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2026
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[2026] ZAGPPHC 268
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Nguapia and Others v Sandlana and Others (079659/2024) [2026] ZAGPPHC 268 (27 March 2026)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Case number:
079659/2024
Date
of hearing: 17 March 2026
Date delivered: 27
March 2026
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO OTHERS JUDGES: YES/NO
(3)
REVISED
In the application
between:
CHRIS
NGUAPIA
First Applicant
LAZARUS SEKWALA
MAILA
Second Applicant
CHRIS
MALANGANA
Third Applicant
CALVIN
MALEKANA
Fourth Applicant
KUTLWANO
KGOALE
Fifth Applicant
PHMELO
MODISE
Sixth Applicant
THABO
MARAKALLA
Seventh Applicant
ABNER DZUNISANI
MANGANYI
Eighth Applicant
MZAMO
TIKWAYO
Ninth Applicant
MORENA
TSHABALALA
Tenth Applicant
MATEKA
MOHAPI
Eleventh Applicant
SBUSISO ISAAC
MATHE
Twelfth Applicant
and
MICHAEL
SANDLANA
First Respondent
LEONARD
MODISE
Second Respondent
TSHEPISO
MODISE
Third Respondent
INTERNATIONAL
PENTECOST
HOLINESS
CHURCH
Fourth Respondent
This judgment is
handed down electronically by the Judge whose name is reflected
herein, and is submitted to the parties or their
legal representative
by email. This order is further uploaded to the electronic file of
CaseLines by the Judge or his Registrar.
The date of this order is
deemed to be 27 March 2026.
JUDGMENT
SWANEPOEL
J
:
[1] This
application arises from a 10-year old dispute regarding the
leadership of the fourth respondent (“the IPHC”
or “the
church”). The IPHC is one of the largest churches in South
Africa. It was founded in 1962 by Reverend Frederick
Modise. The
spiritual leader of the church is known as the ‘Comforter’
and is regarded as having been anointed by God.
The Comforter
conducts services, weddings, funerals and other rituals within the
church. The management of the affairs of the church
is currently
undertaken by an Executive Committee, in terms of an order granted by
Kollapen J (as he then was) on 22 November 2016.
[2] According to
article 8 of the church constitution the Comforter is appointed and
prepared for service by his predecessor.
Unfortunately, the previous
Comforter passed away on 9 February 2016, allegedly, without
appointing a successor. The result has
been a long-standing feud
between the first, second and third respondents, who all claim to
have been appointed as Comforter. The
order of Kollapen J referred
the dispute regarding the third respondent’s claim to have been
appointed as Comforter to oral
evidence. Almost ten years later, the
matter has not yet been settled.
[3] The applicants
all claim to be members of the church. They allege that there are now
three factions in the church. They
say that there is no certainty as
to who is the true Comforter. They seek an order in the following
terms in Part A of the application:
[3.1]
That the first, second and third respondents (to whom I shall refer
collectively as “the respondents”
for convenience) be
interdicted from holding themselves out to be the Comforter of the
church;
[3.2]
That the respondents be interdicted from performing any functions and
powers designated for the Comforter;
[3.3]
That the day-to-day management of the church shall vest in the
Executive Committee appointed pursuant to the order
of Kollapen J;
[3.4]
That the Executive Committee shall, upon receipt of the order sought,
call a special general meeting within three
months at which meeting
the Executive Committee is to call a meeting of the church Council
and all church elders;
[3.5]
At the meeting envisaged in [3.4] above it must be determined whether
the Council and Executive Committee must
be re-elected, whether the
church must oppose the relief sought in Part B, and who should
represent the church if Part B is opposed.
[4] I must state
clearly, that this case is not about determining who the Comforter
is. It is about finding a way forward
for the church to resolve its
disputes. The applicants cited the Executive Committee in the
founding affidavit as the fifth respondent.
It is, however, not cited
as a party in the notice of motion, nor was the application served on
it.
[5] There is also
some disagreement between the parties as to whether or not the IPHC
is a voluntary association that is governed
by its 2007 constitution.
That is the position of the applicants and the first and fourth
respondents. The third respondent contends
that the church was
incorporated as a non-profit company (“NPC”) in 2003, and
that it is governed by its articles of
association and memorandum of
incorporation. The NPC has not been cited as a party.
[6]
At the outset I must emphasize that a court must always pay due
respect to the right of a religious community to govern
its own
affairs. The Supreme Court of Appeal confirmed this principle in
De
Lange v Presiding Bishop, Methodist Church of Southern Africa and
Another
[1]
where the court held:
“
[31]
It is so that our Constitution protects an individual’s rights
to practice his or
her religion, as well as the rights of members of
a particular religion to practice that religion in association with
others and
in conformity with the dictates, precepts, ethical
standards and moral discipline which that faith exacts. Protecting
the autonomy
of religious associations is considered a central aspect
of protecting religious rights. Indeed such protection has been
described
as ‘vital to a conscience-honouring social order’.
As the Constitutional Court held in
Minister
of Home Affairs and Another v Fourie and Another (Doctors for Life
International and Others, Amici Curiae); Lesbian and
Gay Equality
Project and Others v Minister of Home Affairs
[2005] ZACC 19
;
2006 (1) SA 524
(CC)…
para [94]:
‘
In
the open and democratic society contemplated by the Constitution
there must be mutually respectful co-existence between the secular
and the sacred. The function of the Court is to recognize the sphere
which each inhabits, not to force the one into the sphere
of the
other.”
[7]
In
New
African Methodist Episcopal Church in the Republic of Namibia and
Another v Kooper and Others
[2]
the
Court held that it did not have jurisdiction to determine ecumenical
disputes. That is, in my view, an improper approach. A
court has
jurisdiction over church disputes. However, it should approach such
cases with circumspection, and should not intervene
in matters that
are properly within the purview of the church. It is with the
above principle in mind that I approach this
judgment.
[8] The applicants
deny that the deponent to the answering affidavit has authority to
depose to the affidavit. A deponent
is a witness in the case. A
witness does not have to be authorized to provide evidence, whether
by affidavit or oral evidence.
[9] The respondents
have raised the following in limine points:
[9.1]
The applicants’ locus standi;
[9.2]
That the NPC has not been joined as a party to the application;
[9.3]
That the Executive Council has not been joined as a party to the
application;
Locus
standi
[10] The applicants
contend that, although they have not attended church services since
2018, they are members of the church.
Therefore, they say, they have
locus standi as members of the church, and also by virtue of the
provisions of subsections 38 (c)
and (d) of the Constitution.
[11] The
respondents say that by church custom any member that does not attend
a service for a period of three months is regarded
as a deserter and
may only be admitted back into membership after having attended a
‘forgiveness service’. Therefore,
the respondents submit,
the applicants are no longer members of the church and do not have
standing in the matter.
[12] In reply to
the respondents’ averment, the applicants do not engage with
the substance of the allegation, but merely
deny what the respondents
say. The applicants point out that the 2007 constitution does not
contain a provision for which the respondents
contend. However, the
2007 constitution does not prescribe any manner of terminating
membership. It provides that disciplinary
steps may be taken against
members, but it does not prescribe what the rules are, nor what steps
might be taken against a member,
and it clearly leaves it open to the
church to enforce customs and rules that have become entrenched
within the church.
[13]
Therefore, I cannot reject the respondent’s version, and when I
am unable to do so, I have to accept what they
say.
[3]
If the applicants’ membership has terminated, then they have no
entitlement to bring this application as members.
[14] The applicants
have submitted that the first applicant, even if he were not a member
of the church, is still an ordained
priest. The first applicant did
not rely on this contention in the founding affidavit to support his
submission that he has locus
standi. It is a late-comer to the case.
Nonetheless, I do not believe that it has any merit. There is no
evidence that the first
applicant’s alleged priesthood provides
him with any standing in the church beyond that of any other member.
There is also
no evidence that his membership would not terminate if
he were to stop attending church.
[15]
Are the applicants entitled to act in the public interest by virtue
of subsection 38 (d) of the Constitution?
In
Giant Concerts CC v Rinaldo Investments (Pty) Ltd and Others
[4]
the Constitutional Court held:
33.
“An own-interest litigant does not
acquire standing from the invalidity of the challenged decision or
law, but from the effect
it will have on his or her interests or
potential interests. He or she has standing to bring the challenge
even if the decision
or law is in fact valid. But the interests that
confer standing to bring the challenge, and the impact the decision
or law has
on them, must be demonstrated.
34.
Second,
it means that an own-interest litigant may be denied standing even
though the result could be that an unlawful decision
stands. This is
not illogical. As the Supreme Court of Appeal pointed out, standing
determines solely whether
this
particular
litigant is entitled to mount the challenge: a successful challenge
to a public decision can be brought only if
“the right remedy
is sought by the right person in the right proceedings”.
39
To
this observation one must add that the interests of justice under the
Constitution may require courts to be hesitant to
dispose of cases on
standing alone where broader concerns of accountability and
responsiveness may require investigation and determination
of the
merits. By corollary, there may be cases where the interests of
justice or the public interest might compel a court to scrutinise
action even if the applicant’s standing is questionable. When
the public interest cries out for relief, an applicant should
not
fail merely for acting in his or her own interest.
35.
Hence, where a litigant acts solely in
his or her own interest, there is no broad or unqualified capacity to
litigate against illegalities.
Something more must be shown.”
[16] In my view
there is no general public interest in this matter, more especially
given the fact that the case concerns
church matters. The applicants
have not demonstrated that there is ‘something more’ to
their interest in the case.
I find that the applicants do not have
locus standi in the case.
Non joinder
[17] The third
respondent represents the NPC, which, he contends, is the true legal
persona of the church. Therefore, he says,
the NPC should have been
joined as a party to the proceedings. The applicants deny that the
NPC represents the church. That is,
however, not the point. The fact
is that the NPC represents a large portion of the church membership.
It has an interest in the
matter, and should have been cited. If the
interdict were to be granted, the NPC will not have a Comforter.
Furthermore, the members
of the Church who operate under the auspices
of the NPC have a clear interest in whether an interdict is granted
against the third
respondent.
[18] A further
question is whether the Executive Council is not a crucial party to
these proceedings. The applicants are,
after all, seeking an order
compelling the Executive Council to do certain things. In my view the
Executive Council should have
been joined to these proceedings.
[19] It would be
open to the Court to postpone the proceedings in order for the
aforesaid parties to be joined in the application.
However, due to
the view I take on the merits of the application, I do not intend to
do so.
Merits
[20] On the merits
I have the following concerns: Firstly, whether the applicants have
demonstrated at least a prima facie
right to an interdict. Secondly,
whether the applicants have demonstrated that irreparable harm would
ensue if the order were not
granted? Thirdly, whether there is
alternative relief available to the applicants. Fourthly, where the
balance of convenience lies
in either granting or refusing the order.
Finally, whether the delay in bringing the application should result
in the Court exercising
its discretion against the granting of an
interdict.
[21] As for the
question whether the applicants have established a prima facie right,
there is a dispute of fact regarding
the circumstances under which
the first to third respondents were appointed as Comforter. I cannot
make any determination as to
whether the appointment of any of them
was proper or not. Consequently, I cannot say that the applicants
have a prima facie right
to the removal of any of the respondents,
even on an interim basis. In the absence of a prima facie right there
can be no interim
interdict.
[22] The applicants
must also establish that irreparable harm would ensue if the order
were to be refused. There is no financial
threat to the church if the
respondents were to remain as Comforters of the respective factions.
The church’s accounts have
been frozen and its funds have been
safeguarded.
[23] The applicants
allege that the irreparable harm lies in the fact that they have been
prevented from attending church
due to incidents of violence, and
that their right to religious freedom has been infringed. They also
say that they have been excluded
from the church community and
prevented from interacting with fellow church members. They say that
the ousting of the three Comforters
would result in the Executive
Committee being obliged to choose a new Comforter, which would,
hopefully, resolve the rift within
the church. As an aside, the
applicant’s belief that the executive committee can appoint a
Comforter flies in the face of
the church’s constitution. The
appointment of a Comforter lies squarely within the powers of the
predecessor, not with the
Executive Committee.
[24]
The Constitutional Court dealt at length with the concept of
irreparable harm in
City
of Tshwane Metropolitan Municipality v Afriforum and Another
[5]
.
Writing for the majority Mogoeng CJ said:
“
Before
an interim interdict may be granted, one of the most crucial
requirements to meet is that the applicant must have a reasonable
apprehension of irreparable and imminent harm eventuating should the
order not be granted. The harm must be anticipated or ongoing.
It
must not have taken place already.”
[25] The
Constitutional Court pointed out that ‘irreparable harm’:
“
connotes
a common-sensical, discernable or intelligible disadvantage or peril
that is capable of legal protection. It is the tangible
or intangible
effect of deprivation or adverse action taken against someone. And
that disadvantage is capable of being objectively
and universally
appreciated as a loss worthy of some legal protection, however much
others might doubt its existence, relevance
or significance.”
[6]
[26] The applicants
submit that they do not know who the true Comforter is, and that they
therefore do not know where they
should worship. This situation has
been ongoing for at least eight years. The harm that the applicants
allege has thus been ongoing
for that entire period. I find it
strange that, in all this time, the applicants have not found a
spiritual home where they feel
comfortable. The applicants’
decision not to worship in any of the factions is, in my view, their
own. I do not believe that
the applicants would suffer irreparable
harm if the order were not to be granted.
[27] There is also
a clear alternative to an interim interdict, which is that the
Executive Council must amend the constitution
to allow for the
election of a Comforter, and it must elect a new Comforter, thereby,
hopefully, uniting the church. There is no
evidence that the
applicant have approached the Executive Council on this score.
[28] In my view,
the balance of convenience also favours the refusal of the
application. On the one hand the applicants say
that they cannot
attend their spiritual home. On the other hand, it must be borne in
mind that there are thousands of church members
who believe that the
Comforter who leads their particular faction was appointed and
anointed by God. Should the order be granted,
those persons would be
deprived of worshipping under the guidance of the Comforter whom they
believe to be God-appointed. Mr Mphela
(counsel for the third
respondent) made an argument that I found to be compelling, namely
that if the order were to be granted,
then the religious rights of
the members of the respective factions would be infringed. In the
context of the doctrine of non-entanglement,
which requires a Court
to deal with church matters discreetly, the balanced of convenience
overwhelmingly favours the respondents.
[29]
Finally, the applicants’ delay in bringing this application is
troublesome. If there is in unexplained undue delay
in bringing the
application for an interim interdict, a Court may refuse the
interdict in the exercise of its discretion. In
Juta
& Co Ltd v Legal and Financial Publishing CO (Pty) Ltd
[7]
the Court held the following:
“
If
one bears in mind the long delays for which no explanation has been
given, that as far back as December the applicant had numerous
clear
cases of copying in its possession, according to the letter written
by the applicant, and that up to now no action has been
instituted,
it seems that the applicant has erred in selecting this method,
namely an application for an interdict pendente lite,
but even if it
was the appropriate procedure at the time, the applicant has, by
reason of the facts set out above, forfeited its
rights to this
temporary relief. Had it issued summons at the time when the notice
of motion proceedings were instituted, that
trial could already have
taken place. There is such a thing as the tyranny of litigation, and
a court of law should not allow a
party to drag out proceedings
unduly.”
[30] The
respondents have pointed out that the application was brought some
years after the respondents took up the position
as Comforter. The
dispute arose in 2016, eight years before the application was
launched. The applicants argue that there has been
ongoing litigation
to determine whether which culminated in the second respondent
withdrawing his case on 4 July 2023. This
application was launched on
18 July 2024, more than a year after the litigation was withdrawn.
[31] The applicants
could have intervened in those proceedings in order to expedite the
hearing of the matter. They could
have brought an action to determine
whether the first and third respondents were the properly appointed
Comforters, and all that
litigation could have been finalized some
time ago. The delay in bringing this application is such that it
would be appropriate
to exercise my discretion against the granting
of the order.
[32] In the
premises the application must fail.
[33] I make the
following order:
[33.1]
Part A of the application is dismissed.
[33.2]
The applicants shall pay the costs of the application jointly and
severally, the one paying the other
to be absolved, on Scale C.
SWANEPOEL J
JUDGE OF THE HIGH
COURT
GAUTENG
DIVISION PRETORIA
Counsel
for the applicants:
Adv.
S Barreiro
Instructed
by:
OJ Mngomezulu Attorneys Inc
Counsel for the first and
Fourth
Respondents:
Adv.
M Osborne SC
Adv. T
Kgomo
Instructed
by:
S Twala Attorneys Inc
Counsel
for the third respondent: Adv. R
Mphela
Instructed
by:
Mpoyana Ledwaba Inc
Heard
on:
17 March 2026
Judgment
on:
27 March 2026
[1]
De
Lange v Presiding Bishop, Methodist Church of Southern Africa and
Another 2015 (1) SA 106 (SCA)
[2]
New
African Methodist Episcopal Church in the Republic of Namibia and
Another v Kooper and Others (A293/2013) [2015] NAHCMD 104
(29 April
2015
[3]
Plascon
Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A)
[4]
Giant
Concerts CC v Rinaldo Investments (Pty) Ltd and Others [2012] ZACC
28
[5]
City
of Tshwane Metropolitan Municipality v Afriforum and Another
2016
(6) SA 279
(CC) at para [55]
[6]
At
para [56]
[7]
Juta
& Co Ltd v Legal and Financial Publishing Co (Pty) Ltd
1969 (4)
SA 443
(C) at 445 C – F