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[2021] ZAGPJHC 481
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Reformed Methodist Church in South Africa v Yende and Another (8810/2020) [2021] ZAGPJHC 481 (1 October 2021)
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personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO: 8810/2020
REPORTABLE:
YES
/ NO
OF
INTEREST TO OTHER JUDGES:
YES
/NO
REVISED.
01.10.2021
In
the matter between:
REFORMED
METHODIST CHURCH IN SOUTH AFRICA
(Registration
No:
214-058)
Applicant
and
YENDE
MPHIKELELI
WILLIAM
First Respondent
ABSA
BANK LIMITED
Second Respondent
JUDGMENT
CRUTCHFIELD
AJ:
[1]
The applicant, the Reformed Methodist
Church in South Africa, claimed a declarator that R230 000.00
invested in Absa Bank account
number [....] on or about 2 July
2019 (‘the R230 000.00’), belonged to the applicant,
an order that the second
respondent, Absa Bank Limited (‘Absa’),
pay the R230 000.00 together with the interest thereon to the
applicant,
to one Reverend Malamba Zibonele Richard (‘Reverend
Malamba’), and costs in the event of opposition to the
application.
[2]
Reverend Malamba deposed to the applicant’s
founding affidavit.
[3]
The first respondent is Mr Yende Mphikeleli
William. The second respondent opposed the application.
[4]
Service of the application on the second
respondent, Absa, did not take place and I made the parties aware at
the commencement of
the hearing that in the light of the failure to
serve the application on Absa I would not incline towards granting
any order in
respect of Absa.
[5]
The parties did not file a joint practice
note as required by the extant practice directive of this Court.
Whilst I heard the application,
I required the parties do so after
the hearing.
[6]
The relevant common cause facts appear from
the the joint practice note, duly filed, and include the facts set
out hereunder.
[7]
The applicant resolved through its members
to purchase property to the price of R230 000.00. Subsequently,
a dispute occurred
between the applicant’s members that
resulted in the emergence of two opposing factions within the
applicant.
[8]
Reverend Malamba, into whose account the
applicant sought payment of the R230 000.00, led one faction,
whilst the first respondent
led the second.
[9]
The birth of the two factions gave rise to
disputes in respect of the identities of the applicant’s
legitimate members and
whether the applicant’s legitimate
membership excluded members of the opposing faction, and, which
faction retained ownership
of the R230 000.00.
[10]
Thus, the applicant resolved to bring this
application for the relief referred to afore.
[11]
The first respondent contended that the
applicant’s constitution prohibited the applicant’s claim
for payment of the
R230 000.00 into Reverend Malamba’s
account. This resulted in the applicant abandoning the claim and
seeking ‘alternate
relief’.
[12]
The alternate relief comprised of a
transfer of the R230 000.00 into the applicant’s
‘original’ bank account,
notwithstanding that the
applicant did not make out a case for the alternate relief in the
founding affidavit and a prayer in those
terms did not appear in the
notice of motion.
[13]
The first respondent agreed during the
course of the hearing before me that the R230 000.00 belonged to
the applicant
[14]
The parties’ joint practice note
reflected the resolution of prayer 1 in terms that the parties ‘agree
that the current
account held with the second respondent belongs to
the applicant and the money in contention should remain as such
within the applicant.’
[15]
Only the issue of costs remained for
determination by me.
[16]
Both parties claimed costs, the first
respondent on a punitive scale. This matter arose out of a
disagreement amongst members of
the applicant’s congregation,
resulting in the division of the congregation into two factions.
[17]
The applicant contended that the deponent
to the applicant’s affidavits litigated in a representative
capacity and should
be immune from an adverse costs award as a
result. The first respondent argued that he was required to incur
costs in opposing
the application that was unnecessary and without
merit. Further, that the costs should follow the outcome accordingly
on a punitive
scale.
[18]
Whilst I am sympathetic towards the first
respondent’s argument in regard to the costs, I am of the view
that making an order
in respect of costs would serve to aggravate the
tensions between the applicant’s two factions. Any action that
would inflame
the issues between the two factions would be inimical
to the applicant itself and not assist the litigants or either of the
applicant’s
factions or members in the long term.
[19]
In the circumstances, I decline to make an
order in respect of costs against either party.
[20]
By reason of the abovementioned, I grant
the following order:
1.
Each party is to pay its own costs incurred
in this application.
A
A CRUTCHFIELD SC
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
JOHANNESBURG
Electronically
submitted therefore unsigned
Delivered:
This judgment was prepared and authored by the Acting Judge whose
name is reflected and is handed down electronically
by circulation to
the Parties / their legal representatives by email and by uploading
it to the electronic file of this matter
on CaseLines. The date of
the judgment is deemed to be 1 October 2021.
COUNSEL
FOR THE APPLICANT:
Mr
Kabinde.
INSTRUCTED
BY:
Hlatshway-Mhayise Inc
COUNSEL
FOR FIRST RESPONDENT:
Mr Mabuli.
INSTRUCTED
BY:
Khorommbi Mabuli
Inc
Attorneys.
DATE
OF THE HEARING:
28 July
2021
DATE
OF JUDGMENT:
1
October 2021