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2017
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[2017] ZAFSHC 124
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Xuma and Others v Tlale and Others (689/2017) [2017] ZAFSHC 124 (3 August 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 689/2017
In
the matter between:
MARTIN CALAKE
XUMA
1
st
Applicant
MARTIN CALAKE XUMA
N.O.
2
nd
Applicant
BENJAMIN
RALEIE
3
rd
Applicant
DYKMAN
KOVU
4
th
Applicant
JOSEPH
MOTLALE
5
th
Applicant
JEREMIA
MERABE
6
th
Applicant
SAKIA
TSOEUTSE
7
th
Applicant
JOSEPH
TSOEUTSE
8
th
Applicant
and
TSHEOLE
TLALE
1
st
Respondent
SIBONGILE
NYANGWA
2
nd
Respondent
MOTOPENG LOVERS
SENYATLE
3
rd
Respondent
MADITABA
NDORO
4
th
Respondent
SILLO DANIEL
TLALE
5
th
Respondent
TSIETSI
MOTLAPELA-MPATSHENG
6
th
Respondent
SOPHIE
MOSHODI
7
th
Respondent
APPE
MATSOSO
8
th
Respondent
EVODIA
MAKOANE
9
th
Respondent
PULANE
STOFFEL
10
th
Respondent
JEMINA
NAHA
11
th
Respondent
HEARD ON: 5 MAY 2017
JUDGMENT BY: MBHELE, J
DELIVERED ON: 03 AUGUST 2017
[1]
The applicants seeks the confirmation of the
rule
nisi
issued in this court on 23 February 2017 interdicting the
respondents from indirectly, directly or by use of third
parties; interfering with the activities of the St Engenas
Zion Christian Church, Odendaalsrus (the St Engenas ZCC)
,
committing any acts of assault and intimidation or swearing at
any individual applicants or members of St Engenas
ZCC,
inciting and/or influencing any other person to commit
any of the aforesaid acts.
[2]
The respondents are members of the St Engenas Church.
[3]
First applicant has attested to the founding affidavit on behalf of
all the applicants. He states that he is a Priest
of the St
Engenas ZCC and serves as head of administration of the Odendaalsrus
branch of the St Engenas ZCC.
[4]
The St Engenas ZCC, Odendaalsrus branch has been plagued by strife
and discord within its members for some time. This is evident
from
previous court battles between the members.
[5]
The first applicant has previously approached this court seeking
relief against some of the respondents for similar conduct.
[6]
The respondents dispute the authority of the first applicant to
bring this application and further take issue with the
Applicants’
failure to join the St Engenas ZCC as a party to these proceedings.
[7]
It is necessary to address the points in
limine
before I
consider the merits of the application.
LOCUS
STANDI:
[8]
Mr. Phalatsi, on behalf of the respondents, contended that the
constitution of the church does not have a provision for a title
of a
priest and failure by the applicants to file supporting documents
entitling them to bring this application makes it difficult
to fathom
where the first applicant drew his authority and title. He, further,
submitted that at the time the first applicant brought
the current
application he did not have the necessary authority as he was only
designated a deacon on 1 April 2017 long after this
application was
launched. In his view, the certificate issued failed to ratify
the first applicant’s authority.
[9]
Mr. Louw, on behalf of the applicants, submitted that although the
first applicant’s certificate is dated 1 April 2017,
whe has at
all material times served as the administrative head of
the St. Engenas ZCC Odendaalsrus branch. He,
further, argued
that the impugned acts affected the applicants personally and in
their capacities as the members of the council
of the St. Engenas ZCC
Odendaalrsus branch. He contended, further, that
the respondents have a right to seek
interdict where their bodily
integrity is threatened.
[10]
In
ANC UMVOTI COUNCIL v UMVOTI MUNICIPALITY
2010 (3) SA 31
at
36
the court held as follows:
“
It is clear that,
where authority is challenged in the answering affidavit, it is
permissible to make out a case in reply. It is
further clear that,
even if the authority was not in place when the litigation commenced,
actions taken can be ratified subsequently”.
[11]
I am in agreement with the view expressed in the above dictum. It is
clear that even if the authority was not in place when
the
application was launched that defect was cured in the replying
affidavit.
NON
JOINDER:
[12]
The respondents take issue with the applicants’ failure to join
the St Engenas ZCC as it has a direct and substantial
interest in the
proceedings. Mr Phalatsi, contended that the applicants have no
business regulating the conduct of the respondents
at Church without
joining the Church as a party.
[13]
Rule 10(3) of the uniform rules of court provides that:
“
(3)
Several defendants may be sued in one action either jointly, jointly
and severally, separately or in the alternative, whenever
the
question arising between them or any of them and the plaintiff or any
of the plaintiffs depends upon the determination of substantially
the
same question of law or fact which, if such defendants were sued
separately, would arise in each separate action.”
[14]
In
Judicial
Service Commission v Cape Bar Council and Other
2013 (1) SA 170
at par 12 the following was said:
“
[12]
It has by now become settled law that the joinder of a party is only
required as a matter of necessity — as opposed to
a matter of
convenience — if that party has a direct and substantial
interest which may be affected prejudicially by the
judgment of the
court in the proceedings concerned (see eg
Bowring
NO v Vrededorp Properties CC and Another
2007
(5) SA 391
(SCA)
para
21). The mere fact that a party may have an interest in the outcome
of the litigation does not warrant a non-joinder plea.
The right of a
party to validly raise the objection that other parties should have
been joined to the proceedings, has thus been
held to be a limited
one.”
[15]
It is clear from above that a plea of non-joinder can only be
sustained if a person who is not a party to the action, has a
direct
and substantial interest which may be prejudicially affected by
the outcome of the matter.
[16]
In the current matter, the relief sought does not upset the values
espoused in the constitution of the St. Engenas ZCC. The
constitution
of the St. Engenas ZCC gives autonomy to the congregations to deal
with the day to day running of the local branches
of the Church.
[17]
The constitution of the St Engenas ZCC encourages discipline amongst
its members. The relief sought is centred around a desire
to run
church services in an orderly and peaceful manner. The first
applicant has a right to bring this application in the
spirit of
maintaining order in the Church.
[18]
I am of the view that there is no merit in the points in
limine
raised by the respondents.
SUBMISSION
BY PARTIES:
[19]
It is the applicants’ case that the respondents are a splinter
group that has intentions to dethrone the current council
of the
Odendaalsrus branch of St Engenas ZCC. In his affidavit, the
first applicant states that the respondents disrupted
church services
on 06, 09 and 11 December 2016. The disruptions turned violent with
members of the congregation being violently
attacked by the
respondents. The first applicant further sets out the history
of litigation involving the applicant and some
of the respondents.
[20]
Mr Louw, on behalf of the applicants, made a submission that where
the disciplinary code makes provision for internal processes,
it does
not preclude the council from seeking alternative relief.
[21]
The respondents put a blatant denial that the applicants have been
authorised to call themselves a duly appointed council of
the St
Engenas ZCC Odendaalsrus Branch. Mr Phalatsi contended that the
relief sought by the applicants is not supported by
facts. He
submitted, further, that the applicants failed to show in detail who
of the respondents attacked the congregants
and applicants. He
contended, further, that the fact that the applicants ignored
internal processes, provided for in the
constitution, is an
indication that the conduct complained of did not occur.
[22]
In
Plascon-Evans Paints v Van Riebeeck Paints
[1984] ZASCA 51
;
1984 (3)
SA 623
(A) at 634H-635A – Corbett JA stated:
“
It
is correct that, where in proceedings on notice of motion disputes of
fact have arisen on the affidavits, a final order, whether
it be an
interdict or some other form of relief, may be granted if those facts
averred in the applicant's affidavits which have
been admitted by the
respondent, together with the facts alleged by the respondent,
justify such an order. The power of the
Court to give such final
relief on the papers before it is, however, not confined to such a
situation. In certain instances the
denial by respondent of a fact
alleged by the applicant may not be such as to raise a real, genuine
or
bona
fide
dispute
of fact.”
[23]
I am not persuaded that any real genuine or
bona
fide
dispute
of fact exists as to the validity of the applicants’ position
within the structure of the Church.
[24]
It is not desirable for voluntary associations to bring all their
problems to courts when there are internal mechanisms to
deal with
disputes between members.
[25]
The court can only interfere with the internal affairs of the church
where there is a civil rights or interest involved justifying
interference by a civil court. (See
Mankatshu
v Old Apostolic Church of South Africa and Others
1994 (2) SA 458
at 460).
[26]
The applicants abandoned prayer 2.1.3 of the notice of motion as, if
granted, it has a potential of infringing on the respondents’
right to freedom of association.
[27]
It is clear from the papers that the parties have had their fair
share of strife and disagreements. If the impugned conduct
is not
arrested, the rights of the general body of worshippers will be
threatened.
[28]
The right to freedom of association is guaranteed in the
constitution. While appreciating that the above right is not
absolute the respondents must not be denied their right to choose the
organisation with which they wish to associate. Such
right
comes with responsibility and understanding that the constitution of
such voluntary association must be respected.
[29]
I am of the view that the application must succeed.
COSTS:
[30]
It is trite that the issue of costs falls within the discretion of
the court. Such discretion must be exercised judicially
having
regard to the facts of each matter. The constitution of the
church made provision for the matter to be resolved internally.
This
process could have eliminated the issue of costs. The above does not
take away the right of the applicants to seek alternative
relief from
court.
[31]
In the circumstances, I make the following order:
ORDER:
1.
The
respondents are interdicted from:
1.1
Interfering
with church activities of St Engenas Zion Christian Church,
Odendaalsrus, including but not limited to any church services
or
gatherings of the members of the church.
1.2
Intimidating
and committing acts of assault on any individual applicant or member
of the St. Engenas Zion Christian Church,
Odendaalsrus.
2.
Each
party to pay their own costs.
_____________
NM
MBHELE, J
On
behalf of applicants: Advocate Louw
Instructed
by: KRUGER VENTER ATTORNEYS
c/o
LOVIUS BLOCK
BLOEMFONTEIN
On
behalf of respondents: MR. PHALATSI
Instructed
by: NW. PHALATSI AND PARTNERS
BLOEMFONTEIN