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[2016] ZAECPEHC 18
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Fortuin v Church of Christ Mission of the Republic of South Africa and Others (3626/15) [2016] ZAECPEHC 18 (5 May 2016)
Not
Reportable
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION – PORT ELIZABETH
Case
No: 3626/15
Date
Heard: 4/02/16
Date
Delivered: 5/05/16
In
the matter between:
JOHANNES
FORTUIN
Applicant
and
CHURCH
OF CHRIST MISSION OF
THE
REPUBLIC OF SOUTH AFRICA
First
Respondent
NKUTHALO
ELIJAH GONTSANA
Second
Respondent
STEPHEN
LASALA
Third
Respondent
JUDGMENT
RENQE
AJ:
Introduction
:
[1]
The applicant brought review proceedings in terms of Rule 53 of the
Uniform Rules for the review and setting aside of the decision
of the
first and second respondents to disfellowship him from the
performance of his pastoral duties as ordained minister
of
Bloemendal Church of Christ Mission of the Republic of South
Africa.
Parties:
[2]
The applicant, Johannes Fortuin, was the Minister of the Church of
Christ Mission of the Republic of South Africa serving at
its
Bloemendal Congregation in Port Elizabeth.
[3]
The first respondent is the Church of Christ Mission of the Republic
of South Africa (the Church), a voluntary religious association
with
power to sue and be sued made up of structures and operates in all
provinces of the Republic of South Africa.
[4]
The second respondent, Mr Nkuthalo Elijah Gontsana, is the president
of the Church presently residing at Ward 31 Gqwarhu Location,
Bhala
Administrative area, Flagstaff.
[5]
The third respondent, Mr Stephen Lasala, is the General Secretary of
the Church residing at 1003 Afrikaners Street, Steynville,
Hopetown.
Background:
[6]
The applicant had been a minister of the Church since 1986. On 13
June 2013 he divorced his then wife and remarried in November
2013.
[7]
In September 2013 at the Church Annual Assembly, Pretoria, the
applicant wrote a letter to the Provincial Representative Mr
Adams
advising the first respondent about his divorce. This letter was
presented to the National Ministers Association for consideration.
[8]
The following day, the applicant was summoned to a
meeting by the National Minister’s Executive Committee.
At that meeting he enquired at the outset from the members of the
Executive Committee whether the purpose of the meeting constituted
a
hearing. He was advised that its sole purpose was to obtain
confirmation from him about his divorce in order to put the members
of the committee in better stead for them to brief the National
Executive Committee. On the last night of the conference he was
advised by a Mr Mguzulwa that the President of the Church, Mr
Gontsana, had announced at the conference that he had been expelled.
[9]
The applicant spoke to the Deputy President, Mr Lewis, who told him
informally that his ministry had been terminated.
The applicant
then approached a Mr Stemela, the erstwhile Secretary-General seeking
written confirmation of the termination of
his ministry and the
reasons therefor. Mr Stemela advised him that no written
confirmation will be forthcoming, a fact confirmed
by Mr Lewis.
[10]
Upon his return to Bloemendal Church the applicant explained to the
members of his congregation that his ministry in the Church
had been
terminated. But the members of his congregation told him he will
continue to minister at the Bloemendal Church until a
formal notice
was received from the Executive Council. In March 2014 the
applicant attended the Minister’s meeting
of the Church in
Douglas in the Northern Cape. When the second respondent arrived at
the meeting he announced that the applicant
was not eligible to
attend the meeting. The applicant objected and insisted that he be
furnished with a formal written notification
and the reasons for the
alleged termination of his ministry. The second respondent stated
that no such letter would be provided
and then adjourned the meeting.
Shortly thereafter the applicant was summoned by the Executive
Council and advised by the second
respondent that Executive Council
had taken a decision to disfellowship him.
[11]
Upon his return from Ministers’ conference in Douglas, the
applicant briefed the elders of the local Bloemendal Church
about
what had transpired at that conference thereafter, he addressed a
letter to the Church Executive Council reiterating his
stance that he
would remain in the ministry until such time he was afforded a
procedurally fair hearing in accordance with the
prescripts of the
Church’s Constitution.
[12]
The applicant learned for the first time after attending the meeting
held on 24 January 2015, with inter alia, the Deputy President
Mr
Lewis where his expulsion was ratified and confirmed that he had been
disfellowshiped pursuant to the decision alleged taken
in October
2012 at a Ministers and Ministers wives where it was allegedly
resolved that Ministers who divorce their spouse would
be expelled
from the Church.
[13]
The applicant asserted that the Church’s National Assembly is
the highest decision making body that is competent to take
such a
resolution and it in fact never took such a resolution at any of its
Annual Assemblies that he attended. The applicant contended
that the
actions of the Church are patently in contravention of the tenets of
natural justice and that he had the right to be heard
before the
Church could properly take a decision to disfellowship him.
Consequently, he contested his expulsion and demanded immediate
reinstatement.
[14]
The respondents raised three points
in
-
limine.
They
contended that;
(i)
This court has no jurisdiction to entertain this matter,
(ii)
There was a misjoinder of the second and third respondent, and
(iii)
The court has no powers to determine religious disputes.
I
deal with the points in turn hereunder.
[15]
With regard to the first point, counsel for the respondents argued
that there is no evidence before court confirming
that any of the
respondents reside or have as its main office within the jurisdiction
of this court and that the decision sought
to be reviewed was taken
in Pretoria. The applicant contends that the decision sought to be
reviewed was ultimately taken in Port
Elizabeth on 24 January 2015,
if regard is had to the Church’s Constitution. Furthermore, the
effect of the decision to disfellowship
is in respect of the
ministerial duties that he conducted in Port Elizabeth. The applicant
further contended that even if the decision
was not taken in Port
Elizabeth this court will have jurisdiction in terms of common law if
the cause of action arose within the
courts area of jurisdiction,
which requires there to be a sufficient connecting factor between the
court and the matter before
it in order to enable the court to deal
with the claim and making a binding judgment on the parties. The
primary question which
calls for adjudication is whether or not this
court has jurisdiction to adjudicate this matter.
Section 21
(1) (a)
of the
Superior Courts Act 10 of 2013
provides the basis of the
High Court effectiveness and grants jurisdiction over persons, causes
and other matters. In its terms
a High Court has jurisdiction over
all persons residing or being in its area of jurisdiction arising and
all offences triable within,
its area of jurisdiction and all
other matters of which it may according to law take cognisance. The
decision to disfellowship
the applicant from the performance of his
pastoral duties was ratified and confirmed in Port Elizabeth on 24
January 2015. In terms
of
section 21
of the Superior Court’s
Act a division has jurisdiction in relation to all causes arising
within its area of jurisdiction.
Therefore the cause of action arose
within the jurisdiction of this court.
[16]
Regarding the second point
in-limine ,
the respondents
contended that second and third respondents are officials of first
respondent who were at all material times performing
official duties
for and or on behalf of the first respondent in this matter. It was
consequently contended that it was not appropriate
for the applicant
to cite them as parties in this matter. Thus their citation
constituted misjoinder. The applicant argued
that the second
respondent was a party to the decision to “disfellowship”
him. The applicant attached to his founding
affidavit a Constitution
that was applicable to the church when this contended matter arose.
In terms of Article X
of first respondent’s Constitution the
president, which is the second respondent in this instance, is
empowered to approve
or otherwise recommend the suspension from
office of any minister. Furthermore the second respondent is
empowered to institute
and defend any action in a court of law,
either brought by or against the Church and take all such steps and
to do all such things
as he or she may deem necessary to carry
the matter to its conclusion. It therefore follows that there was no
misjoinder
of the second respondent, considering the fact that the
second respondent was a party to the decision to disfellowship the
applicant
and that he is empowered by the first respondent’s
Constitution to defend any action brought against the first
respondent.
The applicant further submitted that the third respondent
is, in terms of the Constitution responsible for the day to day
management
of the first respondent and was merely cited as an
interested party with no relief sought against him. I find the
issue of
miss-joinder devoid of any merit and therefore falls to be
rejected.
[17]
The last point raised was the determination of religious disputes by
courts. The respondents argued that their Constitution
and the Bible
as supreme authority precludes the Church member from challenging
decision taken by the Church. Therefore,
the applicant has no
right to refer this matter to this court.
Counsel
for the respondents argued that the first respondent is a voluntary
association as a result its action through its functionaries
do not
fall within the definition of administrative action as contemplated
in the
Promotion of Administrative Justice Act No 3 of 2000
. The
applicant argued that the decision of the first respondent is of a
contractual obligation or domestic tribunal and therefore
subjected
to review.
[18]
I now turn my attention to the powers of the court to review a
decision taken by a church. Counsel for the respondent argued
that
the crisp question to be decided in this matter is whether or not the
decision of the first respondent is that of a tribunal
or officer
performing judicial, quasi-judicial or administrative function in
terms of Rule 53 (1) of the Uniform Rules. Counsel
for the applicant
argued that this court has common law jurisdiction to review the
decision of a contractual or domestic tribunal
and the court will
interfere and review the proceedings of such tribunal where it has
disregarded its own rules or the fundamental
principles of fairness
have not been adhered to. See
Turner
v Jockey Club of SA
1974 (3) SA 633
where
the following was stated at page 644 paragraphs G-H, ’
The
Tribunal is required to listen fairly to both sides and to observe
“the principles of fair play”
(Marlin’s
case,
supra
at pages 126 and 128). In addition to what may be described as the
procedural requirements, the fundamental principles of justice
require a domestic tribunal to discharge its duties honestly and
impartially
(Dabner
v SA Railway and Harbours,
1920 AD 583
at page 589)
.
They require also that the tribunal’s findings of the facts on
which its decision is based shall be “fair and bona
fide”
(
Jockey
Club of SA v Transvaal Racing Club, supra at p.450
)
it is, in other words, “under an obligation” to act
honestly and in good faith (
Maclean
v Workers’ Union
supra at page 623)’.
In
my view there is ample authority in support of the proposition that
courts are empowered to interfere with the decision made
by a
tribunal where the fundamental principles of fairness have been
flouted. The issue to be taken into consideration is
whether or
not the tribunal was competent to make that decision and whether it
complied with the requirements of procedural and
substantive
fairness.
However,
this is effectively limited to whether the procedure or decision
taken was tainted by irregularity or illegality. The judgment
of
Theron
en Andere
[1]
,
has already confirmed that a reasonableness test based on rationality
was a competent basis under the common law powers to review
decisions
of voluntary associations.
[19]
In now turn to the merits of the case. Article XIV of the
Constitution of the Church sets out the code and article XV thereof
deals with discipline and provides:
‘
15.3
Should the NEC satisfy itself of any misconduct prohibited in terms
of the Constitution by a member, the NEC may
decide to institute
disciplinary proceedings against such member in respect of such
misconduct and then refer the matter to the
National Disciplinary
Committee (NDC) or any other body authorised to conduct disciplinary
proceedings.
15.4
A National Disciplinary Committee, which has conducted a disciplinary
hearing in terms of this Constitution,
may find any member guilty of
any misconduct referred to Article 15.5 or any other misconduct
prohibited in terms of the Constitution,
only if it is satisfied that
the evidence presented is of such cogent and sufficient nature as to
prove the guilt of such member
on a balance of probabilities.
15.5
The following conduct of member(s) shall constitute misconduct in
respect of which disciplinary proceedings
may be invoked and
instituted against a member(s):
(a)
behaviour which brings the COCM into disrepute, or unbecoming conduct
by member(s).’
[20]
It is common cause that the applicant was disfellowshipped on the
grounds that he divorced his wife and remarried someone
else.
Furthermore, it is clear from the provisions of the first
respondent’s Constitution that the applicant was entitled
to a
fair hearing before a decision was arrived at. The issue to be
decided by this court is whether or not the respondents followed
fair
processes as contemplated in their own Constitution in arriving at a
decision to disfellowship the applicant.
[21]
The respondents argued that the applicant appeared before structures
of the Church and that there is no doubt that he was given
a fair
hearing at various stages. The court here is dealing with a
review in terms of Rule 53 of the Uniform Rules.
The
respondents were required in terms of Rule 53 (1) (a) to despatch,
within fifteen days after receipt of the notice of motion,
to the
registrar the record of such proceedings as they were called upon and
no such record was filed . This defeats their assertion
that there
was such a disciplinary hearing. The applicant’s contention
that there was no hearing is supported by the affidavits
of Mr
Jonathan Blaauw and Mr Michael Stanely, who are both members of the
National Executive Committee of the Church.
[22]
Another issue that arose during the hearing of this matter was
whether or not the matter should not be referred for oral evidence
in
order to deal with the alleged dispute of fact on whether or not
there was a hearing. Counsel for the applicant objected to
this
approach, stating that there was no genuine dispute of fact in this
matter as the allegations made by the respondents were
vague,
unsubstantiated and devoid of any detail and therefore fall to be
rejected. He further argued that in assessing the evidence
the court
should apply the principles as set out in
Plascon
v Evans
[2]
.
[23]
This matter concerns the respondent’s failure to afford the
applicant a hearing. The respondents had ample opportunity
to
demonstrate to this court that indeed the applicant was given a
hearing and not just make bald allegations that are not supported
by
any cogent evidence. Such as minutes of the meetings and any record
of the proceedings, which could have been easily presented
to this
court. Furthermore, no details of when and where the so-called
hearing took place were provided to the court.
[24]
As I have already said above, had all prescripts of the
disciplinary process had been complied with by the respondents
it
would have been a simple matter for them to present evidence of that
fact in support of their contention.
[25]
Whilst the respondents were adamant that the decision complained of
was taken during September 2013 and the application for
review was
not brought within a reasonably time. It appears that the applicant
continued as minister as he was informed by the
Church members to do
so until a written letter with reasons was furnished for the decision
to disfellowship him from the Church.
The last meeting that he
attended on 24 January 2015 at Bloemendal Church gave a final
confirmation that he was indeed dis-fellowshipped
and the reasons
therefor were communicated to him. Consequently, the court
cannot find any unreasonable delay as alleged
by the respondents,
given that the applicant instituted the review proceedings
immediately thereafter.
[26]
I now deal with the final aspect, during the hearing, Counsel for the
applicant handed in an application to strike out part
of paragraph
15.3 of the answering affidavit commencing with the words:
‘
in
the instant matter Deponent’s wife . . .’ , to the end of
the paragraph, together with annexure “
NG1”
being
the affidavit of Mr Douglass Joseph, be struck out on the grounds of
being vexatious and irrelevant, and
The
last sentence of paragraph 19 of the answering affidavit be struck
out on the grounds of being vexatious and irrelevant.
[27]
I find the offending allegations made in Mr Douglas Daniel Joseph’s
affidavit irrelevant to the matter at hand.
No disciplinary
action was ever instituted by the respondents to deal with any of the
allegations contained in Joseph’s affidavit.
Consequently the
application to have part of paragraph 15.3 and the last sentence of
paragraph 19 of the answering affidavit strike
out is granted.
[28]
For all the aforegoing reasons, it is clear that the respondents
failed to comply with their own Constitution and in the
circumstances,
the applicant has clearly made out a case for the
relief sought.
[29]
In the result the following order is made:
(a)
That the decision of the respondents to dis-fellowship and or suspend
the applicant from the performance of
his duties as Minister of the
Bloemendal Church of the first respondent is reviewed and set aside.
(b) The first and
second respondents are ordered to pay the costs of this application
jointly and severally the one paying
the other to be absolved such
costs to include the costs attended upon the application to strike
out.
___________________
FY
RENQE
ACTING
JUDGE OF THE HIGH COURT
Counsel
for the Applicant:
J Nepgen
Instructed
by:
Brendan Weldrick Attorneys
142
Cape Road
Millpark
Port
Elizabeth
Ref:
BW/lg/FN001
Counsel
for the Respondent’s: M
Nonkonyana
Instructed
by:
Mpumelelo Notununu & Associates c/o
Nelson
Attorneys
60
Worraker Street
Newtown
Port
Elizabeth
Ref:
C56/16/NM/HC/nb
[1]
Theron en Andere v Ring van Wellington van die
NG Sending Kerk in Suid-Afrika en Andere
1976 (2) SA 1
[2]
Plascon
–Evans Paints ltd v Van Riebeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(2) All SA 366
(A)at 367 -368