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[2019] ZAFSHC 226
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Moloi and Others v Maduna and Others (2140/2018) [2019] ZAFSHC 226 (28 November 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates:
NO
Case number:
2140/2018
In
the matter between:
SHADRACK
NKOMENI MOLOI
1
st
Applicant
JONAS
MOSEBETSI MALEKA
2
nd
Applicant
PETROS
MOKETE CINDI
3
rd
Applicant
MATLA
JOSEPH MOTETE
4
th
Applicant
MANYATHELA
ABEL
5
th
Applicant
MATHODISA
DANIEL MOJALEFA
6
th
Applicant
MONARENG
LEGHEKU AMOS
7
th
Applicant
TSATSI
NTJA ALFRED
8
th
Applicant
MOPEDI
HABOFANWE
9
th
Applicant
MOTAUNG
KHOATLELI
10
th
Applicant
MTHOMBENI
FRANK
11
th
Applicant
and
EDWARD
EPHRAIM MADUNA
1
st
Respondent
NTLELI
GABRIEL SWARTBOOI
2
nd
Respondent
MBATHANE
P GABA
3
rd
Respondent
HLAKOTSA
RAYMOND
4
th
Respondent
TSOTETSI
TUMELO
5
th
Respondent
THE
AFRICAN PRESBYTERIAN
BAFOLOSI
CHURCH OF SOUTH AFRICA
6th Respondent
CORAM:
DAFFUE, ADJP
HEARD
ON:
10 OCTOBER 2019
JUDGMENT BY:
DAFFUE, ADJP
DELIVERED ON:
28 NOVEMBER 2019
I
INTRODUCTION
[1]
This
application is about the dissatisfaction of several members of a
church with the financial affairs of the church and the manner
in
which certain meetings were held. Four of the applicants were
suspended as members and eventually expelled.
[2]
The
irony of the matter is that the meetings complained of
were
held from August to December 2017. Notwithstanding the fact
that the application was issued during 2018 and the applicants’
replying affidavit filed on 20 June 2018, the matter was only set
down finally to be heard on 10 October 2019. The application
was postponed several times. The latest postponement was caused
by the applicants who intended to amend their notice of motion
at the
last moment.
II
THE PARTIES
[3]
The
eleven applicants in this application are adult male persons.
They allege that they are members of the African Presbyterian
Bafolisi Church of South Africa (“the Church”) in good
standing and all of them are also Moderators of the Church,
having
been elected at the Synod held in December 2013. It is further
alleged that second applicant is the Assistant General
Secretary,
third applicant the General Secretary and fourth applicant the
Treasurer of the Church, having been elected to these
positions at
the Synod in December 2013. Adv MS Mazibuko appeared for the
applicants.
[4]
The
respondents in this application are cited as follows:
4.1 The
first respondent is Edward Ephraim Maduna, an adult male Bishop of
the Church;
4.2
The
second respondent is Ntleli Gabriel Swartbooi, an adult male and the
Presiding Bishop of the Church;
4.3
The
third respondent is Mbathane Pieter Gaba, an adult male, ordained as
an Evangelist;
4.4
The
fourth respondent is Hlakotsa Tumaka Raymond, an adult Junior
Minister of the Church;
4.5
The
fifth respondent is Tsotetsi Thapelo Simon, an adult male Moderator
of the Church;
4.6
The
sixth respondent is the African Presbyterian Bafolisi Church of South
Africa (NPC), a non-profit organization duly incorporated
in terms of
the Company Laws of the Republic of South Africa.
[5]
Mr
NW Phalatsi appeared for the first and third to sixth respondents.
Second respondent, having been present when the matter
was postponed
on the 22
nd
August 2019, did neither appear before me, not instruct someone to
appear on his behalf.
III
THE RELIEF SOUGHT
[6]
It
is not my intention to quote the amended notice of motion which
consists of four pages. Eighteen different orders are sought,
but applicants’ counsel conceded during argument that he either
could not successfully obtain relief in respect of some prayers,
or
did not have instructions to persist with such prayers.
Consequently, he did not ask for relief in terms of prayers 1,
11, 12
and 15 to 18. Some of the other prayers are also duplication to
an extent.
[7]
Respondents
indicated that prayer 2 could be granted by agreement, to wit that
the resolution taken on 12 August 2017, terminating
first
respondent’s membership, be declared to be unlawful and
inconsistent with the Constitution and set aside.
[8]
The
relief sought are therefore summarised as follows:
8.1 Any
resolutions taken at the meeting of the Inter-Synod of 4 November
2017 held at Bethlehem shall be declared
inconsistent with the
Constitution and therefore unlawful;
8.2
Any
resolutions taken at the meeting of 9 and 10 December 2017 held at
Balfour, including those ratifying the decisions taken on
4 November
2017, shall be declared inconsistent with the Constitution and
unlawful;
8.3
Interdicting
and restraining first respondent from presenting himself as and/or
calling himself the acting Presiding Bishop of the
Church and from
holding meetings in such capacity in the name of the Church;
8.4
Declaring
the election and nomination of third respondent as Secretary General
of the Church inconsistent
with
the Constitution and unlawful and interdicting and restraining him
from holding himself out and presenting himself as the Secretary
General of the Church;
8.5
Interdicting
and restraining the fifth respondent from presenting himself as a
Senior Minister of the Church and from interfering
with the affairs
of the Church without the permission of the applicants as Church
Council, although he may continue to act in the
position to which he
was duly elected in December 2013, to wit that of Moderator.
IV
THE DISPUTES
[9]
The
locus
standi
of the applicants is in dispute. It is the respondents’
case that on 4 November 2017 the first, second, third and ninth
applicants (“the four applicants”) were suspended as
members by its Disciplinary Committee for a period of five years.
They and others were eventually expelled by the Synod on 9 December
2017. The crux of the matter is thus really whether the
meetings convened and held on 4 November 2017 and 9 December 2017
were duly convened and conducted in accordance with the Constitution
and whether the resolutions taken at these meetings are valid.
In this regard it must be pointed out that the respondents
tried
to
distinguish between the meeting of the Inter-Synod on 4 November 2017
and the meeting of a Disciplinary Committee held on the
same day and
at the same venue and occasion. Mr Phalatsi submitted that it
is clear from the papers that a motion of no confidence
in the second
respondent as Presiding Bishop was accepted by the Inter-Synod
on
that day, whilst the four applicants were suspended during a
disciplinary hearing of the Disciplinary Committee on the same day.
This submission will be tested later.
[10]
The
applicants have no
locus
standi
to ask for relief on behalf of second respondent pertaining to the
adoption of the motion of no confidence against him on 4 November
2017. Save for some remarks later herein, that issue will not
be adjudicated.
[11]
Mr
Phalatsi submitted and conceded that the dilatory plea of
non-joinder, raised in the papers, does not have to be adjudicated
at
all.
[12]
Another
point
in
limine
raised in the papers, to wit the issue of entanglement,
i.e.
that matters concerning internal rules, governance, doctrine, values
and precepts of the Church as a religious association, fall
outside
the jurisdiction of the court, has also been discarded.
V
UNCONTESTED EVIDENCE
[13]
As
mentioned, it is common cause that the resolution taken on 12 August
2017 at Heilbron, terminating the membership of first respondent,
was
unlawfully taken and should be set aside.
[14]
It
is uncontested that the four applicants were duly informed to be
present at the meeting of the Inter-Synod on 4 November 2017,
but
that they failed to attend. They should have been aware that a
disciplinary enquiry was to be held. It is their
case that they
refused to participate in the absence of a charge sheet being
provided to them and whilst the meeting was unlawfully
convened.
It is evident from the papers that no action was taken against them
in terms of the Church’s Code of Conduct.
[15]
On
4 November 2017 the four applicants were suspended as members of the
Church for a period of five years.
[16]
Applicants
were instructed to attend a disciplinary enquiry during the Synod
meeting to be held at Belfour on 9 December 2017.
It was
alleged that the applicants disregarded their suspensions and
continued to act as if not on suspension. First respondent
was
informed by first applicant in writing that he would not attend that
meeting as the Synod had resolved at the December 2016
meeting that
the next annual meeting would be held at Bothaville and not Balfour
and therefore the Balfour meeting was unlawfully
convened. The
four applicants were eventually expelled as members of the Church on
9 December 2017. There is uncertainty
as to what was resolved
in respect of the other applicants who in any event did not make out
a case at all for relief.
VI
EVALUATION OF THE EVIDENCE AND SUBMISSIONS OF THE PARTIES
[17]
Since
the meetings of 4 November and 9 & 10 December 2017 a period of 2
years has lapsed. In the meantime the annual Synod
meeting of
December 2018 would have been held and vacant posts would have been
filled for the next five years in accordance with
the Constitution.
Bearing in mind the time when the affidavits were filed herein and in
the absence of any supplementary
affidavits, not a word was said
about the December 2018 meeting which I accept has taken place.
The court is left in the
dark in this regard.
[18]
My
judgment and the orders to be granted cannot have an effect on any
elections and/or appointments that might have been made during
the
December 2018 meeting if it was held indeed. This court was not
asked to set aside any resolutions that might have been
taken at such
meeting. I shall therefore deal exclusively with applicants’
membership of the Church and not their right
to the positions they
held until 4 November 2017. I am also mindful of the fact that
it is trite law that an applicant must
make out his/her case in the
founding affidavit. Applicants elected to approach their
dissatisfaction on a different basis
in the founding affidavit
insofar as no reliance was placed on the Code of Conduct. I am
of the view that, notwithstanding
a possibly wrong approach, the
court is entitled to look at the totality of the evidence in order to
arrive at a correct conclusion
and I shall deal with the dispute
accordingly.
[19]
It
is also evident that both parties, represented by different legal
representatives at the time, drafted comprehensive heads of
argument
in June 2018 in anticipation of a hearing shortly thereafter.
Nothing has happened in that regard, causing the new
legal
representatives to prepare supplementary heads of argument during
September 2019 and totally ignoring the initial heads of
argument in
relying on their supplementary heads only during oral argument.
[20]
Much of the
evidence contained in the founding affidavit is devoted to aspects
such as alleged financial mismanagement, an attack
on first
respondent’s actions and inactions and alleged serious conflict
within the Church. Mr Mazibuko, on behalf
of applicants,
conceded as I indicated
supra
,
that they are not entitled to relief as set out in prayers 1, 11, 12
and 15 to 18 of the amended notice of motion. Therefore
this
judgment will not deal with the request for production of financial
documentation regarding the management of the Church,
its financial
statements or financial predicament, the convening of a Synod
meeting, or the appointment of an independent person
such as an
advocate to act as a so-called electoral head and to report to the
court the outcome of the elections to be held.
[21]
Once
their legal representative has conceded that they were not entitled
to the relief in the prayers mentioned above, the only
remaining
issue is the applicants’ alleged entitlement to have their
suspensions and eventual expulsions rescinded with reference
to the
meetings of 4 November 2017 and 9 December 2017 respectively. Mr
Mazibuko concentrated on the allegation that both meetings
were
unlawfully convened contrary to the prescripts of the Constitution.
The applicants have not approached the court for
the review and
setting aside of these specific resolutions. If their
application was couched in the form of a review, the
Church and/or
Inter-Synod and/or Disciplinary Committee might have been in a
position to provide minutes of the meetings and reasons
for the
decision to suspend initially and thereafter to expel.
[22]
Mr
Phalatsi submitted that applicants in essence seek a review of the
decisions to suspend and expel them and because of their failure
to
use the correct procedure, it was not incumbent on the Church or its
Disciplinary Committee to file the records of decision
or reasons for
the decisions taken. I also need to consider whether applicants
can overcome the next hurdle and that is the
Church’s Code of
Conduct. In terms thereof they had a domestic remedy available
insofar as a right of appeal to the
Synod is afforded. They
have not made use of this domestic remedy and did not provide any
reasons why the matter is exceptional
for this court to entertain and
to adjudicate the application.
[23]
A
voluntary association like the Church is founded on the underlying
notion of mutual agreement as embodied in its Constitution.
[1]
The general rule is that conflict between the association and its
members must be dealt with in terms of domestic remedies
agreed
upon. These remedies must be exhausted before relief is sought
from the court.
[2]
[24]
In
Crisp v
SA Council of the Amalgamated Engineering Union
the
Appeal Court held as follows
[3]
:
“
The
decided cases clearly establish that it is always open to the Courts
If law in the first instance to refer a complainant who
is the member
of a society or corporation governed by fixed rules to the domestic
tribunals of the society or corporation established
by these rules
for determining disputes amongst members where it is more convenient
that the complaint should be determined by
such domestic tribunals.
Especially is this the case where the rules which constitute the
contract between the members clearly
exclude courts of law. In these
cases courts of law will not as a rule exercise their jurisdiction
until the special tribunals
have dealt with the matter. ……
If,
therefore, a party aggrieved has a complaint against the act of an
official or committee of a voluntary society he must bring
this
complaint before the proper domestic tribunal appointed for that
purpose by the rules of the society, and if the tribunal
or tribunals
act
bona fide
according to the rules and according
to the dictates of natural justice, the law Courts will not
interfere; but if they do
not do so the aggrieved person can always
resort to the Courts of law to have his rights vindicated or a wrong
remedied. No voluntary
arrangement can take that right away. In such
cases Courts of law will not allow their jurisdiction to be
ousted……..
To
sum up, therefore; where the ruler, provide that certain disputes and
complaints should come before the domestic tribunals, the
law Courts
will not as a rule usurp
their
functions, but a dispute may arise which the rules never designed the
domestic tribunals to deal with. In such a case the
law Courts will
not refer the matter to the domestic tribunals but will themselves
deal with it. The present dispute is one of
the latter class, for in
this case at least one of the tribunals constituted by the rules is
directly involved, and cannot, therefore,
express an unbiased
opinion. It was the act of the Executive Council and the South
African Council to declare Crisp ineligible
for the office of
organiser without having heard him in defence and without deriving
the power to act as they did from any rule
of the Society. We must
therefore conclude that the domestic tribunals were not designed by
the rules of the Society to deal with
a matter of this kind.
[25]
Although
Crisp
was decided nearly a hundred years ago, the principle remains the
same as is evident from the
Jockey
Club
judgment
[4]
and may I say, has
been given legislative authority in
e.g
.
the Promotion of Administrative Justice Act
[5]
in respect of administrative action as defined in that Act. In
Koyabe v
Minister of Home Affairs
[6]
the Constitutional Court dealt with the rationale why internal
remedies shall be exhausted before a court is approached for relief.
Borrowing from the judgment of Mokgoro J and applying it
in
casu,
an
application to court before the Church’s highest authority has
dealt with the dispute will be premature as the court will,
if the
matter is adjudicated, effectively usurp such body’s executive
role and function. This will be allowed in exceptional
circumstances only,
e.g
.
where the internal remedy would not be effective or where its pursuit
would be futile.
[7]
[26]
This
Division has had to deal with a similar situation involving the same
Church previously, to wit
African
Presbyterian Bafolisi Church of Southern Africa v Moloi &
another.
[8]
The reader will immediately make the connection between the parties
in casu
and in that matter. Two Reverends, Swartbooi and Moloi, were
the main role players in that proceedings. Rev Swartbooi
features again
in
casu
,
although Rev Moloi is not the same person as the 1
st
applicant in our matter. Although referring to the duty to exhaust
domestic remedies, Rampai J decided to deal with the application
and
dismissed it on the merits.
[27]
Mr
Mazibuko relied vigorously on the judgment of
National
African Federated Chambers of Commerce and Industry and Others
v
Mkhize
and Others
[9]
(“
Nafcoc”
)
for the submission that the aforesaid two meetings of 4 November and
9 December 2017 were unlawfully convened insofar as the person
that
had the constitutional power to convene them did not do that and
consequently, all resolutions passed at these meetings are
invalid
and of no force and effect. I do not necessarily agree with
this submission, bearing in mind that it could not be
expected of the
very same person accused of wrong-doing to convene a meeting for the
discussion of a motion of no confidence in
him. I indicated
earlier that I am not prepared to consider whether the motion of no
confidence in second respondent was
properly adopted as he is not an
applicant applying for relief. The applicants cannot speak on
his behalf. My
prima
facie
view
expressed earlier in this paragraph does not mean that the four
applicants’ suspension is in order. I shall elaborate
later.
[28]
I
have referred to the previous matter of the Church that came before
this court and also noticed from the papers presented to me
that
several other disputes have been referred to our courts in the past.
It is apparent that the Church and its members
rely on their
statement of faith as set out in paragraph 2.1 of the Constitution
and the character of the Church and its prophetic
calling in
paragraph 2.2. Contrary to these laudable principles, too many
rifts have been created and litigation embarked
upon over several
years. Therefore and after I heard argument, I reserved my
judgment after expressing my deep concern that
the Church with its
laudable objectives is being steadily undermined by a battle for its
control for apparently opportunistic reasons
to borrow the words of
Majiedt JA, as he then was in
Nafcoc
.
10]
The learned Judge of Appeal proceeded to say the following
which equally applies
in
casu
:
“
The
flood of cases and concomitant considerable legal costs will not
solve the organisation’s internal problems; on the contrary
it
will do inestimable harm and very little, if any, good.”
I
trust that sanity will prevail soon so that the Church can carry on
with the good work as provided for in its Constitution.
[29]
Although
respondents rely on the fact that applicants should have approached
the court with a review application, their opposition
to the relief
claimed by the applicants is in essence the failure to make use of
the internal mechanisms of dispute resolution.
It is their case
that applicants should have appealed to the Church Council as is
evident from paragraph 4.17 of the answering
affidavit. I do
not agree for the reasons advanced later herein. Respondents
correctly confirm that the Synod is the
highest decision-making body
of the Church, but argue that an appeal from that body (or the
Inter-Synod) should be directed to
the Church Council. I also
do not agree with the respondents’ view point that the
applicants are
“
a
little early to late”
or
“
the
horse has bolted and the boy is in trouble”
or
“
the
milk is spilt and now mixed with sand”
or
that the scrambled egg cannot be unscrambled as set out in paragraph
7.19 of the answering affidavit. The applicants seek
at this
stage an order that they are recognised as members of the Church.
Therefore they allege that their suspensions on
4 November 2017 and
the expulsions on 9 December 2017 should be regarded as null and
void.
[30]
Unlike
as argued by Mr Phalatsi, it appears as if no separate meetings were
held on either 4 November 2017, or 9 December 2017.
It is
apparent from the clear and unambiguous wording of Annexure “AA1”
to the answering affidavit that the Inter-Synod
had two items on its
agenda of 4 November 2017, firstly the motion of no confidence
against the Presiding Bishop Swartbooi, the
second respondent in the
application, and secondly, the disciplinary enquiry against the
first, second, third and ninth applicants.
It may not be
altogether clear who conducted the disciplinary enquiry in the
absence of the particular applicants on that day,
but a verdict of
guilty was returned and applicants suspended for a period of five
years.
[31]
The
records relied upon by the respondents indicate in my view decisively
that the Inter-Synod dealt with the disciplinary proceedings
against
the applicants on 4 November 2017. Mr Phalatsi submitted in
this regard that there was a separate disciplinary enquiry
which
continued in the absence of the applicants and that enquiry returned
a guilty verdict and suspended the applicants for a
period of five
years as is evident from paragraph 4.7 of the answering affidavit.
In my view the respondents’ version
under oath is directly
contrary to the contents of the notice issued to convene the meeting
of 4 November 2017 as is apparent from
annexure “AA1.”
Two issues were placed on the agenda of the Inter-Synod, to wit the
motion of no confidence in
the Presiding Bishop NG Swartbooi and the
disciplinary enquiry against the applicants. In my view it was
intended
ex
facie
the
agenda that the Inter-Synod also dealt with applicants’
disciplinary enquiry. If it was the intention to convene
a Church Judicial Committee in accordance with the Code of Conduct, I
would have expected that committee to give proper notice
of
disciplinary proceedings to be held by it. This did not
transpire. In fact, respondents clearly did not have any
regard
to the Code of Conduct at that stage of the proceedings.
[32]
The
Code of Conduct was not attached to the founding affidavit, but as
annexure “RA2” to the replying affidavit.
Discipline is exercised in terms of the Code of Conduct by the Church
Judicial Committee and the Synod and/or Inter-Synod each
having its
own jurisdiction and acting within such. The Code of Conduct
stipulates that any matter brought before any of
each communities is
not complete until any appeal or review has been completed or the
time for noting it has passed. The
Code of Conduct also
provides that a Judicial Committee may refer any disciplinary hearing
or any part of the hearing or point
of difficulty in a hearing to the
Synod or the Inter-Synod for advice or decision. One’s a
Judicial Committee has found
an accused person guilty, he/she should
be informed that he/she may appeal to the Synod or the Inter-Synod.
[33]
If
the applicants were indeed disciplined by the Inter-Synod that
suspended them before they were eventually expelled by the Synod,
their right to appeal has become nugatory. Respondents’
allegation that applicants have a right to appeal to the Church
Council is devoid of any merit. There is no such provision in
the Code of Conduct or the Constitution.
[34]
The
applicants failed to attend the meeting of 4 November 2017
notwithstanding having been informed thereof. It is their case
that they did not received a charge sheet, but in any event, their
disciplinary enquiry and/or the meeting of 4 November 2017 was
not
properly convened.
[35]
It
is common cause that the Inter-Synod meeting of 4 November 2017 was
convened by the first respondent who is the Bishop of the
Church and
this meeting was to deliberate on the motion of no confidence in the
Presiding Bishop and to hold a disciplinary enquiry
in respect of the
four applicants. The Constitution provides that if it is
necessary for the Presiding Bishop to have a decision
of the Inter-
Synod on any urgent matter, he is authorised to instruct the General
Secretary to convene a meeting in writing with
two calendar weeks’
notice. The Bishop can only act in the position of the
Presiding Bishop if the latter is suspended.
This was not the
case when the meeting of 4 November 2017 was convened. The
applicants submit that this meeting was convened
and held unlawfully
as there was no lawful reason for the first respondent to act instead
of the Presiding Bishop. The effect
hereof is that all
resolutions taken at that meeting are of no forced and effect, so the
applicants submitted, relying on
Nafcoc
[11]
[36]
In
my view neither the Inter-Synod, nor the Synod could have acted as a
Church Judicial Committee. Neither the Synod, nor
the
Inter-Synod could act as a body of first instance to deal with
discipline within the Church. The Synod and/or Inter-Synod
are
the appeal bodies. Therefore, the applicants could not and
should not have been suspended as members by the Inter-Synod
on 4
November 2017 and based on the same argument, could not and should
not have been expelled by the Synod on 9 December 2017.
In
doing so, these bodies acted directly in conflict with the Code of
Conduct and thus unlawful.
[37]
I
considered the other relief requested, but no case has been made out
for such relief. Those matters have become moot if
the time
lapse is considered as indicated above. Applicants also
accepted in their replying affidavit that the matter was
urgent
“
because
no one will hold office after December 2018”
and
“
the
term of office of the current leadership, including the first and
second respondent will expire in December 2018.”
VII
CONCLUSION
[38]
The
parties are
ad
idem
that the purported resolution taken at the Heilbron meeting on 12
August 2017, terminating the membership of the first respondent,
was
unlawful and inconsistent with the Constitution of the Church.
A declaratory order may therefore be granted in this regard.
[39]
The
applicants do not have the right to seek relief on behalf of the
second respondent and I am not prepared to grant any relief
in this
regard or any further relief set out in the amended notice of motion,
save such relief as set out in the next paragraph.
[40]
I
am satisfied that notwithstanding the vague and even poor manner in
which the founding affidavit was drafted and the fact that
reliance
was placed on irrelevant matter in respect of which it was conceded
no relief could be granted by the court, it became
quite evident from
the papers relied upon by the applicant and in particular the
documentation attached to the answering affidavit
and even the
respondents’ version, that the four applicants were firstly
suspended by the Inter-Synod which was not the appropriate
body to do
that and secondly, the Code of Conduct was totally ignored in
convening and holding the so-called disciplinary enquiry.
Therefore the suspension of the applicants as members on 4 November
2017 should be set aside as null and void and in the same breath,
the
later expulsion of applicants as members of the Church by the Synod
on 9 December 2017 cannot stand for the reasons as advanced
herein.
I reiterate that the applicants cannot be placed in the positions
they held as Moderators, Assistant General Secretary,
General
Secretary and Treasury respectively as the positions would in any
event have become vacant five years from December 2013.
New
elections were supposed to be held at the Synod in December 2018.
VIII
COSTS
[41]
The
applicants shall be held responsible for the wasted costs of 22
August 2019, the reason being that they decided at the last
moment to
amend their notice of motion, causing respondents to reconsider their
position and requiring a postponement. I
have not been made
aware of any other cost orders that stood over for later
adjudication.
[42]
The
applicants, having been successful to a limited extent, might have
been entitled to their costs of the application. Their
emphasis
in the founding affidavit was on financial and even irrelevant
matters.
The founding affidavit
consists of 153 paragraphs and the attack was mainly focused on first
respondent’s actions or inactions,
the incorrect procedure in
adopting the motion of no confidence against second respondent and
the lack of trust amongst the various
groups in the Church.
Applicants dealt briefly and in a few paragraphs with the meetings of
4 November 2017 and 9 December
2017. Applicants placed
the Code of Conduct before the court and dealt with issues relating
thereto only after the
respondents dealt with the so-called
disciplinary enquiry and made allegations in that regard. I
also take cognisance of
the fact that this matter was delayed to a
great extent by the applicants themselves. A matter that should
have been heard
in the first term of 2018 was heard in the fourth
term of 2019 only. However the applicants were unfairly treated
and contrary
to the provisions of the Constitution and the Code of
Conduct.
[43]
Most
importantly in considering a costs order, the amended notice of
motion does not contain a prayer for costs or even one for
“further
and/or alternative relief.” Although Mr Mazibuko asked for
costs in his supplementary heads of arguments,
applicants’
entitlement to costs was not fully argued. It is possible that
applicants deliberately refrained from asking
for costs in their
notice of motion. I must also accept that respondents opposed
the application well-knowing that no cost
order is sought against any
of them. Therefore, in addition to what I said earlier and even
considering the court’s
wide discretion in the exercise to
award costs, no costs should be awarded in favour of applicants.
IX
ORDERS
1.
The
resolution taken on 12 August 2017 at Heilbron, purportedly
terminating first respondent’s membership in the African
Presbyterian Bafolosi Church of South Africa (“the Church”)
is declared unlawful and inconsistent with the Constitution
of the
Church and set aside.
2.
It is
declared that the suspension of first, second, third, and ninth
applicants as members of the Church on 4 November 2017 and
their
eventual expulsion as members of the Church on 9 December 2017 are
contrary to the Constitution and Code of Conduct of the
Church and
unlawful and therefore, such suspensions and expulsions are rescinded
and set aside.
3.
The parties
shall be liable for their own costs of suit, save that applicants
shall be liable to respondents for respondents’
wasted costs
occasioned by the postponement on 22 August 2019.
J P DAFFUE, ADJP
On
behalf of Applicants: ADV MS MAZIBUKO
(The main heads of
argument having been drawn by: ADV OM MOTAUNG)
Instructed
by:
SIBANDA BUKHOSI
ATTORNEYS
c/o MOKHOMO ATTORNEYS
BLOEMFONTEIN
On
behalf of 1
st
and 3
rd
to
6
th
Respondents’:
MR PHALATSI
(The main heads of
argument having been drawn by: ADV PT MASIHLEHO)
Instructed
by:
PHALATSI &
PARTNERS
BLOEMFONTEIN
On
behalf of 2
nd
Respondent: No appearance
[1]
Van Vuuren v
Kerkraad, Môrelig Gemeente: NG Kerk OVS
1979
(4) SA 548
(O) at 557D - E
[2]
Turner v Jockey Club of South Africa
1974 (3) SA
638
(AD) at 645B - C
[3]
1930 AD 225
at 236, 238 and 242 respectively
[4]
Loc cit
[5]
Act 3 of 2000 and s 7(2)(a) in particular
[6]
2010 (4) SA 327
(CC) at para 36
[7]
Ibid at para 39
[8]
(3775/2009)
[2010] ZAFSHC 1
(7 January 2010)
[9]
(805/2013)
[2014] ZASCA 177
(21 November 2014) at para 37
[10]
Op cit at para 37
[11]
Loc cit at para 37