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McCloud Junior NO and Others v Didloff and Others (22817/2011) [2012] ZAWCHC 119 (8 March 2012)

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[7] The first applicant is the Presiding Bishop of the Fifteenth Episcopal District of the AME Church which includes Angola, Namibia, the Northern Cape, the Western Cape and the Eastern Cape. He is responsible for the appointment of pastors to local churches. In terms of the Book of Discipline, each Annual Conference in every Episcopal District of the AME Church, is an incorporated legal entity.

[8] The second applicant is the Cape Annual Conference of the Fifteenth District and is the highest decision-making authority of this Episcopal District.

[9] With regard to the ownership of the property, the Book of Discipline provides that where property is owned by a local church, it is held in trust for the AME Church subject to the provisions of the Book of Discipline. The eight congregations and churches forming the subject matter of these proceedings are located on the property belonging to the AME Church.

[10] The third and fifth to tenth applicants are the pastors ("the pastors") appointed to the eight churches. The first applicant alleges that the eight pastors who were appointed at the December 2010 Annual Conference to replace the first to eighth respondents, have been prevented from taking up their pastoral duties at the churches to which they were appointed because of some of the respondents' conduct by holding themselves out as AME Church ministers in the congregations where they were based prior to December 2010 Cape Annual Conference.

[11] The first to eleventh respondents ("the expelled Ministers") were all pastors in the Cape Annual Conference of the Fifteenth Episcopal District of the AME Church, who were expelled from the church on 10 November 2011, following the institution of formal disciplinary proceedings against them.

[12] The first applicant alleges that the expelled Ministers were leaders of the grouping within the church called the Movement for Change and that the respondents together with other people disrupted the 2010 Annual Conference by screaming and singing hostile slogans and shouting derogatory remarks at the presiding Bishop Wilfred Messiah. All attempts to proceed with the Annual Conference proved futile as the respondents shouted loudly in order to prevent Bishop Messiah from conducting proceedings.

[13] It is common cause that at the conclusion of the December 2010 Cape Annual Conference none of the eight Ministers were reappointed to the congregation to which they had been assigned the previous year as a result of their disruption of the Annual Conference.

[14] Despite not having been assigned to any congregations, the eight Ministers continued to conduct themselves as if they were the duly appointed pastors at the congregations to which they had been appointed by the 2009 Annual Conference. Their conduct included presiding at worship, preaching, ministering to members of the congregations, burying the dead, wearing ministerial robes and continuing to live in the church parsonages. As a result of this conduct by the eight Ministers, the Ministers who had been appointed to replace them were unable to take up their posts.

[15] In the course of the Annual Conference, it was decided to institute disciplinary proceedings against a number of itinerant elders including the expelled Ministers on charges of violations of the Book of Discipline.

[16] The disciplinary proceedings against the expelled Ministers culminated in trials which were held between 27 August and 22 October 2011, which in each case resulted in the Minister concerned being suspended with immediate effect and a recommendation that he be expelled from the AME Church at the 2011 Cape Annual Conference. None of the expelled Ministers attended the disciplinary hearings despite having been given notice of the proceedings because they held the belief that the whole process was tainted and that they would not get a fair hearing. Some of the respondents allege that they did not attend the hearing because they did not receive notification therefor or that the notices they received did not give them sufficient time to prepare.

[17] The charges which were preferred against them were failure to pay budgets; failure to hold quarterly conferences; insubordination and sowing seeds of dissention. The hearings were conducted in their absence and they were found guilty of all the charges. The sentence imposed was an immediate suspension with a recommendation of expulsion. They were later sent letters informing them of the outcome of the disciplinary proceedings. The Annual Conference expelled them at its November 2011 sitting. The applicants contend that now that the first to eleventh respondents have been expelled from the AME Church, they have no right to worship in, or enter into, AME Church property.

[18] The applicants point out that by failing to hold Quarterly Conferences, the expelled Ministers precluded the Presiding Bishop and his Presiding Elders from being able to evaluate their performance and ensuring that the congregations were complying with the teachings of the Church. They state that the respondents' defiance of the authority of the Church by not holding Quarterly Conferences was compounded by their failure to pay their dues or budgets to the Fifteenth Episcopal District of the AME Church which resulted in severe financial difficulties for the Church.

[19] In substantiation of the allegation that the respondents were insubordinate and sowed the seeds of division, the applicants refer to and rely on a letter addressed on 18 April 2011 to the first applicant by the secretary of the Movement for Change communicating inter alia that some of their congregations have declared themselves "a Jurisdiction of the African Methodist Episcopal Church with immediate effect' and that they no longer considered themselves "part of the Cape Annual Conference nor the Fifteenth Episcopal District'. The applicants point out that the Book of Discipline makes no provision for a unilateral declaration of an independent jurisdiction within the AME Church.

[20] It is common cause that in terms of the Book of Discipline the expulsion decisions of the Cape Annual Conference remain effective until they are reversed or otherwise changed by the Judicial Council. The respondents have lodged an appeal to the Judicial Council against their expulsion decisions.

[21] In response to the applicants' allegations, the respondents allege that during the first half of 2010 certain ministers and lay members of the Church became increasingly unhappy and frustrated at what they perceived as unfair treatment to one Minister and a failure by the Church to deal with serious allegations of sexual misconduct against others. In substantiation of these allegations they cite two incidents. The first relates to the charges of sexual misconduct which were made against Reverends Barends and Burger which they allege Bishop Messiah failed to investigate. The second involves the suspension of Presiding Elder Rev. Shane Appollis which they say was unfair as the ministers and lay members of the district in which he presided were opposed to it and were not afforded an opportunity to voice their concerns. The respondents point out that matters came to a head when Bishop Messiah locked 42 elders and deacons, together with their delegates and visitors out of the Annual Conference in December 2010.

[22] The respondents go on to say not only did Bishop Messiah fail to address these issues but he retaliated by not appointing any of the 42 elders or deacons to a congregation. The respondents through the Movement for Change tried to resolve their differences between them and Bishop Messiah but those attempts failed because the Bishop lacked a will to co-operate.

[23] They point out that when the first applicant arrived in Cape Town on 16 February 2011 he convened a meeting with the 42 elders and deacons who had not been reappointed by Bishop Messiah. At one of the meetings which some of the respondents had with the first applicant the latter undertook to reinstate all of the ministers who were not reappointed. The respondents allege that not only did the first applicant renege on his undertaking but he proceeded to have all the ministers located without following a proper procedure as set out in the Book of Discipline.

[24] In particular in terms of section Xii, para C of the Book of Discipline which deals with the located Ministers "whenever it is determined by a committee on Ministerial

Efficiency that a member of the Annual Conference is unacceptable, inefficient or indifferent, or that secular affairs disqualify one from pastoral work, it shall notify the said pastor in writing six months prior to the Annual Conference session and ask the pastor to request location. If the member refuses or neglects to locate, the Conference may, by two-thirds vote, upon recommendation of the of the Committee on Ministerial Efficiency, locate without consent which deprives the pastor of right to exercise ministerial orders".

The located ministers took the decision to locate them on appeal to the Judicial Council. The Judicial Council upheld their appeal and set aside the decisions to locate them on the basis that the April 2011 Cape Annual Conference did not have authority to locate the affected ministers.

[25] The respondents contend that the purported expulsions of the first to eleventh respondent were unlawful. They point out that the Annual Conference was not properly constituted. Secondly, they aver that the entire disciplinary proceedings against the first to eleventh respondents were so flawed as to be a nullity. They contend that a Judicial Committee which purported to conduct disciplinary proceedings was elected or appointed at the special session on 16 April 2011 which was not something that can be done at such a session. Thirdly, the respondents contend that the applicants may not bring the proceedings for the confirmation of the interdict while the respondents have appealed against the disciplinary findings and "sentences".

[26] Some of the respondents do not deny that they are still performing their ministerial functions at their respective congregations despite the fact that they were not reappointed. They justify their conduct by contending that the congregations in question have refused to accept the pastors nominated by Bishop Messiah. They want the respondents. Others justify their conduct on the basis they were allowed to resume their duties by the first applicant at the meeting on 2 April 2011.

[27] The question is whether the applicants should, on these facts, be granted a final interdict. In order to succeed in obtaining a final interdict the applicants must establish a clear right, an injury actually committed or reasonably apprehended and the absence of similar or adequate protection by any other ordinary remedy. (Setlogelo v Setlogelo 1914 AD 221 at 227).

[28] The respondents oppose the confirmation of the rule nisi on the basis that the applicants have failed to meet all the requirements for the final interdict. They admit that they have continued to attend, and, preach at the affected churches on the grounds first, of the agreement they concluded with the first applicant on 2 April 2011 and secondly, on the basis that the congregations at whose churches they preach do not want the pastors who were appointed by Bishop Messiah. They prefer the respondents. The respondents admit that they were expelled from the AME Church but they contend that their expulsions are unlawful and invalid and afford no basis for their exclusion from participating in the church activities.

[29] The applicants aver that the expelled ministers' explanation to justify their unlawful conduct should be rejected as in the first place, the congregations have, in terms of the Book of Discipline, no right to determine pastors appointed to them. Secondly, the first applicant rejects the suggestion that he reappointed the expelled ministers on 2 April 2011. He avers that the respondents repudiated the agreement reached on 2 April 2011 by associating themselves with the resolution taken by some of the members of the Movement for Change in terms of which they had decided to declare unilateral independent jurisdiction. The applicants contend further that the respondents were lawfully expelled from the church in November 2011 and that being the case they are not allowed to perform any ministerial functions on its behalf.

[30] It is clear that there is a dispute of fact on the papers. This will be resolved in terms of the approach as set out in Plascon-Evans Paints v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634E- 635C bearing in mind that a final relief is sought.

[31] In my view, the basis upon which the expelled ministers contend that they are entitled to continue to perform ministerial activities despite their non-appointment, should be rejected. The congregation does not have authority to override the decision of the Bishop. It is the Bishop who has authority to appoint ministers and pastors. That being the case the congregation cannot confer authority on the ministers who were not reappointed. Secondly, it is clear from the evidence that the attempt to settle the dispute between the respondents and Bishop Messiah failed after the secretary of the Movement for Change, of which the respondents are members, wrote a letter on 18 April 2001 declaring unilateral independent jurisdiction. In the circumstances, to the extent that there may be a dispute of fact on these issues I will resolve it on the basis of the applicants' version.

[32] Referring to the well-established requirements that an applicant for a final interdictory relief has to satisfy to obtain an order, Mr Dickerson SC, who together with Mr Hathorn appeared for the applicants submitted that AME Church as the owner of the properties on which the relevant churches are located, has the right to possess the properties which includes the right to exclude other persons which therefore means that no other persons may withhold its properties from it unless they are vested with some right enforceable against it. For this proposition he relied on Chetty v Naidoo 1974 (3) SA 13 (AD) at 20 A - C.

[33] He argued that the first to eleventh respondents were expelled as ministers and as members of the Church which expulsion in terms of the Book of Discipline remains effective until set aside by the Judicial Council.

[34] I did not understand Mr Engers SC, who appeared for the respondents to be disputing that the AME Church is the owner of the relevant properties on which the churches are located and that as the owner it has a right to exclude the respondents. His argument was that the order sought by the applicants is overbroad to the extent that it seeks to ban the expelled ministers not only as ministers but also as members from entering any of the affected churches. He argued that there is no suggestion that the respondents are physically damaging the property of any of the affected churches or that their mere presence on church property constitutes a threat to anything or anyone. He pointed out that the respondents' total exclusion from the relevant churches can only be based on the contention that the respondents were validly expelled as members of the church. He submitted that in order to show a clear right it is necessary for the applicants to prove that there had been a valid expulsion.

[35] In my view, there is no basis for the suggestion that in order to succeed the applicants need to prove that the expulsions of the first to eleventh Ministers were valid. This argument misconceives the nature and the purpose of these proceedings. The lawfulness of the church's decision to expel the first to eleventh Ministers is not challenged in these proceedings and that being the case there is no onus cast on the church to justify the lawfulness or otherwise of its decision. This is not the purpose of these proceedings. The provisions of the Book of Discipline, relating to the appeals is clear. Clause B of the Book of Discipline at 292, dealing with effect of appeals, makes it clear that the judgment of a trial Court is effective throughout the whole Church until it is reversed or otherwise changed by the appellate tribunal.

[36] As the expelled Ministers are no longer pastors and members of the church they have no right to enter the affected churches, control access to the church buildings and prevent duly appointed Ministers to the congregations from taking up their posts. In these circumstances the applicants are justified in approaching this Court for an interdict as they have a well grounded apprehension that the expelled Minsters will continue to prevent the duly elected Ministers from performing their duties.

[37] The respondents oppose the granting of the final interdict on the ground that the expulsion decision is invalid and for that reason it may not be relied upon as a basis for the interdictory relief. In substantiation of their contention that their expulsion was unlawful the respondents argue firstly, that the entire process which culminated in their expulsion was fatally flawed in that the judicial committee which conducted the disciplinary proceedings was not properly appointed as the special conference at which it was appointed did not have power to do so; secondly, that the expulsion vote itself was invalid because it was taken before the full roll had been called with the result that the Annual Conference was not properly constituted to the extent that the roll of lay delegates had not been taken.

[38] It is clear to me that the allegations on which the respondents' defence are based are predicated on the review-related grounds which objectively speaking, do not address the case that they are called upon to meet. In any event there are two answers to the respondents' submissions. Firstly, in terms of Oudekraal Estates (Pty) Ltd v City of Cape Town & Others 2004 (6) SA 222 (SCA) para 26 even if the expulsion decision was unlawful it remains valid until it is set aside by a Court in proceedings for judicial review and its legal consequence cannot simply be overlooked.

[39] Secondly, the defences which the respondents seek to raise constitute a collateral challenge to the validity of expulsion decision and is not available to the respondents. The collateral challenge to the validity of an administrative act is generally available only in proceedings where a public authority seeks to coerce a subject into compliance with an unlawful administrative act. In other words, it will be available only "if the right remedy is sought by the right person in the right proceedings (Oudekraal Estates, supra at para 35; V & A Waterfront Properties (Pty) Ltd and Another v Helicoper & Marine Services (Pty) Ltd 2006 (1) SA 252 (SCA) at para 10; Club Mykonos Langebaan Ltd v Langebaan Country Estate Joint Venture and Others 2009 (3) SA 546 (CPD) at para 38). In the present case, the respondents are not sought to be coerced by a public authority into compliance with an unlawful act. What is being sought against them is that they be interdicted from entering the church buildings on the property belonging to the church on the basis that upon their expulsion the right in terms of which they were given access to the church and use its property had ceased to exist. The respondents' reliance upon a collateral challenge to the validity of expulsion decision is, in my view, misplaced. The expulsions of the respondents by the Annual Conference is final until reversed on appeal by the Judicial Council. It is therefore not open to the respondents to seek to attack the validity of the expulsion decision in these proceedings outside of the procedure provided for in the

Book of Discipline.

[40] Once the substantive validity of their expulsions decision is accepted pending the determination of the appeal by the Judicial Council, it means that the expelled Ministers have no right to continue to keep and retain in their possession property belonging to the Church and which was made available to them for the purposes of fulfilling their duties as Ministers.

[41] In the absence of co-operation by the expelled Ministers to respect their expulsions and to act in accordance therewith pending the final determination of their appeal by the Judicial Council the applicants have no alternative available remedy by which they can seek compliance by the expelled Ministers with the expulsions decision. In these circumstances, an interdictory relief is the only remedy available to them. I am satisfied that the applicants have established the clear right, its violation by the respondents and that is has no adequate protection by any other ordinary remedy.

[42] The alternative argument advanced by Mr Engers was that even if I find that the applicants have established all three requirements for the final interdict, I should nevertheless, in the exercise of my discretion refuse to grant the final interdict. In support of this submission he relied on (Laskey and Another v Showzone CC and Others 2007 (2) SA 48 (C) at paras 42 and 43). He pointed out that the present matter is an appropriate case in which I should in the exercise of my discretion refuse the final interdict because firstly, the interdict presently sought goes much further than necessary to prevent the harm complained of to the extent that it goes so far as to interfere with the respondents' right to worship at the church of their choice. He argued that granting the interdict in the terms sought by the applicants will also impact very negatively on the reputation of the respondents. Secondly, he pointed out that there are more appropriate remedies available and thirdly, that this is a matter which should, and will, be sorted internally within the church.

[43] There is some uncertainty as to whether a Court has a discretion to refuse to grant a final interdict when the applicant has established all three requirements for an interdict, (Herbstein & Van Winsen: The Civil Practice of the High Courts of South Africa 5^th Ed. Vol 2, page 1470). See Kemp, Sacks & Nell Real Estate (Edms) Bpk v Soil 1986 (1) SA 673 (0) at 689; United Technical Equipment Co (Pty) Ltd v Johannesburg City Council 1987 (4) SA 343 (T). In the Laskey and Another case supra the Court considered the issue even though it was not squarely before it. The issue before the Court (at para 40) was whether the operation of the final interdict could be suspended so as to enable the respondent to implement the remedial measures. After an extensive review of the relevant case law, it found that the Court has a general discretion to refuse an interdict even if all the requisites for the grant of a final interdict are present.

[44] Returning to the question which was before it the Court held at para 45:

"[45] As I have mentioned, the applicant's argument in this connection was founded on the dicta in the United Technical Equipment (supra) and Nelson Mandela Metropolitan Municipality (supra) cases. As both those matters were decided on the basis of an assumption of the existence of a wider discretion to refuse a final interdict than Schreiner J considered to be available, it is plain to me that neither of the judgments was intended to be resolutive of what is clearly an uncertain area in our law. Schreiner J's remarks in the Transvaal Property and Investment Co (supra) case were predicated on what the learned Judge considered to be the implications arising from the statement in Setlogelo (supra) that a person with a clear right and no adequate alternative ordinary remedy was entitled to a final interdict. The learned Judge was not called upon to consider the extent of the courts' power, if any, to suspend the operation of an interdict. In my view the temporary suspension or postponement of the operation of a final interdict is a question quite distinguishable from the refusal of a final interdict in a context in which the applicant has satisfied the requirements for relief. No authority has been cited to me which makes it clear that this Court lacks the discretionary jurisdiction to suspend the operation of a final interdict. On the contrary, as I have shown, precedent in this and other Divisions supports the existence of such a power. In the absence of any argument based on the common law to demonstrate the fallacy of such authority, I therefore intend to proceed on the assumption of the existence of such discretion. Obviously the discretion must be exercised judicially."

[45] Although I accept that the Court has a discretion in appropriate circumstances to suspend or postpone the operation of a final interdict even if all the requisites for its grant have been met, the facts, upon which the respondents rely for the contention that I should do so, do not, in my view, justify the exercise of the discretion in their favour. This is so because firstly the Book of Discipline says the expulsion decision becomes effective until reversed by the Judicial Council. If I were to suspend the operation of an interdict pending the finalisation of the appeal process by the Judicial Council and allow the expelled Ministers to continue performing their Ministerial functions that would lead to a creation of two centres of power in the affected congregations and which will have an effect of further deepening the division in the Church and undermine the functioning of its democratic process.

[46] The next issue to consider is the adequacy of the undertakings given by the respondents. In the further affidavit which was admitted with the leave of the Court, the expelled Ministers inter alia gave an undertaking that they would not perform any ministerial duties and would hand in the keys to the affected church building to the trustees and surrender their ordination papers or marriage licences to the first applicant to be kept by him pending the outcome of the Judicial Council hearing.

[47] Mr Dickerson rejected the respondents' undertakings on the ground that they are not bona fide. He submitted that the respondents' offer to hand over the keys of the affected churches to the trustees is nothing else but a ploy to retain to themselves access to the church premises because the trustees to whom they have offered to deliver the keys are sympathetic to the cause of the grouping to which the respondents belong.

[48] The question is whether the undertakings given by the respondents afford adequate protection to the applicants. In my view, the applicants are justified to view the respondents' undertakings with suspicion and doubt their bona fide given their lateness and that the respondents had all along opposed the grant of an interdict on the basis that the decision to expel them is invalid and they behaved as if the expulsion decision never existed. But be that as it may, I am, however, prepared to assume in their favour that their desire to find solution is genuine and on the basis of that assumption, I will fashion the order that I propose to make in such a manner that it will allow the respondents limited access to the affected church buildings for the purposes of attending church service and worshiping pending the final determination of their appeal by the Judicial Council.

The Order

[49] In the result, the order in the following terms is made:

1. Subject to paragraph 2 below, each of the first to eleventh respondents are interdicted and restrained - unless and until each such respondent's expulsion from the Fifteenth District of the African Methodist Episcopal Church ("the AME") is overturned by an ultimate appeal authority of the said church, or their membership of the AME is fully reinstated - from entering the following buildings:

1.1. The Church, together with a temporary wing attached to the Church, of the Ebenezer AME Church, Bellville, located at the corner of Industria and Kasselsvlei Roads, Bellville South;

1.2. The Church, the Church hall and five classrooms of the St. John AME Church, Kensington, located at the corner of Fifth and Eleventh Streets, Kensington;

1.3. The Church of the Mount Carmel AME Church, Ocean View, located at 16 Deer Street, Ocean View;

1.4. The Church, the Church hall and three classrooms of the Trinity AME Church, Grassy Park, located at 1 Kleinsmith Street, Grassy Park;

1.5. The Church and Church hall of the Mount Olive AME Church, Piketberg, located at 62 Loop Street, Piketberg;

1.6. The Church and Church hall of the St. Peter's AME Church, Parkwood, located at 4 Hyde Road, Parkwood;

1.7. The Church of the DP Gordon AME Church, Wolseiey, located at 20 Rayman Street, Wolseiey; and

1.8. The Church of the Ebenezer AME Church, Ceres, located at 21 Lylle Street, Ceres.

2. Notwithstanding paragraph 1 above, until such time as the Judicial Council of the AME upholds or rejects (or decides not to entertain) the proposed appeal of each of the said Respondents against their expulsion, each such Respondent shall be entitled to enter any of the 78 AME Churches, except the particular church at which such respondent previously acted as pastor, for the sole purpose of attending a regular church service as any ordinary congregant.

3. Each of First to Eleventh Respondents shall not act as, or hold themselves forth as being pastors of the AME or otherwise preach, baptise or perform any pastorial functions within the AME's district or other functions associated with the AME (including the wearing of ministerial attire), unless and until such respondent is in the future appointed as a pastor by the Bishop of the AME in accordance with the Book of Discipline.

4. The first to eighth respondents are directed, forthwith, to:

4.1. Hand over to the applicants' attorneys of record all and any keys to the buildings listed in paragraph 1 above which are in their possession (or under their direct or indirect control);

4.2. To account to the applicants' attorneys for the whereabouts (if known) of any such keys which are not so handed over.

5. Each of the first to eleventh respondents is directed forthwith to hand their papers of ordination and their marriage licence certificates over to the Applicants' attorneys of record. The said documents will be held by first applicant in safekeeping.

6. The first to eleventh respondents, jointly and severally, shall pay the applicants' costs of the suit, excluding costs of 18 November 2011 on the party and party scale, including the cost of two counsel where two counsel was used.

D H ZONDI