IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the review application between:
MOKWEETSI SIMON MELALETSA
and
REGIONAL SYNOD FREE STATE AND LESOTHO
OF "DIE NEDERDUITSE GEREFORMEERDE KERK
IN AFRIKA- ORANJE VRYSTAAT"
BLOEMFONTEIN CIRCUIT OF: "DIE NEDERDUITSE
GEREFORMEERDE KERK IN
AFRIKA -ORANJE VRYST AA T"
LADYBRAND CIRCUIT OF: "DIE NEDERDUITSE
GEREFORMEERDE KERK IN
AFRIKA- ORANJE VRYSTAAT"
CHURCH COUNCIL, THABA NCHU OF: "DIE
NEDERDUITSE GEREFORMEERDE KERK
IN AFRIKA- ORANJE VRYSTAAT" Reportable
Case no: 6722/2023
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
FOURTH RESPONDENT
Neutral citation: Melaletsa v Regional Synod Free State and Lesotho of the
Nederduitse Gereformeerde Kerk in Afrika -Oranje Vrystaat and Others
(6722/2023) [2025] ZAFSHC (4 February 2025)
Coram: Van Rhyn J et Greyling-Coetzer AJ
Heard: 4 November 2024
Delivered: 4 February 2025
Judgment by: Greyling-Coetzer AJ
Summary: Judicial review -procedural fairness -application of the Church Order
-release of a Minister of the Word from service.
ORDER
1. The First Respondent's decision to appoint a Commission of Inquiry is
reviewed and set aside.
2. The decision of the Second Respondent, alternatively the First-or Third
Respondent, alternatively First-to Third Respondents jointly, to release
the Applicant from the Thaba Nchu congregation in terms of Article 10
of the "Kerkorde en Bepa/inge vir die Bestuur van die Nederduitse
Gereformeerde Kerk in Afrika -Oranje Vrystaaf' is reviewed and set
aside.
3. The First-to Third Respondents are ordered to pay the costs of this
application , jointly and severally, the one to pay the other to be
absolved, which costs to include the costs of counsel on Scale B.
JUDGMENT
GREYLING-COETZER AJ (VAN RHYN J concurring)
[1] This is a judicial review brought by the Applicant challenging ihe decision of
the First Respondent , the Regional Synod Free State and Lesotho of the Nederduitse
Gereformeerde Kerk in Afrika -Oranje Vrystaat (Regional Synod), to appoint a 2
Commission of Inquiry. The review also challenges the recommendations made by
the Commission, as well as the subsequent decisions of the Regional Synod and/or
the Second Respondent, the Bloemfontein Circuit of the Nederduitse Gereformeerde
Kerk in Afrika -Oranje Vrystaat (Bloemfontein Circuit), and/or the Third Respondent,
the Ladybrand Circuit of the Nederduitse Gereformeerde Kerk in Afrika -Oranje
Vrystaat (Ladybrand Circuit), to dissolve the Applicant's bond with the Thaba Nchu
congregation (i.e., to release the Applicant from service).
[2] The application is opposed by the Regional Synod, the Bloemfontein Circuit
and the Ladybrand Circuit. The Fourth Respondent, the Church Council, Thaba Nchu
of the Nederduitse Gereformeerde Kerk In Afrika -Oranje Vrystaat ("Church
Council") did not enter the fray. For ease of reference the opposing respondents will
jointly be referred to as "the Respondents".
[3] The facts relevant to this application can be summarised as follows: The
Applicant is an ordained Reverend of the Nederduitse Gereformeerde Kerk in Afrika.
In 2013, he accepted a call to serve as a Reverend at the Thaba Nchu congregation
of the Nederduitse Gereformeerde Kerk in Afrika -Oranje Vrystaat and Lesotho.
[4] The Applicant states that instability within the Thaba Nchu congregation
arose following the resignation of the 2015 Church Council and the subsequent
nomination and appointment of a new Church Council. The Applicant served as the
Chairperson of the new Church Council. The Respondents contend that, since 2014,
the Regional Synod had received several complaints from members of the Church
Council and congregation concerning the Applicant.
[5] Upon stepping down, members of the 2015 Church Council joined an
organisation called the "Mannebond." Although the Church Council later suspended
the members of the Mannebond, the Regional Synod authorised the group to
continue holding separate church services at an alternative venue, the "Ereskuld"
church building. The instability within the congregation persisted. Consequently, the
Regional Synod appointed a Commission of Inquiry to investigate the ongoing
discord within the Thaba Nchu congregation.
[6] The Respondents state that the Applicant requested the Regional Synod to
intervene and address the dispute between the Church Council and the congregation
members. Based on this request, the Regional Synod decided to establish a
Commission of Inquiry, comprising Reverend MS Makhele, Reverend MD Molifi, and 3
Reverend MJ Kofa, pursuant to Article 29.5 and Regulation 113.1 of the Kerkorde en
Bepalinge vir die Bestuur van die Nederduitse Gereformeerde Kerk in Afrika -Oranje
Vrystaat en Lesotho ("Church Order")1. The Respondents later claim that the
Commission of Inquiry was appointed on authority of Article 26 of the Church Order.
[7] The Commission of Inquiry convened on 5, 6, 12, and 13 October 2019. The
record does not indicate the outcome or decision of the Commission. The Applicant
contends that the Commission recommended his release in accordance with Article
10 of the Church Order. The Respondents maintain that, following the Commission's
sittings, the Regional Synod appointed a Justice Commission to resolve the dispute
between the Applicant, the Bloemfontein Circuit, and the Ladybrand Circuit.
[8] The Justice Commission produced its report on 12 February 2020,
recommending the Applicant's release in terms of Article 10 of the Church Order.
Additionally, the report recommended that the Ladybrand Circuit be placed under the
management and leadership of the Bloemfontein Circuit. The Regional Synod
accepted these recommendations.
[9] The Applicant was suspended on 15 September 2021, or alternatively on 2 7
September 2021, by a decision made by the Urgent Synodical Commission on 24
September 2021.
[1 O] The Regional Synod recommended to the Bloemfontein Circuit that the
Applicant be released as per Article 10 of the Church Order. Accordingly, on 2
October 2022, the Bloemfontein Circuit officially released the Applicant in terms of
Article 10 of the Church Order.
[11] A further letter of release was issued by the Ladybrand Circuit on 6 June
2023, in similar terms. The Respondents assert that the Ladybrand Circuit did not
exist from 24 September 2021 until 15 April 2023, as the Regional Synod had decided
on 24 September 2021, or alternatively 12 February 2020, to merge the Ladybrand
Circuit with the Bloemfontein Circuit.
(12] This application is primarily based on the procedural unfairness of both the
Commission of Inquiry and the decision to release the Applicant in terms of Article 10
of the Church Order. 4
Consisting of the Constitution of the Dutch Reform Church in Africa and Regulations, per the record
[13] The Applicant argues that, although the Commission of Inquiry was intended
to investigate the relationship between the Church Council and the "Mannebond," the
main focus of the inquiry was directed at the Applicant. The Applicant claims that the
inquiry proceeded without affording him the right to be heard (audi alteram partem),
leading to further actions that culminated in his release from the congregation under
Article 10 of the Church Order. The Applicant further contends that the entire process
was tainted by a failure to observe the principles of natural justice and was conducted
in violation of the Church Order.
[14] It is undisputed that the Regional Synod, the Bloemfontein Circuit, the
Ladybrand Circuit, the Church Council, and the Applicant are all governed by the
Church Order, which has been developed over many years. The powers of the
Regional Synod, Ladybrand Circuit, Bloemfontein Circuit, and Church Council are
derived from this Church Order.
[15] The Church Order regulates a wide range of matters, including the roles and
responsibilities of church offices, the admission of ministers to the ministry of the
Word, the duties of Elders and Deacons, church meetings, the establishment of the
Church Council, circuits, the Regional Synod, and the General Synod, as well as their
respective roles. It also addresses matters related to church oversight and discipline.
The church structure is further governed by four levels of governance: the Church
Council, circuit, Regional Synod, and General Synod.
[16] The Church Order outlines the circumstances and procedures under which
a minister of the Word, such as the Applicant , may be released from service or
subjected to disciplinary action.
[17] The Respondents rely on various points in limine, which must be resolved
before the merits of the matter can be considered.
Point in limine: Jurisdiction
[18] The challenge to this Court's jurisdiction was first raised in the Respondents '
heads of argument. As a result, the Applicant was afforded the opportunity at the
commencement of the hearing to file supplementary heads of argument. Counsel for
the Applicant, however, chose to address the jurisdictional challenge during oral
argument. 5
[19) The Respondents contend that the Applicant. during proceedings before the
Commission for Conciliation, Mediation, and Arbitration ("CCMA"), admitted to being
an employee of the Church Council. They further argue that, although the Applicant
does not rely on any specific terms of an employment contract, the undisputed facts
demonstrate that the Applicant was subject to the control and regulations of the
Respondents, particularly in relation to how the Respondents applied the Church
Order. Based on this, the Respondents assert that the Applicant qualifies as an
employee in terms of Section 213 of the Labour Relations Act 66 of 1995 ("LRA").
(20) The Respondents argue that, as the relief sought by the Applicant effectively
seeks reinstatement to the Respondents' service, the Applicant's recourse is
governed by Section 188( 1 )(a) of the LRA. As such, the matter falls within the
jurisdiction of the Labour Court, ·as indicated Phori v Minister of Police qnd Other
(255212021) [2021] ZAFSHC 221 (17 September 2021).
[21] According to the Applicant, this Court has the required jurisdiction as the
Applicant has not placed reliance on any employer-employee relationship , which
would be a prerequisite to establish the jurisdiction of the Labour Court. The Applicant
highlighted that in contrast to the Respondents ' current jurisdiction challenge , the
Respondents in the CCMA pertinently denied that any employment relationship
existed between the Applicant and the Respondents . The Applicant's contention in
the CCMA that he was employed by the Church Council does not bring the current
application within the realm of the Labour Court, nor does the fact that the Applicant
challenges the procedural unfairness of the decision by the Respondents.
[22] The Applicant contends that there is clearly no employee-employer
relationship when regard is had to Universal Church of the Kingdom of God v Myeni
and Others [2015] 9 BLLR 918 (LAC) and Church of the Province of Southern Africa
(Diocese of Cape Town) v CCMA and Others [2001] 11 BLLR 1213 (LC) where the
Labour Court held that:
• ... the church must be seen as providing the space for those called upon to give effect to
that calling. The fact that in providing that space it may be providing all the features of an
employment relationship cannot make that relationship an employment one.' 2
2 Atpar35 6
[23] The Constitutional Court in Gcaba v Minister of Safety and Security {2009]
ZACC 26; 2010 (1) SA 238 (CC); 2010 (1) BCLR 35 (CC) and Baloyi v Public
Protector and Others (CCT03/20) [2020] ZACC 27; 2021 (2) BCLR 101 (CC); [2021]
4 BLLR 325 (CC); (2021) 42 ILJ 961 (CC); 2022 (3) SA 321 (CC) (4 December 2020)
made it clear that an assessment of jurisdiction must be based on an applicant's
pleadings, as opposed to the substantive merit of the case.
[24] In Gcaba it was held that:
' ... in the event of the court's jurisdiction being challenged ... the applicant's pleadings are
the determining factor. They contain the legal basis of the claim under which the applicant
seeks to invoke the court's competence. While the pleadings -including in motion
proceedings, not only the formal terminology of the notice of motion, but also the contents of
the supporting affidavits; must be interpreted to establish what the legal basis of the
applicant's claim is, it is not for the court to say that the facts asserted by the applicant would
also sustain another claim, cognizable only in another court. If however the pleadings ,
properly interpreted , establish that the applicant is asserting a claim under the LRA, one that
is to be determined exclusively by the Labour Court, the High Court would lack jurisdiction'. 3
(own underline)
[25] The Applicant's papers reveal that he considered himself bound by the
Church Order, and that in serving as a Reverend , he was carrying out the church's
mission through reliance on the Word of Christ. The Applicant receives, and
continues to receive, remuneration in this role.
[26] The Applicant's claim is based solely on the Respondents' failure to comply
with the Church Order, and that the actions taken by the Respondents-allegedly
grounded in the Church Order-were procedurally unfair and/or ultra vires.
[27) The remaining of the papers, more particularly the Respondents ' answering
affidavit reveals that, in the CCMA proceedings, the Applicant contended that he was
an employee of the Church Council, while the Respondents denied any employment
relationship. However, the Applicant seeks no relief against the Church Council.
[28] It is well-established that the same set of facts can give rise to multiple
causes of action. In some instances, legislation prescribes a specific forum for the
adjudication of a particular cause of action. A litigant must choose the appropriate
3 Gcaba(supra)atpar75 7
cause of action based on the facts and prepare its pleadings accordingly . As held in
Baloyi:
The fact that a cause of action is limited to certain for a must not be interpreted as obliging
an applicant only to pursue that particular cause of action.'4
[29] The mere potential that a claim, based on an unfair release or dismissal , may
be framed as one of unfair dismissal does not obligate a litigant to approach the
Labour Court. This is the case even though other potential causes of action might
exist.
[30] Whether a court believes that a litigant should have pursued a different cause
of action, or that doing so would have increased the likelihood of success, is irrelevant
to the court's competence to hear the matter. 5
[31] In the present matter the Applicant does not rely on a contract of employment
with the Respondents, nor does the Applicant in other terms plead that he was
employed by the Respondents. The Respondents do not contend that the Applicant
was employed by them. The high-water mark of the Respondents ' contention is that
the Applicant considered himself to be under the control and regulation of the
Respondents through the Church Order. Considering the Applicant's pleadings and
that revealed in the Respondents' opposing affidavit, this Court's jurisdiction is not
ousted by the mere presence of some jurisdictional requirement of a claim founded
on an unfair dismissal, as contemplated in the LRA, nor because the Applicant's
cause of action is founded on the absence of procedural fairness.
[32] The Respondents' jurisdictional challenge is without merit. This court has the
required jurisdiction to determine the application.
Point in limine: Non-joinder of General Synod and non-compliance with the Church
Order
[33] The Respondents argue that, pursuant to Article 76 of the Church Order, the
Applicant had the right to appeal to the General Synod. However, they assert that the
Applicant failed to first appeal to the Regional Synod or the Bloemfontein Circuit. The
Respondents further claim that the Applicant did not join the General Synod to these
4
5 Par [39]
Par [42] 8
proceedings, despite it being the highest authority within the governance of the
church.
[34) In response, the Applicant contends that the General Synod does not have
a direct and substantial legal interest in this matter that could be prejudicially affected.
Out of an abundance of caution, and without conceding the validity of the
Respondents' point in limine, the Applicant notified the General Synod of the
proceedings and inquired whether it wished to intervene. No response was received
from the General Synod. Furthermore, the Applicant argues that Article 76, read in
conjunction with Article 34 -which provides for a right of appeal -excludes matters
related to the discipline of ministers of religion from the competence of the General
Synod.
[35) It appears that the Respondents' point in limine raises two issues: first, the
issue of non-joinder, and second, the failure to exhaust internal remedies.
[36] Regarding non-joinder, the Respondents merely allege that the Applicant
failed to cite the General Synod, as the highest authority in the governance of the
church. However, the Respondents have failed to substantiate how this omission
constitutes a non-joinder warranting dismissal of the application.
[37] In Judicial Service Commission and Another v Cape Bar Council and Another
2013 (1) SA 170 (SCA)6 the court held that:
'it has by now become settled law that the joinder of a party is only required as a matter of
necessity -as opposed to a matter of convenience -if that party has a direct and substantial
interest which may be affected prejudicially by the judgment of the court in the proceedings
concerned (see e.g. Bowring N.O. v Vrededorp Properties CC 2007 (5) SA 391 (SCA) para
21)). The mere fact that a party may have an interest in the outcome of litigation does not
warrant a non-joinder plea. The right of a party to validly raise the objection that other parties
should have been joined to the proceedings , has thus been held to be a limited one.'
[38] The mere fact that the General Synod is the highest authority in the
governance of the church does not satisfy the test of necessity, as outlined above.
[39) Even if the conclusion above is incorrect, and the General Synod could be
regarded as a necessary party, the Applicant remedied the alleged defect by issuing
6 Par [12] 9
an informal notice, seeking the General Synod's indication of whether it wished to
intervene in the proceedings. In BOE Trust Ltd and Others NNO 2013 (3) SA 236
(SCA)7 the Supreme Court of Appeal held that such an informal extra-judicial notice
was sufficient notice of the proceedings and that eventually each of the organizations
involved in that matter was properly informed of the nature and purpose of the
proceedings.
[40] On the strength of aforementioned, the General Synod received due notice.
Its failure to respond can therefore be accepted as a waiver of the right to be joined.8
[41] Regarding the failure to exhaust internal remedies, the Respondents' position
is unclear. If the Respondents intend to argue that, based on Article 17 of the Churclh
Order, read with Regulations 76 and 113.1, the Applicant had a right of appeal to the
General Synod against any decision made by the Respondents , but failed to exercise
that right, thereby warranting the dismissal of the application, such an argument is
without merit.
[42] Even if the Applicant may have had a right of appeal in terms of Article 17,
without deciding this issue, the existence of an internal remedy is, under common
law, not sufficient to preclude access to judicial review. A court may condone a failure
to exhaust internal remedies where the available remedy is illusory or inadequate, or
where it is tainted by the alleged illegality. The two primary considerations under
common law are whether the domestic remedies are capable of providing effective
redress and whether the alleged unlawfulness undermines the integrity of the internal
remedies themselves.
[43) In Koyabe v Minister of Home Affairs 2010 (4) SA 327 (CC)9 the
Constitutional Court said:
'The duty to exhaust internal remedies is therefore a valuable and necessary requirement in
our law. However, the requirement should not be rigidly imposed. Nor should it be used for
administrators to frustrate the efforts of an aggrieved person or to shield the administrative
process from judicial scrutiny.'
[44] Even though the duty to exhaust internal remedies is not absolute, the
aggrieved party, such as the Applicant in the present matter, is still bound to exhaust
7
8
9 Par [19] to (20]
Road Accident Fund v Legal Practice Council and Others 2021 (6) SA 230 (GP)
At 343A-B
internal remedies prior to embarking on a judicial review, unless the aggrieved party
can show exceptional circumstances to excuse him or her from this requirement.10
[45] In determining whether exceptional circumstances exist, factors to be
considered include whether the internal remedy is effective, available, and adequate.
An internal remedy is deemed effective if it provides a realistic prospect of success
and can be objectively implemented , in line with the relevant principles and values of
administrative justice as enshrined in the Constitution and our law. It is considered
available if it can be pursued without obstruction , w~ether arising from systemic
issues or improper administrative conduct. An internal remedy is adequate if it is
capable of providing effective redress for the complaint.11
[46] Based on the assumption outlined above, the proposed internal remedy
would, in the context of this matter, fail to meet the necessary test. In the event of the
Applicant's release from service, if such a decision were made by either the
Bloemfontein Circuit or the Ladybrand Circuit, an appeal would lie to the Regional
Synod. The Regional Synod, according to the Respondents' version, was the church
body that recommended the release to the Bloemfontein Circuit and/or the Ladybrand
Circuit.
[47] Furthermore, considering that the Applicant attempted to appeal his
suspension to the General Synod, which advised that the appeal should have been
directed to the Regional Synod, it is evident that the Regional Synod was the effective
cause of the suspension, as the suspension resulted from its decision to appoint a
Commission of Inquiry.
[48} For the reasons outlined above, the argument that dismissal is warranted
due to the failure to exhaust internal remedies is without merit. This point in limine
stands to be dismissed.
Point in limine: The existence of a material factual dispute
[49] The Respondents assert that a genuine and material dispute of fact exists,
and that such a dispute was foreseeable , thereby warranting the dismissal of the
application. It is further contended that this factual dispute is evidenced in the
application under case number 669/2021, the criminal proceedings against the
10
11 Nichol and Another v Registrar of Pension Funds and Others 2008 (1) SA 383 (SCA)
Basson v Hugo and Others {2017) ZASCA 192 (1 January 2018) I I
Applicant in the Regional Court, the meeting held on 27 February 2020, and the
CCMA hearing.
[50] In contrast, the Applicant argues that the issue for determination is limited to
whether the Regional Synod, the Bloemfontein Circuit, and/or the Ladybrand Circuit
acted within their authority in making the decision under review. The Applicant further
asserts that, to the extent a factual dispute may arise in respect of certain allegations ,
such a dispute is capable of resolution through the application of the Plascon-Evans
principle.
[51] It is well established that a genuine dispute of fact arises in motion
proceedings when the court is satisfied that the party raising the dispute has properly
and unequivocally addressed the facts it contends are disputed in its affidavit.12
[52] A court will typically find that a genuine dispute of fact exists where the party
raising the dispute provides a detailed and credible response, demonstrat ing
knowledge of the relevant facts and the ability to present countervailing evidence.
The determination of this matter hinges on an assessment of whether the
Respondents properly applied the established Church Order in the creation of a
Commission of Inquiry and in the decision to release the Applicant from service.
[53) Upon a conspectus of the papers, any dispute of fact that may exist pertains
to peripheral matters with limited relevance, if any, to the central issue of whether the
Respondents acted in accordance with the prescribed procedure and the Church
Order when establishing the Commiss ion of Inquiry and releasing the Applicant from
service.
[54] Therefore, there is no genuine or bona fide dispute of fact of sufficient
materiality to justify the dismissal of the application as sought by the Respondents.
Even if there was such a dispute of fact, this Court is reminded of the finding of the
Constitutional Court in Mamadi v Premier, Limpopo and Others 2024 (1) SA 1 (CC)13
where it was confirmed that in order to give proper effect to Section 34 of the
Constitution. A litigant is entitled to invoke Uniform Rule 53 in review proceedings
and, accordingly , cannot be penalized for doing so by the application of Uniform Rule
6(5)(g), solely on the basis that Uniform Rule 53 was utilized. The Constitutional Court
12
13 Wightman t/a JW Construction v Head Four (Pty) Ltd and Another 2008 (3) SA 371 (SCA)
at par (43] 12
has held that a court does not possess the discretion, under Uniform Rule 6(5)(g), to
dismiss an application brought under Uniform Rule 53 solely on the grounds that
reasonable and anticipated disputes of fact arise from the papers.
Merits
[55] I now tum to the merits of the application. The Applicant's case, put simply,
is that the Regional Synod, in appointing a Commission of Inquiry-whose
recommendations led to the Applicant's release under Article 10-acted beyond their
power and in a procedurally flawed manner. This, the Applicant argues, was in
violation of the Church Order, disregarded the principles of natural justice, and
ignored the audi alteram partem rule, which is a prerequisite to a fair hearing.
[56] The Respondents, in response, maintain that the Regional Synod
consistently acted in accordance with the Church Order. They assert that the
appointment of a Commission of Inquiry, which was initiated at the Applicant's
request, as well as the Applicant's release under Article 10, were both procedurally
and substantively fair.
[57] The concept of natural justice refers to the fair and just treatment of all parties
involved in a legal or administrative process. It is a broad term encompassing various
procedural rights that ensure decisions are made transparently, fairly, and impartially.
(58) In Joseph and Others v City of Johannesburg and Others [2009) ZACC 30;
2010 (3) BCLR 212 (CC); 2010(4) SA 55 CC 14, procedural fairness was descripted
as ' ... being concerned with giving people an opportunity to participate in the decisions that
will affect them, and -crucially -a chance of influencing the outcome of those decisions ... '
[59) Courts are generally hesitant to interfere in the internal matters of a religious
body such as a Church. The Constitutional Court in De Lange v Presiding Bishop of
the Methodist Church of Southern Africa for the Time Being and Another
CCT223/14C {2015] ZACC 35; 2016 (1) BCLR 1 (CC); 2016 (2) SA 1 (CC), referred
to this view as follows:
'The Supreme Court of Appeal held that the doctrine of entanglement strongly informs courts
not to get involved in religious doctrinal issues. The effect of the doctrine is that courts are
reluctant to interfere with religious doctrinal disputes.'
14 at par [41] 13
[60] As mentioned in the minority judgment of Hendricks v The Church of the
Province of Southern Africa, Diocese of Free State (108/2021) [2022] ZASCA 95 (20
June 2022) the following dictum in De Lange is significant, as it provides important
context for paragraph 39 of that judgment:
'In Lakeside Colony of Hutterian Brethren v Hofer, Gonthier J said of the complex issues
involved in reviewing the decisions of a religious tribunal in Canadian law:
"It is not incumbent on the court to review the merits of the decision to expel. It is,
however, called upon to determine whether the purported expulsion was carried out
according to the applicable rules, with regard to the principles of natural justice, and
without mala fides."15 (Emphasis added).
It is plain from the passage above that there are circumstances in which courts are required
to intervene in disputes involving religious bodies. To my mind. this can only mean that where
religious bodies have proceeded in a manner that is not consonant with the principles of
natural justice. courts will intervene.' (own emphasis)
[61] The Supreme Court of Appeal minority judgment in Hendricks16 further held
that: ' .. the majority judgment in De Lange did not introduce a blanket prohibition on the
determination of disputes that involve religious bodies ... '
[62] The present matter is one such exception , here the focus is on the fairness
in process rather than doctrinal beliefs or practices nor about an individual who has
voluntarily committed himself to a religious association 's rules and find himself now
in conflict with same.
[63] As set out above, it is common cause between the parties that the
Respondents and the Applicant are regulated by the Church Order, which makes
provision for inter a/ia the establishing of commissions, the release of ministers of the
Word and discipline in general.
[64] The Church Order is integral in the determination of this matter. As such it is
necessary to briefly outline the structure thereof. As already mentioned, the Church
Order consists of the Constitution and the Regulations. The Constitution is divided
into eight chapters. Under each chapter there are various headings and sub-headings 14
15 De Lange v Presiding Bishop, Methodist Church of Southern Africa and Another [2014] ZASCA
151; 2015 (1) SA 106 (SCA); [2015] 1 All SA 121 (SCA) para 38.
16 (108/2021) [2022] ZASCA 95 (20 June 2022) para [53].
with specific regulations resorting under specific articles. From the available record it
can be summaries as follows:
CHAPTER I CONFESSION OF THE CHURCH Art 1
CHAPTER 11 THE DENOMINATION Art 2 -3
CHAPTER Ill THE OFFICES OF THE CHURCH Art 4 -16
General requlations Art 4 -5 & Rea 5 -39
Ministers of the Word Art 6 -12 & Reg 40 -unknown
Elders and Deacon Art 13 -15
The Believers Art 16
CHAPTER IV THE ASSEMBLIES OF THE CHURCH ART 17 -40
The Church Council Art 20 -22 & Rea 82-89
The Circuit Art 23 -25
The Regional Synod Art 26-31 & Rea 112-138
The General Svnod Art 32 -40
CHAPTERV THE LABOUR OF THE CHURCH Art 41 -49
CHAPTER VI THE CHURCH OVERSIGHT AND Art 50 -58 & Reg 173 -221
DISCIPLINE
CHAPTER VII ECUMENICAL RELATIONS Art59
CHAPTER VIII CHURCH AND GOVERMENT Art60
[65) The challenge to the Regional Synod's decision to appoint a Commission of
Inquiry serves as a logical starting point.
[66] The Regional Synod alleges that its decision to establish the Commission of
Inquiry at the Applicant 's request and in accordance with Article 29.5, read with
Regulation 113.1. However, the Applicant denies ever requesting the Regional
Synod's intervention. Whether the Applicant sought the Regional Synod's
intervention or not is of little consequence, either way the Church Order had to be
observed in appointing a Commission of Inquiry.
[67] Article 29 sets out the tasks and competences ascribed to the Regional
Synod. Article 29.5 reads: 'dealing with matters which must be brought to it in the first
instance or on appeal..'. Regulation 113.1 in turn grants the Regional Synod the
authority to oversee the general work of the church, particularly matters related to
worship and church activities. It is also responsible for receiving and processing all
complaints and disputes brought before it, whether initially or on appeal, and for
issuing decisions. Additionally, the Synod holds the same powers as a circuit under
Article 57. Article 57 specifically outlines the procedure for appealing decisions made
by an ecclesiastical meeting. 15
[68] The further relevant provisions are found in CHAPTER IV: ASSEMBLIES OF
THE CHURCH, being Article 26 to 31 and Regulations 112 to 138. From aforesaid,
the Church Order does not deal explicitly with the authority of the Regional Synod to
appoint a Commission of Inquiry. In applying the trite Plascon-Evans principle its
accepted that, the Regional Synod intervened to resolve the dispute between the
Church Council and the congregation members and knowing that complaints against
the Applicant has been forthcoming since 2014. The Regional Synod resolved to
attend to the dispute by first investigating and did so by appointing a Commission of
Inquiry. This is to some extent confirmed by the minutes of the Commission of Inquiry
meeting held on 5 October 2019.
[69] The Applicant alleges that he was not invited to said Commission of Inquiry
meeting, which fact the Respondents deny boldly and without providing a contrary
version. According to the Applicant he attended on 5 October 2019. He was however
requested to leave the meeting by the Commission and the Church Council, and the
Mannebond remained behind.
(70) Is stands to be noted that the Respondents allege that the Commission of
Inquiry convened on 5, 6, 12 and 13 October 2019, the only minutes before Court is
that of 5 October 2019. It is therefore unclear what transpired on the remaining three
days, or what recommendations were issued pursuant thereto.
[71] The available minutes do however reveal that the Church Council of Thaba
Nchu and the members of the Mannebond were present, yet the Church Council was
excused early on with only the Mannebond being left behind. According to the
minutes, the meeting involved the receiving of grievances and complaints directed at
the Applicant , even though the goal of the inquiry, according to the Respondents,
was to investigate the relationship between the Church Council and the Mannebond.
The objections raised by the Mannebond , directed at the Applicant, related to the
content of his sermons and church services, funeral and the like. The broad
consensus expressed at the meeting was that the Applicant should be released from
the congregation .
[72] A key issue to consider is the process by which the Regional Synod decided
to appoint the Commission of Inquiry. According to the Respondents, the decision to
establish the Commission was made after the Applicant requested the Synod's
intervention. It follows, therefore, that this decision must have been made during a 16
17
Regional Synod meeting. In this regard Article 2817 and Regulations 115,18 116,19
11120 and 11821 are apposite.
[73] This issue was not expressly raised nor dealt with by either of the parties,
and although most relevant in my view, does not constitute an specific issue for
determination by this Court. The Applicant's challenge is framed much broader, and
that the Regional Synod was not clothed with authority to appoint a Commission of
Inquiry on the strength of Article 29.5 and Regulation 113.1. It is argued that the
decision to constitute a Commission of Inquiry requires the procedure to be followed
as outlined in Article 55 and Regulation 185.
[74] Article 55 is contained in CHAPTER VI: CHURCH OVERSIGHT AND
DISCIPLINE. Regulation 185 stipulates that members of a church meeting are
required to report harmful rumours to the meeting, without forfeiting their right to
assess and judge the matter during the meeting. Further that where adverse rumours
or objections are noted, the relevant meeting must determine whether there are
sufficient reasons to inves~igate them further. The Church Council must appoint a
Commission of enquiry and act in accordance with Regulation 195, to establish
whether there are sufficient grounds for a proper complaint. If same exists, the
commission or one of its members must act as complainant and submit a proper
complaint in terms of Regulation 20122.
[75] The Respondents deny that they acted incorrectly or that they ought to have
acted in terms of Article 55 and Regulation 185. They aver that the interpretation is
factually and legally incorrect. They failed to place reliance on a different
interpretation, save to re-state that they acted in terms of Article 29, read with
Regulation 113.1.
17
18
19
20
21
22 Regional Synod will normally meet every four years
The ordinary meetings of the synod take place at a place and date determined by the moderator
or by order of the synodal commission, or when at least 24 members of the previous synod apply
to this commission with a statement of reasons
The ordinary as well as extraordinary meeting of the synod is called by the scribe at least three
months before the specific date by means of a notice in the official page
At least 2/3 of the possible number of members must be present before a meeting of the synod
may be declared legally constituted
Of the number of members at the attendance list, more than 50% forms a quorum for the ordinary
activities. For the treatment of disciplinary matters, 2/3 of the members on the attendance list be
present (Regulations 176 and 177)
Complaints against office bearers (Art 54.3), include ministers of the Word, in respect of their
teachings, conduct and ministry, must be submitted in writing to the Chairperson of the circuit with
reference to nature, time and place excluding in re persons listed in Art 5.5.4
[76] In this regard, the minutes of the Commission of Inquiry are instructive , as
they show that during the sitting, adverse rumours, complaints, and/or objections
from the Mannebond, directed at the Applicant, were presented. This brings it in line
with the provisions of CHAPTER VI: CHURCH OVERSIGHT AND DISCIPLINE.
Aforesaid is further supported by the subsequent actions taken, notably the
appointment of the Justice Commission, the suspension of the Applicant , and his
eventual release in accordance with Article 10.
[771 Aligned with the principle of natural justice, Article 52 (under CHAPTER VI:
CHURCH OVERSIGHT AND DISCIPLINE) prescribed that no disciplinary action may
be applied before a complaint has been investigated and without an accused having
had sufficient opportunity to defend himself.
[78] For as far as the Commission of Inquiry was disciplinary in nature, it clearly
offends aforementioned Article 52 of the Church Order, the audi alteram principles
and the principle of natural justice. The Applicant should have been given an
opportunity to be present and audience at said meeting.
[79] For as far as the Commission of Inquiry was not at that stage disciplinary in
nature, Articles 18.3 and 19 under CHAPTER IV: ASSEMBLIES OF THE CHURCH,
and Regulations 77 and 78 are relevant. Aforementioned provide that no matter may
be brought before a higher assembly which should have first been dealt with by a
lower assembly , except in cases of high necessity in relation to matters of teaching
and discipline, and then only after notification to the relevant lower assembly . The
assemblies regulate their operations within the bounds of their competence, so that
they do not deal with anything that is exclusively within the competence of another
assembly.
[80] Aforesaid establishes a hierarchy which requires the Church Council to first
deal with a matter, whereafter it stands to be elevated to the circuit, and thereafter
only to the Regional Synod. Unless it was a case of high necessity in relation to
matters of teaching and discipline. There is no allegation that the dispute between
the Church Council and members of the congregation followed this hierarchy.
Conversely on the Respondents' version, the Commission of Inquiry was established
at the behest of the Applicant. The Respondents have also not placed reliance on
Regulation 77 nor was it alleged that this as a case 'of high necessity in relation to 18
matters of teaching and discipline' therefore the Regional Synod was authorised to
disregard the hierarchy mentioned above.
[81] The minutes dated 5 October 2019, bares that the entire meeting was
consumed by complaints and objections against inter alia the Applicant's conduct,
sermons and teachings. Regulation 96 states that 'it is also the duty of the circuit to take
care of ... 96.4. investigate objections regarding teachings, services and conduct of office
bearers which stands to be done in line with Regulation 200.1 .'
[82] Article 54 under CHAPTER VI: CHURCH OVERSIGHT AND DISCIPLINE
provides that ministers of the Word, are subject to oversight and discipline by the
circuit to which they belong. Instead, the Regional Synod in casu took the step of
appointing a Justice Commission , which is a standing commission of the Synod, and
which convened on 12 February 2020. The Respondents contend that the
appointment of the Justice Commission was made in terms of Article 29.5 and
Regulation 129 of the Church Order, with the purpose of resolving the dispute
between the Applicant and the Bloemfontein and Ladybrand Circuits, rather than
addressing the earlier dispute between the Church Council and members of the
congregation, which had been the focus of the Commission of Inquiry. From
aforementioned it is clear that the Regional Synod pursuant to the Commission of
Inquiry's meetings determined that the issue was the Applicant.
[83] Regulation 129 provides that at each ordinary meeting of the Regional Synod
a permanent law commission is appointed . It is thus reasonable to accept that the
reference by the Respondents to the Justice Commission is a reference to the Law
Commission as provided for in Regulation 129. For ease of reference the commission
will be referred to as the "Justice Commission".
[84] Such a commission is made up of seven members of which the actuary is ex
officio the second member. The Regional Synod also nominates a jurist and an
authoritat ive person in respect of the field of church law, and when the actuary is of
the opinion that their presence is necessary , they are called to the meeting.
[85] The Justice Commission has four identified tasks, being to consider all
discussion points which relate to law changes and to advise the synod and propose
the wording in terms of which it stands to be accepted into the statute book 19
(Regulation 123.3.2)23; to include all legal changes in the statute book as soon as
possible after the meeting of the synod24; to issue a new law book if the synod so
decides25 and 10 provide church councils with legal advice on their request26.
[86] From the Justice Commission report their task was to further investigate the
content of the minutes of the Commission of Inquiry. On the papers before Court that
can only mean to investigate the complaints levied against the Applicant.
[87] It is common cause between the parties that the Applicant attended the
meeting of the Justice Commission on 12 February 2020. The Applicant however
contend that the commission refused to provide him or the Church Council with the
report of the investigation conducted on 5, 6, 12 and 13 October 2019, and was told
that the report would be provided to the Ladybrand Circuit. From the report dated 12
February 2020 it does not appear that there was any participation by the Applicant
nor that evidence was received on the issues at hand. Nor does it appear the
Applicant was provided with an opportunity to be heard and answer or produce
evidence in addressing the allegation against him.
[88] By the time the Justice Commission was appointed , it was evident that the
core issue was the actions, conduct, behavior and teachings of the Applicant. The
report produced by the Justice Commission recommended the Applicant's
suspension and release from service in terms of Article 10 of the Church Order.
These recommendation cannot be categorized as anything other than disciplinary
measure, aimed at addressing the issues concerning the Applicant.
[89] For the reasons outlined above, and in the absence of placing reliance on
Regulation 77, the decision of the Regional Synod to appoint a Commission of Inquiry
is subject to review and should be set aside.
[90] Having reached this conclusion, and founded upon the Respondents'
version, which asserts that the report of the Justice Commission, along with its
recommendations, served as the basis for the Applicant's suspension and release,
rather than the recommendations of the Commission of Inquiry as alleged by the
Applicant, the relief granted in this respect must be confined to the decision to appoint
23
24
25
26 Regulation 129.1
Regulation 129.2
Regulation 129.3
Regulation 129.4 20
a Commission of Inquiry. This relief does not extend to the broader terms sought by
the Applicant in his notice of motion.
[91] In light of the foregoing findings, it does not n~cessarily follow that the
decision to release the Applicant should be reviewed and set aside, as sought by the
Applicant. A more comprehensive assessment is required, particularly with regard to
the procedural requirements governing the release of a minister of the Word from
service.
[92) The Applicant challenges his release under Article 10, asserting that this
provision cannot be applied without considering Article 55, read together with
Regulation 199 of the Church Order. Additionally , the Applicant argues that any
actions taken under Article 10 to release a minister of the Word must be initiated by
the circuit, and only after the Church Council has made efforts to restore peace that
have proven unsuccessful.
[93] It was further contended that Article 25, read with Regulation 96, grants
exclusive authority to the Circuit to investigate objections regarding the doctrines,
teachings, or conduct of an office bearer, such as a minister of the Word, and to
address disputes between the Church Council and the congregation. This argument
is supported by the provision in Article 54, which places the supervision and discipline
of a minister of the Word under the responsibility of the circuit.
[94] The Respondents alleged that the decision to release the Applicant under
Article 10 was recommended by the Justice Commission. The Regional Synod
accepted this recommendation , and the release was subsequently carried out by the
Bloemfontein Circuit on 2 October 2022, followed by the Ladybrand Circuit on 6 June
2023.The Respondents further assert that the Applicant's interpretation of the articles
and regulations of the Church Order is factually and legally incorrect, although they
did not place any alternative interpretat ions before Court. The Respondents also
failed to specifically address the Applicant's argument that Article 55 and the
regulations thereunder, specifically Regulation 199, should be read and applied in
conjunction with Article 10.
[95] The dissolution of the bond between a minister and a congregation and by
implication the release of a minister of the Word from service is addressed in two
separate chapters of the Church Order: CHAPTER Ill: THE OFFICE OF THE 21
CHURCH and CHAPTER VI: CHURCH OVERSIGHT AND DISCIPLINE, with only
minimal overlap between the two.
[96J CHAPTER Ill: THE OFFICE OF THE CHURCH27 sets out the procedures for
the appointment of office bearers, including confirmation, objections, resignations ,
and death of a minister. Articles 6 to 12 specifically address ministers of the Word,
detailing their admission, tasks, transfer, cessation of service, incapacity to serve a
congregat ion, remuneration , and retirement.
{97) Article 10 reads: 'In the event that a minister of the Word (minister or evangelist)
can no longer serve a congregation , the circuit may dissolve the bond between the minister
of the Word and the congregation. given that reasonable provision has been made for the
minister of the Word. The normal remuneration without travelling allowance for a period of
no less than three months, and no more than six months, as decided by the circuit, is
considered reasonable .' (own emphasis)
[98] In light of the foregoing, and considering the structure and composition of the
Church Order, Article 10 is not a provision to be invoked for the purpose of securing
the release of a minister of the Word where the need for such release arises from the
minister's conduct, misconduct, objections to teachings, or other disciplinary matters,
independent of the procedures outlined in CHAPTER VI: CHURCH OVERSIGHT
AND DISCIPLINE. Article 10 must be interpreted within the context in ·which it
appears. The wording of Article 10 is also instructive, as it refers to circumstances in
which a minister of the Word is no longer able to serve a congregation, which pertains
to issues of capacity rather than matters involving teachings or disciplinary concerns.
Accordingly, where Article 10 is invoked to release a minister of the Word due to
teachings or disciplinary issues, Regulation 199 under Article 55 of CHAPTER VI:
CHURCH OVERSIGHT AND DISCIPLINE must be followed.
[99] Even if the above interpretation is found to be incorrect, a release from
service pursuant to Article 10 must still comply with the principles of natural justice.
The provisions of CHAPTER VI: CHURCH OVERSIGHT AND DISCIPLINE are
essential in determining whether, in the present case, those principles were followed
and, moreover, whether the Church Order was adhered to. A brief overview of
27 Article 4 to 16 read with Regulations 5 to 39 22
23
CHAPTER VI: CHURCH OVERSIGHT AND DISCIPLINE is instructive in this
regard.28
Chapter THE CHURCH OVERSIGHT AND DISCIPLINE
VI
Art 50 Church oversight is kept and discipline exercised:
50.1 for the glory of God, for the salvation of the church and for the preservation of
the sinner,
50.2 according to the prescripts of the Word of God and as set out in the church
Order and rP.CJulations of the church
Art 51 Avoid civil administration of justice:
Since church oversight and discipline have a spiritual character , the overseer must
avoid the spirit of the civil administrat ion in their application. They may never see
themselves as judges, but should see themselves as fatherly overseers , meet
deeply before God and must bring back the trespasser with love and bring the
tresoasser back from his wanderinQ wavs without reoard for person
Reg 173 Purpose of necessity of ecclesiastical punishment:
Churchly punishment is necessary to reconcile the sinner with the church and with
their neiohbours and to atone for the wrongdoin gs
Art52 Disciplinary action may not be applied before a complaint has been investigated
and without the accused having had !':1 -· • ll JUL,, .... Jnitv to r!PfFmrf himc<>lf
Art53 53.2 Those who stand in relation to the congregat ion (Art 3.1.2) also fall under the
supervision and abnodation of the r:h11rr:h r-n11ndl
ReQ 174 The church assemblv should take in consideration that listed in Req. 17 4.1 to 17 4.3
Art 54 54.1 All members of the congregation have the obligation to address each other in
brotherly love and to accept such reprimand in a similar fashion
54.2 Where a member of the congregation is guilty of a false doctrine and publicly
displayed offending conduct, he falls under the discipline of the church council
54.3 All office bearers who have been cooficmed in tbe congregation , sucll as
rnioisters Qf tbe Word, are subieQt to the oversight and gi~ciQlioe ot tbe circuit
whereunder they fall, with the understanding that the church council's oversight
does not impede the church council's ability to act as complainant
Art 55 In the case where someone has made himself guilty of punishable sins and has
shown remorse before any disciplinary measures have applied, the relevant
assembly which imposed discipline must make a decision whether the case can be
walked awav from without further disciPlinarv action
Reg 175 Ecclesiastical oversight and discipline are exercised by church councils, circuits,
Reoional Svnod and General Svnod
Reg 176 In respect of oversight and discipline , Church council may take decisions if 50% of
church council members are present (Reg. 6.3). At the circuit and synod 2/3 of all
the members on attendance register is required (Reg. 118)
Reg 177 177 .1 Members of church council or church council commission may not be
involved in matters where they are involved in, nor their wives or persons two
degrees of blood relation, nor where they were part of a decision by a minority
assembly.
177 .2 Persons mentioned in Reg.112.1 and 112.2 do not have standing
177.3 If a auorum is not reached it stands to be filled bv retired elders
Reg 178 Church assemblies can determine whether the proceedings will be dealt with orally
or in writina
Reg 179 Disciplinary matters to be dealt with expediently
Reg 180 Prohibition of leaal Practitioners
Reg 181 Written submissions need to be personally undersigned by the person submitting
same
28 This overview is not a verbatim nor complete translation but a summary of the relevant articles
and regulations
24
Reg 182 Congregation members have the right to submit written objections or complaints to
a competent church assembly (Art.54.3)
Rea 183 Costs in relation to cases
Reg 184 Complaints without merit, complainant may be subject to discipline in terms of
Article 56
Reg 185 185.1 Members of church assembly are obliged to bring negative rumours to the
attention of church assembly . In doing so they don't lose the right to consider the
merits of same.
185.2 On negative rumours being raised the assembly should determine if there is
sufficient cause to investigate further.
185.3 layestigatiQ □s are tQ ta~e Ql;;:11:;e in terms of Reg 195
185.4 The circuit should appoint a commission of inquiry which are not the circuit
commission, to gather evidence and determine if there are sufficient cause to
warrant a complaint. If such cause exists, one of the commission members should
act as complainant and IQdge a cQmQlaint -R~9.2Q1
185.5 If the circuit is not sitting, the chairperson of the circuit should request the
circuit commission to appoint aforesaid commission, or if he is involved the scribe
should do so.
Rea 186 Withdrawal of complaint only with permission from church assembly and accused
Reg 187 If accused is to appear before assembly, he needs to be provided with the written
comolaint -Rea. 195 & 203.2
Rec:i 188 Accused to aooear in oerson before assembly
Reg 189 Failure of accused to appear, he must be called upon a send time and matter
determined
Rea 190 Church assemblv must summons witnesses hear their evidence
Reg 191 Evidence mav be taken under oath
Reg 192 Outcomes or verdicts of a church assembly must state the grounds and the article
nf the chi irch nrrtP.r as well as the Provision of the reaulation reliP.rl on
Reg 193 In serious matter and where legal action are threatened, the permanent law
committee mav be enqaqed to avoid costs -Reg.129
Reg 194 All congregation members are subject to discipline, except those mentioned in
Art.54.3
Reg 195 If a written complaint is handed to the Chairperson of the church council, the church
council should investiaate throuah a commission of elders -ReQ. 185
Reg 196 If the church council is of the view that the complaint has merit, the parties involved
need to be informed, parties be heard and the matter needs to be adjudicated in
terms of Reg. 192
Reg 197 The full of the outcome or judgment needs to be noted and made known to the
accused as well as a written copy if so requested
Reg 198 The minister of the Word may if the church council is not able to meet, deny the
accused the use of sacraments and report to the church council
Reg 199 199.1 If there is giss~ti~f2ction in the congregation, in the absence of a sQecific
complaint against a Minister of the Word, which is fatal to the spiritual interest of the
congregation , the chyrch coyncil myst restore tbe Qeace i□ t~rms of Reg 194. With
consent of the concerned parties, it may call upon help or support from a consultant
or two pastors.
199.2 If two-thirds of the congregation hand in complaints originally undersigned,
to the scribe of the circuit, the circyit CQmmission must attempt to address the
concern.
199.3 In the event that the church council does not act as per 199.1 above, the
circuit commission o□ instryctio □ of tbe circuit Qbairnerson must restore peace.
199.4 If necessary , the circuit commission should request the circuit Chairperson
to call an extra-ordinary meeting to finalise the matter.
199.5 If negotiations fail, the circuit may take steps to break the bonds between the
minster of the Word and the congrega tion in terms of Art 10, and also hand over a
Deed of demission (Deed no 5).
25
199.6 All parties have the right to appeal to the synod, who will make final
determination .
Reg 200 The circuit has the following competency :
200.1 oversight and discipline over persons per Art 54.3
200.2 attend to church disputes nl. conflict in the church council meetings between
church council and conr:ireoants and other matter within their Power
Reg 201 Comolaints against office bearers (Art 54.3), include ministers of the Word, in
respect of their teachings , conduct and ministry, must be submitted in writing to the
Chairperson of the circuit with reference to nature, time and place excluding in re
Persons listed in Art 5.5.4
Reg 202 Chairperson of the circuit submits these documents to the chairperson of the circuit
commission to investigate. In his absence to the Scriba -Rea 177.2
Reg 203 Chairperson of the circuit commission :
302.1 calls for a ring commission meeting advising of the complaint
302.2 he gives notice to the accused and copy of complaint -Reg 188
302.3 calls accused and complainant up with 3 weeks' notice before a circuit
commissioner meeting, to appear with their witnesses for purpose of investigation
of the comolaint.
Reg 204 At enquiry referred to in Reg 203 the complainant and accused are required to be
present and should be given the opportunity to give evidence, call witnesses, be
cross-examined and Put their cases fullv.
Reg 205 If matters are of a serious or sensational nature, and the commission is of the view
that the complaint has merit, the commission is empowered to suspend the accused
pending the final determination. Immediate notice needs to be given to church
council chairperson of circuit and should speedily call a circuit meetino.
Reg 206 The circuit commission must give a full report to the circuit with. all the relevant
documents , the circuit reserves the right to call for the parties to appear and hear
further evidence, to determine the matter and give judgment. The members of the
circuit commission retain their riaht to be Part of the circuit.
Reg 207 Circuit must immediately provide written notification of the verdict to the parties
involved (as per Reg 192) and, upon request, also supply a copy of the verdict.
Ecclesiastical disputes
Reg 208 Complaints must be submitted in writing, signed by the complainant, and handed
to the chairperson of the circuit. The documents will then be handed over to the
chairperson of the circuit commission.
Reg 209 The circuit commission should handle the matter via correspondence, if possible. If
the commission is unable to resolve the issue this way or decides to investigate the
matter further, it, along with the circuit assembly , must proceed as prescribed in
ReQ 202 and the following.
Art 56 When disciplinary measures are implemented, the following are applied, depending
on the assembly exercising the discipline:
56.3 Ministers of the Word (Pastors and Evangelists):
56.3.1 A reprimand delivered either within or outside the circuit assembly.
56.3.2 Censure until there is evidence of genuine repentance. Such censure can
only follow suspension from duties by the circuit. This suspension may occur with
or without loss of livelihood and with or without the administration of the sacraments.
56.3.3 Dismissal from duties by: the Regional Sy:nod uQon the recommendation of
the circuit. For probationary ministers, this includes the nullification of their
certificate of ordination. For evangelists, it includes the nullification of their
evangelist certification.
56.4 In cases of serious misconduct by office bearers, the circuit has the right to
immediatel y: suspend such office bearers with the intention of conducting a
thorow:ih investii::iation and resolvinQ the matter promptly.
Reg 210 Minister of the Word's liability towards costs if found guilty and suspended from
service
26
Reg 211 Dismissal or suspension with the loss of livelihood immediately results in the
minister losing all income associated with his position, as well as any rights to free
housing.
Art57 57.1 Every accused person who feels aggrieved by the verdict of a church council
has the right to appeal to the next higher council, namely the circuit and Regional
Synod.
57.2 In disciplinary matters affecting the doctrine of the church, both the
complainant and the accused, regardless of acquittal or conviction , have the right
to appeal to the General Synod.
Reg 212 212. 1 Anyone wishing to lodge an appeal must, within 21 days after the judgment
of a church assembly, give written notice of their intention.
212.2 The chairperson of the relevant church assembly must provide the appellant
with a copy of the judgment and immediately inform the opposing party of the
aooeal.
Reg 213 Every church assembly that dealt with a case being appealed must, upon request
by the higher assembly , send certified copies of all documents related to the case.
If necessary, they must also provide additional motivation for the basis of their
ludgment.
Reg 214 The party lodging the appeal must do so within thirty days of the outcome to the
higher assembly; otherwise they lose their right to appeal
Reg 215 In the case of the circuit, the appellant must submit the following documents
To the chairperson of the circuit or in their absence, the circuit's scribe, and in the
case of the Regional Synod to the scribe of the Regional Synod:
A copy of the judgment from the relevant church assembly.
A copy of the reasons for the appeal against the judgment.
All evidence that the aPoellant believes supports their case.
Reg 216 The circuit chairperson submits copies of the documents mentioned in Reg 215 to
the church council for response. They must submit their response in writing to the
circuit, which will then send the reply to the appellant. The circuit will then handle
the matter takina into account Rea 206 and deliver a verdict (as per Req 213)
Reg 217 If the scribe of the Regional Synod receives a request for an appeal (as per Reg
215), they must obtain certified copies of all relevant documents from the circuit's
scribe. The request for an appeal must then be added to the agenda of the synod
or svnodical committee.
Reg 218 Interested parties are free to present their case further in writing to the relevant
church meeting or svnodical committee.
Reg 219 Synod commission to place all the documents in the hand of the temporary legal
commission for investigation and report and then gives a verdict on the case
Reo 220 Aooellant is bound bv lower decision oendinq hiqher aooeal
Art 58 LiftinQ of sanction
Reg 221 Process for lifting of sanction
(own emphasis)
[100] In consideration of the facts of this matter and the application of the
provisions of the Church Order as summarized above, the procedures for addressing
concerns involving a Minister of the Word may be categorized into three distinct types
of complaints and corresponding procedures: 1) negative rumours, 2) general
dissatisfaction within the congregation without a specific formal complaint, and 3)
formal complaints against a Minister of the Word concerning teachings , conduct, and
ministry.
[101] Each of these categories will be addressed in turn. With regard to a complaint
against a Minister of the Word concerning his teachings, conduct, or ministry,
Reguiation 201 requires that such a complaint be made in writing and submitted to
the Chairperson of the relevant circuit. In the present case, this would mean that the
written complaint should have been submitted to the Chairperson of the Ladybrand
Circuit.
[102] The Respondents assert that various complaints have been received since
2014 from church council members and the congregation, directed against the
Applicant. However, the record provided does not contain any written complaint, as
required by Regulation 201, that was submitted to the Chairperson of the Ladybrand
Circuit, or to any other authority. Had such a complaint been submitted, the
procedures set out in Regulatio ns 202 to 207 would have applied.
[103] The minutes of the Commission of Inquiry, dated 5 October 2019, indicate
that the entire meeting was devoted to complaints and objections regarding the
Applicant's teachings and conduct. However, none of these complaints were
recorded in writing, nor does the record reflect any written complaints. In
circumstances where the complaints, according to the Respondents , were raised
either since 2014 or during the meeting of 5 October 2019, and were not submitted
in writing, two possible processes could have been followed. The complaints could
have been addressed in accordance with either Regulation 185 or Regulation 199.
[104] In terms of Regulation 185, the Ladybrand Circuit would have been required
to appoint a Commission of Inquiry to gather evidence and determine whether there
was sufficient cause to justify a complaint. If such grounds existed, one of the
members of the Commission of Inquiry would have been required to act as the
~omplainant and submit a written complaint in accordance with Regulation 201.
However, as in the case outlined above, no such written complaint appears on
record.
[105] That leaves Regulation 199. Regulation 199 addresses situations where
there is dissatisfaction within the congregation, in the absence of a specific complaint
against a Minister of the Word, which threatens the spiritual well-being of the
congregation. The prescribed process for addressing such a situation requires the
Church Council to restore peace in accordance with Regulations 199.1 and 199.2. If
the Church Council fails to act as mandated under Regulation 199.1, the Circuit 27
Commission, on the instruction of the Circuit Chairperson, must take steps to restore
peace. Should these efforts fail, the Circuit may then take steps to dissolve the bond
between the Minister of the Word and the congregation in terms of Article 10.
[106] Considering the facts of this matter and the events as presented by the
Respondents , it appears that the Applicant's release was, at least in part, based on
Regulation 199, as it is the only disciplinary provision in terms of which a release
under Article 10 is authorised. However, Regulation 199 must not be interpreted in
isolation, but rather in conjunction with the remaining provisions of CHAPTER VI:
CHURCH OVERSIGHT AND DISCIPLINE.
[107] In this regard, Article 50 expressly provides that oversight and discipline shall
be exercised in accordance with the Church Order. Article 52 prohibits the imposition
of any disciplinary action until a complaint has been properly investigated and the
individual concerned has been given an adequate opportunity to defend themselves .
Furthermore, Article 54 specifies that the discipline of an office bearer falls within the
jurisdiction of the relevant circuit.
[108] In accordance with Articles 18.3 and 19 of CHAPTER IV: ASSEMBLIES OF
THE CHURCH , and Regulations 77 and 78 thereunder , the Church Order establishes
a hierarchical structure as dealt with earlier in this judgment. Consequently , no matter
may be brought before a higher assembly that should have first been addressed by
a lower assembly , except in cases of urgent necessity concerning matters of teaching
and discipline, and only after notifying the relevant lower assembly . Each assembly
is responsible for regulating its operations within the scope of its competence ,
ensuring that it does not address matters that fall exclusively within the competence
of another assembly.
[109] It was therefore incumbent upon the Ladybrand Circuit to address the
complaints against the Applicant in accordance with Regulation 199 and taking into
account the prohibition in Article 52. The Regional Synod could only have intervened
and acted under Regulation 199 by virtue of Regulation 77, which authorizes the
Regional Synod to do so in instances of urgent necessity concerning matters of
teaching and discipline. The Regional Synod has not asserted that this is such a case
and that in acting as they did they rely on Regulation 77. 28
[11 0] According to the Regional Synod's version, it became involved at the request
of the Applicant to resolve the dispute between the Church Council and members of
the congregation by establishing a Commission of Inquiry. The establishment of such
a commission is governed solely by Regulation 185, the procedural requirements of
which were not followed as stipulated in Regulation 185 in conjunction with
Regulation 195 and on the strength of Regulation 77. The Regional Synod further
asserts that it appointed a Justice Commission , which was tasked with resolving the
dispute between the Applicant, the Bloemfontein Circuit, and the Ladybrand Circuit,
again without placing any reliance on Regulation 77.
[111] Although Regulation 193 provides for the involvement of the permanent
Justice Commission, the scope of its function is limited as outlined in Regulation 129.
Notwithstanding the fact that Regulation 129 only provides for the commission to
provide legal advice to the Church Council, in the present circumstances, and
applying a generous interpretation to Regulation 129, the permanent Justice
commission could, at most, offer legal advice to the Regional Synod and/or the
Circuit.
(112] The Respondents, as a side, contend that the Ladybrand Circuit ceased to
exist from 24 September 2021 until 15 April 2023, following a resolution by the
Regional Synod on 24 September 2021, or alternatively on 12 February 2020, to
merge the Ladybrand Circuit with the Bloemfontein Circuit. However, the Ladybrand
Circuit was in existence when the complaints against the Applicant were initiated in
2014 and when the Commission of Inquiry convened on 5 October 2019. Accordingly,
the Ladybrand Circuit was the appropriate body to take action under Regulation 199.
Alternatively, should it be accepted that the Ladybrand Circuit did not exist during the
period in which such action was required, the Bloemfontein Circuit would have been
obligated to act in accordance with Regulation 199. For the Regional Synod to have
assumed the function as outlined in Regulation 199, it was required to do so by relying
on Regulation 77.
[113] Applying the principle of parity of reason, the same rationale would apply to
determining which assembly is competent to make a decision regarding the release
of the Applicant under Article 10.
[114] Even if the above interpretation is deemed incorrect and upon a conspectus
of all the relevant facts, the procedure followed by the Regional Synod, as well as the 29
subsequent decision by the Regional Synod and/or the Bloemfontein Circuit and
Ladybrand Circuit to release the Applicant under Article.10, breaches the principles
of natural justice and Article 52 of the Church Order. Although the Applicant was
present at the hearings of the Justice Commission and the Commission of Inquiry,
he was not given the opportunity to be heard. Differently put, the audi alteram partem
principle was not observed prior to the decision to release him from service. Said
decision be it taken by the Regional Synod, Ladybrand Circuit or Bloemfontein Circuit
stands to be reviewed and set aside.
[115] Both parties seek cost against each other. The Applicant does so on a party
and party basis, scale C and the Respondents seek an undefined punitive costs
order. I find that there is no reason that the general principles that costs should follow
the event, should not find application. As to the applicable scale, scale B is
appropriate in the circumstances of the matter.
[116] Consequently, the following order is made:
1. The First Respondent's decision to appoint a Commission of Inquiry is
reviewed and set aside.
2. The decision of the Second Respondent , alternatively the First-and/or
Third Respondent, alternatively First-to Third Respondents jointly, to
release the Applicant from the Thaba Nchu congregation in terms of
Article 1 O of the "Kerkorde en Bepalinge vir die Bestuur van die
Nederduitse Gereformeerde Kerk in Afrika -Oranje Vrystaaf' is
reviewed and set aside.
3. The First-to Third Respondents are ordered to pay the costs of this
application, jointly and severally, the one to pay the other to be
absolved, which costs to include the costs of counsel on Scale B. 30
Appearances:
For the Applicant:
Instructed by:
For the Respondents:
Instructed by: ADV LBJ MOENG I. VAN RHYN
Judge of the High Court
KRAMER WEIHMANN ATTORNEYS
nortje@kwinc.co.za
ADV GS JANSE VAN RENSBURG
DU RANDT & LOUW INC
C/0 ROSENDORFF REITZ BARRY
liza@rosendorff.co.za 31