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[2015] ZAFSHC 123
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Apostolic Faith Mission of South Africa and Another v Moloi and Others (4702/2013) [2015] ZAFSHC 123 (25 June 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 4702/2013
In the
application between:
THE APOSTOLIC FAITH MISSION OF
SOUTH AFRICA
TEBEJANE ALFRED MLANGENI
and
A A MOLOI
M
E MOLOE
T A CHARLIE
P P LESIA
D J MATELA
I V Y MOTSOENENG
G T MOTSOENENG
P M HLALELE
B M SELEVU
M E NKWANE
S NKWANE
B RADEBE
N E MALAKOANE
T SETLABA
L
S LENYEHELO
1st applicant
2nd applicant
1st Respondent
2nd Respondent
3rd Respondent
4th Respondent
5th Respondent
6th Respondent
7th Respondent
8th Respondent
9th Respondent
10th Respondent
11th Respondent
12th Respondent
13th Respondent
14th Respondent
15th
Respondent
JUDGMENT
BY:
C REINDERS, AJ
HEARD
ON:
11 JUNE 2015
DELIVERED
ON:
25 JUNE 2015
[1]
This application, dealing with disruption and/or disturbance of
church services, originated as an urgent application on 16 November
2013 and has yet to find closure. Due to the somewhat long history as
well as uncertainty relating to the current nature thereof,
I find it
apposite to give a brief synopsis of the history of the application.
[2]
On 16 November 2013 a rule nisi was issued by Moloi J, returnable 30
January 2014, in the following terms:
“
1.
The non-compliance with the rules of the above Honourable Court
pertaining to time limits and manner
of service is dispensed with and
that this application is heard as one of urgency.
2. The rule nisi is
issued, returnable on 30th January 2014, calling upon the Respondents
to
show cause, if any, why the following orders should not be made
final:
2.1
That the Respondents and/or anyone under their instruction be
interdicted and restrained from disturbing,
alternatively disrupting
in any manner whatsoever Sunday church service of the Applicant;
2.2
That the Respondents and/or anyone under their instruction be
interdicted and restrained from threatening
in any manner board
members of the Applicant.
3.
Paragraph 2.1 and 2.2 supra above shall operate as an interim
interdict with immediate effect.
4.
The Respondents, jointly and severally, the one paying the others to
be absolved, to pay
the costs hereof.”
[3]
The Respondents filed their opposing affidavits on 27 January 2014,
but on the intended return day the application was postponed
to 6
March 2014, and once again on 6 March 2014 to 13 March 2014,
apparently by agreement that the rule nisi had not lapsed.
[4]
By agreement between the parties the Second Applicant was allowed to
intervene on 13 March 2014, and time frames were laid down
relating
to the delivery of further affidavits. The rule nisi was extended
further to 15 May 2014.
[5]
On 28 March 2014 the Second Applicant delivered a notice in terms of
Rule 28 of the Uniform Rules of Court of his intention
to amend the
Notice of Motion in the following manner:
“
By
deleting the whole of paragraph 3 and replacing it with the
following:
3.
That pending the finalization of an investigation into acts of
misconduct by the Respondents or possible institution
and
finalization of disciplinary steps against the Respondents by the
disciplinary body of the Apostolic Faith Mission of South
Africa,
alternatively, the holding of an Annual General Meeting (AGM),
whichever occurs first, that prayers 2.1 and 2.2 shall operate
as an
interim interdict with immediate effect.”
[6]
The Respondents filed a notice of objection to the intended amendmend
on 22 April 2014. On 23 April 2014 the First Applicant
filed a notice
of withdrawel, tendering costs. On the return day, 5 May 2014, the
application was postponed sine die by agreement
between the parties.
[7]
Pursuant to the Respondent’s objection to the intended
amendment of the Second Applicant’s Notice of Motion, the
appliction was enrolled on the opposed motion roll of 19 June 2014
and heard by Mbhele, AJ who handed down judgment in favour
of
Second Applicant on 11 September 2014.
[8]
The application that I need to adjudicate upon is thus for an
order in the following terms:
“
2.1
That the respondents and/or anyone under their instruction is
interdicted and restrained from disturbing, alternatively
disrupting
in any manner whatsoever Sunday church service of the First Applicant
2.2
That the respondents and/or anyone under their instruction be
interdicted and restrained from threatening
in any manner board
members of the First Applicant
3.
That pending the finilization of an investigation into acts of
misconduct by the Respondents
or possible institution and
finilization of disciplinary steps against the Respondents by the
disciplinary body of the Apostolic
Faith Mission of South Africa,
alternatively, the holding of an Annual General Meeting (AGM),
whichever occurs first, prayers 2.1
and 2.2 shall operate as an
interim interdict with immediate effect.”
[9]
There can be no doubt in my mind as to the status of this
application. It is not a final order that is sought as prayer 3 above
makes it clear that the relief sought in prayers 1 and 2, are interim
interdicts sought against the Respondents as stated. The
latter is
pending the occurance of the finalisation of an investigation and
possible disciplinary steps against the Respondent,
alternatively the
holding of an Annual General Meeting (AGM). The interim order already
given on November 2013, had been extended
and will continue to do so
until such a time as the occurance of prayer 3 take place.
[10] I
now turn to the merits of this application. The First Applicant is
the Apostolic Faith Mission of South Africa (the church),
being so
described as the name of the church in the document entitled
“Constitution of the Apostolic Faith Mission of South
Africa”
kindly handed up from the bar by Mr Tshabalala on behalf of the
Respondents. The Second Applicant is one of
the members of the church
(Thabong Assembly), Mr Tebejane Alfred Mlangeni (Mr Mlangeni). All
the respondents are members of the
church.
[11] The
application was brought about by disruption of church services by the
Respondents at the Thabong Assembly where one Pastor
Andries Molete
(Pastor Molete), who deposed to the founding affidavit of the First
Applicant, was the preacher. Ceremonies were
disrupted by singing and
chanting whilst Pastor Molete was preaching and thus no order could
exist. According to Mr Mlangeni, after
the court order was granted in
November 2013, church services ran smoothly, peacefully and
uninterrupted. It was respected by the
parties, but grievances of the
parties against each other needed to be addressed by the church
whilst the court order remained
in force.
[12] The
Respondents in their opposing affidavit admitted that problems in the
assembly eixisted and could be resolved internally.
That tension
exists between the parties, can not be denied, as Respondents
indicated that the leadership was questioned by some
members and it
was decided that a neutral person must be assigned to preach. It was
also common ground that there had not been
an AGM as is provided for
in the church’s constitution since 2012. This aggrevated
tension, mistrust and animosity between
members of the congregation.
[13]
When the application was initially brought by Pastor Molete, (as
deponent to the then Applicant’s founding affidavit)
the
Respondents raised four points in limine, namely the material
non-joinder of the Regional Leadership Committee of the Church,
the
incorrect citation of the First Applicant, material non-joinder of
the National Leadership Forum of the Church and failure
to exhaust
internal remedies in respect of the constitution of the church. These
four points in limine were once again raised in
opposition to Mr
Mlangeni’s founding affidavit.
[14]
It should be borne in mind that Pastor Molete (as deponent) withdrew
as First Applicant, leaving only Mr Mlangeni as Second
Applicant, who
intervened in his capacity as a member of the church. Mr Mlangeni
requires of this court to assist him, as well
as other members of the
Thabong assembly, in preserving his right to worship in a peaceful,
orderly fashion. Mr Mlangeni has a
prima facie right as member of the
church to the relief that he claims. In so far as Mr Greyling
submitted that the first three
of the abovementioned points raised in
limine do not have any merit, I agree with him. No relief is sought
against either the Regional
Leadership Committe or National
Leadership Forum. The First Applicant withdrew from the proceedings
so the citition thereof became
irrellevant thereafter.
[15]
The final point in limine raised by Respondents, namely that Mr
Mlangeni has failed to exhaust his internal remedies afforded
to him
in the constitution of the church (Appendix 11 thereof), requires
closer scrutiny. The thrust of Mr Tshabalala’s argument
was
that the Applicant did not exhaust his internal remedies by referring
the dispute in terms of the constitution, but “jumped
the que”
by taking the matter to court. This factor is also an important
element in the court’s general discretion
to grant or refuse an
interim interdict.
See:
Beecham Group Ltd
v B-M Group (Pty)
Ltd
[1977] 1 All SA 267
(T).
[16] In
his reply to the latter point in limine by Respondents, Mr Mlangeni
indicated that there is a dire need for a restraining
order against
the Respondents for the reasons as alluded to above. Whilst the
church’s hierarchal structures are dealing
with the factual
disputes in the congregation, an interdict is crucial for the
preservation of peace and order in the church. He
would follow the
“normal procedure”. I am satisfied that the internal
remedy of procedures in terms of the constitution
of the church would
not afford Mr Mlangeni and other members of the congregation the same
immediate and effective protection of
their rights, as is quite
clearly shown by the positive results that the interdict granted by
this court against the Respondents
on 16 November 2013 had. Urgent
and immediate intervention was (and still is) required in order to
restore peace, something which
only the wheels of justice could and
can achieve.
[17]
Another requisite for the granting of an interim interdict is a
reasonable apprehension
that continuance of the alleged wrong will
cause irreparable harm. The test is objective and the question is
whether a reasonable
person, confronted by the facts, would apprehend
the probability of harm
See:
Minister of Law
and Order v Nordien
[1987] ZASCA 24
;
[1987] 2 All SA 164
(A).
[18] It
is unquestionable that the reasonble member of a church (like Mr
Mlangeni) would apprehend that harm be caused by unruly
behaviour of
his fellow church members. Such unruly and disruptive behaviour by
church members cause irreparable harm to all other
members who attend
church in order to worship. A church is a place of peace, and harm is
caused to the church as a whole in the
absence thereof.
[19]
That the balance of convenience favours the granting of an interim
interdict, is evidenced by the fact that the only prerequisite
for
the Respondents to attend sessions of worship, is to behave and not
disrupt in any way. I reconcile myself with Mbhele,
J in her
unreported judgment in this application as referred to in par [6]
above where she states as follows:
“
[18]
Church is a place of worship where the highest level of order and
discipline must be maintained
in order to protect the members’
right to freedom of religion.”
and futhermore
“
[20]
Disruption of church sevices is an undersirable phenomenon at any
given time.”
[20]
In view of the discretionary nature of an interim interdict all of
the abovementioned requirements are not judged in isolation
but they
interact. The facts as set out by Mr Mlangeni, together with the
facts conceded to by the Respondents, is indicative of
the fact that
conflicts exists and that, until such a time as the conflicts can be
resolved internally, interim relief is of the
utmost importance.
See:
Gool v Minister
of Justice
1955 (2) SA 682
(C).
[21]
The order granted by Moloi J on 16 November 2013, was extended on
several occassions as referred to above, and lasted until
date
hereof. As the church (the then Applicant) withdrew its
application and there was an amendment of the notice of motion
(par
[7] above) it is not prudent to confirm that order. I am not of the
view that the Second Applicant has locus standi to obtain
an order
prohibiting the Respondents from threatening members of the board.
Should any one of them need such an order, they should
apply
therefore.
[22]
The interim order granted ostensibly heeded healthy results. The road
forward could or should be addressed either by way of
disciplinary
steps or an AGM as is provided for in the constitution of the church.
Until the happening of either of the two occurances
an interim order
seems to be appropriate. However, I am uncertain when the next
AGM must be held, but accept that same occurs
once every twelve
months.
[23] The only
remaining question is thus that pertaining to costs. Various cost
orders have been granted in the course of this application
as was
referred to in paras [2]-[7] above. The basic principle regarding
cost is that cost will follow suit. I have noted the genuine
interest
with which all parties involved followed the court proceedings on 11
June 2015. I also take cognizance of the fact that
religion is more
often than not a matter of principle for believers. However, the
Second Applicant was substantially successful
in obtaining the relief
that he prayed for, and is accordingly entiteld to his costs.
[24]
Accordingly I grant the following orders:
1.
Pending finilization of
disciplinary steps against the Respondents by the disciplinary body
of the Apostolic Faith Mission of South
Africa, alternatively, the
holding of an Annual General Meeting of the Apostolic Faith Mission
of South Africa (which shall be
held in terms of the constitution of
the church within twelve months of date of granting of this order),
whichever occurs first,
the Respondents and/or anyone under their
instruction are interdicted and restrained from disturbing,
alternatively disrupting
in any manner whatsoever Sunday church
services of the Apostolic Faith Mission of South Africa.
2.
The Respondents to pay
Second Applicant’s taxed costs on a party and party scale,
jointly and severally, the one to pay the
others to be absolved.
________________
C.
REINDERS, AJ
On behalf of
Second Applicant:
Adv. P. du P Greyling
Instructed by:
Motaung Attorneys
BLOEMFONTEIN
On behalf of
Respondents:
Adv. M.
S. Tshabalala
Instructed by:
Hill, McHardy & Herbst Inc
BLOEMFONTEIN