IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

REPORTABLE
CASE NUMBER: 11872/2022
In the matter between
ANDREW WESLEY RICHARDS FIRST APPLICANT
ADRIANA RICHARDS SECOND APPLICANT
JAMES RICHARDS THIRD APPLICANT
and
GHER RABIE FIRST RESPONDENT
PHILLIPUS JAKUBUS LODEWIKUS SWART SECOND RESPONDENT
ELAINE PAULSEN THIRD RESPONDENT
ADELE VAN TONDER FOURTH RESPONDENT
ANNA-MARIE SWART FIFTH RESPONDENT
HENNIE DE BOD SIXTH RESPONDENT


JUDGMENT


Date of hearing: 15 November 2024
Date of judgment: 2 December 2024

2



BHOOPCHAND AJ:

1. There are three Applicants in this matter , but this application involves the First
Applicant alone (“The Applicant”). The First Applicant was the Apostolic leader of
the Kings Church International, Robertson (“the Church” , “KCI -R”), the
Chairperson and member of the Church’s Board (“the Board”). The Church was
affiliated with the Kings Church International, United Kingdom (“KCI -UK”). The
Applicant is a spiritual leader of KCI -UK and a senior pastor of that Church. The
First to Third Respondents are members of the Board.

2. This application began as a two-part application where urgent interim interdictory
relief was sought against the First to Third Respondents to stop them from
executing the resolutions taken on 22 June 2022, pending the determination of the
relief sought in part B of the application. The resolutions resulted in the adoption
of a new constitution for the Church (“the 2022 Constitution”) which parted ways
materially from its predecessor (“the 2017 Constitution”), particularly in severing
ties with KCI-UK and paving the path for the exclusion of the Applicant. This Court
is assigned to determine the relief sought in Part B, except for the declaration that
the Second and Third Applicants are members of the Church Board. The Applicant
states that the Second and Third Applicants, who are his wife and son , are no
longer parties to the application.

3. The Applicant seeks orders declaring that two meetings held by the Board of the
Church on 22 June and 16 November 2022 were invalid and that all decisions and
resolutions adopted at th ose meetings are void. The Applicant seeks ancillary
relief against the First to Third Respondents. They are to attend a meeting to be
called by the First Applicant to enable the appointment of two spiritual leaders
from KCI-UK, alternatively one, to the Board and to pay the costs of this
application. The First, Second, and Third Respondents feature prominently in this
application. The remaining Respondents do not. The First to Third Respondents
3



shall be referred to as the Respondents unless the context requires them to be
cited separately.

4. The history of the Church relevant to this application is that it began in the
nineteen eighties as the Filadelfia Church. The Applicant became involved in the
Church in 2009. The Church changed its name to the KCI-R in the same year . In
2014, the Applicant was appointed Chairperson (“Chair”) of the Board. The
Church is a non -profit organisation, constituted as a voluntary association. The
Church operates under a constitution . The 2017 and 2022 iterations are the
subject of this application.

5. The Applicant explained that the partnership between Kings Church International,
United Kingdom (“KCI -UK”) and KCI -R began when the Filadelfia church was
struggling and Pastor Erasmus, who led it, and other leaders of that church, asked
for the Applicant’s assistance. The Applicant alleged that he helped the Church
for several years until the Filadelfia church was closed, and a symbolic burial was
held to mark the moment. On 29 March 2009, the KIC-Robertson was launched in
close partnership with K CI-UK. The partnership was fundamental to the new
church. It was announced that the Church was neither Afrikaner nor English but
one where all races were welcome.

6. The 2014 Constitution reflected the partnership between the Robertson leaders,
churchgoers, and the KCI -UK. KCI -UK substantially supported the Church
financially, spiritually, training and assisting local people to undertake leadership
positions in the Church. The Applicant elaborated on the cooperation between the
two churches. The constitution of the Church reflected the shared history,
activities, and continuing partnership. The constitution was drafted and adopted
to incorporate, regulate, and ensure the continuation of the relationship between
the two churches. The relationship is a core element of its essence.

7. The Respondents answered the Applicant’s allegations about the partnership
between the Church and KC I-UK by describing the Applicant’s narrative as being
4



false. They assert that the Church existed long before the Applicant attempted to
take it from the community of Robertson. As a Board, they have not had insight
into the KCI -UK. There were no joint Board meetings, and nobody from KCI -UK,
apart from the App licant and his son, was actively involved in the sermons or
management of the Church. The Respondents refer red to certain aspects of the
constitution to assert the Church’s independence.

8. The Respondents contended that KCI-UK’s involvement arose from the familial
relationship between the Applicant and Pastor Gert Erasmus . T he Applicant's
children married the children of Pastor Gert Erasmus. This did not mean that the
churches had entered into a partnership. KCI -UK’s apostolic vision based on the
G12 disciple movement was incorporated into the Church’s teachings through the
Applicant’s involvement. The Respondents and most congregants had become
disillusioned with the G12 theology and moved away.

9. The Respondents deny that the Filadelfia Church struggled and that it was
symbolically terminated and reborn as a partner or branch of KCI-UK. They accept
that the Church’s name changed in 2009. The Church was not dependent on the
relationship with KCI-UK. The Respondents did not acknowledge the substantial
contributions made by KCI -UK, including purchasing the ground where a new
church is to be built. The Respondents eventually conceded this aspect in oral
argument.

10. The Respondents asserted that the Board had not met since November 2019, and
the Applicant did not intend to call a meeting. The Respondents noted that the
Church was not joined as a party to this application but took this aspect no further.
The Board members became estranged over the years, and their discord peaked
in 2021 . They grew concerned about the Applicant’s attitude as Chair . He
unlawfully assumed unfettered control over the Church and the Board for reasons
unrelated to the Church but m ore to his family's financial interests. The 2017
Constitution specified a two -year tenure for Board members , permitting them to
avail themselves of further appointment. The provision was replaced with a
5



practice developed since 2014 that permitted members to remain until they
resigned or retired. On 24 February 2021, the Applicant convened a Board meeting
at the Respondents’ behest, ending with them not attending when they learnt they
would not be re-appointed. The Applicant appointed his wife and son and removed
the First to Third Respondents from the Board. The First to Third Respondents
asserted their right to remain Board members.

11. The Applicant instituted an earlier application in this Court to prevent the First to
Third Respondents from claiming they remained members of the Board. The
Honourable Willie J dismissed the application for interdictory relief on 27 October
2021 but declared that as at 23 February 2021 and 27 October 2021, the members
of the Board were the Applicant and the First, Second, and Third Respondents
(“the 27 October 2021 order”). The Applicant sought leave to appeal the 27
October 2021 order. Wille J denied leave to appeal. The Appellant petitioned the
Supreme Court of Appeal (“SCA”) to no avail.

12. Emboldened by the 27 October 2021 order and the refusal of leave to appeal it,
the First to Third Respondents proceeded to convene a Board meeting
simultaneously with the Applicant. The Applicant had to adjourn his meeting
because it lacked a quorum. Although the Applicant had appointed his wife and
son as Board members, and the three would have been quorate in terms of the
numbers, the 2017 constitution prohibited appointing more than two members
with familial ties. The First to Third Respondents proceeded with their meeting and
made extensive amendments to the Church’s constitution, culminating in them
adopting the 2022 Constitution on 22 June 2022. The Respondents interpreted the
27 October order to mean that the Court had overrode the constitutional
qualification requirement , and the Board , with four members, them and the
Applicant, were constituted to conduct the Church’s business.

13. The expected fallout and legal w rangle that ensued from the Respondents’
interpretation of the 27 October 20 21 order led the m to seek clarification of the
order through a variation application under Rule 42(1)(b) of the Uniform Rules of
6



Court (“URC”). Wille J ordered on 30 September 2022 (“the 30 September 2022
order”) a variation of the 27 October 2021 order. The order differed from the 27
October 2021 order in its wording. The Church's Board members as of 24 February
2021 and 27 October 2021 were the Applicant, the First, Second, and Third
Respondents, and no other person or persons.

14. The relief sought by the Applicant, i.e., to declare the Board meetings of 22 June
2022 and 16 November 2022 invalid, requires this Court to determine whether the
Board was properly constituted on those days to conduct the Church’s business.
To adjudicate this application, the Court has to interpret the 2017 Constitution
and the 27 October 2021 and 30 September 2021 orders.

15. In his written argument, the Applicant cited case law relevant to the
administration of voluntary associations. A voluntary association's constitution
and rules and regulations constitute a contractual agreement between its
members.1 Notice of a meeting should be given in terms of an association's
constitution. Only the agenda items can be considered at the meeting. A meeting
has to be properly convened and properly constituted. A quorum and the proper
person in the chair are essential for a properly constituted meeting.2 The meeting
must be a meeting of the Board constituted as per the constitution. A group of
people who do not comply with the constitution's requirements are not the Board
and cannot act as such. The exception to this rule raised by the Applicant shall be
addressed under the following heading in this judgment. 3 A quorum of members
(i.e., the number specified in the constitution ) must be present. A quorum is the
minimum number of qualified members entitled to attend and vote and whose
presence is required at a meeting for the business transaction to be valid.4


1 Mcovi v Inkatha Freedom Party , Maqwazi -Msibi v Inkatha Freedom Party 2011 4 SA 298 (KZP) at
paras 30 and 38
2 LAWSA, 3RD ed. Vol 24 at para 190
3 Deutsche Evangelische Kirche zu Pretoria v Hoepner 1911 TPD 218
4 LAWSA at para 191
7



16. The proper approach to interpreting legal documents is to read the words used in
the context of the document as a whole and in light of all relevant circumstances
attendant upon its coming into existence. 5 The court in Endumeni explained that
this is how people use and understand language. Whatever the nature of the
document, consideration must be given to the ordinary rules of grammar and
syntax, the context in which the provision appears, the apparent purpose to which
it is di rected and the material known to those responsible for its production.
Where more than one meaning is possible , each possibility has to be weighed
against all these factors. The process is objective , not subjective. A sensible
meaning is preferred to one that leads to insensible or unbusinesslike results or
undermines the apparent purpose of the document .6 Construction is a unitary
exercise.7

THE 2017 CONSTITUTION

17. The 2017 Constitution outlines the fundamental principles and rules regulating
the Church’s activities, operations, and business . It has fourteen Articles, many
clauses, and two appendices. The Church had changed its name from Filadelfia
to Kings Church International , perhaps the most compelling symbol of its
relationship with its United Kingdom counterpart.

18. The Articles include a ‘Definitions and Roles’ section, which defines the Board as
the body with overall responsibility for the Church’s management and comprised
of its leaders. The Apostolic leader is assigned the task of Chairing the Board and
setting the agendas for Board meetings.

19. Article 8 of the constitution , ‘Appointment and Removal’ , regulates the Board
members. Clause 8.1 requires the Board to attempt to reach a consensus on

5 Natal Joint Municipal Pension Fund v Endumeni Municipality (920/2010) [2012] ZASCA 13; [2012] 2
All SA 262 (SCA); 2012 (4) SA 593 (SCA) (16 March 2012) at para 24
6 Endumeni at para 18
7 Endumeni at para 19
8



appointing and removing its members. Where consensus is impossible, decisions
are made based on majorities indicated in the other sub -clauses of Article 8.
Clause 8.2 specifies that:

“The Board shall consist of at least three Board members . At least two Board
members must be spiritual leaders of King ’s Church International in the UK …At
least three Board members will not be connected persons in relation to each other
and no single person directly or indirectly controls the decision making powers
relating to such organisation. ”

20. The first two requirements of clause 8.2 are couched in obligatory language , i.e.,
the Board shall have at least three members, and at least two must be spiritual
leaders of KCI-UK. The second requirement of clause 8.2, using the word ‘must’,
conveys a strong and definitive imperative that is even stronger than ‘shall’ . The
phrase ‘at least’ sets a minimum requirement. It establishes a baseline or
threshold that must be met, allowing for the possibility of exceeding it. The Board
has to have a minimum of three members and two spiritual leaders of KCI -UK to
be properly constituted. The Board can have more than three members and more
than two spiritual leaders of KCI-UK. Failure to comply with obligatory provisions
results in invalidation of the action taken or other legal consequences.

21. The circumstances that eventuated on 22 June 2022 is that the Board had four
members, one of which was a spiritual leader of KCI -UK. The Board was not
properly constituted under the second obligatory requirement of clause 8.2 of the
constitution. If clause 8.2 was properly applied, there was no longer a constituted
Board capable of making any lawful decisions on behalf of the Church. Could this
Board remedy the defect before conducting any further Church business? Perhaps
the better question would have been whether a Board in a similar situation could
remedy the situation. This Board had split into two camps , pulling in different
directions. They were incapable of remedying anything collectively, and each side
was also pursuing their own agendas, to the exclusion of that of the Church. If the
9



constitution were to be applied literally, then neither side could conduct the
business of the Board. The drop in the number of spiritual leaders appointed by
KCI-UK rendered the Board inert unless it could appoint another spiritual leader of
KCI-UK as a Board member in an improperly constituted state.

22. If the answer to the previous question is in the affirmative, then the following one
is whether there is a provision in the constitution to enable the Board to appoint
another spiritual leader of KCI -UK once t he number has fallen to below two .
Clause 8.3 refers to Appendix 1 of the constitution , which lists the names of the
eight members, including the Chair of the Board, at its inception. Clause 8.5
provides two guidelines for selecting Board members. These include biblical
directives on leadership qualities and the need to mix skills, knowledge ,
experience and divers e backgrounds to foster good governance and operational
experience. Clause 8.6 is couched in the present tense and contains directory
language:

“Board members are appointed for a period of two years , after which they may
offer themselves for re-appointment if they so desire…”

23. Clause 8.6 contains exceptions about the position of the Chair of the Board, who
enjoys a protected status until two years after they cease to be the Chair. The
appointment of a new Chair follows a prescribed process involving the Church and
KCI-UK. Clause 8.7 permits members to resign . Clause 8.8 allows the Board to
remove members by a two-thirds majority of those participating in the meeting .
Clause 8.4 bears duplication:

“Any subsequent Board members are appointed by a resolution of the Board: a
two-thirds majority of those participating in the meeting is required. ”

24. Clause 8. 4 is cast in the present tense , and its provision requires a prescribed
majority rather than a consensus decision. The situation that prevailed on 22 June
10



2022 was that the Board was not properly constituted in that it lacked one KCI-UK
spiritual leader. To rectify the situation, the Board had to appoint a t least one
further KCI-UK spiritual leader through a resolution supported by two-thirds of its
members. The First to Third Respondents did not do this in their meeting. They
proceeded to conduct the business of the Church and amend its constitution. The
Court returns to the pertinent question. Was an improperly constituted B oard
capable of implementing clause 8.4 to achieve the obligation contained in clause
8.2 to achieve constitutional compliance?

25. The Applicant relied upon a 1911 decision of the full bench of three judges of the
Transvaal Provincial Division to support his contention that a Board can act if the
constitution gives the members of the Board the power to appoint additional
members even though it is improperly constituted in that its numbers as
prescribed have fallen below a minimum. The remaining members may meet to
appoint additional members , as the Board's first task is to realign it with the
constitution's provisions.8

26. Deutsche Evangelische is distinguishable in more than one sense on the facts with
this application but not on the legal principles that apply. It addressed a reduction
in the number s and not in the qualification of members of the Board. The case
involved locus standi of an improperly constituted Board to demand the release of
a title deed from the Respondent who had served as its treasurer. The constitution
required the church council to include the pastor as the permanent chair and at
least four and not more than seven wardens as members. It specified that the
church council elected by the congregation “shall consist of the pastor, as the
permanent chairman , and at least four and not more than seven wardens as
members for the time being… In the event of a vacancy occurring…the Church
Council shall…elect a warden as a substitute”.


8 Deutsche Evangelische Kirche zu Pretoria v Hoepner 1911 TPD 218 (“Deutsche Evangelische”)
11



27. The council was empowered to elect a warden as a substitute if a vacancy arose.
The number of wardens reduced to three, i.e., below the prescribed minimum after
others resigned. In the latter respect, the facts track those in casu , in that the
number of spiritual members of the Board reduced to one , rather than the
obligatory two specified in the KCI constitution , except that the number of Board
members had not fallen to the minimum threshold of three. The two other
distinguishable features of the case were that the council convened the church
meetings, and the congregation elected the council. The constitution of KCI -R
listed the inaugural Board members , and the Board appointed subsequent
members. The KCI-R empowered the Chair to set the agenda for its meetings, and
by the time this matter was heard, the issue of whether a Board member could call
or convene a meeting had been reso lved in that any Board member could call a
meeting of the Church Board.

28. The court a quo in Deutsche Evangelische restricted its inquiry to the clause
specifying the number of wardens on the church council. It found that the clause
specifying the number of wardens was obligatory . The Court decided that once
their number fell below the prescribed minimum, there was no church council ,
and the members acted as private individuals. They had no right to ask the Court
to compel the past treasurer to hand over the title deed. As in th is case, the
judgment alluded to dissatisfaction amongst a certain portion of the church
community. The meeting that had been called to authorise the council to obtain
the title deed had co -opted two wardens to comply with the constitutional
requirement that at least four wardens be on the council . The Respondent
objected to the council's power to co-opt further wardens once its number had
fallen below the minimum. The congregation alone had that power.

29. The KCI constitution acknowledged the inaugural Board members and
empowered the Board to appoint subsequent Board members every two years. A
practice had developed where the Board recycled its members until they ceased
being so by resignation or other reasons. The issue in Deutsche Evangelische was
not about the qualification of the council but about its numbers. The constitution
12



of that church required a minimum of five council members : the pastor and four
wardens. The number had fallen to four. The only course available to the council
was to call a congregation meeting to fill the vacancies.

30. In their respective judgments, the three appeal judges in Deutsche Evangelische
considered the relationship between the clause that specified the number of
wardens and that which permitted the substitution of wardens once their number
fell below the threshold of four. A direct interpretation of the clauses would be that
once the council fell to below five members, no church council could transact the
church’s business without filling the vacancy. The clause permitting substitution
would not have assisted as no council could implement it. The first of three judges
found that the latter argument was untenable. Upon properly constructing the two
obligatory clauses, the Judge reasoned that the remaining elected members had
the right and were under a duty to fill the vacancy. The latter interpretation avoided
making the substitution clause inoperative when only four members remained on
the council. The situation when the council was reduced to four members was a
legal subtlety that the parties never contemplated (or, more probably, the drafters
of that constitution did not foresee). All three appeal judges upheld the appeal.

31. Deutsche Evangelische would be authority for the proposition that when a council
or board reduces below a number specified in the constitution of a corporation or
organisation, and there is a provision for that council or board to fill the vacancy
occurring, then the council or board should first fill that vacancy and become
properly constituted before it conducts any further business of the corporation or
organisation.

32. In casu, clause 8.4 empowers the Board to appoint any subsequent members.
Clause 8.4 follows clause 8.3 , which lists the inaugural members of the Church
Board. When clause 8.4 refers to “any subsequent board members, ” it means any
board members appointed after the inaugural board, and it caters to the situation
that existed on 22 June 2022 . Using the word “are” as in “any subsequent Board
Members are appointed by a resolution… ” functions as a form of the verb ‘to be’
13



and indicates the present tense describing the state or condition of subjects ,
usually nouns or pronouns . It qualifies the subsequent appointment of Board
members. Clause 8.4 is cast in the present tense , meaning that it applies
whenever a vacancy arises either from a drop in the minimum numbers, i.e., three
Board members or a drop in the qualification criteria, i.e., at least two spiritual
leaders of KCI -UK, the Board is empowered to rectify its constitutional profile
before it conducts any further busines s of the Church . It is also couched in
permissive or directory terms , meaning that the peculiar circumstance is less
onerous to overcome than the facts in Deutsche Evangelische , where the full
Bench had to contend with two obligatory clauses.

33. As the Board had recourse to clause 8.4, meaning that it could fill a vacancy on it
without referral to the congregation, and whose wording did not present any
insurmountable legal obstacle, the Applicant and First to Third Respondents
could have regularised the Board to make it properly constituted. They had a duty
to do so.

34. The Applicant contended that the Respondents recognised they had to be a
validly constituted Board to amend the constitution. They attempted to meet this
difficulty by asserting that the orders made by Willie J constituted the Board and
removed the obligatory requirement that it must include at least two spiritual
leaders of the KCI-UK. The Respondents rely upon Willie J's judgments to contend
that a court order overrode the composition of the Board as specified in its
constitution. Willie J declared that the Applicant, the First to Third Respondents,
and no other persons comprised the Board. Whether Willie J's judgments permit
the construction contended by the Respondents would depend upon the
interpretation of the judgments.

35. Three judgments pertain to this application: the 29 October 2021 order, the leave
to appeal judgment, and the 30 September 2022 order. The 22 June 2022 meeting
intervened. The Court shall follow the temporal sequence in examining each of
these events.
14




THE 27 OCTOBER 2021 ORDER

36. The principles of interpretation in Endumeni apply equally to the interpretation of
judgments and orders. 9 In interpreting a judgment or order, the court’s intention
should be ascertained primarily from the language of the judgment or order. As in
the case of interpreting a document, the judgment or order and the court’s
reasons for giving it must be read as a whole to ascertain its intention .10 The
intention of the Judge giving the order has to be established from the judgment
itself. It serves no purpose to second guess the thinking of the Judge when he
made the order. The starting point is to determine the manifest purpose of the
order.

37. It is necessary to place the order in proper perspective and to consider the context
in which it was made .11 There is no essential difference between an ‘order’ and a
‘judgment’. In some cases, an ‘order’ refers to a decision given upon relief claimed
in an application on notice of motion, petition or other machinery recognised in
practice. In contrast, a ‘judgment’ refers to a decision given upon relief claimed in
an action. When used in the general sense, the word' judgment' comprises both
the reasons for the judgment and the judgment or order.12

38. The manifest purpose of the judgment is to be determined by considering the
relevant background facts that culminated in its being made. 13 A fairly recent
illustration of the linguistic, contextual and purposive approach to the

9 HLB International (South Africa) v MWRK Accountants and Consultants (113/2021) [2022] ZASCA
52; 2022 (5) SA 373 (SCA) (12 April 2022)
10 HLB at para 26
11 Finishing Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Ltd and Others [2012] ZASCA
49; 2013 (2) SA 204 (SCA) para 14; Van Rensburg and Another NNO v Naidoo and Others NNO;
Naidoo and Others NNO v Van Rensburg NO and Others [2010] 4 All SA 398 (SCA); 2011 (4) SA 149
(SCA) para 43 et seq, HLB supra at para
12 Administrator, Cape and Another v Ntshwaqela and Others 1990 (1) SA 705 (AD) at 715B-F
13 Cross-Border Road Transport Agency para 22, see also Speaker, National Assembly and Another v
Land Access Movement of South Africa and Others [2019] ZACC 10 (CC); 2019 (6) SA 568 (CC) para
43, HLB at para 27
15



interpretation of a judgment or order is to be found in Elan Boulevard (Pty) Ltd v
Fnyn Investments (Pty) Ltd, in which it was said that ‘[a]n order is merely the
executive part of the judgment and, to interpret it, it is necessary to read the order
in the context of the judgment as a whole’.14

39. The parties involved in the application that led to the judgment were the Applicant
and the Church on the one side and the First to Third Respondents on the other.
The Church and the Applicant shall be collectively referred to as the Applicant and
the three Respondents as the Respondents in interpreting the judgment unless
the context requires a specific reference to them as cited. The judgment begins by
stating that it was initially about certain interdictory relief sought by the Applicant
to prevent the First to Third Respondents from acting in any manner as members
of the Board. The Applicant’s position was that the tenure of the First to Third
Respondents was for two years and lapsed automatically after that, even though
they could avail themselves for re-appointment. The Applicant contended that the
Respondents should not have automatic renewal to the Board. He appointed his
wife and son as Board members in the interim.

40. The Respondents relied upon the 2017 Constitution for their appointment . They
remained members of the Board even if their membership lasted for two years, as
they were re-elected in September 2019. Their membership to the Board could not
have elapsed until a duly constituted board meeting occurred. The Applicant
convened a Board meeting on 24 February 2021. The Respondents insisted that
they remained members of the Board. A further meeting was rescheduled for 5
March 2021. The Respondents requested that the persons responsible for the
Church’s finances ignore any direction given to them by the newly appointed
Board. The Judge considered that the latter request triggered the Applicant's
urgent application. 15 The urgent application morphed into a full-blown application

14 Elan Boulevard (Pty) Ltd v Fnyn Investments (Pty) Ltd [2018] SCA 165; 2019 (3) SA 441 (SCA) at para
28
15 The Applicant, his wife and son were the initial Applicants who instituted the proceedings. The
judgment does not state that the wife and son were appointed as members of the Board when the
application was instituted.
16



for final relief with a referral of a limited number of issues in dispute to oral
evidence

41. The Applicant relied on the 2014 Constitution, alleging that the 2017 Constitution
merely amended certain terms of the earlier one. The Judge did not agree, finding
instead that the 2017 Constitution applied. The judgment lists some clauses of
the constitution , including the requirement that the Board have two spiritual
leaders from KIC-UK. None of the clauses were examined in detail or relied upon
for the ratio of the judgment, which emphasised the practice that had developed
to automatically renew the tenure of Board members without for mality since the
adoption of the 2014 Constitution.

42. The judgment summarised the Applicant’s case. The Applicant wanted the
Respondents to cease performing any Church function as they were no longer
Board members, were not re -elected, and their membership of the Church and
the Board had lapsed. The Applicants stated that the First and Second
Respondents were appointed to the Board on 30 November 2014 . They were re -
appointed on 30 November 2016, 2018, and 2020.

43. The Respondents ’ case was that there were no disputes about them being
members of the Board. After they disagreed on certain issues, the Applicant’s
governance of the Church became a cause for concern. The governance concerns
sparked the dispute about the Respondents’ membership of the Board. No
member of the Board was ever expressly re -elected or re -appointed. The
Respondents continued in office consensually and unanimously. As the
constitution speaks of consensus in appointing Board members, they were simply
re-appointed, and their terms of office tacitly or impliedly extended. The
Respondents believed a meeting scheduled for February 2021 would be
postponed at their behest as they remained Board members.

44. The judgment then summarised the oral evidence. Following a pastoral visit of the
Applicant, the Church came into being in November 2014. The Applicant set the
17



agendas for the Board meetings. No meetings were held in 2020 due to the Covid
pandemic, and none between 24 November 2019 and 24 February 2021. The
Applicant testified that he remained the only Board member after November 2020.
After seeking legal assistance, a formal Board meeting was scheduled for 24
February 2021. The Applicant conceded that he never informed the Respondents
they would not be appointed as Board members or were not Board members as of
24 February 2021. The Applicant’s wife and son were appointed as Board
members with him on 24 February 2021 , the latter despite the ‘connections
clause’ contained in the constitution. (Clause 8.2 prohibited at least three Board
members from being connected persons in relation to e ach other). The only
indication of an impending change was when the Applicant suggested a reshuffle
was necessary as he no longer wanted couples on the Board. The applicant could
not explain why he subsequently appointed his wife if he wished to exclude
couples from the Board . The Applicant testified that the Board meeting of 24
February 2021 could not be postponed as it was the first scheduled meeting in
fourteen months.

45. The Applicant’s son testified that the persons involved in the Church initially
enjoyed a close relationship. The appointment of the Board was never an issue as
it occurred through consensus. He accepted responsibility for not holding
meetings during 2020. He could not explain why the Respondents were not
informed before 24 February 2021 that they were no longer members of the Board.

46. Ms. van Tonder testified on behalf of the Respondents. She is an auditor and
volunteered to assist with the Church’s finances until she became a salaried
employee. Van Tonder resigned in January 2020. She testified that the Church
purchased a property in 2018 to erect a new church . Funds amounting to about
R13.8 million were raised for the church's construction. She confirmed that no
formal nomination process was followed for appointing Board members. The
tenure of Board members continued beyond the two years specified in the
constitution. No discussion about re -appointment or re -election ever ensued
during her tenure as an employee and Board member. Her attempts to register the
18



Church as a non -profit organisation under the Non -Profit Organisation Act 71 of
1997 were not pursued by the Applicant.

47. In his ‘Discussion’, the Judge dealt with the First Respondent’s membership of the
Board. It began before the Applicant's involvement but became contentious
before the Applicant appointed his wife and son as Board members. The
Respondents' membership became an issue after they raised governance matters
relating to the Church. No Board member was expressly re -appointed or re -
elected. The Respondents continued in office consensually and unanimously
without any complaint or resistance and under the consensus provision in the
constitution. The 28 November 2018 meeting minutes reflected, among others,
that the First and Second Respondents would continue as Board members. At that
meeting, the board considered implementing a structure for re-appointing
members serving two years, but none was adopted.

48. The Respondents were precluded from participating in the Board meeting held on
24 February 2021. They expected the meeting to be postponed. Two-thirds of the
Board members had to be present to constitute a quorum for a valid Board
meeting. The Judge agreed that the Applicant was not authorised to appoint his
wife and son as Board members. It was also in direct violation of the connections
clause. At all material times after November 2020, the Respondents continued
with their duties with the knowledge and acceptance of the Applicant. The
Respondents received an invitation to attend the Board meeting on 24 February
2021. The Jud ge agreed that the Board had assented to and acquiesced in the
continued membership of the Respondents as Board members. The Respondents
were not properly notified of the meeting where their tenure was terminated. This
was contrary to the constitution and occurred without any procedural fairness.

49. The Applicant conceded that a split had occurred between him and the
Respondents regarding certain affairs of the Church.16 The Respondents

16 The judgment refers to “certain affairs of the Second Respondent”, which probably referred to the
Second Applicant, the Church, in that application.
19



embarked on steps to unseat him. The Respondents’ status as Board member was
not in jeopardy before the 24 February 2021 meeting. The Applicant added the
issue of the Respondents membership of the Board to the agenda of the 24
February 2021 meeting. The Respondents requested that the meeting be
postponed and took legal advice. The Judge described the situation as the
Respondents being somewhat “ambushed” . The refusal to postpone the Board
meeting was not declined emphatically. The Applicant agreed that his response to
the request for the postponement was ambiguous. The result was that the
Respondents were removed from the Board in less-than-ideal and transparent
circumstances. The Applicant contended that removing the Respondents from
the Board was merely a holding pattern. The Judge found the flaw in this argument
was that the Applicant appointed his wife and son , who remain members of the
Board. The Applicant’s son and van Tonder testified that the reappointment of
Board members after their two-year term would continue through unanimous
assent.

50. The Honourable Willie J concluded by stating that the entire application had
eventuated because the Respondents had expressed their displeasure and
concerns about the Applicant’s governance of the Church. The Applicant
proceeded irregularly and questionably to exclude the Respondents from the
Church's decision-making process impermissibly. The evidence of the Applicant’s
witnesses was , at times, extremely evasive 17. The Respondents’ witness
persuaded the Judge to accept their version. For the reasons provided and mostly
on the common cause facts, the Judge favoured the doctrine of unanimous assent
relied upon by the Respondents. The Judge believed that the provisions, timelines
and periods of the 2017 Constitution , and not the 2014 Constitution , found
application. The Respondents were members of the Board at the very least until 9
September 2021. The Church was not validly authorised to raise the application
by way of the resolution upon which it purportedly relied for this authority. There
was no reason why the Applicant should not have approached the Court for a

17 The Applicant and his son testified. The reference in the judgment to the Applicant’s witnesses was
taken to mean the TESTIMONY OF THE Applicant and his son.
20



declarator instead of the interdictory relief sought. The Court understood that the
parties were seeking a declarator as the agreed order requested a determination
of the identity of the persons who made up the Board as at 23 February 2021. A
declarator was sought as to the identity of the persons who comprised the Board
as at the date of the determination of the opposed application.

51. The order granted was that the application for interdictory relief was dismissed.
The members of the Board as at 23 February 2021 were the Applicant and the First
to Third Respondents. The members of the Board as at the date of the order (27
October 2021) were the Applicant and the First to Third Respondents. The Court a
quo and the Supreme Court of Appeal dismissed the Applicant’s leave to appeal
the judgment.

52. The order was made up of three parts . The first was the dismissal of the interdict
sought by the Applicant so that the First to Third Respondents could desist from
performing any function or role as members of the Board. The second part of the
order declared that the Applicant and the First to Third Respondents were th e
Board members as at 23 February 2021 and 27 October 2021. The third part of the
order granted costs against the Applicant. The text of the order in the second part
is clear except for the use of the preposition “at” to define the date on which the
Applicant and the Respondents were members of the Board. The context wherein
it was used appears from paragraph 46 of the judgment, which refers to the parties
seeking a declarator from the Court. The Judge states that he was asked to decide
the identity of the persons who made up the Board on the two dates. He declared
who the Board members were on two separate dates. The circumstances relating
to this order were that it followed from a failed order for interdictory relief seeking
to exclude the Respondents from the Board. The purpose of the order was to
reinstate the Respondents to the Board in the context of their exclusion at the
Board meeting held on 24 February 2021.


21



THE APPLICATION FOR LEAVE TO APPEAL

53. The Applicant accepted that the application for an interdict was correctly
dismissed. The Applicant argued for the first time that the Honourable Willie J
should have found the Applicant’s wife and son were members of the Board on the
two dates specified in the 27 October 2021 order. The Judge believed that the
Applicants were introducing new factual material on appeal. The core issue for
leave to appeal concerned the status of the Board meeting of 24 February 2021,
which precluded the Respondents from participating. The Respondents believed
that the meeting would be postponed. The Applicant s pleaded that only the
Applicant was left as the remaining Board member. To allow the new factual
material on appeal would be prejudicial to the Respondents.

54. The Judge reasoned that constitutionally, two-thirds of the members of the Board
had to be present to constitute a quorum for the meeting. On the Applicant’s
version, the only member of the Board on 23 February 2021 was the Applicant. The
Applicant’s son had resigned from the Board. No evidence was placed before the
Court that supported the appointment of the Applicant’s wife. The Respondents
argued that the Applicant , acting alone, was not subsequently authorised to
appoint his wife and son as Board members. The appointment of the wife and son
directly violated the “connected persons” clause in the 2014 and 2017
Constitutions. The Respondents continued as Board members with the assent of
all parties.

55. The judgment on the application for leave to appeal takes issue with the
Applicant's contention that the Court should have found that the Applicant’s wife
and son were members of the Board on the two dates specified in the order.
Although the judgment d enies the ground of appeal premised on the Court’s
alleged omission to ratify the appointment of the Applicant’s wife and son, it does
state that the Respondents’ contention that the Applicant, acting alone, was not
authorised to appoint his wife and son, was correct.
22



THE 2022 CONSTITUTION

56. The Respondents, believing that the membership of the Board had been resolved,
called for a meeting on 22 June 2022 and sent the proposed agenda to the
Applicant. By this time, the application for leave to appeal to this Court and the
SCA had been denied. The circumstances that led to the adoption of the 2022
Constitution can be gleaned from the 27 October 2021 order and the answering
affidavit. The Respondents had become increasingly concerned before 2021 that
the Applicant’s conduct and pronouncements displayed a disregard for the
constitution and the values of the Church. The Applicant dealt with the affairs of
the Church a nd the Respondents in an increasingly autocratic manner,
culminating in their exclusion from the Board.

57. The Third Respondent sent out a notice for the 22 June meeting after a month had
elapsed since the SCA denied the Applicant leave to appeal and he had not
convened a meeting of the Board. The Applicant agreed to have the meeting but
insisted that his wife and son would attend as they were members of the Board.
Applicant contended that the Chair of the Board determined the agenda for Board
meetings. The Applicant provided the invitation and agenda for the meeting of 22
June 2022. He augmented the agenda with further items that needed the B oard’s
attention, including his son’s membership. The Applicant indicated that he sought
to provide a way forward for the good of the Church by seeking broad agreement
between the Board members. The Respondents subsequently added these items
to the agenda of their meeting.

58. The Applicant’s legal representative informed the Respondents that the Court had
not addressed the position of the Applicant’s wife and son on the Board. The
Applicant then sought to exclude the Respondents’ attorney from attending the
meeting, claiming that legal representatives had never attended Board meetings.
The Respondents took umbrage at this allegation as the Applicant had previously
invited legal representatives to the meetings. The effect of the further exchanges
23



between the Applicant’s attorney and the Respondents was that both parties
decided to proceed with simultaneous meetings. The Applicant’s attorney
informed the Respondents that if they proceeded with their meeting, it would have
no legal effect. The Applicant’s meeting was adjourned for lack of a quorum, but
the Respondents proceeded.

59. The Respondents contended that the Applicant was invited, was available, and
could have attended the ir 22 June 2022 meeting, where his agenda items were
added to theirs. The only substantial reason advanced by the Applicant for
refusing to attend the meeting the Respondents’ called was that his wife and son
were not invited. He insisted they attend the meeting. The Respondents
contended that nothing in the 2017 Constitution suggested that meetings may
only follow an agenda determined by the Chair nor that only the Applicant is
entitled to ca ll meetings. The Applicant had testified before Willie J that anyone
can call a meeting and that he expected the Respondents to call a meeting and
prepare an agenda. The Respondents reminded the Applicant that attending a
meeting on his own would not constitute a quoru m, nor would there have been a
quorum if his wife and son were in attendance. The Respondents asked what the
purpose of calling a meeting would be if they could not determine what was
discussed there. It would render democratic participation i n board meetings a
sham. The Chair could decide what is discussed, limit the agenda to items he
wanted, and avoid anything contentious.

60. The Respondents asked the First Respondent to preside as Chairperson in the
absence of the Applicant, who had not nominated a ny of them in his stead. The
Respondents allege that they complied in all respects with the requirements of
Article 14 concerning amendments to the constitution and Article 7 relating to
meetings, resolutions, and procedures. They made substantial amendments to
the 2017 Constitution, eleven in all. The new clause 2.2, which defined the Chair
of the Board, excluded the A postolic Leader of the Church as its Chair. The
Chairperson would be selected from the rank of Board members by a majority vote
and shall preside over Board meetings. The Chairperson would not have a deciding
24



vote. Clause 7.4 removed the casting vote of the Chairperson. Clause 7.6 removed
the right of the Chair to appoint a Board member to substitute for them in their
absence from meetings. The members present at future Board meetings were
empowered to appoint an acting Chairperson to preside over a meeting
unattended by the Chair.

61. Clause 8.2 removed the requirement that at least two Board members must be
spiritual leaders of KCI -UK. The new clause 8.2 was subdivided into three
subclauses. It made provisions for the Board to comprise at least three members
or more, provided the total was an odd number. The connection clause was
extended to exclude three or more persons connected through familial or marital
ties from serving on the Board. Clause 8.3 reflected the Board members as the
Applicant and the three Respondents on the date of a pproval and acceptance of
the constitution. The Applicant did not sign the acceptance and approval of the
2022 Constitution. Clause 8.6 removed any preferential position of the Chair and
set a procedure for appointing Board members every two years.

62. Clause 8.11 removed the procedure for appointing a subsequent Chair of the
Board, which previously included the participation of spiritual leaders from KCI -
UK. The new clause required that a simple majority of the members of the Board
appoint any subsequent Chair of the Board. Clause 8.12 removed the requirement
to consult relevant advisors and the leadership of closely related churches when
appointing a Chair of the Board. Clause 8.14 excluded the participation of the KCI-
UK in removing the Chair of the Board. The new clause allowed for the removal of
the Chair or any other member of the Board by a two -thirds majority of Board
members present at the meeting. Clause 11.4.1 excluded the approval of
remuneration for the Chairperson by members of the Board.

63. The Applicant bemoaned the adoption of the 2022 Constitution without his
participation despite the agenda items he submitted being tabled at the meeting.
He asserted that the Board meeting on 22 June 2022 did not comply with the 2017
constitutional requirements in place on that date. The Board was not constituted
25



per the requirement that at least two members be spiritual leaders of KCI-UK. The
amendments replaced the Chair without the involvement of KCI-UK.

64. The Applicant asserted that the amendments were fundamental to the character
of the Church . The Respondents had purported to give themselves unchecked
power to control the Church, including the power to remove him as Chair and
member of the Board. The Applicant repeated the constitution’s requirement that
the Board must include at least two pe rsons who are spiritual leaders of KCI -UK.
On the Respondent’s version, the Board, which met on 22 June 2022 and took the
decisions, had only one such member, namely h im. It was, therefore, not validly
constituted. The Applicant was advised that where a Board is not properly
constituted, and the Board is itself responsible for appointing members, the
remaining members can take the necessary steps to fill the vacant posi tions to
enable the Board to be properly constituted. It is impermissible for an improperly
constituted Board to amend the constitution. An improperly constituted group of
members is not a Board.

65. The Applicant contended that the meeting of 22 June 2022 was unconstitutional,
unlawful, and invalid as it breached the Church’s constitution. The agenda was
not properly determined, and the members present did not constitute the Board
as the constitution prescribed. The Respondents had already mooted the
proposed amendments to the constitution that occurred o n 22 June in February
2022. The Respondents had never explained how a Board not properly constituted
could amend a constitution.

66. The Respondents denied that the Board was not properly constituted when the
June and November meetings occurred. They amended the constitution to, among
others, bring it in line with the October 2021 order, thereby overcoming the
problem created by clause 8.2 of the 2017 constitution. Given the opportunity, the
Applicant would have removed the m at his first opportunity. The Applicant never
mentioned that the Board was dysfunctional or inoperative through the
26



September 2022 order, or that this needed to be addressed, and that two
members from KCI-UK needed to be added for this purpose.

67. The Applicant contended that the Respondents became disillusioned with the
G12 disciple theology and had moved away from it. This represented a
fundamental change in the doctrine and nature of the Church. It is established in
law that a voluntary association, like a church, cannot change its fundamental
nature and doctrine and take over its assets.18

68. The Respondents t ook issue with the Applicant’s reliance on Murray v SA
Tattersalls19 to contend that a voluntary association cannot change the
fundamental nature and doctrine of the association and take over its assets. The
Respondents position was that they had not changed the core of the Church ’s
objectives, rather that they moved away from the G12 discip le theology. The
Respondents contended that the relevance of this authority is uncertain. The case
was an application for liquidation under the provisions of the 1909 Companies
Act. The Respondent had operated as an association for betting and gambling on
horseracing, an activity that had been declared illegal. The Respondent
contended that it was more of a social club to meet for social or convivial
purposes, which contention was rejected by the Court. The Court held that the
principal object or business of the Respondent had been rendered illegal and that
the purpose for which it was formed had become impossible. On that basis, it was
held that it would be just and equitable for the Respondent to be wound up,
despite the resolution of a three -quarters majority of owner members to
reconstruct with another object of association. The situation is wholly
distinguishable from this case, where the Church and the Board intend to continue
operating as a Christian church. The Board ha d no intention of changing the
fundamental nature of the association. The Court agrees with the Respondents

18 Murray v SA Tattersall’s Subscriptions 1910 WLD 35 at 41. Wilken v Brebner 1935 AD 175 at 192, 193,
196, 197, 198, ex Parte Gill and Others 1955 (2) SA 418 (W) at 419-420
19 Murray v SA Tattersall’s Subscriptions 1910 WLD 35 at 41
27



interpretation and agrees that the cited case has no application to the facts in
casu.

69. Similarly, the Respondents contended that reference to Wilken v Brebner 20 was
misplaced. In that matter, the chairperson of a branch of the National Party sought
interdictory relief based, in part, on a majority resolution that the entity would
unite with the South African Party to form a new party. The amalgamation would
have the effect of using the assets of the National Party to further the interests of
the new party to be formed. The Applicants sought to rely on the judgment of the
minority. The majority judgment explicitly stated that the majority of the voluntary
association could not act contrary to the express terms and conditions of the
association. Still, it noted that whether an individual member has such a right
depends on the nature of the voluntary association's constitution. The Court , in
that matter, noted that th e constitution must be interpreted to give effect to the
party's objects.

70. The Applicant contended that i n the case of a body like a church, the majority
cannot change the fundamental nature and doctrine of the church and take over
the assets of the church. The Respondents protested that nothing was alleged in
the papers to suggest that the Respondents wished to do anything that would
change the Church's core objectives or fundamental nature.

71. The Applicant alleged that th e largest asset of the Church is a property in
Robertson, which it bought in 2018. KCI -UK contributed about R5 million (in
current value) to the purchase of the property. The Applicant contended that the
Church had always been organically linked to KCI -UK. The Applicant assumed a
central role at the request of the senior pastor in establishing the Church, or
according to the Respondents’ version, the conversion of Filadelfia church into
KCI-Robertson. KCI-UK assisted in the for mulation of the constitution of the
Church. The constitution provides that the Chair of the Board is appointed by a

20 Wilken v Brebner 1935 AD 175 at 192, 193, 196, 197, 198
28



resolution of a joint meeting of the Board together with the spiritual leaders of KCI-
UK. Two-thirds of the members of both bodies must vote in favour of a Chair before
they are appointed. KCI-UK had, from 2014 to 2021, made grants totalling more
than £300 000 (about R7 million) to the Church. KCI-UK had made many ministry
trips to assist the Church at a cost of £109 227. Leaders of the Church had visited
the UK on many occasions for training and conferences. The constitution reflected
that shared history, activities, and continuing partnership.

72. The Applicant contend ed that the Respondents ha d unilaterally dissolved the
Church and reconstituted it under the same name with a fundamentally different
structure. They had given themselves unchecked power to control the Church to
the exclusion of KCI -UK. In response to the contention that the exclusion of the
representatives of KCI -UK from the Church would sever the link between the
Church and KCI-UK, the Respondents contended that this was never an issue until
these proceedings commenced and not intimat ed until the filing of the
supplementary founding affidavit. This the Respondents characterise d as a last-
gasp attempt on the Applicant's part to cling to the unilateral power he exercised
over the Board. No reference was made to the putative partnership, added as an
afterthought in the supplementary founding affidavit. The only intimation in the
founding affidavit is the bare assertion that the Church was affiliated with Kings
Church International. On the Applicant’s version, the relationship was one of
affiliation rather than a partnership. The Respondents contend ed that the
Applicant became involved in the direction of the Church after 2012. The
Applicant’s role before that was of spiritual oversight.

73. The evidence before this Court is that the Church had a relationship with KCI -UK
beginning with the Applicant and sustained through generous financial, spiritual,
and educational benefits. The Respondents have acknowledged that the
emphasis of KCI-UK was discipleship from a G12 perspective , even though they
have moved away from it. The First to Third Respondents, all of whom were
inaugural members of the Board when the 2017 Constitution was adopted and
probably Church leaders before that , cannot deny that relationship, which is
29



entrenched in certain clauses of a document to which they were signatories. The
name adopted by the Church further belies any submission to the contrary.

74. The Respondents contended that nowhere in the founding papers did the
Applicant allege any facts that the Respondents’ conduct in amending the
constitution amounted to a change in the fundamental nature of the Church, as
contended in the argument. As to the appointment of a single KCI-UK member to
the Board, at no time during the presentation of evidence or argument in the first
application heard by Willie J did the Applicant seek to contend that a member of
KCI-UK should have been appointed as a necessity for constitutional compliance.
Neither did the Applicant contend in the application to the SCA that a second
member of KCI -UK, in addition to the Applicant, had to be appointed as a
necessity for constitutional compliance. This Court finds that the Applica nt did
not have to make those submissions as they were unnecessary to sustain the
relief he sought. The Respondents’ conduct in changing the fundamental nature
of the Church is irrelevant if the Court finds that the 22 June 2022 meeting is null
and void. The Applicant did not have to make the remaining submissions as they
flowed naturally from a proper interpretation of the constitution.

75. The objectives of the Church and its Board are stipulated in Article 4 of the
constitution, namely the advancement of the Christian faith, relief for those in
need, and education based on Christian principles. The Respondents contended
that they never inti mated that the Church and its Board intended to move away
from these principles by amending the 2017 Constitution.

76. The Court must conclude the narrative relating to the judgments to ascertain
whether the variation order obtained on 30 September would add anything
material to the Respondents’ contention that the judgments overrode the
Church’s constitution on the issue of a properly constituted Board. The
circumstances relating to the 22 June 2022 meeting and the Applicant’s insistence
that the Respondents’ meeting was invalid led them to seek clarification of the 27
October 2021 order from Willie J.
30



THE VARIATION ORDER OF 30 SEPTEMBER 2022

77. The Respondents approached the Court to identify the members of the Board. The
dispute over the identity of the members rendered the Board dysfunctional. The
Applicant attempted to persuade the Court not to clarify the extent of its orders ,
so they were incapable of practical implementation. The Judge found that the
Applicant was continuing irregularly and questionably to exclude the First to Third
Respondents from the Church's decision-making process impermissibly.

78. The Honourable Willie J summarised his judgment of 27 October 2021 before
considering the Respondents’ application for clarity regarding the content and
meaning of his order. The Judge found that the Applicant’s affidavit did not comply
with the court rules and had very little if any, probative weight. The Judge reviewed
the Applicant’s position relating to his wife and son as members of the Board. The
variation judgment referred to the testimony of the Applicant during oral evidence.
The Applicant testified that the appointment of his wife and son was a ‘stage post’
measure. The Court again disavowed that the issue of whether the Applicant’s wife
and son were members of the Board was a dispute for determination between the
parties. However, he stated that it may have been an issue for inclusion in the
agreed order. The son testified that he was not a member of the Board. No
evidence was presented supporting the belated contention that the wife was an
existing member of the Board.

79. Willie J granted the First to Third Respondents’ application for variation. The
second and third orders read as follows:

79.1. That as of 24 February 2021, the members of the Board of the Church
were the Applicant and the First to Third Respondents and no other
person or persons,
31



79.2. That as of 27 October 2021, the members of the Board of the Church
were the Applicant and the First to Third Respondents and no other
person or persons.21

80. The reason for the addition of “and no other person or persons” to the 27 October
2021 is evident from the judgment, which addressed the Applicant’s contention
that the Applicant’s wife and son were members of the Board and they should have
been included in the original order. The use of the preposition ‘of’ by the
Honourable Justice is a subtle change in the wording of the 27 October 2021 order.
The original order uses the preposition “at” . The preposition ‘of’ in the phrase “as
of a particular date” means that the specified date marks the date from which it
becomes effective. The intention of t he Judge to change the preposition is not
apparent in the judgment. This means that the Applicant and the Respondents
were memb ers of the Board from 24 February 2021 and 27 October 2021 and
beyond rather than on those dates.

81. Neither party raised this subtle change between the original and variation order. In
the premises, the Court need not traverse it s implications any further. The
variation order again confirmed the purpose of the original judgment and the relief
sought. The variation judgment excludes other persons apart from the Applicant
and the First to Third Respondents as Board members on 24 February 2021 and 27
October 2021.

THE 16 NOVEMBER 2022 MEETING

82. The Third Respondent states in the answering affidavit that they were emboldened
after the variation order to rid the Church of the Applicant. The Applicant could not
work with them or the other Respondents, so he left them no choice but to remove
him.

21 The reproduction of the order has minor corrections to render it consistent with the citation of the
parties followed in this judgment and does not alter its meaning.
32




83. On 16 November 2022, the First to Third Respondents removed the Applicant as
Chairperson, Board member, and Senior Pastor of the Church at a meeting they
convened, which proceeded in the Applicant’s absence. The Applicant received
notice of the 22 June and 16 November meetings and elected not to attend either.
The Respondents clarified that the Applicant had been removed as a member of
the Board and as senior pastor as they feared that the Applicant would contend at
the end of this application that he remained senior pastor of the Church.

84. The Respondents denied that there was any longer a requirement in November
2022 to have two spiritual leaders from KCI -UK on the Board after they had
removed that requirement in the 2022 Constitution. The Applicant insisted on the
two KCI-UK members to enable him to appoint his allies to the Board to ensure a
deadlock over his removal and any other resolution they put forward. The
Applicant should have raised the KCI -UK issue at the June meeting if he needed
one or more of his family or friends to be appointed to the Board.

TWO SPIRITUAL LEADERS OR ONE

85. The Applicant sought ancillary relief pursuant to him prevailing with the
declaratory relief. The Applicant asked for clarity on clause 8.2 of the 2017
Constitution as it stipulates that the Board shall consist of at least three members,
of which at least two must be spiritual leaders of KCI-UK. The Applicant contended
for the interpretation that the constitution required two KCI-UK spiritual leaders in
addition to the Chair. He asserted that t he Chair is a member by virtue of his
capacity as the Apostolic leader of the Church, not as a spiritual leader of KCI-UK.
It ha d always been the practice for the Board to include two KCI-UK leaders in
addition to the Applicant. The Applicant contended that the Respondents did not
answer this allegation effectively. The practice of the parties in allowing three KCI-
UK members indicates how they understood the constitution and is material in
33



resolving any ambiguity. The Applicant asked in the alternative that the Board have
one further spiritual leader who must be a member of the KCI-UK

86. The Respondents refuted the Applicant’s prayer for a ncillary relief. They argued
that the Applicant’s attempt to appoint two spiritual leaders to the Board was not
foreshadowed in the 2017 Constitution. The Respondents contended that the sole
purpose of this aspect of the application was to place the Applicant back in a
position where he had unfettered control over the Board. The insistence that two
spiritual leaders from the KCI -UK be appointed ensure d that the Applicant ha d
control of the Board by virtue of his casting vote. There was no justification for the
inclusion of two further spiritual leaders. Section 8.2 of the 2017 Constitution
specified that at least two Board members must be spiritual leaders of KCI -UK.
The Applicant is a spiritual leader of KCI -UK. No basis is laid for the contention
that a third spiritual leader of KCI -UK be appointed. The 2017 constitution note d
that the inaugural Board members consisted of two members of the KCI -UK,
namely the Applicant and his son.

87. The Respondents submit ted that the argument the Applicant relied on was
contained in the replying affidavit. It was not open to an Applicant in motion
proceedings to make out a case in reply.22 Similarly, a party may not raise a point
that is not presaged in the founding papers. The case in the founding affidavit was
the one the Respondent was called upon to meet and had to contain sufficient
facts upon which a Court may find in the Applicant’s favour. The only contention
the Applicant made regarding those three members of KCI-UK being members of
the Board is the contention that it has always been the understanding that what is
required is two such members other than the chair. A bald assertion does not
establish facts for a legal conclusion.23 An Applicant must stand or fall by what is
contained in the founding affidavit.24

22 National Council of Societies for the Prevention of Cruelty to Animals v Openshaw 2008 (5) SA 339
(SCA)at para 29, Betlane v Shelly Court CC 2011 (1) SA 338 (CC) at para 29
23 Syntheta (Pty) Ltd (formerly Delta G Scientific (Pty) Ltd v Janssen Pharmaceuticals NV and Another
1999 (1) SA 85 (SCA) at 91 C.
24 Director of Hospital Services v Mistry 1979 (1) SA 626 (A) at 635 H -636B
34




88. The Respondents are incorrect in alleging that the interpretation sought by the
Applicant that the constitution requires two KCI-UK spiritual leaders in addition to
the Chair was raised for the first time in the replying affidavit . The argument was
foreshadowed in paragraph 25 of the supplementary founding affidavit. The Court
considers it prudent to resolve this issue considering the less than amicable
relationship between the two groups and facetiously to ensure that the Applicant
does not obtain two for the price of one. The Applicant was incorrect in alleging
that it was the practice of the Board always to include two KC I-UK spiritual
members. The list of inaugural Board members to the 2017 Constitution belies this
submission. The list contains the names of the Applicant and his son, who are the
only spiritual leaders of KC I-UK. The Respondents confirmed the latter. The
Applicant was incorrect in alleging that the Respondents had not answered his
contentions effectively.

EVALUATION

89. The Applicant seeks declaratory and ancillary relief. The Applicant has asked the
Court to declare that the meeting held by the Respondents on 22 June 2022 and
the decisions and resolutions adopted at that meeting were invalid and void. The
Applicant sought the same declaratory relief concerning the 16 November 2022
meeting. The applicant sought, in addition, ancillary relief requiring the
Respondents to attend a Board meeting to appoint either one or two spiritual
leaders of the KCI-UK to the Board and the costs of this application.

90. The parties agreed that the declaratory relief sought depended upon whether the
Board was properly constituted on 22 June and 16 November 2022. The Applicant
asserted that interpreting the Church’s constitution would resolve the issue. The
Respondents relied on the three judgments and orders of Willie J to contend that
the Board was properly constituted and that the orders , in particular that of 30
September 2022, had determined the members of the Board to be the Applicant,
35



the First, Second, and Third Respondents and no other persons. The Respondents’
interpretation of the judgments of Wille J was that he stipulated unequivocally that
the Applicant and the First to Third Respondents were the members of the Board
and specifically excluded any other persons. He did not declare they were
provisional Board members or board members for a specific purpose. The
Respondents contended that there is little if any, authority that a contract, articles
of association, or private constitution supersedes an order of the Court.

91. The Court interpreted the clauses material to the adjudication of this application
according to the established principles of interpreting leg al documents. It
considered the case cited by the Applicant as authority for the situation where the
number of church council members fell below the minimum threshold. The 2011
case permitted the remaining council members to overcome an obligatory clause
in its constitution without reverting to its congregation , provided that the
constitution allowed for the substitution of members once a vacancy arose. The
legal principles applied to this application meant that the Board comprising the
Applicant and the First to Third Respondents had a duty to appoint a qualified
member, i.e., a spiritual leader from KCI-UK, to its Board before it could conduct
the business of the Church. The constitution of the Church contained a clause to
members after the inaugural appointees.

92. The proper interpretation of the 2017 constitution leads to the ineluctable finding
that the meeting held by the First to Third Respondents on 22 June 2022 was not
properly constituted a s it did not comply with the obligatory prescripts of the
constitution. Clause 8.2 required appointing two spiritual leaders from KCI-UK to
the Board. It stood as an insurmountable obstacle to the Respondents. The Board
remained improperly constituted until the obligation was resolved. The
Respondents were, on 22 June 2022, a group of individuals meeting and no t a
meeting of the Church Board.

93. The Applicant's presence at their meeting would not have eased their difficulty in
overcoming an unlawful situation when they proceeded to conduct the Church's
36



business. As the constitution allows for the appointment of subsequent
members, the Board had to rectify a drop in the number of spiritual leaders from
KCI-UK by resolution of the remaining members supported by a two -thirds
majority. The Applicant had augmented the agenda of the June 2022 meeting to
include his son’s membership on the Board. This item may have been directed at
reconstituting the Board before it could conduct any further business. The
Respondents did not contemplate the constitutional imperative of appointing a
further spiritual leader from KCI-UK as they intended to remove this obstacle and
pave the way for removing the Applicant from the Board. The Court is not
concerned with the merits of their cause, just the legality thereof.

94. As long as the Board was improperly constituted, the decisions the group of
individuals made had no legal force or effect. The Court would have had no
hesitation in declaring that the meeting of 22 June 2022 invalid but for the defence
raised by the Respondents.

95. A careful and detailed examination of the circumstances, text, context, purpose,
and intention of the Judge when making his orders across the three judgments fails
to uncover any finding or suggestion by the Judge that the orders were intended to
overrule the composition of the Board as required by the 2017 Constitution. The
judgments convey the impression that the Judge was constrained in making any
pronouncements beyond the interdictory relief sought by the Applicants and the
declaratory orders sought by agreement between the parties. Hence, the Judge
disavowed any attempt by the Applicant to suggest that the Judge should have
included the Applicant’s wife and son as members of the Board in his order.

96. The Judge’s intention involved in arriving at the order is easily discernible from the
judgments. The judgments and orders were all directed to answer the relief sought
by the Applicant to exclude the First to Third Respondents from the Board on 24
February 2021. The Judge repeatedly said that the Applicant had resolved to
exclude the First to Third Respondents, and the judgments rectified that situation
by reinstating them onto the Board. Paradoxically, the Respondents argued in the
37



immediate aftermath of their exclusion from the Board that they remained
members until a duly constituted Board meeting occurred. If the Honourable
Judge intended that the composition of the Board was a duly constituted Board,
which he did not do, the Board would have been rendered unconstitutional and
inoperable. The Applicant was alive to this consequence , not out of generosity
towards the Respondents but pursuant to his own plan to rid the Board of them.
The constitution did not contemplate a Board without two spiritual leaders from
KCI-UK. Until that defect was remedied by the Applicant, the First, Second, Third
Respondents, and no other persons, the Board was not properly constituted.
There was no Board. The Applicant, First, Second, and Third Respondents had a
duty to appoint a further spiritual leader from KCI -UK to the Board to enable the
Board to be properly constituted. The constitution permitted the remaining Board
members to make further appointments by resolution supported by two-thirds of
them voting in favour.

97. In the premises, the Court finds that the Board convened by the Respondents on
22 June 2022 and the decisions and resolutions taken at that meeting and those
taken at the 15 November 2022 meeting are invalid, null and void.

98. Concerning the ancillary relief sought by the Applicant as to whether the
constitution permits the appointment of two spiritual leaders from KCI -UK in
addition to him, the Court considered clause 8.2 and concluded that it did not.
Clause 8.2 of the 2017 constitution requires at least two spiritual leaders of KCI -
UK to be members of the Church’s Board. In a minimum incarnation of the Board
with three members, at least two should be spiritual leaders of KCI-UK. Whilst it is
correct that a Board with a larger number of members could conceivably have
more than two spiritual leaders from KCI -UK, each of their appointments
accorded with clause 8.4, which required a resolution of the Board supported by
a two -thirds majority. The position that the Applicant contended for is
unsustainable. Nothing in the 2017 Constitution implies th at the obligation is to
appoint two KCI-UK spiritual leaders in addition to the Chair.

38



99. Having found that the 22 June and 15 November 2022 meetings were invalid, null
and void, it is unnecessary to determine whether the 2022 Constitution attempted
to change the core objectives of the Church or whether the G12 disciple theology
is fundamental to the core objectives or a method of achieving them. The Church’s
congregation, advised by their leaders , best determines these issues. A Court of
law is ill-equipped to make these distinctions in the context of an application.

CONCLUSION

100. This judgment could have been disposed of in three paragraphs for the material
issues to be determined are questions of law. Clause 8.2 of the 2017 Constitution
concerning the appointment of two spiritual leaders of the KCI -UK was couched
in obligatory language, which prevented the Respondents from conducting the
business of the Church without first appointing another spiritual leader from KCI-
UK. The judgments of Willie J did not allow for the interpretation that the
Respondents sought to attach to them. Clause 8.2 of the constitution concerning
the appointment of spiritual leaders did not permit the Applicant to interpret it to
mean two other spiritual leaders from the KCI-UK in addition to him. The judgment
has struck a century of paragraphs before it hands over the spoils to the victor. The
Court takes no pleasure in doing so, as trawling through the quagmire that informs
this application has been dismaying. When Church leaders engage in battle rather
than engaging each other constructively , where does the congregation seek the
expansive values enshrined in clause 5.2 of the constitution?

101. The interpretation of the constitution meant that the meetings held by the
Respondents on 22 June and 16 November 2022 and the resolutions and
decisions they made were invalid, null and void. The interpretation of the three
judgments of Willie J was directed at the interdictory relief sought and the
declaratory orders that had to be made. Willie J did not stray beyond that mandate
and pronounce on whether the Board was properly constituted or not. The
judgments did not support the defence raised by the Respondents to the relief
39



sought by the Applicant . Clause 8.2 concerning the appointment of two spiritual
leaders from KCI-UK did not lend itself to an interpretation that it meant two others
in addition to the Applicant.

102. This judgment asserts the principle that in a case where the constitution of a
voluntary association , corporation, or organisation has an obligatory clause
specifying the qualification of members of the Board , then the Board is not
properly constituted until it complies with that clause. Suppose the number of
qualified persons drops to below the minimum, and the constitution allows for
their substitution by the Board. In that case, the remaining members of the Board
must first elect or appoint a member satisfying the qualification criteria to fill the
vacancy before the Board can conduct any further business of the organisation ,
corporation, or association. This, a Board or council has to do, even though it may
be quorate in numbers.

103. A Court does not stoop to being pedantic if the parties decline its directions and
assistance. However, after trawling through accusations, counteraccusations ,
and a history of misinterpreting court orders, this Court shall venture to tabulate
the effect of its order to avoid any misunderstanding. The Court has tweaked the
prayer sought in paragraph 7 of the notice of motion to reflect the finding s in this
judgment and ensure compliance with the order made.

103.1. The 2022 Constitution adopted by the First to Third Respondents is null
and void and has no further application in the conduct of the Church’s
business,
103.2. The business of the Church reverts to being conducted under the 2017
Constitution as of the date of this judgment,
103.3. The Applicant shall provide the requisite notice to himself and the First to
Third Respondents and no other person of a meeting of the Board to be
convened within sixty days of this judgment,
40



103.4. The sole item of the agenda is to appoint one spiritual leader of KCI-UK by
resolution supported by two-thirds of the four members of the Board
attending the meeting,
103.5. Should the Applicant elect not to provide notice and the agenda item and
to convene the Board meeting within thirty days of this judgment, then any
of the First to Third Respondents may comply,
103.6. Should any of the First to Third Respondents elect not to attend the
meeting either singularly or jointly, then the remainder of the four may
proceed with the Board meeting in their absence,
103.7. Once one further spiritual leader is added to the Board as specified in
paragraph 97.4 of this judgment, and the Board is properly constituted ,
then the Board may conduct the business of the Church as per the
provisions of the 2017 constitution, including effecting any amendments
to the 2017 Constitution.

104. The Court has allowed sixty days for the next Board meeting to enable the parties
and the Church's congregation to reconcile. It has considered that the
approaching season may impact the four members' availability to attend a Board
meeting. This does not prevent the four members from agreeing to convene the
Board earlier.

105. The Applicant sought the costs of the attorney and Senior Counsel on Scale C and
the costs of junior Counsel on Scale B. As this Court has previously held25, the
insertion of Rule 67A does not entitle an attorney attending Court solely to assist
and instruct an advocate to claim fees per the table of fees specified in the
amended Rule 69 of the Uniform Rules, even if they have the right of appearance.
An attorney with a right of appearance who presents or a rgues a case in Court is
entitled to claim fees under the table of tariffs in Rule 69(7). Advocates or
attorneys with a right of appearance can claim fees as stipulated in Rule 67A, read
with Rule 69 only if costs are awarded on a party and party scale. The Court shall

25 Raubex Building (Pty) Ltd v Bitou Municipality and Another (13787/2024) [2024] ZAWCHC 378 (19
November 2024) at paras 46-49
41



award the Applicant costs, including Senior Counsel’s fees, on the C scale and the
costs of Junior Counsel.

106. Finally, the Court feels compelled to offer the parties some gratuitous advice. It
has worked through over seven hundred pages and produced this judgment. After
all, it has earned the right to impart wisdom beyond its legal duties. You occupy
the role of leaders of a Church in a democratic dispensation based on freedom,
equality, and human dignity. There is no room for autocratic or unlawful conduct
when steering the business and affairs of the Church . Be the role models that
society expects you to be.

ORDER

1. It is declared that the purported meeting of the Board of Kings Church
International, Robertson (“the Church”) held by the First to Third Respondents on
22 June 2022 was invalid and a nullity and that all decisions and resolutions
adopted at that meeting are invalid and null and void,

2. It is declared that all decisions and resolutions adopted at the purported meeting
of the Board of the Church on 16 November 2022 are invalid and null and void,

3. The Applicant, the First, Second, and Third Respondent, and no other person shall
attend a Board meeting of the Church convened by the Applicant within sixty days
of this order to appoint one spiritual leader of Kings Church International-United
Kingdom to the Board of the Church,

4. The First, Second, and Third Respondents are ordered to pay the costs of this
application, including the costs of Junior Counsel. Senior Counsel’s fees shall be
taxed or agreed on scale C.


42
Ajay Bhoopchand
Acting Judge of the H igh Court
Wes tern Cape Division
Ca pe Tow n
Judgme nt was handed dow n and delivered to the parties by e-mail on 2 D ecemb er
2024
Applicant's Cou nsel: G Bud lender SC, C M van D er M erwe
Instructed by: H artzenberg Incorporated, Pretoria
C ounsel for the Respondents: L W ilken
Instructed by: Kellerman Joubert Heyns , Stellenbosch