1 REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO.: 2024 -144764
In the matter between:
UNITING REFORMED CHURCH OF SOUTHERN
AFRICA: NORTHERN REGIONAL SYNOD Applicant
and
JOHANNES BAUKA MALULEKE First Respondent
RAKY SIMON KWAPE Second Respondent
KENNETH KGAFELA Third Respondent
MATEBETA SALTIEL MAPONYA Fourth Respondent
___________________________________________________________________
The matter was heard in open court , and the judgment is handed down electronically by
circulation to the parties' legal representatives by email. The date for hand -down is deemed
to be 13 January 2025.
J U D G M E N T
________________________________________________________________ Delete whichever is not applicable
(1) Reportable: Yes / No
(2) Of interest to other Judges: Yes / No
(3) Revised: Yes / No
Date : 13 January 2025
Signature:
2 Mazibuko AJ
Introduction
[1] The applicant seeks an urgent relief in the following terms :
[1.1] reviewing and setting aside an appointment of the first respondent as
moderator and the second respondent as actuari es of its moderamen .
[1.2] that the respondents be interdicted and restrained from holding
themselves out as the moderamen of the applicant, pending the
finalization of Part B of the application issued under case number 2024 -
116475 (Part B) .
[1.3] that the respondents be ordered to pay costs on attorney and client
scale, jointly and severally, including the costs consequent upon the
employment of two counsel.
[2] The application was opposed , and the applicant filed a replying affidavit .
The Parties
[3] The applicant is the Uniting Reformed Church of Southern Africa : Northern
Regional Synod (URCSA), a church registered in terms of its articles of the
Church Order of the General Synod of the URCSA. Reverend Angelique
Simone Ghall (Ghall), a duly appointed scribe of URCSA, l aunch ed this
application on behalf of URCSA .
[4] The first respondent is Johannes Bauka Maluleke (Maluleke), a duly ordained
minister of the Word and moderator in URCSA.
[5] The second respondent is Raky Simon Kwape (Kwape), a duly ordained
minister of the Word and actuaries of URCSA.
3 [6] The third respondent is Kenneth Kgafela (Kgafela), a duly ordained minister of
the Word and acting scribe of URCSA .
[7] The fourth respondent is Matebeta Saltiel Maponya (Maponya ), a duly ordained
minister of the Word since 1994 and an assessor for the time being of the
URCSA in the Northern Regional Synod .
[8] For the purposes of this judgment , reference to t he positions held by Ghall,
Maluleke, Kwape, Kgafela and Maponya , respectively, flow from their
respective affidavits. T his court is not called upon to pronounce on the
legitimacy of their appointment to such positions . Such would be a call for the
court hearing Part B or any other related litigation.
Background
[9] In deciding the issue of urgency, it is prudent to set out the chronological
sequence of events relevant to this application.
[10] In October 2024, URCSA launched an urgent application under case number
2024 -116475, as referred to in paragraph 1.2 above, where the respondents
included the third and fourth respondents . By agreement between the parties,
an order was granted on 22 October 2024 that the respondents in that
application would not hold any Extraordinary Synodical Commission meeting,
pending the outcome of Part B . Part B would proceed as an ordinary opposed
motion . Subsequent to that order, t he respondents filed their answering affidavit
and URCSA , its replying affidavit. The hearing date i s not set yet.
[11] On URCSA ’s version , on 8 November , it became aware of the meeting that
some members of URCSA, including Kgafela and Maponya , scheduled for 9
November 2024. Through its attorneys, it dispatched a letter requesting an
undertaking that the meeting would not proceed. Such undertaking was not
received.
4 [12] At the end of November , it became aware of the appointment of Maluleke as
moderator and Kwape, as the actuaries , following the meeting of 9 November
as per the Pastoral letter 15, which letter , among others , recorded the events
of 9 November.
Issue
[13] The issue for determination is whether
[13.1] the application is urgent ;
[13.2] Ghall has locus standi to depose to an affidavit on behalf of URCSA;
[13.3] the correct process was followed to appoint the first and second
respondents . Further, can Kgafela and Maponya still hold themselves out as
the moderamen of URCSA , following the resignation as now retired moderator
and actuaries?
Legal principles
[14] Rule 6(12) of the Uniform Rules requires applicants, in all affidavits filed in
support of urgent applications, to set out the circumstances that render the
matter urgent and why they cannot be afforded substantial redress at a hearing
in due course.
[15] Rule 6(12) affords the applicant to create its own rules within which a
respondent must file a notice to oppose and an answering affidavit. This is why
condonation must be sought when the court is approached. An applicant who
cannot convince the court of t he rationality and necessity for the timeline
devised by it should expect its application to be struck from the roll with costs.1
1 E.M.W v S.W (26912/2017) [2023] ZAGPJHC 710, para 10.
5
[16] The applicant must make out their case in the founding affidavit to justify their
departure from the norm.2
[17] '… Urgency is a reason that may justify deviation from the times and forms the
Rules prescribe. It relates to form, not substance, and is not a prerequisite to a
claim for substantive relief.'3
[18] When a matter is brought to court on an urgent basis, the question to be
answered is whether or not the applicant will be afforded substantial redress in
due course.4 In the event that the applicant does not succeed to convince the
court that he will not be afforded substantial redress at a hearing in due course,
the matter will be struck from the roll.5 The matter may also be struck from the
urgent roll where the court finds that urgency was self -created.
[19] The threshold to establish the juristic fact of "absence of substantive redress"
is lower than that of "irreparable harm" for the purposes of establishing an
interim interdict.6
Discussion
2 Luna Meubel Vervaardiger (Edms) Bpk v Makin 1977(4) SA 135 (W) at 137E.
3 Commissioner, South African Revenue Services v Hawker Air Services (Pty) Ltd; Commissioner,
South African Revenue Services v Hawker Aviation Partnership and Others 2006 (4) SA 292 (SCA) at
[9].
4 East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others (11/33767)
[2011] ZAGPJHC 196 (23 September 2011).
5 SARS v Hawker Air Services (Pty) Ltd 2006 (4) SA 292 (SCA).
6 Several matters on the urgent court roll 2013 (1) SA 549 (GSJ) .
6
[20] I have considered not making a finding as to whether or not Ghall has locus
standi to depose to a founding affidavit as a scribe of URCSA. Due to the facts
of this case and its litigation history, l ike other issues surrounding appointments
to URCSA’s positions , such would require a determination during the hearing
of Part B or any other related pending litigation.
[21] Deposing to its founding affidavit, URCSA asserted that the application is
urgent in that it has a reasonable apprehension of harm arising due to the
unlawful and irregular appointment of Maluleke as moderator and Kwape as
actuaries since their appointment was not in accordance with the prevailing
church order. Further, such appointment of the respondents will cause great
damage to the good order and proper administration of the church. Therefore,
the respondents be interdicted and restrained from holding themselves as the
modaramen pending the finalization of Part B .
[22] It is common cause between the parties that the dispute around the legitimacy
of the URCSA’s moderamen remains unresolved, considering the ongoing
litigation. The respondents had not accepted the 20 April 2024 election of
URCSA’s modaramen as legitimate , where Ghall was appointed a scribe , also
URCSA with regard to the November 2024 elections relating to the appointment
of Maluleke and Kwape as well as Kgafela and Maponya.
[23] It is evident that each of URCSA’s groupings acquires and acts upon its own
authority . Deposing to an answering affidavit in his capacity and on behalf of
Maluleke, Kwape and Kgafela, who also filed confirmatory affidavits, Maponya
disputed that the application was extremely urgent , stating that as members of
modaramen, they were allowed to co -opt members to modaramen, pending
confirmation by the Synodical Commission or the Regional Synod electing new
leadership . It would seem that when Maluleke and Kwape were appointed,
Kgafela and Maponya acted in their disputed positions.
7 [24] URCSA argued that though the respondents agreed not to hold any
Extraordinary Synodical Commission meeting pending Part B, they have no
respect for the rule of law and the Church Order. It is unclear how the conduct
of Kgafela and Maponya showing disrespect, as argued, can be accepted as a
ground for urgency .
[25] I agree with URCSA that Part B dealt with the dispute regarding the positions
of Maponya, Kgafela, Moffat -Maruma and Moraka, not the disput ed
appointment of Maluleke and Kwape . However, n o cogent facts were presented
before the court as to why URCSA would urgently seek to review and set aside
the appointment of Maluleke and Kwape or any of its members in the middle of
all the appointments’ related litigations.
[26] It is unclear how their alleged appointment would destroy the church order when
the dispute over appointments already exists . URCSA placed no facts before
the court as to why it would not obtain substantial redress in due course or
during the hearing of Part B. Further, why the disputed appointment cannot be
dealt with during mediation as parties had previously resolved with respect to
the other disputed appointments of Kgafela and Mapo nya.
[27] I find no reason why all these appointment s to URCSA ’s positions, including
that of Maluleke , Kwape and Ghall , cannot be heard simultaneously , as the y
are related to the legitimacy thereof and revolve around the guide of the Church
order to be followed . URCSA failed to satisfy the requirements to justify urgency
and grant interdictory relief. Consequently, the grounds of urgency relied on by
URCSA are not sustainable and must fail.
[28] In my respectful view, considering the papers filed of record, the issue
surrounding the legitimacy of the appointments to positions of scribe,
moderator, actuaries, acting scribe and assessor is a material dispute of fact
that is incapable of resolution on papers.
8 [29] With regard to costs , though the respondents argued for punitive costs, the
court could find no facts justifying such an award. However, there is justification
to follow the general rule that the successful party should be awarded costs.
[30] For these reasons, I make the following order,
Order:
[30.1] The applicant's urgent application is hereby struck off the roll due to
lack of urgency.
[30.2] The applicant will pay the costs, including that of two counsel, on a
Scale B.
_____ _________
N G M MAZIBUKO
Acting Judge of the High Court
Gauteng Division, Pretoria
9
Date of Hearing: 17 Dec ember 2024
Judgment delivered: 13 January 2024
APPEARANCES :
For the applican t: Adv M M Rip SC with Adv S G Webster
Attorney for the Applicant: Gildenhuys Malatji INC.
For the Respondent: Adv M Coetzee
Attorney for the Respondent: J C Scheepers Attorneys