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[2022] ZAKZPHC 62
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Fountain Impactors Church v Here is Life Ministries and Another (15/2021P) [2022] ZAKZPHC 62 (24 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 15/2021P
In
the matter between:
FOUNTAIN
IMPACTORS CHURCH
APPLICANT
and
HERE
IS LIFE MINISTRIES FIRST
RESPONDENT
MSUNDUZI
MUNICIPALITY SECOND
RESPONDENT
ORDER
The
following order is granted:
1.
The
application is dismissed with costs.
JUDGMENT
MOSSOP
J
:
‘
Discord
and division become no Christian. For wolves to worry the lambs is no
wonder, but for one lamb to worry another, this is
unnatural and
monstrous.’
[1]
[1]
The
applicant and the first respondent both style themselves as churches.
The second respondent is the municipality in which the
first
respondent has a place of worship.
[2]
The deponent to the applicant’s founding affidavit, the
presciently named Mr Mzwandile Mpendulo Goodlord Ntshele (Mr
Ntshele),
was previously employed by the first respondent as a
pastor.
[3]
He resigned his
position with the first respondent on 1 May 2021 and immediately
after so doing, he established the applicant.
A month after doing so,
he launched this application on behalf of the applicant in which a
rule nisi in the following terms is
sought:
‘
1.1
Pending the outcome of an application by the Applicant to the Second
Respondent for acquisition
of rights in and to the land situated at
1200, N1 Street, Edendale BB, Pietermaritzburg, KwaZulu-Natal (“the
property”):
1.1.1
The First
Respondent is interdicted from accessing or using the property or the
building on the property;
1.1.2
The First
Respondent is interdicted from preventing the Applicant’s
members from gaining access to the property and the building;
1.1.3
The First
Respondent and its members are interdicted from harassing,
intimidating, threatening or otherwise interfering with the
Applicant
and its members at the property;
1.1.4
The Applicant
shall have the exclusive right to make use of the property;
1.1.5
The Applicant
shall pay on a monthly basis and on or before the due date, all costs
in respect of services to the property to the
Second Respondent;
1.1.6
The First
Respondent is directed to pay the costs of the application; and
1.1.7
Further and/or
alternative relief.
2.
Pending
finalisation of this application, paragraphs 1.1.1 to 1.1.6 shall
operate as interim orders with immediate effect.’
[2]
The order
sought identifies the central issue in this matter as certain land
and a church building (the church) that has been constructed
on it.
As is stated in the rule nisi referred to above, the land is situated
at 1200, N1 Street, Edendale BB, Pietermaritzburg,
KwaZulu-Natal (the
property). It is common cause that the first respondent currently
occupies the property and the church. The
applicant wants to occupy
both to the exclusion of the first respondent. That is what this
application is designed to achieve.
[3]
It
is common cause that the first respondent had humble beginnings. It
was established 15 years ago, and its congregants initially
used to
meet in a tent to conduct religious services and ceremonies.
According to Mr Ntshele, after he joined the first respondent,
he
became the driving force behind the acquisition by the first
respondent of the property from the second respondent
[4]
and the raising of funds for the construction of the church on it. In
doing so, he can only have acted on behalf of the first respondent,
as he was its employee. On his own version, the second respondent
permitted the first respondent to use the property and to construct
the church.
[5]
[4]
Eight days
after he resigned from the first respondent, on Sunday, 9 May 2021,
Mr Ntshele and his congregants went to the property
and sought to
hold a church service of his new church, the applicant, in the first
respondent’s church. Understandably, there
was some
consternation about this, and some resistance, from the members of
the first respondent and Mr Ntshele claims that he
was attacked and
threatened by its members. He does not name those members in the
founding affidavit. He claims that the tumultuous
events of which he
complains were recorded on a video and asserts that he has put up a
memory stick with his papers on which the
video is fixed. He did not
do so, and I have consequently not seen any video.
[5]
Mr Ntshele
states at paragraph 29 of the founding affidavit that:
‘
The
First Respondent has the attitude that it has exclusive rights to the
building and as a result of this, the Applicant and its
members are
left without a building to worship from.’
[6]
Mr Ntshele
goes on to state that the first respondent is incorrect in taking
this view of matters. In this regard, he states the
following:
‘
The
Applicant disagrees with the First Respondent’s [sic] that it
has exclusive rights to the property for the following reasons:
30.1
The First Respondent is not the owner of the land on which the church
building was erected;
30.2
The erection of the building was solely the result of my efforts;
30.3
90% of all the funds that were used for the erection of the building
were contributed by members who are now members
of the Applicant;
30.4
The First Respondent has never been granted any formal rights to the
property;
30.5
I, on behalf of the Applicant has [sic] applied to the Second
Respondent for acquisition of rights to property. I attach
hereto,
marked annexure “
MGN 3
” a copy of the application
which was submitted to the Second Respondent; and
30.6
The local ward counsellor, T. W. Sithole, issued a permit to occupy
to the Applicant on 10 May 2021. A copy of the same
is attached
hereto marked annexure “
MGN 4
”. This is the only
formal document granting any rights to any party which is in
existence.’
[7]
The two
extracts referred to above are the high-water mark of the applicant’s
case. Based on those allegations, it wants the
first respondent to
surrender its rights to occupy the property and the church to it.
There is no question of the church being
shared: the applicant
requires the first respondent to vacate the property and the church.
The applicant is, thereafter, to have
exclusive rights to the church.
What should become of the first respondent and its members thereafter
is never addressed by Mr.
Ntshele. The veracity of each of the
allegations made by Mr Ntshele must be examined to determine whether
there is any merit in
what he claims.
[8]
It seems to
me, the position is not that because of the first respondent’s
attitude, the applicant has been ‘left without
a building to
worship from’, as stated by Mr Ntshele: the applicant has never
had a building. The applicant was brought into
existence fourteen
years after the first respondent was established. It was also brought
into existence after the first respondent
had secured the use of the
property from the second respondent and after it had constructed the
church. The first respondent, initially,
as already stated, also did
not have a church, and held its services in a tent. The applicant is
accordingly not being prejudiced
by an unreasonable attitude taken by
the first respondent. There is an unfortunate expression of
entitlement in the view taken
by the applicant of the matter.
At
paragraph 72 of the replying affidavit, Mr. Ntshele states that
‘
The
Applicant is entitled to the premises which were acquired through the
effort and money from its members.’
As
will appear hereafter, that sense of entitlement is entirely
misplaced, and the remainder of the statement is legally incorrect.
[9]
Mr. Ntshele
states that the first respondent is not the owner of the property. On
a
formal level, that would appear to be correct. As noted earlier, the
property remains registered in the name of the second respondent.
However, in a letter dated 26 January 2012 from the second respondent
addressed to Mr Ntshele while he was still employed by the
first
respondent, the manager of housing administration for the second
respondent methodically set out the history of the property.
The
second respondent’s representative:
(a)
acknowledged
receipt of a payment made by the first respondent to the second
respondent for the acquisition of the property.
[6]
According to the second respondent, the property was registered in
the Deeds Office as a site of worship.
(b)
acknowledged
that the property did not form part of a housing project known as the
‘Deorista 500 Limited Housing Project’
and indicated that
the second respondent’s housing administration section was at
the time of the letter apparently in negotiations
with the Department
of Human Settlements and the State Attorney for the transfer of
erven, which included Edendale BB, within which
the property is
located, ‘whereafter titles will be issued’; and
(c)
taking all
the facts into consideration, stated that:
‘
I
therefore give you permission to fence off the wor ship [sic] site
viz Erf 1200, Edendale BB.’
[10]
From the
contents of this letter, it is evident that whilst the property at
that stage was not registered in the first respondent’s
name,
its entitlement to receive transfer in due course was not disputed by
the second respondent.
[11]
Mr
Ntshele asserts, further, that the church was constructed solely
because of his efforts. This is not admitted by the first respondent.
The approach in motion proceedings where a dispute of fact arises is
regulated by the approach laid out in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd.
[7]
The first respondent’s version must therefore be accepted.
[12]
But even if
Plascon-Evans
is shifted to one side and ignored momentarily and if it is accepted
that Mr Ntshele, to the exclusion of all other members of
the first
respondent, was responsible for the construction of the church, it
does not avail the applicant. This is because the
first respondent
has all the characteristics of a universitas.
[13]
One of the
documents put up by the applicant is the constitution of the first
respondent. Paragraph 1.2 thereof reads as follows:
‘
Body
Corporate:
The
organization shall:
v
Exist in its
own right, separately from its members.
v
Continue to
exist even when its membership changes and there are different office
bearers.
v
Be able to sue
and be sued in its own name.’
[14]
The
constitution is a relatively lengthy document, being some seven pages
long. It sets out structures through which the first respondent
is to
be administered and the powers of the office bearers who occupy those
structures. It provides for a banking account to be
held in the first
respondent’s name and for branch churches to open their own
bank accounts. Significantly, clause 6.2 thereof
states:
‘
All
properties acquired shall be registered under the name of the
organization.’
[15]
In
the matter of
Webb
and Co Ltd v Northern Rifles, Hobson and Sons v Northern Rifles
,
[8]
the court had occasion to consider the difference between a
universitas and an unincorporated association and stated as follows:
‘
An
universitas personarum
in Roman-Dutch law is a legal fiction, an aggregation of individuals
forming a
persona
or entity, having the capacity of acquiring rights and incurring
obligations to a great extent as a human being. A universitas
is
distinguished from a mere association of individuals by the fact that
it is an entity distinct from the individuals forming
it, that its
capacity to acquire rights or incur obligations is distinct from that
of its members, which are acquired or incurred
for the body as a
whole, and not for the individual members.’ [Footnotes
omitted].
[16]
A
universitas exists as an entity with rights and duties separate from
the rights and duties of its individual members and it has
perpetual
succession. It also has the capacity to own assets independently of
its members. Thus,
the
property of a
universitas
vests
in the
universitas
as
legal person.
[9]
The separate
legal personality that a universitas enjoys has its origin in Roman
Dutch law.
[10]
It is
accordingly not necessary for a universitas to be brought into
existence by way of a statute or to be registered in terms
of a
statute to possess the attributes of a legal person.
[11]
[17]
The
constitution of the first respondent demonstrates that it is a
universitas. If there was any question of this fact, this is
erased
by the disclosure in the answering affidavit that the first
respondent is, in fact, registered as a non-profit organisation
and
holds NPO registration number 038512NPO. While this fact is denied by
Mr Ntshele, no basis for the denial has been disclosed.
Based on
Plascon-Evans
,
I must accept that it is registered. Such registration can only be in
terms of the Nonprofit Organisations Act 71 of 1997 (the
Act).
Section 12 of the Act deals with the requirements for registration
and reads as follows:
‘
(1)
Any nonprofit organisation that is not an organ of state may apply to
the director for registration.
(2)
Unless the laws in terms of which a nonprofit organisation is
established or incorporated make provision for the matters
in
this subsection, the constitution of a nonprofit organisation that
intends to register must—
(
a
)
state the organisation’s name;
(
b
)
state the organisation’s main and ancillary
objectives;
(
c
)
state that the organisation’s income and
property are not distributable to its members or office
bearers,
except as reasonable compensation for services rendered;
(
d
)
make provision for the organisation to be a body
corporate and have an identity and existence distinct from
its
members or office-bearers;
(
e
)
make provision for the organisation’s
continued existence notwithstanding changes in the composition
of its
membership or office-bearers;
(
f
)
ensure that the members or office-bearers
have no rights in the property or other assets of the organisation
solely by virtue of their being members or office-bearers;
(
g
)
specify the powers of the organisation;
(
h
)
specify the organisational structures and
mechanisms for its governance;
(
i
)
set out the rules for convening and
conducting meetings, including quorums required
for
and the minutes to be kept of those meetings;
(
j
)
determine the manner in which decisions are
to be made;
(
k
)
provide that the organisation’s financial
transactions must be conducted by means of a banking account;
(
l
)
determine a date for the end of the
organisation’s financial year;
(
m
)
set out a procedure for changing the constitution;
(
n
)
set out a procedure by which the organisation may
be wound up or dissolved; and
(
o
)
provide that, when the organisation is being wound
up or dissolved, any asset remaining after all its liabilities
have
been met, must be transferred to another nonprofit organisation
having similar objectives.’
[18]
To become
registered in terms of the Act, the first respondent would have to
comply with the prescripts of section 12. That it was
so registered
is determinative of the fact that it holds its assets and its rights
to assets separately from its membership. This,
together with the
fact that Mr Ntshele was an employee of the first respondent at the
relevant time, means that notwithstanding
that he may arguably be
responsible for the construction of the church, that does not give
him, let alone the applicant, any right
to the church. Mr Ntshele did
not become the owner of the church, nor did he acquire any right
superior to that of the first respondent
through being responsible
for its construction. Mr Ntshele’s resignation from his
employment with the first respondent, and
any resultant change in
membership of the first respondent because of his resignation, did
not alter that fact.
[19]
It may well
also be so that 90 percent of the funds used to construct the
building came from members of the first respondent who
are now
members of the applicant, although I hasten to add that this is
disputed by the first respondent. Mr. Ntshele states further
that:
‘
The
members of the Applicant have through the last two years donated all
their excess funds towards the costs of building the structure
on the
property.’
I
need not determine whether either of these submissions are correct.
When the funds were raised for the construction of the church,
there
can be little doubt that some of those funds were donated to the
first respondent by, inter alia, its members. In doing so,
the donors
could not have been members of the applicant, which did not exist at
that time. The fact that the donors now prefer
to worship under the
aegis of the applicant does not endow them with any right to the
brick and mortar of the church. A donation
is just that: it is a gift
or contribution, made without conditions, designed to assist the
party to whom the gift is given.
[12]
[20]
The further
statement by Mr Ntshele that the first respondent has never been
granted any formal rights to the property is incorrect.
The letter of
26 January 2012 from the second respondent confirms the first
respondent’s right to continue to occupy the
property and to
fence it.
[21]
The fact that
Mt Ntshele has applied for the acquisition of the property from the
second respondent is factually correct. But it
is of no significance
in this dispute. Indeed, the contents of the application made
by Mr. Ntshele, which exists only in
the form of a letter, are, in
part, false and, it seems, were designed to mislead the second
respondent. The letter is dated 1
June 2021, one month exactly after
Mr Ntshele resigned from the first respondent. Mr Ntshele is the
signatory to the letter. He
states the following:
‘
As
I have mentioned that we used to be Here is Life Ministries before;
on this piece of land we are requesting to buy or be donate
[sic] for
there is a building that is built on. First of all we would like to
rectify the mistake of building on that piece of
land which was not a
good thing to do. Due to the desperation of wanting to have a
building structure we ended up building. In
order to rectify this
mistake I am writing this letter asking for an opportunity to buy or
having this piece of land donated to
us.’
[22]
It must be
remembered that at the date of this letter, Mr Ntshele was no longer
employed by the first respondent. The first inaccuracy
in the extract
referred to above is that Mr Ntshele suggests that the applicant used
to be the first respondent. It did not. They
are two distinct
entities. If the applicant was merely the first respondent with a
different name, there would only be one entity
seeking to occupy the
church. The fact that there are two entities claiming this
entitlement demonstrates the inaccuracy of what
is stated. Mr Ntshele
indicates, further, that ‘we’ would like to rectify the
mistake of building on the land: who
is the ‘we’ that he
refers to? It cannot be the first respondent as he has severed ties
with it and has no authority
to speak on its behalf. If he refers to
‘we’ as being the applicant, how would the applicant
remedy a mistake allegedly
made by the first respondent? The act of
occupying the church could not achieve this. In any event, the
applicant itself could
not have made the mistake as it did not exist
at the time the church was constructed. It would appear that this
portion of the
extract is intended to reinforce the initial comment
that the applicant used to be the first respondent.
[23]
Finally, Mr
Ntshele claims that the applicant has a ‘permit to occupy’
the property issued to it on 10 May 2021 by a
ward councillor, Mr T.
W. Sithole (Councillor Sithole). In the document referred to by Mr
Ntshele, Councillor Sithole states, inter
alia, that:
‘…
I have
no objection in the [sic] utilizing this piece of land, provided they
are in agreement with the Msunduzi Municipality.’
The
document, however, contains a by now familiar error. Councillor
Sithole defines the church that he refers to as being ‘Fountain
Impactors Church’, the applicant. He then goes on to state
that:
‘
Moreover
the church is [sic] started to operate in the previously mentioned
address a decade ago …’
That
is untrue. The applicant could not have operated at the property for
a decade as it had only been formed after Mr Ntshele resigned
from
the first respondent on 1 May 2021. Indeed, it could only have been
in existence for, at most, a mere 9 days when Councillor
Dlamini
signed his letter. What is stated in that letter is simply a
variation of the untruth advanced by Mr Ntshele that the applicant
used to be the first respondent.
[24]
Mr Ntshele
claims that the document that he refers to as a ‘permit to
occupy’:
‘…
is the
only formal document granting any rights to any party which is in
existence.’
That
is also untrue. The first respondent has put up a similar document,
although it predates the applicant’s ‘permit
to occupy’
by nearly 15 years. On 11 October 2007, a Councillor T. I. Dlamini
signed a letter stating that he had no objection
to the first
respondent building a church on the property.
[25]
The ‘permit
to occupy’ relied upon by Mr Ntshele is not that. It is simply
a letter authored by Councillor Sithole in
which he expresses his
views on the applicant’s aim of acquiring the property and the
church. It is clearly intended to assist
in this regard. In any
event, it is to be doubted whether a ward councillor, acting on his
own, has the power to bind the second
respondent and to authorise
anyone to occupy property registered in the name of the second
respondent. The second respondent has
internal departments that deal
with such issues. No proof of such a power vesting in Councillor
Sithole has been put up.
[26]
The
requirements for an interim interdict are well known and need not be
repeated. Interdicts are granted based upon rights which
are
sufficient to sustain a cause of action.
[13]
An applicant seeking an interim interdict, as in this case, must
establish a prima facie right that may be open to doubt. That
applicant must establish that a right that it possesses is being
infringed or which it anticipates will be infringed imminently.
If
the applicant cannot establish this, the application must fail.
[14]
[27]
The primary
consideration when assessing an application for an interdict is thus
the identification of the existence of a right.
Counsel for the
applicant suggests in her heads of argument that the prima facie
right to occupy the property arises from the ‘permit
to occupy’
signed by Councillor Sithole. I have already dealt with that
document. It does not constitute a ‘permit
to occupy’ the
property: it merely expresses Councillor Dlamini’s opinion on
the proposed acquisition of the property
by the applicant. It does
not permit the applicant to occupy the property to the exclusion of
the first respondent.
[28]
Despite my
best endeavours, I am unable to discern the existence of a right of
any nature and of any strength that the applicant
may lay claim to.
When the matter is distilled to its base elements, it seems to me
that what the applicant is attempting to do
is to claim the church
and property of another religious body without paying for it. It
matters not that some, a few, or all the
members of the first
respondent now wish to worship through the applicant. The first
respondent is a universitas that holds its
assets and its rights to
assets separately from its members. The comment by Mr. Ntshele,
referred to earlier, that the First Respondent
has the attitude that
it has exclusive rights to the church, must be affirmed by this
court.
[29]
Being unable
to establish the existence of a right, the application must perish. I
accordingly grant the following order:
The
application is dismissed with costs.
MOSSOP
J
APPEARANCES
Counsel
for the applicant
:
Ms M E van
Jaarsveld
Instructed
by: :
Kunene Attorneys
Suite
204, 2
nd
Floor
Fedsure
House
251
Church Street
Pietermaritzburg
Counsel
for the first respondent :
Mr D M de Jager
Instructed
by
:
Cox Yeats Attorneys
Ncondo
Chambers
Vuna
Close
Umhlanga
Ridge
Durban
Date
of hearing
: 24 October
2022
Date
of judgment
: 24 October
2022
[1]
Thomas
Brooks: ‘
Farewell
Sermon at the Great Ejection
’,
1662.
[2]
The
first respondent actually has, in addition, five other branch
churches. The applicant appears to have none.
[3]
The
first respondent apparently had six pastors, of which Mr. Ntshele
was one. Mr. Ntshele later denies that he performed his
services in
terms of an employment contract, but in the founding affidavit, he
clearly and unequivocally states that ‘I
was employed by the
First Respondent as a pastor.’
[4]
The
property was, and still is, registered in the name of the second
respondent.
[5]
Mr.
Ntshele, to be accurate, does later state when making his
application to the second respondent, more of which later, that
the
decision to build the church was ‘a mistake’. Why it was
a mistake is not disclosed.
[6]
The
amount referred to in the letter was the sum of R3 208,70.
[7]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A).
[8]
Webb
and Co Ltd v Northern Rifles, Hobson and Sons v Northern Rifles 1908
TS 462 464-465.
[9]
Dutch
Reformed Church, van Wijk’s Vlei v Registrar of Deeds
1918 CPD 375
;
Morrison
v Standard Building Society
1932 AD 229
238.
[10]
Ex
parte Johannesburg Congregation of the Apostolic Church
1968
(3) SA 377 (W).
[11]
Joubert:
‘
The
Law of South Africa
’,
2
nd
edition, volume 1, page 464, para 618.
[12]
https://www.merriam-webster.com/dictionary/donation
.
The word ‘donation’ has a Middle English origin from the
English word
donatyowne
,
from Latin
donation-,
donatio
,
from
donare
to
present, from
donum
gift;
akin to Latin
dare
to
give. The word ‘donation’ is used in s 3(3)
(c)
of
Estate Duty Act 45 of 1955. In the matter of
Commissioner
for Inland Revenue v Estate Hulett
[1990] ZASCA 23
;
1990
(2) SA 786
(A)
, that word was interpreted to mean a donation
prompted by sheer liberality or disinterested benevolence.
[13]
Albert
v Windsor Hotel (East London) (Pty) Ltd (in liquidation)
1963
(2) SA 237
(E) at 240E-241G.
[14]
Coolair
Ventilator Co (SA) (Pty) Ltd v Liebenberg and another
1967
(1) SA 686
(W).