Brief Summary

Church Law — Governance — Constitutionality of church structures — Application by the Governing Body of the Apostolic Faith Mission Ngwelezane Assembly to declare the Interim Committee formed by the first to eighth respondents unconstitutional and to dissolve it — The Interim Committee had expelled Pastor M E Phangwa and terminated his services based solely on age — Legal issue of whether the actions of the Interim Committee were valid under the church's constitution — Court held that the Interim Committee was unconstitutional, declared its resolutions invalid, confirmed Pastor Phangwa as the recognized pastor, and affirmed the Governing Body's authority over church affairs.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter concerned an application in the KwaZulu-Natal High Court, Local Division, Durban, in which the governing body of a local church assembly sought judicial intervention regarding an internal governance dispute within the Apostolic Faith Mission of South Africa (AFMSA) at its Ngwelezane local assembly.

The applicant was the Governing Body: Apostolic Faith Mission Ngwelezane Assembly. The first to eighth respondents were individuals who collectively constituted a self-styled structure referred to as the “Interim Committee”. Additional respondents included the Regional Leadership Forum and First National Bank, Empangeni, in relation to control and operation of the local assembly’s bank accounts. Pastor M E Phangwa featured centrally in the dispute as the pastor whose expulsion, termination, and eviction were purportedly effected through the Interim Committee’s actions.

The application was launched on 1 August 2018, but was only argued on 27 July 2023, with judgment delivered on 10 August 2023. The court noted the extended delay in bringing the matter to final argument, and recorded that the delay was not satisfactorily explained, although it also emerged that the court file had at some stage been mislaid and a duplicate file had to be reconstructed. The respondents did not pursue a case based on superannuation or prejudice arising from the delay.

The general subject-matter of the dispute was church governance within a voluntary association, specifically whether the Interim Committee had any lawful status or authority under the AFMSA constitution, and whether its purported decisions affecting the pastor, the governing body, and the local assembly’s assets (including bank accounts) had legal validity. A related theme was the proper role and binding effect of internal church dispute-resolution processes and outcomes, including a report issued by the Regional Leadership Forum.

2. Material Facts

It was common cause that the AFMSA has a formal constitution, which regulates the governance of local assemblies, the role and authority of governing bodies, the appointment and disciplining of pastors, and internal grievance procedures. The court treated this constitution as pivotal, and proceeded from the premise (supported by authority cited in the judgment) that the constitution of a voluntary association constitutes the contractual framework binding members and defining the scope of powers of its organs.

The applicant was the governing body of the Ngwelezane local assembly, a structure contemplated by the constitution. The constitution described the pastor of a local assembly as the leader and a member of the governing body. During 2017, the pastor was Pastor M E Phangwa.

The sequence of events relied upon by the court began on 8 January 2017, when Pastor Phangwa was expelled from the Ngwelezane local assembly, allegedly at the instance of the first respondent and others. On the following day, Pastor Phangwa reported the matter to the Regional Leadership Forum, a constitutionally recognised body intended, among other functions, to facilitate conflict resolution within the region.

In February and March 2017, the Regional Leadership Forum established an ad hoc committee and attempted to investigate and mediate the dispute by meeting with Pastor Phangwa and the governing body. A scheduled meeting with the first respondent did not take place after the first respondent pursued a protection order against Pastor Phangwa in the magistrates’ court, and the first respondent later declined to meet with the Regional Leadership Forum.

During or about March 2017, the first to eighth respondents formed the Interim Committee. The court accepted that this body thereafter positioned itself as the de facto authority within the local assembly and purported to exercise functions typically reserved to the governing body, even though it did not formally claim to be the governing body.

On 20 March 2017, a letter was addressed to Pastor Phangwa by fourteen members (including the first to eighth respondents), requesting that he cease offering services and vacate the mission house within 21 days, and calling for the return of church property and bank signatures. On 6 April 2017, a further letter stated that the church had resolved to terminate Pastor Phangwa’s services and demanded that he vacate the premises and resign as a bank signatory.

On 11 April 2017, the second respondent obtained an ex parte order restraining Pastor Phangwa and others from accessing or operating certain church bank accounts. That order was anticipated and ultimately discharged on 26 April 2017, and replaced by an order dated 27 April 2017 which, among other things, restrained certain persons from operating one account, permitted limited operation of another account for expenses up to a monthly limit, and directed the Regional Leadership Forum to intervene and mediate the dispute in terms of the constitution. The order also provided that, if the dispute was not resolved by the end of June 2017, affected parties could return to court on the same papers, duly supplemented.

The Regional Leadership Forum’s mediation efforts failed amid conduct described in the judgment as obstruction by members of the Interim Committee, including refusing access to the church premises for meetings and declining to unlock gates. On 21 October 2017, the Regional Leadership Forum issued a written report. The court recorded that the report concluded, in summary, that Pastor Phangwa was the true pastor, that unconstitutional committees were to be invalidated, that the governing body and Pastor Phangwa were authorised to operate bank accounts, that complaints had to be pursued through the constitution’s grievance procedures, and that disciplinary steps could be taken against transgressing members.

A key undisputed fact was that Pastor Phangwa had reached the age of 65, described as the normal retirement age under the constitution. The applicant asserted that Pastor Phangwa had been reappointed annually on fixed-term contracts after reaching that age. The court was informed from the bar that a fixed-term appointment was due to expire on 31 July 2023, shortly after the hearing, but that a further renewal had not yet been effected at the time of argument. The court treated this as relevant to the framing of its order.

The court accepted, based on the answering affidavit, that the Interim Committee acknowledged receiving the Regional Leadership Forum report and decided not to challenge or appeal against it, while later criticising it as vague and asserting that Pastor Phangwa had effectively left the church and founded a breakaway congregation. The court rejected, on the material before it, the contention that Pastor Phangwa had abandoned the church voluntarily.

3. Legal Issues

The central legal questions the court was required to determine were whether the Interim Committee had any lawful status under the AFMSA constitution and, if not, whether it had any authority to take decisions ordinarily reserved for constitutionally recognised church structures, including the governing body and disciplinary committees.

Flowing from this, the court had to determine whether the Interim Committee’s purported decisions and actions—specifically the expulsion of Pastor Phangwa, the termination of his services, and his eviction from the mission house—were valid and legally effective within the framework of a voluntary association governed by its constitution.

A further question was whether the governing body was the sole recognised authority entitled to govern the local assembly’s affairs, including the operation of its bank accounts, and whether the first to eighth respondents should be interdicted from operating any accounts pertaining to the local assembly. This included whether aspects of the existing court order of 27 April 2017 should be discharged.

The dispute was primarily concerned with the application of law to largely common-cause facts, particularly the application of principles governing voluntary associations and contractual interpretation of constitutions to the factual existence and conduct of the Interim Committee. It also involved an evaluative assessment of the respondents’ contentions concerning the alleged abandonment of the church by the pastor and the asserted effect of his reaching retirement age.

4. Court’s Reasoning

The court approached the matter on the footing that the AFMSA is a voluntary association whose constitution constitutes the binding agreement between its members and functions as its internal statute. It applied the principle that the powers and functions of organs of a voluntary association are derived from and limited by the association’s constitution, and that the scope of those powers is determined primarily by the written constitution.

A pivotal aspect of the court’s reasoning was the respondents’ concession during argument that the constitution did not permit bodies such as the Interim Committee to exist, and that the constitutional clause relied upon (dealing with committees appointed by the National Leadership Forum) did not apply because the Interim Committee was self-created and not appointed by any constitutionally authorised body. The court regarded this concession as properly made and consistent with the constitutional framework.

The court reasoned that, once it was accepted that the Interim Committee lacked constitutional legitimacy, it necessarily followed that it had no authority to exercise the powers that it purported to assume, including governance powers and disciplinary powers. The constitution, on the court’s reading, allocated governance of each local assembly to a governing body, and while the governing body could delegate powers to members of the governing body, it was common cause that no delegation to the Interim Committee had occurred.

In dealing with interpretive issues, the court reaffirmed that a constitution of a voluntary association must be interpreted in accordance with ordinary rules of contractual construction, giving effect to the ordinary meaning of the language in context and preferring sensible meanings. However, the court concluded that no complex interpretive exercise was required because the constitution’s meaning was plain on the relevant issues.

On the disciplining and suspension of pastors, the court relied on the constitution’s detailed internal justice provisions, including the requirement of an Investigating Committee and the limited circumstances under which suspension may occur. It found that no such committee had been established and that there was no suggestion that Pastor Phangwa had committed a serious offence or posed risks contemplated by the suspension provisions. The court treated the Interim Committee’s stated basis for action—Pastor Phangwa having reached age 65—as insufficient, observing that it could not constitute misconduct and that the constitution itself provided mechanisms for utilising retired pastors on fixed-term contracts.

On the retirement-age argument, the court noted the constitution’s express provision that normal retirement occurs at 65 but that local assemblies may utilise the services of retired pastors on fixed-term contracts, subject to consideration at a duly convened governing body meeting in the presence of the Regional leader. The court found nothing inherently invalid in the applicant’s assertion that Pastor Phangwa had been reappointed beyond retirement age, and it did not accept that reaching 65 rendered him incapable of performing pastoral duties.

The court also considered the status and effect of the Regional Leadership Forum report. It relied on the principle that decisions made by authorised bodies remain binding unless set aside, invoking the rule-of-law proposition that it is not open to persons to disregard binding decisions simply because they disagree with them, and that the proper course is to challenge them through appropriate channels. The court found that the Interim Committee’s attempt to characterise the report as vague was unfounded, holding that the report’s reference to “unconstitutional structures” plainly encompassed the Interim Committee, given its lack of constitutional authorisation.

In evaluating the respondents’ contention that Pastor Phangwa had abandoned the church voluntarily, the court rejected that narrative as inconsistent with the objective chronology and the conduct recorded on the papers. It relied on the fact that Pastor Phangwa reported the expulsion immediately, that the suspension and termination letters did not describe his departure as voluntary abandonment, and that it would have been unlikely for the Regional Leadership Forum to have pursued mediation if the pastor had simply left by choice.

The court further assessed the respondents’ shifting stance toward the Regional Leadership Forum and Pastor Phangwa. It viewed the later rejection of the report—after the Regional Leadership Forum filed an affidavit supporting the applicant—as opportunistic, reasoning that the Forum’s later confirmation under oath of its earlier findings could not logically render the original report unacceptable.

As to the specific prayers in the notice of motion, the court declined to grant relief corresponding to one paragraph that was described as unintelligible, and it also declined to make an order confirming that the governing body was properly elected in October 2016 due to insufficient information. It nonetheless granted the balance of the core relief directed at the status of the Interim Committee, the invalidity of its decisions, governance authority, banking control, and the appropriate internal grievance procedure.

5. Outcome and Relief

The court granted a rule nisi calling upon the respondents to show cause on 21 September 2023 why an order should not be made declaring the Interim Committee an unconstitutional church structure and dissolving it with immediate effect, declaring specified resolutions invalid and of no force and effect, confirming the pastor (or any other pastor appointed by the governing body) as the only properly recognised pastor, confirming the applicant governing body as the only governing structure vested with authority to manage the affairs of the local assembly (including operating specified First National Bank accounts and running a postal office on behalf of the assembly), and interdicting the first to eighth respondents from operating any bank accounts pertaining to the local assembly.

The court also confirmed that paragraph 3 of the court order dated 27 April 2017 be discharged, and confirmed that the internal grievance procedure in the church constitution was the proper and lawful remedy available to aggrieved members regarding complaints about the appointment of a pastor.

The first to eighth respondents were ordered to pay the costs of the application jointly and severally, the one paying the other to be absolved.

Cases Cited

Turner v Jockey Club of South Africa 1974 (3) SA 633 (A) at 645B-C.

Natal Rugby Union v Gould [1998] ZASCA 62; 1999 (1) SA 432 (SCA) at 440F-G.

Molala v Minister of Law and Order and another 1993 (1) SA 673 (W) at 677.

Cape United Sick Fund Society and others v Forrest and others 1956 (4) SA 519 (A).

Economic Freedom Fighters v Speaker, National Assembly and others [2016] ZACC 11; 2016 (3) SA 580 (CC) para 75.

Wilken v Brebner and others 1935 AD 175 at 187.

Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA) para 18.

National African Federated Chamber of Commerce and Industry and others v Mkhize and others [2014] ZASCA 177; [2015] 1 All SA 393 (SCA) para 21.

Ragavan and others v Optimum Coal Terminal (Pty) Ltd (in business rescue) and others [2023] ZASCA 34; 2023 (4) SA 78 (SCA) para 29.

Legislation Cited

No legislation was cited in the judgment.

Rules of Court Cited

No specific rules of court were cited in the judgment.

Held

The court held that the Interim Committee was not a structure authorised by the AFMSA constitution and therefore lacked legitimacy and authority to exercise governance or disciplinary powers within the Ngwelezane local assembly. It held further that, because the Interim Committee lacked constitutional status and had not been delegated power by the governing body, its purported resolutions expelling Pastor Phangwa, terminating his services, and evicting him from the mission house could not stand.

The court held that the governing body of the Ngwelezane local assembly was the structure vested with authority under the constitution to govern and manage the assembly’s affairs, including control of the specified banking accounts. It also held that the internal grievance procedure provided for in the constitution was the proper remedy for aggrieved members in relation to complaints about the appointment of a pastor.

The court refused to grant relief based on a prayer it found unintelligible, and refused to confirm that the governing body was properly elected in October 2016 due to insufficient information. It nevertheless granted the principal relief through a rule nisi, together with a costs order against the first to eighth respondents.

LEGAL PRINCIPLES

The judgment applied the principle that the constitution of a voluntary association, together with rules and regulations adopted under it, constitutes the binding agreement among members and functions as the association’s internal statute, defining the powers and functions of its organs.

It applied the principle that the authority of internal structures within a voluntary association must be derived from the constitution, and that self-created bodies lacking constitutional authorisation have no inherent entitlement to exist or exercise powers reserved to constitutionally recognised organs.

The court applied established contractual interpretation principles to the association’s constitution, including that interpretation is objective, context-based, and aims to give effect to ordinary language while preferring sensible meanings over insensible or unbusinesslike outcomes, although it found the relevant provisions to be clear enough that extensive interpretation was unnecessary.

The court applied the rule-of-law principle that decisions made by bodies clothed with authority remain binding unless properly challenged and set aside, and cannot be disregarded simply because affected parties disagree with them.

Governing Body: Apostolic Faith Mission Ngwelezane Assembly v Ndlovu and Others (4025/2017) [2023] ZAKZDHC 53 (10 August 2023)