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[2013] ZAGPPHC 274
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Tlhagwane v Sedcom Incorporated (Association not for gain) and Others (13726/2013) [2013] ZAGPPHC 274 (5 September 2013)
NOT
REPORTABLE
NORTH GAUTENG HIGH COURT PRETORIA
(REPUBLIC OF SOUTH AFRICA)
Case
no: 13726/2013
DATE:05/09/2013
In
the matter between:
PATRICK
PHALANG
TLHAGWANE
.....................................................................
APPLICANT
And
SEDCOM
INCORPORATED
......................................................................
1st
RESPONDENT
(ASSOCIATION
NOT FOR GAIN)
PRESTIGE
PARK (PTY)
LTD
...................................................................
2nd RESPONDENT
SOUTH
AFRICAN UNION CONFERENCE
OF
THE SEVENTH-DAY ADVENTIST
CHURCH
...................................
3rd
RESPONDENT
TRANS
ORANGE CONFERENCE OF THE
SEVENTH-DAY
ADVENTIST
CHURCH
....................................................
4th
RESPONDENT
KORSTEN
AND GYS LOUW INCORPORATED
….................................
5th
RESPONDENT
THE
REGISTRAR OF
DEEDS
....................................................................
6
th
RESPONDENT
JUDGMENT
BAQWA
J
[1]
The applicant herein, Patrick Phalang Tlhagwane launched an urgent
application against the respondent on 4 March 2013.
[2]
First, third and firth respondents are structures of the seventh day
Adventist Church (The Church) whilst second respondent
is the
purchaser of property owned by the church. Fourth respondent are the
attorneys of the first respondents whilst the sixth
respondent is the
registrar of Deeds cited herein in his capacity as such.
[3]
The first, third and fourth respondents are opposing the application
and have filed papers to that effect.
[4]
In terms of the constitution of the church the fourth respondent
conducts its work through its districts which operate within
specific
territories and its membership consist of organised churches in any
part of a designated geographic territory.
[5]
The first respondent has the power to receive and collect all rental
income and interest on behalf of the church and also has
power for
the purpose of the administration of the trust to buy, sell, let and
deal with immovable property belonging to the church
and to give and
take transfer of such immovable property.
[6]
First respondent can however only alienate such property upon
authorisation by a resolution of the Executive Committee of the
fourth respondent subject to certain conditions.
[7] In the notice of motion it is
prayed by the applicant that the first respondent be ordered not to
alienate and be refrained
from doing anything that may have an
adverse effect on the interests of the applicant in the immovable
property.
[8]
On the face of it the order sought is strange in light of the fact
that first respondent is a creation of the third and fourth
respondent which would ipso facto include the applicant as a member
of the church and as such would have the fiduciary duty to
protect
the interests of the church. The application is brought on the
assumption that the property in question is to be transferred
to the
purchaser thereof (the second respondent) without any compensation.
[9]
The assumption arises from the minutes of a Special Constituency of
the Trans Orange Conference of the Seventh Day Adventist
Church held
in the SAU Auditorium at 2 Fairview Street, Bloemfontein on Sunday 24
February 2013 at 09h00.
[10]
Item 13.12 dealing with the Diswilmar matter recorded a resolution
that reads as follows:
‘
Voted
to note the report of A.W Du Preez, SEDCOM Director, on the Diswilmar
Farm matter Information Books were distributed to all
regular
delegates and delegates at large, and the presentation on power point
was displayed.
FURTHER
VOTED to approve the transfer of the Diswilmar Farm to the purchaser;
FURTHER
VOTED to mandate the SEDCQM Director to negotiate a proper out of
court settlement with the purchaser on the initial contract
signed.
FURTHER
VOTED to note that the purchaser will be required to settle the full
purchase amount agreed in the 2006 Deed of Sale not
withstanding any
claim for damages that the purchaser might believe he has.
Delegates
voted as follows:
Yes-198
No-1”
[11]
Mr Myburgh appearing for the applicant submits that that resolution
created the possibility of an infringement of applicant’s
rights in that Mr Du Preez was virtually given carte blanche to
settle the matter.
[12]
Respondents in their response have denied that this is the correct
interpretation of that resolution. Mr Liversage for the
respondents
submits that an agreement in law subsists and remains valid until
cancelled subsequent to breach or by consent and
that it cannot be
made subject to the resolution of a conference and that the
interpretation by the applicant cannot therefore
be the correct one.
[13]
Mr Liversage further submits in his supplementary Heads of Argument
that the purchaser of the property, the second respondent,
paid the
R500, 000.00 deposit and delivered guarantees on 24 January 2008 for
the balance of the purchase price in the amount of
R9.1 million which
is indicative of the fact that even the purchaser intends making
payment of the full purchase consideration.
[14] Where there are factual disputes
in application proceedings and where final relief is sought the
approach was set out in Plascon-Evans
Paints Ltd 1984(3) SA 623(A) at
634 H-636 C by Corbett JA as follows:
‘
It
is correct that, where in proceedings on notice of motion dispute of
facts 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. ”
[15]
Mr Liversage submits that on respondent’s version, the
applicant’s assumption was always incorrect and respondent’s
denial cannot be regarded as far fetched or clearly unattainable.
[16]
I have considered these submissions against objective facts such as
payment of the deposit and provision of guarantees and
come to the
conclusion that the interpretation of the resolution in question by
the applicant cannot be the correct one.
[17]
Regarding the requirements of a final interdict, it cannot be
disputed that applicant has a clear right to protect as a member
of
the church. I have however come to the conclusion that he has not
made out a proper case regarding a threat or infringement
thereof.
Given the objective facts to which I have already referred to, Du
Preeze cannot possibly infringe applicant’s rights
even if he
was inclined to do so. The remedy sought, namely, an interdict is
accordingly not applicable.
[18]
In the result the application is dismissed with costs such costs to
include the costs incurred on 7 March 2013.
BAQWA
J
TJUDGE
OF THE HIGH COURT)