Presbyterian Church of Africa and Another v Mokabo N.O (8100/2010) [2011] ZAWCHC 74 (16 March 2011)

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[2011] ZAWCHC 74
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Presbyterian Church of Africa and Another v Mokabo N.O (8100/2010) [2011] ZAWCHC 74 (16 March 2011)

IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case
No.: 8100/2010
In
the matter between:
THE
PRESBYTERIAN CHURCH OF AFRICA
…..................................
First
Applicant
MZUYANDA
ZOKUFA NO
….........................................................
Second
Applicant
and
GEORGE
MOFOKENG MOKABO NO
….................................................
Respondent
JUDGMENT
DELIVERED WEDNESDAY 16 MARCH 2011
SALDANHA,
J
[1.]
The first applicant, the Presbyterian Church of Africa (the Church)
established more than a century ago in 1898 has in recent
years been
the subject of a number of court applications as a result of
intractable internal divisions. This application is but
one of such
matters and it appears that because of the ongoing strife will
unfortunately not be the last. The governance of the
Church is
codified in its written Constitution and which provides for a
hierarchy of elders, ministers, Moderators and congregants
and also
deals with disciplinary measures and various other internal matters.
The central issue in this application is the determination
of who of
the contending parties to the dispute has the legitimate authority to
represent the Church and who may use and control
its property. This
also appears in part to have been the subject of other and ongoing
litigation within the Church.
[2.]
The subject matter over which the application was brought is the
immovable property of the Church, its buildings and a manse
situated
at the corner of NY 50 and NY 1 Gugulethu, Cape Town.
[3.]
The applicants had initially sought a rule
nisi
pending
the final determination of the matter wherein the respondent and all
those authorized by him be interdicted and restrained
from using the
immovable property. Further and pending the return date, that the
respondent and all those in control of the property
be directed to
hand over the keys of the property to the Sheriff for safe keeping.
The applicants also sought an order of costs
against the respondent
on a scale as between attorney and client.
[4.]
On the 23
rd
of
April 2010 in settlement of the interim relief the parties agreed
that neither would use the immovable property for any purposes

whatsoever and that the keys of the property were handed to the
Sheriff for safe keeping.
[5.]
The first applicant is represented by the deponent of the founding
affidavit Mr. Amos Mongezi Ndazabantu Mpulu and the second
applicant.
Mpulu claimed that he was the duly elected and inducted Moderator of
the Church and that he had been properly authorized
to institute
these proceedings on its behalf. Mpulu claimed that during 2008 he
was elected by the General Assembly of the Church
as Moderator of the
Synod and Assembly and that his formal induction occurred at a
subsequent meeting of the Genera! Assembly on
23 September 2009 in
Port Elizabeth. He attached to the founding affidavit a certificate
which reflected such induction which had
been officiated by the then
Moderator, the Right Reverend Banile Bishop Nocanda (Nocanda) whose
three year term expired at that
meeting. Mpulu also attached a
Certificate of Oath which had been administered to him by Nocanda and
witnessed by three other persons.
Mpulu, claimed as Moderator, the
authority to depose to the founding affidavit and to launch the
proceedings on the basis of clause
15 of Chapter 20 of the
Constitution of the Church which provided under the heading
"The
Moderator and Clerk of Our Jurisdictories May Defend the Interest of
the Church,"
Mpulu
claimed that besides such authority he had also been authorized by
the Church to launch the proceedings on the strength of
a resolution
taken in terms of section 21 of Chapter 20 of the Constitution. The
resolution recorded that the body of the General
Assembly of the
Church had met in Cape Town on the 20
tn
April
2010 and authorized Mpulu in his capacity as Moderator to take the
necessary steps to bring the proceedings against the respondent.
[6.]
The second applicant is the Secretary of the Deacons Court of the
Gugulethu Circuit of the Church. He claimed that on the basis
of
clause 13 of Chapter 20 of the Constitution, headed
"One
or More of the Trustees May Sue"
he
obtained the power and the authority to institute the proceedings on
behalf of the Church.
[7.]
Mpulu claimed that the respondent had previously been a member of the
Church but had been excommunicated in the year 2004.
In support of
such claim he attached a formal letter dated 28
th
June
2004 of the Church, which had been addressed to the respondent
informing him of his ex-communication of all ministerial duties
in
the Church. The letter was signed by Mpulu who at that stage was the
Stated Clerk of the Church and the Right Reverend EV John
as its
Moderator. Mpulu claimed that in terms of the clause 20 of Chapter 20
of the Constitution
"any
deposed, ex-communicated or suspended minister"
was
inter
alia
debarred
from the use, enjoyment and occupation of Church property. He further
claimed that the respondent had no authority to act
on behalf of the
Church or to seize control of any of its property.
[8.]
The respondent in opposing the relief, filed a counter application in
which
he
sought the following relief;
"1.
That the proceedings of the purported to 2009, 111 General Assembly
meeting held at 26 Khoza Street, Zwide, Port Elizabeth
from 22
nd
to
27
th
September
2009 in the name, description and auspices of Presbyterian Church of
Africa be and are hereby declared unlawful, of no
force and legal
effect and should be set aside.
2.
That the election of Reverend Mongezi Amos Mpulu as moderator of
General Assembly of Presbyterian Church of Africa at a meeting
held
at 26 Khoza Street Zwide, Port Elizabeth, from 22
nd
to
27
th
September
2009 in name, description and auspices of Presbyterian Church of
Africa at 26 Khoza Street. Zwide. Port Elizabeth be and
is hereby
declared invalid and of no legal effect and should be set aside.
3.
That the purported decision to ex-communicate the respondent taken
2&
h
June
2004 be and is hereby declared invalid and be set aside.
4.
That the costs of the counter-application be paid to Reverend Mongezi
Amos Mpulu."
Background
to the application.
[9.]
Mpulu claimed that in the year 2002 one Eric Nkosivumile Matomela had
been the Moderator of the Church until he was interdicted
by the High
Court of South Africa in Bloemfontein from occupying such position. A
copy of the court order reflected that on the
5
th
December
2002 in the matter between
Presbyterian
Church of Africa
as
applicant and
Eric
Matomela
as
respondent the Hon. Mr. Justice H M Musi ordered,
inter
alia,
that
the election of Matomela as Moderator elect at the General Assembly
meeting of October 2001, at Qumbus, was declared invalid
and contrary
to the Constitution of the Church. It appeared that Matomela had
thereafter lodged an appeal but was unsuccessful
and that the order
was confirmed by the Supreme Court of Appeal Mpulu claimed that
Matomela refused to accept the court's decision
and broke away from
the Church to form what Mpulu referred to as "a dissident
group".
[10.]
Mpulu claimed that notwithstanding the courts decision the dissident
group continued to represent themselves to the public
as being the
recognized and legitimate authority over the Church. The Church he
claimed was therefore forced to bring various applications
in
different jurisdictions in the country to prevent Matomela and the
dissident group from portraying themselves as officials of
the
Church. By way of example he also referred to an order granted in
this division by the Hon. Mrs. Justice Allie on the 6
th
April
2004 between Ernest Vuyisile John and the Church as the applicants
against Matomela and a Mkuseli Godfrey Dukwana in which;
"1.
First and Second Respondents are interdicted and restrained from
conducting and/or attending any meetings under the name,
description
and auspices of the Presbyterian Church of Africa within the area of
jurisdiction of the above honourable court;
2.
The
First respondent is interdicted and restrained from exercising
the
powers and performing the duties of the Moderator of the
Presbyterian
Church of Africa;
3.
The Second Respondent is interdicted and restrained from exercising
its powers and performing the duties of the Stated Clerk
of the
Presbyterian Church of Africa;"
4.
... (relating to the cost order against the respondent". (Case
no: 1379/2004)
[11.]
Mpulu also referred to another order which had been made by the Hon.
Justice Van Der Byl in the High Court Eastern Cape Grahamstown
on the
30
th
September
2009 between Mpulu and the Church as the applicants against Matomela,
Mokabo and others where the following interim relief
was granted;
"1.
That, in order to give effect to the order granted by agreement
between the parties on 28® September 2009 by Pickering
J, the
Sheriff, assisted by members of the South African Police Service, be
and are hereby directed to take all steps necessary
to clear any
venue or place utilized for any meeting conducted by the Respondents
or any person under their auspices under the
name of the Second
Applicant (The Presbyterian Church of Africa) or any other entity of
a similar name purporting to be the Second
Respondent usurping the
constitution of the Second Applicant as its own, and to ensure that
such venues remain vacated, and that
no such meeting proceeds until
such time as the main application is finalized.
2.
That the costs of this application be and is hereby reserved for
determination in the main application."
It
appeared though that this order was not made final as the application
had subsequently been struck from the roll. There is also
no
indication whether the main application was eventually determined.
The
Gugulethu dispute.
[12.]
In April 2009, the duly authorized minister in charge of the
Gugulethu District under which the immovable property fell was
a
Reverend Xolani Kaiser
Ntliziywana.
It appeared that the Church had decided to transfer Ntliziywana for
various reasons from the Gugulethu District to
the Tembuland
Presbytery, where he was to have headed the Aiiwal North Circuit of
the Church. Mpulu claimed that the transfer of
Ntliziywana resulted
in a schism within the Gugulethu congregation where some members
supported Ntliziywana's transfer while others
opposed it. In July
2009 the Moderator of the Cape Presbytery, a Reverend MG Qalase
appointed Reverend Thabo Templeton Mlonyeni
in place of Ntliziywana.
The appointment was apparently not well received by supporters of
Ntliziywana who disrupted the services
lead by Mlonyeni and
interfered with his work. Mpulu further claimed that as a result of
this situation the Church on the 22
nd
of
August 2009 (under case no 18251/09) launched an urgent application
against Ntliziywana. The parties however entered into an
interim
agreement whereby Ntliziywana undertook,
inter
alia,
and
pending the final hearing of the matter on the 28
th
of
August 2009 not to enter the buildings of the Church or any property
at any of its satellite stations in the Gugulethu Circuit
of the
Church. Ntliziywana also undertook not to disrupt or to prevent
church services or congregational meetings and not to encourage
any
persons from disrupting or preventing church services or threatening,
insulting or harassing any members of the Gugulethu Congregation
and
not to execute any duties as a minister of the church within the
Gugulethu Circuit.
[13.]
On the 28
,h
August
2009 the matter was postponed to the 16
th
of
August 2010 for the hearing of
viva
voce
evidence.
The undertaking remained in place.
[14.]
Notwithstanding the court order, the schism within the church
remained. Threats and acts of violence ensued between the members
of
the Church and the police had to be called in on various occasions to
prevent violence from erupting. Discussions were also
held between
the police, community leaders and the elders of the Church in an
unsuccessful attempt at to resolve the situation.
Mpulu claimed that
there was existed a real possibility that the property of the Church
would have been destroyed should Mlonyeni
have continued conducting
services at the Church. It was therefore agreed between the parties
that in order to protect the property
of the Church and to calm the
parishioners that the buildings of the Church would be locked and the
keys handed to the Station
Commander of the Gugulethu police station
for safekeeping. It was also decided that in order to calm the
situation that Mlonyeni
would conduct church services at a neutral
venue and so too, would the supporters of Ntliziywana. It was
envisaged that this arrangement
would have ensued until the
determination of the application in August 2010.
[15]
Mpulu claimed that during April 2010 the Gugulethu station commander
informed the community of his imminent transfer to another
area and
that he wished to resolve the differences between the parties prior
to his leaving. Mpulu claimed that as far as the supporters
of
Mlonyeni were concerned the court order as agreed to had to remain in
place until the final determination of the application
by the court.
Mpulu claimed that on the 13
th
of
April 2010 the respondent approached the police officials in
Gugulethu under the guise of pretending to represent the Church
in an
attempt to persuade them to release the keys. The police officials
declined to do so. Mpulu claimed that the respondent attempted
to do
so again on the 14
,h
April
2010 but without success.
[16.]
Mpulu claimed further that on Saturday the 16
th
of
April 2010 the respondent, under the false pretence of representing
the Church, launched an application in this court under case
no.
7646//10 in which he sought an order that the station commander be
directed to return the keys of the Church building to him.

Notwithstanding that the matter had been set down for hearing for the
21
st
April
2010, the respondent obtained the keys from the police. Mpulu claimed
that the respondent had made arrangements for meetings
to be
conducted on the property during the weekend of the 17
th
to
the April 2010, which resulted in anger amongst the parishioners of
the Church. Moreover, Mpulu claimed, the respondent was not
known in
the Gugulethu community and that he had no right or authority to
represent the Church by using its facilities. He claimed
that in
order to avert the risk of a violent backlash against the respondent
and his supporters this application was launched.
Mpulu claimed that
the respondent's actions had also re-awakened the schism amongst the
congregants which created the risk of violence
and would have
resulted in damage to the property of the Church. Mpulu claimed that
the respondent had installed unknown persons
into the manse who had
also used the property without any right or authority to do so. This
had further incensed parishioners with
the heightened risk of
violence and for that reason Mpulu claimed that it was necessary for
the keys to be handed to the Sheriff
pending the final determination
of this application.
[17.]
Since October 2009 Mlonyeni and Ntliziywana's followers had conducted
services peacefully at separate venues which had dissipated
the risk
of violence between them. It also appeared that the respondent had
withdrawn his application under case no: 7646/10. Mpulu
claimed that
he had instructed his attorneys to approach the respondent's
attorneys with a request to amicably resolve the present
dispute but
that the respondent was not prepared to entertain any form of
discussion and he, Mpulu, therefore feared for the real
possibility
of violence breaking out. The parties had subsequently agreed to the
interim relief. The applicants now seek a final
order.
The
respondent's version.
[18.]
The respondent in opposition to the application and in support of the
counter application claimed that he had been duly appointed
as the
Moderator of the Cape Presbytery of the Church at a meeting in Port
Elizabeth. He claimed that he was therefore lawfully
in charge of the
Church buildings in Gugulethu. He also claimed that he had been
authorized by the Church to depose to the affidavit
and to institute
the counter application on its behalf. In this regard he annexed a
certificate which he claimed was in terms of
the provisions of
section 16 chapter 20 of the Constitution. The certificate reflected
that a Reverend Mongezi Mantlana and Reverend
Mzukisi W Faleni had
authorized the respondent to defend the Church against Mpulu and the
second applicant
"....who
are no longer members of the aforementioned church but of the LTD
(Section 21 Company)".
The
certificate was signed on the
Z'
a
May
2010 by both Faleni and Mantlana. An extract of the minutes of a
meeting held on 1
$t
May
2010 of the General Assembly of the Church at Humansdorp, Albert
Mashonyani Circuit, was also attached to the respondent's affidavit

that recorded that he had been authorized to oppose the application.
[19.]
The respondent claimed that
"It
can safely be mentioned that there has been
a
division
within the Presbyterian Church of Africa at least for more than (5)
five years."
He
further confirmed that the division has lead to numerous court
applications that had been brought in various divisions of the
courts
throughout the country. He also claimed that
"There
is a group of people within the church who have been misled by one
Reverend Banile Bishop Nocanda as its Moderator.
He is being replaced
by Reverend Amos Mongezi Mpulu the deponent to the main application."
The
respondent further claimed that,
"There
was also another group of congregants and priest who had been led by
Reverend Eric Matomela as a moderator He has been
replaced by
Reverend Mzukisi W Faleni."
The
respondent claimed that Mpulu was the leader of a "dissident
group" which had initially been led by Nocanda, who had
broken
away from the Church and established a company in terms of Section 21
of the Companies Act No 51 of 1973. The respondent
claimed that
because of divisions within the Church during 2007 Nocanda together
with the Mpulu and Mr. Vuyisile
Ngoza
had bought a Section 21, shelf company named Biz Africa 1185, with
the specific intention of breaking away from the Church.
He claimed
that the name of the company Biz Africa was subsequently changed to
"Presbyterian Church of Africa" and that
Mpulu was one of
its founding directors.
[20.]
The respondent claimed though that the Church itself had remained in
existence and that there was never any resolution taken
for the
Church to be converted into a Section 21 company. He claimed that
because of Mpulu's directorship of the Section 21 company
Mpulu had
"no
direct and substantial interest in the affairs of the Church"
but
rather "a direct and
substantial
interest"
in
the Section 21 company. The respondent further claimed that
"by
virtue of that fact that he (Mpulu) is a Director of a company he has
no authority or locus standi to bring the main application
against me
on behalf of the Church".
The
respondent also claimed that Ntliziywana had initially been part of
the Nocanda dissident group but had changed sides and had
rejoined
"the Church".
[21.]
The respondent further claimed that
"With
the knowledge of the existence of the Section 21 company Reverend
Nocanda had issued an invitation to all moderators,
commissioners and
delegates to attend a 2009 111 General Assembly meeting to be held at
the Cape Presbytery in 26 Khoza Street,
Zwide, Port Elizabeth from
the 22
nd
to
the 27
th
September
2009".
The
invitation, dated the 12
th
July
2009 was issued by
"the
office of the moderator namely, Nocanda. Rev B.B Nocanda as he was
then."
The
respondent claimed that at that stage neither Nocanda nor Mpulu, in
particular, officially belonged to the Church who
"because
of their own conduct they excommunicated themselves from membership
of the church by establishing a Section 21 company."
On
the 24
,h
August
2009 a letter was written to Nocanda protesting his decision to
convene a General Assembly under the auspices of the Church
and he
was requested to withdraw the notice. There being no response the
respondent on the 21 September 2009 instituted in the
Mthatha High
Court proceedings against Nocanda and the Section 21 company to
interdict them from holding the meeting and using
the name of the
Church. A rule
nisi
was
granted by Luthuli AJ in the following terms;
"2.
1
That the decision of the 1
s
'
respondent authorizing the holding of
a
2009
111 General Assembly Meeting in the premises of the
2
nd
applicant
situate at 26 Khoza Street, Zwide, Port Elizabeth, from 22
nd
to
27
th
September
2009 in the name, description and auspices of Presbyterian Church of
Africa is declared;
2.1.1.
wrongful, of no force and legal effect; and
2.1.2.
be set aside."
[22.]
Respondent
claimed that despite the order having been served on Nocanda the
meeting went ahead. Contempt of court proceedings was
therefore
brought against Nocanda. On the 25
th
September
2009 an order was granted by Pakade J in the Mthatha High Court
(under case number 1691/09) against Nocanda to show cause
on the
return date why he should not be committed to prison for contempt of
court. On the return date both the main and contempt
of court
applications were argued before Nhlangulela J. On the 15
,h
of
April 2010 judgment was handed down in the following terms;
1.
The
respondents are interdicted and restrained from using the name
"Presbyterian Church of Africa"
2.
The respondents are ordered to pay the costs of the application
jointly and severely the one paying the other to be absolved,

including the cost occasioned by the employment of two counsel."
[23.]
It appears from the judgment that the court had found that no
deliberate intention on the part of Nocanda had been proved
to
constitute contempt of court. The court nonetheless also made an
order of costs against Nocanda in respect of the contempt of
court
application.
[24.]
The respondent claimed that although the judgment of Nhlangulela J
referred to Nocanda and not to Mpulu that, "....[It]
does
not authorize him to use the name of the church when he is a Director
of a company. It is my submission with respect that what
applies to
Reverend Nocanda also applies to any Director of a company insofar as
the use of the name is concerned."
The
respondent also claimed that the meeting of the 2009 111 General
Assembly meeting held on the 22
nd
and
27
tn
of
September 2009 was unlawful because at the time at which it had taken
place the interim order of Luthuli J had prohibited it.
The
respondent claimed that the election of Mpulu at the said General
Assembly was therefore unlawful and his election should be
set aside.
For this reason he also claimed that the certificate and resolutions
relied upon by Mpulu for his authority to depose
to the founding
affidavit should be regarded as
pro
non scripto.
[25.]
The respondent further claimed that the decision to excommunicate him
from the Church should be declared unconstitutional
and be set aside.
In support of his claim he referred to the letter of excommunication
which he claimed was signed by "one
of
the break-away people and a member/director of the section 21
company".
He
also claimed that his excommunication had not taken place in
accordance with the provisions of the Constitution of the Church
and
its internal processes. He claimed that he had seen the letter of
ex­communication for the first time as an attachment
to the
founding affidavit in these proceedings and claimed that it was
"manufactured
by Mpulu and the second applicant"
[26.]
The respondent also contended that the order made by Allie J
(referred to above) was merely a "Draft Order" and
should
carry no weight before this court. He also disputed that during July
2009 the Reverend Qalase was the Moderator of the Cape
Presbytery and
claimed that he (the respondent) was its lawful Moderator. Qalase he
claimed was also a member of the Section 21
company and could
therefore not be a Moderator of the Church.
[27.]
The respondent also disputed that there was any likelihood of
violence within the Church and denied that there were any congregants

who were upset or angered and claimed that it was rather the members
of the Section 21 company that had caused the disruption within
the
Church.
[28.]
In opposing the counter application, Mpulu on behalf of the
applicants disputed that the respondent had been appointed as
a
Moderator or that he was lawfully in charge of any of the Church's
property. He further claimed that in as far as the respondent

purported to have obtained authority from certificates and
resolutions signed by Faleni that Faleni had no authority nor any
right
to represent the Church. Faleni, he repeated, had been the
subject of numerous court applications in other jurisdictions in
which
he had been interdicted and restrained from exercising the
powers and performing the duties of Moderator of the Church.
[29.]
At the hearing of the application
Mr.
Torrington
who
appeared on behalf of the applicants handed in a bundle of documents
comprising various court orders some of which related to
Matomela and
Faleni. It appears, inter alia that final orders were granted against
both Faleni and Matomela under case number 4405/2003
in the High
Court at Bisho on the 19
,h
of
September 2003 by Kirk AJ and in the High Court of South Africa Free
State Division Bloemfontein under case no. 5958/07 on 28
th
August
by Cillie J in which they were inter alia restrained from professing
to represent the Church.
[30.]
If anything, the list of the various court applications in which the
Church was involved in reflected the extent of the disputes
between
it and its officials.
[31.]
Mpulu also explained that during 2007 the Church had acquired the
Section 21 shelf company and changed its name to Presbyterian
Church
of Africa for the purposes of fund raising. He claimed that the
Church had sought to benefit from the
Taxation Laws Amendment Act
which
had been passed in June 2000 which allowed for tax concessions
to persons who made donations to
Section 21
companies and which would
have encouraged donations to the Church. Mpulu, specifically denied
that he and the other directors had
established the
Section 21
company for the purpose of breaking-away from the Church. He claimed
that although he was a director of the
Section 21
company he was also
the duly elected Moderator of the Church. He claimed that the
respondent's contention that his directorship
of the company
precluded his authority to deal with the affairs of the Church was
"ridiculous".
Mpulu
also claimed that there was no provision in the Constitution that
prohibited any person who was a director of a company from
holding
any position including that of Moderator within the Church. He
claimed that the respondent's claims about an alternative
church were
simply a figment of his own imagination. Mpulu confirmed the
contention by the respondent that the Church had never
been disbanded
or converted into a Section 21 company and claimed that any
insinuation to the contrary had simply been derived
from the
respondent himself.
[32.]
With regard to the applications brought in the Bisho High Court
(under case number 1691/09 and 1757/09) against the Nocanda
and the
Section 21 company, Mpulu pointed out that Nhlangulela J in his
judgment had stated the following;
"It
is necessary to state that at this early stage Mr Dukada SC had
appeared with Mr. Mtshabe on behalf of the applicants informed
the
court that the applicants will not persist with the interim relief in
paragraph 2.2.2, the interdict concerning the holding
of the General
Meeting because such relief has been overtaken by the events."
Further;
"In
similar vain the court was informed that the applicants will abandon
the interdictory relief in paragraph 2 of the Notice
of Motion under
case number 1757/2009 that the respondents be compelled to stop the
meeting."
Mpulu
claimed therefore that there was no order by Nhlangulela J concerning
the proceedings conducted at the meeting and moreover
neither did the
applicants (in that matter) seek such relief. Mpulu further contended
that in the circumstances it was unclear
on what basis this court was
being asked to assist the respondent in the relief it sought in
paragraph 1 of its counter claim.
He further claimed that the
respondent had not set out any factual basis justifying any such
relief.
[33]
Mpulu also emphasized that the respondent had incorrectly claimed
that he, (Mpulu) had been elected at the General Meeting
held in
2009. He referred to the founding affidavit where he had stated that
he was elected as Moderator during 2008, a year before
the meeting of
September 2009 and that he had only been inducted into the position
of Moderator in the 2009 meeting.
[34.]
With regard to the ex-communication of the respondent Mpulu referred
to the letter sent to the respondent in which he had
been informed of
his ex­communication and that three letters had been sent to him
where he had been invited to attend meetings
which he had simply
ignored. Mpulu disputed that there were any other procedures which
the Church was required to have complied
with in regard to the
respondent's ex-communication.
[35.]
At the commencement of the hearing Mr. Torrington moved for an
amendment to the citation of the first applicant by the removal
of
the word
"The".
The
application was not opposed and was granted. The amendment
effectively removed the respondent's complaint that the Church had

not been properly cited in accordance with the Constitution of the
Church.
The requisites for
the interdictory relief.
[36.]
The applicants are required to satisfy three requirements for a final
interdict. They have to establish a clear right, an
injury actually
committed or reasonably apprehended and the absence of any other
ordinary remedy. Mr. Torrington argued that the
crisp issue to be
decided by the court was which of the parties, could lawfully
represent the Church. He submitted that such a
finding would
determine which party had the clear right to possess the keys of the
Church.
[37.]
The approach used by the courts in determining final relief in motion
proceedings is set out in the oft quoted decision of
Plascon
Evans Paints v Van Riebeeck Paints (Pty) Ltd
1984 (3) SA 623A
at 6431
where
it was held that in appropriate cases a court may grant a final order
if the facts alleged by the respondent together with
those alleged by
the applicant and which are admitted by the respondent justify the
making of such an order.
[38.]
The respondent himself claimed that he was part of the group of
congregants that were led by Matomela. He further claimed
that
Matomela had been replaced by Faleni and that his own moderatorship
had been authorized by Faleni The respondent did not dispute
that
Matomela had been interdicted by the Bloemfontein High Court from,
inter
alia,
representing
the Church. In fact he simply noted such claim made by Mpulu. He did
not provide any explanation as to how Faleni could
lawfully have
conducted any of the affairs of the Church in the face of the court
order. Further his claim that the order made
by Allie J as merely
been a "Draft Order" was patently wrong as appeared from
the reading of the order itself.
[39.]
Mpulu, in opposing the relief sought in the counter application
referred to the various applications made in various courts
which
included both interim and final orders against both Matomela and
Faleni where they were interdicted and restrained from representing

the Church. The respondent does not challenge or correct any of these
allegations by filing a replying affidavit to the counter

application, The respondent for his part had clearly associated
himself with the Matomela group of which Faleni was part of. There
is
no claim by the respondent that at anytime subsequent to the granting
of the orders that either Matomela or Faleni had obtained
legitimate
authority to represent the Church or the right to exercise the power
of Moderator.
The
counter application.
[40.]
The respondent claimed that the meeting of the 2009 111 General
Assembly held in Port Elizabeth had been declared unlawful
and of no
force and effect by the order of the Bisho High court. In this regard
reliance was placed specifically on the interim
order granted on the
21 September 2009 by Luthuli AJ.
[41.]
However the interim relief obtained under paragraph 2 of the
rule
nisi
had
not been made final by the order of Nhlangulela J. Furthermore the
respondents in that application are different from the parties
in the
counter-application before this court. So too is the very relief
sought in the counter application different from that obtained
in the
Mthatha High Court. During the course of argument I pertinently
raised with Mr. Mtshabe who appeared on behalf of the respondent
the
question with regard to whether this court had the jurisdiction to
deal with the relief sought in the counter application and
whether
the necessary parties had been joined to such counter application. I
had also raised with Mr. Mtshabe that there appeared
to be no record
of any proceedings with regard to the ex­communication to enable
this court to consider its lawfulness. In
response, Mr. Mtshabe
requested a postponement to enable the respondent to consider its
position. At the resumption of the hearing
some two months later Mr.
Mtshabe informed the court that the respondents had requested a copy
of the record of the proceedings
which had led to the
ex-communication of the respondent. The applicant's attorneys had
replied by letter that there was none and
that reliance was placed on
the provisions of section 76(9) of Chapter 21 of the Constitution. In
respect of the question of jurisdiction
it is apparent that the
proceedings of the meeting held 22
nd
through
to the 27
tn
of
September 2009 took place outside the jurisdiction of this courts.
Mr. Mtshabe however submitted that the court did enjoy jurisdiction

to consider the counter claim. However, given the findings that I
make with regard to the counter counter-claim it was not necessary
to
determine this issue. Of greater concern to this court was the fact
that Mpulu against whom the relief sought in prayer 2 of
the counter
claim was not joined as a party to the proceedings and neither was
Nocanda or the Section 21 company in respect of
the relief claimed
under prayer 1.
[42.]
With regard to the judgment of Nhlangulela J, Mpulu claimed in
response to the counter application that an application for
leave to
appeal had been noted. The transcript of the proceedings of the
application for leave to appeal was subsequently handed
in as it
appeared that there was some confusion between the parties as to
exactly what relief was sought to be appealed against
and by which of
the respondents. The order made by Nhlangulela J on the 15
th
April
2010 in the application for leave to appeal was in the following
terms;
"(i)
The application for leave to appeal to the full court of the division
is hereby granted, (ii) Costs to be costs in the
appeal."
There
is no substantial judgment or reasons for the order to indicate what
relief may be appealed against. It therefore, is not
clear to me to
the extent of the appeal which is to take place. That issue will
however more appropriately be dealt with and considered
by a court of
appeal in that matter. The matter, however bears little relevance to
the relief sought in the counter-application
and my findings in this
regard thereto.
[43.]
The applicants claimed and correctly so that the respondent had not
set out any other factual basis other than the proceedings
before
Nhlangulela J as a basis for setting aside the proceedings of the
meeting of the 22nd to 27
th
September.
The respondent claimed that because Mpulu was a director of the
section 21 company he could not have any authority and
interest in
the Church. I am of the view that such claim is entirely without any
basis and is simply untenable. There is no provision
in the
constitution which disallows any member of the Church from being the
director in a Section 21 company or any corporate entity
for that
matter. Moreover, Mpulu in the answering affidavit to the counter
application explained the purpose of the Section 21
company as been
that of fund raising and was an entity of the Church itself. Such
averments were not challenged by the respondent
in any replying
affidavit.
I
am therefore of the view that there is no basis for the relief sought
in paragraph 1 of the counter application.
[44.]
Mpulu had also made it clear in the founding affidavit that he had
been elected as the Moderator of the Church in a General
Assembly
held during 2008 but that he had only been inducted into that
position at the meeting of the General Assembly in September
2009. In
addition to what has already been stated there is no basis to set
aside the election of Mpulu which took place at a meeting
a year
earlier to that claimed by respondent. Insofar as Mpulu had been
inducted at the meeting of the General Assembly of 2009
there is also
no basis for this court to set aside such induction and moreover
since neither Nocanda nor Mpulu were joined as parties
to the counter
application.
[45.]
During the course of argument the respondent through his counsel
abandoned the relief sought under prayer 3 of the counter
application
with regard to his ex-communication. In this regard the respondent
placed before the court what he referred to as an
"Explanatory
Affidavit" by the Rev. EV John. John claimed that on the 28
th
June
2004 he was the Moderator of the Church that had
"broken
away"
from
the main Church. He claimed that there was no disciplinary hearing
that preceded the ex-communication of the respondent and
also claimed
that the respondent was one of a number of priests that were
ex-communicated without the provisions of the constitution
of the
Church being observed. He claimed that the ex-communication should
not have taken place. He also claimed that although he
had been a
member of the Nocanda dissident group he had since come back to the
legitimate Church. He also claimed that at a General
Assembly of the
Church which was held on the 27
,h
to
the 3
rd
of
October 2010 at Mount Frere it was resolved that the purported
ex-communication of the respondent should be withdrawn and set
aside
as being unlawful and unconstitutional and because it was taken by
the dissidents in the Church. He also claimed that it
was resolved
that the letter would be written to the respondent informing him of
the withdrawal of his ex-communication.
[46.]
It appears that the respondent's abandonment of the relief sought in
prayer 3 was based on the affidavit of John and the resolution
taken
at the proceedings of the meeting of the 27
th
-
3
rd
October
2010. During the course of argument it was brought to the courts
attention that an urgent application had been brought in
the Eastern
Cape High Court in Mthatha on Sunday 26
th
September
2010 by a Boloa Jacob Dhlamini, with the Church as the second
applicant against Mpulu in which
inter
alia
the
following relief was sought:
"(2.1)
That the respondent or any person acting for or on his behalf or on
his instruction or on his followers be hereby interdicted
and
restrained from interfering, disturbing and/or disrupting the General
Assembly Meeting of the second applicant to be held at
Badibanise
Locality. Mt Frere.
That
the respondent or any person acting for or on his behalf or on any
of his instructions or his follower be and is hereby
interdicted
from misleading the Sheriff and members of the South African Police
Services about Annexure "B.J.D.6"
to disrupt the General
Assembly Meeting aforementioned.
That
the respondent pay the cost in the event of opposition
(4.)
That 2.1 and 2.2 shall operate as an interim relief pending
finalization
(5.)
Further alternative relief. *
[47.]
It is not necessary for the purpose of this application to deal with
the details of that application save to note that Mpulu
has
subsequently filed his opposition to such application, anticipated
the rule
nisi
and
had also filed a counter application. The matter is pending. It's
relevance though relates to the claim by John with regard
to the
resolution that was taken in respect of the ex­communication of
the respondent. However, nothing further need be considered
with
regard to the issue of the ex-communication as the respondent himself
abandoned such relief. Moreover such relief would have
suffered the
same fate as the other relief claimed in the counter application
because of the respondent's failure to have at the
very least joined
Mpulu in the proceedings.
[48.]
The respondent also challenged the authority of the second applicant
to represent the first in these proceedings on the basis
that he was
also a member of the section 21 company As already stated there is no
basis for such challenge. There is no other challenge
to the
appointment of the second respondent as secretary of the deacon's
court of the Gugulethu Church of South Africa The second
applicant
has relied on his authority from an extract of the minutes of a
meeting of the 19
th
April
2010 of the Deacons Court of the Gugulethu Circuit.
[49.]
I am of the view that both Mpulu and the second applicant had the
necessary
locus
standi
to
have brought the application to protect the interests of the first
applicant, in particular, its immovable property situated
in
Gugulethu.
The
injury.
[50.]
The respondent denied that there was a threat of violence and the
risk of damage to the Church's property. It is clear from
Mpulu's
affidavit that it was necessary for the police to have been
approached because of the threats of violence and that the
keys of
the property had to be handed to the police for safekeeping.
Furthermore an application had to be brought in order to stop

Ntliziywana and his followers from interfering with the affairs of
the applicant. It is apparent that there existed the real risk
of
violence and or damage to the property of the Church. I am of the
view that the applicants had in the circumstances no other
option but
to bring the application for relief I am however, not persuaded that
in the circumstances of the dispute, that a punitive
order of costs
on an attorney client scale should be visited on the respondent in
his personal capacity.
In
the result
I
make
the following order;
(1)
That respondent and those authorized by him be interdicted and
restrained from utilizing the Immovable Property of the Church

inclusive of the Church buildings and the Manse situated at corner of
NY 50 and NY1 Gugulethu ('the property') for any purposes
whatsoever.
(2)
The keys of the Church which are presently being held by the Sheriff
in terms of the Interim Order granted on Friday 13 April
2010 be
handed over to the applicants.
(3)
The costs of this application and the counter application be paid by
the respondent in his personal capacity.
SALDANHA, J