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[2015] ZAECBHC 6
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African Gospel Church v Ndyalivani (513/2014) [2015] ZAECBHC 6 (24 March 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE LOCAL
DIVISION, BHISHO
Case
No.: 513/2014
Date
Heard: 12 March 2015
Date
Delivered: 24 March 2015
In the matter between:
AFRICAN
GOSPEL CHURCH
Applicant
and
JACKSON
NDYALIVANI
Respondent
JUDGMENT
EKSTEEN J:
[1]
The applicant seeks the confirmation of the
rule
nisi
issued in this Court on 4 September 2014 interdicting the respondent
from entering or being at the premises of the applicant’s
church in Dimbaza and granting certain ancillary relief.
[2]
The applicant has for many years been
plagued by dissension within its membership. This, sadly, has
led to considerable litigation
over an extended period and it is this
dissension which lies at the root of the current dispute.
[3]
The Reverend Gigaba (to whom I shall refer
herein as “Gigaba”) has attested to the founding
affidavit on behalf of the
applicant. He alleges that he is the
moderator of the applicant and that he is therefore empowered by the
constitution of
the applicant to act on its behalf. The
respondent disputes the authority of Gigaba to represent the
applicant in this matter
and denies that Gigaba is the moderator of
the applicant at all. It is accordingly necessary, before I
turn to consider the
merits of the application, to address the issue
of Gigaba’s
locus standi
.
[4]
It is not in dispute that the constitution
of the applicant authorises the moderator to act on its behalf and
therefore to bring
legal proceedings. Gigaba states that he is
the duly and lawfully elected moderator of the applicant, having
first been duly
and lawfully elected as moderator by the annual
conference of the applicant in 1994. He proceeds to state that
he was thereafter
duly and lawfully re-elected as moderator by annual
conferences and/or special annual conferences of the applicant in
1999, 2008
and 2013 respectively. The election in 2008, he
states, took place in accordance with an order of the Bhisho High
Court and
was assisted by officials from the Independent Electoral
Commission. I pause to mention that the order of the Bhisho High
Court
referred to is an order issued by Nyangiwe AJ on 31 August 2006
in case number 1560/2005.
[5]
The respondent admits that Gigaba was
lawfully and constitutionally elected as moderator of the church in
1994, however, he contends
that Gigaba’s term of office expired
in 1999 and that he was never re-elected in 1999. Gigaba, he
says, was unhappy
with the decision not to re-elect him in 1999 and
he left the church declaring that he was still the moderator of the
church.
The respondent proceeds to declare that Gigaba has
never been “duly elected” after 1994 and his group never
complied
with the order made by Nyangiwe AJ. The order made
Nyangiwe AJ has not been placed before me but the respondent alleges
that
Nyangiwe AJ ordered that Gigaba, in his capacity as moderator,
convene a meeting of the remaining members of the Central Executive
of the Church as lawfully constituted in 1996 for the sole purpose of
determining an appropriate date for the holding of a special
annual
conference of the church. This, the respondent contends was
never done and he denies that the 2008 election took place
in
accordance with the order of the court.
[6]
As is apparent from the aforegoing the
respondent puts up a blanket denial that Gigaba was ever “duly
elected” as moderator
after 1994. The respondent does not
take the Court into his confidence in explaining why he contends that
Gigaba was not
“duly elected”. It is nevertheless
implicit in the averments made by the respondent himself that
Nyangiwe AJ
made an order that Gigaba should convene a meeting as set
out above in his capacity as moderator. It appears therefore,
on
the version of the respondent, that this Court found Gigaba to
have been the moderator of the applicant during 2006.
[7]
I turn to consider the 2008 election.
The applicant, in its founding affidavit, set out at some length the
history of litigation
involving the applicant. It referred
extensively to an application brought in the High Court of
KwaZulu-Natal in case number
14614/07 (to which I shall revert in
greater detail later herein). At this juncture it is sufficient
to refer briefly to
some of the findings made. The application
was referred to oral evidence and the trial commenced during 2009.
The applicant
states that the evidence ran for thirty court days over
a period of four years terminating in an order made during March
2013.
In his judgment, after hearing the extensive evidence,
Ntshangase J held:
“
I
pause here to state that much is and has been said about recognition
of two groups, the so-called Gigaba group and Zimu group,
both
purporting to operate as the African Gospel Church ….
What there is in fact in
this church is a dissension amongst members and not a spilt of the
church. There cannot be two independent
groups operating as the
African Gospel Church (each) with its own head ….
Whoever is elected as Moderator …
is the Moderator of the
entire African Gospel Church …”
[8]
Ntshangase J proceeded to hold that
presently, by re-election in 2008 at Cedarville, Reverend Gigaba is
the moderator. The
judgment of Ntshangase J was delivered in
March 2013. An application for leave to appeal against the
judgment was refused
by the Supreme Court of Appeal. I set out
later herein the order issued by Ntshangase J.
[9]
To the specific allegations made in respect
of this litigation and the findings made by Ntshangase J the
respondent did not reply
at all in these proceedings and they
accordingly remain entirely controverted. The bald denial, to
which I have referred
earlier, of the averment that the 2008 election
took place “in accordance with the order of Court” is
therefore untenable.
The respondent does not attempt at all to
set out the deficiencies in the 2008 election which he contends do
not accord with the
order of Court. The order of Court, as I
have alluded to earlier, has not been annexed to the papers.
[10]
That brings me to the 2013 elections.
In this application the respondent does not deal at all with the
events of 2013 and
simply denies that Gigaba was elected. The
denial is somewhat coy. He does not suggest whether it is
contended that
no election took place or whether it is contended that
the election which did take place was deficient in some manner or
another.
[11]
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 the
respondent of a fact alleged by the applicant may not be such as to
raise a real, genuine or
bona fide
dispute of fact .... If in such a case the respondent has not
availed himself of his right to apply for the deponents concerned
to
be called for cross-examination under Rule 6(5)(g) of the Uniform
Rules of Court ... and the Court is satisfied as to the inherent
credibility of the applicant’s factual averment, it may proceed
on the basis of the correctness thereof and include this
fact among
those upon which it determines whether the applicant is entitled to
the final relief which he seeks. ...”
[12]
For the reasons set out above I am not
persuaded that any real, genuine or
bona
fide
dispute of fact exists as to the
validity of the election of Gigaba as the moderator of the applicant
in 2008 or 2013. The
respondent did not avail itself of the
right to apply for Gigaba to be called for cross-examination. I
am accordingly satisfied
that he has the
locus
standi
to bring the application
to Court on behalf of the applicant.
[13]
I turn to consider the merits of the
matter. Again it is necessary for purposes of the merits to set
out the background to
the events which occurred on 31 August 2014.
[14]
The respondent, in his affidavit,
acknowledges that the applicant is a juristic person able to own
property. He then proceeds
to state:
“
6.
For several years now our church has been ravaged by factions which
both do not recognize
each other as the leadership of the church.
Our group follows Zimu as the legitimate leader and Moderator of the
Church whilst
Gigaba is the leader of the rebel group which refuses
to accept Zimu as the lawfully and constitutionally elected leader of
the
church as a whole. This stalemate has led to a flurry of
litigation between the two groups which are divided at all levels.
In terms of the Judgment of Mr Justice Ntshangase Reverend Gigaba is
so far the lawful and constitutional Moderator but the Zimu
faction
is opposing the finding of Ntshangase J. To put it differently,
Gigaba is a renegade former Moderator whose official
term came to an
end in 1999 but refused to vacate office …
7.
The standoff between my group and the congregation headed by Rayisa
is a result of the leadership squabble
in the upper echelons of the
church. … The Church building belongs to the national
church from which Gigaba is a defector
and has been whipping the
emotions of the congregants by making false allegations. Until
the dispute is finally resolved
in the highest court of the land, no
church building belongs to any particular faction and all the
congregants have contributed
in purchasing and developing church
buildings.”
[15]
I have referred earlier to the pertinent findings of Ntshangase J.
An application for leave to
appeal against the judgment of Ntshangase
J was, as earlier recorded, refused both by the trial Judge and by
the Supreme Court
of Appeal. There is no further appeal
pending.
[16]
The application before Ntshangase J was an application for contempt
of court seeking to commit Zimu
to imprisonment for his failure to
comply with earlier orders of court. Ntshangase J imposed a
period of imprisonment upon
Zimu for contempt of court and imposed a
further period of imprisonment which was suspended as follows:
‘
2.
The Respondent is committed and sentenced to imprisonment for six
months of which four months are suspended
for five years on the
following conditions that the Respondent: (
sic
)
2.1
shall not directly or indirectly hold himself out as holding any
office of the African Gospel
Church for which elections must be held,
at a duly constituted conference, and especially that of Moderator,
unless he has been
duly elected to such office.
2.2
shall not directly or indirectly call, organise, hold, attend or
preside over any meeting,
conference or election of the African
Gospel Church at Fascadale or at any other place, and shall in
particular not ordain any
ministers and / or workers of the African
Gospel Church whilst not lawfully holding the office of Moderator of
the African Gospel
Church.
2.3
shall not alone or together with others hold himself out as holding
office in or constituting
an Executive Committee, central Committee,
Council or any other governing body of the African Gospel Church or
as acting in any
executive capacity of the African Gospel Church
unless he has been duly elected to such office.
2.4
the Respondent is, within a period of 14 days from the date hereof
to sign a declaration.
2.4.1
that all ordinations of persons as ministers or evangelists over
which the Respondent presided at Fascadale
or any other place from
2001 to date; and
2.4.2
all “appointments”, “transfers”, or
placements that the Respondents made of persons,
whether ministers or
evangelists or not to facilities and / or churches and / or premises
of the African Gospel Church from 2001;
and
2.4.3
all transactions which the Respondent undertook in the name of the
African Gospel Church as a purported
office bearer of the African
Gospel Church are null and void, and
2.4.4
that the Respondent is not and has never been elected to the office
of moderator and has accordingly never
held office as Moderator in
the African Gospel Church, which, incidentally the Respondent has
declared in his apology.’
[17]
Ntshangase J further ordered that the said declaration referred in
paragraph 2.4 of his order should
be accompanied by an apology to be
published to all congregants of the African Gospel Church and
prominently at the respondent’s
expense in the Ilanga and the
Isolezwe newspapers in Zulu translated by a sworn translator and in
English in the City Press and
in the Sowetan and in the Daily
Dispatch in English. This was duly done. In these
circumstances the respondent’s
claims of Zimu’s
legitimacy set out in paragraphs 6 and 7 of his affidavit, which I
have quoted above, are not only spurious
and untenable but are
contemptuous of the order granted by Ntshangase J and in direct
conflict with the declaration published by
Zimu himself.
[18]
During late 2013 or early in January 2014, after the judgment of
Ntshangase J, the respondent herein,
apparently acting on behalf of
the Zimu followers entered into an agreement with the Buffalo City
Municipality to purchase from
them the premises on which the church
of the applicant is situated in Dimbaza and thereby to obtain the
title deeds in respect
of the property. The respondent, who is
by virtue of the order made by Ntshangase J not an office-bearer in
the applicant,
purported to act on behalf of the applicant.
This prompted Gigaba to launch an application in the name of the
applicant
to set aside the sale to the respondent. A final
order was obtained on 6 May 2014 in which Smith J issued an order
setting
aside the written agreement concluded between the respondent
and the Buffalo City Municipality. He made a further order
declaring
that the African Gospel Church, represented by Gigaba in
the litigation, was the lawful owner of the property.
[19]
It is against this background that the respondent addressed a letter
to the Reverend Rayisa on 26 August
2014. The respondent
advised the Reverend Rayisa that on 31 August 2014 he and “the
congregants” intend to come
to the Dimbaza African Gospel
Church to worship. This set the scene for the events which
occurred on 31 August 2014.
[20]
On Sunday 31 August 2014 the respondent and approximately 35 other
persons came to the church in Dimbaza.
The applicant states
that they came and unlawfully invaded and occupied the Dimbaza
Church. Gigaba states that the purpose
was to threaten the
Reverend Rayisa and the applicant’s congregants and force them
to abandon the premises and to prevent
the Reverend Rayisa, the
minister of the applicant appointed to the applicant’s church
in Dimbaza, from worshipping on Sunday
as they normally have done.
Gigaba proceeds to state:
“
When the
Respondent and his cohorts finally left the premises, Respondent told
South African Police Services (Dimbaza) that they
intend to invade
and occupy the said premises again on Sunday 7
th
September
2014 and finally take out Reverend Rayisa.”
[21]
I pause to record that Gigaba was not present on 31 August 2014,
however, confirmatory affidavits of
Reverend Rayisa and Reverend
Mdlokolo, both of whom were present, were filed in support of the
application.
[22]
In response to these allegations the respondent admits that he and a
group of other congregants did
proceed to the church. He denies
that they “invaded” the premises or threatened the lives
of any people who were
standing outside the church when they arrived
there. He proceeds to state:
“
To the extent that
it is being suggested that we entered the premises unlawfully and
wrongfully, this we deny, and call upon Gigaba
to prove ownership of
the church building, or permit to occupy the church premises and the
church building. Gigaba and Rev
Rayisa do not have such
documents and from our side we have already paid R12000-00 to the
Buffalo City Municipality for occupational
permit.”
[23]
The respondent proceeds to deny that the intention was to force
Rayisa out of the premises. He
sets out his version of the
events which occurred as follows:
“
Just to put the
court in the picture, when I and my congregants arrived at the church
in the morning of 31 August, I told Rev Rayisa
that we had to come to
worship, and could he please give us access to the church building as
already requested in my letter.
Rev Rayisa refused and said he
was going to call their legal advisers and people who were in charge
of the church. As he
was speaking on his mobile phone I could
not hear what he was saying but he came to me and said he was calling
the police.
The police came and wanted to see court orders.
… Also present were Mrs Msomi and about 35 other
congregants
who were prevented by Rayisa and his group from entering
the church and worship their God.”
[24]
The averments relating to Rayisa’s rights of occupation to the
church building are clearly spurious.
Reverend Rayisa is a duly
appointed minister of the applicant designated to Dimbaza. The
allegations put forward in respect
of his rights of occupation are
again not only untenable but contemptuous of the order made by Smith
J which I have referred to
earlier herein. The applicant’s
rights of occupation of the Dimbaza Church have already been decided
in this court
and no appeal is pending against the order made by
Smith J. I pause to mention that the respondent herein
initially delivered
a notice of intention to defend the proceedings
before Smith J, however, after obtaining legal advice, withdrew his
notice of opposition.
He now contends that he intends to move
for rescission of the order which he says was obtained by default.
I do not consider
that the order was made by default.
respondent, on his own version had proper service of the papers.
He in fact entered
an appearance to defend. He then enjoyed the
benefit of legal advice before taking a conscious and deliberate
decision to
withdraw his opposition.
[25]
What clearly emerges from the undisputed facts is that the Reverend
Rayisa and his congregation were
at their church on 31 August 2014
when the respondent and his supporters arrived. They sought
leave to enter and their request
was declined as the Reverend Rayisa
was entitled to do. Thereupon they attempted to enter the
premises against the wishes
of the Reverend Rayisa and this for the
reason that they dispute the rights of the applicant to the church.
[26]
The averment in the founding papers that the respondent advised the
South African Police that they
intend to return to invade and occupy
the said premises on 7 September 2014 and to finally take out the
Reverend Rayisa has not
been directly disputed at all in the papers.
During argument before me I raised with Mr
Mbanjwa
, who
appeared on behalf of the respondent, the absence of such denial. Mr
Mbanjwa
argues that on a proper reading of the papers the
averment is denied. He points to two passages in the answering
affidavit.
In the first, the respondent, addressing the matter
of urgency, denies that the application is urgent and states
that the
rule
nisi
should not have been granted “because
no person had been intimidated, threatened or assaulted at all”.
In the
second passage upon which reliance is placed the respondent
argues that the mere fact that no docket has been opened against any
member of his congregation shows that no person was intimated,
threatened or assaulted.
[27]
I have referred earlier to the decision in
Plascon-Evans
Paints
,
supra
, and the test to be applied where final
relief is sought. Mr
Mbanjwa
argues that upon the
application of the test set out in
Plascon-Evans Paints
,
supra
the denial by the respondent should be accepted for
purposes of the adjudication of the present application. I do
not agree.
In my view no real, genuine or
bona fide
dispute of fact is raised in respect of the allegation that the
respondent conveyed to the South African Police their intention
to
return the following week to invade the premises and to finally take
out the Reverend Rayisa.
[28]
In
Wightman t/a JW Construction v
Headfour (Pty) Ltd and Another
[2008]
2 All SA 512
(SCA)
at 515 (para [13]) Heher JA stated:
“
A
real, genuine and
bona fide
dispute of fact can exist only where the court is satisfied that the
party who purports to raise the dispute has in his affidavit
seriously and unambiguously addressed the fact said to be disputed.
There will of course be instances where a bare denial meets
the
requirement because there is no other way open to the disputing party
and nothing more can therefore be expected of him. But
even that may
not be sufficient if the fact averred lies purely within the
knowledge of the averring party and no basis is laid
for disputing
the veracity or accuracy of the averment. When the facts averred are
such that the disputing party must necessarily
possess knowledge of
them and be able to provide an answer (or countervailing evidence) if
they be not true or accurate but, instead
of doing so, rests his case
on a bare or ambiguous denial the court will generally have
difficulty in finding that the test is
satisfied.”
[29]
Heher JA
proceeded at 519 (para [19]) to state:
“
The
second respondent’s general denial leaves important matters
unanswered. The failure to deal issuably with the factual
averments
is unjustifiable on any rational basis.”
[30]
I think that
these comments find equal application in the present matter.
There has been no attempt to deal specifically with
the fundamentally
important allegation of the threat to return the following week and I
consider that it remains uncontroverted.
[31]
The applicant
has accordingly established a clear right to its occupation of the
church through its duly appointed servant Reverend
Rayisa. On
the facts which are common cause an injury to or an invasion of that
right occurred on 31 August 2014 and it has
established too that the
applicant held a reasonable apprehension of a further invasion of
that right on 7 September 2014.
The applicant does not, to my
mind have any other suitable remedy at its disposal but to seek an
interdict to protect its rights.
[32]
In those
circumstances the applicant is entitled to relief. During
argument I raised with Ms
Wild
,
who appeared on behalf of the applicant whether some of the relief
set out in the rule
nisi
was
competent. Ms
Wild
concedes that paragraphs 1.2, 1.4 and 1.5 of the rule
nisi
should
not be confirmed.
[33]
In the result,
the order which I confirm and the final order which I make is that:
1.
the respondent is interdicted and restrained from entering or being
at or upon or being within
two hundred metres (200 m) of the premises
of the African Gospel Church at 2731 Dimbaza Township;
2.
the respondent is interdicted and restrained from assaulting,
threatening, intimidating and
harassing the Reverend Rayisa, Reverend
Rayisa’s family, and any minister or congregant of the African
Gospel Church whether
of the Dimbaza Congregation of the African
Gospel Church or of any congregation of the African Gospel Church;
3.
the South African Police Services, whether from Dimbaza or any other
unit are authorised
to enforce this court order;
4.
the respondent is ordered to pay the costs of this application on a
scale as between attorney
and client.
J
W EKSTEEN
JUDGE
OF THE HIGH COURT
Appearances:
For
Applicant:
Adv
J Wild
Instructed
by
Lyn
Boswell Attorneys,
King
Williams Town
For
Respondent:
Mr
Mbanjwa
Instructed
by
C
Z Mbanjwa Inc,
King
Williams Town