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IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between
HOLY SPIRIT APOSTOLIC CHURCH
MALEFETSANE PETRUS MASHININI
And
HOLY ANGELS APOSTOLIC CHURCH
SAMSON MAZIKIZELA MKWANAZI
REGISTRAR OF DEEDS, BLOEMFONTEIN
Not reportable / Reportable
Case no: 3572/2023
FIRST APPLICANT
SECOND APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
Neutral citation: Holy Spirit Apostolic Church and Another v Holy Angels Apostolic
Church and Others (3572/2023) [2026] ZAFSHC 109 (20 March 2026)
Coram: NAIDOO J
Heard: 24 July 2025
Delivered: This judgment was handed down electronically by circulation to the parties'
representatives by email and released to SAFLII. The date and time for hand-down is
deemed to be 11 h00 on 20 March 2026.
Summary: Application to declare administrative action invalid - Promotion of
Administrative Justice Act 3 of 2000 and Uniform Rules make provision for challenging
administrative action - application for a declaratory order not the appropriate
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procedure - review proceedings should have been instituted.
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ORDER
The application is dismissed with costs, such costs to include the costs of counsel on
Scale B
JUDGMENT
Naidoo J
[1] The applicants seek a declaratory order, coupled with an order for the return of
certain movable property. The first and second respondents opposed the application,
while the third respondent did not oppose the application and played no part in these
proceedings. This is a dispute arising from two groups laying claim to church premises,
which each claims that it is entitled to. The applicants are the Holy Spirit Apostolic Church
(Holy Spirit or first applicant), and Malefatsane Petrus Mashinini (Mr Mashinini or the
second applicant) while the respondents are the Holy Angels Apostolic Church (Holy
Angels or first respondent) and Samson Mazikizela Mkwanazi (Mr Mkwanazi or second
respondent). Mr Mashinini and Mkwanazi are clearly part of the controlling minds behind
the first applicant and the second respondent respectively.
[2] The applicants sought, in effect, the following relief:
a) The court exercises its discretionary powers and issues a declaratory order in terms of
section 21 (1 )(c) of the Superior Courts Act 10 of 2013 as follows:
b) Declare invalid the insertion of 'Holy Angels Apostolic Church' in the Deed of Transfer
dated and signed on 21 January 2021, such insertion being endorsed in the Deed of
Transfer on 29 June 2021 by the Registrar of Deeds, Bloemfontein;
c) Declare the immovable property described as Erf 4621 Zamdela District, Sasolburg,
Free State Province, in extent 1546 (One Thousand Five Hundred and Forty Six Square
Metres) as indicated on General Plan L21/1986, and held by Certificate of Registered
Title T1780/1996 to be the exclusive property of the Holy Spirit Apostolic Church,
d) Order and declare that all movable properties in the possession of the first and second
respondents be returned and restored back to the second applicant on behalf of the
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leadership of the first applicant.
[3] The applicants' version is that Holy Spirit was established in 1940, by Archbishop
Jacob J Mashinini, who was appointed to lead the church. Archbishop Mashinini's son,
Jonas S Mashinini was appointed to lead the church after his father passed. When the
latter passed in 2018, his wife referred, to as Lady-Archbishop Grace Mashinini, took over
and led the church, together with a number of bishops, one of whom was the second
respondent, Mr Mkwanazi. The applicants allege that Mr Mkwanazi was unhappy with the
leadership of the Lady Archbishop and decided to leave the church. He then formed his
own church, being the second respondent, Holy Angels. The first applicant, Holy Spirit,
has a constitution which guides its processes. The applicants rely particularly on clause
37.12 of the constitution, which provides that 'All Church sides (sic), building, furniture,
stationery, etc, shall be registered in the name of the Church and shall remain the property
of the Church'
[4] When Mr Mkwanazi left the first applicant to form Holy Angels, he caused Holy
Spirit's name to be changed on the title deed of the property on which the church stands,
to reflect the name of Holy Angels as the owner of the property. The applicants complain
that they did not consent to such a change, that they received no notification from Mr
Mkwanazi of the intention to effect this change. Mr Mkwanazi and the congregants of Holy
Angels occupy the church to the exclusion of Holy Spirit and its congregants, the latter of
whom now occupy a shack in the Sasolburg area to worship. They are also unable to use
the church's finances and resources. In spite of their attempts to resolve this matter
amicably, the respondents have rebuffed such attempts, leaving the applicants with no
choice but to approach this Court.
[5] The respondent's version is that Mr Mkwanazi was a member of Holy Spirit for
approximately fifty years, having risen in the ranks of the church leadership, until he was
approximately fifty years, having risen in the ranks of the church leadership, until he was
ordained as a bishop in 2014. He thereafter served on Holy Spirit's board for more than
twenty years when, according to him, he was 'unceremoniously terminated by the
Mashinini family on 27 February 2021 '. By virtue of his long tenure as a board member of
Holy Spirit, Mr Mkwanazi claims to have detailed knowledge of the history and internal
affairs of Holy Spirit. He alleges that the second applicant, Mr Mashinini, who is related
to Lady-Archbishop Grace Mashinini, was not a member of Holy Spirit until Mr Mkwanazi's
departure in 2021. Therefore, Mr Mashinini had no knowledge of Holy Spirit's pre-2021
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internal affairs, including its constitution, which was adopted in 2009, and the
amendments thereto over the years
[6] Mr Mkwanazi, the deponent to the answering affidavit, attached thereto a copy of
Holy Spirit's constitution which he alleges was adopted in 2009 (the 2009 constitution). I
mention that the original was drafted in Sesotho. An English translation thereof was
furnished to the court and the applicant's legal representatives. He alleged that in terms
of the 2009 constitution, the organizational structure of Holy Spirit consisted of the head
office of the church, situated in Heilbron, under the leadership of Archbishop JS Mashinini,
with three circuits, each under the control of a bishop. He was the bishop in charge of the
Viljoenskroon circuit. The circuits, he alleges, all had a level of independence where they
controlled their own finances, raised their own funds and were responsible for the
structure in which they worshipped. They received little or no assistance from head office
and were only responsible to head office for the contributions to certain operational
expenses. He further alleged that the local congregation raised some funds and he used
his personal funds to build the church. When he was expelled from Holy Spirit, the
congregation decided that he should start his own church, and so Holy Angels came into
being. Mr Mkhwanazi confirms that the name of the church was changed on the title deed,
by majority resolution of the congregation. This was accepted by the municipality and the
papers were prepared and forwarded to the Registrar of Deeds, who duly effected the
change in the name of the registered owner of the church from Holy Spirit to Holy Angels.
The respondents relied on clause 37.12 of the 2009 which reads 'All church sites,
buildings, furniture, other archives will be registered in the name of the church, again they
will remain the church equipment, only if there is proof that the Bishop head office assisted
will remain the church equipment, only if there is proof that the Bishop head office assisted
the circuit to apply for the site and signed the title deed document or monetary assistance
for the building of the church structure'. (My emphasis.)
[7] That is the background to this matter. The applicant tabulated certain issues, which
they argued this court had to adjudicate, namely:
a) whether the altering of the name of Holy Spirit to that of Holy Angels, without notice
to the former, is valid;
b) whether the second respondent, Mr Mkwanazi, breached a fiduciary duty entrusted
to him, in causing the title of immovable property belonging to Holy Spirit to be changed;
c) whether granting of the relief sought by the applicants is justified.
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[8] The respondents on, the other hand, argued that the applicants chose the wrong
legal remedy for declaratory relief in order to circumvent the binding requirements of
administrative law. The respondents, argued further that the court ought not to consider
the merits of this matter, particularly as the applicants conceded the existence of the 2009
constitution, which provides for conditional ownership of the church premises. In
accordance with clause 37.12 of the 2009 constitution, the respondents were entitled to
change the name on the title deed to reflect the name of the Holy Angels Apostolic
Church. The thrust of the respondents' argument was however that the application should
be dismissed, because the decision of the Registrar to record the change of name of the
title holder was an administrative act, which required the precepts of administrative law
to be followed. The applicants had not done so.
[9] I have set out the relief that the applicants seek in this matter. That, and the
applicants' exposition of what they allege are the issues for this Court to adjudicate reflect
a failure to appreciate that at the heart of the relief they seek is an administrative act that
is still valid and effective. In order for such an act or decision to be reviewed or set aside,
the requirements of the relevant statues and Rules of Court must be complied with. The
Promotion of Administrative Justice Act 3 of 2000 (PAJA), which gives effect to s 33(3) of
the Constitution of South Africa, comprehensively sets out the framework and the process
that must be followed in order to challenge administrative acts and decisions. Uniform
Rule 53 sets out the procedure, time frames and specific requirements to properly
prosecute an administrative challenge. The applicants chose to ignore this and proceed
by way of motion proceedings to obtain a declaratory order. While seeking declaratory
relief, in spite of the alternative of the statutorily mandated process, is not incompetent, it
will be relevant in determining whether the court will exercise its discretion in the
applicant's favour.
[1 O] The Supreme Court of Appeal (SCA) established, in Oudekraal Estates (Ply) Ltc/1
(Oudekraa~ the principle that an administrative act that is procedurally unfair does not,
as a result of such unfairness, become a nullity. It remains valid and effective unless and
until it is set aside by a court or other body with the necessary jurisdiction (the Oudekraal
principle ). The SCA also held (at para 26) that 'Until the Administrator's approval (and
thus also the consequences of the approval) is set aside by a court in proceedings for
1 Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222 (SCA).
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judicial review it exists in fact and it has legal consequences that cannot simply be
overlooked', confirming that a judicial review is the procedure to be followed when an
administrative act is challenged. In Oudekraal the Administrator granted permission for
the establishment of a township, which permission, the court found to have been unlawful
and invalid from the outset. Oudekraal has since been followed in a long line of cases,
which confirm the principle established in that case. The Constitutional Court has also
emphasized that declaratory proceedings are not appropriate for the setting aside of
administrative decisions, but that review proceedings would be more suitable. The
Constitutional Court emphasized that a declaratory order that an administrative act is
unlawful is inappropriate as it would give little regard to settled principles applicable to the
review of administrative action2
[11] The third respondent in this matter adopted a totally supine attitude, in that he did
not oppose the matter or file a notice to abide by the court's decision, as is the practice if
he does not oppose the application. The Registrar is a public official who acts in terms of
the Deeds Registries Act 47 of 1937. In this matter, his endorsement of the change of
name on the title deed of the property is an administrative act, subject to the administrative
law principles relating to review. The provisions of s 93 of the Deeds Registries Act are
relevant:
'93 Registration of change of name
(1) If any person or partnership whose name a·ppears in any registered deed or other document
has changed his or its name, the registrar shall, upon written application by that person or
partnership accompanied by proof of the change of name, and if he is satisfied that no change of
legal personality is implied in such change of name, endorse on the said deed or other document
that the name of the person or partnership has been changed to the name stated in the
application: Provided that-
application: Provided that-
(a) if it appears from such deed or other document that any other person is affected by such
change of name, such other person shall (save for the registration of a change of name of a
company or close corporation) consent in writing to the aforesaid endorsement;
(b) the application shall (save for the registration of a change of name of a company or close
corporation) be accompanied by any other operative deed registered in the same registry in which
the applicant's old name appears as a party thereto other than as transferor or cedent'.
[12] It would have been proper for the Registrar to have delivered a report detailing the
reasons for his decision. It is clear that any person (in this case Holy Spirit) who is affected
2 Swart v Starbuck and Others [2017] ZACC 23; 2017 (5) SA 370 (CC) para 32.
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by the name change is required to give consent to such change. Holy Spirit is adamant
that it did not give such consent, which in my view ought to have triggered a response
from the Registrar, who is cited as a party to these proceedings. At the very least, I would
have expected Holy Spirit to have obtained the report from the Registrar. As things stand,
no evidence or documentation has been put before this Court to support the applicants'
contention that the Registrar's action was invalid. This would also bear upon the second
leg of the relief they seek, namely to declare that the immovable property is the exclusive
property of Holy Spirit. The underlined portion of clause 37 .12 cited in para 6 above also
indicates a material difference between the constitution attached to the founding affidavit
and the 2009 constitution put up by the respondents, fortifying the findings of this Court
that the incorrect procedure was followed by the applicants. Similarly, the applicants have
failed to detail what movable property, in the possession of the respondents, belongs to
them, making it inappropriate for a court to issue an order in the broad and vague terms
sought in the third prayer in the notice of motion.
[13] The detailed legal framework, which I have mentioned earlier, designed to deal
with challenges to administrative action, have not been followed by the applicants. The
very purpose of such mechanisms is to provide a constitutional framework to protect
administrative finality and procedural fairness. The applicants have clearly failed to
timeously engage the machinery of PAJA and the Rules of Court, and seek
inappropriately, in my view, to obtain a declaratory order , which would have the effect of
circumventing the statutorily mandated procedures to challenge administrative acts. I am
consequently of the view that the applicants have failed to make out a case for the relief
they seek and the application must fail. With regard to costs, the respondents have asked
they seek and the application must fail. With regard to costs, the respondents have asked
for costs, such costs to include costs of counsel on Scale B. I do not see a bar to granting
such an order.
[14] In the circumstances, I make the following order:
The application is dismissed with costs, such costs to include the costs of counsel on
Scale B
S NAIDOO
JUDGE OF THE HIGH COURT
Appearances
For the Applicant:
Instructed by:
For the 1st & 2nd Respondents:
Instructed by:
Adv (Ms) N Khumalo
Maoba Attorneys Inc
Pretoria West
c/o Hanlie Fourie Attorneys
9 Bombart Street
Westdene
Bloemfontein
Adv LB Moeng
Dippenaar & Crous Attorneys
68B Kellner Street
Westdene
Bloemfontein
(Ref: GN Strauss)
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