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[2022] ZAKZPHC 39
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Dlomo and Another v African Gospel Church and Others (4373/2019P) [2022] ZAKZPHC 39 (23 August 2022)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL LOCAL
DIVISION, PIETERMARITZBURG
CASE NO: 4373/2019P
In the matter between:
REVEREND MAQHINGA
EPHRAIM DLOMO FIRST
APPLICANT
REVEREND ISAAC
SAKHEPHI NDABA SECOND
APPLICANT
and
AFRICAN GOSPEL
CHURCH FIRST
RESPONDENT
REVEREND ALPHA
MBILI SECOND
RESPONDENT
REVEREND NHLANHLA
MHLONGO THIRD
RESPONDENT
REVEREND WISEMAN
NGCOBO FOURTH
RESPONDENT
REVEREND B J
BURTHELEZI FIFTH
RESPONDENT
JUDGMENT
BEZUIDENHOUT J:
[1]
On 26 June 2019 Applicants brought an urgent application seeking
certain relief against
Second to Fifth Respondents. No relief
was sought against First Respondent. In the interim First
Applicant has died
and the Reverend Gigaba of First Respondent has
also died. Second, Third, Fourth and Fifth Respondents filed a
notice abiding
the decision of the Court. Thereafter a notice
was filed on behalf of Third and Fourth Respondent opposing the
application.
Except for the attorneys of Second Appellant and
First Respondent the attorneys of the other parties had withdrawn.
When
this matter was heard only Second Appellant and First Respondent
appeared in respect of the application to rescind the order that
had
previously been granted, and the counter application.
[2]
The relief sought by First Respondent is that the consent order dated
12 November
2019 be rescinded. The affidavit in support of the
application for rescission was deposed to by Reverend Gigaba before
his
demise. The application is brought in terms of Rule
42(1)(a) on the grounds that the order was erroneously sought or
erroneously
granted in the absence of First Respondent who was
affected by the order.
[3]
On 28 June 2019 a rule
nisi
was issued returnable on 26 August
2019. The Rule
nisi
provided for an interim interdict in
respect of the election of office bearers and the delivery of
supplementary affidavits.
On 12 November 2019 an order was
taken by consent between Applicants and Third Respondent adjourning
the application
sine die
and the Rule extended until confirmed
or discharged and Applicant and Second to Fifth Respondents were
directed to attend an annual
conference in terms of First Respondents
constitution which had to be held within four months of the order and
such to be convened
by a person to be appointed by The Chairperson of
the KwaZulu-Natal Society of Advocates and costs were reserved.
[4]
It is submitted by First Respondent that none of these notices of
application and
notices of set down were served on First Respondent.
Its main contention is therefore that it did not receive notice of
the
said application and the order taken by consent and accordingly
on that basis that the order should be rescinded.
[5]
A consideration of the original application thereafter referred to as
the main application
was brought on 26 June 2019 as Annexure “MD2”
the constitution of First Respondent which on the front page states:
“
The
Headquarters of the African Gospel Church shall be in the Magistrate
District of Durban in the Province of Natal, South Africa
P. O box 3 –
Lamontville, Durban”
[6]
Notice to oppose the main application was filed by Third Respondent
26 June 2019 and
an answering affidavit was also filed. The
notice of set down of the application on the opposed roll appears at
pages 150
to 152 of the bundle of documents. It set the matter
down on the opposed roll on 12 November 2019 but there is no
indication
of any service thereof on First Respondent. There is
also no indication in that bundle relating to the order that was
granted
by consent on 12 November 2019 after the initial order was
granted on 26 June 2019 that there was any service on First
Respondent.
[7]
It is therefore submitted on behalf of First Respondent that it was
not aware of the
proceedings of June 2019 and on 12 November 2019,
that it was not drawn to the courts attention that there was no
service upon
them and accordingly they were not represented at the
hearing and that the order of 12 November 2019 could therefore not
have been
granted by consent.
[8]
In the founding papers of the main application First Respondent is
described as an
association of persons with its headquarters at
[....] N[....] Road U[....], KwaZulu-Natal. It further sets out
that it is
joined as it has an interest in the proceedings but no
relief is claimed against it.
[9]
In the founding affidavit of the rescission application it is
contended that there
is no proof that there was service of the Rule
nisi
on First Respondent nor of the notice of set down for 12
November 2019 when the order was taken by consent between Applicants
and
Third Respondent. It is contended that First Respondent was
indeed affected by the order which was granted and that it was
well
known to all the parties that the headquarters of the African Gospel
Church had moved to 339 Martin Street, Cedarville.
On page 274
of the rescission application papers as annexure “AA2” is
a return of service of 26 June 2019 that was
served at 17 hours 45
upon Thamsanqa Luthuli a Pastor at [....] M[....] Road, Lamontville
which it indicates is the principal place
of business of the African
Gospel Church in the courts jurisdiction.
[10]
It was submitted on behalf of First Respondent that the order of 12
November 2019 was granted
erroneously as it was granted in its
absence and without the knowledge of First Respondent.
[11]
It was further submitted that the service was not at the address in
the constitution and it was
also not at the address as set out in the
founding affidavit. The consent order could therefore not have
been made as First
Respondent had no knowledge of the matter on both
occasions. There was accordingly no proper service. It
was further
submitted that the counter application had to be
dismissed with no order as to costs and the application in terms of
Rule 7(1)
to be dismissed with costs.
[12]
It was submitted on behalf of Second appellant that the term of
office of the founder Reverend
Gigaba expired in 2013. It
therefore contended, that he had no authority to depose to the
affidavit in the main application.
It is conceded that First
Respondent was absent when the order was granted. The
Cedarville address is not in the constitution
and was never changed
to that address, accordingly there was no need to serve at that
address. First Respondent, at present,
does not have a
moderator as Reverend Gigaba had passed away. It was necessary
that the elections proceed.
[13]
It is in the replying affidavit, once again, contended that the
address in the affidavit is N[....]
Road where the constitution says
the headquarters is in Durban. Further that there is no return
of service indicating that
there was any service of the set down or
of the application on First Respondent as is apparent from the notice
of set down appearing
at pages 150 to 152 of the main application.
It was submitted that taking into consideration all the factors that
it indeed
indicates that First Respondent did not have notice.
[14]
A notice in terms of Rule 7(1) was served on First Respondent by
Third and Fourth Respondents
whose attorneys had withdrawn.
They were not represented at this hearing and it was submitted that
there was no list between
First Respondent and Third and Fourth
Respondents and therefore they had no legitimate interest in the
representation of First
Respondent in the proceedings. The
notice in terms of Rule 7(1) was far out of time and there was no
good cause shown why
this was so. Accordingly the application
had to be brought to have the said notice set aside. The legal
representative
of Second Appellant did not address the court in this
regard and rightly so as it did not concern his client.
[15]
Applicant sought condonation for the late filing of its heads of
argument and this was not opposed
and such condonation was
accordingly granted. First Respondent sought condonation for
the late furnishing of its rescission
application which was also not
opposed and such condonation was granted.
[16]
From a perusal of all the documents as set out above the service of
the main application was
not at the correct address of First
Respondent. From the documentation it is not clear what the
exact address should be besides
that it should be in Durban in terms
of the constitution. Therefore there is no indication that the
main application was
served on First Respondent. There is
also as set out above no indication that the notice of set down of
the matter
on 12 November 2019 was served on First Respondent.
The order granted on 12 November 2019 was by consent between
Applicant
and the Third Respondent who were the only parties present
at court at the time. It would have been a different situation
if First Respondent was indeed notified or had been served with the
necessary documents and date and did not appear in court but
as
already set out there is no indication that First Respondent was
aware or had been served with the necessary papers and notices.
[17]
There is in the papers a counter application to amend the notice of
motion if the order of 12
November 2019 is rescinded. There was
no address on behalf of Applicant on this issue nor was it dealt with
in their heads
of argument. This was thus not pursued.
This also appears to me to be a matter which can be dealt with later
after
proper service to all the parties which was not done.
[18]
As the address of First Respondent may become an issue, although it
was not served at the correct
address due to the conflictive
addresses the court hearing the main application would be in a better
position to deal with the
issue of costs in this regard.
Accordingly the following
order is made:
1.
The notice in terms of Rule 7(1), filed by
Third and Fourth Respondents is set aside as an irregular proceeding
with Third and Fourth
Respondents to pay the costs of the
application, jointly and severally the one paying the other to be
absolved.
2.
The consent order made on 12 November 2019
is rescinded.
3.
First Respondent is granted leave to oppose
the main application and is to deliver an answering affidavit within
fifteen (15) days
of this order.
4.
The costs of the application for rescission
is reserved for determination by the court hearing the main
application.
5.
The conditional counter application by
Second Applicant in the rescission application is dismissed.
BEZUIDENHOUT J.
JUDGMENT RESERVED
ON: 1
AUGUST 2022
JUDGMENT HANDED DOWN
ON: 23
AUGUST 2022
COUNSEL FOR
APPLICANTS: M
A MATLAMELA
Instructed
by: M
M S Attorneys
Durban
Tel:
031 201 0588
Cell:
073 247 3226
c/o:
S N Nxumalo Attorneys Inc.
Pietermaritzburg
Collin
Msizi Mnguni Inc.
Ref:
C Mnguni/01D050005
COUNSEL FOR
RESPONDENTS: R
A SUHR
Instructed
by: Preston-Whyte
& Associates
Durban
Tel:
031 564 6091
Ref:
Mr. C Preston-Whyte/A131-35
Ref:
CPW/SN/A 135-35
c/o:
Mason Incorporated
Pietermaritzburg
Mosery
and Associates
Strauss
Daly Inc.
Ref:
A K Khoza/CB
Umhlanga
c/o:
Diedricks Attorneys