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[2013] ZAGPPHC 130
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Trans Orange Conference of the Seventh Day Adventist Church v Ngcingwana Incorporated and Another (22469/13) [2013] ZAGPPHC 130 (20 May 2013)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE
NO: 22469/13
DATE:20/05/2013
In
the matter between:
TRANS
ORANGE CONFERENCE OF THE
SEVENTH
DAY ADVENTIST
CHURCH
....................................................
Applicant
and
NGCINGWANA
INCORPORATED
…........................................................
First
Respondent
ELLIOT
SIBANYONI
…...............................................................................
Second
Respondent
JUDGMENT
MAKGOKA.
J:
[1]
The applicant seeks, on an urgent basis, an interim order preserving
an amount of R470 000 in a trust account of a firm of attorneys
(the
first respondent) and for interdicting the first respondent from
dealing with the money without the applicant’s written
consent.
The interim relief is sought pending finalisation of an application
for among others, the return of the money to the applicant.
In his
confirmatory affidavit to the second respondent’s opposition,
the first respondent states that an amount of R256 000
has been
utilized already.
[2]
The applicant is a conference of the Seventh-Day Adventist Church,
which is a worldwide church organisation. The church has
a property
holding entity on its behalf called, Sedcom. The second respondent is
a member of the church, Gauteng region. Up and
until 24 February
2013, he was a member of the executive committee of the applicant,
and held the office of Treasurer/Financial
Officer. The circumstances
under which he was removed are controversial, but irrelevant for the
present purposes.
[3]
During 2006 Sedcom entered into an agreement with Prestige Park (Pty)
Ltd (Prestige) in terms of which the company purchased
two properties
from Sedcom, being Holding 8 and Holding 15, Diswillmar, Gauteng
Province. Since the sale of the property a protracted
dispute arose
between the West Rand districts of the applicant. The impasse led to
the transfer not being effected to Prestige.
On 24 February 2013 a
special general meeting of the applicant was convened in
Bloemfontein, at which, two relevant decisions were
taken by the
applicant’s delegates. Firstly that the properties be
transferred to Prestige, and secondly that the second
respondent and
other members of the Executive Committee of the applicant, who
opposed the transfer to Prestige, be removed from
office and replaced
by a new Executive Committee.
[4]
On the same day, the second respondent and other members of the
executive committee held a separation meeting, in which they
resolved
to transfer the money from the applicant’s bank account in
order to fund litigation necessary to give effect to
a decision of
the West Rand Management Board of 17 February 2013
1
.
The money was paid into the first respondent’s account on 25
February 2013.
[5]
On 5 March 2013, under case no. 13726/2013 in this court, an order
was sought on an urgent basis by a member of the applicant
interdicting the applicant from transferring the immovable properties
to Prestige. The applicant gave an undertaking not to transfer
the
properties pending finalisation of the urgent application in the
normal course. The undertaking was made on order of court
on 7 March
2013.
[6]
On 1 April 2013 the payment of the money into the account of the
first respondent, from its account, came to the knowledge of
the
applicant. The applicant sought an undertaking from the first
respondent to return the money to it, which the first respondent
refused to do. In its letter dated 4 April 2013, the first respondent
stated the following:
‘
We
have had the opportunity to consult with Mr Sibanyoni, the Excom of
the TOC led by Pastor Setsiba and have been instructed to
advise you
and your client (TOC Illegal/unlawful structure that all decisions
taken by the Excom of the TOC led by Mr Setsiba,
Sibanyoni and Segopa
to transfer the R470 000.00 to our attorneys trust account is above
board based on a valid legal mandate given
to us by clients’ to
launch a legal action against the unlawful decision taken by your
clients’ SAU, Sedcom, an urgent
application at the North
Gauteng High Court under case number 13726/2013 which matter is sub
judice and a review application of
the unlawful decisions taken by
your clients. Your client’s contention that the transfer of
R470 000.00 was unlawful as it
was not authorised is denied as devoid
of all substance and sense and any ill contemplated urgent
application by your client against
us will be vigorously defended and
all cost incurred therewith will be for your own account.’.
[7]
Urgency is disputed. Ms. Colyn, counsel for the respondents, urged me
to strike the matter off the roll for lack of urgency.
I disagree. I
am satisfied that the matter is urgent, involving, as it does, an
officer of this court, who, as mentioned in the
preceding paragraph,
refused to comply with his trust creditor’s instructions as to
the utilization of trust funds standing
against that trust creditor’s
credit.
[8]
Apart from contesting urgency, the second respondent raised three
points in limine. Firstly, he challenges the authority of
the
applicant’s deponent to act on behalf of the applicant. A short
answer to this is that a deponent requires no authority
to depose to
an affidavit on behalf of a legal entity (Ganes v Telecom Namibia
2004 (3) SA 615
(SCA) paras 18-19. Furthermore, authority cannot be
challenged in an affidavit, but has to be done in terms of the
provisions of
Rule 7(1). If not, the Court can disregard such a
challenge (ANC Umvoti Council Caucus and Others v Umvoti Municipality
2010 (3) SA 31
(KZP).
[9]
The second point in limine is that there was a misjoinder to the
extent that the members of the previous executive committee,
who took
the decision to authorize the transfer of the money, have not been
cited. There is simply no merit in this contention.
The fact remains
that the second respondent is the one at whose instruction, the money
was paid. Besides, we are dealing here,
not with the validity of the
decision taken by the previous executive committee. For the present
purposes I assume, without making
any finding in that regard, that
the previous executive committee took a proper and valid decision for
the transfer of the money.
At the risk of repeating myself, that
decision has been reversed by the new executive committee.
[10]
The third and final point is that there is a dispute of fact which
cannot be revolved on the papers. Those disputes are said
to arise
from the pending litigation referred to in para [5] above, and from a
review application (yet to be launched) by members
of the previous
executive committee to review and set aside the decision on 24
February 2005 to remove the previous executive committee
from office.
[11]
In every case the court must examine the alleged dispute of fact and
see whether in truth there is a real dispute of fact which
cannot be
satisfactorily determined without the aid of oral evidence; if this
is not done a respondent might be able to raise fictitious
issues of
fact and thus delay the hearing of the matter to the prejudice of the
applicant (Peterson v Cuthbert & Co. Ltd 1945
AD at 428; Von
Steen i/ Von Steen
1984 (2) SA 203
(T); Standard Credit Corporation
Ltd u Smyth
1991 (3) SA 179
(W) at 181H; Fakie NO v CCIi Systems
(Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) at 347G-H; Director of Public
Prosecutions vZuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) at 290F.
[12]
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. See Wightman t/a JW Construction
v Head
four (Pty) Ltd
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) at 375F-376B. The court must
take ‘a robust, common sense approach’ to a dispute of
fact and not hesitate to
decide an issue on affidavit merely because
it may be difficult to do so. See Soffiantini v Mould
1956 (4) SA 150
(E) at 154G-H; Gemeenskapontwikkelingsraad v Williams (2)
1977 (3) SA
955
(W) at 575 (O) at 599D-E; The Free Press of Namibia (Pty) Ltd v
Cabinet of the Interim Government of South West Africa
1987 (1) SA
614
(SWA) at 621C-E; Rossing Stone Crushers (Pty) Ltd v Commercial
Bank of Namibia
1994 (2) SA 622
(NmHC) at 627H-628A.
[13]
In the present matter, I fail to see how the alleged dispute of fact
(if any) in the pending application and yet to be launched
litigation, can remotely constitute a dispute of fact in the present
application. It might be that the dispute between various
members of
the applicant presents factual disputes. But such disputes are
irrelevant in this application. This application is concerned
merely
with the preservation of funds, and does not, in any manner,
determine the substantive issues between the parties. The submission
regarding factual dispute is therefore self-evidently without merit.
[14]
In my view, there are two crisp questions. Firstly, the ownership of
the money, and secondy, the position of the first respondent
vis-a
vis the money. With regard to the first, there can be no doubt that
the money belongs to the applicant. The money was transferred
from
the bank account of the applicant and there can be no question that
it is money belonging to the applicant. The second respondent’s
grim denial that the money is that of the applicant is spurious and
without any foundation.
[15]
Even if one accepts the second respondent’s assertion that the
payment of the money was made pursuant to a resolution
validly taken
by the applicant’s executive committee on 24 February 2013, it
is clear that that decision had been subsequently
recalled by the new
executive committee. This is clear from the applicant’s letter
to the first respondent on 1 April 2013.
The money remains the
property of the applicant, irrespective of who constitutes its
executive committee. The applicant, and not
individual members of the
executive committee, is the trust creditor of the first respondent,
who is obliged to deal with the money
only on the instructions of its
trust creditor, the applicant. That answers the second question, and
that should be the end of
the matter.
[16]
In the circumstances I am satisfied that the applicant has satisfied
the requisites for an interim interdict, namely:
(a)
a prima facie right,
(b)
a well-grounded apprehension of irreparable harm if the interim
relief is not granted and the ultimate relief is eventually
granted;
(c)
a balance of convenience in favour of granting of the interim relief;
and
(d)
the absence of any other satisfactory remedy.
[17]
Before I conclude, one worrying aspect needs to be mentioned. It
relates to the first respondent’s stance when the applicant
first requested that the money be returned to it. I have quoted the
relevant paragraph of its letter in para [6] above. By refusing
to
accede to the trust creditor’s instruction to return the money
to it, demonstrates, in my view the practitioner’s
lack of
insight into the nature of the trust account and the funds held in it
on behalf of a trust creditor. It was certainly unwise
of the
attorney to involve himself in the factionalism besetting the
applicant’s members. His obstinate refusal to comply
with his
client creditor’s instruction, led directly to this unnecessary
application.
[18]
As to the order to be made, it is to be recalled that the first
respondent stated that an amount of R256 000 had been expended
on
legal fees. The amount is no longer whole. An order for the
preservation of the portion no longer available, would amount to
a
brutum fulmen. Accordingly I intend to order the preservation of the
balance of R214 000.
[19]
In the result I make the following order:
1.
Pending the determination of the application for the relief sought in
part B of this application:
1.1
the first respondent is interdicted from utilising the amount of R214
000 or any part thereof transferred to it from the bank
account of
the applicant with number 000778214 held at the Library Gardens
Branch of the Standard Bank on 25 February 2013 without
the written
consent of the applicant;
1.2
it is declared that the second respondent has no authority to
appropriate, use or apply the amount referred to in 1.1 above,
and to
that extent he is interdicted from doing so;
2.
The costs stand over for determination at the hearing of the
application for the relief claimed in part B of the application;
3.
The Law Society of the Northern Provinces (the Law Society) is
required to investigate the conduct of its member, Mr. Siza Sizilizwe
Ngcingwana for the role he played in the matter, in light if what
stated in this judgment.
TM
MAKGOKA
JUDGE
OF THE HIGH COURT
DATE
OF HEARING : 14 MAY 2013
JUDGMENT
DELIVERED : 20 MAY 2013
FOR
THE APPLICANT : ADV A LIVERSAGE
INSTRUCTED
BY : ROSSOUWS INC. c/o PETZER DU TOIT &
RAMULIFHO,
PRETORIA
FOR
THE RESPONDENTS : ADV T COLYN
INSTRUCTED
BY : NGCINGWANA INC. PRETORIA
1
That
decision entailed the removal of the issue pertaining to the sale of
the properties from the agenda of the applicant's special
constituency meeting of 24 February 2013, a request the applicant to
urgently interdict and defend the sale of the properties
and a
request of the applicant to appoint a forensic investigator.