SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No: 47085/2021
(1) REPORTABLE: YES/ NO
(2) OF INTEREST TO OTHER JUDGES: YES/ NO
(3) REVISED.
DATE 31 January 2025
SIGNATURE
In the matter between:
THE ELECTS APOSTOLIC CHURCH NPS APPLICANT
and
ZWELI DUMILE BLACKFESI MOHAMMAD 1ST RESPONDENT
THE STANDARD BANK OF SOUTH AFRICA 2ND RESPONDENT
JUDGMENT
HF JACOBS , AJ:
[1] This application concerns a dispute about a church’s leadership ,
ownership and entitlement to assets , and income stream from th ose assets .
On 2 August 2024 , the matter was referred to oral evidence in terms of Rule
6(5)(g) and a Rule Nisi, which had been issued earlier and extended. The
rule Nisi was again extended to 27 January 2025.
[2] The matter was allocated to me as one of the matters on the
opposed motion court roll. The purpose of the enrolment was, so I was
informed by the applicant ’s counsel , to lead the parties' evidence on the
issues before the court.
[3] I note from the order of 2 August 2024 (at CaseLines record:
0020:1) the following referral to evidence appears:
“1. The rule nisi is extended to the 11th October 2024;
2. The matter is hereby referred for oral evidence in terms of
Rule(6)(5)(g), and the applicant may approach the Deputy Judge
President for a special allocation date;
3. The parties have elected to refer the matter for arbitration. An
arbitration agreement shall be concluded as soon as reasonably
possible;
4. The applicant shall transfer the available funds of the Standard Bank
account bearing account number 0[...] (“the account”), into the trust
account of its attorney of record, being Rama Annandale & Munonde
Attorneys;
5. The applicant’s attorney of record shall account to the 1st
respondent’s attorney regarding the available balance and all
subsequent payments towards the municipal account.
6. Costs are reserved. ”
[4] It must be noted from the preamble of the order of 2 August 2024
that the order was made by agreement between the parties and is , therefore ,
a consent paper and not an order by the judge on the day after considering
and ruling on disputes of fact that were found to exist , not capable of
resolution in motion proceedings.
[5] Rule 6(5)(g) of the Uniform Rules of Court reads as follows:
“6(5)5(g) Where an application cannot properly be decided on
affidavit the court may dismiss the application or make such order
as to it seems meet with a view to ensuring a just and expeditious
decision. In particular, but without affecting the generality of the
aforegoing, it may direct that oral evidence be heard on specified
issues with a view to resolving any dispute of fact and to that end
may order any deponent to appear personally or grant leave for
him or any other person to be subpoenaed to appear and be
examined and cross -examined as a witness or it may refer the
matter to trial with appropriate directions as to pleadings or
definition of issues, or otherwise.”1
[6] Our courts apply rule 6(5)(g) with the following object in mind:
“The object of rule 6(5)(g) is manifestly to restrict the scope and
ambit of the enquiry and the number of witnesses to limits
defined by the court, and so to inhibit the abuse of the procedure
that the sub -rule provides by attempts to convert the application
into a full -dress trial, while at the same time enabling the court to
enquire fully into the “specified issues” on which there is a
dispute of fact. It has been said that the ordering of oral
evidence does not give either party the right to a roving
commission and to put before the court any facts which the party
thinks it would like the court to be aware of. The issues must be
defined and the enquiry must be limited to its proper scope.”2
[7] Absent an agreement between the parties (or an order of court) on
the “specified issues” and the number of witnesses , the trial will continue out
of control without pleadings and without a limitation on the number of
witnesses to be called and the benefit of having the issues distilled to their
essence.
[8] I have requested counsel to consider the abovementioned
principles and the possibility of referr ing the matter to trial. Counsel each
1 My underlining
2 See Ngar v Omar Salem Essa Trust 1970 (1) SA 77 (N); Wepener v Norton 1949 (1) SA
657 (W) at 659; Atlas Organic Fertilisers (Pty) Ltd v Pikkewyn Ghwana (Pty) Ltd 1978 (4) SA 696
(T) at 699A -B; Herbstein and Van Winsen , The Practice of the High Courts of South Africa, Fifth
edition, Vol 1 page 465
returned with a draft order , and counsel for the applicant presented heads of
argument in which the relevant chronology is recorded. I found these
convenient.
[9] In my view , both sides are to blame for the matter appearing on the
opposed roll of this week , and I am not prepared to, in my discretion, award
the wasted costs of the week to any of the litigants. In my view , the costs of
the enrolment on 27 January 2025 must be cost s in the cause.
Under the circumstances , I grant the following orde r:
1. The rule nisi is extended to the 2nd of June 2025;
2. The matter is hereby referred for oral evidence in terms of Rule(6)(5)(g) ,
and the Applicant must approach the Deputy Judge President for a special
allocation date, on the following disputes:
2.1. the leadership of the Elects Apostolic Church ;
2.2. ownership of the monies held in the bank account with Standard
Bank Ltd bearing account number 0[...]; and
2.3. the right title and interest in the property known as 18882 Mamelodi
Township and the income from that property.
3. The following persons may be called to give oral evidence:
3.1. Theminkosi Madikane ;
3.2. Raymond Matlala ;
3.3. Charles Gomba and
3.4. Zweli Dumile Blackfesi Mohammad Josef a Dashe.
4. The parties shall make joint application for Judicial Case Management in
terms of the Consolidated Practice Directives 1/2024, and the parties are
ordered to adhere to the requirements for the successful management of
the case .
5. The wasted c osts of the enrolment of the matter during the week of 27
January 2025 shall be costs in the cause.
H F JACOBS
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Delivered: This judgment was handed down electronically by circulation to the
parties’ legal representatives by e -mail. The date and time for hand -down is
deemed to be 11h00 on the 31st January 2025.
APPERANCES
Counsel for applicant : Adv M Du Plessis
Email: mariska@clubadvocates.co.za
Attorneys for applicant : Rama Annandale & Munonde Attorneys
Email: carin@rainc.co.za
Counsel for 1st respondent : Adv R Kooverjie
Email: rkooverjie@group33advocates.com
Attorneys for 1st respondent : Gildenhuys Malatji
Email: