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[2010] ZAFSHC 1
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African Presbyterian Bafolisi Church of Southern Africa v Moloi and Another (3775/2009) [2010] ZAFSHC 1 (7 January 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 3775/2009
In
the matter between:
AFRICAN
PRESBYTERIAN BAFOLISI CHURCH
OF SOUTHERN
AFRICA
Applicant
and
M J MOLOI
1
st
Respondent
D S MKHWANAZI
2
nd
Respondent
_____________________________________________________
JUDGEMENT:
RAMPAI J
HEARD ON:
19 NOVEMBER 2009
_____________________________________________________
DELIVERED ON:
7 JANUARY 2010
_____________________________________________________
[1] These are motion
proceedings. The nature of the relief sought is two-fold. First,
the African Church applies to have its deponent
declared as its
constitutionally elected and legitimate arch bishop. Second, it also
applies for a final interdict to have the
first respondent and the
second respondents prohibited and restrained from exercising their
powers and fulfilling their duties
as its arch bishop and general
secretary respectively. The declaratory relief and interdictory
relief are the primary reliefs
which are sought together with an
ancillary secondary relief which includes a mandatory interdict to
compel the first respondent
to hand over certain things to the
applicant’s deponent. The respondents oppose the application.
[2] In its founding
affidavit, the applicant contends that the synod held at Wesselsbron
during April 2008 resolved that the first
respondent should retire as
arch bishop; that Rev Swartbooi was elected as the new arch bishop;
that the latter would effectively
succeed the first respondent; that
he would be inaugurated during the Easter Convention that was to be
held in April 2009; and
that the first respondent subsequently
accepted those resolutions by the inter synod at the annual synod
held at Warden during
December 2008.
[3] In their answering
affidavit the respondents contend that the first respondent is still
the arch bishop of the applicant; that
he never resigned or retired
as arch bishop; that the circumstances in which the first respondent
is obliged to vacate his office
are limited and that such
circumstances are regulated by the provisions of the constitution of
the applicant.
[4] There are a number of
issues, which arose from the papers. Of these primary issues, the
principal issue is whether the first
respondent has resigned or
retired as arch bishop of the applicant. The other issues include
questions as to whether or not Rev
Swartbooi is authorised to bring
the application on behalf of the applicant, whether or not Rev
Swartbooi had been constitutionally
elected as the arch bishop of the
applicant and whether or not the interdicts sought against the
respondents should be granted.
[5] A brief exposition of
the legal principles will do. In the first place, the nature of a
church needs to be explored. A church
is a religious institution.
People become members of a particular religious denomination by
choice. Similarly, churches admit
new members by choice. There are
no legal rules which regulate the relationship between a church and
any of its individual members.
The religious bond between a church
and its member is built on a voluntary spiritual association
characterised by a common sharing
of identical religious convictions.
[6] Now any association,
be it religious or sporting in nature, is founded on an underlying
notion of mutual agreement¹. Such
mutual agreement is usually
symbolised by the
1
adoption
of a constitution. In a religious context, a individual who joins an
established church is required to subscribe to the
foundational
beliefs, ethos and convictions of a particular church. Through such
subsequent subscription an individual concerned
is deemed to have
retrospectively endorsed the original adoption of a constitution of a
church. A new member then becomes bound
by the constitution in much
the same way as the founding fathers of the church concerned
[7] The lifespan of a
church is theoretically infinite. When an association exists as an
entity with rights and duties independent
from the rights and duties
of its individual members and has perpetual succession it is called a
universitas
personarum
,
a juristic person
2
.
Such is the legal nature of a church.
[8] The constitution
determines the nature and scope of the association’s existence
and activities, prescribes the powers
of the various officials,
demarcates such powers not only those of the individual officials
but those of the structural organs
of an association
3
.
[9] In general domestic
remedies have to be exhausted when conflict and disputes arise
between the church and its members before
relief may be sought in a
court of law
4
.
[10] In the second place,
the legal principles applicable to motion proceedings must also be
kept in mind. In motion proceedings
the affidavits take the place
not only of the pleadings but also of the essential evidence which
would be led at a time for the
determination of the issues in the
litigant’s favour
5
.
In motion proceedings final relief may be granted where the
disputes of fact have arisen on affidavits if those facts averred
in
the applicant`s affidavit which had been admitted by the respondent,
together with the facts averred by the respondent, justify
such a
final order, provided the denial by the respondent of a fact alleged
by the applicant does not raise a real, genuine or
bona fide dispute
of fact. In such a case final relief may be granted if the court is
satisfied as to the inherent credibility
of the applicant’s
factual averment.
[11] There may well be
exceptions to the aforesaid general rule. Where disputes of fact
have arisen on affidavits in motion proceedings,
final relief may
nonetheless be granted, if the allegations or denials of the
respondents are so far-fetched or clearly untenable
that the court is
justified in rejecting them merely on the papers
6
.
[12] It is also a salient
principle of our law that in motion proceedings an applicant has to
make out his case in the founding
affidavit. An applicant’s
case stands or falls on the averments made in the founding affidavit.
An applicant is not allowed
to make out a mere skeleton of a case in
the founding affidavit and to supplement that case in the replying
affidavit
7
.
[13] I now proceed to
examine the factual allegations for and against the two conflicting
versions. I deal with the declaratory
relief first. The church
seeks to have its deponent, Rev Swartbooi declared as a legitimate
and constitutionally elected arch
bishop of the Presbyterian Bafolisi
Church of Southern Africa. To do so it becomes imperative to enquire
into the constitutionality
of the election process. The enquiry is
important seeing that the first respondent avers that he is still the
arch bishop and
denies: firstly that he resigned or retired on any
grounds and secondly that Rev Swartbooi has been duly elected as his
successor
in accordance with the constitution of the church. Until
December 2007 the first respondent was the undisputed supreme leader
of the applicant church. By then he was 60 years old. He was
elected the supreme leader thereof at Heilbron in December 1978.
He
was elected into the highest office of the applicant church for a
specified period of 5 years. He was re-elected in 1983 to
lead the
church for 5 more years. No elections were held in 1988 when the
first respondent’s second term of office expired.
[14] On the 16 December
1989 the constitution of the church was amended. The motion was
introduced to amend the constitution. The
periodic election of the
arch bishop was abolished. Once elected, an arch bishop was to
remain an arch bishop for as long as he
lived. The amendment
effectively meant that unless the arch bishop resigned or became
disqualified in specified circumstances,
his term of office could
only terminate through his death or if the synod decided that he
could no longer properly perform his
duties as clergy on account of
old age or illness. On the 15
th
September 1990 the constitution was then amended. The essence of the
amendment was the insertion of clause 12.1 in the church
constitution. All these matters were common cause.
[15] About two years ago,
during December 2007 the applicant held its Annual Synod at Disaster,
in Qwa Qwa. According to the applicant,
motion was introduced and
debated. The debate revolved around the retirement of the first
respondent as the sitting arch bishop.
The motion, which was about
the early removal of the first respondent from the supreme office on
account of his advanced age,
was debated at length. The synod was
divided. The Disaster Synod failed to resolve the matter one way or
the other. So the question
as to whether the first respondent as the
arch bishop should be retired on a account of advanced age was
referred to a special
gathering still to be convened. According to
the first respondent his age and pension were indeed discussed within
the context
of his possible retirement. These matters were
discussed. The discussion was due to some concern about the
provisions of clause
12 of the constitution. Such provision deals
with specified factual circumstances that have to be established
before the supreme
church leader can be called upon to vacate his
office.
[16] It appears that the
final amendment of the constitution was not in line with the
resolution in that in clause 12 explicit provision
is made about
death but none about age. Therefore, the constitution as the supreme
law of the church should prevail since it overrides
any resolution of
the church. This matter as regards age does not feature anywhere
within the ambit of clause 12. Accordingly
an arch bishop cannot be
evicted from the office on grounds of age even if such an arch bishop
cannot properly perform his duties
because of such old age unless
there is medical evidence to verify that his incapacity was
occasioned by advanced age.
[17] The issue of
removing the first respondent from office as a serving arch bishop on
account of advanced age was an item on the
agenda of a special
gathering which was subsequently convened and held at Wesselsbron on
the 21
st
to the 22
nd
April 2008. At that Inter Synod the church delegates still held
divergent views on the matter. The motion was then put to the
vote
to resolve the impasse. The result of voting was recorded as
follows: 27 voted in favour of the first respondent’s
retirement on account of advanced age; 8 against and 4 abstained.
These figures imply that 39 delegates were polled at the special
gathering. But there is no averment by the applicant’s
deponent as to whether such number of delegates formed the quorum
or
not. If the special gathering was not quorid, the debate, the voting
and the outcome thereof were meaningless and unconstitutional.
[18] Because it had not
been averred and proven that the gathering was properly convened,
that it was properly attended, that the
synod was properly
constituted, that the delegates who participated in the proceedings
were properly accredited, that the elective
synod was quorid; that
the issue old age as the substantive ground relied upon was
constitutionally permissible and that the
voting procedure was
regular – it cannot be argued that the motion was correctly and
duly carried. It follows, therefore,
that the particular decision of
the synod was invalid. The onus of alleging and proving all those
averments on the balance of
probability rested on the applicant. The
applicant church failed to discharged such onus. Accordingly, it has
not been established,
through necessary averments fully set out in
the founding and not replying affidavit, that the first respondent
resigned or vacated
the office of leadership in accordance with the
constitution. A replying affidavit, however factually detailed, can
never redeem
the skeleton of a factually deficient founding affidavit
–
Titty`s
Bar
supra
.
[19] It is common cause
that the Annual Synod held in 1989 resolved to amend the constitution
in order to provide that the arch
bishop would only vacate his office
upon death or if the synod should decide that he could no longer
perform his duties properly
because of old age or illness. The
constitution provides that the synod is empowered to effect
constitutional amendments (clause
20 (iii) (b)). In order to give
effect to the resolution the constitution was amended on the 15
th
September 1990. However, the amendment did not fully capture the
gist of the resolution. Although clause 12 refers to death no
reference whatsoever is made to the advanced age of the incumbent.
Why this portion of the resolution was not captured in the final
amendment of the constitution does not appear on the papers of the
applicant. What does appear though is that it never found its
way
into the constitution.
[20] It follows from the
aforegoing that if the decision of the Wesselsbron Synod was
constitutionally invalid any other decision
or action by the
subsequent synod stemming from it was also invalid. From a barren
soil no seed germinates. In the absence of
proof that the first
respondent was constitutionally removed from office as the arch
bishop he remained the applicant’s arch
bishop. He could not
have been removed on grounds of mere advanced age only since such
ground was not provided for in the constitution.
It logically
follows, therefore, that the purported election of the applicant’s
deponent, Rev. Swartbooi, as the first respondent’s
successor
was an irregular process. The election was premised on a foundation
erected on a shivering sand.
[21] Mr Steenkamp argued
that since the synod is the supreme governing body of the church its
resolutions, findings, decisions,
rules, orders, and directions were
binding on the whole church including its arch bishop. The fact that
the synod is the supreme
governing body of the church does not
empower it to act in a manner that is unconstitutional. The supremacy
of the governing structure
of the applicant does not serve and will
never serve as a carte blanche to legalise flagrant violations of
the rights of its members.
The rights of the first respondent as an
incumbent supreme leader of the church are spelled out in clause 12
of the constitution.
He had a legitimate expectation that he would
only be removed from the supreme position in accordance with the
provisions of clause
12. The law expects nothing less. When there
is a conflict between a resolution and a constitution of a church,
the former must
yield to the latter.
[22] The constitution of
the applicant provides that the arch bishop will only vacate office
in the following specified circumstances:
“
12. VACATION OF OFFICE BY
MEMBER OF MINISTRY.
Any member of our ministry shall
vacate his office or deemed to have vacated his office if he
is dead;
has resigned;
permanent or regarded by doctors as
suffering permanent loss of memory or he is disabled;
he is absent without leave to (sic)
more than 3 consecutive gatherings and that the judicial committee
through judicial proceedings
has recommended to the synod for
expulsion;
he is found guilty by the judicial
committee and the synod for maladministration corruption of any
other offence that in the opinion
of the said bodies expulsion is
the last resort.”
[23] Consequently the
power of the synod to resolved that the arch bishop shall vacate
office is limited to those specified instances
as set out above.
From all the aforesaid circumstances, the resignation is relevant to
the issue to be adjudicated in this proceedings.
See Clause 12(b).
The rest of the grounds are not relevant to this case. The first
respondent expressly denies that he has resigned.
On the appellant’s
own papers there are no allegations which could possibly support the
finding that the first respondent
had indeed resigned. On the
contrary it is quite clear that right from the onset, at Disaster
and particularly at Wesselsbron,
the first respondent was opposed to
the idea that he should vacate his office by way of early retirement
on account of his advanced
age. The fact that the synod delegates
were called upon to vote for or against the motion and the outcome of
such voting exercise,
strongly support the version of the first
respondent as corroborated by the second respondent that he did not
voluntarily resign.
In the circumstances, it cannot be argued that
the first respondent’s denials are so far-fetched, disingenuous
and untenable
as to justify their outright rejection.
Plascon-Evans
supra.
[24] The version of the
applicant is disputed by the respondent. Mr Steenkamp contended that
since the version of the respondents,
are unlike that of the
applicant, was not corroborated by any senior church official it fell
to be dismissed as far-fetched. In
motion proceedings it is
impermissible to consider and decide the issues on the basis of the
probabilities or improbabilities inherent
in the conflicting factual
allegations. It is thus of no consequence as to how many senior
church officials corroborated the version
of Rev. Swartbooi. Since
the first respondent denied the allegation, his version must prevail.
In the circumstances I find that
the applicant has not proved, on a
balance of probabilities, that the first respondent has resigned as
arch bishop. For this reason,
Rev. Swartbooi cannot be declared to
have been constitutionally elected as the legitimate arch bishop.
[25] The constitution of
the applicant contains detailed provisions regarding the elections,
the appointment of electoral officer,
the preparations and
publication of the voters roll which provisions become applicable
whenever the office of a senior church member
becomes vacant (clause
17). The applicant has failed to allege that there have been
compliance with such provisions before Rev.
Swartbooi was elected
arch bishop as alleged. The applicant is not entitled to rectify the
deficiency of its founding affidavit
in the replying affidavit as the
applicant purported to do by alleging that Rev. Swartbooi had been
unanimously proposed and elected
as arch bishop during the annual
synod held at Warden during December 2008.
TRANSNET
LTD
supra.
The
applicant’s aforesaid failure to make out a case in the
founding affidavit to show that Rev. Swartbooi was duly elected
in
accordance with the provisions of the constitution is fatal. Such a
fatal flaw strongly militates against the grant of the
declarator
sought by the applicant.
[26] On behalf of the
applicant it was also contended that seeing that the first respondent
had participated in the proceedings
at all the gatherings of the
synod relative to the dispute and presided over the synod
gathering held at Warden during December
2008 when Rev. Swartbooi was
elected as the new arch bishop and seeing that the first respondent
even made an announcement to that
effect, he was now precluded from
changing his mind, by turning around and disassociating himself from
the resolution whereby
Rev. Swartbooi was elected as the new arch
bishop. The contention holds no water. The motion for the amendment
of the constitution
so as to provide for the arch bishop’s
compulsory early retirement on account of advanced age was not
carried by unanimous
resolution of the synod at Wesselsbron.
Therefore the maxim of unanimous consent, which binds all the
participants who supported
a certain decision or standpoint
notwithstanding its defects does not apply. The maxim is well known
and recognised in our law.
By virtue of this maxim the courts have
always been inclined and prepared to condone non-compliance with
formalistic requirements
or to attach no adverse consequences to
irregular proceedings on the ground that those concerned had
unanimously consented to dispense
strict formalities
8
.
[27] We now know that the
motion was not supported by 12 of the 39 delegates. This represents
more than 33% of the voters. Such
huge lack of unanimity virtually
destroys the argument that the first respondent, through his active
participation legitimised
the subsequent election of Rev. Swartbooi.
In my view it was still open to the first respondent to claim that
the meeting of the
synod was improperly conducted and therefore
irregular. But even if it were accepted that the first respondent
participated as
alleged and that he even blessed Rev. Swartbooi as
his successor, his participation would still not have redeemed the
abortive
decision of the synod previously taken at Wesselsbron by a
deeply divided house. Lack of unanimous consent was very apparent at
that meeting of the synod. The first respondent denied the
allegation that Rev. Swartbooi was constitutionally elected.
However,
even if he had admitted it, his admission would not have
changed anything to the applicant’s advantage. This is so
because
irreparable damage had already been done at Wesselsbron
before his alleged conduct at Heilbron.
[28] It was also
contended on behalf of the applicants that the respondents disobeyed
the decisions of the applicant’s synod.
A number of defined
and rebellious accusations were cited in support of the contention.
Among others, it was alleged that the
first respondent refused to
hand over certain title deeds to the applicants; that he failed to
account for certain funds he had
allegedly collected in Qwa-Qwa
during the 2009 Easter conference and that he refused to step down as
the arch bishop during the
2009 Easter conference held at Frankfort.
[29] Mr Van der Watt
contended on behalf of the respondents that the respondents were not
obliged to obey and comply with unlawful
or invalid decisions taken
by the applicant’s synod at Disaster, Wesselsbron, Heilbron,
Warden, Frankfort or anywhere else.
I am persuaded by the
contention. The whole debate right from the beginning at Disaster to
the end at Frankfort revolved around
the advanced age of the first
respondent as a ground for disqualifying him from continuing in the
office as the arch bishop. I
have already indicated that such a
debate was constitutionally impermissible. In the circumstances I
have come to the conclusion
that Rev. Swartbooi was not duly and
constitutionally elected as the arch bishop of the applicant and thus
cannot be declared the
legitimate supreme leader of the applicant.
In the circumstances I will decline the declaratory relief sought.
[30] In the third place a
cursory overview of the legal requisites relative to the grant of a
final interdict in motion proceedings
is also necessary. The
requisites of a final interdict are well known. They are: a clear
right; an injury actually committed
or reasonably apprehended and
the absence of a similar protection by any other ordinary remedy
9
.
[31] As regards a right,
a clear right is established when an applicant, on a balance of
probabilities, proves facts, which in terms
of substantive law,
establish the right relied on
10
.
As regards injury, the second requisite of harmful injury is
satisfied when interference, infringement or invasion of the
applicant’s
right is proved
11
.
As regards the absence of another adequate and effective remedy, the
third requisite is satisfied when another adequate remedy
is proved
which establishes that there is no other legal remedy which is
ordinary, reasonable and adequate in the circumstances
that can
afford the applicant a similar and effective protection
12
.
As a general rule the applicant must first exhaust other available
remedies before seeking recourse in a court of law
13
.
[32] First and foremost
it was incumbent upon the applicant to prove a clear right. The
applicant had to show that it had or has
a clear right in order to
obtain a final interdict against the respondents. The applicant
seeks a final interdict in order to
have the first respondent
prohibited and restrained from exercising the powers and performing
the duties of an arch bishop. The
church was founded in 1918. The
first respondent was elected as its fourth moderator in 1978. Since
1979 the title moderator
was replaced with that of an arch bishop.
The relief is sought on the foundation that the first respondent is
no longer the arch
bishop of the church. I have already found
otherwise. Since the second relief flowed directly from the first it
too cannot be
granted. On the factual allegations I am satisfied
that the applicant has failed to established a clear right which
warrants the
grant of a final interdict restraining the respondent
from exercising the powers and performing the functions which are
ordinarily
performed by the arch bishop of the applicant.
[33] To obtain a final
interdict, an applicant has to prove all its requisites. If one of
the requisites is not established, then
an interdict cannot be
granted. If the first respondent as the arch bishop has
misappropriated the church funds as insinuated
or broken any rules of
the church, the church is not remediless. It can take or institute
disciplinary enquiry against him. There
is no allegation in the
founding affidavit as to why the church did not exhaust the domestic
remedies before seeking redress in
a court of law.
Pietermaritzburg
City Council
supra
.
[34] In the instant case,
the church has failed to prove a protectable right.
Reddy
v Siemmens
supra
.
Because a clear right has not been established, it becomes
unnecessary to determine whether the other basic elements of final
interdict have been established. It follows as a matter of logic
that where there is no right there can be no injury actually
committed or reasonably apprehended. I would therefore, refuse the
second relief in the form of a final interdict against the
first
respondent. It is clear on papers that at least two requisites of a
final interdict were not met.
[35] I am also of the
view that no sustainable case has been made out to justify the grant
of a final interdict against the second
respondent by prohibiting and
restraining him from exercising the powers and performing the duties
of the general secretary of
the aforesaid church.
[36] According to
paragraph 10 of the founding affidavit the applicant through its
deponent, Rev. Swartbooi, accused the second
respondent of
collaborating with the first respondent by disrupting church services
and creating divisions in the church. It was
further alleged that he
destabilised the church by agitating its congregations to defy
decisions of the synod, in particular its
resolution to retire the
first respondent early on account of his advanced age.
[37] The second
respondent denied the accusations (paragraph 24 confirmatory
affidavit to the answering affidavit). In response
to the second
respondent’s denials, the applicant’s deponent generally
replied that the contents of the second respondent’s
affidavit
as far as the confirmatory affidavit contradicted the true facts as
set out in the founding affidavit were untrue. He
went on to say
that the second respondent was not precluded from performing his
duties as the general secretary.
[38] The allegation
against the second respondent as made in the founding affidavit were
characterised by vagueness. No factual
particulars were furnished
about any disruptive incident or any defiant incitement as boldly
alleged. Therefore the second respondent
denials in general and in
particular his denials of the alleged unholy alliance with the first
respondent and the rebellious incitement
must be accepted. Once this
is done, and there is no sound reason why it should not, then there
remains nothing to justify the
grant of a final interdict against the
second respondent. In reaching this conclusion, I am fortified by
the applicant’s
own say-so that the second respondent was not
suspended or relieved of his duties as the general secretary of the
applicant (See
paragraph 27.2 of the replying affidavit).
Accordingly the applicant has failed to established a clear right to
justify an order
prohibiting the second respondent from exercising
the powers and performing duties of the general secretary of the
aforesaid church.
[39] I chose to decide
the matter on the substantive merits and not technical or formal
grounds. To do so I assumed, without determining
the issue, that the
applicants deponent Rev. Swartbooi was authorised not only to depose
to the founding affidavit but also to
move the current applicant on
behalf of the applicant even though he did not make such an
allegation. In terms of the constitution
of the applicant, only the
arch bishop is entitled to represent the applicant in actions brought
by or against the applicant.
[40] It follows from the
aforegoing that the applicant’s failure to prove that the first
respondent had not voluntarily resigned
as the arch bishop; that he
has vacated the supreme office; that Rev. Swartbooi had been duly and
constitutionally elected as it
supreme leader and that he
constitutionally replaced the first respondent, logically necessitate
a finding that the proceedings
were not duly authorised and that the
applicant’s deponent consequently lacked
locus
standi
.
Since the applicant’s deponent lacked
locus
standi
no relief could be granted in this matter even if on the merits a
case had been made out in favour of the applicant. On this ground
alone I would refuse to grant the application as a whole.
[41] During the course of
his reply counsel for the applicant attempted to bolster the case of
the applicant by relying on certain
clauses of the constitution of
the applicant. The attempt was challenged by counsel for the
respondents. Since such clauses were
not canvassed in the heads of
argument filed by the applicant or referred to in the founding
papers, I was persuaded that such
a belated attempt was not
permissible. The civil practice in motion proceedings does not allow
a litigant to ambush his adversary
14
.
[42] There remains the
issue of costs. The court has a discretion, which must be
judiciously exercised. There were a number apparent
factual disputes
in this application. Despite such foreseeable factual disputes, the
applicants persisted with its application
for a final relief on
motion proceedings. The applicant did so at its own peril. I can
see no reason why the successful party
should not be awarded costs.
No reason exist why the general rule that costs should follow cause
should not apply.
[43] In the premises the
following order:
1. The application is
dismissed.
2. The respondents’
costs shall be borne and paid by the applicant and its deponent Rev.
N. G. Swartbooi jointly and severally,
the one paying the other to be
absolved.
______________
M. H. RAMPAI, J
On behalf of
applicant: Adv. M.D.J. Steenkamp
Instructed by:
Moroka Attorneys
BLOEMFONTEIN
On behalf of
Respondents: Adv. D.J. van der Walt
Instructed by:
Naudes Attorneys
BLOEMFONTEIN
/em
1
Joubert: The Law of South Africa, 2
nd
Edition, Volume 1, par 619.
Turner
v Jockey Club of SA
1974 (3) SA 638
(AD) at 645B – C.
Van
Vuuren v Kerkraad: Morelig Gemeente: NG Kerk OVS
1979 (4) SA 548
(O) at 557D – E.
2
Joubert
supra,
para 618.
3
Joubert
supra
,
para 620.
4
Joubert
supra
,
para 636.
Crisp v SA
Council of Amalgamated Engineering Union
1930 AD 225
on 236 and
Jockey
Club and Others v Feldman
1942 AD 340
on 362.
5
Hart v Pinetown Drive-in
Cinema (Pty) Limited
1972 (1) SA 464
(D) at 469 D – E and
Transnet
Limited v Ruhenstein
2006 (1) SA 591
SCA at 600 G – H.
6
Plascon-Evans Paints v Van
Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(AD) at 634H – 635C.
7
Titty’s Bar and Bottle
Store (Pty) Ltd v ABC Garage (Pty) Ltd & Others
1974 (4) SA 362
(T) at 369A-B.
8
Lewim:
The
Law Procedure and Conduct of Meetings
,
5
th
Edition, 27.
9
Setlogelo v Setlogelo
1914 AD 271
on 227.
10
Joubert
supra
para
397.
11
V & A Waterfront Properties
(Pty) Ltd and Another v Helicopter & Marine Services &
Others
2006 (1) SA 252
SCA at 257G – 258C.
12
Joubert
supra,
para
322.
13
Pietermartizburg City Council v
Local Road Transportation Board
1959 (2) SA 758
(N) at 772C – 773C.
14
Port Nolloth Municipality v
Xhalisa & Other
1991 (3) SA 98
heard together with
Luwalala
& Others v Port Nolloth Municipality
.
Kriel v Terblanche NO &
Andere
2002 (6) SA 132
(NCA).