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[2017] ZAKZPHC 55
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Christian Faith Gospel Church in Africa v Dlamini and Others (11837/2016) [2017] ZAKZPHC 55 (7 December 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Not
Reportable
Case
No: 11837/2016
In
the matter between:
CHRISTIAN
FAITH GOSPEL CHURCH IN AFRICA
APPLICANT
and
SANDILE
NORMAN DLAMINI
1
st
RESPONDENT
NONHLANHLA
DLAMINI
2
nd
RESPONDENT
NGONYAMA
TRUST
3
rd
RESPONDENT
NKOSI
ZWELITHINI DOMINIQUE MKHIZE
4
th
RESPONDENT
KHABAZELA
TRADITIONAL COUNCIL
5
th
RESPONDENT
INDUNA
THULANI
SHOZI
6
th
RESPONDENT
INDUNA
THULANI MALINGA
7
th
RESPONDENT
JUDGMENT
Delivered on: 7 December 2017
GORVEN
J
[1]
This matter concerns a dispute over the right to
occupy a church building (the building). The crisp issue in the
matter is whether
the applicant has that right or the first
respondent in his personal capacity has that right. The applicant
seeks relief by way
of a spoliation order and an interdict to prevent
any of the respondents from acting in any way adverse to the
applicant’s
right to occupy the building. Other than the third
respondent, all of the respondents opposed the application and were
represented
by the same counsel.
[2]
The matter was referred for oral evidence. At the
beginning of the hearing, it was agreed that the following were the
issues for
decision:
1. Whether the first respondent was acting as the agent of the
applicant or not at the time the land was allocated.
2. Whether the applicant’s representatives handed the keys to
the building to the sixth and seventh respondents as a result
of a
threat by those respondents that unless this was done, the building
would be destroyed.
3. Whether, during July 2015, the first respondent was occupying and
operating the church at Embo in his personal capacity or as
a pastor
employed by the applicant.
[3]
The background to the matter is largely common
cause. In 2004, the first and second respondents were members of the
Christian Fellowship
Church. It functioned at Embo. At least the
first respondent was a pastor in that church. They became
dissatisfied with Archbishop
Ncube, the leader of the church. They
and approximately 40 to 45 others left that church and began
worshipping in the garage of
the first and second respondents’
home. Soon thereafter they met Pastor Shelembe. At the time, he was
chair of the Southern
Region of the applicant. The applicant had a
national structure, three regions and a number of branches in each
region. The two
respondents and those who had left with them attended
a service at the Botha’s Hill branch of the applicant. They
introduced
themselves and were welcomed. They also attended a service
at Ezakeni soon after the arrangement began.
[4]
It became clear that, in essence, there were
three issues which required decision. The first was the nature of the
relationship
between the first and second respondents and the
applicant. The applicant claimed that the first and second
respondents became
members. They claimed that they were simply
fellowshipping with Pastor Shelembe and, thus, the applicant. An
interrelated issue
is on whose behalf the first respondent and one
Philani Sithole (Sithole) obtained the right to use land owned by the
Ingonyama
trust and administered by the traditional authorities on
which to construct and use a church building. In the papers, the
first
respondent contends that this right was given to him
personally. In his oral evidence, he conceded that the right was
given to
him on behalf of the congregation worshipping at Embo. The
applicant contends that the right was given to the Embo branch of the
applicant. The third issue is whether or not the applicant is
entitled to spoliatory relief. It is common cause that it was in
occupation of the building and surrendered the keys to the building
to the traditional authorities. The applicant contends that
it did so
under threat by the traditional authorities and, accordingly, this
amounted to an unlawful deprivation of its occupation.
The tribal
authorities, in the form of the fourth to seventh respondents, deny
any form of coercion.
[5]
It should be mentioned that the respondents
conceded in argument that, if the first respondent became a member of
the applicant,
all of his actions thereafter were taken on behalf of
the applicant. This was a correct concession. It is the
probabilities, taken
as a whole, which will demonstrate whether the
first two respondents became members of the applicant.
[6]
The first respondent became part-time pastor to
the congregation at Embo. This was because he was a builder with his
own business.
He also became a member of the Regional Executive
Committee of the applicant, virtually from the beginning, holding
down the building
portfolio. At some stage after meeting Pastor
Shelembe, the congregation at Embo moved to worship in a clinic. This
proved inadequate
and property previously occupied by one Richard
Langa was found to be available in 2006. The property is owned by the
Ingonyama
Trust and administered by the traditional authorities. The
first respondent and Sithole met with the traditional leaders and
negotiated
the use of the property for the congregation at Embo. A
handing over ceremony was held at the homestead of Langa in the
presence
of the traditional authorities, members of the congregation
and Pastor Shelembe.
[7]
A church building (the building) was constructed
and the congregation at Embo began to worship there. It is clear that
over the
years the first respondent participated fully in the
structures of the applicant. He attended conferences, served on the
Regional
Executive Committee, hosted meetings of the applicant and
went to special Passover services at Hluhluwe, Ezakheni and other
places.
Despite this, he and the second respondent claim that they
were never aware of the name of the applicant until a dispute arose
in 2015. It arose in the following way.
[8]
During 2015, the wife of Pastor Shelembe arranged
for transport of women from the Embo congregation to a convention of
the applicant.
This was done without the knowledge of the first or
second respondent. The two respondents were upset by this. On a
Saturday afternoon,
Pastor Shelembe visited them and apologised on
behalf of his wife. They accepted his apology. A meeting had been
scheduled for
the following day to discuss the dispute and he
requested that they did not mention what his wife had done in that
meeting. After
that meeting, the two respondents became convinced
that, not only had Pastor Shelembe’s wife been involved in the
arrangements,
but Pastor Shelembe himself had been involved. In
addition, they were requested by Pastor Shelembe to keep this a
secret. This
shattered the trust of the first and second respondent
in Pastor Shelembe. Their evidence was that they realised that his
vision
and theirs differed to the extent that they could no longer
retain their fellowship with him.
[9]
With the knowledge of the first respondent, the
second respondent accordingly wrote a letter. In it, Pastor Shelembe
and his wife
are addressed as ‘our leaders’. This
contained the following two paragraphs:
‘Our leaders we are writing this letter to inform you that we
are experiencing difficult times in our lives. We have reached
a
decision as a Dlamini Family to leave the church, Christian Faith
Gospel Church in Africa.
. . .
Our leaders, we have a request that you arrange with the church
members from Embo because we can no longer be able to see them
again
as from when we are writing this letter.’
It
is common cause that, after this letter was written, the first
respondent told the congregation at Embo that he would no longer
be
pastoring the church or attending the building. It is further common
cause that, between July 2015, when they wrote the letter,
and March
2016 neither he nor the second respondent were at all involved with
the church at Embo, apart from praying for them.
[10]
On a Sunday in March 2016, Pastor Dladla, a
full-time employee of the applicant, was officiating at the service
held in the building.
The two respondents and some others arrived at
the building. After he finished preaching, they went forward and said
that they
wished to make use of the building. The applicant says that
they also requested keys to the building. There is a dispute as to
whether this was done and also whether it was a request or a demand.
Pastor Dladla refused to give them the keys. However, he indicated
that he would speak to the leadership and would give those two
respondents a response before they went to bed. There is a dispute
as
to whether the second respondent became annoyed and angry and said
that they refused to leave until they had the keys and that,
if the
keys were not given to them, they would see what type of person she
was. They eventually left without the keys. Pastor Dladla
and Sithole
then spoke to Pastor Shelembe who told them that they should not give
the two respondents the keys. The two respondents
later approached
first Mrs Mkhize and then Mrs Gasa and requested the keys. These
requests were also refused. Once again, there
is a dispute as to
whether these were demands or requests.
[11]
As a result of these actions, Pastor Dladla
applied at the police station for a protection order against the
first and second respondents.
When the two respondents received this,
they approached the Izinduna, the sixth and seventh respondents.
These two persons then
went to the building during a Sunday service
and demanded the keys to the building from Pastor Dladla. He
telephoned Pastor Shelembe
who told him not to give them the keys.
The applicant’s witnesses said that the sixth and seventh
respondents then told the
persons present that the Inkosi for the
area, the fourth respondent, had said that if they did not surrender
the keys, the building
would be demolished. This was reported to
Pastor Shelembe by Pastor Dladla. Eventually Pastor Dladla and Pastor
Shelembe went to
the home of the seventh respondent. They appealed to
the sixth and seventh respondents not to take the keys and to allow
the applicant
to continue to use the building. This request was
refused. The respondents in question say that Pastor Shelembe was
told that,
if he did not surrender the keys, the services at the
building would stop. The keys were surrendered soon after. A meeting
of the
fifth respondent was convened and, according to the
respondents, resolved that both parties be allowed to use the
building. However,
the keys were given only to the first respondent.
He, and persons adhering to him, are the only ones worshipping in the
building.
[12]
As I indicated, there is a dispute as to the
basis on which the first two respondents and their fellow leavers
from the Christian
Fellowship Church related to the applicant. The
witnesses of the applicant all said that the first two respondents
and those who
came with them joined the applicant as members and were
welcomed as such. The first two respondents testified that they
arranged
that they would simply fellowship with Pastor Shelembe and
his church. They did not join the applicant and did not, in fact,
know
that the applicant was called the Christian Faith Gospel Church
in Africa until Pastor Shelembe met with them on the Saturday
afternoon
to apologise. At the meeting, he mentioned that the
applicant had a constitution which they had also not known hitherto.
In fact,
they were unaware that the applicant was also simply known
as the Christian Faith Gospel Church. This happens to have been the
name that the first respondent says that he gave to his church at
Embo. As I indicated initially, the heart of the dispute in this
application is whether the applicant was given permission to occupy
the land or whether the first respondent, as an individual,
was given
this permission. In essence, the version of the first respondent was
that the congregation at Embo belonged to him and
not to the
applicant. It is not necessary to traverse all the evidence which was
led. An evaluation of the evidence referred to
below will suffice.
[13]
The first respondent was a very poor witness. On
numerous occasions and, in particular, when confronted with
difficulties and improbabilities
in his version, he was evasive and
simply did not answer the question asked of him. There are numerous
examples of this. He could
not, for example, explain how it was
possible that he did not know the name of the applicant church when
he was a member of the
Regional Executive Committee. The minutes of
the Regional Executive Committee of the applicant dated 25 February
2012 were put
up. These are headed with the full name of the
applicant. It is recorded that the minutes of the previous meeting
were ‘confirmed
with amendments’. As a member of the
Regional Executive Committee, the first respondent was at the meeting
which confirmed
the previous minutes as was the second respondent. It
is overwhelmingly probable that all the minutes of that body were
headed
in the same way, viz. with the full name of the applicant. The
minutes record the scheduled dates of six further meetings to be
held
in 2012. It is almost inconceivable that the first respondent did not
read any of those sets of minutes when they would have
been confirmed
at each successive meeting.
[14]
As indicated, he said that he was not even aware
that the applicant was also known as the Christian Faith Gospel
Church. He was
also in fellowship with this church and attended
national and provincial meetings, including the Regional Executive
Committee meetings.
It is utterly improbable, given those facts, that
his church was named with the exact name as the one by which the
applicant was
known, the Christian Faith Gospel Church.
[15]
His explanation of what he meant by the two
paragraphs set out above in the letter arising from the dispute was
simply untenable.
He claimed that this simply meant that he was no
longer going to be fellowshipping with Pastor Shelembe. He was only
withdrawing
for a time of prayer. Despite this, the letter said that
he and his family had decided to ‘leave the church, Christian
Faith
Gospel Church in Africa.’ He also could not explain why,
if the Embo congregation was his and not that of the applicant, he
no
longer met with them after leaving off fellowship with the applicant.
He attempted to say that he was only temporarily leaving
the
congregation in charge of Pastor Shelembe while he went to pray. No
hint of this is contained in the letter. He could not explain
why, if
the congregation at Embo was his and he no longer wanted to be
associated with the applicant or Pastor Shelembe, he did
not in the
letter forbid the applicant from making use of the building and
dealing with members of his congregation. He claimed
that this was
because he held Pastor Shelembe in high esteem. This also makes no
sense because he gave as a reason for leaving
the behaviour of Pastor
Shelembe and his wife. He said that his vision was at loggerheads
with theirs. If this was so, it begs
the question why he entrusted
his congregation to the care of Pastor Shelembe. All of this is
improbable in the extreme.
[16]
In addition, when he arrived at the service on 13
March 2016, he did not indicate that, after his sojourn away, he was
now coming
to take up the pastorate of his congregation. He requested
that, along with the congregation left behind, he would be entitled
to make use of the building. This is inconsistent with his claim that
he had left it in the temporary care of Pastor Shelembe whilst
he
prayed. It is clear that he intended to use the building for a
different congregation to that which was left behind. In his
appeal
to Pastor Shelembe to care for those he was leaving, there is a clear
indication that he regarded the congregation as belonging
to the
applicant and simply notified the applicant that he would no longer
be functioning as a Pastor in that congregation.
[17]
He had to concede that the permission had been
given to the community for the church to be built and that this was
not his private
right to occupy. As indicated, this was a departure
from his affidavit. He also had to concede that he had been a member
of the
Regional Executive Committee of the applicant for more than
one year. He could not explain how this was the case when he was not
a member of the applicant. He simply said that because he was a
builder, they wanted him on the committee. When Pastor Dladla
testified, he stated that between 2008 at 2012, he was a full-time
pastor at Embo. This was not challenged until the first respondent
denied it in his evidence. Pastor Dladla also stated that he
conducted cell group meetings and Bible studies during the week and
took funerals. This was also not challenged until the first
respondent denied that in his evidence. He went further to say that
Bible studies were not conducted at all during that period and had
only begun after the split.
[18]
He could not explain how Sithole, who left the
Christian Fellowship Church with him, came to know the name of the
applicant and
he did not when he was a pastor and Sithole was only a
member. He stated in his answering affidavit of the Saturday
afternoon meeting
that ‘I learned that I had been dealing with
members of the CHRISTIAN FAITH GOSPEL CHURCH IN AFRICA, I had never
known of
the IN AFRICA part until then.’ He could not explain
why he said this when he claimed that he had not known even that the
applicant was known as the Christian Faith Gospel Church.
[19]
He claimed that Langa was entitled to agree to
his use of the land when even the fourth respondent, called to
support his version,
confirmed that Langa, who no longer occupied the
land, could not do so. Langa’s rights in the land were limited
to ensuring
that burial sites on the land were respected.
[20]
His evidence concerning the demand for the keys
of the church is also improbable. When taxed as to whether he had
been underhand
in requesting keys from the ladies after he was aware
that Pastor Shelembe had refused the keys, he claimed that he had
approached
them prior to arriving at the building on 13 March 2016.
It was clearly demonstrated that this was an attempt to avoid the
conclusion
that he had in fact been underhand. He conceded that he
had not approach them before that date.
[21]
I could multiply examples of the extreme
improbability of his version. In summary, his evidence, and that of
the second respondent,
on the issues where there were disputes was
utterly improbable. It is clear from the aforegoing that the evidence
of the applicant’s
witnesses, which was by and large consistent
and entirely probable, must be accepted over that of the first and
second respondents.
This means that the applicant proved that the
first and second respondents joined the applicant. The second
respondent was appointed
as a pastor to the Embo congregation of the
applicant. That congregation remained a congregation of the
applicant. The first respondent
obtained permission to construct and
use a building on the designated land on behalf of the applicant. The
first and second respondents
resigned their membership of the
applicant in July 2015. After the resignation, the applicant remained
the entity entitled to use
the building constructed on the land in
question. Questions 1 and 3 must thus be answered in favour of the
applicant.
[22]
The next issue is that of spoliation. In
particular, whether the keys were surrendered as a consequence of an
unlawful threat issued
by the sixth and seventh respondents. Pastor
Dladla testified that the sixth and seventh respondents arrived
during a Sunday service.
They indicated that the Inkosi had sent them
to fetch the keys. Pastor Dladla indicated that he would need to
consult Pastor Shelembe.
After this call, pastor Dladla indicated
that he had been told not to hand the keys to them. The response was
that if he did not
hand them the keys, the Inkosi had said that he
would demolish the church. He stood fast and they left. After
reporting this to
Pastor Shelembe, he told him that he should
nevertheless not give them the keys in response to any future demand.
They returned
on another Sunday and again demanded the keys. Pastor
Dladla again phoned Pastor Shelembe, who repeated his instruction and
said
that he would come to speak to them. They made the same threat
but went away empty-handed. Pastor Dladla and Pastor Shelembe then
went to the home of the seventh respondent. The keys were once again
demanded. Pastor Shelembe requested the seventh respondent
to allow
him to phone the sixth respondent. Pastor Shelembe requested that
they do not close the church and allow the applicant
to continue to
use it. They refused this request and Pastor Shelembe was constrained
to leave the keys with the seventh respondent.
[23]
What is common cause concerning the keys is that,
as mentioned, the first and second respondents arrived at a service
and requested
the keys. These were refused at the instance of Pastor
Shelembe. They were then, as they put it, chased away from the house
of
Pastor Shelembe later that day. The first respondent attempted to
obtain the keys from the two ladies and was again refused. The
Izinduna went to the church to demand the keys and returned
empty-handed. The keys were finally handed over to them after Pastor
Shelembe went to the home of the seventh respondent.
[24]
Against that backdrop, the sixth and seventh
respondents testified on affidavit that Pastor Shelembe surrendered
the keys to them
without their having uttered any threats. In oral
evidence they conceded that they had indicated that, if the keys were
not handed
over, the applicant would be prevented from using the
building. Their version of why they requested the keys was that,
having attempted
to secure the attendance of Pastor Shelembe at the
Traditional Council in vain, they required leverage to ensure his
attendance.
This was the only reason advanced by them for requesting
the keys. It is clear that, in the face of opposition, they had no
power
to order anyone to hand over the keys or to prevent the
applicant from using the building. In argument it was accepted that,
if
the request were refused, they would have to apply to COGTA or to
the court. Neither of these steps was taken. It is clear that,
even
on this version, the applicant was coerced to hand over the keys. In
the matter of
Vorster v Barge Import Export
Investments (Pty) Ltd & others
,
[1]
a similar situation arose. One of the respondents held a liquor
licence and another leased the property to the applicant. While
ejectment proceedings were pending, the respondents were told that
the applicant was trading contrary to the terms of the licence
and
that, if this continued, the licence of the second respondent would
be jeopardised. They removed the applicant. The court held
that this
amounted to a spoliation. In the present matter, the coercion to
obtain the applicant’s keys was unlawful and amounted
to a
spoliation, even on their own version.
[25]
In any event, it is probable that they uttered
threats to destroy the building. Otherwise there is no probable
reason that Pastor
Shelembe would hand them the keys. He had nothing
to gain by doing so. If he handed over the keys, the applicant could
not hold
services in any event. If the only threat was that, if the
keys were not surrendered, the applicant would be prevented from
using
the building, handing the keys over would therefore not
eliminate the threat but fulfil it. In the light of the history of
refusals
to do so, that threat would simply have held no water.
However, a threat that the building would be demolished, would most
certainly
have induced Pastor Shelembe to hand over the keys. In my
view, accordingly, that is probably the threat that was made to the
applicant
in the person of Pastor Dladla.
[26]
In addition, the fourth respondent testified
that, at the Traditional Council, the ruling was that the applicant
and the first and
second respondents should each be entitled to use
the building. When he was asked why he had handed the keys to the
first respondent
and allowed him to make use of the building, but not
to Pastor Shelembe, his response was that, since Pastor Shelembe did
not come
from his area, he was not entitled to the keys. In the first
place, this indicates his attitude to the rights of the applicant to
the use of the building. This, despite the fact that virtually the
entire congregation lived at Embo in his area. Secondly, it
begs the
question why the keys were not given to a person such as Sithole who
does come from the area or, for that matter, virtually
any member of
the congregation at Embo. This accords with the probability that the
threat of destruction was made. The case for
spoliation is made out.
The second question must be answered in favour of the applicant.
[27]
In summary, therefore, it is established on the
evidence that, when obtaining the right of occupation and to build on
the property
in question, the first respondent was acting on behalf
of the applicant. In addition, as of July 2015, the first respondent
was
operating the church at Embo as a pastor appointed by the
applicant and the congregation there was that of the applicant and
not
the first respondent personally. Finally, that the keys were
surrendered to the seventh respondent as the result of a threat that,
if they were not handed over, the building would be destroyed. All
three questions, accordingly, are answered in favour of the
applicant.
[28]
This means that the applicant is entitled to an
order that the respondents restore to it possession of the building.
The respondents
agreed to the relief set out in prayer 3.1 of the
Notice of Motion.
[29]
In the result, the following order issues:
1.
The
respondents are ordered to restore to the applicant’s
possession the church building situated in the Embo Reserve,
Hillcrest.
2.
In the event
that the respondents fail, within five days of the service of this
order on the first respondent, to comply with paragraph
1 hereof, the
sheriff for the area is authorised and directed to do all that is
necessary to place the applicant in possession
of the said church
building and may, if necessary, employ the services of a locksmith to
break and change any lock to the building.
3.
By consent,
the first and second and fourth to seventh respondents:
a.
Are ordered
to allow the applicant to access and use the church building; and
b.
Are
interdicted and restrained from:
i.
Interfering
unlawfully with the applicant’s use of the church building; and
ii.
Harassing or
threatening the applicants and its employees and congregants.
4.
The first and
second and fourth to seventh respondents are ordered to pay the costs
to date of the application jointly and severally,
the one paying, the
others to be absolved.
5.
The balance
of the relief in the application is adjourned
sine
die
.
___________________________
GORVEN
J
Dates
of hearing: 13, 14, 15, 16, 27 and 28 November 2017 and
7 December 2017.
Date
of judgment: 7 December 2017.
Appearances
For the Applicant: D Crampton
Instructed
by: MH Mathonsi & Associates.
For the 1
st
, 2
nd
& 4
th
to
7
th
Respondents: B Dlamini (attorney)
of Dlamini & Associates
[1]
Vorster v Barge Import Export Investments (Pty) Ltd & others
1996 (1) SA 43
(D).