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[2016] ZAFSHC 95
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African Presbyterian Bafolisi Church of Southern Africa v Mkhwanazi and Others (5833/2015) [2016] ZAFSHC 95 (31 March 2016)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case Number: 5833/2015
In the matter between:
THE AFRICAN
PRESBYTERIAN BAFOLOSI
CHURCH
OF SOUTHERN AFRICA
Applicant
and
SEKAME
DAVID MKWANAZI
1
st
Respondent
S
J MOFOKENG
2
nd
Respondent
B
W MOTAUNG
3
rd
Respondent
L
F MOLEFE
4
th
Respondent
S
N SITHOLE
5
th
Respondent
T
MALENDU
6
th
Respondent
T
MOLOI
7
th
Respondent
T
MLABA
8
th
Respondent
MR
TSWAMETSI
9
th
Respondent
MR
TWALA
10
th
Respondent
L
XABA
11
th
Respondent
G
XABA
12
th
Respondent
T
MOKOENA
13
th
Respondent
L
J
MAZIBUKO
14
th
Respondent
K
MAPOLE
15
th
Respondent
JUDGMENT
BY:
OPPERMAN,
AJ
HEARD
ON:
24
MARCH 2016
DELIVERED
ON:
31
MARCH 2016
Introduction
[1]
The matter serves before the court as an opposed extended return date
of a rule nisi in which the applicant moves for a final
interdict.
[2]
The applicant is the African Presbyterian Bafolosi Church of Southern
Africa; not to be confused with the African Presbyterian
Church.
These are two definite different entities. The similarity in the
nomenclature of the designations of the churches is a
reality that
has been susceptible to exploitation and confusion and the root of
unremitting strife amongst the devout.
[3]
The respondents are private persons that forms part of the religious
groups tangled in the conflict.
[4]
The applicant and respondents as described above will be referred to
throughout the case (main and interlocutory) as such.
[5]
Litigation on various disputes involving the applicant served before
courts in this division in the recent past. Assessment
of the
cases cannot but result in the inference that vagueness of rights and
responsibilities; rules legally decreed to ensure
stability and
security, are the source of the animosity in a milieu that is
historically supposed to be an environment of peace.
Greed for power
and financial gain is suspiciously lurking in the undertones of the
evidence.
[6] On the 17
th
of December 2015 the following order was made:
“
Having
considered the notice of motion and the other documents filed on
record and having heard Counsel for the applicant,
IT IS ORDERED THAT:
1.
The
matter is heard on an urgent basis and that condonation is granted in
respect of the Applicant`s non-compliance with the usual
forms and
manner of service as prescribed by the Uniform Rules of Court;
2.
A
rule nisi be issued, calling upon the respondents to show cause (if
any) on Thursday, 28 January 2016 at 9:30 why a final order
in the
following terms should not be granted.
2.1
The
respondents to be stopped from doing anything which directly or
indirectly obstructs, impedes, disrupts, postpones, delays or
interferes with the activities of the Applicant and any of the
applicant`s officials, members and visitors in the executing
of their
duties, services and ordinary church activities;
2.2
The
respondents to be stopped from damaging any property of the applicant
or property belonging to members of the applicant or members
of the
public;
2.3
The
respondents to be stopped from molesting, assaulting, threatening or
intimidating any of the applicant`s officials, members,
visitors or
any person present on the applicant`s property;
2.4
The
respondents to be prohibited from coming within 100 meters of the
applicant`s churches at:
2.4.1
Rankopane
– situated in the Rankopane Village, Qwa-Qwa, Free State
2.4.2
Tsheseng
– situated in the Tsheseng Village, Qwa-Qwa, Free State
2.4.3
Makwani
– situated in the Makwani Village, Qwa-Qwa Village, Free State
2.4.4
Makong
– situated in the Makong Village, Qwa-Qwa, Free State
2.5
The
respondents to be stopped from in any manner whatsoever inciting,
taunting, encouraging, instigating, prompting and/or provoking
individuals to perform any of the acts described I paragraphs 2.1,
2.2, 2.3 and 2.5 above;
2.6
The
sheriff of this Honourable Court and/or the South African Police
Services to be authorised and directed to remove and expel
from the
property and premises of the applicant, any respondents who fails
and/ or refuses to comply with paragraphs 2.1, 2.1,
2.3 and 2.5
above;
3.
The
relief sought in paragraphs 2.1, 2.2, 2.3,
4.
2.5
and 2.6 above shall serve as an interim interdict with immediate
effect, pending the finalization of the relief granted herein;”
[7]
The main motion was interrupted by notice from the respondents to
apply for the striking out of some paragraphs, with the annexures
thereto, in the replying affidavit of the applicant: Rules 6(11) and
6(15) of the Uniform Rules of Court are applicable.
[1]
The contentions are that paragraph 7 be struck on the basis of being
hearsay evidence and paragraphs 9 to 14 to be struck because
it
constitute an attempt by the applicant to introduce new evidence by
way of the replying affidavit.
[8]
The paragraphs are directly relevant to the merits in dispute in the
main matter and the interlocutory notice is on points of
law. It was
therefore prudent to first hear and rule on the interlocutory
arguments of law, before the merits be dealt with. I
made a ruling on
24 March 2016 and declared
that
my reasons would follow in due course. These are my reasons.
[9]
The disputes
The
disputes in the main matter revolve around the proof of ownership or
even mere possession and identifiability of the church
buildings and
property on which the interim interdict is founded. A further issue
is the vagueness of the allegations of interference
by the
respondents with the property, activities and members of the
applicant. The consequent result is purported to be a vague
court
order that is not executable and legally proper.
[10]
Paragraph
7 of the replying affidavit: Hearsay evidence
10.1
In terms of section 3(4) of
The
Law of Evidence Amendment
Act
45 of 1988
“
hearsay
evidence” means evidence, whether oral or in writing, the
probative value of which depends upon the credibility of
any person
other than the person giving such evidence
.
10.2
Paragraph
7 of the replying affidavit as deposed by the Archbishop of the
applicant states that:
“
The
respondent`s main defence is that they are part of the African
Presbyterian Church of South Africa. I investigated this averment.
According to the National Independent Council of Churches there is a
church register with the name of African Presbyterian Church.
Their
leader is the Presiding Moderator Bishop Matousu David Ramosedi.”
10.3
The
affidavit attached to the above replying affidavit by Matousu David
Ramosedi states:
“
1.
I am a major male ordained minister and presiding moderator in the
African Presbyterian Church at 8665,
K9 Kutlwanong, Odendalsrus, Free
State.
2.
I
am the head of the African Presbyterian Church. We have branches in
the Northern Cape, North West and Free State and Gauteng.
I am duly
authorised to depose to this affidavit.
3.
The
facts contained herein fall within my personal knowledge and are both
correct and true unless the contrary is expressed herein.
Any legal
submission that I make are made based on my own legal experience and
the advice of the applicant`s legal team.
4.
I
attach hereto the following:
a.
As
annexure A a copy of my designation as marriage officer of the
African Presbyterian Church dated the 18
th
of January 2010;
b.
As
annexure B a copy of a certificate by the Registrar of Independent
Churches dated March 2000;
c.
As
annexure C a copy of a certificate confirming the listing of the
African Presbyterian Church dated 22 February 2013;
d.
As
annexure D a copy of the Certificate of Recognition of the African
Presbyterian Church dated 30 March 2013.”
10.4
The
person upon whose credibility the probative value of the hearsay
evidence in paragraph 7 depends is Archbishop Matousu David
Ramosedi.
He himself confirmed the evidence in paragraph 7 by means of sworn
affidavit as depicted above.
10.5
The
averment: “According to the National Independent Council of
Churches there is a church registered with the name of African
Presbyterian Church.”, is hearsay from the National Independent
Council of Churches but the evidence itself is confirmed
and is met
by Matousu David Ramosedi. The evidence of Ramosedi falls within the
definition of ‘any person’ in ‘the
probative value
of which depends upon the credibility of any person.’ The rule
in the relevant Act does not demand that the
National Independent
Council of Churches itself confirms the evidence, but ‘any
person’.
10.6
In
addition; the fact that there is a church registered as the African
Presbyterian Church has not been placed in dispute by the
respondents.
10.7
Appraisal
of the conditions for the admission of hearsay evidence in
section 3
of the
Law
of Evidence Amendment Act 45 of 1988
as a whole confirms that paragraph 7 is admissible and relevant.
[2]
10.8
The
prayer to struck paragraph 7 must be dismissed.
[11]
Paragraphs
9 to 14:
[3]
New evidence in
reply
.
11.1
All
the allegations on which the applicant relies must be in his founding
affidavit. He cannot adduce supporting facts in the replying
affidavit. The rule is not absolute because the court has a
discretion, in certain instances, to allow new material in a replying
affidavit subject to the proviso that the respondent should be given
an opportunity to deal with it in a set of answering affidavits.
11.2
Different
considerations apply before the court exercises its discretion in
this regard. The court must distinguish between a situation
where the
applicant knew of the new material earlier but did not include it and
a situation where the respondent`s answering affidavits
reveals the
existence of a further ground for relief by the applicant.
11.3
The
court will not allow the introduction of a new matter if the new
matter sought to be introduced amounts to the substitution
of a new
and completely different claim based on a different course of action.
The court will also not allow an applicant to make
out a case in
reply when no case at all was made out in the original application.
11.4
Assessment
of the paragraphs in issue shows that the replying affidavit of the
applicant never endeavoured to fashion a new claim
or reveal a new
ground for relief. It is a mere answer to the merits and evidence
that was revealed in the answering affidavit
of the respondents.
Further; the applicant already made out a satisfactory case in the
founding affidavit; the facts of which caused
the interim interdict
to be allowed on the 17
th
of December 2015.
11.5
This
point in
limine
is therefor also dismissed.
[12]
Facts
in dispute
The parties also
advocated that the court adjudicate whether a dispute of facts might
have arisen and dispose of the matter accordingly
during the
interlocutory proceedings.
12.1
Dispute
of facts exits where the applicant and respondent both file
conflicting reports. Applications are designed for matters where
there are no dispute of facts.
12.2
If
there is a dispute of facts in an application for a final interdict
the Plascon Evans
[4]
rule
applies. Paragraphs 634E-635D describes the test as follows:
“
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 affidavit and which have been admitted by
the respondent,
together with the facts admitted by the respondent, together with the
facts alleged by the respondent justify such
an order.”
12.3
As
it stands the evidence does not justify an order. T
he
case as a whole lacks clarity on the i
dentification
and description of the site/place/locality of the activities of the
applicant, identification and description of the
locality and the
property itself. Proof of ownership or possession to establish legal
standing of the applicant to apply for the
final interdict in regard
to the property referred to and specific evidence describing the acts
of obstruction, disruption, interference,
molestation, threatening
and intimidation perpetrated by the fifteen respondents, are lacking.
12.4
This
court is unable to decide the matter on paper because the reports are
vague and void of detail. This is due to the conflicting
versions by
both parties. The cause of the disputes, however, are material and
clear. Everybody has the right to have any dispute
that can be
resolved by the application of law decided in a fair public hearing
before a court; the parties and communities besieged
by this unrest
deserves final management and protection of their affected rights.
12.5
In
addition; the essential features of a court order as demanded in law
and the formulation of the interim interdict the applicant
relies
upon, cause the evidence in this application to culminate into a
clash of evidence and law; an effective interdict is not
possible due
to vagueness of the facts and rights.
“
[73]
A court order must bring finality to the dispute or part
of it, to which it applies. The order must be framed
in unambiguous
terms and must be capable of being enforced, in the event of
noncompliance. In cases where, as here, the order deals
with the
parties’ property rights which are subject to protections
guaranteed by
section
25
of
the Constitution, a court granting the order is duty bound to issue
an appropriate and effective order.
The
order of July 2013 was not effective because it was not enforceable.
[74]
If an order is ambiguous, unenforceable,
ineffective, inappropriate, or lacks the element of bringing finality
to a matter or at least part of the case, it cannot be said that the
court that granted it exercised its discretion properly. It
is a
fundamental principle of our law that a court order must be effective
and enforceable, and it must be formulated in language
that leaves no
doubt as to what the order requires to be done. The order may not be
framed in a manner that affords the person
on whom it applies, the
discretion to comply or disregard it.”
[5]
12.6
I may now dismiss the application, refer the matter for oral evidence
or refer the application for trial.
It will be undesirable to
endeavour to decide the application upon affidavit with the above in
issue. In such a case it is preferable
that oral evidence be led to
enable the court to see and hear the witnesses before coming to a
conclusion; this in order to make
an order that will ensure a just
and expeditious decision that will bring finality to the
dispute.
[13]
ORDER
1.
The
application for paragraphs 7 and 9 to 14 to be struck from the
applicant`s replying affidavit is dismissed.
2.
The
matter is referred for oral evidence on the following questions:
a)
Identification
and description of the site/place/locality of the: “activities
of the applicant and any of the applicant`s
officials, members and
visitors in the execution of their duties, services and ordinary
church services” as referred to in
paragraph 2.1 of the interim
interdict dated 17 December 2015.
b)
Identification
and description of the locality and the property itself, referred to
as: “any property of the applicant or
property belonging to
members of the applicant or members of the public” as
referred to in paragraph 2.2 of the interim
interdict dated 17
December 2015
c)
Identification
and description of the locality and the property itself, referred to
as: “on the applicant`s property”
and as referred
to in paragraph 2.3 of the interim interdict dated 17 December 2015
d)
Proof
of ownership or possession to establish legal standing of the
applicant to apply for the final interdict in regard to the
property
referred to in paragraphs 2.2, 2.3 and 2.4 of the interim interdict
dated 17 December 2015
e)
Specific
evidence describing the acts of obstruction, disruption,
interference, molestation, threatening and intimidation perpetrated
by the fifteen respondents.
3.
Evidence shall be that of any witness whom either of the parties may
elect to call and no party shall be entitled
to call any witness
unless:
3.1
it
has served on opposing parties 14 days before hearing (respondent) or
10 days before hearing (applicant) a statement wherein
the evidence
to be given in chief by such person is set out; or
3.2
the
court allows the person to be called despite lack of notice.
4.
Either party may subpoena any person to give evidence whether that
person has consented to furnish a statement
or not.
5.
The
fact that the party has served the statement or subpoenaed a witness
does not oblige them to call the witness concerned.
6.
Within
21 days of this order, each party shall make discovery on oath of all
documents relating to the issue referred to in paragraph
2 which are
or have at any time been in possession or control of the party. The
discovery shall be made in accordance with Rule
35 and the provisions
of the rule regarding inspection and production of discovered
documents shall be operative.
7.
The
rule nisi issued on 17 December 2015 is extended to the 21 June 2016.
8.
The
matter remanded to 21, 22 and 24 June 2016 for oral evidence.
9.
The
costs incurred up to now shall be determined after the hearing of
oral evidence.
________________________
M.
OPPERMAN, AJ
On behalf of the
applicant:
Adv.
Instructed
by:
BLOEMFONTEIN
On behalf of the
respondents: Adv.
Instructed
by:
BLOEMFONTEIN
1.
Rule
6(11): Notwithstanding the a foregoing sub rules, interlocutory and
other applications incidental to pending proceedings
may be brought
on notice supported by such affidavits as the case may require and
set down at a time assigned by the registrar
or as directed by a
judge. Rule 6(15): The court may on application order to be
struck out from any affidavit any matter
which is scandalous,
vexatious or irrelevant, with an appropriate order as to costs,
including costs as between attorney and
client. The court shall not
grant the application unless it is satisfied that the applicant will
be prejudiced in his case if
it be not granted.
[2]
Section
3 provides:
(1)
Subject to the provisions of any other law, hearsay evidence shall
not be admitted as evidence at criminal or civil proceedings,
unless—
(a)
each party against whom the evidence is to be adduced agrees to the
admission thereof as evidence at such proceedings;
(b)
the person upon whose credibility the probative value of such
evidence depends, himself testifies at such proceedings;
or
(c)
the court, having regard to—
(i)
the nature of the proceedings;
(ii)
the nature of the evidence;
(iii)
the purpose for which the evidence is tendered;
(iv)
the probative value of the evidence;
(v)
the reason why the evidence is not given by the person upon whose
credibility the probative value of such evidence depends;
(vi)
any prejudice to a party which the admission of such evidence might
entail; and
(vii)
any other factor which should in the opinion of the court be taken
into account, is of the opinion that such evidence should
be
admitted in the interests of justice.
(2)
The provisions of subsection (1) shall not render admissible any
evidence which is inadmissible on any ground other than that
such
evidence is hearsay evidence.
(3)
Hearsay evidence may be provisionally admitted in terms of
subsection (1) (b) if the court is informed that the person upon
whose credibility the probative value of such evidence depends, will
himself testify in such proceedings: Provided that if such
person
does not later testify in such proceedings, the hearsay evidence
shall be left out of account unless the hearsay evidence
is admitted
in terms of paragraph (a) of subsection (1) or is admitted by the
court in terms of paragraph (c) of that subsection.
[3]
The
paragraphs are comprehensive and will not be repeated in the
judgment.
[4]
Plascon-Evans Paints (TVL)
Ltd. V Van Riebeck Paints (Pty) Ltd. (53/84)
[1984] ZASCA 51
;
[1984]
2 All SA 366
(A);
1984 (3) SA 623
;
1984 (3) SA 620
(21 May 1984).
[5]
Eke v Parsons
2015 (11) BCLR 1319
(CC).