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2026
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[2026] ZAGPJHC 359
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Pheko and Others v Maduna and Others (2023/116557) [2026] ZAGPJHC 359 (14 March 2026)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case Number: 2023-116557
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
In
the matter between:
PHEKO
MPHO,
JOHN
First Applicant
HLAKOTSA,
TUMAKA RAYMOND
Second Applicant
MOLOI,
THABO KOOS MOKOENA, NTELE NICODEMUS
Third Applicant
SHABANGU,MOKONE
PAUL
Fourth Applicant
and
MADUNA,
EDWARD EPHRAIM
First respondent
CINDI,
PETROS
MOKETE
Second Respondent
MALEKA,
JONAS MOSEBETSI
Third Respondent
SWARTBOOI,
NTLELI GABRIEL
Fourth Respondent
AFRICAN
PRESBYTERIAN
BAFOLISI
CHURCH
OF SOUTHERN AFRICA NPC
Fifth Respondent
THE
COMPANIES AND INTELLECTUAL
PROPERTY
COMMISSION
Sixth Respondent
WENTZEL-THOMPSON
J
Introduction
[1]
This is an application brought by certain members of the African
Presbyterian Bafolisi Church of Southern Africa (“
the
Church
”), cited as the fifth respondent. The applicants
seek declaratory and interdictory relief arising from the alleged
unlawful
registration of the Church as a non-profit company (“
NPC
”)
with the Companies and Intellectual Property Commission (“
CIPC
”),
cited as the sixth respondent. The first, second, third and fourth
respondents are alleged to be directors of the NPC,
who I will refer
to for convenience simply as “
the respondents
”.
However, I point out at the outset that at the time that the
application was launched, Maduna was no longer a director
of the NPC.
[2]
The relief sought can be categorised as follows:
a.
Declaratory
relief
:
Declaring
the
registration of the Church as a NPC to be null and void
.
b.
Administrative
relief
:
Authorising the applicants to approach the
CIPC
to
de-register
and remove the Church as an NPC
.
c.
Governance relief
:
i.
Directing
that the
Constitution
of the church be used to elect a new leadership structure
.
ii.
Removing the respondents as directors of the NPC.
iii.
Ordering
the
respondents
to vacate their positions as directors of the Church
and directing the CIPC to remove their names as directors.
d.
Interdictory relief
: Interdicting the respondents from:
i.
occupying leadership or management positions in the Church;
ii.
using the resources, funds and facilities of the Church;
iii.
representing the Church at meetings or forums; and
iv.
acting as signatories to the Church’s bank accounts.
e.
Interim
Administrative Control
:
Granting the Church powers to
appoint
an interim leadership structure pending elections
.
f.
Ancillary
Relief
:
Directing the respondents to
return
the property belonging to the church
.
g.
Costs in the event of opposition.
[3]
Only Edward Ephraim Maduna (“
Maduna
”)
opposes the application.
Condonation
[4]
I note that the applicants insist that Maduna seek condonation for
the late filing of his answering affidavit. This was
a purely
technical point aimed at getting me to disregard Maduna’s
answering affidavit.
[5]
In any event, Maduna did in fact seek condonation in his answering
affidavit and it is overly technical to insist that
he bring a
separate application for condonation supported by a notice of motion.
There was no prejudice suffered by the applicants
as they have dealt
with all of the allegations made in the answering affidavit in their
replying affidavit. It is in the interests
of justice that I grant
condonation for the late filing of Maduna’s answering
affidavit.
Background
and pertinent facts preceding the current application
[6]
The Church was established in 1908 and operated as a voluntary
association serving Christian communities in several provinces
of
South Africa. The Church had historically operated as an
unincorporated voluntary association. The affairs of the church are
governed by its Constitution, which establishes a hierarchy of
governance structures, including the Presiding Bishop and other
office bearers. The Synod is the highest decision-making body within
the Church and its resolutions are binding upon the Church
and its
members.
[7]
Around the
early 2000s, the Church was headed by the late M. Moloi as its
presiding Bishop. As per its Constitution, there were
other office
bearers, for example, a Treasurer and a General Secretary, that
assisted the late M Moloi in the leadership of the
Church and in the
execution of its duties.
[8]
In and around
2010 internal conflicts and factional disputes arose within the ranks
of the Church and plans were set afoot to remove
the late Bishop from
his position. Amongst others, his advanced age and financial
mismanagement were cited as the main reasons
for the discontentment.
Following the removal of the late Moloi from his position as Bishop,
the internal conflicts, factional disputes and leadership
contests
intensified and it appears that splinter groups developed, with the
applicants on the one side and the respondents on
the other, although
this appears to be a little more complicated as will appear below in
this judgment.
[9]
In 2015, the Church was registered with the CIPC as a NPC under the
Companies Act 71 of 2008 (“
the Act
”). The
applicants contend that this registration took place without a
resolution from the Synod authorising the conversion
of the church
into a NPC as prescribed in the Church’s Constitution. In
addition, the respondents registered themselves
as directors of
the NPC without proper authority from the Synod.
[10]
Moreover, the applicants complain that the respondents changed the
principal place of business of the Church from Bethlehem
to
Wesselsbron without authority. The applicants complain further that
the respondents placed the church under onerous company
law
governance provisions without proper approval of the Synod, obliging
the Church to incur costs to ensure compliance and placing
the Church
at risk of incurring penalties in the event of non-compliance.
[11]
The applicants state that the respondents in fact failed to comply
with the prescribed governance provisions set out
in the Act in that
they:
a. failed to adopt
a Memorandum of Incorporation (“
MOI
”);
b. failed to file
the required annual financial statements and reports; and
c. acted in their
own interests rather than the interests of the church.
[12]
During 2018, Maduna was removed as a director of the NPC. Maduna
argues that his name was fraudulently removed from the
register of
directors held by the CIPC and replaced with that of Shadrack Nkomo
Moloi (“
Moloi
”), not the third applicant in these
proceedings with the same surname. Maduna insists that the applicants
were aware of his
allegedly fraudulent removal as a director of the
NPC and in fact encouraged him to report the matter to the police. In
view of
this, Maduna contends that he ought properly not to be joined
to these proceedings and Moloi should have been joined in his stead.
[13]
Maduna concedes that, following his removal as a director of the NPC,
he has headed up a Church under the name “
the African
Presbyterian Bafolisi Church of Southern Africa
”, the
precise name of the Church that is the subject matter of this
application. Maduna denies that this is the
NPC with the same
name as the entity he now trades under is a voluntary association.
Maduna now appears to argue that the business
of the Church when it
was a voluntary association was not transferred to the NPC following
its incorporation and thus denies that
the NPC replaced the entity
through which the Church traded as a voluntary association. Maduna
thus now disputes that the voluntary
association formed in 1908
ceased to exist in law following the incorporation of the Church as
an NPC and contends that it continues
to trade as the Church, now
under his leadership.
[14]
This is contrary to the stance take in pending proceedings in the
Bloemfontein High Court under case no 2341/2022, which
I requested be
uploaded. In these proceedings, Moloi is the deponent to the founding
affidavit and the second applicant, Tumaka
Raymond Hlakotsa
(“
Hlakotsa
”) is the deponent to the respondents’
answering affidavit. Maduna and the current applicants are all cited
as respondents
in those proceedings, amongst other respondents, and
aligned themselves with the contents of the answering affidavit and
counter-claim
brought against Moloi and the other applicants. For
convenience I will refer to this matter as the “
Bloemfontein
proceedings
.”
[15]
In the Bloemfontein proceedings, Moloi alleged that the respondents,
who had been expelled from the Church, had hijacked
the Church’s
premises owned by the Church at various sites around the country and
masqueraded, not only as members of the
Church, but also as part of
the leadership of the Church. Moloi sought interdictory relief
against the respondents from alleging
they were members of the
Church, that they were part of the leadership of the church, from
conducting Church services from property
owned by the Church and from
utilising any property belonging to the Church.
[16]
What is interesting is that in response to Moloi’s application,
Hlakotsa stated in his answering affidavit
that, following upon
the incorporation of the Church as a NPC, the voluntary association
ceased to exist, and with it, the Church’s
Constitution; he
thus insisted Moloi could no longer rely upon the Church’s
Constitution as the NPC now fell
to be governed as a
corporation in terms of its MOI. In the counterclaim, relief was
sought declaring Moloi’s nomination
and election as the Bishop
of the Church to be null and void and declaring Maduna’s
position as acting Bishop to be lawful
and constitutional until
elections could be held.
[17]
What is sought further in the counter-application is an order
declaring that the respondents/applicants in the counter-application
are the lawful and constitutional leadership of the Church and in
lawful possession of the properties registered in the Church’s
name. In addition, the respondent/applicants in the
counter-application sought an order, similar to that now sought by
the applicants
in the current proceedings, that the incorporation of
the Church as a NPC was unlawful and unconstitutional and should be
set aside.
This is an aspect I am called upon to decide, which is
indeed pending in the Bloemfontein proceedings, which is an aspect to
which
I will return in due course.
[18]
In the answering affidavit Hlakotza explained that Maduna had been
elected Bishop at the Synod meeting held in December
2013 for a
period of 5 years. It was argued that the elections held in 2018
electing Moloi as Bishop were unlawful and should be
set aside. On 9
September 2017, a vote of no confidence had been brought against the
then Bishop, Nteleli Gabriel Swartbooi (“
Swartbooi
”),
who is the fourth respondent in the current proceedings. This vote of
no confidence was apparently not challenged by Swartbooi.
Following
Swarbooi’s removal as Bishop, Maduna was appointed as acting
Bishop until elections could be held in December
2018.
[19]
It must be mentioned that in the answering affidavit Hlakotsa refers
to the fraudulent removal of Maduna as a director
of the NPC by
Moloi in respect of which a fraud case is pending. At this stage,
therefore, Maduna was firmly in the camp
of the respondents in
the Bloemfontein proceedings.
[20]
It is also of some significance that in paragraph 67-69 of the
answering affidavit Hlakotza argued that on the registration
of the
Church as an NPC, the Church as a voluntary association ceased to
exist in law and in fact. So, it was argued, on registration
with the
CIPC as a NPC, the Church effectively developed into the NPC and the
Church as a voluntary association and had no concurrent
existence.
Accordingly, so the argument went, in so far as Moloi and the other
applicants sought to rely on the Constitution of
the voluntary
association to justify their actions, such justification and reliance
had no merit at all. This, of course is contrary
to the stance taken
in the present proceedings. This was a position that Maduna
aligned himself with in the Bloemfontein
proceedings.
[21]
Maduna argues in these proceedings that the question as to who
controls the Church and the legal status of the voluntary
association
is an issue pending in the Bloemfontein proceedings; he thus pleads
lis pendens
in these proceedings. However, what he says in
these proceedings is contrary to the position taken by the
respondents, including
, Maduna in the Bloemfontein proceedings that
on incorporation of the NPC, the Church as a voluntary association
ceased to exist.
[22]
In the current proceedings, Maduna states in paragraph 4.1 of his
answering affidavit that:
“
4.1 From the
outset I wish to state that the Applicants are not approaching the
Honourable Court with clean hands. This I say because
I am not a
director of the Fifth Respondent and I find it very strange that the
Applicants have cited me in their application as
a director and
member of the Fifth Respondent when they are well aware that I was
fraudulently removed as a director during 2018.
I reiterate that the
Applicants have provided this Honourable Court with outdated records
of the Sixth Respondent when they have
full knowledge that I was
fraudulently removed as a director and that Shadrack [Moloi] was
appointed in my place as director of
the Fifth Respondent. The
Applicants together with my congregation had encouraged me to lodge a
complaint with the Sixth Respondent
and to open a criminal case of
fraud and forgery with the South African Police. The Applicants are
also aware that I have since
my removal never conducted any business
in the name of the Fifth Respondent and that I have no business and
or dealings with the
Second, Third and Fourth Respondent. I am
currently conducted business/operating under the name of The African
Presbyterian Bafolisi
Church of South Africa (hereinafter referred to
as "The Church"), which is not the Fifth Respondent but a
voluntary association”
(emphasis added.)
[23]
At paragraph 4.3.5, goes on to explain that:
“
During 2015 that
the Fifth Respondent (hereinafter referred to as “The NPC")
was incorporated and registered with the
Sixth Respondent. At that
stage I was appointed as director with the Second, Third and fourth
respondents as directors. At that
Stage I was the Bishop with the
Fourth Respondent [Swartbooi] as the Presiding Bishop, the Second
Respondent [Petros Mokete Cindi
(“
Cindi
”)] as the
General Secretary and the Third Respondent [Jonas Mosebetsi Maleka
(“
Maleka
”)] as the Deputy General-Secretary. All
information relating to the incorporation of the NPC, I belief must
be in the possession
of either the Second, Third or Fourth
Respondent;”
[24]
Maduna then seeks to explain his change of stance in the current
proceedings in paragraph 4.3.6:
“
My
understanding of incorporating and registering of the NPC was that
the church as a voluntary association would cease to exist
and that
the NPC would become the church. This however were not achieved
because of infighting, squabbles, disunity and lawsuit
;”
[25]
He added to this explanation in paragraph 4.3.11:
“
Myself and the
applicants proceeded to operate under the name of the Church because
we believed that we are the legitimate church
and that Shadrack
together with the Second, Third and Fourth Respondents are part of a
splinter
group which had hijacked the NPC.
[26]
He went on to state in paragraph 4.3.12:
“
I need to
mention that myself, the First and Second Applicant together with
other members of the
church registered the church with the National
Register of
Independent Churches (hereinafter referred to as "NRIC")
and
was issued with a
registration certificate. We were later informed by NRIC
that they were
requested to remove the church from their register by
Shadrack.”
[27]
Maduna’s relationship with the applicants obviously went sour
when on 9 December 2023, they were expelled by the
Synod as members
of the Church. There is some confusion whether this occurred in 2017
but the confirmatory affidavit relied upon
to establish their
expulsion states that it occurred on 9 December 2023.
[28]
Maduna explained that during 2017, Hlakotsa tabled a vote of no
confidence against Swartbooi, following which Moloi,
Cindi and Maleka
were expelled from the Church. It was after they were expelled that
Moloi and the respondents in the current proceedings
set about
fraudulently removing him (Maduna) as a director of the NPC. It was
shortly after their having secured the removal of
Maduna as a
director during 2018 that Moloi et al instituted proceedings in
Bloemfontein under case no. 2140/2018 challenging
their
expulsion which was decided on 28 November 2019. These proceedings
are separate to the proceedings brought in Bloemfontein
under case
no. 2341/2022.
[29]
In those proceedings Moloi asserted his control over the NPC and
argued that he retained control of all property registered
in the
Church’s name as the voluntary association continued to exist
following the incorporation of the NPC and has since
then existed
alongside the NPC. He maintains that when incorporating the NPC it
was the intention to transfer the properties belonging
to the Church
to the NPC.
[30]
It would thus seem that both the legal status of the Church and the
ownership of the property owned by the Church is
indeed the subject
of the pending legal proceedings in Bloemfontein. Should I make an
order as now requested in these proceedings
that the registration of
the Church is null and void, removing Maduna (who has
established he is no longer a director of
the NPC), Cindi, Maleka and
Swartbooi as directors of the NPC, and interdicting them from
occupying leadership positions in the
Church, using the resources and
funds of the Church, representing the Church and acting as
signatories on the Church’s bank
accounts, I will effectively
be sterilising the camp who maintain that the Church and its assets
now operate under the umbrella
of the NPC. The effect would be that
control over the Church and its assets would pass to the applicants.
[31]
This is precisely what Moloi seeks to achieve in the Bloemfontein
proceedings in which he seeks that the current applicants
and several
other respondents cease occupying and running services from the
Church’s various properties and misrepresenting
that they are
part of the leadership structures of the Church. This makes the
non-joinder of Moloi pertinent as he would clearly
have a direct and
substantial interest in these proceedings.
[32]
What is more, in the Bloemfontein proceedings the applicants have
themselves sought to declare the incorporation of the
Church as an
NPC invalid and unlawful for failure to obtain the requisite consent
of the Synod. This is precisely the declaratory
relief sought from me
in these proceedings raising the distinct possibility of conflicting
judgments.
[33]
Although Maduna is no longer a director of the NPC, he has clearly
opposed these proceedings as the interdictory relief
sought is not
tied to the relief sought against the directors of the NPC; what is
sought is that he and the extant directors be
interdicted from
occupying leadership or management positions in the Church, using the
resources, funds and facilities of the Church,
representing the
Church and meeting or forums and acting as signatories on the
Church’s bank accounts. As Maduna states
that he is
currently in command of the Church and trading through the voluntary
association, the aforementioned interdict would
preclude him from
continuing doing so.
[34]
It is readily apparent that there are three distinct factions seeking
control over the Church, the current applicants,
Moloi and Maduna,
all of which are playing out in the current proceedings and before
the court in Bloemfontein.
[35]
Should I grant the orders sought and it is found that the business of
the Church was never transferred to the NPC by
the Court in
Bloemfontein, this will render any interdictory relief granted
by me against the second, third and fourth respondents
to be entirely
academic.
[36]
Moreover, should I grant the interdictory relief sought, I will cut
the leadership position in the Church Maduna professes
to hold
beneath his knees, notwithstanding that he is no longer a director of
the NPC.
[37]
Should I grant the interim relief sought and direct that elections be
held to determine who should occupy leadership
positions in the
Church, with the applicants’ opponents out of the picture, it
can be assumed that the applicants will seek
to gain control over the
Church and its assets. As Moloi is a director of the NPC he would be
bound to relinquish his directorship
and would also be precluded from
holding any leadership positions in the Church, making it all the
more obvious that he should
properly have been joined to the current
proceedings. Although this would not preclude his continuing the
Bloemfontein proceedings
as he was a director of the NPC at the
launch of those proceedings, it would substantially weaken his
position in those proceedings.
[38]
What is patently obvious is playing out before me in these
proceedings is simply a power struggle between the three
aforementioned factions seeking to wrestle control over the Church
and has nothing to do with corporate governance. The Church was
incorporated as an NPC during 2015 and the applicants failed to
complain that no resolution authorising such incorporation was
obtained from the Synod. It is only now that this is raised because
Moloi ,on the one hand, and Maduna on the other, are seeking
to gain
or have gained control over the Church, its property and its assets.
[39]
Maduna argues that the current application is vindicative and serves
the sole purpose of disqualifying him from becoming a director
of any
company to be formed, it is assumed to continue the business of the
Church. He contends that the application is vexatious
in so far as it
concerns him.
[40]
The stance taken by Maduna in these proceedings is somewhat
contradictory as he was clearly instrumental in securing the
conversion of the voluntary association to a NPC in 2015 and his own
appointment as a director of the NPC. It would appear that
only
following his alleged fraudulent removal as a director, and
Moloi’s appointment in his stead, has he disputed
that the
business of the Church was indeed transferred to the NPC and now,
rather opportunistically, maintains that he has continued
to trade
under the name of the Church, which he now claims did not cease to
exist following the voluntary associations conversion
to a NPC as he
had claimed in the Bloemfontein proceedings.
[41]
Indeed, Maduna alleges that since his removal as a director of the
NPC he has operated under the name of the Church as
a voluntary
association, as it had done since it was founded in 1908. He states
that his church operates under the same Constitution
set out by the
applicants in their founding affidavit. It is not without
significance that following the removal of Maduna as a
director of
the NPC, the applicants were all expelled from the Church. He then
operated under the name and style of the Church
to their exclusion.
[42]
There is, however, a twist in the background facts preceding the
current application: Maduna states that the registration
of the NPC
with the CIPC was cancelled on 30 November 2020, whereafter it was
registered as a voluntary association again. If this
is true, it is
difficult to see the purpose of the current application and this is a
material dispute of fact that cannot resolved
on the facts before me.
I will deal with this later in my judgment, save to state at this
stage I have my reasons why in accordance
with the Plascon Evans Rule
I should not simply accept Maduna’s version on this, without
any supporting documentation.
[43]
Furthermore, although on 13 May 2015 the Church was registered as a
company, with the respondents all being directors
and shareholders of
the company, on 10 December 2020, the Church, which had been
registered on 30 January 2009 was removed from
the National Register
of Independent Churches. This is the year before the late Moloi was
removed as the Bishop of the Church.
The second applicant, Hlakotsa
was apparently aware of this.
[44]
The plot thickens, as on 28 February 2021, Hlakotsa wrote a letter to
the CIPC in which he sought to be heard regarding
the complaint
lodged by Maduna concerning his removal of as a director of the NPC.
He stated that at the time of the conversion
of the voluntary
association to an NPC, the members of the Church were assured that
they would be shareholders of the NPC. However,
it was pointed
out that the person mandated to attend to the incorporation of the
company (who was not identified)
failed to conclude a MOI.
[45]
Also in this letter, Hlakotza stated that on 9 and 10 December 2017,
Cindi, Maleka and Swartbooi were expelled as members
of the Church
and ought to have been removed as members of the NPC. After their
expulsion, it was stated in the letter that the
aforementioned
directors of the NPC then set about removing Maduna as a director of
the NPC. It was alleged in the letter that
the removal of Maduna as a
director of the NPC had been orchestrated by Moloi. At this time it
was stated, Moloi was about to launch
proceedings in the Bloemfontein
High Court under case no. 2140/2018 challenging his and the other
members’ expulsion. The
application in the aforementioned
matter was launched on 26 April 2016 and is the application under
case no. 2140/2018 mentioned
earlier in this judgment.
[46]
It is readily apparent to me that the true motive behind the present
application is to gain control over the Church and
ensure that it
does not operate as a NPC. This can be gleaned from the
definition of a NPC in the Act. There a NPC is defined
as:
"a
company
(a)
incorporated for a public benefit or other object as required by item
1
(1)
of Schedule 1; and
(b)
the income and property of
which
are
not
distributable to its incorporators, members, directors, officers or
persons related to any
of
them except to the
extent permitted by item 1 (3) of Schedule 1."
[47]
Item 1(3) of Schedule 1 provides:
“
The Memorandum
of Incorporation of a non-profit company must set out at least one
object of the company, and each such object must
be an object
relating to a cultural or social activity, communal or group
interests, or any other object not involving the carrying
on of
business for profit
.”
[48]
In essence,
therefore, item 1(3) reinforces the principle that
NPCs
exist to pursue public, communal, or social objectives rather than
commercial profit
.
It has become well-known that churches are good business and generate
large profits from the contributions of its members, often
distributed amongst the church’s controllers. For so long as
the Church remains a NPC, it is not permissible for the applicants’
faction or the faction operated by Maduna or Moloi to lawfully divert
the income of the Church to its controllers.
[49]
All the aforegoing facts and circumstances tend to support my view
that what is truly behind the current application
is not that which
is on the papers before me. What I am certain of is that the present
dispute is not about a genuine concern for
the governance of the NPC
but is all about money and the control over the leadership and assets
of the Church.
[50]
I turn now to deal with the
in limine
points raised by Maduna.
In
limine points raised by Maduna
[51]
Maduna has raised a number of issues
in limine
concerning
jurisdiction, mis-joiner and non-joinder,
locus standi,
authority and
lis pendens
. These are dealt with in turn.
a.
Jurisdiction
[52]
The first
in limine
point raised is that this Court
lacks jurisdiction because the principal place of business of the
Church is situated in Bethlehem
in the Free State.
[53]
This is
easily disposed of.
Section 21(1)
of the
Superior
Courts Act 10 of 2013
provides that a High Court has jurisdiction over all persons residing
or being within its area of jurisdiction. It is common cause
that
Maduna resides within the jurisdiction of the court; it is not
required that all the respondents reside within the court’s
jurisdiction.
[54]
Indeed, Maduna’s counsel did not pursue this point in argument.
b.
Non-joinder and misjoinder
[55]
Maduna disputes that he currently serves as a director of the NPC. He
alleges that, to the knowledge of the applicants,
he was removed as
director in 2018 and replaced by Moloi, who has not been joined in
these proceedings.
[56]
The test for non-joinder is whether a party has a direct and
substantial interest in the order sought.
[57]
This
principle was articulated by the Supreme Court of Appeal in
Amalgamated
Engineering Union v Minister of Labour
[1]
,
and
reaffirmed in
United
Watch and Diamond Co (Pty) Ltd v Disa Hotels Ltd.
[2]
A party with a
direct
and substantial interest in the order sought must be joined
.
[58]
Maduna
argues that the relief sought by the applicants directly concerns the
validity of the registration of the Church and the
authority of those
who purported to act as directors. Moreover, the relief sought by the
applicants includes the removal of directors
and the restructuring of
the governance of the Church. Such relief would directly affect the
rights of the current directors of
the company. The failure to join
Moloi thus constitutes a
material
non-joinder
.
[59]
Maduna states that in March 2024, the applicant’s attorney’s
attention was drawn to the non-joinder of Moloi,
yet no steps were
taken to join him.
[60]
I have already stated that I am of the view that Moloi should
properly be joined to these proceedings and that I ought
not to make
any order in these proceedings unless and until he has been joined.
[61]
On the other hand, Maduna insists that he ceased to be a director in
2018, when Moloi replaced him; and he has thus been
improperly joined
in these proceedings. Maduna submits that the applicants have
deliberately relied on outdated company records
evidencing him
as a director instead of Moloi and has attached updated company
records to prove this.
[62]
Maduna argues that Hlakosta’s letter dated 28 February 2023
referred to above demonstrates that at least as at
that date,
Hlakotsa was aware of the registration of the Church as an NPC and
that he had been removed as a director of the NPC.
This
notwithstanding, he has been cited as a respondent in the current
proceedings and interdictory relief has been sought against
him.
Maduna argues that as he is no longer a director of the NPC, no
interdictory relief can be sought against him.
[63]
It is my view that Maduna was joined to the proceedings by the
applicants, although they know full well that he is no
longer a
director of the NPC, because they know they will kill two birds with
one stone and deliberately framed the interdictory
relief sought in
the notice of motion broadly so that it would preclude Maduna
continuing to run the Church as he has clearly been
doing. They make
no mention of this in their papers at all and appear to seek relief
against Maduna based solely on the fact he
is a director of the NPC.
Indeed, the central issue in this application is whether the
incorporation of the Church as an NPC had
been authorised, with the
remaining relief sought flowing from a positive answer to this
question.
[64]
However, that does not mean that Maduna ought not to have been joined
to the proceedings. Of interest to Maduna is the
declaratory relief
sought declaring that the incorporation of the Church as a NPC was
ultra vires
the Constitution, invalid and should be set aside,
as it would appear that he was instrumental in converting the
voluntary association
into a NPC; this is particularly so as it is
alleged that this was done without the authority of the Synod. I thus
find that it
was appropriate that Maduna be joined to the current
proceedings but not that interdictory relief be sought against him as
he is
no longer a director of the NPC.
[65]
Should the applicants wish interdictory relief against him other than
as a director of the NPS, it was incumbent upon
them to establish a
basis for this, and at least a clear right to the relief sought.
c.
Locus Standi
[66]
The
requirements for
locus
standi
are the mirror of that for non-joinder and as articulated in
Goss
and Others v Venter,
[3]
and reaffirmed in
Wheel
Drive Accessories Distribution CC v Leshni Rattan NO,
[4]
and requires that the applicants must demonstrate a direct and
substantial interest in the subject matter of the litigation.
[67]
Maduna
contends that the applicants were expelled from the church following
internal disciplinary processes and therefore lack standing
to
challenge the governance of the church and to bring the current
proceedings. The applicants dispute this and maintain that they
remain members of the church and have a legitimate interest in its
governance. In this regard the applicants point out that their
expulsion has been challenged by them through the Church’s
authorised and mandated Judicial Committee which has not pursued
the
matter further against them.
[68]
Maduna argues that the applicants have not produced documentary
evidence establishing their current membership, notwithstanding
that
they bear the onus to demonstrate their standing. However, as the
validity of their alleged expulsion is disputed and
has been referred
to the Judicial Committee for reconsideration, and it is not disputed
that the applicants were members of the
Church prior to its
conversion to a NPC, I am satisfied that the applicants have
sufficient interest in the governance of the church
to confer
standing for the declaratory relief sought in prayer 1 of the notice
of motion. As the remaining relief flows as a necessary
consequence
of this relief, I find that the applicants have sufficient standing
to seek the relief sought in the notice of motion
against the
respondents, but not against Maduna.
[69]
Moreover, and perhaps more importantly, it appears from
Mbathane Peter Gaba’s confirmatory affidavit attached
to
Maduna’s answering affidavit that the applicants were expelled
at the sitting of the Synod on 9 December 2023. As the
current
proceedings were launched on 6 November 2023, the applicants had
locus standi
at the relevant time, being the date of
institution of proceedings and not the date of the hearing of the
proceedings.
[70]
I am thus satisfied that the applicants have
locus standi
to
bring the current proceedings.
d.
Authority
[71]
Maduna further contends that
the applicants lack
locus
standi
to
bring the present proceedings because they have not been authorised
by the Synod to bring the proceedings, nor is it likely
that they
could be so authorised as they are currently suspended from the
Church.
[72]
However, the applicants do
not purport to bring the current proceedings in the name of the
Church and bring the application as affected
members of the Church.
[73]
I thus dismiss this point
in
limine
.
e.
Lis Pendens
[74]
A plea of
lis
pendens
constitutes a dilatory defence aimed at preventing the duplication of
litigation and the possibility of conflicting judgments in
respect of
the same dispute. The requirements for the successful invocation of
the plea are well established in our law. The party
raising the
defence must demonstrate that the litigation in question involves
the
same parties (or their privies) litigating in the same capacities,
the same cause of action, and the same relief
,
and that the earlier proceedings are
still
pending before a competent court
.
These requirements correspond closely with those applicable to the
defence of
res
judicata
,
save that in the case of
lis
pendens
the earlier proceedings have not yet been finally determined.
[75]
The Supreme
Court of Appeal reaffirmed these principles in
Caesarstone
Sdot-Yam Ltd v World of Marble and Granite 2000 CC
,
[5]
where
it held that a plea of
lis
pendens
requires the existence of the
threefold
identity of parties, cause of action and relief
,
and emphasised that the doctrine serves to prevent a duplication of
proceedings and the risk of inconsistent judgments. Similar
observations were made in
National
Sorghum Breweries Ltd (t/a Vivo African Breweries) v International
Liquor Distributors (Pty) Ltd
,
[6]
where the court explained that the principles underlying
lis
pendens
and
res
judicata
are rooted in the need for finality in litigation and the avoidance
of a multiplicity of actions concerning the same subject matter.
[76]
Importantly,
even where the technical requirements for
lis
pendens
are satisfied, a court retains a
discretion
whether to uphold the plea. This discretion arises from the court’s
inherent power to regulate its own process and to ensure
that justice
is done between the parties. In
Loader
v Dursot Bros (Pty) Ltd
,
[7]
the court recognised that the doctrine is grounded in considerations
of equity, fairness and convenience, and that a court may
decline to
uphold the plea where the circumstances so warrant. Accordingly,
where the threefold identity between the two proceedings
is
established and the earlier matter remains pending before a competent
court, the later proceedings will ordinarily be stayed
or dismissed
unless the interests of justice indicate otherwise.
[77]
I propose to deal with the requirements for the defence of
lis
pendens
as follows:
a.
The same parties
[78]
In
principle, the plea of
lis
pendens
requires that the litigation be between the
same
parties
,
but the requirement is not applied with rigid formalism. The courts
have held that it is sufficient if the parties in the two
proceedings
are
substantially
the same or are litigating in respect of the same interests
,
even if they are not perfectly identical in number or description.
The decisive inquiry is whether the parties in the second matter
are
the same as, or in legal privity with, those in the earlier
proceedings, such that the determination of the pending matter
will
effectively dispose of the dispute between them.
[79]
The
requirement that the parties be the same must therefore be understood
in a
substantive
rather than purely formal sense
.
Thus, the presence of
additional
parties
in one set of proceedings will not necessarily defeat a plea of
lis
pendens
,
provided that the
core
dispute between the parties common to both proceedings is the same
and the earlier proceedings are capable of determining the issues
raised in the later action.
[80]
Although
the traditional formulation of the defence requires identity of
parties, cause of action and subject-matter, our law does
not apply
those requirements with mechanical rigidity. The true inquiry is
whether the two proceedings concern the same
lis
,
such that permitting both to continue would duplicate litigation and
create the risk of contradictory judgments. Thus, while the
defence
is classically expressed as requiring the same plaintiff to sue the
same defendant for the same thing arising from the
same cause, the
Supreme Court of Appeal has made it clear that, where the
circumstances justify it, the requirements are not to
be applied
formalistically, and that what is decisive is whether the central
issue is substantially the same in both matters and
whether the
parties are, in substance, the same for purposes of the dispute
before the court.
[8]
[81]
Applying these tests to the facts at hand it is clear that, although
the proceedings are not between the same parties,
at least Pheko,
Hlakotsa Mokoena are respondents in the Bloemfontein proceedings and
are parties to the counter-application brought
in those proceedings.
b.
Cause of action and relief sought
[82]
The main action in the Bloemfontein proceedings was brought by Moloi
in the name of the Church and the NPC. He sought
to preclude the
respondents from misrepresenting that they were members of the
Church, held leadership positions in the Church
and from conducting
Church services in the name of the Church from properties owned by
the Church. The cause of action was that
the Church operated as an
NPC under his control, after having been incorporated as such in
2015, and that splinter groups were
masquerading as the Church. The
relief sought by him was thus to regain control of the property of
the Church and make it clear
that he alone was Head of the Church and
its leadership.
[83]
Thus it is clear that the cause of action and relief sought by Moloi
in the Bloemfontein proceedings was in essence the
reverse of what
the applicants now seek in the current proceedings.
[84]
On the other hand, the cause of action and relief sought in the
present proceedings is substantially the same as in the
counterclaim
brought by the respondents in the Bloemfontein proceedings. In the
counter-claim the respondents seek to set aside
Moloi’s
appointment as Presiding Bishop by setting aside the nomination
process that took place on 1 July 2008 and the elections
held on 8
December 2018, after the removal of as a director of the NPC.
[85]
The interim relief sought is similar in both applications save that
whereas in the Bloemfontein proceedings, it was prayed
that be
appointed as the acting Bishop until elections could be held, in the
current proceedings it is sought that the Church
be given the power
to appoint an interim leadership structure pending elections.
[86]
However, the same relief is sought by the respondents in the
Bloemfontein proceedings as in the current proceedings in
so far as
they seek an order declaring that the incorporation and registration
of the Church as an NPC was unlawful and unconstitutional
and should
be set aside. This is the main relief sought in the current
proceedings and is the basis upon which the interdictory,
interim and
ancilliary relief is sought in the current proceedings. This relief
is predicated upon the invalidity of the incorporation
of the Church
as an NPC and the reversion of control over the Church and its
assets and properties to the voluntary association
through which it
had prior to its incorporation as an NPC conducted business.
[87]
The main dispute in these proceedings is thus in essence the same as
in the Bloemfontein proceedings.
[88]
Therefore, there is a possibility that any judgment which I may give
could potentially conflict with that ultimately
found by the Court in
the Bloemfontein proceedings.
[89]
I thus find that the plea of
lis pendens
is good in law and is
upheld.
[90]
I turn now to deal with the merits of the application and the grounds
upon which the declaratory relief is sought.
The
Merits of the declaratory relief sought
a.
The registration of the Church was ultra vires its constitution
[91]
The applicants’ case rests on the proposition that the
registration of the church as a company required authorisation
from
the Synod, being the highest governing body under the Church’s
Constitution.
[92]
Neither Maduna nor any of the remaining respondents have provided any
evidence of a Synod resolution authorising the
conversion of the
church into a company. In the absence of such evidence, the
applicants’ contention that the registration
occurred
ultra
vires
the Church’s constitution would appear to be clearly
established.
[93]
However, Maduna disputes the applicants’ version and contends
that the Church was incorporated as an NPC in 2015
with himself and
the other respondents as directors. He points out that the applicants
raised no objection at the time of incorporation
and it is was only
on 6 November 2023, some eight years later, that the launched
the current proceedings to challenge the
Church’s
incorporation.
b.
Voluntary Associations
[94]
Churches
and similar religious organisations are commonly organised as
voluntary
associations
governed by their Constitutions.
[95]
The legal
principles governing voluntary associations were considered in
Turner
v Jockey Club of South Africa.
[9]
In
Turner
the
Appellate Division recognised that courts generally refrain from
interfering in the internal affairs of voluntary associations
unless
their Constitutions are violated or principles of natural justice are
breached. The fact that the Synod did not pass a resolution
authorising the conversion of the Church, then a voluntary
association, into a NPC, is such a case that would warrant the court
to interfere in the affairs of the voluntary association.
b.
Memorandum of Incorporation
[96]
In further
support of the merits in the current application, the applicants
rely on the provisions of the Act, which require
a company to adopt a
MOI regulating its governance.
[10]
Such an MOI is required to define the rights and obligations of
directors and members of the company. The applicants maintain that
the NPC has not adopted such an instrument and has thus failed to
comply with its statutory reporting obligations. This has not
meaningfully been disputed in the answering papers
[97]
As such, the applicants would ordinarily be entitled to the
declaratory relief sought. However, their delay in
bringing the
proceedings needs to be addressed to determine whether they have
waived their rights to at this late stage to object
or should be
estopped from doing so in law.
c.
Delay
[98]
Maduna points out that the present application was launched eight
years after the Church’s incorporation as an
NPC and states
that the applicants have not provided a satisfactory explanation for
this delay.
[99]
I am in agreement with Maduna that the applicants have not explained
their inordinate delay in seeking the relief sought
in the current
proceedings. Even the relief sought in the counter-claim in the
Bloemfontein proceedings of the same nature was
only brought on 4
August 2022, some 7 years after the incorporation of the Church as an
NPC.
[100]
The fact that the applicants only sought to challenge the validity of
the Church’s incorporation as an NPC eight years
after the
event does raise serious questions about the
bona fides
of the
applicants in the current proceedings and suggests that there could
be ulterior motives at play in their bringing the current
proceedings
at this stage. The sense that I get is that the truth is not wholly
disclosed in the papers before me and that in truth
and in fact the
current application is a power play for control over the Church and
its assets and property.
[101]
However, I
am mindful that ulterior motive is not necessarily decisive
where good grounds are established for the application.
As was
explained by Harms JA in
National
Director of Public Prosecutions v Zuma,
[11]
a bad motive does not destroy a good case. At paragraph 37 the then
Deputy President of the Supreme Court of Appeal had this to
say:
“
A prosecution
is not wrongful merely because it is brought for an improper purpose.
It will only be wrongful if, in addition, reasonable
and probable
grounds for prosecuting are absent… The motive behind the
prosecution is irrelevant because, as Schreiner JA
said in connection
with arrests, the best motive does not cure an otherwise illegal
arrest and the worst motive does not render
an otherwise legal arrest
illegal. The same applies to prosecutions.
”
[102]
Nevertheless, the courts have repeatedly held that unreasonable delay
may justify refusal of discretionary relief, particularly
in
applications seeking declaratory and interdictory orders affecting
established legal arrangements.
[103]
In
Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
,
[12]
the
Appellate Division stated:
“
Where a party
has delayed unreasonably in bringing proceedings, a Court may in the
exercise of its discretion refuse relief, particularly
where the
granting of such relief would cause prejudice or disturb rights that
have come into existence in the meantime
.”
[13]
[104]
Similarly,
the Supreme Court of Appeal found in
Associated
Institutions Pension Fund v Van Zyl
[14]
that:
“
It is a
long-standing rule that courts have the power to refuse relief where
there has been an undue delay in seeking it. The principle
is based
on considerations of fairness and certainty
.”
[15]
[105]
There are
strong policy reasons for refusing relief when there has been a long
delay, as was explained in
Gqwetha
v Transkei Development Corporation Ltd
.
[16]
There
the court emphasised the need for finality and stability in legal
relationships and stated:
“
The rule that
delay may bar a remedy is rooted in sound public policy which
requires that disputes be raised within a reasonable
time so that the
parties and the administration are not prejudiced by stale
claims
.”
[17]
[106]
In
City
of Cape Town v Aurecon South Africa (Pty) Ltd
,
[18]
the Constitutional Court reaffirmed the
delay
principle in legality and review proceedings
and stated:
“
Courts have
emphasised that delay can prejudice the interests of justice and the
proper functioning of public administration, and
may justify a
refusal to entertain the claim
.”
[19]
[107]
To my mind, the delay smacks of
mala fides
; but that is not to
say that I accept the
bona fides
of Maduna; I do not. He has
clearly been opportunistic in first seeking to incorporate the Church
as a NPC and then, after having
been removed as a director of the
NPC, claiming that the business of the Church was never transferred
to the NPC and is now currently
being run by him as a voluntary
association. The pending litigation concerning the legal status of
the Church and which entity
controls the business of the Church and
owns its properties and assets is the subject matter of the
proceedings currently pending
in Bloemfontein.
[108]
The courts should not be used as tools to fight factional battles; it
constitutes an abuse of process; both the applicants
and Maduna
are guilty of this.
The
Interdictory Relief sought
[109]
The interdictory relief sought flows from the declaratory relief, and
as such is similarly tainted by
mala fides
and abuse of
process.
[110]
The
applicants have sought final interdictory relief. The requirements
for a final interdict were set out in the now oft quoted
Appellate
Division case of
Setlogelo
v Setlogelo
.
[20]
The principles set out are now trite and require that an
applicant for final interdictory relief must establish a clear right,
injury actually committed or reasonably apprehended and the absence
of an adequate alternative remedy.
a.
Clear right
[111]
From the papers before me, I am satisfied that the registration of
the Church as a NPC occurred without clear authorisation
from the
governing structures prescribed by the Church’s constitution. I
also find that the fact that the NPC has no MOI
is fatal to its
continued operation.
[112]
In light of the findings above, I find that the applicants have
demonstrated a clear right to challenge conduct undertaken
in
violation of the church constitution.
b.
Reasonable apprehension of harm
[113]
The applicants contend that the unlawful registration of the Church
as an NPC places the Church’s governance and assets
at risk.
The applicants argue that the conduct of the respondents threatens
the sustainability and governance of the Church. They
maintain that
the continued control by them exposes the Church to regulatory and
financial risk. Accordingly, it is alleged that
the Church and its
members will suffer irreparable harm if the respondents remain in
control of the Church.
[114]
In support of this argument, the applicants allege that the actions
and conduct of the respondents are harmful to the sustainability
of
the Church in as much as they fuel tensions and strife bedevilling
the Church. It is argued that the respondents have acted
in blatant
disregard for the Constitution of the Church and are motivated by
self-interest and that
there
is nothing in
their
conduct
that
shows
consideration for the interest of the
Church.
[115]
Furthermore, the applicants argue that the Act obligates companies to
submit reports, to appoint auditors and other role players.
The
respondents have, for a period in excess of 10 years, failed to
ensure that the NPC complies with these obligations, thereby
exposing
the Church to the risks associated with non-compliance. It is the
applicants’ case that the respondents have failed
to show
accountability to the Church and their continued occupation of their
positions as directors harm the interests of the Church.
[116]
I have already said that the background to this matter evidences that
in truth and in fact the applicants are not so much
concerned about
the internal governance of the NPC as they are about securing power
over and control of the Church for the faction
they represent. I do
that think that they subjectively perceive that should the
interdictory relief sought not be granted the Church
will suffer
irreparable harm. But the test is objective, and I accept that the
failure to comply with the provisions of the Act
reasonably puts the
business of the Church at risk.
c.
Absence of adequate alternative remedy
[117]
The applicants contend that the interdictory relief sought is the
only effective remedy. The applicants insist that an interdict
is the
only means to prevent the respondents from continuing to act as
directors of the NPC pending its deregistration. They argue
that
should the respondents remain in their positions, the CIPC may issue
charges against the NPC and levy penalties which will
deplete the
allegedly scant resources of the Church.
[118]
I accept that should I grant the declaratory relief sought, the
interdictory relief sought would be appropriate to protect
the
property and assets of the Church.
[119]
But I reiterate that whether this is indeed correct, depends upon
whether the business of the Church was transferred to the
NPC
together with its assets and properties at the time of incorporation,
or whether they remained with the voluntary association
as contended
by Maduna in these proceedings. This crucial question is itself
pending before the Bloemfontein Court.
[120]
Although Maduna was party to the incorporation of the NPC, he now
maintains that all of the assets and property of the Church
were
retained by the voluntary association through which he currently runs
the business of the Church under an identical name.
Disputes
of fact
[121]
Maduna
points to several disputes of fact that in motion proceedings must be
resolved in accordance with the so-called
Plascon
Evans Rule
.
The well-known rule in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[21]
requires
that where disputes of fact arise on the papers, the court must
determine the matter on the facts stated by the respondent
together
with those facts admitted by the respondent. This means that where
disputes of fact arise, the court must determine the
matter on the
respondent’s
version unless that version is so far-fetched or untenable that it
can be rejected on the papers
.
The effect is that where genuine disputes of fact appear on the
papers before me, Maduna’s version must prevail, alternatively
ought to be referred for the hearing of oral evidence.
[122]
Because Maduna’s version is so markedly different from
that presented by him in the Bloemfontein proceedings,
it would be
remiss of me to decide this matter on paper on the basis of the
version now preferred by him. In Bloemfontein he was
of the view, as
were the applicants in these proceedings, that the voluntary
association ceased to exist on the incorporation of
the NPC. It was
also the view taken by the respondents in those proceedings that the
properties of the Church remained in its name
and not in the name of
the NPC, although Moloi states that this was always the intention.
The interdictory relief sought in these
proceedings would be entirely
academic were the business of the Church to have been retained by the
voluntary association.
[123]
As this is a question that is crucial to the interdictory relief
sought in the current application and is currently pending
in the
proceedings in Bloemfontein, it is appropriate that this application
be stayed pending the outcome of those proceedings.
In addition, it
would not be proper for these proceedings to be heard without Moloi
being joined to these proceedings.
[124]
In view of the several disputes of fact in the current proceedings
and my sense that what has been put on paper before me
is but a
version of the true position, I cannot see this matter proceeding
without the hearing of oral evidence.
[125]
Obviously, the interdictory relief against Maduna cannot be sustained
in so far as it is tied to his current status as a director
of the
NPC. I have already found that the applicants intentionally joined
him to these proceedings, full well knowing that he had
been removed
as a director in 2018. What was in fact sought in joining Maduna was
to stifle his current claims to be running the
Church under his
fiefdom through the supposedly defunct voluntary association.
[126]
Because I do not accept the
bona fides
of either the
applicants or Maduna in the current proceedings in view of their
entirely different stances taken in the Bloemfontein
and in the
current proceedings, it is not appropriate that I make an award for
costs and intend directing that costs be costs in
the cause.
Order
[127]
I thus make an order in the following terms:
a. Directing that
Shadrack Nkomeni Moloi be joined to the proceedings within 15 days of
this Order;
b. Directing that
this matter not be proceeded with unless Moloi has been joined to
these proceedings.
c. Directing that
this matter be stayed pending the outcome of the matter under case
no. 2341/22 in the High Court of South
Africa, Free State Division,
Bloemfontein between
The African Presbyterian Bafolisi Church of
Southern Africa and others v Edward Ephraim and others
.
d. Directing that
costs be costs in the cause.
WENTZEL-THOMPSON
J
JUDGE
OF THE HIGH COURT
JOHANNESBURG
For
the Applicant: Adv. A Motake
Instructed
by: Maebela Joseph Attorneys
For
the Respondent: CS Mabetshu (attorney)
[1]
1949
(3) SA 637 (A)
[2]
1972
(4) SA 409 (C)
[3]
2009
(1) SA 356
(T)
[4]
2017
(5) SA 299 (SCA)
[5]
Caesarstone
Sdot-Yam Ltd v The World of Marble and Granite 2000 CC and Others
2013 (6) SA 499
(SCA) para 2;
National
Sorghum Breweries Ltd (t/a Vivo African Breweries) v International
Liquor Distributors (Pty) Ltd
[2000] ZASCA 159
;
2001 (2) SA 232
(SCA) para 2.
[6]
Nestlé
(South Africa) (Pty) Ltd v Mars Inc
2001
(4) SA 542
(SCA) para 16.
[7]
Loader
v Dursot Bros (Pty) Ltd
1948 (3) SA 136
(T) at 139; see also
Kerbel
v Kerbel
1987 (4) SA 895
(W) at 901–902.
[8]
Nestlé
(South Africa) (Pty) Ltd v Mars Inc
2001 (4) SA 542
(SCA) para 16;
Caesarstone
Sdot-Yam Ltd v The World of Marble and Granite 2000 CC and Others
2013 (6) SA 499
(SCA) paras 2 and 21; and
Spencer
and Others v Memani and Another
2013 (1) SA 341
(SCA) para 10
[9]
1974
(3) SA 633 (A)
[10]
Section
15 of the Act
[11]
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA)
[12]
1978
(1) SA 13 (A)
[13]
At
41 A-B
[14]
2005
(2) SA 302 (SCA)
[15]
At
para 46
[16]
2006
(2) SA 603 (SCA)
[17]
At
para 22
[18]
2017
(4) SA 223 (CC)
[19]
At
para 47
[20]
1914
AD 221
[21]
[1984] ZASCA 51
;
1984
(3) SA 623
(A)