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[2021] ZAGPJHC 356
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Hlela and Others v Sithole and Others (2019/38225) [2021] ZAGPJHC 356 (28 May 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO: 2019/38225
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
YES
DATE:
28 May 2021
In
the matter between:
HLELA:
DUMISANI JEFFERY
First Applicant
MDLALOSE:
GODFRY VUSUMUZI
Second Applicant
ZIKAKALALA:
MDUBANE ROBERT
Third Applicant
MAPHUMULO:
SIPHIWE GABRIEL
Fourth Applicant
and
SITHOLE:
MANDLAKHE SITWELL
First Respondent
SITHOLE:
MADIKANAKIE LEAH
Second Respondent
THE
MODERATOR: INDEPENDENT
Third Respondent
PRESBYTERIAN
CHURCH
THE
REGISTRAR OF DEEDS: JOHANNESBURG
Fourth Respondent
THE
DIRECTOR-GENERAL: GAUTENG
Fifth Respondent
JUDGMENT
ALLY
AJ
INTRODUCTION
1.
This is an exception launched by the
Applicants against the First and Second Respondents’ special
plea and plea over. The
parties, however, will be referred to as in
the pleadings.
2.
The Plaintiffs maintain that the special
plea(s) raised by the First and Second Defendants are bad in law and
without merit and
furthermore that the plea does not disclose a
defence.
3.
The Plaintiffs submissions in the above
regard are:
3.1.1.
The First and Second Defendants aver that
the Plaintiffs have no
locus standi
to bring the action;
3.1.2.
The First and Second Defendants aver that
the Plaintiffs have not complied with the internal dispute resolution
mechanism before
launching the action proceedings and are therefore
barred;
3.1.3.
The First and Second Defendants repeat the
locus standi
allegations
in the plea over, which plea over, Plaintiffs submit is bad in law
and without merit.
EVALUATION
AND ANALYSIS
4.
In respect to the
locus
standi
allegation, Plaintiffs submit
that they are entitled to launch action proceedings against the
Defendants because they are members
of the Church and as such are on
that basis alone, entitled to launch the proceedings. Furthermore,
they submit that the First
and Second Defendants do not deny that the
Plaintiffs are members of the Church.
5.
It is apposite at this point to set
out First and Second Defendants averments in this regard:
“
1.
The Plaintiffs’ claim arises from the written Constitution of
the Independent Presbyterian Church,
which is attached as POC1.
2.
Section D, article 6(c) and (d) on page 17 of the Constitution of the
Independent Presbyterian
Church, states that: the duties of the
Moderator is to represent the church in all legal actions brought for
or against the Church;
and represent the church in all matters of
whatsoever kind or nature.
3.
The Plaintiffs, individually or collectively, are not the Moderator
and therefore lack the
authority and locus standi to bring such
action on behalf of the Independent Presbyterian Church, as this is
the exclusive duty
of the Moderator.
4.
Section B, article 8(g) on page 11 of the Constitution Independent
Presbyterian Church, states
that no Minister or member of the
Independent Presbyterian Church may bring any action in connection
with church matters in any
court of law against the Moderator without
first obtaining the express[ed] authorisation of the Synod to bring
such action.
5.
The Plaintiffs did not obtain express[ed] authorisation of the Synod
of the Independent Presbyterian
Church to bring such action against
the Moderator.”
6.
The above exposition, however, relates to
First and Second Defendants’ special plea and not the plea
over.
7.
The Court must in adjudicating the
exception raised by the Plaintiffs, have regard to the plea and
special pleas in their totality
and determine whether on an
interpretation of the said plea and plea over, a defence has not been
raised.
8.
First and Second Defendants deny in
paragraph 11 of the plea over, Plaintiffs membership of the Church.
This in my view is a triable
issue which if proven that they are not
members of the Church, Plaintiffs’ right to launch these
proceedings. It is apt to
quote the paragraph in full at this time:
“
11.
The Defendants deny that the Plaintiffs are members and Elders at the
Zondi Circuit of the Independent Presbyterian Church and
are hereby
put the proof thereof.”
9.
Plaintiffs’
Counsel has placed reliance on the matter of Louvis v Oiconomos
[1]
for the submission that they have
locus
standi
to
launch the action proceedings. In this regard De Villiers JP stated:
“
To
my mind this argument is based upon the fallacy that here there is a
proceeding in contract and not in tort. But the complaint
here is not
breach of contract. The rights which the applicants claim were not
granted to them by the other side under a contract.
What they
complain of is a wrong, a delict which has been committed by the
members of the Committee. Each individual member of
the community,
therefore, who complains of the delict is entitled to proceed against
those persons who are directly responsible
for the delict.”
10.
Whilst it is clear that members of the
Church would be entitled to launch proceedings as outlined in the
abovementioned case, the
precursor to launching such proceedings
would be proof of membership of such an organisation or institution.
Locus standi,
in
terms of membership, in my view, needs still to be proven by the
Plaintiffs. Accordingly, the First and Second Defendant have
raised a
defence which is triable and on this ground alone, the exception
falls to be dismissed.
11.
The
next issue raised by the Defendants is that the Plaintiffs have no
authorisation from the Synod to represent the Church. In
my view, the
same argument raised in the Louvis case
[2]
holds true, namely that in an action of this nature wherein a wrong
has been committed against the Church no authorisation is necessary
to launch proceedings against the wrongdoers.
12.
I am in agreement with the submission by
Counsel for the Plaintiffs that the second special plea relates to
proceedings related
to Church matters and do not affect proceedings
of the nature launched by Plaintiffs. As a result this special plea
is of no moment
and therefore excipiable and must be struck out.
13.
The final special plea relates to the
arbitration clause, which I understood during argument has been
abandoned but to the extent
that it was not abandoned, this special
plea holds no merit. The arbitration clause relates to matters
internal to the Church and
not to wrongful acts committed against the
Church. In other words, where membership of the Church is proven,
such members may launch
proceedings against persons who have
committed wrongful acts as against the Church.
14.
The question that arises is whether a striking out of the special
pleas mentioned
above, leaves the pleadings with triable issues on
the face of it. I am satisfied that First and Second Defendants in
disputing
the membership of the Plaintiffs, raises a defence that is
triable in a Court of law.
15.
Accordingly, on the basis of the above, the exception raised by
Plaintiffs against
Defendants special pleas are hereby upheld and
fall to be struck out. The exception, however, raised against the
plea over, is
dismissed.
COSTS
16.
The Plaintiffs and First and Second Defendant have been successful in
that whilst
the special pleas have been struck out, the plea over
remains for adjudication at trial.
17.
It is trite that the determination of costs rests within the
discretion of the
Court and such discretion must be exercised
judicially. It is my view that the costs of this application, for the
reason that both
parties are successful, should be borne by both
parties and as such each party should pay their own costs.
18.
In the result, the following Order shall issue:
1)
The exception to the First and Second Defendants’ special pleas
in paragraphs
1 to 8, is upheld and the said paragraphs are struck
out;
2)
The exception to the First and Second Defendants’ plea over is
hereby dismissed;
3)
Each party to pay their own costs of this application.
G
ALLY
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION OF THE HIGH COURT, JOHANNESBURG
Electronically
submitted therefore unsigned
Delivered:
This judgement was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation
to the
Parties/their legal representatives by email and by uploading it to
the electronic file of this matter on CaseLines. The
date for
hand-down is deemed to be 28 May 2021.
Date of hearing: 12
August 2020
Date
of judgment: 28 May 2021
Appearances:
Applicant
:
Adv.
T. Ramogale
Cousyns
Incorporated
4
th
Floor, One Strudee
1
Strudee Ave, Cnr Bolton Road
Rosebank
nakka@cousyns.co.za
1
st
and 2
nd
Respondent :
Adv. K. Mvubu
Morwasehla
Attorneys
Boston
Building, Office 405
130
Main street
Marshalltown
Johannesburg
siphiwen@laic.org.za
[1]
1917 TPD 465
[2]
supra