined words are the ipsissima
verba used by Hammond Pole in
their letter.
[25] As Lord Steyn said
in R v Secretary for the Home Department, ex parte Daly,
10
“In law, context is everything”. This was approved by
the Supreme Court of Appeal in Aktiebolaget Hässle and
Another v
Triomed (Pty) Ltd.
11
I see no merit in the submission that the church is stopped from
protesting the invalidity of the document in question.
[26] I turn now to
consider the question of enrichment. To do so, it is necessary to
delve into the facts in some detail. Mr and
Mrs Hill started the
school in January 2005. They had five pupils. They rented premises
elsewhere in Boksburg initially. Later
in the year Mr Baxter’s
wife and Mrs Hill met each other after an interval of many years at a
school reunion celebration
in Newcastle. The conversation turned to
religion. Mrs Baxter described how she was very happy at the church.
Mrs Hill became interested
and began attending services there with
her husband. On the property in question there was, in addition to
the church building,
a house which had been used as a manse which had
been built in 1910. It had fallen into disrepair. The Hills mooted
the idea that
the house be converted into classrooms for the school.
The church was delighted, considering this to be part of their
ministry
and contributed funds towards the cost of renovation and
conversion. Mrs Baxter who, like Mrs Hill, is also a school teacher
joined
the school as one of its teachers. Mr and Mrs Baxter sent
their children to the school although they no longer do so. The
school
began to draw pupils from the among the children of parents
belonging to the church. The school was registered to teach pupils
from grades 1 to 7. The Hills paid no rentals for the use of this
building initially.
[27] Matters progressed
well. A highly successful seminar was held in the Drakensberg in 2002
at which the Hills and various members
of the church including
Pastors Anstruther and Gericke, together with their wives, were
present. It was decided to try to expand
the mission of providing the
ACE system of education in Boksburg. During 2003 and 2004 two
face-brick buildings, totaling 280 square
meters in size were erected
on the premises as classrooms. In addition, money was spent on some
external paving, the erection of
eight carports and an additional
room which was added on to the old house. Although, around this time
of expansion, there was an
agreement that the school would pay R800-
per month to the church as rental, the church subsidized this with a
subvention of at
least R1000- per month. It is also clear that the
school paid for much of the materials that were used to erect the
additional
classrooms.
[28] During 2005
relations between the church and the school began to sour. The detail
is unimportant. Parents who were members
of the church began to
withdraw their children from the school. Whereas in the early 2000s
most of the pupils were the children
of church members this now
applies to a handful of cases only. The school now has 113 pupils and
14 teachers as well one or two
supporting staff (i.e. staff who do
not teach). The church in the meantime has grown considerably from
around 200 members at the
beginning of the millennium to around 500
now, necessitating the holding of two full morning services on
Sundays. The church has
approved plans for a new church building and
for this reason, in particular wants the school to vacate the
premises. All old structures
will be demolished to make way for the
new church buildings, plans for which were submitted in evidence
during the trial. It has
irked the church that it has had to meet the
costs of this litigation out of its building fund for the new church
building.
[29] Apart from making
some unconvincing generalized statements, the Hills led no evidence
to show what they had spent on the structures
that have acceded to
the property in question. Despite several invitations and
opportunities to do so, they failed to rise to the
challenge. They
also failed to lead any evidence as to the extent to which the value
of the property had been increased by these
improvements.
[30] It is well settled
law that a bona fide possessor who has effected improvements on the
property of another would be entitled
to compensation for such
improvements. The claim is founded on enrichment for payment of the
necessary and useful expenses which
the bona fide possessor has
expended on the owner’s property.
12
The bona fide possessor’s claim is restricted to necessary or
useful improvements it had effected to the owner’s land.
That
means that the bona fide possessor can only claim the actual expenses
incurred in relation to the improvements or the value
by which the
land was improved as a result of such improvements, whichever is the
lesser.
13
It is now trite law that the maximum a party can recover under an
enrichment action is the lesser of the impoverishment of that
party
or enrichment of the other.
14
[31] It is also well
settled law that a bona fide occupier will have a right of retention
of the property until the occupier has
been compensated for the
useful or necessary improvements that had been made to the property.
The right is however qualified to
the extent that the improvements
must, on the facts, be useful or necessary and properly quantified.
The onus is on the retentor
to establish these facts.
15
A right of retention will only however exist where the retentor in
fact has a claim founded in enrichment against the owner. Without
any unjustified enrichment, neither a claim nor a right of retention
can prevail.
16
[32] The school has not
discharged the onus satisfy any of the essential elements of a claim
founded in enrichment. There has been
no attempt to show that the
improvements were either necessary or useful, especially in light of
the evidence by the church’s
witnesses that the intention is to
demolish all the structures and to build an entirely new church
sanctuary.
[33] The Hills engaged
the services of Mr Hill’s brother, an architect, and quantity
surveyors to estimate the replacement
value of these improvements at
the time when they undertook their respective exercises. Neither the
architect nor the quantity
surveyors were called to testify. Besides,
the documents which they have prepared do not assist in determining
either of these
two critical issues: (i) by how much has the value of
the property increased as a result thereof and (ii) how much did the
school
actually spend on these improvements?
[34] Accordingly, the
school has no right to remain in occupation of the premises as
retentor and its claim for compensation must
fail.
[35] The question of
eviction is a sensitive issue in prevailing South African law.
Counsel for the parties were in agreement that
the provisions of the
Prevention of Illegal Eviction From and Unlawful Occupation of Land
Act, No.18 of 1998 (commonly known as
“PIE”) do not apply
by reason of the fact that PIE applies to the eviction of persons
from their homes. I agree with
counsel for the church that it is
apparent from various provisions of the Act itself that the intention
was clearly to limit its
application to firstly natural persons and
secondly to properties that form the homes of such persons. This
intention can be gleaned,
inter alia, from the following provisions:
(i) The second part of
the preamble which states that “no one may be evicted from
their home, or have their home demolished
without an order of court”.
An artificial person cannot occupy a home; and
(ii) Section 1(i)
defines “buildings or structure” to “include any
hut, shack, tent or similar structure or any
other form of temporary
or permanent dwelling or shelter”. In Ndlovu v Ngcobo, Bekker v
Jika
17
the Supreme Court of Appeal (“the SCA”) expressed the
view that having regard to the history of the enactment which
has its
roots in Section 26(3) of the Constitution (which is concerned with
rights to one’s home) as well as the preamble
to PIE (which
emphasizes the rights to one’s home and the interests of
vulnerable persons), the description of buildings
listed and the fact
that one is ultimately concerned with “any other form of
temporary or permanent dwelling or shelter”,
the ineluctable
conclusion was that, subject to the eiusdem generis rule, the term
was used exhaustively. The SCA was therefore
of the opinion that it
followed that buildings or structures that do not perform the
function of a dwelling or shelter for humans,
do not fall under PIE
and since juristic persons do not have dwellings, their unlawful
possession is similarly not protected by
PIE.
[36] From the
unchallenged evidence of Mr Baxter, in particular, it seems that the
residents of Boksburg are spoilt for choice of
Christian schools
including those applying the ACE system of education in the near
vicinity. It is clear from the evidence that
the school is situated
in a relatively middle class area and that most of the inhabitants
are in the middle income bracket. It
is also apparent that none of
the learners apparently hail from indigent households. Out of a
total of 113 learners, only two
receive partial financial assistance
from the School. The fact that the learners are expected to pay
school fees as well as their
own text books, indicates that the
tuition of these learners does not come free or cheaply to their
parents. Apart from the private
schools (including specifically
Christian schools and schools providing the ACE system, it emerged
from the evidence of several
of the witnesses that there are also a
number of state schools in the neighbourhood.
[37] In the recent and as
yet unreported judgment of the Constitutional Court in the case of
Governing Body of Juma Musjid Primary
School and Others v Ahmed
Asruff Essay N.O.and Others
18
the question of eviction in relation to a school arose. The
Constitutional Court was alive to the question whether the common
law
remedy of rei vindicatio ought to be developed in circumstances where
learners’ right to a basic education was likely
not to be given
effect to as a result of an eviction. It would appear that the
Constitutional Court strove to strike a balance
between the right to
a basic education on the one hand and property rights on the other.
19
Within the context of the facts of that particular case, the court
found that the common law remedy of rei vindicatio had to be
developed, and, in appropriate circumstances curtailed where the
exercise of that remedy may negatively impair learners’
rights
to a basic education. The Constitutional Court found, however, that
there is no primary positive obligation on the private
land owner to
provide basic education to learners being taught on private land
owned by such owner. That primary positive obligation
rests on the
national and provincial governments.
20
[38] The Constitutional
Court decided that the land owner had a negative duty not to impair
the learners’ right to a basic
education.
21
The content of this negative duty was that once the owner had
allowed the school to be conducted on its property, the owner should
minimize the potential impairment of the learners’ right to a
basic education.
22
The court found that the land owner had acted reasonably in seeking
the eviction of the public school from its premises in that
particular case. The Constitutional Court took into account the fact
that the application for eviction was lodged in July 2008
and that
the land owner did not seek to evict the school with immediate
effect. The Court also took into account the lengthy and
protracted
negotiations that were conducted with the MEC in order to conclude a
formal lease agreement between the land owner and
the provincial
educational department, which negotiations all came to naught. The
Constitutional Court found that it could not
have been expected of
the land owner to continue with the negotiations indefinitely.
23
Having considered the matter carefully the countervailing rights, the
court concluded that the eviction of the school was just
and
equitable in the circumstances.
24
[39] Against the
background of the facts in this particular case and the
Constitutional Court’s judgment in the Juma Musjid
case, I am
satisfied that it will be appropriate to order the eviction of the
school with effect from 31 July 2011. This will enable
pupils to
complete their second term this academic year with the minimum of
disruption and to start school elsewhere in time for
the beginning of
the third term for most schools in the area. Sight should also not be
lost of the fact that, in terms of section
15 of our national
Constitution, we have freedom of religion in South Africa. The church
also has rights.
[40] In the answering
affidavit deposed to by Mr Hill and in the plea it is expressly
denied that the defendant has legal personality,
with capacity to sue
and be sued. Three different versions of the constitution of the
school, all drafted by Mr Hill between September
1999 and September
2009, were presented in evidence before me. None of them has anything
remotely resembling the standard clause
establishing legal
personality. In the 1999 version Mr Hill is designated the “owner”.
In the 2006 and 2009 version
it is Mrs Hill who is so described. It
is difficult to make sense of what was intended by the constitution
but it is difficult
to avoid the clear impression that an attempt was
being made to disguise the fact that the school was in fact Mr and
Mrs Hill and
that there interests would prevail, come what may. It is
also clear from Mr and Mrs Hill that ‘the school” is, for
all practical purposes, the two of them acting in concert together.
As there is no juristic personality known as the Boksburg Christian
Academy no order can be made against it or, if it can, it will be
entirely toothless. Perhaps this is what Mr and Mrs Hill intended
all
along. Nevertheless, the law does not readily countenance facile
evasions of justice.
[41] I agree with Mr
Verster who appeared for the plaintiff that Rule 14(2) of the High
CourtRules which provides that a partnership,
a firm or an
association may sue or be sued in its name, is a procedural aid to
assist a plaintiff to cite certain parties that
do not have any
existence separate from their members or owners and that it does not
operate to constitute an unincorporated association
a persona in law,
or to vest it with locus standi when none exists.
25
[42] I also agree with
counsel for the church’s submission that an unincorporated
entity has no existence on its own, cannot
own property and has no
locus standi to sue or be sued in its own name. I furthermore concur
with his submission that Rule 14
does not apply to a true
universitas or juristic person having legal personality with
perpetual succession and the capacity to
acquire rights and to incur
obligations and own property apart from its members.
26
[43] Ordinarily, the
primary source for determining the question of personality of an
association will be its constitution. It provides
evidence of the
intention of the members who contracted to form the association. What
the intention of the founding members was,
is a factual question and,
where the constitution is equivocal, or where there is no written
constitution, it may be determined
by reference to other
considerations, such as the nature of the association, its objects
and its activities.
27
I accept the submission of counsel for the school, who relied on the
authors Cilliers Loots & Nel to submit that it is not
always
necessary that an association’s constitution should state that
it has the characteristics of a
universitas
and that this may be a matter of inference.
28
[44]
Notwithstanding these late protestations on behalf of the school that
it would be a mistake to infer that the school is not
a
universitas
personarum
with full legal capacity to
litigate in its own name and to acquire rights and obligations
separately from its members, the answering
affidavit filed on behalf
of the school as well as the plea expressly deny any such juristic
personality.
[45] It would seem that
in the absence of the procedural aid of Uniform Rule 14(2), the
Plaintiff would have been constrained to
cite and join each
individual forming part of the association. The rule thus simplifies
the method of citation by enabling such
a body of persons to be sued
in the name which it normally bears and which is descriptive of it.
It ensures that a plaintiff’s
claim is not defeated by
technical defenses in regard to the citing of a party.
29
Rule 14(2) is, however, a procedural aid only. It cannot vest legal
personality where it does not exist.
[46] From the evidence,
including the affidavits in the original motion proceedings as well
as the motion proceedings, it is clearly
apparent that Mr and Mrs
Hill are the directive minds behind the school. Both Mr and Mrs Hill
at all times attended the trial proceedings
and gave testimony on
behalf of the school. They are undoubtedly acutely aware of the
relevant issues and actively participated
in the current proceedings.
From the evidence of Mrs Hill it emerged that when the first request
was communicated that the school
should vacate the property, a
meeting of parents and members was called and they were informed of
that intention. It seems that
none of any subsequent communications
regarding the eviction of the school were sent to the parents or to
anyone else for that
matter. It further transpired from her evidence
that no one other than herself and her husband knew, authorized or
ratified the
institution of the counterclaim by the school.
[47] In its declaration,
the church has sought the eviction of the school and all and any
persons claiming occupation through or
under it. I agree with Mr
Verster that this relief would include each and every member or
office-bearer of the school whose name
is known or who otherwise
becomes known. Even if I am wrong in this regard, I also agree with
Mr Verster that as the identities,
role and offices of Mr and Mrs
Hill in relation to the school are known and since they have actively
participated in the proceedings,
there can be no prejudice if the
relief claimed in prayers 1 and 2 of the plaintiff’s
declaration is amplified and amended,
even at this late stage by
specifically including them (Mr and Mrs Hill) by name in addition to
the school and/or any other person
who may claim occupation of the
property through or under them in the relief claimed.
[48] If the question of
the eviction order pertaining to Mr and Mrs Hill is straightforward
in as much as they could never have
been under any bona fide illusion
that if the church succeeded in this action they would have to vacate
the premises, the issue
of costs is not. During the course of
argument Mr Verster accepted that the question of costs is not that
straightforward. Mr and
Mrs Hill may have been under the impression
that as the relief was being sought against the “Boksburg
Christian Academy”
they could not be ordered to pay the costs
of suit.
[49] The plaintiff has
given an undertaking that it will serve a notice upon Mr and Mrs Hill
indicating that it will seek an order
that they pay the costs of
these proceedings. This notice is one contemplated in Rule 14(5)(d),
read with Rule 14(10)(a) and
Form 8 of the First Schedule to the
Rules. Accordingly no order as to costs may be made at this stage.
Once there has been compliance
with the Rules Of Court in this
regard, the matter may be set down for hearing on the question of
whether a costs order should
be granted against Mr and Mrs Hill.
[50] Judgment is given in
favour of the plaintiff. The order of the court is as follows:
Barry Peter Hill, Brenda
Jenifer Hill and any person claiming occupation through or under
them, are to vacate the immovable property
described as Erf 1029
Boksburg North and situated at 24 Paul Kruger Street, Boksburg North
(“the property”) by no
later than 31 July 2011 and to
restore vacant possession thereof to the plaintiff;
In the event that the
said Barry Peter Hill, Brenda Jenifer Hill or any person claiming
occupation through or under them, refuses
to vacate the property
immediately or to restore vacant possession thereof to the
Plaintiff, that the Sheriff of the High Court
is authorized and
directed to forthwith evict any such persons from the property and
to hand possession of that property to the
plaintiff.
The order provided for
in paragraph (ii) immediately above may not be effected before 1
August 2011;
The determination of the
appropriate order as to costs in these proceedings is postponed sine
die.
DATED AT JOHANNESBURG
THIS 2ND DAY OF JUNE, 2011
__________________________
N.P. WILLIS
JUDGE OF
THE HIGH COURT
Counsel
for the Plaintiff:
M. W. Verster (Attorney)
Attorney
s
for the Plaintiff: BMV Attorneys
Counsel
for the Defendant: Adv.
J.J.
Botha
Attorney
s
for the Defendant: Leon J. J. Van Rensburg
Dates
of hearing: 18-21
st
; 28
th
& 29
th
April, 2011
Date
of judgment: 2
nd
June, 2011
1
1961 (1) SA 123
(A)
2
At 128B read with 130E-H
3
1980 (3) SA 424
(W)
4
At 424H-425D. The Natal cases were
Nicholas
v Wigglesworth
1937
NPD 376
at 380;
Jadwat
and Moola v Seedat
1956 (4) SA 273
(N) at 276 and
Kanniapen
v Govender
1962 (1)
SA 101
(N) at 104.
5
In
Rex v Faithfull
& Gray
1907 TS
the court said: “
Of
course, in ordinary circumstances the court will abide its
decisions;
stare
decisis
is a good
rule to follow. But where a court is satisfied that its previous
decision was wrong, and more particularly where the
point was not
argued, then I think it is not only competent for the court, but it
is its duty in such a case not to abide by
its previous decision,
but to overrule it
.”
This
dictum
was expressly approved in
Harris
& Others v Minister of Interior & Another
1952 (2) SA 452
(A) at 453. The
Harris
case was deeply concerned with the question of precedent (see
p452B-454C). See also
Fellner
v Minister of Interior
1954
(4) SA 523
(A), another case which was much concerned with the
question of precedent. Coetzee J (as he then was) seems to have
enjoyed giving
an overview of the topic, while being astute to not
“re-inventing the wheel” in
Trade
Fairs and Promotions (Pty) Ltd v Thomson and Another
1984 (4) 149 (T) at183I-187H. In that judgment Coetzee J refers to
Professor Ellison Kahn’s “fascination” with
the
subject and the “vast mass of judicial material” which
he contributed to the subject in the
South
African Law Journal
and
elsewhere (see 184G-185D). A single-judge court must follow a
decision of a two-judge (or more) court in its own division
or in a
division having co-ordinate jurisdiction. See
South
African Farmers’ Representatives v Bonthuys
1930 CPD 132
at 135;
Ex
parte Hamer
1946
OPD 163
at 169;
Hughes
v Savvas and Hira
1931 TPD 396
at 241 and Hahlo, H.R and Kahn, E. 1960.
The
Union of South Africa, the Development of its Laws and Constitution
.
Cape Town: Juta & Company at p30.
6
See, for example,
Namibian
Minerals Corporation Ltd v Benguela Concessions Ltd
[1996] ZASCA 140
;
1997
(2) SA 548
(A) at 563D and 567C.
7
See
Namibian
Minerals
case
(
supra
)
at 563D.
8
Principles
of Interpretation of Contracts in South Africa
(2002), p 184.
9
2002 (6) SA 470
(SCA) at paragraph [15]
10
[2001] UKHL 26
;
[2001] 3 All ER 433
(HL) at 447 a
11
2003 (1) SA 155
(SCA) at para [1]
12
See
Lechoana
vs Cloete and Others
1925 AD 536
at 546.
13
See
Lechoana
v Cloete and Others
(
supra
)
at
555;
Nortje
and Another v Pool N.O.
1966 (3) SA 96
(A) 106 at 124A-C and 130E-F;
Eduan
Hoogtes (Pty) Ltd v Charin Electronics (Pty) Ltd
1973 (2) SA 795
(T) at 796F-G.
14
See
Kudu
Granite Operations (Pty) Ltd v Caterna Limited
2003 (5) S A 193
(SCA) at 202G-H (paragraph [17]);
Mndi
vs Malgas
2006 (2) SA 182
(E) at 188C-D (paragraph [22]).
15
See
Business
Aviation Corporation v Rand Airport Holdings
2006 (6) SA 605
(SCA) where it was held that the right of retention
would endure until the occupier had been compensated;
Palabora
Mining Company Ltd v Coetzer
1993 (3) SA 306
(T) at 309C-D regarding the general principles;
Heckroodt N.O. v
Gamiet
1959 (4) SA
244
(T) at 246D-247A;
Wynland
Construction (Pty) Ltd v Ashley–Smith en Andere
1985
(3) SA 798
(A) at 812F-G regarding the incidence of the onus.
16
See
Buzzard
Electrical (Pty) Ltd v 158 Jan Smuts Avenue Investments (Pty) Ltd en
‘n Ander
1996
(4) SA 19
(A) at 29I-J;
Sandton
Square Finance (Pty) Ltd v Vigliotti
1997 (1) SA 826
(W) at 831A-B.
17
2003 (1) SA 133
(SCA)
18
(Case CCT 29/10
[2011]
ZA CC 13)
19
See paragraph [7] of the judgment.
20
See paragraph [57] of
the judgment.
21
See paragraphs [59] and [60] of the judgment.
22
See paragraph [62] of the judgment
.
23
See paragraph [64] of the judgment.
24
See
paragraph [72] and [73] of the judgment
.
25
See
Parker v Rand
Motor Transport Co. and Another
1930
AD 353
at 358;
Ex-TRTC
United Workers Front v Premier, Eastern Cape Province
2010 (2) SA 114
(ECB) at paragraph [16].
26
See
Ex-TRTC United
Workers Front v Premier Eastern Cape
(
supra
)
at paragraph [15].
27
See
Bantu Callies
Football Club (also known as Pretoria Callies Football Club) v
Motlhamme and Others
1978 (4) SA 486
(T) at 489;
Ahmadiyya
Anjuman Ishati–Islam Lahore (SA) and Another v Muslim Judicial
Council (Cape) and Others
1983 (4) SA 855
(C);
Interim
Ward S 19 Council v Premier, Western Cape Province and Others
1998 (3) SA 1056
(C) at 1059 H to 1061 A-B.
28
The
Civil Practice of the High Courts in South Africa
.
Volume 1. (2009) p 174 to 177, especially at 175 where the following
is said: “
it
is not necessary that the constitution should state that the
association is a
universitas
,
or that it contains an express provision enabling it to sue or be
sued. The existence of the characteristics of a
universitas
can be a matter of inference. If the constitution of an association
makes it clear that the association has the characteristics
of a
universitas
,
then that is decisive of the issue. It has been held that if the
constitution is not clear, then the Court can have regard
to the
activities of the association to determine whether it is a
universitas
.
”
29
De Meillon v
Montclair Society of the Methodist Church of Southern Africa
1979 (3) SA 1356
(D) at 1369D-E;
Ex-TRTC
United Workers Front
case
(
supra
)
at paragraph [14];
Cupido
vs Kings Lodge Hotel
1999 (4) SA 257
(E) at 263B-C and 264B.