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[2019] ZANCHC 22
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African Gospel Church v Standard Bank and Another (855/2009) [2019] ZANCHC 22 (10 May 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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IN THE
HIGH COURT OF SOUTH AFRICA, NORTHERN CAPE DIVISION, KIMBERLEY.
Not
reportable
Case
no: 855/2009
In
the matter between:
THE
AFRICAN GOSPEL CHURCH
APPLLICANT
And
STANDARD
BANK
FIRST RESPONDENT
THE
SIGNATORIES TO STANDARD BANK
AGC
KIMBERLEY ACCOUNT NUMBER 143... 899
SECOND RESPONDENT
Heard:
08 February 2019
Delivered:
10 May 2019
JUDGMENT
PHATSHOANE
J
Introduction:
[1]
10
years ago, on 15 May 2009, the African Gospel Church (AGC), the
applicant, approached this Court on an urgent basis for an order
substantially in the following terms:
1.1
Interdicting
and restraining Standard Bank ("the Bank"), the first
respondent, from permitting any person to withdraw
any funds or part
thereof held in the Standard Bank account number: [….] in the
name of AGC Kimberley;
1.2
Directing
the Bank to disclose to AGC the names and addresses of the
signatories to the bank account in issue to enable AGC to serve
the
application on them;
1.3
Directing
the Bank to pay the funds held in the specified account into the
Trust Account of Preston Whyte & Associates, AGC's
attorneys; and
1.4
Directing
that the costs of the application be paid by those respondents who
oppose the application jointly and severally, the one
paying the
other to be absolved.
[2]
The
application succeeded before William J who issued a rule nisi
returnable on 19 June 2009 with paras 1.1 and 1.2 above operating
as
an interim interdict. The rule nisi was extended several times
between the years 2009 to 2018. The urgency in which the application
was brought was overtaken by the events, in particular, on each
return date, Mr Robert raig Preston-Whyte, the applicant's attorney
of record, attested to an affidavit seeking an adjournment on the
basis that similar orders as the one sought in the present
application
were pending in the Pietermaritzburg and the Durban
Division of the High Court; that insofar as the second respondents,
the signatories
to the Standard Bank account, were opposing the
relief sought,
inter alia,
on
the ground that those representing the applicant were not its
properly elected leaders, the parties had agreed that this
application
could not be determined until the finalization of the
Pietermaritzburg High Court application issued under Case No: 1658/09
dealing
with the legitimacy of a previous election of the executive
and/or the leadership of applicant that was held in January 2008.
[3]
Mr
Preston-Whyte went on to state that the common understanding between
the parties was that if indeed the elections of the relevant
officials of the AGC, particularly the Moderator, were found to be
invalid then that Judgment would have a significant impact on
the
further conduct of matters where an interdict had been sought in
respect of funds that belonged to the AGC.
[4]
The
Pietermaritzburg High Court application was dismissed on 17 April
2018 for want of prosecution. Effectively this meant, so it
was
argued for the applicant, that the elections of the office bearers of
the applicant as at 12 January 2008 remained valid and
that Reverend
Nutu De Villiers Gigaba, the deponent to the founding affidavit, was
the validly elected Moderator of the applicant.
[5]
The
argument by the second respondent that Rev Gigaba has no
locus
standi
to bring the application is
unmeritorious. This is so because Article IX of the Constitution of
the AGC, provides in part that the
Moderator acts as a representative
of the church in all relationships with the government and
authorities wherever the church is
concerned and shall sign all the
official documents.
[6]
As
already alluded to, the present application was instituted partly to
restrain the Bank from permitting any person to withdraw
any funds
from a certain specified bank account number held in the name of AGC
Kimberley. Annexure "E" to the founding
affidavit is headed
"AGC Fascadale Building Project - Proposal to borrow money from
the Bank". It sets out a number of
bank accounts, including the
bank account in issue, which are held in the name of the AGC and in
respect of which contributions,
made in good faith by the congregants
of the AGC, were paid in by certain members of the church, which
includes the second respondents,
who call themselves the dissident of
the AGC led by certain Mr MP Zimu (the Zimu group)
[1]
.
It is common cause that these
contributions were made for the furtherance of the objects of the AGC
as set out in its Constitution.
Rev Gigaba, an elected Moderator of
the applicant since 1994, explained with reference to annexure "E"
that the funds
were gathered from the congregants of the AGC and
administered by the dissidents group as opposed to the centralized
administration
of funds provided for in the constitution of the AGC.
He intimated that the property at Fascadale, contrary to what is
contained
in the purported proposal to the Bank, does not belong to
the AGC but to a Trust over which AGC had no control. He says that
any
renovation of the building, taking place upon the land in issue,
is of no benefit to the AGC.
[7]
The
Bank did not oppose the application. The signatories to the Standard
Bank account number: [….], held in the name of AGC
Kimberley,
the second respondents, opposed the application. Their attorneys of
record, Lister & Lister, withdrew from the matter
on 13 May 2014.
Even though Mr Phillip Ramme attested to the answering affidavit on
behalf of the second respondent, he did not
file any heads of
argument. He was also not present in Court on the return date of 08
February 2019 when this application was finally
heard. The record
demonstrates that on 15 January 2019 the sheriff of this Court served
on the respondents: two documents, this
being, the AGC's heads of
argument and the Notice of Set Down for the proceedings of 08
February 2019. These documents were served
on a certain Pastor Robert
Hlajoane at the last known address of the respondents' signatories to
the Bank account, [….]
Kimberley, which address was provided
to the applicant and the Court by the respondents' erstwhile
attorneys of record in its Notice
of Withdrawal as their
representative dated 13 May 2014.
[8]
In
his answering affidavit Mr Ramme says he is a Pastor (Minister) of
the AGC serving the Kimberley circuit of the church. He and
a certain
Mr Kleinbooi Thiyan are the signatories of the bank account in issue;
that there were two factions in the church which
to a large extent
functioned independently of one another; there has been a
de
facto
decentralization of the
management and control of the activities of the church since 1982.
The wider management and control of the
affairs of the church was
awarded to the circuit churches and below that level. The circuits
and congregations, which were controlled
by either the Gigaba
group or Zimu-Group (dissident group), opened and operated banking
accounts at circuit level for various
purposes servings the
objectives and purposes of the AGC. He says that the centralized
operation of banking accounts is impractical
and impossible. The
funds held in various accounts collected from the congregants were
applied,
inter alia,
to
maintain and support the elderly, widows and pensioners. They were
also used to defray the monthly expenses such as the salaries
for the
34 Evangelists/Ministers and employees' salaries; rental of class
rooms and halls used for church services, telephone,
Insurance, fuel,
and the like expenditure.
[9]
Mr
Ramme claimed that the Gigaba-group's attempt to re-establish the
central control of funds was aimed at financially crippling
the
Zimu-group and eliminating it from the AGC. He is of the view that
the freezing of the bank account, as sought in this application,
has
the effect of disrupting and indeed preventing the performance of the
work by the Church.
[1
0]
Almost eight
years prior to the launching of this application, on 17 April 2001,
at the then Durban and Coast Local Division under
Case No: 1161/99
Combrink J committed Rev MP Zimu to a term of six months imprisonment
for being in contempt of the Court order
dated 02 July 1999 issued by
Tshabalala J which was wholly suspended on certain conditions. A
declarator was also issued to the
effect that Rev Zimu relinquished
his office of Moderator of the AGC which he had appropriated to
himself in contempt of the order
of that Court and that he had
admitted that such appointment as moderator was unconstitutional and
in contravention of the Court
order. In addition, he was interdicted
from,
inter alia,
either directly
or indirectly acting in any office of the AGC for which elections
must be held at a duly constituted conference
unless elected to such
an office at a duly constituted conference of the AGC.
[11]
The question of the purported existence
of two legitimate groups within the AGC was considered by Ntshangase
J during the contempt
proceedings brought against Mr Zimu in the
KwaZulu-Natal High Court, Durban, under case No: 14614/07 and
rejected as preposterous.
The learned Judge held:
"It is preposterous to think
that a single church can exist as two split groups. Congregants
within the African Gospel Church
can exists simply as followers of
Zimu as a person but [also] as followers of the existing Moderator
[Rev Gigaba] both as a person
and as a leader of the church. The
absurdity which would flow from a recognition as African Gospel
Church Gigaba or Zimu is that
there could also emerge African Gospel
Church Dlamini.... It is incredible."
[12]
On
11 March 2013 the suspended sentence by Combrink J was put into
effect by Ntshangase J who committed Rev Zimu to imprisonment
for six
months for being in contempt of Combrink J's order and a further six
months imprisonment was imposed of which four months
thereof were
suspended for five years on condition,
inter
alia,
that Mr Zimu does not hold
himself out to be a leader of the AGC. Mr Zimu was refused leave to
appeal by Ntshangase J and on 11
June 2013 the Supreme Court of
Appeal dismissed his application for leave to appeal Ntshangase J's
judgment and order.
[13]
Against the backdrop of what is said above Mr Ramme's contention that
he belongs to a legitimate group
of AGC under the leadership of Mr
Zimu is without any substance and must be rejected as false.
[14] The
Constitution of the AGC provides that the General Treasurer of the
AGC shall act as custodian of
all funds of the church. He is required
to keep accurate record of all receipt and disbursements and to make
all payments including
the employees' salaries. It is also his
obligation to give a financial report to the Central Committee and at
the annual conference
of the AGC comprising all the AGC's genuine,
bona fide and lawfully ordained Ministers and Evangelists (and their
wives) and elected
delegates from every circuit of the AGC.
[2]
Therefore, there can be no question that the funds collected from
congregants and members of the AGC are required to be remitted
to the
General Treasurer.
[15] The
postulate by Mr Ramme of a decentralised church operation where he
and other persons were entitled
to hold funds of the church collected
from the congregants in the name of the Church is fallacious.
Apparent from Mr Ramme's averments
is that the funds, which were
collected from congregants and members of the AGC, were not remitted
to the General Treasurer. There
is also a dearth of evidence that Mr
Ramme and his associates ever accounted to the General Treasurer of
the AGC with regard to
those contributions. It is remarkable that Mr
Ramme states that the funds collected were applied to support the
elders, widows
and pensioners but the annexure allegedly containing
the list of the purported beneficiaries is conspicuously absent from
his affidavit.
To my mind, in conducting themselves as they did, Mr
Ramme and his associates contravened the Constitution of the AGC.
[16]
In
conclusion, Mr Ramme failed to demonstrate that the second respondent
was lawfully entitled to hold the unspecified funds in
the Standard
Bank account collected from the AGC congregants. His unsubstantiated
allegations falls to be rejected merely on the
papers as they stand.
It follows that the rule nisi issued on 15 May 2009 ought to be
confirmed. The cost shall follow the result.
I make the following
order.
Order
1.
The
Rule nisi dated 15 May 2009 is hereby confirmed.
2.
Standard
Bank Ltd, the first respondent, is ordered to pay the funds in the
Standard Bank account No [….], held under the
name of the
African Gospel Church, Kimberley, into the trust account of Preston
Whyte and Associates, the attorneys for the
African Gospel Church, to
be disbursed to the African Gospel Church, the applicant; and
3.
The
costs of this application are to be borne by Mr Phillip Ramme, the
deponent to the answering affidavit and a signatory to the
Standard
Bank AGC Kimberley Account Number [….], the second respondent.
MV Phatshoane J
APPEARANCES:
FOR
THE APPELLANT :
Adv A Stanton
Instructed by Fletchers Attorneys:
FOR
THE RESPONDENTS: No
appearance
[1]
Pages 11-18 of "E" contains various Bank accounts held at
various Banking institutions including Standard Bank.
[2]
Article XII at page 9 of the Constitution of the AGC set out the
duties of the General Treasurer. In terms of Article IX of the
Constitution at page 5 the governance of the church shall be carried
out by the district conference and the annual conference