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2024
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[2024] ZAECQBHC 45
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Algoa Regional Council of the United Congregational Church of Southern Africa v Van Staden and Others (1149/2024) [2024] ZAECQBHC 45 (25 June 2024)
FLYNOTES:
CIVIL LAW – Spoliation –
Church
premises
–
Conflict
among congregation members – Respondents securing keys from
caretaker and changing locks – Congregation
crippled and
regional council intervening and acquired requisite locus standi –
Regional council had administrative
control over premises by
virtue of church constitution – Caretaker handing over keys
not voluntary relinquishment of
possession, but forced surrender –
Respondents having no legal authority or court order to lock
premises – Rule
nisi confirmed.
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, GQEBERHA)
Case
No.:
1149/2024
REPORTABLE:
YES/NO
In
the matter between:
ALGOA
REGIONAL COUNCIL OF THE UNITED
CONGREGATIONAL
CHURCH OF SOUTHERN AFRICA
Applicant
and
IVAN
VAN STADEN
First
Respondent
BRIAN
KLUE
Second
Respondent
WILLIE
HEYNS
Third
Respondent
NEVILLE
VAN STADEN
Fourth
Respondent
ASHWIN
LANGEVELD
Fifth
Respondent
RONNIE
BERNARDO
Sixth
Respondent
CHARLES
JORDAAN
Seventh
Respondent
ROCHARD
BROOKS
Eight
Respondent
JOHANNES
SEEKOEI
Ninth
Respondent
LESLIE
RAYNERS
Tenth
Respondent
ELVIS
‘BONES’ HOFFMAN
Eleventh
Respondent
JOHANNES
‘PENAKIE’ SWARTBOOI
Twelfth
Respondent
JACOBUS
SMITH
Thirteenth
Respondent
DOLLIE
JANSEN
Fourteenth
Respondent
BERNARD
LEEUSKIETER
Fifteenth
Respondent
JUDGMENT
Cengani-Mbakaza
AJ
Introduction
[1]
On 5 April 2024, the applicant, a Regional Council (“the Algoa
Regional Council”),
duly constituted in terms of the United
Congregation Church of Southern Africa (“UCCSA), filed a notice
of motion seeking
an order in the following terms:
“
1.
Condoning the applicant’s non-compliance with the time limits
and provision service
contained in the Uniform Rules of Court and
hearing the application as one of urgency in terms of Rule 6 (12) of
the Uniform Rules
on
exparte
basis.
2.
That a
Rule Nisi
be issued calling upon the respondents to
show cause, if any on 16 April 2024 why a final order shall not be
granted in the following
terms:
2.1
That the respondent be ordered to immediately hand over and restore
access
ante omina
to the applicant of the premises situated at
41 Kingfisher Drive, Rosedale, Kariega (“the Premises”)
upon service of
the order upon them;
2.2
That in the event that the respondent fails to comply with the above,
the applicant be permitted,
with the assistance of the Sherrif of the
Honorable Court, to obtain the services of locksmith to gain access
to the premises.
3.
The contents of paragraphs 2.1 and 2.2 above to operate as an interim
order with
immediate effect.”
[2]
On the same date, the interim order was granted by agreement between
the parties. The respondents,
some members of the local UCCSA, the
Dale Street Congregation, were ordered to file their answering
papers, if any, to the applicant’s
application by 16:00 on
Wednesday, 10 April 2024.
[3]
On 16 April
2024, the matter was postponed to 30 May 2024 for hearing. On 30 May
2024, the case was served before me, the Algoa
Regional Council
sought a confirmation of the
rule
nisi
that
had been granted on 05 April 2024. Before the hearing of the matter,
the fifth respondent, through his counsel applied for
a postponement
of the matter. The bases for the application for a postponement were
inter alia
to: (a) seek
permission from the court to file a further answering affidavit and
the counter-application and; (b) give the applicant
an opportunity to
file further opposing affidavits (if any). The Algoa Regional
Council strongly opposed the application
for a postponement stating
that it was not genuine, reasonable and worthy of consideration.
[4]
Having considered
the
arguments raised, I dismissed the application for a postponement. I
now proceed to provide my reasons which are as follows:
It is noted
from the court’s bundle of documents that on 17 May 2024, the
fifth respondent filed a notice to condone the
filing of an
additional answering affidavit and counter-application through the
registrar of the court. By principle, there are
three sets of
affidavits in the motion court proceedings. The court has the
discretion to allow additional affidavits to be filed,
as it is
essential to consider all the relevant facts related to the disputed
issues. However, this discretion lies with the court,
not the
registrar. The fifth respondent’s decision to file further
affidavits through the registrar without obtaining the
court’s
permission did not accord with the Uniform Rules of Court. No
explanation or justification was provided as to why
the court should
condone or overlook the violation of the Uniform Rules of Court.
[5]
It
must be taken into consideration that a postponement is an indulgence
that must be earned and not a right. When granting a postponement
in
this matter, I needed to also caution myself that although I had the
discretion to grant the indulgence sought, that discretion
is a
judicial one and should be exercised judiciously. In
Psychological
Society of South African v Qwelane
[1]
,
Nkabinde ACJ held that:
“
Postponements
are not for the mere taking. They have to be properly motivated and
substantiated. And when considering an application
for a
postponement, a court has to exercise its discretion whether to grant
the application. It is a discretion in the true or
narrow sense -
meaning that, so long as it is judicially exercised, another court
cannot substitute its decision simply because
it disagrees. The
decision to postpone is primarily one for the first instance court to
make.”
[6]
Considering
the fact that the fifth respondent decided on his own accord to file
further affidavits through the registrar and without
the leave of the
court, the application for a postponement lacked legal and factual
basis. Therefore, it was reasonable to conclude
that the application
was solely designed to delay the speedy finalisation of this matter.
In the interest of both parties, all
the relevant facts were already
included in the filed affidavits and therefore it was incumbent to
adjudicate the issue of a
mandament
van spolie
and
if necessary restore the
status
quo
before
all else.
The
case for the Algoa Regional Council
[7]
The basic facts of the Algoa Regional Council’s case which are
presented in the founding
affidavit are as follows: After the late
Reverend Adonis retired from his position at Dale Street
Congregation, on 31 December
2018, Reverend Swarts was appointed as
an Acting Minister. In April 2021, the process to appoint a permanent
Minister began. However,
the appointment process was marred by
significant conflicts among a select group of Dale Street
Congregation members. As a result,
a formal mediation process was
initiated and the members who participated in the mediation
ultimately decided to dissolve the Dale
Street Congregation. The
respondents appealed the decision taken in the mediation process and
such remained unresolved.
[8]
The Dale Street Congregation remained crippled and the Algoa Regional
Council decided to commence
the election of the Treasury and the
Secretary. Although the process had its own challenges, the Treasury
was ultimately elected
through the majority vote.
[9]
The Algoa Regional Council issued a directive that the election of
the Secretary should take place
on 03 March 2024. However, the
election process did not take place on that date due to the
objections raised by some members
of the Dale Street Congregation.
Despite this, Reverend Volanie was appointed as an Acting Minister.
The position of the Secretary
remained vacant until a special meeting
was scheduled to take place on 21 April 2024 to fill this position.
[10]
On 02 April 2024, Reverend Volanie was informed by the Acting
caretaker that the respondents had entered
the church premises
intending to change the door locks of the church. He sought
assistance from the members of the South African
Police Service
(“SAPS”). Although SAPS entered the premises, they were
unable to assist due to the absence of a court
order.
[11]
A number of concerned Dale Street Congregation members arrived at the
church premises and took photographs.
All of the respondents were
identified and they were found to be in possession of tool kits and
padlocks which they used to prevent
the Algoa Regional Council from
accessing the premises.
[12]
The Algoa Regional Council’s case is premised on the fact that
its possession of the premises arises
by virtue of the church
Constitution. The Algoa Regional Council asserts that the premises
are for the benefit of all Dale Street
Congregation members and not
only the respondents.
The
respondents’ case
Point
in limine:
Locus
standi
[13]
The respondents contest the Algoa Regional Council’s
locus
standi
to litigate against them as the Dale Street Congregation
Church is autonomous and only members of the local church enjoy
locus
standi
to bring an application before court.
[14]
The Constitution of the UCCSA which was annexed in the court’s
bundle of documents provides that
the UCCSA is composed of the local
churches, Regional Council, Synods, and an Assembly. In terms of
clause 3.3 of the Constitution
of UCCSA, local churches are
formed at the request of existing local churches, on the
recommendation of the appropriate Regional
Council, or a Regional
Council based on the stipulated terms. Clause 3.3.6 provides that in
all cases the local church concerned
consults with the Regional
Council in whose bounds it falls.
[15]
Although the local churches have their own model of Constitution, it
must be remembered that in the present
instance, the Dale Street
Congregation was crippled and the Algoa Regional Council had to
intervene by virtue of the powers vested
in it, and had automatically
acquired a requisite
locus standi
to bring this application.
The Dale Street Congregation is a constituent Church of the UCCSA and
is bound by the Constitution and
the accepted procedures of the
UCCSA. Consequently, this
point in limine
cannot succeed.
[16]
To oppose the application for
mandament van spolie
, the third
respondent filed what he titled a “replying affidavit” in
response to the Algoa Regional Council’s
founding affidavit. To
avoid confusion and in the ordinary course of the proceedings, the
respondents should have filed an answering
affidavit, in accordance
with the Uniform Rules of Court, rather than a replying affidavit.
Although the application before me
is that of
mandamanent van
spolie
and not the review proceedings, the affidavit filed to
substantiate the respondents’ case appears to be a composite
document
that contests the procedure followed in the
appointment of Reverend Volanie. A significant bulk of the issues
raised in the
affidavit challenge actions and inactions of the Algoa
Regional Council including all the internal conflicts that occurred
in relation
to the election and non-election of other church office
bearers, all of which preceded the institution of these legal
proceedings.
[17]
Nevertheless, the essence of the respondents’ case as stated in
paragraph 25 of the third respondent’s
affidavit, is that
on 2 April 2024, the respondents attended the premises with the
intention of requesting access to the
building. This was because they
had been advised that Reverend Volanie had issued an
instruction prohibiting them from entering
the premises. According to
the respondents the caretaker voluntarily handed the keys
and indicated that he wanted nothing
to do with the process. It was
then that the process of replacing the locks was initiated. To align
themselves with the contents
of the third respondent’s
affidavit, the first, second, fourth, fifth and sixth respondents
filed their confirmatory affidavits.
[18]
The issues up for debate are: (a) whether the Algoa Regional Council
was in peaceful and undisturbed possession
and, (b) whether it was
forcefully dispossessed of the premises.
The
legal framework
[19]
The main purpose of the
mandament
van spolie
is
to restore before all else unlawfully deprived possession of the
possessor. This legal remedy aims to prevent individuals from
taking
possession through unlawful means, promoting a philosophy that
rejects self-help and vigilantism. By so doing, it maintains
public
order by discouraging people from taking the law into their hands and
instead, encouraging them to follow legal procedures.
[2]
[20]
To qualify for a
mandament
van spolie
,
the Algoa Regional Council must prove that it was in peaceful and
undisturbed possession. Due to the strict criteria for this
remedy,
the respondents have limited defence options in spoliation
proceedings. As the legal authors highlight, no spoliation occurs
when someone is lawfully deprived of possession.
[3]
The
respondent can only justify the dispossession by showing that the
applicant willingly and voluntarily gave up possession or
that they
had a court order or legal authority to do so.
[4]
In
essence, to obtain a
mandament
van spolie
,
the applicant must demonstrate undisturbed possession, and the
respondent can only defend against the claim by showing lawful
deprivation, voluntary surrender, or legal authorisation for the
dispossession.
The
parties’ legal submissions and the analysis by the court
[21]
Mr White, counsel for the applicant, argued that in accordance with
the Constitution of the UCCSA, the Algoa
Regional Council was in
peaceful and undisturbed possession and administrative control of the
premises prior to the respondents’
unlawful actions. The Algoa
Regional Council’s right of access is a
quasi-possessio
right which is incidental to the Algoa Regional Council’s
control of the premises. At no stage had the Algoa Regional Council
ever authorised or requested the respondents to attend to the
changing of the locks on the premises.
[22]
On the other hand, Mr Roelofse, counsel for the respondents,
submitted that the keys were handed over to
the respondents by the
caretaker without the use of force. At the handing over of the keys
by the caretaker, a squabble between
the parties intensified to the
extent that the acting pastor was called to intervene. The
respondents were in lawful possession
of the keys because they were
handed to them by the caretaker and their actions cannot be regarded
as an intention to deprive the
Algoa Regional Council of its peaceful
and undisturbed possession of the property, he argued.
[23]
Based on the strength of the common cause facts, the respondents had
no legal authority or court order to
lock the premises and deprived
the Algoa Regional Council and other Dale Street Congregation members
of the right to access the
premises. It has already been established
that the Algoa Regional Council had administrative control over the
premises by virtue
of the UCCSA Constitution. In light of that,
amongst others, there is no basis to challenge its peaceful and
undisturbed possession
of the premises.
[24]
In all probabilities, the fact that a confrontation ensued between
certain members of the Dale Street Congregation
and the respondents,
resulting in the involvement of the SAPS, strongly suggests
that there was a forceful dispossession
of the premises. It is
apparent from the papers filed that the caretaker sought to avoid his
involvement in the confrontation,
and thus handed over the keys. In
my view, the caretaker’s actions constitute a form of coerced
submission necessitated by
the confrontation. Such actions cannot be
construed as a voluntary relinquishment of possession, but a forced
surrender of the
keys. Therefore, there is no merit in the
respondents’ submissions in this regard.
Given that the the facts established by both parties align to a
significant degree, the application for the confirmation of
rule
nisi
is poised for success.
Order
[25]
The following order shall issue:
1.
The point
in limine
is dismissed.
2.
The
Rule nisi
is confirmed.
3.
The respondents shall pay costs on scale “A” as
contemplated in terms of
Uniform Rule 67 A read with Uniform
Rule 69 of the Uniform Rules of Court.
N
CENGANI-MBAKAZA
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
APPEARANCES
:
Counsel
for the Applicant
Adv:
A. White
Instructed
by
BOQWANA
BURNS ATTTOREYS
84
6
th
Aveue
Newton
Park
GQEBERHA
Ref.:
I Armoed
Tel.:
041 – 364 2039
Counsel
for the Respondents :
Adv:
C. Roelofse (1
st
-4
th
and 6
th
-15
th
Respopndets)
Instructed
by
G
MALGAS & ASSOCIATES
C/o
MELISSA MARAIS HOFFMAN ATTORNEYS
Corner
Graham and Market Street
African
House, Ground Floor, Office 4
North
End
GQEBERHA
Ref.:
George Malgas/ds
Tel.:
041 – 484 6222
Counsel
for the Respondent
Adv:
R. D. Crompton (5
th
Respondent)
Instructed
by
MH
PETERSEN ATTORNEYS INC
7
Bird Street
Central
GQEBERHA
Ref.:
MHPA/CIV2024/ARCUSS
Tel.:
060 – 584 8826 / 041 – 110 0983
Date
Heard
30
May 2024
Date
Delivered
25
June 2024
[1]
2017 (8) BCLR 1039
(CC).
[2]
Ngqukumba v Minister of
safety and Security and Others
[2014] ZACC 14
; 2014(7) BCLR 788
(CC);
2014 (7) BCLR 788
(CC); 2014 (5) SA112(CC);
2014 (2) SACR 325
(CC) at para 10; seel also City of Ekurhuleni Metropolitan
Municipality v Tshepo Gugu Trading CC and Another (1054/2022)
[2024]
ZASCA 81
(28 May 2024) at para 21.
[3]
Civil Procedure: A
practical Guide – Stephen Peté
et
al,
2
nd
page
424 at 5.3.
[4]
City of Ekurhuleni
Mentropolitan Municipality v Tshepo Gugu Trading CC and Another at
fn 1 above (see para 22).