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[2012] ZAWCHC 323
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Board of Incorporators of the African Episcopal Church and Others v Heradien and Others (9691/12) [2012] ZAWCHC 323 (21 September 2012)
Republic of South Africa
In the Western Cape High Court of
South Africa
Case
No: 9691/12
In
the matter between:
THE
BOARD OF INCORPORATORS
OF
THE AFRICAN EPISCOPAL CHURCH
...................................................
First
Applicant
THE
CAPE ANNUAL CONFERENCE OF
THE
15
th
DISTRICT OF THE AFRICAN
METHODIST
EPISCOPAL CHURCH
.......................................................
Second
Applicant
BISHOP
ERROROUS EARL McCLOUD JUNIOR NO
.................................
Third
Applicant
REVEREND
MARK PIETERSEN
................................................................
Fourth
Applicant
And
PETRUS
HERADIEN
...............................................................................
First
Respondent
DOROTHY
HERADIEN
......................................................................
Second
Respondent
THE
WITZENBERG MUNICIPALITY
.....................................................
Third
Respondent
Judgment delivered: 21 September 2012
Louw
J:-
[1] The African
Methodist Episcopal Church (AME Church) is incorporated as a legal
entity under the Law of the United States of
America and is an
international voluntary religious organisation. Worldwide the AME
church comprises 80 semi -autonomous episcopal
districts which are
constituted in terms of and governed by the Book of Discipline which
document is the founding charter and
governing statute of the AME
Church. Each of the episcopal districts comprises a number of
subordinate local churches or congregations.
The 15
th
episcopal district comprises the territories of Angola,: Namibia,
the Northern Gape, Western Cape and the Eastern Cape. This
application concerns the affairs of one of the subordinate local
congregations situate in the Western Cape territory of the 15
th
Episcopal District, namely, that of the Ebenezer congregation of the
AME Church in Ceres, (the Ceres congregation).
[2] The first
applicant , the Board of Incorporators of the AME Church, is the
legal representative of the AME Church, with the
right to sue and be
sued in matters in which the property rights of the church are
concerned; The first
:
applicant is based in Philadelphia in the United States of America.
The second applicant is the Cape Annual Conference of the
15
th
District of the A M E Church (The Cape Annual Conference) and is in
itself an incorporated legal entity who when it is sitting,
is the
highest decision making authority in its area of jurisdiction within
the AME Church. The third applicant was, at all times
; relevant to
this application, the presiding bishop of the 15
th
episcopal district of the AME church. He held that position from 3
January 2011 to 4 July 2012. The third applicant deposed to
the
launching affidavit on behalf of the. applicants. The fourth
applicant is the Reverend Mark Pietersen. He has been appointed
as
the pastor of the Ceres congregation but has not taken up his
appointment because the first respondent, Mr Petrus Heradien,
purports ;to continue to occupy that position and continues to live
in the parsonage of the Ceres congregation. The second respondent
is
Ms Dorothy Heradien the wife of the first respondent. She continues
to live with her husband in the parsonage of the Ceres
congregation
with their three minor children.
[3] The third respondent is the
Witzenberg Municipality. Ceres fails within the area of jurisdiction
of the third respondent.
The applicants seek no relief against the
third respondent who is joined by them only in so far as it may have
an interest in
the relief sought by the applicants against the first
and second respondents.
[4] The applicants seek the eviction
of the first and second respondents from the parsonage in terms of
section 4 of the Prevention
of. Illegal Eviction from and Unlawful
Occupation of Land Act, 19 of 1998 (PIE): The third respondent has
not filed a report
in this matter and in my view, the circumstances
of this case do hot require a report from the third respondent to be
filed.
[5] The applicants’ case is
that the first respondent was the pastor of the Ceres congregation
church from 2009 until December
2010 alternatively April 2011, when
he was suspended as member of the AME Church and his appointment as
pastor was terminated.
He was finally expelled from the AME Church
in November 2011.
[6] The AME
church is the owner of the land on which the parsonage is situated.
The title deed of the property reflects that the
owners of the
property are the trustees for the time being of the African
Methodist Episcopal Church, Ceres. In terms of the
Book of
Discipline the trustees of the AME church in Ceres hold the property
in trust for the AME Church. The applicants contend
that there is at
present no duly constituted and lawfully functioning board of
trustees of the Ceres congregation because that
board has not been
constituted since the Cape Annual Conference held in December
:
2010.
[7] The applicants contend that the
first respondent was lawfully, expelled from the AME Church at the
November 2011 Cape Annual
Conference, together with ten other former
ministers who are members of a dissident grouping known as‘the
movement for
change’.
[8] After their expulsion, the first
respondent and the other ten expeljed ministers continued to
exercise control over, the buildings
and property of the AME Church.
The AME Church then sought an interdict in this court against the
expelled ministers to assert
the property rights of the AME Church
over the buildings concerned. On 8 March 2012.Zondi J granted the
interdict and upheld
the property rights of the AME Church. The
first respondent and the other expelled ministers were interdicted
from acting as
pastors of the AME Church and were ordered to
surrender the keys to the AME Church property concerned, to the
applicants’
attorneys.
[9] The first respondent was not
reappointed as pastor to.the Geres congregation in December 2010.
Bishop McCloud states that
in terms of the book of Discipline and
the practice of the AME church, a pastor who is not reappointed to a
congregation is required
to vacate the parsonage within 30 days to
allow the new pastor to take up his or her appointment. The first
respondent does not
deny that this is the rule and the practice in
the church but avers that he has, despite the fact that he has been
a minister
of the AME Church for over twenty years, no knowledge of
such rule and practice.
[10] On 19
January 2012 the applicants’ attorneys gave the first and
.second respondents written notice that required them
to vacate the
parsonage by 31 January 2012. The applicants informed the first, and
second respondents that if they should not
so vacate the premises,
eviction proceedings would be
:
instituted against them in terms of PIE. After the. orders made by
Zondi, J on 8 March 2012, the applicants have not been able
to take
possession of the parsonage and Church building of the Ceres
congregation.
[11] The first and second respondents
oppose the application on a number of bases. First of all they raise
three points in limine.
1. Bishop McCloud has not been
authorised to institute proceedings against them;
2. The decision to expel the first
respondent from the AME Church was unlawful and the eviction
application is premature.
3. There has been a non-joinder in
that the trustees of the Ceres congregation, who are reflected as
the registered owners; of
the property in the title deed, were not
joined in this application.
[12] In
Unlawful Occupiers, School Site v
City of Johannesburg
2005 (4) SA
199
(SCA) at para [14] it was held that Rule 7 (1) provides the
remedy for a respondent who wishes to challenge the authority of a
person allegedly acting on behalf of an applicant. The procedure
provided for in that rule has not been followed by the first
and
second respondents. It is, however, clear from what is set out in
the applicants replying affidavits that their attorneys
have been
duly authorised to institute these proceedings. It is the
institution of the proceedings and the prosecution thereof
which
must be authorised: and the issue is not whether bishop McCloud has
been authorised to depose to the launching affidavit
or to represent
the applicants.
[13] The second
point in limine is based on. the contention that; the first :
respondent was unlawfully expelled from the AME
Church at the 115
th
special session of the Cape Annual Conference. The first respondent
contends that the applicants should have waited until after
the
completion of the internal ; appeal processes provided for in.the
Book of Discipline, before instituting the: ; eviction
proceedings.
[14] The
decision to expel the first respondent, from the AME Church was not
taken at the 115
th
special session of the Cape Annual Conference which was held on the
16 April 2011. The decision to expel him was taken at the
;
116
th
session of the Cape Annual Conference which was held during November
2011. This appears from the minutes of the latter conference.
[15] The first
respondent relies on a notice of appeal which relates to his
suspension
at the 115
th
session of the Cape Annual Conference.
[16] There is
no internal appeal pending against, the decision
to
expel
the first respondent taken by
the 116
th
session of the Cape Annual Conference. The first respondent and the
other expelled ministers have given notice of their intention
to
appeal their expulsion, but the Judicial Council of the AME Church
has ruled that the Book of Discipline does not provide
for such a
procedure. However, if a notice of intention to appeal is accepted
as the due lodging of an appeal, the Book of Discipline
makes it
clear that the expulsion " remains effective until reversed or
otherwise changed by an appeal body; Events have
in any event
overtaken the issue of the occupancy of the parsonage in Ceres. In
terms of the Book of Discipline it is the prerogative
of the
presiding bishop to assign ministers to a particular congregation.
Bishop McCloud first assigned the reverend Willem Burger
as the
pastor to the Ceres congregation but he was prevented from taking up
his position by the first and second respondents
and other dissident
members of the congregation; Thereafter, on 13 November 2011 at the
116
th
Cape Annual Conference, bishop McCloud assigned the reverend Mark
Pietersen, the fourth applicant; as the pastor to the Ceres
congregation. He was also prevented from taking up this post and
from preaching at the Ceres congregation. The position is therefore
that even if an appeal or review brought by first respondent against
his expulsion from the AME Church should be successful,
he would at
best, be reinstated as a member and as a minister of the AME Church.
A successful appeal or a review of his expulsion
from the AME Church
would not have the effect of reinstating him as the pastor t6 the
Ceres congregation.
[17] The third point in limine
concerns the contention that there is a fatal non-joinder of the
four persons who claim to be the
local trustees of the Ceres
congregation. The first respondent does not contend that he is a
member of: that board of trustees.
The four persons involved are lay
members of the congregation. The Book of Discipline limits the term
of office of local church
trustees to a period of one year. That
period of a year has expired and there is therefore no properly
constituted board of trustees.
The first respondent contends however
that there is a practice in the AME Church that in the absence of
the election of a new
board of trustees, the then current board of
trustees continue in office despite what is set out in the Book of
Discipline. However,
the Book of Discipline provides that a minister
in charge of the congregation is the chairperson of the local board
of trustees
and that the - ; minister’s signature ‘shall
be necessary to make the acts of the trustees legal’. : There
is in my view no misjoinder in this case because the four persons
who:; claim to constitute the board of trustees cannot without
a
minister as Chairperson, be a lawfully constituted board of
trustees. Any act purportedly ;' = performed by them in that
capacity will have no legal effect.
[18] It follows that in my view all
the points in limine raised by the first and second respondents must
be rejected.
[19] The first and second respondents
raise the following two defences to the merits of the eviction
application.
1. They occupy the parsonage under a
valid lease and they are: therefore not unlawful occupiers in terms
of PIE.
2. It is not just and equitable in
terms of section 4 (7) of PIE for an eviction order to be granted.
[20] The first and second respondents
rely, upon a document purporting to be a lease agreement concluded
by the first respondent
with the trustees of the Ceres congregation
on 13 April 2011. The document is signed by a Ms Pearly E Malgas and
records that
the first respondent hires the parsonage from the
trustees of the Ebenezer Church, Ceres from 13 April 2011 to
December 2012
at a monthly rental of R300.00. Ms Malgas purports to
sign this lease on behalf of the trustees.
[21] I agree
with the contention by Mr Hathorn on behalf of the applicants that
the ‘lease
5
has no legal effect. The four persons who it is claimed constitute
the board of trustees of the Ceres congregation are all lay
members
of the church. Not one of them is a duly appointed minister of the
AME Church. As pointed out earlier, the Book of Discipline
requires
the signature of the duly appointed minister for the acts of a local
board of trustees to have any legal effect. Ms
Malgas who claims to
have been authorised to sign the lease on behalf of the trustees
cannot by her signature of the document,
give legal validity to the
document. The document does not constitute a valid lease with the
AME Church (or for that matter the
board of trustees of the Geres
congregation) and gives rise to no binding obligation on the AME
Church. It follows that the first
and second respondents are
unlawful occupiers of the parsonage.
[22] The second defence raised by the
first and second respondents is that it will not be just and
equitable for them to be evicted
from the parsonage.
[23] The
applicants contend that it is just and equitable for the
:
first and second respondents to be evicted having regard to a number
of fact? relating to the first respondent’s means.
The first
is the. fact that the first respondent . has been a councillor in
the local authority for a number of years and receives
a substantial
remuneration package. During the course of the hearing Mr;
Carollissen on behalf of the first / and . second respondents
handed
up a document reflecting that the first respondent, due to an
alleged default with the payment of compulsory public representative
contributions for a period of two months, in the amount of R7 284.00
for ‘candidate fees’, has ceased to be \ a member
and
public representative of the political party, the Democratic
Alliance. A notice to that effect was served upon the first
respondent on the 4
th
September 2012 and records that in terms of the constitution of the
Democratic Alliance, the first respondent was granted the
opportunity to provide reasons in writing within 72 hours of the
service of the notice, why his membership of the party did not
in
fact cease. It would therefore appear that the first respondent will
in all likelihood not continue to be a councillor in
the local
authority.
[24] The applicants further allege
that the first respondent runs a successful street vending business
in Ceres, Wolseley and
Tulbagh and that he, in addition, owns two
properties in Wolseley. The first respondent’s response to the
allegations of
the applicants in this regard is equivocal. Although
he purports to deny the whole of the contents of the paragraphs of
the launching
papers in which the details of his occupation ,
business and property ownership is recorded, he proceeds to deal
with, the allegations
in question.
In regard to the vending business he
states:
'I run a vending business but it is
not a flourishing vendor business’.
In regard to his alleged ownership of
the two properties in Wolseley he states:
‘
According to the applicants I
own two properties and I put the applicants to the proof thereof.
The first respondent is not candid at
all about his income from his vending business and he does not
answer the question whether
or not he owns two properties in
Wolseley. These are all matters which are peculiarly within his
personal knowledge. On these
papers it must consequently be accepted
that the first respondent owns two properties in Wolseley and
conducts the street vending
business in the three towns mentioned.
[25] The first respondent gives
further reasons why it would not be just and equitable for him to be
evicted. He points out that
he does not receive any income as a
minister of the AME church, and that his income as a councillor is
dependent on his and his
political party’s re-election in that
position. He further states that he has a disabled child whom he is
required to take
to Brackenfeil to a special school on Fridays and
that he spends a lot of money on medical aid for his disabled child.
He is
also, he states, the main breadwinner of his family and he
contends that an eviction will have a clear hardship on his life. It
would consequently not be just and equitable to evict him from the
parsonage he contends. He does not claim that if he.should
be
evicted, he and his family will be rendered homeless.
[26] In addition, the AME Church is
placed in an intolerable position. Until the first and second
respondents vacate the parsonage,
the duly appointed minister to the
Ceres congregation is not be able to move into the parsonage and
properly perform his duties
as minister of that congregation.
[27] In the circumstances, it would
in my opinion be just and equitable to evict the first respondent
and his family from the
parsonage. I turn to consider the discretion
given to a court in terms of sec 4 (7) of PIE. I conclude that I
must in the circumstances
set out above, exercise my discretion to
gratnt the order of eviction sought by the applicants.
[28] It follows that the application
succeeds and the following order is made:
1. The first and second respondents
and any person occupying under them, are evicted from the parsonage
situated at 21 Lylle Street,
Ceres, more fully described as Erf 566,
Ceres, Western Cape Province (‘the parsonage’);
2. The first
and second respondents and any people occupying under them, are
directed to vacate the parsonage by Wednesday, 31
October
2012
;
3. The Sheriff for the High Court may
carry out the eviction order on Thursday, 1 November 2012, if the
first and second respondents,
and any people occupying under them,
have not vacated the parsonage by Wednesday, 31 October 2012;
4. The first and second respondents,
and any people occupying under them, once they have vacated or been
ejected from the parsonage,
are interdicted and restrained from
returning to it; and
5. The first and second respondents
are ordered to pay the costs of this application, jointly and
severally.
W.J. LOUW
Judge of the High Court