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[2015] ZAECMHC 51
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Christian Catholic Apostolic Church in Zion v Hlamandlana and Others (1499/14) [2015] ZAECMHC 51 (23 April 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION, MTHATHA]
CASE
NO: 1499/14
Not
Reportable
Heard
on: 27/03/2015
Delivered
on: 23/04/2015
In
the matter between:
THE
CHRISTIAN CATHOLIC APOSTOLIC
CHURCH
IN
ZION
..................................................................................................................
Applicant
and
LUBABALO
LEONARD
HLAMANDLANA
...............................................................
1
st
Respondent
AMOS
MKE
....................................................................................................................
2
nd
Respondent
ARTHUR
MATWA
..........................................................................................................
3
rd
Respondent
MANYANZELA
MANCINCI
NOMKHATSHULE
.....................................................
4
th
Respondent
JUDGMENT
NHLANGULELA
ADJP:
[1]
The principles governing an application for contempt of court, be it
in
facie curiae
or
ex facie curiae
, are set out in the
case of
Fakie NO CC11 Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA)
as follows at 344, para [42]:
“
(a)
The civil contempt procedure is a valuable and important mechanism
for securing compliance with court orders, and survives
constitutional scrunity in the form of a motion court application
adapted to constitutional requirements.
(b) The respondent
in such proceedings is not an ‘accused person’, but is
entitled to analogous protections as are appropriate
to motion
proceedings.
(c) In particular,
the applicant must prove the requisites of contempt (the order;
service or notice; non-compliance; and wilfulness
and
mala fides
)
beyond reasonable doubt.
(d) But, once the
applicant has proved the order, service or notice, and
non-compliance, the respondent bears an evidential burden
in relation
to wilfulness and
mala fides:
Should the respondent fail
to advance evidence that establishes a reasonable doubt as to whether
non-compliance was wilful
and
mala fide
, contempt will have
been established beyond reasonable doubt.
(e)
A
declarator
and other appropriate remedies remain available to a civil applicant
on proof on a balance of probabilities.”
[2]
It is the applicant’s case that the respondents are in contempt
of the court order that was issued by this Court on 15
November 2013,
and confirmed on 20 February 2014. The terms of the court order
read:
“
1.1
That
the
respondents be and are hereby ordered to return forthwith to the
Applicant the church building at
Balasi
Mission, Siphaqeni Administrative Area, Flagstaff,
all
the property that belongs to the Applicant that has been removed from
such church premises by the Respondents;
1.2
That
the
Respondents be and hereby interdicted and restrained from holding
themselves out as leaders of the Applicant in any capacity;
1.3
That
the
Respondents be and hereby ordered to hand over to the Applicant’s
current leadership under
Archbishop Wellington Mboyi
all
stationery, documents and any other property of any description
whatsoever that belongs to the Applicant and that is in their
possession;
1.4
That
the
Respondents be and are hereby interdicted and restrained from
interfering in any way whatsoever with the current leadership
of the
Applicant under
Archbishop Wellington Mboyi
in the execution
of their duties as leaders of the Applicant;
1.5
That
the
6
th
Respondent is ordered to remove forthwith the names of
the 4
th
and 5
th
Respondents as signatories to
the Applicant’s
Account No. 287639215,
and to replace
such names with the names that will be furnished to it by the
Applicant’s current leadership that is led by
Archbishop
Wellington Mboyi
;
1.6
That
the
Respondents be and are hereby interdicted and restrained from holding
any church meetings or gatherings under the auspices
of the Applicant
or utilising the name of the Applicant, without express authorisation
by the current leadership of the church
under the leadership of
Archbishop Wellington Mboyi.
”
[3]
The facts which are common cause are that the members of the
applicant church (the Church) are divided into at least two factions
which have been wrestling for the control of the church for quite
sometime. Whereas the first factions is led by Mr Wellington
Mboyi, the second is led by Mr Lubabalo Leonard Hlamandlana.
The second faction consists of the respondents, including Mr
Hlamandlana and many others.
[4]
The Church is possessed of a number of assets, movable and immovable,
such as the buildings situated at Hlwahlwazi No. 1 and
Hlwahlwazi No.
2; Twazi No. 1 and Twazi No. 2; Marhasha Location; Mthontsasa
Location and Balasi Mission. These assets are
used by the
Church as sites for the purposes of worshipping the name of God.
They are all located within the district of
Flagstaff. The site
at Hlwahlwazi is the mission station and Headquarters of the Church.
[5]
The Church is a huge organisation. The court orders under
question illustrate the on-going tension that exists between
the
members of the Church. The members have been involved in
numerous court cases brought before this Court under different
case
numbers.
[6]
As a matter of law, the court order dated 15 November 2013 is a valid
court order that is binding upon the parties to whom it
is directed.
The respondents cannot be heard to be contending otherwise despite
the rumblings of protest raised by them on
affidavit. It also
bears mentioning that the order shall remain so valid and enforceable
upon those to whom it is directed
until such time as it has been set
aside by a court of competent authority. Breach of a court
order constitutes a punishable
criminal offence to the extent that it
violates the dignity, repute or authority of the court in enforcing
its orders see
S v Beyers
1968
(3) SA 70
(A) at 80C-G.
[7]
During arguments
Mr Nonkonyana
,
counsel for the respondents, raised a point of
lis
pendens
, contending that the
enforceability of the court orders of 15 November 2013 and 20
February 2014 were suspended on 24 April 2014
when the respondents
filed an application for leave to appeal against those orders as well
as against the order of Majiki J issued
on 21 February 2014 under
Case No. 233/2012 setting aside the answering affidavit of the
respondents on the basis that it was an
irregular step. The
problem with this contention is that in our law of civil procedure,
Rule 49 (1)(b) , an application for
leave to appeal a judgment or
order has to be brought within 15 days after the date of issue
thereof, provided that such period
may be extended by the court on
application. The respondents filed the application for leave
after approximately two months.
But when that happened the
application for condonation as envisaged in the proviso to Rule 49
(1)(b) was not brought. For
these reasons I am bound to accept
the submission advanced by
Mr Zilwa
,
counsel for the applicant, that the application for leave does not
comply with Rule 49 (1)(b). It can safely be regarded
as
pro-non scripto
.
Therefore, both the orders dated 15 November 2013 and 20 February
2014 as well as that of Majiki J were not suspended by
the filing of
the application for leave on 24 April 2014. Consequently, the
point of law that the main application is pending
determination on
appeal must fail. The argument that there is pending
application proceedings under Case No. 1383/2014 in
which the
leadership of Mr Mboyi is impugned must also fail because that mater
is as yet to be decided. This decision brings
one to deal with
further the points of law raised on behalf of the respondents.
I deal with those points below; but
not necessarily in the order in
which they were presented on the answering affidavit.
[8]
The second point of law is that the Church was not properly
represented when the main application was brought because Mr Mboyi,
the deponent to the founding affidavit was not the Arch-Bishop of the
Church who was clothed with constitutional power to sue on
behalf of
the Church. Evidently, Mr Mboyi deposed to an affidavit in his
capacity as such by a resolution of the Church to
sue. For
present purposes it can be accepted that the claim made by Mr Mboyi
in the founding affidavit that he is the right
person to sue is
correct because the claim was not contradicted.
[9]
The third point of law raised is that Mr Mboyi must be unsuited for
this application because he failed to exhaust internal remedies
for
resolving disputes within the Church in contravention of clause 18 of
the Church Constitution. In my view this point
must also fail
because the contempt of court proceedings concerns an attack against
the reputation, honour and dignity of the Court;
Mr Mboyi being
merely the beneficiary to the court orders that have been violated.
[10]
I will deal with the fourth point of law, raised that the application
must be dismissed on the ground that Mr Mboyi should
not have brought
an application well knowing of the existence of disputes of fact on
affidavits, in the course of analysing the
facts of the case.
[11]
The way has now been paved for me to decide the merits of the
complaint that the respondents have conducted themselves in contempt
of the court orders dated 15 February 2013 and 20 February 2014.
The gist of the applicant’s complaint is encapsulated
in
paragraph 15 of the founding affidavit, which I paraphrase in the
following terms:
1.
The respondents have not given the applicant exclusive use of its
assets in that:
(a)
they continue to use the buildings in Hlwahlwazi No. 1 and Hlwahlwazi
No. 2.
(b)
they continue to use the buildings in Twazi No. 1 and Twazi No. 2.
(c)
they continue to use the buildings in Marhashu Location.
(d)
they continue to hold meetings in church buildings on Sundays.
(e)
they continue to occupy the Headquarters of the applicant.
2.
The respondents have not returned to the applicant about 50 chairs,
two tables, sponge mattresses, one water tank, stamps and
stationery.
3.
The respondents are using applicant’s stationery and stamps to
make and sell baptismal certificates for many non-existent
children.
4.
On 09 February 2014 the second respondent chased away one Jackson
Vusiwe, a
bona
fide member of the Church, from Hlwahlwazi No.
2 church building of the applicant.
5.
On 23 February 2014 and at Twazi and Marhashu stations, the
respondents held a church service known as “Inkonzo yoqoqo”,
which proceedings were filmed and recorded in DVD.
6.
On 18 April 2014 the respondents held their Passover Church Service
at Hlwahlwazi No. 2 Church building where the Seven Utterances
(Amazwi Asixhenxe) by Jesus on the Cross were preached.
7.
On 19 April 2014 the respondents convened a meeting in a church
building of the applicant and made resolutions suspending Mr
Mboyi,
as the leader, and the members of his group. Pursuant thereto, Mr
Mboyi and the members of his group were dismissed as the
members of
the Church.
8.
The respondents continue to hold themselves out as leaders of the
applicant Church.
[12]
The contention advanced on behalf of the applicant is that the
actions of the respondents, individually and as a collective,
as
listed in the preceding paragraph were taken in breach of the court
orders.
[13]
Mr Hlamandlana, and the co-respodents by extension, did not deal
pertinently with the allegations made on behalf of the applicant
in
paragraph 15 of the founding affidavit. Instead he raised the
issues of leadership dispute and the meeting of the members
of his
group that took place on 19 April 2014 that decided to dismiss Mr
Mboyi and his group from leadership positions and membership
of the
Church. He raised issues concerning the efforts being made by
his group to effect regime change that are pursued in
court
proceedings under Case No. 1383/2014. With respect, these
issues do not address the serious breaches which have been
levelled
against the respondents in paragraph 15 as aforesaid. The
evidence that Mr Mboyi and the members of his group took
the keys of
the Balase Mission buildings from Chief Ndabankulu, invaded the
mission buildings, assaulted a guard and destroyed
the buildings in
May 2014 is denied by Mr Mboyi in the replying affidavit. I
have observed that the allegations made by Mr
Hlamandlana do not
directly implicate any one or more persons of Mr Mboyi’s
group. Neither did he seek confirmation
of these allegations on
affidavit from the guard and Chief Ndabankulu. These
allegations do not constitute
bona fide
disputes of fact on a material matter,
but they are sweeping statements which carry highly diminished
evidential value in my view.
They fall to be rejected out of
hand without recourse to oral evidence.
[14]
I accept the version of events as outlined in paragraph 15 of the
founding affidavit.
[15]
The fact that the respondents were served with the court order dated
15 November 2013 is evidenced by the Sheriff’s returns
of
service. It is clear from the returns that the nature and
exigencies of the court order were explained and understood
by each
of the respondents. The submission by
Mr
Zilwa
that the respondents were legally
represented in court on 15 November 2013 and 20 February 2014, as so
confirmed by the contents
of those orders, re-inforces the conclusion
that not only were the respondents served but they knew very well
what the orders enjoined
them to do. It must follow, therefore,
that the defences raised that the respondents did not know about the
existence of
the orders nor appreciate the import thereof by reason
that they were not present in court, they thought that the orders
served
upon them were the summons or a warrant of execution and that
their lawyers confused the orders for some unrelated interlocutory
application(s) cannot make sense.
[16]
I find that the order of court made on 15 November 2013 was served
upon the first, third and fourth respondents on 22 November
2013; and
served upon the second respondent on 06 December 2013. And they
have been shown beyond a reasonable doubt to have
wilfully and with
mala fides
elected not to comply with the orders.
[17]
The respondent’s defence that the resolution of the Church
conference, held on 19 April 2014, ex-communicating Mr Mboyi
and
substituting him and his group with the respondents faction requires
to be given priority over the court orders must be given
a short
shrift. Such a resolution cannot prevail over the court order
that was lawfully issued. The applicable rule
is that all
orders of court, whether correctly or incorrectly granted, have to be
obeyed until they are properly set aside.
See:
Di
Bona v Di Bona & Another
1993 (2)
SA 682
(C) at 688C-E.
[18]
I must now deal with the relief sought by the applicant that the
respondents be committed for the contempt of court and be
given such
punishment as to the Court seems meet. The punishment called
for includes committing the respondents to jail.
In other
words, the applicant’s relief is not limited to a declarator
and the enforcement of the court orders. It would
appear from
the case of
East London Local Transitional Council v MEC For
Health, Eastern Cape, And Others
2001 (3) SA 1133
(Ck) that a
criminal sanction, or its threat, may be applied to compel compliance
with a court order that has been disobeyed.
In that case
Ebrahim J said the following at 1140, para. [28]:
“
The
essential object of contempt proceedings is to obtain the imposition
of a penalty in order to vindicate the Court’s honour
consequent upon the disregard of its order as well as to compel
performance in accordance with the order. The proceedings
may
also be brought for the sole purpose of punishing the respondent.
(Herbestein and Van Winsen
The Civil
Practice of the Supreme Court of South Africa
(Dendy,
ed) 4
th
ed at 817. See, further,
Protea
Holdings Ltd v Wriwt and Another
1978
(3) SA 865
(W) at 878B;
Sparks v Sparks
1998 (4) SA 714
(W) at 725H-I;
Bruckner
v Bruckner and Another
[1999] 3 B All
SA 544 (C) at 549
i-j
and 550
a
.)
When the object is primarily to compel performance of the court’s
order the period of imprisonment imposed by the
Court as a punishment
is often suspended pending fulfilment by the defaulter of his or her
obligations. (
Herbestein and Van
Winsen (op cit
at 817) and the cases
cited there.)”
[19]
In this case there is a need to advance the objects of contempt of
court proceedings, punishment and enforcement because the
respondents
very clearly wilfully and
mala fide
neglected the orders of court and later
on, as an excuse for not complying therewith, they held a meeting on
19 April 2014 to pass
resolutions the effect of which it was to
emasculate the provisions of the orders. Such conduct cannot be
tolerated. An
award of a punitive order of costs is warranted
as a mark of the Court’s displeasure with the conduct of the
respondents.
[20]
Now that the respondents have been found to be in contempt of court,
the next step is the fixing of sentence taking into account
that
strictly speaking this Court, a civil court, is not a criminal court
where the respondents would have been brought to court
on summons and
a charge sheet/indictment setting out the rights of the respondents
in terms of s 35 of the Constitution Act, 1996.
[21]
The cases of
Uncedo Taxi Service Association v Maninjwa And Others
1998 (3) SA 417
(E); and
Uncedo Taxi Service Association v
Mtwa And Others
1999 (2) SA 495
(E) provide helpful tools for
fashioning an appropriate order in this matter. In the first
Uncedo
case Pickering J makes a relevant remark on the
mis-conception that the civil court is a suitable forum at which to
punish a contemnor
criminally. He said the following at 424E-G:
“
In
my view, the right contained in s 35 (3) (a) is amply afforded to an
alleged offender in summary proceedings instituted by way
of notice
of motion. The founding affidavit of the applicant will of
necessity set out in some detail the averments in support
of the
application for committal and will specify the respects in which the
offender allegedly committed contempt of Court
ex
facie curiae
. The fact that these
averments are contained in a notice of motion and affidavit and not
in a charge-sheet seems to me to
be of no consequence whatsoever.
If anything, the offender would in the normal course of events be
afforded a great deal
more particularly concerning the alleged
contempt in an affidavit than in a charge-sheet. A wide range
of conduct may fall
within the ambit of contempt of Court
ex
facie curiae. (
See
Milton
(op cit
at 177
et
seq).)
It does not follow
therefrom, however, that the ‘charge’ against the
offender cannot be formulated with sufficient clarity
and certainty
in the affidavits filed in support of the summary procedure.
Once the details of the alleged contempt have
been so specified, the
requirement entrenched in s 35 (3)(a) will have been met (cf
S
v Lavhengwa
[1996] (2) SACR 453
(W)] (supra
484h-j)).”
[22] Pickering J
expanded his remarks as follows at 429C-D:
“…
it
is clear, in my view, that the fact that contempt proceedings are
brought summarily by way of notice of motion does not mean
that they
cannot be conducted fairly in consonance with the provisions of s 35
(3) of the Constitution Act. As in
R
v Cohn (supra)
, it will be the
responsibility of the Court hearing the matter to ensure that the
procedure adopted complies with the principles
of fundamental justice
measured against the yardstick of the provisions of s 35 (3).”
[23]
I did not hear
Mr Nonkonyana
to be protesting deprivation of the respondents’ protected
rights under ss 35 of the Constitution Act.
[24]
In the second
Uncedo
case,
supra
, Mbenenge AJ had the
occasion to deal with the issue of penalty to be imposed in
circumstances identical to those of the present
case, and on the
premise that the papers placed before him sufficiently disclosed a
prolonged and substantial breach of the court
order by respondents.
The learned Judge went on to impose a sentence of payment of
R1 000,00 fine or, in default of
payment, a term of 2 months
imprisonment to be served. In doing so the learned Judge
applied the
dictum
of Nestadt J in
Protea Holdings Ltd v
Wriwt And
Another
1978 (3) SA 865
(W) when the following was
stated at 871H:
“
It
is vital to the administration of justice that those affected by
Court orders obey them. Our Courts cannot tolerate disregard
of
its orders. Accordingly, it seems to me that I would be failing
in my duty if I did not impose a punishment which takes
into account
the serious nature of this type of offence.”
And at 872 B:
“
I
must, however, bear in mind that the Court is loath to restrict the
personal liberty of the individual in matters of this kind
(see
Buckle
The Civil Practice of the
Magistrates’ Courts in South Africa
6
th
ed at 88) and that, if a period of imprisonment in this type of case
is imposed, it is usually or often suspended
(Herbstein
and Van Winsen (supra
at 583); Hunt
South African Criminal Law and Procedure
vol III at 201).”
[25]
The correctness of the approach to contempt of court proceedings by
our division in both
Uncedo
cases
as aforementioned received the
imprimatur
of the Supreme Court of Appeal in the
case of
Fakie
,
supra
.
That said this Court is at large to sentence the respondents in the
manner that is appropriate and duly guided by the contents
of
the affidavits that have been placed before me.
[26]
I take into account the relevant factors as stated on affidavits
without repeating them in this judgment. Those factors
include
the circumstances of the respondents that they are Church members,
but who have shown unwarranted disdain towards the orders
issued
against them and aggravated by the fact that they have not taken a
single step towards complying with the orders for a period
spanning
two years.
[27]
In the result, I hope that the order to be made will meet the
exigencies of the peculiar facts of this matter. It shall
be
the following:
1.
The Respondents be and are hereby
declared to be in breach and in contempt of the Court order granted
by the Honourable Mr Justice
Nhlangulela in Case No. 233/2012 on 15
November 2013 as confirmed by the order of the Honourable Mr Justice
Hinana AJ on 20 February
2014.
2.
The Respondents are each sentenced
to undergo three months imprisonment, which is suspended for a period
of five years on condition
that the respondents are not convicted of
contempt of court committed during the period of suspension.
3.
The Respondents to pay costs of this
application on attorney and client scale jointly and severally, the
one paying, the other to
be absolved from liability.
__________________
__________________
Z. M. NHLANGULELA
ACTING
DEPUTY JUDGE PRESIDENT
Counsel
for the applicant : Adv. P.H.S. Zilwa SC
Instructed by :
Linyani & Somacala Inc
FLAGSTAFF.
Counsel for the
respondent : Adv. M. Nonkonyana
Instructed by :
Mpumelelo Notununu & Associates
MTHATHA.