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[2023] ZAECQBHC 60
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Endtime Christian Association (PE Tabernacle) v Boesak and Others (1530/2022) [2023] ZAECQBHC 60 (3 October 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, GQEBERHA)
CASE
NO: 1530/2022
In
the matter between:
ENDTIME
CHRISTIAN ASSOCIATION
Applicant
(PE
TABERNACLE)
And
NATHAN
BOESAK
First
Respondent
ANDRE
MARAIS
Second
Respondent
DONOVAN
WHITEHEAD
Third
Respondent
ALFRED
BERG
Fourth
Respondent
MONDE
MATCHES
Fifth
Respondent
ISAAC
VAN LOUW
Sixth
Respondent
DIZNEY
VROLICK
Seventh
Respondent
STEPHEN
NICHOLSON
Eighth
Respondent
AARON
PILLAY
Ninth
Respondent
SIMEON
PILLAY
Tenth
Respondent
PAUL
VA ROOYEN
Eleventh
Respondent
JUDE
KLUIT
Twelfth
Respondent
CLAYTON
KLEYNHANS
Thirteenth
Respondent
SANDILE
SELANI
Fourteenth
Respondent
MICHAEL
NICHOLSON
Fifteenth
Respondent
GLENNY
ESAU
Sixteenth
Respondent
MARCHELLE
VAN VOLLENHOVEN
Seventeenth
Respondent
JUDE
PLAATJIES
Eighteenth
Respondent
THE
MEMBERS OF THE
Nineteenth
Respondent
TRUE
BELIEVERS
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED
JUDGMENT
NONCEMBU
J
[1]
The protagonists in this religious warfare are two factions of a
church known as the Endtime Light
Christian Association (PE
Tebarnacle) (the applicant/the church)). The factions are, for
identification purposes, referred to as
‘The True Believers’,
of which the respondents
in casu
are said to be members; and
‘The Concerned Believers’ who represent the applicant in
the matter.
[2]
The applicant is a voluntary association governed by a written
constitution which was adopted
in 1978 and amended in 1980. At the
crux of the current dispute is a church building which is one of the
properties owned by the
applicant and situated at 43 Juniper
Crescent, Sanctor, Gqeberha. The applicant contends that it has been
unlawfully and violently
dispossessed of its peaceful and undisturbed
possession of the church building and its premises by the
respondents.
[3]
In resisting the application the respondents raised
counter-spoliation as a defence as well as a counter-application
where they seek relief which can be described as conciliatory in
nature, where they implore the court to regulate settlement of
the
matter.
[1]
Notably, although a
notice of opposition was filed on behalf of all the respondents, only
the third to the eighteenth respondents
filed answering papers.
FACTUAL BACKGROUND
[4]
The longstanding dispute in the church has been characterised by a
history of litigation which
had as its origin the alleged
mismanagement of the church’s finances by its erstwhile Pastor,
Mr Twynham. Towards the end
of 2012, the dispute culminated in a
split between the members of the church into the two aforementioned
factions. The True Believers
were supportive of the erstwhile Pastor,
Mr Twynham whilst the Concerned Believers held a contrary position.
Mr Twynham has since
passed on and the two factions have each
appointed a new Pastor.
[5]
It is common cause that after the split the True Believers continued
to use the church building for
their services whilst the Concerned
Believers utilised a different venue. They also (The Concerned
believers) opened a separate
bank account in order to receive their
tithes and offerings since they did not have access to the church’s
bank account which
was being utilised by the True Believers.
[6]
Since then a litany of litigation has ensued which went up until the
Constitutional Court. This
and the full history of the matter is
detailed in the applicant’s founding affidavit deposed to by
one Stanford Phillip Boucher
who is one of the office bearers of the
applicant. Given the nature of the relief sought in the current
application, I do not intend
to traverse this in detail in this
judgment as I am of the view that that will only serve to obfuscate
the issues.
[7]
Suffice it to say that two judgments are relevant for purposes of the
current application. One is by
Smith J, where he ordered that the
office bearers of the church were to arrange and conduct a meeting of
the applicant in accordance
with its procedures. Part of the order
was that a general meeting of the members of the applicant was to be
convened wherein
bona
fide
members of the church were to vote on whether or not disciplinary
action was to be instituted against Mr Twynham.
[2]
[8]
The meeting was accordingly held but members of the True Believers
were not in attendance. One
of the resolutions taken at that meeting
was to remove Mr Twynham as Pastor of the church. Mr Twynham has
since passed away.
[9]
The second judgment, confirming the meeting and resolutions taken
therein in terms of the Smith
J’s judgment is one by Ronaasen
AJ.
[3]
In this matter, Ronaasen
AJ held,
inter
alia
that:
“
1.
The respondents shall deliver to the office of the applicant’s
attorneys of record, within three days of the date of this
order all
property belonging to the applicant, which includes but is not
limited to:
1.1
the proceeds of all offerings
received by any of the respondents, in the name of, or on behalf of
the applicant;
1.2
financial documents held on behalf
of the applicant by the respondents;
1.3
all of the applicant’s movable
property in the possession of the respondents;
1.4
all keys and alarm codes to all the
applicant’s premises in possession of, or within the knowledge
of the respondents;
1.5
all bank cards for the applicant’s
bank accounts in the possession of the respondents;
1.6
all the respondent’s bank
books and administrative documents in the possession of the
respondents.
2. The respondents
shall immediately vacate all church buildings belonging to the
applicant, which are occupied by them or under
their control.
3. The respondents are
interdicted and restrained from representing that the church services
they hold fall under the auspices of
the applicant or from conducting
any church services in the name of the applicant.
…
.”
[10]
Following upon a further application to the Gqeberha High Court, the
above judgment was declared to be immediately
executable by Dunywa AJ
in a judgment delivered on 9 March 2022.
[4]
[11]
Armed with the order of Ronaasen AJ, members of the applicant (those
aligned with the Concerned Believers)
[5]
proceeded to the church building with a locksmith on 25 January 2022
where they had the locksmith remove and change the locks to
allow
them access into the building. It appears that some violence erupted
during the process when the alarm was activated in the
church,
resulting in a group of members of the True Believers attending to
the church premises. The situation however, was managed
when the
police were called to intervene.
[12] On
29 January 2022, some 4 days later, around 15h30, a group of people,
including the first to the eighteenth
respondents attended to the
church premises where they forcibly gained entrance without the
applicant’s consent or permission.
A security guard who was
placed at the premises fled fearing for his life as he alleged that
some of the group members were armed.
All the locks were removed and
the respondents were in control of the church building and its
premises.
[13]
It is the latter conduct of the respondents that has led to the
current application being lodged. The applicant
contends that it was
in peaceful and undisturbed possession of the church premises when it
was forcibly dispossessed thereof by
the respondents.
THE
ISSUES
[15]
The issues for determination are quite limited in the matter. They
are –
15.1 whether or not the
applicant has met the requirements for a
mandament van spolie
on a balance of probabilities;
15.2 whether or not it
has made out a case for a final interdict;
15.3 whether or not the
respondents have made out a case for counter-spoliation; and
15.5 whether or not they
have made out a case for the relief they seek in the
counter-application.
THE LEGAL PRINCIPLES
[16]
Mandament
van spolie
is an extraordinary, robust remedy available to a party who has been
wrongfully deprived of his/her possession. It is available
to any
person who has been wrongfully deprived, entirely or in part, of his
or her possession. The object of the remedy is to restore
the status
quo
ante
(possession), and as such it does not concern itself with the rights
of the parties. ‘…anyone illicitly deprived of
property
is entitled to be restored to possession before anything else is
debated or decided (
spoliatus
ante omnia restituendus est
).
Even an unlawful possessor … is entitled to the
mandament's
protection. The principle is that illicit deprivation must be
remedied before the Courts will decide competing claims to the object
or property.’
[6]
The
underlying rationale to the remedy is that no one should resort to
self-help to regain possession.
[17]
The requirements for spoliation are:
17.1 the applicant was in
peaceful and undisturbed possession of the item; and
17.2
was unlawfully and forcefully deprived of such possession without any
due legal process or without any consent.
[7]
Once
the above requirements have been established the court has no
discretion to refuse a spoliation order on considerations relating
to
the merits of the disputes between the parties.
[8]
[18]
On a similar vein, the aspect of whether or not the respondents are
members of the applicant and whether
or not they have a right to
possess the building in question are irrelevant considerations for
purposes of the spoliation application.
It is also on the same basis
that I make no findings in this regard.
[19]
It is trite that spoliation is by its nature a speedy remedy designed
to provide summary relief.
[9]
The notice of motion in this matter was issued on 2 June 2022, some
four months after the dispossession had taken place. The respondents
contend that on this basis alone, the court ought to exercise its
discretion and dismiss the application. Such discretion however,
cannot be exercised in a vacuum. The court can only exercise such
discretion where it has been established that because of the
delay in
bringing the spoliation application, the restoration of the status
quo
will serve no practical purpose or will have no practical value.
[20]
A similar conclusion was reached by Binns Ward AJ (as he then was) in
Barnard v Carl Greaves Brokers where he stated
:
“
An applicant for
relief under the mandament is expected to act expeditiously in
claiming it. The rationale for the remedy is undermined
when, as in
the current case, a lengthy interval
and
altered circumstances have intervened between the offending
dispossessing act and the availment of the remedy
.
Although it has often been held that the scope for the exercise of
judicial discretion to refuse the remedy is extremely limited,
the
cases show that the remedy will not be granted where it would be
impractical or purposeless
.”
[10]
(emphasis
intended)
[21]
According to the authors of
Silberberg
and Schoeman
:
[11]
“
Although the
mandament van spolie is a robust remedy, it does not mean that the
court can exercise no discretion at all when considering
the order.
It merely means that the court has no general or wide discretion. …
It is submitted that the court can exercise
its discretion when
applying the principles of the mandament when [it] has to consider
whether a delay in the application justifies
a refusal of the
order.”
[12]
[22]
It must be emphasised that judicial discretion contemplated here is
not one to refuse to grant the relief
on the basis of the balance of
convenience or prejudice amongst the parties; or to refuse the relief
on the ground of considerations
relating to the merits of the dispute
between them;
[13]
or the like
considerations. Rather, it is a discretion to refuse an application
where, on account of the delay in bringing it,
no relief of any
practical value can be granted at the time of the hearing of such
application in the specific sense that such
relief would (objectively
viewed) not practically advance the underlying rationale that
justifies the existence of this unique
remedy.
[14]
[23]
In the present matter, no evidence was presented to suggest any
altered circumstances that have intervened
since the dispossession
which could result in the relief sought being of no practical value.
In the circumstances therefore, I
am constrained to find that I enjoy
no discretion to refuse the relief sought on the basis of the delay
in bringing the application
alone.
COUNTER
SPOLIATION
[24]
‘The
mandament
van spolie
is
a common law possessory remedy used to restore possession that was
unlawfully lost
[15]
. It is a
robust, speedy remedy
[16]
and
has as its main objective the preservation of public order by
preventing persons from taking the law into their own hands and
is
rooted in the rule of law.
[17]
Self-help by way of taking the law into your own hands is
inconsistent with and undermines the rule of law which is one of the
founding principles of our democracy.
[18]
However, in limited circumstances, a party may take the law into
his/her own hands by using the defence of counter spoliation against
the wrongful disturbance of his/her peaceful and undisturbed
possession. In these circumstances counter spoliation would be a
continuation or part of the
res
gestae
and is
instanter
to the despoiler’s unlawful appropriation of possession.’
[19]
[25]
According to Van der Merwe recovery is
instanter
or immediate:
“…
if it
is still part of the res gestae of the act of spoliation, namely a
mere continuation of the existing breach of the peace.
If the victim
of the first spoliation fails to act instanter and takes the law into
his own hands to regain possession after the
original act of
spoliation has been completed, his conduct is considered to be a new
act of breach of the peace or a separate act
of spoliation entitling
the first spoliator to a spoliation order against him. Counter
spoliation is thus a plea admitting the
spoliation but alleging that
the act was merely to counter the applicant’s prior wrongful
spoliation.”
[26]
It appears thus, that counter spoliation is based on the fact that a
possessor may resist illegal attempts
to deprive him or her of
possession. In the result, a person acting under counter spoliation
who is deprived or threatened with
deprivation of possession, may
exercise self-help in order to regain possession if this is done
immediately or as it is stated
on authorities,
instanter.
The
requirement is that it must be done immediately.
[27]
It is thus an established principle that counter spoliation is not a
stand-alone remedy or defence and does
not exist independently of the
mandament
van spolie
.
[20]
[28]
It is not in dispute that the respondents did not follow any legal
process nor did they have the consent
of the applicant in
dispossessing it of the church building and its premises. All that
the respondents deny is that they used threats
of violence or were
armed when the security officer who was guarding the premises fled
from the premises. Violence or fraud however,
is not an essential
element of dispossession, provided the act is done against the
consent of the person dispossessed illicitly
(by which is meant in a
manner which the law will not countenance). It cannot be gainsaid
that the applicant was dispossessed of
the church premises without
consent in an illicit manner, hence the only valid defence in law
that the respondents could raise
is that of counter spoliation.
[29]
Whilst I accept that the applicant has legal rights over the church
premises in terms of the court order
granted by Ronaasen AJ, it
cannot be gainsaid that the manner in which its members /office
bearers took possession of the property
from the respondents cannot
be countenanced in law. It is only the sheriff who is authorised to
execute court orders. The applicant’s
representatives elected
not to follow the legal process of execution and resorted to
self-help when they came and changed the locks
from the premises.
Such conduct amounts to a breach of the peace and an act of
spoliation entitling the dispossessed party to counter
spoliation.
[30]
The question however, is whether or not the repossession of the
church premises by the respondents was done
instanter
.
The respondents in the matter placed reliance on
Ness
and Another v Greef
[21]
where
counter spoliation had taken place almost 11 days after the initial
act of spoliation.
[31]
Whether or not the conduct of a respondent was a lawful counter
spoliation is an issue which must be determined
on the facts of each
individual case. On the facts of the present matter, the counter
spoliation by the respondents took place
four days after the initial
act of spoliation by the applicant. The applicant had by then changed
the locks to the church premises
and even removed some of the
furniture inside. In my view, the initial act of spoliation had been
completed by then. I do not see
therefore how it can be said that the
spoliation by the respondents was part of the
res gestae
of
the initial spoliation.
[32]
The initial act of spoliation had been completed when the respondents
despoiled the applicant. Their conduct
therefore amounted to a new
breach of the peace and a new act of spoliation, as such it cannot be
said to constitute lawful counter
spoliation. They should have
followed the legal process in order to regain possession. Having
failed to do so, the remedy/defence
of counter spoliation therefore
cannot avail them.
THE
INTERDICTORY RELIEF SOUGHT
[33]
The requirements for a final interdict are trite. They are
[22]
:
33.1 a clear right;
33.2 an injury actually
committed or reasonably apprehended; and
33.3 the absence of an
adequate alternative remedy.
[34]
By virtue of the court order by Ronaasen JA which was declared
immediately enforceable I am satisfied that
the applicant has
established a clear right for the final relief it seeks.
[35]
Given the level of intimidation that was displayed when the
respondents retook possession of the church premises
from the
applicant’s control, and the history of violent threats between
the two factions, I am satisfied that the second
requirement of a
reasonable apprehension of injury has been met.
[36] In
the premise, I cannot find that an alternative satisfactory remedy is
available to the applicant other
than the interdict it seeks.
Therefore, the application for the final relief sought must succeed.
THE COUNTER-CLAIM
[37]
I cannot find any legal basis upon which the relief sought by the
respondents in their counterclaim is premised.
As stated elsewhere in
this judgment, it seems to me that the respondents seek some sort of
reconciliatory remedy that is to be
regulated by this court. That in
my view, similar to Smith J’s finding in his judgment referred
to above, would be tantamount
to this court interfering in the
applicant’s internal affairs and in violation to the doctrine
of entanglement.
[23]
Any form
of mediation or reconciliation that is contemplated is something that
the affected parties themselves would need to engage
in.
COSTS
[38]
The only issue remaining is that of costs. The applicant is seeking a
punitive cost order in the form of
attorney and own client scale
against the respondents. The reasons advanced for such an order are
that the events set out in their
papers or rather the conduct of the
respondents constitute a material break down of the rule of law and a
deep down contemptuousness
towards the court.
[39]
Costs are a matter for the discretion of the court and the general
rule is that costs follow the result.
Indeed, the conduct of the
respondents in taking the law into their own hands smacks of
contemptuousness and poses a serious threat
to the rule of law. It is
for that same reason that spoliation is available to the applicant as
a remedy in the circumstances.
[40]
One however, must be careful not to lose sight of the fact that the
respondents’ conduct was in reaction
to the conduct of the
applicant which, despite having a court order, decided not to follow
the legal processes and resorted to
self- help in executing same.
Such conduct is no less contemptuous than that of the respondents. As
I have found above, two separate
acts of spoliation were committed by
the parties, with the only difference being that counter spoliation
could not avail the respondents
as a defence on the facts of the
matter. In my view therefore, a punitive cost order is not warranted
under the circumstances.
[41]
I do take into account however, that the applicant was substantially
successful in its application, for that
reason therefore, there is no
reason why it should not be awarded costs. However, given the role
that it played and its level of
culpability in the matter, and to
reflect the court’s censure of thereof, I deem it appropriate
that it be awarded 50% of
the costs occasioned by the
application.
[24]
ORDER
[42] In
the premise, the following order shall issue:
(a)
The respondents are to immediately restore to the applicant’s
possession
, control and use, the church and
premises situated at 43 Jupiter Crescent, Sanctor, Gqeberha.
(b)
The respondents are hereby interdicted and restrained from coming
within 100 metres of the church and
premises situated at 43 Juniper
Crescent, Sanctor, Gqeberha.
(c)
The respondents are hereby interdicted and restrained from holding
forth that they represent the
applicant or holding forth that any
meeting they arrange is for or on behalf of the applicant.
(d)
The respondents are to pay the applicant 50% of the costs of the
application jointly and severally,
the one paying, the others to be
absolved.
(e)
The respondents’ counter-application is dismissed.
V P NONCEMBU
JUDGE
OF THE HIGH COURT
APPEARANCES
Counsel
for the applicant
:
R
Crompton
Instructed
by
: D
Malgas & Associates
C/O
Boqwana Burns
Gqeberha
Counsel
for the 3
rd
to the18
th
respondents
: L
Gagiano
Instructed
by
: D
Gouws Inc. t/a Gouws
Attorneys
Gqeberha
Date
of hearing
: 20
April 2023
Date
judgment delivered
: 3
October 2023
[1]
See
para 15.1 to 15.5 of the answering affidavit (AA).
[2]
The
judgment was handed down on 9 February 2016 under case no. 2931/2012
in the Gqeberha High Court.
[3]
Gqeberha
High Court case no. 3606/2016, delivered on 20 October 2020.
[4]
The application was in terms of section 18 of the Superior Court’s
Act, (10 of 2013).
[5]
I
say this because the respondents in their papers also claim to be
members of the applicant, that of course is not an issue for
determination before this court.
[6]
Tswelopele
Non-Profit Organisation and Others v City of Tshwane Metropolitan
Municipality and
Others 2007 (6) SA 511 (SCA).
[7]
Van
Rhyn and Others NNO v Fleurbaix Farm (PTY) Ltd
2013 (5) SA 521
(WCC).
[8]
Malan v
Green Valley Farm Portion 7 Holthill 434 CC
2007 (5) SA 114 (ECD).
[9]
See
Minister
of Agriculture and Agricultural Development and Others v Segopola
1992(3) SA 697 (T) at 971 J - 972 A; also
Burger
v Van Rooyen and Another
1961 (1) SA 159
(O) at 161 F - G.
[10]
Barnard
v Carl Greaves Brokers (Pty) Ltd
[2007] ZAWCHC 2
;
2008 (3) SA 663
(C) paras 59 to 62. See also
Beetge
v Drenka Investments (Isando) (Pty) Ltd
1964
(4) SA 62
(W) at 66G – 67A.
[11]
As referred to in
Maistry
v Naidoo and Another
(2020/36040) [2022] ZAGPJHC 937 (25 November 2022).
[12]
Muller
et
al.
(above) at 331.
[13]
Malan v
Green Valley Farm Portion 7 Holt Hill 434 CC
2007 (5) SA 114
(E) para 25.
[14]
See
Maistry
v Naidoo and Another supra.
[15]
Eskom
Holdings SOC Ltd v Masinda
2019
(5) SA 386 (SCA).
[16]
Blendrite
(Pty) Ltd and Another v Moonisami and Another
2021
(5) SA 61 (SCA).
[17]
Bisschoff
and Others v Welbeplan Boerdery (Pty) Ltd
2021
(5) SA 54
(SCA); Voet 41.2.16.; See also
The
Selective Voet
,
being the Commentary on the Pandects, translated by Percival Gane,
Butterworths Paris Edition, Book 6 Section 7(d) 442, 485-488
and 499
(referred to in
South
African Human Rights Commission and Others v City of Cape Town and
Others
[2022]
4 All SA 475
(WCC);
2022 (6) SA 508
(WCC).
[18]
Bon
Quelle (Edms) Bpk v Munisipaliteit van Otavi
1989
(1) SA 508
(A)
;
Section
1(c)
of the
Constitution
which reads that:
‘
The
Republic of South Africa is one, sovereign, democratic state founded
on the following values:
.
. .
(c)
Supremacy of the constitution and the rule of law.’
[19]
Yeko
v Qana
1973
(4) SA 735
(A), referred to with authority in
South
African Human Rights Commission and Others v City of Cape Town and
Others
[2022] 4 All SA 475 (WCC); 2022 (6) SA 508 (WCC).
[20]
Ngqukumba
v Minister of Safety and Security and Others
2014
(5) SA 112
(CC).
[21]
1985
(4) SA 641
(C) at 647 D – G.
[22]
See
Setlogelo
v Setlogelo
1914 AD 221
at 227.
[23]
See
De
Lange v Presiding Bishop of the Methodist Church of South Africa for
the Time Being
[2016] JOL 34752 (CC).
[24]
Huge
Networks (Pty) Ltd v Telemax
(Pty) Ltd (A56/21; 89823/19) [2022] ZAGPPHC 300 (6 May 2022).