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[2017] ZAFSHC 108
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African National Church v Tsatsa and Others (2308/2016) [2017] ZAFSHC 108 (15 June 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 2308/2016
In
the matter between:
AFRICAN
NATIONAL
CHURCH
Applicant
(Registration
number: 2009/000473/08)
(Association
incorporated under Section 21 of the Companies Act)
and
TB
TSATSA
1st
Respondent
MM
KOLOLO
2nd
Respondent
RM
KOLOLO
3rd
Respondent
TJ
TSATSA
4th
Respondent
ZM
TSATSA
5th
Respondent
K
MPEMVANA
6th
Respondent
M
MOSOEU
7th
Respondent
N
QAI
8th
Respondent
ELIAS
SENOGE
9th
Respondent
HILLARY
NDAYI
10th
Respondent
HEARD
ON: 16 MARCH 2017
JUDGMENT
BY: RAMPAI, J
DELIVERED
ON: 15 JUNE 2017
[1]
These are motion proceedings. The applicant seeks an order for
the incarceration of six of the 10 respondents for contempt
of
court. The alternative relief sought by the applicant is the
imposition of a monetary punitive five on each of the respondents.
Moreover, the applicant seeks restraint orders against the four
remaining respondents. It is the applicant’s case that
some of the respondents disobeyed certain court orders and that
others have infringed its rights and thereafter to continue with
their chaotic acts of interference, and victimization, disruption and
disorderliness. The application is opposed by some
of the
respondents.
[2]
Before me were four applications, viz: the condonation
application, the application to strike out, the application to
incarcerate and the application to restrain. The third was
obviously the main application. I shall deal with these
proceedings in the same order.
*[3]
In the
first place the
condonation
application
.
It was brought by the fourth respondent, Tebello Johannes Tsatsa and
the fifth respondent, Zililele Martin Tsatsa.
Briefly stated
their version was that the sheriff served the main application on
them; that they decided to oppose it;
that they
accordingly instructed Attorney Harrington Jr, an attorney of
Bethlehem; that he appointed Attorney JP Smith of
Phatshoane
Henney in Bloemfontein as his city correspondents; that notice
of their intention to oppose was filed on 5 July
2016; that
their attorneys withdrew on 19 September 2016 because they were not
placed in sufficient funds; that they
struggled to raise the
funds; that the fourth respondent applied to Capfin Bank;
that the R17 000 loan he received
was not enough to cover the
required legal bill; that the fifth respondent’s loan
application to Capitec Bank was unsuccessful;
that his loan
application to Absa Bank was similarly fruitless; that on 7
October 2016 Dr Kolobe paid R40 000 on their
behalf to their
attorneys; that the contemplated relief of incarceration sought
by the applicant posed a serious threat to
their civil liberty;
and that excellent were their prospects of success on the substantive
merits of the main application.
[4]
The applicant attacked the version of the two brothers as narrated by
the fifth respondent. The grounds of the attack
were that they
had failed to show good cause for their neglect to file their
answering affidavit; that the relief of
condonation
was not there for the mere asking; that they had disobeyed the
court order; that they had no good prospects
of success on the
merits of the main application; that they deserved to be
sanctioned and that their alleged unfortunate
situation occasioned by
their financial difficulties by itself constituted no sufficient
cause to justify their considerable delay.
[5]
The financial plight of the respondent was a material consideration
in my view. The fifth respondent explained the adverse
impact
of their financial predicament. He said:
“
The
sole reason why we would not file opposing papers timeously was a
lack of funds. My brother obtained a loan from
Captin
,
gathered a meagre sum from what was left of my and my brother’s
salary and also borrowed funds from
Dr
Kolobe
.
We have to repay all these amounts.”
[6]
To compound their financial predicament, the fourth respondent was
still indebted to Harringtons Attorneys in an amount of approximately
R135 000 in respect legal services rendered under case number
1581/2015. He was one of the respondents in that case.
He
successfully opposed the application which had been filed by the same
applicant church. Notwithstanding his success, the
applicant
had failed to pay his taxed bill of costs and disbursement in the sum
of R165 550.96. That bill was still
unpaid when the
applicant launched the current main application to have them
committed, and incarcerated or fined.
[7]
The applicant denied those facts but admitted that the
rule
nisi
it had obtained in 2015 against the fourth respondent and others was
finally discharged. However, he averred that the
rule
nisi
in
question was discharged because the applicant did not have sufficient
funds to prosecute its application to its logical conclusion.
The applicant’s contention in effect supported the contention
of the respondents. Lack of funds may have an adverse
impact on
a litigant’s to intention safeguard his or her interests.
This is precisely the argument advanced by the
respondents.
Lack of financial resources is, therefore, a material consideration
in this condonation application.
[8]
But it did not all end there. It was undisputed that the 2015
provisional order against the fourth respondent was discharged;
that the applicant was obliged to pay the fourth respondent’s
costs and that it was not the applicant’s case that it
had
since settled the fourth respondent’s bill. In view of
all these, the applicant’s denial was not made in
good faith.
Its failure to pay such costs adversely inhibited the fourth
respondent’s financial ability to subsequently
defend himself
in respect of the 2016 application launched against him by the same
defaulting applicant.
[9]
In my view both of these respondent’s went to great lengths to
raise funds in order to oppose the current application.
They
demonstrate, without any shadow of doubt, their serious and honest
intentions to resist, at all costs, the relief sought against
them.
On the facts, the interests of justice strongly militated against
shutting the door in the face of any of them.
[10]
The determinant factor was whether the respondents had shown good
cause for the delay in filing their answering affidavit on
13 October
2016, some 100 days after they had filed notice of their intention to
oppose. I am satisfied that they have discharged
the onus.
The applicant’s main argument was that, in their condonation
application, the respondents did not deal with
the prospects of
success. The argument did not impress me. The omission
was neither here nor there.
[11]
The plain truth was that the respondents thoroughly dealt with
substantive merits of their case in their answering affidavit
which
also embodied their condonation application. Their answering
affidavit was a 21 page document excluding annexures.
It
consisted of 95 paragraphs of which the first 25 were devoted to the
condonation application and the rest to the main application.
At para 22 the fifth respondent had this to say:
“
We
have excellent prospects of success.”
[12]
From para 26 of the answering affidavit the fifth respondent
highlighted the substantive strength of their defence and the
substantive weaknesses of the applicant’s case. In those
circumstances, where the condonation and the main application
were
structurally intertwined, it was perfectly in order to deal with the
prospects of success only in the main compartment of
the answering
affidavit. In my view it would have served no practically
useful purpose for the respondents to have also fully
addressed the
merits in the condonation compartment of the answering affidavit.
Burdening the court record with unnecessary
repetition is generally
frowned upon.
[13]
In view of the above considerations, I am persuaded that good cause
has been showned why the lateness of the respondents in
filing their
answering affidavit should be condoned. Given the peculiar
circumstances of this particular cases, if I were
to refuse
condoning, my decision would not have been compatible with proper
exercise of the judicial discretion entrusted to me.
I would,
therefore, grant the condonation application of the fourth and fifth
respondents.
Melane
v Santam Insurance Co Ltd
1962 (4) SA 532
(A).
*[14]
In
the second place, the application to strike out
.
It too was brought by the same respondents, namely: the fourth
and the fifth respondents. The common ground
of their
objections was that certain paragraphs of the founding affidavit
contained inadmissible hearsay.
[15]
The relief sought by respondents was that the following paragraphs be
entirely struck out:
7.3, 19.3, 19.5, 20.2, 20.4.1, 20.5, 21.1, 22, 14.7, 18.1 and 19.1
[16]
As regards par 7.3, the applicant stated, through its founding
deponent, Thabo Hendrik Jiya, as follows:
“
7.3 As
is evident from
Part
hereof,
the orders were disregarded and the
1
st
– 5
th
Respondents
in
acting through
the
7
th
& 8
th
Respondents
disrupted the Applicant in preventing it from holding church services
or the like at its chapter in Brandfort.”
(my
emphasis line)
[17]
As regards par 19.3, the applicant stated:
“
19.3.5
This is important because the
1
st
– 5
th
Respondents
in
acting through
the
7
th
& 8
th
Respondents
‘magically’ appeared at the property of the Applicant’s
chapter’s same day they decide to hold church there
to revive
the said chapter, claiming that they (The Respondents or the
Association rather) hold church there and for the Applicant’s
chapter not to continue with its church services or the like on its
own property.”
[18]
As regards par 20.2, the applicant stated:
“
20.2
Upon arrival at the property same day it was evident that the members
of the Respondent was (sic) all of a sudden there to
‘hold
church’ under the leadership of a certain Mzunjani Mosoeu, the
7
th
Respondent
,
who was unbeknown to me at the time.”
[19]
As regards par 20.4, the applicant stated:
“
20.4
I
was further informed that upon (sic) a meeting that was held on 2
April 2016
where the
7
th
Respondent
was present, held under the name of the ‘
African
National Church
’,
whichever name it declares to have in terms of it being an
‘Association’, and that he wasn’t told therein
of
the Applicant church service or the like to be held the day of the
incident.
(my
emphasis line)
20.4.1
The question however arises how the
7
th
Respondent
knew that the
Applicant would be there, especially following the fact that he was
present at a meeting along with the
1
st
to 6
th
Respondents
, who has or
reasonably had to have had knowledge of such a possibility- due to
the letters sent to them.”
[20]
As regards par 20.5, the applicant stated:
“
20.5
According
to the
7
th
Respondent
the following members were at such a meeting:
-
TP
TSATSA
(First
Respondent)
-
M
MKOLOLO
(Second
Respondent)
-
R
MKOLOLO
(Third
Respondent)
-
TJ
TSATSA
(Fourth
Respondent)
-
ZM
TSATSA
(Fifth
Respondent)
-
K
MPEMVANA
(Sixth
Respondent)
-
MZUNJANI
(Seventh
Respondent)
-
N
QAI
(Eight
Respondent)”
(my
emphasis line)
[21]
As regards par 21 the applicant stated:
“
21.1
The
1
st
– 5
th
Respondents
disobeyed
said orders
to (sic) acting contrary thereto in preventing the Applicant from
being able to hold Church at its chapter in Brandfort on the
property
known as Stand 1809, Majwemasweu, Brandort,
through
the
7
th
& 8
th
Respondents
.
21.2
I submit that it is clear from the averments contained herein that
the
1
st
– 5
th
Respondents
acted through the
7
th
& 8
th
Respondents
.”
(my
emphasis line)
[22]
As regards par 22, the applicant stated:
“
Wherefore
the Applicant applies for the above Honourable Court to find the
1
st
– 5
th
Respondents in contempt of Court
and grant
Part
A
of
the Notice of Motion
as
they clearly disregarded the Court’s order of
22
September 2011
as
well as that of
01
August 2013
respectively.”
(my
emphasis line)
[23]
It has been held that a person may acquire knowledge of the
occurrence of an event in three possible ways:
“
Knowledge
of the occurrence of an event might come to a person in one of three
ways. It might come to him or her through directly
experiencing
the occurrence of the event. Or the occurrence might be
reported to him or her by someone else. Or he
or she might
deduce that the event has occurred by inference from other facts.
If knowledge of the occurrence of the event
has come to a witness
from direct observation then his or her evidence is admissible to
prove that it occurred. If that knowledge
was acquired from
someone else then a proper basis must be laid for admitting it as
hearsay and enabling its weight to be evaluated.
And if the
knowledge was acquired only by inference then that is not evidential
material at all: it is for a court to draw
the inference itself
upon proof of primary facts.”
President
of RSA & Others v M & G Media Ltd
[2011] ALL SA 56
(SCA) par [37].
[24]
In the instant matter, the applicant did not have personal knowledge
of the facts alleged in the paragraphs specified above.
I
randomly extracted only seven out of many passages complained of.
The golden thread which ran through all of them was hearsay.
The
hearsay relied upon was inadmissible evidence. Indeed the
applicant’s founding deponent, Jiya, acknowledged
the offensive
nature of his factual allegations. At par 1.4 of the founding
affidavit he said:
“
1.4
submit to this Honourable Court that where I refer to the facts in
this Affidavit which does not fall within my personal knowledge,
I
have no reason to doubt the correctness thereof and I request the
Honourable Court to accept the abovementioned facts as evidence
in
accordance with the provisions of the
Law
of Evidence Amendment Act, 45 of 1988
;”
Section
3
thereof specifies circumstances in which hearsay can be received as
admissible evidence in legal proceedings. In this matter,
however, the applicant failed to establish any of those permissible
statutory exceptions.
[25]
Consequently, it was common cause that Jiya had no personal knowledge
of the factual allegations he attributed to the fourth
and fifth
respondents. His second hand knowledge was, to a great extent,
allegedly derived from the seventh respondent, Mzunjani
Mosoeu and,
to a less extent, from the eight respondent, Nomsa Qai.
However, no confirmatory affidavit by either the seventh
respondent
or the eight respondent was attached to the founding affidavit.
To make matters worse, Jiya proffered no explanation
for such
material omissions. In these circumstances
section 3
cannot be
invoked.
[26]
Obviously Mosoeu and Qai were, according to Jiya, the primary sources
of the facts set out in the founding affidavit.
The probative
value of his evidence entirely depended on their first hand knowledge
and account of the incident(s) which precipitated
the main
application. Absent their confirmatory affidavit, no evidential
foundation exists to sustain his version premised
on in admissible
hearsay. It would also appear that Jiya knew very little about
his two primary informants. He knew
neither’s residential
address.
[27]
During the hearing of this application the seventh and the eighth
respondents were in attendance. None of them had filed
an
answering affidavit. I gained the impression that they
associated themselves with the cause of the fourth and fifth
respondents
and not the applicant’s.
[28]
The further relief sought by the respondents was that the following
paragraphs of the founding affidavit be partially struck
out:
10.5
and 20.5
[29]
At par 10.5 the applicant stated:
“
10.5
All the members of the Applicant, me obviously included, love
the African National Church and consider it is our only
spiritual
home. Contributory thereto we only serve the best interest of
the Applicant and its members and I for one will
not desert the
notwithstanding the uncalled for onslaught to which the Applicant is
subjected to at the moment. It is not
my intention to drag the
church to the earthly Courts once again and the decision to initiate
this further Application was not
taken lightly. Unfortunately
the various Respondents
inter
alia
those cited herein along with their various followers act as a frolic
of their own which causes irreparable harm and they’re
simply
not interested to act in the best interest of the church. As
such I have virtually no other option than to approach
the Honourable
Court in order to obtain the necessary relief.”
[30]
In the preceding par I have highlighted the portion which the
respondent complained about. The alleged harmful act, described
as “a frolic of their own”, is not sufficiently
particularized to enable the respondents know precisely what it is
they are alleged to have done which had caused the applicant
irreparable harm. The alleged followers were not identified.
Exactly where and when the alleged incident occurred remained a
puzzle. The passage is riddled by vagueness. The
objection
is sustained.
[31]
I have quoted par 20.5 earlier. At that par the applicant’s
founding deponent mentioned the names of eight persons
described as
members of a nameless association. The eight were the 1
st
to the 8
th
respondent, according to the allegation attributed to the 7
th
respondent, Mzunjani Mosoeu. The insinuation was that those
respondents had attended a meeting somewhere on 2 April 2017.
Since I have already struck the whole par out, complaint requires no
further attention. It follows, as a matter of logic,
that there
can be no names to be deleted. The entire par no longer exists.
[32]
Although I have not critically commented on all the paragraphs under
attack, I have nonetheless considered all of them.
Indeed all
of them, without any exception, were offensive. Accordingly, I
am inclined to strike all of them out seeing that
they were all
premised on inadmissible hearsay evidence.
*[33]
In the
third place, the contempt component of the main application
.
The version of the applicant was poorly narrated or drafted, I have
to say. I tried to put the disjointed and scattered
pieces of
the puzzle together. Dairy was so a very cumbersome exercise.
The picture that emerged showed that more than
a century ago, in 1914
to be precise, a church was formed somewhere in this country.
It was named African National Church
by its founding fathers and
mothers. It grew up with the passage of time. The growth
led to the establishment of branches
at various places. Among
others, today the church has chapters in the following towns in this
province: Botshabelo,
Brandfort, Hennenman, Kroonstad,
Odendaalsrus, Phuthaditjhaba, Soutpan, Thaba Nchu, Theunissen,
Ventersburg, Verkeerdevlei and
Welkom.
[34]
Ninety five years after its formation the character of the church was
incorporated. It was registered as an association
in terms of
section 21
Companies Act 21/1973 on 14 January 2009 as would more
fully appear from “anx fa6”, “anx fa5” and
“anx
fa4”.
[35]
It would appear that the registration of the church as an associating
incorporated under section 21, did not go down well among
some of its
members. The simmering dissatisfaction grew stronger and
stronger. The church was ripped apart. The
antagonists,
those opposed to the incorporation of the church and the
protagonists, those in support of the incorporation –
failed to
resolve their differences. Each faction claimed the right to
exclusively occupy the church properties and the right
to exclusively
use the name of the church.
[36]
As time went by, the conflict intensified. The protagonistic
faction considered the antagonistic faction to have dismembered
itself. The latter faction was regarded as a splinter group or
an association of disgruntled former members of the applicant
church. They were called upon to leave the church but they
refused. There were sporadic confrontations between the
two
hostile factions at different places. The routine activities of
the church were adversely affected by specified of disruption,
victimization, interference and intervention. The worst
affected chapters were Brandford, Hennenman, Theunissen and
Venterburg.
The situation became so intolerable that the
members of those chapters ended up frequently travelling to
Botshabelo to worship
there on Sundays.
[37]
The sporadic running battles between the two factions has a long
history of litigation which started in 2010 and is still continuing
to this day. The church has had its fare share of internal
squabbles. The acrimonious history of such infighting is
documented in the following court files:
5489/2010,
2639/2011, 1220/2013, 5352/2014, 1581/2015 and now 2308/2016.
More might still come unless sanity prevails and
members of the
fending factions embrace one another again as true brothers and
sisters bond together by truly abiding and supreme
values of
Christian faith.
[38]
The first battle lines were drawn in the year 2010, the second in
2011, the third in 2013 and the latest in 2016. The
disputes in
all the previous litany of cases revolved around the control and
management of the church.
[39]
On 14 July 2011 the applicant obtained a provisional order against
certain respondents. Among them was TP Tsatsa, the
first
respondent in these proceedings, M Mkololo, now the 2
nd
respondent and R Mkololo, now the 3
rd
respondent and K
Mperurana, now the 6
th
respondent. Their then six
fellow respondents are not before me. The relevant part of the
rule
nisi
by my sister Van Zyl J reads:
“
2.
A
rule
nisi
is
issued, returnable on the
18
th
day of
August
2011
at
09H30
,
calling upon the Respondents to show reasons, if any, why the
following orders should not be made:
2.1 interdicting and
restraining First to Ninth Respondent from:
2.1.1
in any way
whatsoever, whether indirectly or directly and
whether
acting through other persons, disrupting – or interfering with
the Applicant’s activities, in particular meetings
of members
of Board of Directors, church services or the like;
2.1.2 in any way
whatsoever, directly of indirectly, and whether
acting
personally or through other persons, holding out to have authority to
represent the management of – or form the management
of
Applicant or have any of management or decision-making on behalf of
the Applicant;
2.1.3 from attempting, in
any way whatsoever, whether directly or
indirectly
and whether acting personally or through other persons, to usurp the
management functions of the Applicant;
2.1.4 attempting to
deregister the Applicant as a company;
2.1.5 intimidating
members of the Applicant, whether directly or
indirectly and whether
acting personally or through other
persons;
2.1.6 using the name
“African National Church”, other than for
purposes lawfully
authorized by the Applicant’s lawfully constituted Board of
Directors;
2.1.7 participating in
any other conduct or activity directly or
indirectly
aimed at or calculated at achieving any of the objectives intended by
conduct covered by sub-paragraphs 2.1.1 to 2.1.6
above.”
See
case number 2639/2011 – “anx fa7”.
[40]
The above provisional order was returnable on 18 August 2011 was
extended. On the extended return day, 22 September 2011
my ex
brother, Van der Merwe J, as he then was, confirmed the above rule
nisi
with costs. The provisional restraint order became a final
restraint order against the 2
nd
respondent, 3
rd
respondent and 6
th
respondent among others. This is the first relevant order..
[41]
On 27 March 2013 the applicant sought and obtained a provisional
order against certain respondents. Among them was, ZM
Tsatsa.
Now the 5
th
respondent in these proceedings and TJ Tsatsa
now the 4
th
respondent. Their then one and only
co-respondent is not before me. The relevant part of the 2013
rule
nisi
by my brother Daffue J was substantially the same as
the 2011 rule
nisi
by my sister Van Zyl J.
“
2. A
rule
nisi
is
issued, returnable on the
2
nd
of May 2013
at
09h30
,
calling upon the Respondents to show reasons, if any, why the
following order should not be made final:
2.1
Interdicting and restraining the First to Third Respondents from:
2.1.1 using the name
“
African
National Church
”,
other than for purposes lawfully authorised by the Applicant’s
Board of Directors;
2.1.2 in any way
whatsoever, whether directly or indirectly or acting through other
persons, disrupting, or interfering with the
Applicant’s
activities, including meetings of the members of the Board of
Directors, church services, Passover-services or
the like;
2.1.3 in any way
whatsoever, directly or indirectly, and whether acting personally or
though other persons, holding out to have
authority to represent the
management of the Applicant, or to form the management of the
Applicant or to take any decisions
on
behalf of the management of the Applicant;
2.1.4 from attempting, in
any way whatsoever, whether directly or indirectly to usurp the
management functions of the Applicant;
2.1.5 intimidating
members of the Applicant, whether directly or indirectly or whether
acting personally or through other persons;
2.1.6 participating in
any other conduct or activity directly or
indirectly
and/or calculated at achieving any of the objectives intended by
conduct covered by sub-paragraphs 2.1.1 to 2.1.5 above;
2.1.7 holding or
facilitating a meeting of members of the Applicant on
29
March 2013
at
13h00
at
Brandfort in the name and style of the Applicant;
2.1.8 from attempting to
convince, in any way whatsoever, whether directly or indirectly and
whether acting personally or through
other persons, that a meeting
scheduled for
29 March 2013
at
13h00
at Brandfort, is a
meeting of the Applicant.”
See
case number 1220/2013 - “anx fa8”.
[42]
The above provisional order was returnable on 2 May 2013. On
the extended return day, 1 August 2013 the matter was before
me.
By agreement I made the final order:
“
1.
The respondents withdraw their opposition of the application.
2. The
rule
nisi
,
granted in this matter, is confirmed and a final order is given.
3. The respondents pay
the costs in this matter on an unopposed base, including the wasted
costs occasioned by the postponements
on 2 May 2013 and 30 May 2013.”
Therefore,
the provisional restraint order against the 4
th
respondent and his brother, the 5
th
respondent, became a final restraint order. This is the second
order relevant to the contempt component of these proceedings.
[43]
The aforegoing represent my summary of the material features of the
applicant’s version. Although some of them
are denied by
the respondents, none of them can be seriously disputed in my view.
This concludes the first phase of the turbulent
times of the church.
[44]
The version of the applicant went a step further. This marks
the beginning of the second phase of the turmoil.
Notwithstanding the aforesaid restrained orders, the battle for the
control and management of the church continued. The efforts
of
the Jiya’s faction to revive the chapters were frustrated by
the relentless actions orchestrated by Tsatsa’s faction.
The disgruntled first respondent faction victimized the members of
the applicant. They disrupted church services. They
occupied the church premises. They consumed water and
electricity supplied to those church properties but paid no related
municipal bills. Above all these harmful acts of interference,
they also abused the name of the church. By doing all
these
things they disobeyed the aforesaid court orders. So alleged
the applicant’s deponents.
[45]
The faction led by Jiya decided to launch an application against the
leaders of the faction led by Tsatsa. The latter
was regarded
as an association of troublemakers or dissidents. The sole
purpose of the 2015 application was an attempt to
hold such an
association accountable for the disobedient and disruptive actions of
its members. On 30 July 2015 the rule
nisi
was
granted against those regarded as the leaders of the disgruntled
group. The rule
nisi
was, however, ultimately discharged on account of financial
constraints – See case number 1581/2015. So alleged the
applicant’s deponents.
[46]
With the passage of time the applicant realized that the interdicted
leaders of the breakaway group were acting through their
agents or
other ordinary followers or members of their association, to
undermine the court orders. The situation became so
serious
that the church activities at some chapters such as Brandfort
ceased. The members of such chapters had to travel
to
Botshabelo to attend church services. The applicant’s
properties at Brandfort, Theunissen and Ventersburg were unlawfully
taken over and occupied by the dissents. So alleged the
applicant’s deponents.
[47]
The Brandfort congregation became restless and agitated. A
decision was taken to resume church activities there.
The
dissidents who were in an unlawful occupation of the church
properties were given notices to vacate such properties –
see
“anx fa11.1”, “anx fa11.2” in respect of
Brandfort and Ventersburg respectively. So alleged the
applicant’s deponents.
[48]
I now turn to the respondents. It is convenient to start with
the 5
th
respondent. The applicant’s case was that the 5
th
respondent prevented and disrupted the church services at Brandfort.
The details of the incident were very scatchy.
I could not
ascertain when the 5
th
respondent precisely prevented the holding of the church services
there. The word prevention presupposes that the service
did not
take place as planned as a result of the 5
th
respondent’s obstructive conduct. It was unclear to me as
to in what way the 5
th
respondent’s prevented the holding of the church service.
Did he stand at the gate and prevent members of the church
from
entering the church premises? Did he stand at the door of the
temple and prevent members of the church from entering
the temple?
There is uncertainty.
[49]
The second complaint levelled against the 5
th
respondent was that he disrupted the holding of the church service.
Implicit in this complaint was the idea that the service
had already
started and that the worshipping was in progress when the 5
th
respondent emerged on the scene and disrupted the proceedings of the
service. Did the 5
th
respondent walk up to the pulpit, where he confront the preacher and
pulled him out? Or did he walk up and took over as the
preacher? Or did he force everyone out of the temple? I
simply have no idea of how the 5
th
respondent disrupted the service. The uncertainty deepens.
[50]
All I was indirectly made to know was that on 2 April 2017 a meeting
was held somewhere; that the 5
th
respondent was at that meeting; that the meeting was held under
the name of the African National Church; that it was
decided to
derail the re-opening of the Brandfort chapter; that the
purpose was to disrupt the proceedings in order to frustrate
the
applicant’s revival campaign of the disused chapters;
that the applicant’s founding deponent, Jiya heard
all about
the meeting in question from Mzunjani Masoeu. According to Jiya
the meeting was held after the applicant had decided
to revive its
chapters.
[51]
The difficulty I had was that no supporting affidavit was obtained
from Mosoeu to verify the above allegations against the
5
th
respondent. Therefore, Jiya’s version lacked probative
value.
[52]
It would appear that Jiya was at Brandfort on the unknown day of the
incident for the re-opening service of the chapter.
The
following extracts from the founding affidavit made and signed by
Jiya are important in considering whether the 5
th
respondent wilfully disobeyed the court order – anx fa3:
“
20.2
Upon arrival at the property same day it was evident that the members
of the Respondent was all of a sudden there to ‘hold
church’
under the leadership of a certain Mzunjani Mosoeu, the
7
th
Respondent
,
who was unbeknown to me at the time.”
[53]
As can be seen the spotlight fell on the 7
th
respondent,
the alleged group leader, as to what happened at the Brandfort
chapter on the day of the incident. The name of
the allegedly
preventative and disruptive 5
th
respondent hardly
featured. Since the respondents were all natural persons it was
a misnomer to allege, as the applicant
did, that their members
suddenly emerged on the scene on the day of the incident. Who
were led by the 7
th
respondent? Did they actually
hold the church service?
“
20.3
This person along with Numsa Qai, the
8
th
Respondent
,
as well as their followers indicated that they are the ‘
African
National Church
’
and that they will not allow us to proceed with our church service or
the like.”
There
was no averment that the 5
th
respondent was among the alleged followers of the 8
th
respondent or 7
th
respondent.
[54]
As can be seen here the spotlight fell on the 8
th
respondent. Again nothing was said about the 5
th
respondent. It would appear that the prominent and vocal
spokespersons among the alleged troublemakers were the 7
th
respondent, Mzunjani Mosoeu and the 8
th
respondent, Nomsa Qai and not the 5
th
respondent. The allegation was that the 5
th
respondent “magically appeared” at the applicant’s
Brandfort property. They threatened to prevent the church
service from being conducted. No such threat was pertinently
attributed to 5
th
respondent. The essence of the complaint softened from the
earlier accusation actually preventing the service of an accusation
of only threatening to do so.
[55]
The high watermark of the applicant’s case against the 5
th
respondent was that the 5
th
respondent disobeyed the court orders through the 7
th
respondent and the 8
th
respondent. The following extract underscore the point:
·
“
21.1
The
1
st
– 5
th
Respondents
disobeyed said orders by acting contrary thereto in preventing the
Applicant from being able to hold Church at its chapter in Brandfort
on the property known as Stand 1809, Majwemasweu, Brandfort, through
the
7
th
& 8
th
Respondents
.
·
21.2
I submit that it is clear from the averments contained (sic) herein
that the
1
st
– 5
th
Respondents
acted through the
7
th
& 8
th
Respondents
.”
·
“
7.3
As is evident from
Part
A
hereof, the orders were disregard and the
1
st
– 5
th
Respondents
in acting through the
7
th
& 8
th
Respondents
disrupted the Applicant in preventing it from holding church services
or the like at its chapter in Brandfort.”
·
19.3.5
“This is important because the
1
st
– 5
th
Respondents
in acting through the
7
th
& 8
th
Respondents
‘magically’ appeared at the property of the Applicant’s
chapter’s same day they …”
[56]
The excision of those specific passages leaves the applicant’s
version virtually irredeemable. In my view, the
applicant
failed to prove that the 7
th
respondent or 8
th
respondent or anyone else factually acted as the 5
th
respondent’s instrument and on his behalf prevented the
religious business of worshipping at Brandfort on the undisclosed
Sunday of the incident.
[57]
The applicant wanted to see the 5
th
respondent jailed at
all costs. This much is apparent from par 8.1 of the founding
affidavit where the applicant stated:
“
8.1
The court granted an interdict under case number 2639/2011 against
inter
alia
the
1
st
– 5
th
Respondents
as
well as the
6
th
Respondent
.”
The
allegation was unsubstantiated. The interdict granted under
case 2639/2011 on 22 September 2011 by Van der Merwe J did
not apply
to the 5
th
respondent. He and his brother were not cited as respondents.
- See “anx fa2”.
[58]
The applicant stated the following allegation at paragraph 19.3.
“
19.3
I acted on behalf of the Applicant and approached my Attorneys of
Record in an attempt to prevent a situation where the Applicant
cannot hold church services or the like at its property due to the
Respondents of previous litigation or rather members of the
Association, claiming that they hold church there.”
[59]
At paragraph 19.3.4 the applicant rather surprisingly stated that:
“
19.3.4
It is any (sic) event clear that even if the Respondents claim that
they hold church at the chapter every Sunday,
it cannot be anything
close to the truth as the property has shamefully clearly been
deserted for a long period.”
The
allegation that the applicant’s property at Brandfort had been
deserted for a long time could not be reconciled with the
allegation
that the property was occupied by a member of the dissents’
group. If the property was deserted why was
the applicant’s
attorney instructed to evict the unnamed dissidents who were in an
unlawful occupation of the applicant’s
property?
[60]
The 5
th
respondent was interdicted on 1 August 2013 under case number
1220/2013 from using the applicant’s name, African National
Church. – See court order “anx fa3” read with
paragraph 2.1.1 “anx fa8”. Now the applicant
wants
to have the 5
th
respondent imprisonment or fined on the grounds that the applicant
has every reason to believe that the 5
th
respondent continues to use its name notwithstanding the restraint
order. No concrete facts for the alleged belief were stated.
In
EB
Steam Company (Pty) Ltd v Eskiem Holdings Soc Ltd
(2014) ALL SA 294
(SCA) par [22] the court held that enough factual
information must be given to enable the court hearing an application
to decide
whether there was substance in the alleged reason on which
the belief was grounded.
[61]
Faced with all those inadequacies relative to the material
consideration of an injury to the applicant’s right, Mr Lubbe,
counsel for the applicant, disingenuously attempted to fill up the
gaps by falling back on the applicant’s averments under
case
number 1581/2015. Mr Els, counsel for the respondent, objected
on the grounds that the
rule
nisi
granted in favour of the applicant in that case was ultimately
discharged. I am of the view that there was substance in the
objection. The applicant was precluded from relying on the
averments contained in its previous affidavit in order to have
the
5
th
respondent found to be in contempt of court. The reason for
this is obvious. The 5
th
respondent’s answering affidavit was confined to the
allegations as set out in the 2016 founding affidavit only.
[62]
It was the applicant’s case that the chapters at Brandfort,
Henneman, Theunissen and Ventersburg were the worst affected
by the
wrongful and harmful acts committed by the 5
th
respondent and others. The 5
th
respondent denied any involvement at any of those places and
accordingly dismissed the applicant’s allegation that he
disobeyed
the court order as false.
[63]
The 5
th
respondent lived at Phuthaditjhaba at all times
material to these current proceedings. If he was at Brandfort
last year on
the day of the incident, one would have expected one
confirmatory affidavit from at least one member of the Brandfort
congregation
or chapter. However, none was filed.
Therefore, the version of the 5
th
respondent has to
prevail over that of the applicant’s founding deponent, Jiya
also failed to throw any light on the disputed
point. The
applicant’s replying deponent, L.B Gonyongo. There was
nothing in any of those paragraphs to sustain
the allegation that the
5
th
respondent was, beyond any reasonable doubt guilt of
contemptuous conduct towards the court. All that he could say
about
the 5
th
respondent was vaguely worded. He
said:
“
50.
An order was made and the
1
st
– 6
th
Respondents
are accordingly in contempt thereof as averred in terms of Part A.”
Part
A consisted of paragraph 17 up to 22 of the founding affidavit.
[64]
The applicant’s case that the 5
th
respondent and others gathered at the applicant’s property erf
– Brabdfort one Sunday in 2016 under the mistaken belief
that
they could rightfully do so. To sustain a punitive sanction
based on contempt of court, it is incumbent upon the applicant
to
show that the respondent’s disobedient conduct was actuated by
deliberate
mala
fides
or wilful intent and not a mistaken belief.
[65]
In a desperate attempt to rope the 5
th
respondent into the disturbingly wide network of disobedient
troublemakers, the applicant insinuated that the 5
th
respondent indirectly disobeyed the court order through the 7
th
respondent and the 8
th
respondent. The 5
th
respondent denied that he engaged the 7
th
respondent or the 8
th
respondent to do what the court order restrained him from doing.
In my view there was no factual basis whatsoever to support
the
spurious, wild and unsubstantiated allegation that the 5
th
respondent used anyone as a destructive instrument of his extended
ego. In reply no attempt was made by the applicant’s
replying deponent to substantiate the founding deponent’s
allegation against, the 5
th
respondent. Instead the replying deponent repeatedly kept on
referring to the founding affidavit.
[66]
Yet another twist in the tail was the founding deponent’s
averment that the respondents, which obviously includes the
5
th
respondent, rarely disrupt the church activities in person since they
were interdicted. The applicant concedes that to prove
that the
interdicted 5
th
respondent was the actual driving force behind the actions committed
by third parties was almost impossible. The concession
was an
honest admission that the applicant found it difficult if not
impossible to prove, beyond reasonable doubt, that anyone,
the 5
th
respondent, using any third party, deliberately but indirectly
violated the court order.
[67]
In
Fakie
N.O v CC11 Systems (Pty) Ltd
[2006] JOL 17080
(SCA) the court held that in punitive committed
proceedings the applicant must prove contempt on a high standard of
prove beyond
reasonable doubt. At paragraph 30 Cameron J said
the following the requisite proof:
“
[30]
While the
applicant may disavow punishment as a motive (a matter to which I
return), the means the court is asked to employ remain
the same: the
public sanction of imprisonment for disobedience of a court order.
The invocation of that sanction, in my view, requires
conclusive
proof. No less than punitive committal, purely coercive committal
uses imprisonment, or its threat; and whenever
loss of liberty
for disobedience of an order of court is threatened it seems to me
necessary and proper that the infraction should
be proved
conclusively.”
“
I
am in agreement”.
[68]
Still in
Fakie
,
supra
,
the distinguished judge went on to say the following about the true
nature of this type of legal proceedings:
“
[40]
This
approach conforms with the true nature of this form of the crime of
contempt of court. As pointed out earlier (paragraph [10]),
this does
not consist in mere disobedience to a court order, but in the
contumacious disrespect for judicial authority that is
so manifested.
It also conforms with the analysis in
Beyers
(paragraph [11] above), where this Court held that even though
enforcement is the primary purpose of committal, it is nevertheless
not imposed merely because the obligation has not been observed, "but
on the basis of the criminal contempt of court that
is associated
with it". The punitive and public dimensions are therefore
inextricable: and coherence requires that the criminal
standard of
proof should apply in all applications for contempt committal.”
[69]
In this instance, the applicant had proved the first element of the
crime of contempt. However, the determinant factor
in the case
revolved around the element of non-compliance. About that
element the court said the following in
Fakie
,
supra
,
par [10].
“
[10]
These
requirements - that the refusal to obey should be both wilful and
mala fide, and that unreasonable non-compliance, provided
it is bona
fide, does not constitute contempt - accord with the broader
definition of the crime, of which non-compliance with civil
orders is
a manifestation. They show that the offence is committed not by mere
disregard of a court order, but by the deliberate
and intentional
violation of the court's dignity, repute or authority that this
evinces.
Honest
belief that non-compliance is justified or proper is incompatible
with that intent.”
[70]
I was at pains to consider the applicant’s case as regards the
alleged disobedient of the court by the 5
th
respondent. In view of the critique I have earlier outlined, I
am not persuaded that the applicant has discharged the onus
of
proving beyond a reasonable doubt that the 5
th
respondent deliberately disregarded the court order directly or
indirectly as the applicant alleged he did. On the applicant’s
own version, even if one were to reject the 5
th
respondent’s version, which cannot be fairly rejected – I
must say, serious doubt, fuelled by vagueness, exists whether
any
reasonable court hearing the applicant’s version can commit the
5
th
respondent for the crime.
[71]
In
De
Lange v Smits
[1998] ZACC 6
;
1998 (7) BCLR 779
(CC) the court held, per O’ Reagan J:
“
The
power to order the summary imprisonment of a person in order to
coerce that person to comply with a legal obligation is
far-reaching.
There can be no doubt that indefinite
imprisonment for coercive purposes may involve a significant inroad
upon personal liberty.”
The
evidence tendered by an applicant in support of such coercive
sanction must be beyond reproach. It was not in the instant
matter.
[72]
Although the 5
th
respondent was not an accused in the strict sense as in criminal law,
in motion proceedings he was nonetheless entitled to similar
protection by way of a high standard of proof. The applicant
had to prove the court order relied upon, the service thereof
upon
the accused respondent, the respondent’s non-compliance or
infringement, his wilfulness and his
mala
fides
–
beyond reasonable doubt. On the facts, the last three elements
were not established. As for the 5
th
respondent, all that was required of him was an evidential burden in
relation to the element of wilfulness and that of
mala
fides
.
[73]
Given the peculiar circumstances of this particular case, I am
inclined to decide the determinant question whether the applicant
has
shown that the 5
th
respondent wilfully disobeyed the court and thereby deliberately
violated the dignity, respect and authority of the court –
negatively in favour of the 5
th
respondent. This completes my consideration of the case against
the 5
th
respondent.
[74]
Now I turn to the 4
th
respondent. The observations, critique, reasons comments,
findings and conclusions I made in respect of the 5
th
respondent apply to the 4
th
respondent as well.
[75]
Although the 1
st
respondent, 2
nd
respondent, 3
rd
respondent and 6
th
respondent did not formally file opposing papers. They appeared
in person and generally denied the accusations that they
directly or
indirectly defied the court order as the applicant alleged.
Their denials were not farfetched. I would,
therefore, also
exonerate each one of them.
*[76]
In the
fourth place, the interdict component of the main application.
As
regards the 7
th
respondents and the 8
th
respondent, the applicant regarded them as new trouble makers who
acted in the similar manner as all the respondents in the previous
litigation. - See par 26.1 founding affidavit. At
best for the applicant, the two respondent’s were at
the
applicant’s church premises at Brandfort one Sunday last year
where they threatened to prevent the holding of a church
service for
the revival of that particular chapter. The allegations were
not verified by a single member of that chapter.
It appeared
very odd to me bearing in mind the alleged restless and agitation of
the members of that chapter who wanted to have
it re-opened.
[77]
As I have earlier remarked, the alleged incident was not adequate
particularized. The applicant seemed to accuse the
7
th
respondent as an instrument of the 5
th
respondent and others. Implicit in the complaint were the
accusations that the 7
th
respondent disrupted the religious activities of the applicant;
that he interfered with such activities; that he falsely
held
himself out as an authorised representative of the applicant’s
management structure; that he usurped the functions
and powers
of the church management; that he intimidated members of the
applicant; that he wrongly used the name of
the applicant, that
he participated in programmes calculated to attain the objectives of
the dissidents group and that he threatens
to carry on – see
“anx fa7”.
[78]
On the strength of such vague and broad accusations it cannot be
convincingly argued that the applicant has established any
injury to
its right or any reasonable apprehension of harm. Therefore,
second requisite of harm committed or about to be
committed by the
7
th
respondent was amiss. That being the case, applicant is not
entitled to any interim protection of its right –
Sellogelo
v Sellogelo
1914 AD 221.
The same considerations and conclusion applies to
the 8
th
respondent.
[79]
As regards the 9
th
respondent and 10 respondent, the
applicant’s case was that they disrupted church revival service
at Hennenman on Sunday
17 April 2016. The applicant’s
founding deponent alleged:
“
I
was personally there with fellow members of the Applicant where I was
told by the
9
th
& 10
th
Respondents
that they are the ‘African National Church’ and that the
Applicant is not to hold its church services there.”
[80]
Once again precisely what the alleged disruption entailed was never
explained. Again not a single confirmatory affidavit
from a
member of the Hennenman chapter was attached to the founding
affidavit. The impression created here, indeed as in
the case
of the 7
th
and 8
th
respondents, was that the applicant was very eager to obtain
restraint orders against the 9
th
and the 10
th
respondents at all costs so that in due course it could also launch
contempt proceedings against them as well. It quite apparent
that the applicant desperately needs the support of the police.
The understanding of the applicants founding deponent was
that that
the police would come to the rescue of the applicant provided the
troublesome dissidents were committed for contempt
of court.
[81]
In my view it was not enough for the applicant to simply allege that
the 9
th
respondent had infringed its right(s) in pretty much the same manner
as the respondents in the previous cases did. I did
not
adjudicate the previous cases. Therefore, I have no idea of how
the respondents in those previous cases had infringed
the applicant’s
right. At least one of those previous applications was
dismissed and at least one of the previous provisional
orders was
discharged. I am not certain whether 9
th
respondent knew how the previous respondents conducted themselves
because he was not one of them.
[82]
It must be borne in mind that there has been a long series of similar
applications against a great variety of respondents since
the year
2010. All these are important considerations. Grave
injustice may be done if such wide and unsubstantiated
allegations
were relied upon to sustain the interim relief sought against the 9
th
respondent.
[83]
Consequently I have come to the conclusion that a proper case has
been made out to justify the grant of an interim interdict
against
the 9
th
respondent or the 10
th
respondent. Where, as in this case one of the requisite of an
interim interdict has not been proven, such relief cannot be
granted. The onus of proving all the requisites, including the
harmful act by the respondent rested on the applicant.
The
applicant failed to discharge the onus. I would, therefore,
refuse the relief sought.
[84]
Accordingly I make the following order:
(a)
The
application to have the 1
st
respondent, 2
nd
respondent, 3
rd
respondent, 4
th
respondent, 5
th
respondent and 6
th
respondent committed for contempt of court is dismissed with costs;
(b)
The
application to have the 7
th
respondent, 8
th
respondent, 9
th
respondent and 10
th
respondent provisionally restrained is dismissed with costs;
(c)
The
application to have the late filing of the answering affidavit of 4
th
respondent and 5
th
respondent condoned is granted without any order as to the costs made
one way or the other;
(d)
The
application to strike out brought by the 4
th
respondent and the 5
th
respondent is granted with costs.
_____________
MH
RAMPAI, J
On
behalf of applicant: Adv E.G Lubbe
Instructed
by: Bezuidenhout Inc
Bloemfontein
On
behalf of 1
st
respondent: No appearance
On
behalf of 2
nd
& 3
rd
respondents: In persona
On
behalf of 4
th
& 5
th
respondent: Adv J Els
Instructed
by: Phatshoane Henney Inc
Bloemfontein
On
behalf of 6
th
– 10
th
respondent: No
appearance