About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Mthatha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Mthatha
>>
2018
>>
[2018] ZAECMHC 68
|
|
Matiso and Others v Uniting Presbyterian Church In Southern Africa (CA 47/2018, 4481/2016) [2018] ZAECMHC 68 (4 December 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
CASE
NO. 4481/2016
APPEAL
CASE NO. CA 47/2018
[Not
reportable]
In
the matter between:
AYANDA
MATISO
First
Appellant
LOYISO
MDINGI
Second
Appellant
MINIYAKHE
NKEBE
Third
Appellant
MANELI
NKEBE
Fourth
Appellant
GCOBANI
KHOLWANE
Fifth
Appellant
SANDI
MFEYA
Sixth
Appellant
MASIBULELE
MANCOTYWA
Seventh
Appellant
SIVE
MANCOTYWA
Eighth
Appellant
and
UNITING
PRESBYTERIAN CHURCH IN SOUTHERN
AFRICA
Respondent
JUDGMENT
MBENENGE
JP:
[1]
On 08 June 2017 the court
a
quo
[1]
confirmed a
rule
nisi
which
called upon the respondents (the appellants in the instant appeal) to
show cause why an order in the following terms should
not be made
final:
“
[1.1]
[That] [t]he respondents and any other person/s acting in concert or
in
cahoots
with the respondents under the name of the
Reformed
Presbyterian Church in Southern Africa
be
and are hereby interdicted and restrained from holding a church
service on
11
th
December 2016
or on any date thereafter at
Ross
Mission
or at any of the
28
preaching stations
[belonging] to
Ross
Congregation
of
the applicant;
[1.2]
That
the respondents and any other person/s acting in concert
or in
cahoots
with the respondents under the name of the
Reformed Presbyterian Church in Southern Africa
be and are
hereby
interdicted and restrained
from
threatening,
harassing, intimidating
and interfering in any way whatsoever
with the applicant’s congregants, church officials or followers
in their worship or
other Church activities in any of the applicant’s
properties and its
28 outstations
[belonging] to
Ross
Congregation;
[1.3]
That
the respondents and any other person acting in concert or
in
cahoots
with the respondents under the name of the
Reformed
Presbyterian Church in Southern Africa
be and are hereby
interdicted and restrained from disrupting the church service to be
held on
11
th
December 2016
or on any
date thereafter at
Ross Mission
or at any church hall of the
28 preaching stations
belonging to
Ross Congregation
of
the applicant.”
[2]
The applicant before the court
a quo
had been cited as “
the
Uniting Presbyterian Church in Southern Africa, a voluntary
association of Presbyteries…
[with]
perpetual
succession
” empowered “
to sue and be sued in its
own name
” (the respondent in these appeal proceedings,
otherwise referred to as “
the UPCSA
”).
[3]
The affidavit in support of the application was deposed to by
“
Phindile Nqakwana
” (Rev Nqakwana), who claimed to
have been authorised “
to depose to
[the]
affidavit on
[the UPCSA’s]
behalf
” in his capacity as “
the
Moderator of the Mthatha Presbytry
” of the UPCSA.
[4]
It was alleged, in support of the relief sought, that the appellants,
all of whom are members
of the Reformed Presbyterian Church of
Southern Africa (the RPCSA), an entity which did not have any rights
to the property which
formed the subject of the application, had
behaved in a disruptive manner towards the UPCSA and the Ross Mission
congregants; had
threatened and planned to disrupt services conducted
at the Ross Mission Church hall of the UPCSA that was to be conducted
on 11
December 2016; a week before that date the appellants and
“
their small group
” had forcefully broken the main
gate into the church premises, threw it away and broke the door locks
with a view to gaining
entrance into the church hall. The UPCSA, so
it was alleged, had brought the application
qua
owner of the
Ross Mission Church building.
[5]
The affidavit filed in pursuit of the opposition to the application
was deposed to by “
Ayanda
Matiso
”
(Mr Matiso), cited in the proceedings before the court
a
quo
as the first respondent. He identified himself as being “
a
member of a church commonly known as Reformed Presbyterian Church in
Southern Africa
”,
adding that he had been “
authorised
by the rest of the respondents
[2]
to oppose
[the]
application
on their behalf as well
.”
[6]
Besides stating that there had been a non-joinder of the RPCSA, the
appellants contended
that the application had been predicated on the
fallacious basis that the subject property belonged to the
respondent, yet it was
not “
owned by the respondent,
”
but “
by the community”.
He also said:
“
Since we have
always been in control and possession of our church when we found
locks locked and we broke the locks that were put
up by a person we
did not know and replaced it with ours.”
[7]
In its
ex tempore
judgement the court
a quo
traced the
long history of the dispute between the former members of the RPCSA
and the UPCSA, and became satisfied that the subject
property was
owned by the UPCSA. In the final analysis the court
a quo
was
satisfied that the requisites for the grant of a final interdict had
been fulfilled, hence it confirmed the
rule nisi
.
[8]
The appellants thereupon sought leave of the court
a quo
to
appeal against the order confirming the
rule nisi
. In
the notice of application for leave to appeal no contention was
raised that Rev Nqakwana lacked the authority to institute
the
proceedings and to prosecute same on behalf of the UPCSA.
[9]
The matter now serves before this court with the leave of the court
a
quo
[3]
,
that court having permitted the appellants to amplify the application
so as to address a further issue “
relating
to the lack of authorisation, by the applicant, to bring the
application proceedings
”.
The court went on to say:
“
Whilst there
is reference in the founding affidavit to the authority of the
deponent, to depose to the founding affidavit, there
is no reference
to the authorisation, to bring the proceedings.
This point was
raised in the Heads of Argument which were placed before Alkema J but
has not received his consideration in the judgment
which he gave
after hearing argument. In my view this would appear to be
another area in which there is a reasonable prospect
another court
may come to a different conclusion and accordingly that it would be
an issue properly raised before a court of appeal.”
[10]
At the hearing of the appeal Mr
Zilwa
who, together with Mr
Matanda,
appeared for the respondent, correctly in my view, conceded that the
issue of lack or otherwise of Rev Nqakwana’s authority
to
represent the respondent is one of law, sufficiently covered in the
papers and worthy of being considered by this court.
[4]
In any event, even if this court had been of the view that in a
ground of appeal not covered by the terms of the leave granted
there
was sufficient merit to warrant the consideration thereof, it would,
upon leave therefor having been sought, permit such
a ground to be
argued.
[5]
[11]
The issues central to this appeal are two-pronged: first, the
authority of Rev Nqakwana to champion
the cause of and represent the
respondent in the proceedings before the court
a quo
and,
second, the correctness or otherwise of the court
a quo’s
finding that the requisites for the grant of a final interdict
had been met. These are dealt with
seriatim
.
[12]
The contention raised on behalf of the appellants that the respondent
had not established the requisite
locus standi
has no merit.
[13]
It is trite law that in motion proceedings any person who can attest
positively to the facts is entitled
to depose to an affidavit,
whether it is the founding or any ancillary affidavit, and no
specific authority therefor is required.
[6]
[14]
A line should be drawn between authorisation to launch and prosecute
proceedings on behalf of a juristic
person and the authority to
depose to an affidavit in support of the relief sought in the
relevant proceedings. The notice of motion
commencing the proceedings
points to the attorney mandated to represent the applicant in the
proceedings as does the notice to
oppose in the case of any person or
entity opposing the proceedings. Should the adversary wish to
challenge the authority of the
attorney to launch (and prosecute) the
proceedings on behalf of the juristic person, rule 7 of the Uniform
Rules must be resorted
to.
[15]
In
Eskom
v Soweto City Council
[7]
,
Flemming DJP crystalized this issue in the following apt terms:
“It was argued that the respondent's
claim that the matter be referred to arbitration depends upon a
litigious step (the present
interlocutory application) taken by the
deponent, Rossouw, whose authority to institute the legal proceedings
is not proved. Rossouw
states that he was duly authorised '
to make
this affidavit'
. Counsel argued that that is different from
authority '
to bring this application'
. Furthermore, there is
no resolution in proof of his authority.
I find the regularity of arguments about the
authority of a deponent unnecessary and wasteful.
…
… If the attorney is authorised to bring
the application on behalf of the applicant, the application
necessarily is that
of the applicant. There is no need that any other
person, whether he be a witness or someone who becomes involved
especially in
the context of authority, should additionally be
authorised. It is therefore sufficient to know whether or not the
attorney acts
with authority.
As to when and how the attorney's authority
should be proved, the Rule-maker made a policy decision. Perhaps
because the risk is
minimal that an attorney will act for a person
without authority to do so, proof is dispensed with except only if
the other party
challenges the authority. See Rule 7(1). Courts
should honour that approach…
In the present case the '
interlocutory
application'
was delivered under the name and signature of Mr
Attorney Bennett. He purportedly did so on behalf of respondent. If
he was authorised
to do that, respondent is bound to accept the
application as his application. That remains so irrespective of
whether deponent
Rossouw was also authorised
'to bring this
application'
. There is no logical need to insist on proof that
someone other than Bennett was also authorised.
There is a second aspect to the situation. The
evidence of Rossouw cannot be ignored because he is not '
authorised
'.
If Attorney Bennett has authority to act on respondent's behalf, he
may use any witness who in his opinion advances respondent's
application. A witness, also when a deponent, may testify even if he
has no authority to bring, withdraw or otherwise deal with
the
application itself.
Barclays National Bank Ltd v
Love
1975 (2) SA 514 (D) at 515C-E and
515F-G.
If then applicant had qualms about whether the
'
interlocutory application'
is authorised by respondent, that
authority had to be challenged on the level of whether Attorney
Bennett held empowerment. Apart
from more informal requests or
enquiries, applicant's remedy was to use Court Rule 7(1). It was not
to hand up heads of argument,
apply textual analysis and make
submissions about the adequacy of the words used by a deponent about
his own authority.”
[16]
The principle enunciated in the
Eskom
and
Ganes
cases
[8]
was followed in
ANC
Umvoti Council Caucus and Others v Umvoti Municipality,
[9]
where it was held:
“[28] … The
position now is that, absent a specific challenge by way of rule
7(1), ‘
the mere signature of
the notice of motion by an attorney and the fact that the proceedings
purport to be brought in the name of
the applicant
’
is sufficient. It is further my view that the application papers are
not the correct context in which to determine whether
an applicant
which is an artificial person has authorised the initiation of
application proceedings. Rule 7(1) must be used…
[29] There was no
challenge in terms of rule 7(1) in the application which is the
subject of this
appeal. The appropriate procedure was therefore not
used by the appellants. It was accordingly not necessary for the
applicant
to prove the authority to initiate the application, nor
appropriate to attempt to do so on the papers. It was also not
necessary
for the court
a quo
to make a finding relating to
authority on the affidavits delivered in the matter. Since there was
no challenge in the required
manner to the authority of the
respondent’s attorney who signed the notice of motion and
initiated the application in the
accepted way, this court does not
have to deal with the question of authority. I am therefore of the
view that the appeal on this
issue must fall.”
[17]
I am also mindful of the pronouncement in
Cullinan
Holdings Limited v Lezmin
[10]
wherein Ranchod J expressed the view that the
ANC
Umvoti
case
[11]
was decided in the context of rule 7(1) which relates to the filing
of a power of attorney to act on behalf of a party and in proceedings
where the authority to institute legal proceedings on behalf of the
applicant company had been disputed in the papers. The distinction
sought to be made in the
Cullinan
Holdings
case
[12]
does not find support from the
ANC
Umvoti
case,
[13]
which makes it clear that application papers are not the correct
context in which to determine whether an applicant which is an
artificial person has authorised the initiation of application
proceedings.
[18]
The appellants in
hoc
casu
elected not to challenge the authority of the respondent’s
attorney to represent the respondent in the proceedings before
the
court
a
quo
in
accordance with rule 7. They contented themselves with challenging,
by way of a bald denial, the authority of Rev Nqakwana to
depose to
the founding affidavit, which was unavailing. No facts were put up in
support of such challenge. On the contrary, there
is evidence
aliunde
to infer, in so far as it was argued that such authority was
necessary,
[14]
that Rev Nqakwana had the authority to depose to the affidavit in
support of the relief that had been sought in the application
that
served before the court
a
quo
.
The respondent is, as will be demonstrated shortly herein under, the
owner of the subject property. There is no reason in logic
why a
moderator would go on a frolic of his own and seek an interdict
restraining dissident members from being disruptive during
church
worship services.
[19]
On the merits, the parties locked horns at two fronts: the existence
or otherwise of a clear right
and whether there were facts
establishing an injury or an act of interference actually committed
or reasonably apprehended.
[20]
The appellants resisted the application before the court
a
quo
on
the ill-begotten notion that the subject property was owned by the
Ross community, and not the respondent. This flies in the
face of the
endorsement made on the relevant title deed which makes it plain that
on 14 July 2004 the subject property was transferred
to the
respondent.
[15]
[21]
Mr
Kunju
who, together with Ms
Nqabeni,
appeared for
the appellants, was constrained to concede that the endorsement on
the title deed served to dispel any notion that
the subject property
did not belong to the respondent. That concession put paid to the
contention that the court
a quo
erred in finding that the
respondent was the owner of the subject property and that, therefore,
a clear right had been established.
[22]
The appellants were, in my view, also proven as having interfered
with the respondent’s ownership
of the subject property when,
at the very least, they forcefully broke the locks on the doors to
the church’s premises and
replaced the same with theirs. That
conduct was, in and by itself, sufficient to ground the proceedings
that are the subject of
this appeal, as indeed there was a reasonable
apprehension that the appellants might interfere with or disrupt
church activities
at Ross Mission. Schisms such as the instant one
have sometimes led to bloodshed even in the house of worship.
[23]
The court
a
quo
was correct in granting the order it
did, and there is no basis for tampering with the impugned order.
[24]
Costs of the appeal should follow the result. Mr
Zilwa
and Mr
Kunju
were
ad
idem
that the involvement of two counsel was, on both sides, justified. I
disagree. The question to be posed and answered, as always,
is
whether it was reasonable for a party to brief two counsel, which is
a matter of judicial discretion to be exercised with due
regard to,
inter
alia
,
the amount involved, the nature of the issue in dispute, the length
of the hearing and argument, the importance of any questions
of
principle or of law and the number of legal authorities quoted.
[16]
I am quite mindful of the fact that normally where two counsel have
been employed, the court will require cogent reasons why the
fees of
one of them should be disallowed.
[17]
Despite the agreement reached by the parties on the aspect of costs,
I am not persuaded that costs of two counsel should be allowed.
The
papers are not voluminous. The issues raised before the court
a
quo
and in this court are not complex; they are governed by settled legal
principles. If one has regard to the issues raised in the
appeal, two
counsel were, in my view, not even a reasonable precaution.
[25]
In the result,
the appeal is dismissed with costs
.
S
M MBENENGE
JUDGE
PRESIDENT OF THE HIGH COURT
I
agree
J
E SMITH
JUDGE
OF THE HIGH COURT
I
agree
N
R MTSHABE
ACTING
JUDGE OF THE HIGH COURT
Counsel
for the appellants
:
V
Kunju
(with him
V
Nqabeni
)
Instructed
by :
Brauns Nyembezi Inc.
Mthatha
Counsel
for the respondent
:
PHS
Zilwa
SC (with him
EM Matanda
)
Instructed
by
: Mantyi Attorneys
Mthatha
Date
heard
: 19 November
2018
Date
judgment delivered
:
04 December
2018
[1]
Per
Alkema
J
[2]
All of whom were cited in their
individual capacities
[3]
Per
Brooks J, Alkema J having been no longer available.
[4]
See
Minister
of Justice and Correctional Services v Walus
(777/2016) [2017] ZASCA 99; [2017] 4 All SA 1 (SCA); 2017 (2) SACR
473 (SCA) (18 August 2017), where it was held that:
“
[23]
The duty of an appellate court is to ascertain whether the court
a
quo
came to a correct conclusion on the case before it. Its role is
generally limited to deciding issues that are raised in the appeal
proceedings and it may not, on its own, raise issues which were not
raised by the appellant. However, where a point of law is
apparent
on the papers (even where it has been expressly abandoned) but the
common approach of the parties proceeds on a wrong
perception of the
law, and its consideration on appeal would involve no unfairness to
the party against whom it is directed,
the court is not only
entitled, but is also obliged,
mero
motu
,
to raise the point of law and require the parties to deal therewith.
Otherwise it would be bound to make a decision that is
premised on
an incorrect application of the law, despite the accepted facts,
merely because a party failed to raise the legal
point, as a result
of an error of law on his part. That would infringe the principle of
legality.”
[5]
S v Sefatsa and Others
1988 (1) SA 868
(A) at 877 c-f
[6]
Ganes and Another v Telecom
Namibia Ltd
2005 (3)
SA 615
(SCA) at 624 G-I
[7]
1992 (2) SA 703
[8]
Supra
[9]
2010 (3) SA 31 (KZP)
[10]
2768 CC 2016 JDR 1578 (GP)
[11]
Supra
[12]
Supra
[13]
Supra
[14]
Cf.
Plettenberg
Bay Country Club v Bitou Municipality
[2006]
4 All SA 395
(C ), para [8], where it was held that such authority
is, strictly speaking, not necessary.
[15]
The endorsement points to 12
properties, including the subject property, as having been
transferred to the respondent
[16]
Janse van Rensburg NO and
Others v van der Merwe
(14010/05)
[2007] ZAGPHC 56
(17 May 2007)
[17]
Grobelaar v Havenga
1964 (3) SA 522
(NPD) at 530 B-G