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[2015] ZAGPJHC 299
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Oyakhilome and Another v Commission for the Promotion and Protection of Cultural, Religious and Linguistic Communities (2015/42575) [2015] ZAGPJHC 299 (7 December 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: 2015/42575
In the
matter between: -
PASTOR
CHRIS
OYAKHILOME
First applicant
CHRIST
EMBASSY
CHURCH
Second applicant
and
THE
COMMISSION FOR THE PROMOTION AND
PROTECTION
OF CULTURAL, RELIGIOUS AND
LINGUISTIC
COMMUNITIES
Respondent
J
U D G M E N T
GEORGIADES
AJ:
Introduction
[1]
This is an
application for interim relief, sought on an urgent basis. The
applicants seek to interdict the respondent Commission
from laying a
criminal charge against the first applicant in terms of section 41 of
the Commission for the Promotion and Protection
of the Right of
Cultural, Religious and Linguistic Communities Act, 19 of 2002 (“
the
Protection of Religious Communities Act”
).
In the alternative, the applicants seek the following two orders:
first, that the notice issued by the Commission on 28 October 2015
under section 7(2) of the Protection of Religious Communities Act
(which compels the first applicant to appear before the Commission
to
give evidence and produce documents) is suspended; and second, that
the Commission is interdicted from issuing further notices
under
section 7(2).
[2]
The relief is
sought in the interim pending the outcome of part B of the
application wherein the applicants will seek a declaration
that the
notice issued by the respondent is unlawful and ought to be set
aside, and a declaration that sections 7(2), 41(1)(d)
and (e), and
41(2) of the Protection of Religious Communities Act are
unconstitutional and unlawful to the extent that they confer
upon the
Commission investigative and enforcement powers beyond the
Commission’s constitutional mandate.
The
Constitution and legislative framework
[3]
The Commission
is an institution created by chapter 9 of the Constitution. Section
185 of the Constitution endows it with
the following objectives and
powers: -
“
(1)
The primary objects of the Commission are –
(a)
to promote
respect for the rights of cultural, religious and linguistic
communities;
(b)
to promote and
develop peace, friendship, humanity, tolerance and national unity
among cultural, religious and linguistic communities,
on the basis of
equality, non-discrimination and free association;
(c)
to recommend
the establishment or recognition, in accordance with the national
legislation, of the cultural or other council or
councils for a
community or communities in South Africa;
(2)
The Commission has the power, as
regulated by national legislation, necessary to achieve its
primary
objects, including the power to monitor, investigate, research,
educate, lobby, advise and report on issues concerning
the rights of
cultural, religious and linguistic communities;
(3)
The Commission may report any matter
which falls within its powers and functions to the South
African
Human Rights Commission for investigation;
(4)
The Commission has the additional
powers and functions prescribed by national legislation.”
[4]
The Protection
of Religious Communities Act is the national legislation referred to
in 185(4). In terms of section 4 of the
Protection of
Religious Communities Act, the Commission has the following
objects: -
“
4.
The objects of the Commission
are –
(a)
to promote
respect for and further the protection of the rights of cultural,
religious and linguistic communities;
(b)
to promote and
develop peace, friendship, humanity, tolerance and national unity
among and within cultural, religious and linguistic
communities, on
the basis of equality, non-discrimination and free association;
(c)
to foster
mutual respect among cultural, religious and linguistic communities;
(d)
to promote the
right of communities to develop their historically diminished
heritage; and
(e)
to recommend
the establishment or recognition of community councils in accordance
with section 36 or 37.”
[5]
Section 5 of the Protection of
Religious Communities Act sets out the Commission’s powers and
functions. Pertinent to
these proceedings is section 5(1)(e),
which confers upon the Commission the power to investigate certain
matters for the purpose
of achieving the objectives in section 4: -
“
The
Commission may do all that is necessary or expedient to achieve its
objects referred to in section 4, including to –
…
(e)
monitor, investigate and research any
issues concerning the rights of cultural, religious and
linguistic
communities…”
[6]
Section 7
deals with the Commission’s power when it conducts
investigations. Pertinently to these proceedings, section
7(2)
empowers the Commission to summon a person to appear before an
investigation to give evidence or to produce documents: -
“
(1)
The Commission may conduct an investigation
in terms of section 5(1)(e) itself or may designate one
or more
Commission members or other persons as an investigating committee to
conduct the investigation on its behalf.
(2)
For purposes of an investigation, the
Commission or any investigating committee may –
(a)
by notice in writing summon a person
to appear before the Commission or the Committee, as the
case may be
–
(i)
to give evidence; or
(ii)
to produce a document available
to that person and specified in the summons;
(b)
call any person present at a meeting
whether summoned or not who want to give evidence before
the
Commission or Committee, as the case may be –
…
(ii)
to produce a document in the
person’s custody at that meeting…”
[7]
Section 41
creates an offence for failing to comply with a summons issued under
section 7(2): -
“
(1)
A person commits an offence if that person –
…
.
(a)
after having
been summoned in terms of section 7(2)(a) fails –
(i)
to be present
at a meeting of the Commission or an investigating committee at the
time and place specified in the summons;
or
(ii)
to remain
present until excused by the Commission or Committee;”
Factual
Background
[8]
It is common
cause that, on 20 August 2015, the Commission launched a
national investigation which it describes as an
investigation “into
the commercialisation of religion and abuse of people’s belief
systems”. The Commission
states that it had received
several complaints from communities in the religious and cultural
sectors, including the South African
Council of Churches, against
specified religious leaders and churches. The identity of the
churches and pastors complained
of is not relevant to these
proceedings, save that the applicants were not amongst those against
whom complaints had been lodged.
The Commission launched its
investigation in response to the complaints. It describes the
conduct of its investigation as
follows: the Commission “decided
to summons a range of pastors, prophets, priests, religious leaders…
whom we feel
can add value to our investigative study even though
there are no specific complaints around them
.”
On 20
October, the Commission issued a media statement in which it
summarised the progress of the investigation and set out the
schedule
of hearings to be held in Gauteng.
[9]
On 28 October
2015, the Commission issued the notice in issue in the proceedings.
The notice summoned the applicants to appear
and give evidence before
the Commission on 4 November 2015, and to produce at the
hearing the range of documents specified
in the notice. The
notice listed some 12 documents which related to a range of matters
from proof of the first applicant’s
ordination to the second
applicant’s financial statements. The applicants objected
to appearing at the hearing and
to producing the documents listed in
the notice. The ensuing exchange of correspondence culminated in the
applicants’ attorneys
advising the Commission that the
applicants intended to review the notice and seek to have it set
aside.
[10]
On
26 November 2015, the applicants sought a written
undertaking that the Commission would not take any enforcement step
against the first applicant. The Commission refused to give the
undertaking sought. On 27 November, it advised the
first
applicant to appear before the Commission on 2 December 2015 at
12:00, failing which it would lay a criminal charge against
the first
applicant, thus triggering section 41 of the Protection of Religious
Communities Act. These proceedings were instituted
pursuant to
this state of affairs.
Urgency
[11]
The Commission
contended that the matter was not urgent as the applicants knew as
early as 28 October 2015 that failure to heed
the summons would
result in section 41 being invoked. The urgency was therefore
self-created. I do not agree with this contention.
The applicants
took a decision to challenge and set aside the notice on 26 November
2015. They sought an undertaking staying the
effects of section 41.
This was refused. They were left with no option but to seek urgent
relief. I am satisfied that the matter
is urgent in the
circumstances.
Prima
Facie Right
[12]
The
nature of the
prima
facie
right which must be established in proceedings for an interim indict
pending the review of an administrative decision is uncontroversial:
a
prima
facie
right is established by demonstrating a prospect of success in the
review.
[1]
In
order to succeed on interim relief therefore, the applicants must
establish
prima
facie
that
the
section 7(2) notice ought to be set aside on one or other of the
bases pleaded.
[13]
The applicants’ position is
that the Constitution and statutory provisions do not empower the
Commission to investigate, intervene
in or regulate the operations
and affairs of any particular church or religious institution. It is
not afforded the enforcement
and subpoena powers that it purports to
exercise in the notice issued. Its mandate is only a general
investigative one, that is
to investigate community rights issues.
[14]
On the face of it, the Commission’s
power to investigate is constrained in the following two respects.
First, it is
given the power to investigate for the purpose of giving
effect to the objectives in section 4. Those objectives are,
amongst
others, to promote respect for and further the protection of
the rights of religious communities; to promote and develop tolerance
and national unity among and within religious communities on the
basis of equality, non-discrimination and free association; and
to
foster mutual respect among religious communities. The emphasis
is on religious
communities
.
Section 5(1)(e) repeats this language: it confers the power to
investigate issues that concern the rights of religious
communities
for purposes of achieving the
objectives in section 4.
[15]
The Commission did not argue, nor
does it appear from the legislation, that its powers of investigation
extend to individuals or
institutions (such as churches like the
second applicant), or to the internal doings or workings of any
particular religious leader
or religious institution
per
se
or in relation to a religious
community. Nor did the Commission demonstrate how the
investigation of the applicants or their
evidence, or the production
of the documents listed in the notice, is related to the rights of
any particular religious community.
[16]
Accordingly, the applicants have
prima facie
established the right to the relief in part B of the Notice of
Motion to set aside the notice as unlawful.
Prayer
1: interdicting the Commission from laying a charge against the first
applicant
[17]
Nonetheless, the applicants cannot
succeed insofar as they seek to interdict the Commission from laying
a criminal charge against
the first applicant. Various
submissions were made that the might of the State machinery will be
brought to bear on the first
applicant and that he will be arrested;
but no facts were advanced in support of these submissions and they
remain speculative.
[18]
It is by no means a foregone
conclusion that the first applicant will be arrested should charges
be laid against him. First,
the decision to prosecute lies in
the hands of the prosecuting authority. It is only once the
decision to prosecute is taken,
if it is at all, does the question of
arrest come into play. Second, in the event that the relevant
authority decides to
prosecute, the first applicant’s arrest is
still not a foregone conclusion.
Section 38
of the
Criminal
Procedure Act, 51 of 1977
, provides four methods by which an
accused’s attendance in a criminal court may be secured:
arrest, summons, written notice
and indictment. Arrest is only
one of those methods. Neither is a warrant of arrest available
for the asking:
section 43
of the
Criminal Procedure Act requires
a
warrant of arrest to be issued only by a magistrate or justice of the
peace and only upon the written application of a public
prosecutor.
The applicants have led no evidence of any of this and this prayer
cannot succeed.
First
alternative prayer: suspension of the notice
[19]
I have said
above that the applicants’ case on review is
prima
facie
established. But even were I to assume in the Commission’s
favour that it had the power to conduct its investigation
into what
it describes as “the perceived commercialisation of religion
and alleged abuses of religious belief systems”,
it is my view
that the issuing of the notice to the applicants, as well as the
contents of the notice, are not rationally related
to the subject
matter of the investigation.
[20]
It is common
cause that the Commission has not received any complaint against the
applicants. There was no intimation that
there is even a
suspicion that the applicants are suspected of commercialising
religion or of any abuse on their part.
[21]
The applicants
were chosen at random. The Commission itself says so in its
answering affidavit : -
“
5.7
Prior to the hearing which was being conducted
there was a
random
choosing of various churches summonsed to appear before the
Committee.
5.8
Leaders of the church who are summoned
in terms of
section 7.2
are given a generic list of questions that
will be asked and the list of documents required to be produced by
the leaders.”
[22]
It is not
rational to choose churches at random to appear before the Commission
when the stated purpose of its investigation is
to look into “the
perceived commercialisation of religion and alleged abuses of
religious belief systems”. The
Commission could not
explain how or why evidence and documents from random churches and
church leaders, particularly those against
whom there has been no
complaint, would assist it to establish the subject matter of its
investigation.
[23]
As regards the
balance of convenience, the applicants contend that they are being
asked to open themselves up to an inquiry, the
unlawfulness of which
is
prima
facie
established.
[24]
In my view,
the Commission’s submissions cannot be upheld: the Commission,
as much as the applicants and the general public,
has an interest in
establishing whether the notice was lawfully issued. The
balance of convenience accordingly favours the
applicants. I am
also satisfied that the applicant had no alternative remedy than to
approach this Court.
[25]
In all the
circumstances, I am satisfied that the operation of the notice ought
to be suspended.
Second
alternative prayer: to interdict the Commission from issuing further
notices
[26]
I am also
asked in the alternative to interdict the Commission from issuing
fresh notices. It is obvious that the Commission,
having failed
on a substantive basis in this regard, cannot issue a notice in
identical terms to the one that I have suspended.
I cannot
however, interdict any future notices in general terms. The
facts may change in future and the substantive terms
of fresh notices
may be different. No facts were placed before me as to what
those new terms could be. I am therefore
not inclined to
interdict the issue of fresh notices in future.
Costs
[27]
As far as the
costs are concerned, the applicants initially sought an order
interdicting the laying of a charge. It was only once
the hearing of
the matter commenced that the alternative relief of setting aside the
notice on an interim basis was sought coupled
with an interdict of
future notices. The applicants were therefore only partly successful.
Also, I only considered the rationality
aspect of the review and not
the other grounds. This was the only relevant aspect as far as
interim relief was concerned. I have
not considered the prima facie
rights of all the other grounds raised by the applicants. In the
circumstances I think that the
costs should be determined in part B
of the application.
Order
I make
the following order: -
1.
The notice
issued by the respondent to the first applicant on 28 October 2015 is
suspended pending the final determination of part B
of the
notice of motion.
2.
The costs of
this application are to be determined in part B of the application..
_________________________________
C
GEORGIADES
Acting
Judge of the High Court of South Africa
Gauteng
Local Division, Johannesburg
DATE OF
HEARING:
4 December 2015
DATE OF
JUDGMENT:
7 December
2015
For the
applicants :
Adv D Fisher SC
Adv J Bleazard
Instructed
by:
Sim & Botsi Attorneys Inc.
For the
respondent :
Adv A Laka SC
Instructed
:
Maluleke Seriti Makume Matlala Inc.
[1]
South
African Informal Traders Forum and others v City of Johannesburg and
others; South African National Traders Retail Association
v City of
Johannesburg and others
2014 (4) SA 371
(CC) para 25 and the authorities cited in fn 24
thereto.