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[2021] ZAWCHC 161
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Booysen and Others v Followers of Christ Church and Others (6195/2019, 22079/2016) [2021] ZAWCHC 161 (19 August 2021)
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RTF formatIN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: 6195/2019
22079/2016
In the matter between:
KORTMAN BOOYSEN First Applicant
MELVYN KATZ Second Applicant
JAMES STEVEN KATZ Third Applicant
MARGERET ABRAHMSE Fourth Applicant
ARTHUR JON JAMES Fifth Applicant
SAMUEL HENRY JONKERS Sixth Applicant
JENNY SARAH BOOYSEN Seventh Applicant
ELIZABETH GRACE KATZ Eighth Applicant
CHARMAINE KATZ Ninth Applicant
NAOMI KATARINA KATZ Tenth Applicant
DESIREE JONKERS Eleventh Applicant
NIKOLAAS ANDREWS Twelfth Applicant
ELLEN ANDREWS Thirteenth Applicant
WALTER JOHANNES MOSES Fourteenth Applicant
JAN JAKOBUS VAN WYK Fifteenth Applicant
PETRUS JOHANNES DIERGAART Sixteenth Applicant
NICHOLAAS CORNELIUS BEUKES Seventeenth Applicant
And
FOLLOWERS OF CHRIST CHURCH First Respondent
OF SOUTH AFRICA AND NAMIBIA
RONALD ABRAHAMS Second Respondent
MARGARIETA ABRAHAMS Third Respondent
MOSES WENCE Fourth Respondent
ROLAND POOLE Fifth Respondent
ADELAIDE POOLE (NOW SMITH) Sixth Respondent
PETER POOLE Seventh Respondent
STAN PETERSEN Eight Respondent
WILLEM JACOBS Ninth Respondent
TREVOR STEVENS Tenth Respondent
CAROLINE STEVENS Eleventh Respondent
ABSALON JOOSTE Twelfth Respondent
MAGDALENA JOOSTE Thirteenth Respondent
ALMA BARRON Fourteenth Respondent
CHRISTINA DIRKS Fifteenth Respondent
ERIK PIETERSEN Sixteenth Respondent
JUDGMENT DELIVERED ELECTRONICALLY: THURSDAY 19 AUGUST 2021
NZIWENI AJ
Introduction
[1] There are three interlocutory applications in this matter. Two of these have been brought by the applicants, wherein they seek leave to amend the notice of motion, in terms of Rule 28 (1) of the Uniform Rules, and condonation for the late filing of the replying affidavit. The third interlocutory application has been brought by the respondents, to file a supplementary affidavit. The parties agreed that it would be convenient for the court to consolidate the various applications, including the two main applications, and deal with everything at once. Given the nature of the objections raised to the various interlocutory applications, and the number of main applications involved in this matter, I am amenable to the suggestion.
Amendment application
Introduction
[2] As for the application to amend, the respondents are strenuously opposing the proposed amendments.
[3] In light of the amendments sought, and the objections raised thereto, it is therefore necessary to set out some of the relief sought in the original notice of motion. The relief sought was set out as follows:
‘ . . . Applicants intend to make an application to the above Honourable Court on a date to be determined by the Registrar of this Honourable Court, for an order in the following terms:
1.1 An order that a Committee, which includes and consists of the Second to Sixteenth Respondents, that purports to have been duly nominated, constituted and appointed to control, manage and administer the affairs of the First Respondent be declared to have no such authority as it is presently purporting to do,
1.2 An order that it be declared that the First Respondent, alternatively the Committee, has no binding and enforceable constitutional or framework to control, manage and administer the affairs of the First Respondent,
1.3 An order that control, management and administration of First Respondent vest in the Pastors of the First Respondent that held positions as such as the date of certain of Applicants suspensions,
1.4 An order that such Pastors, mentioned in paragraph 3 supra, act as an interim Management Committee pending the adoption of a new constitution and leadership to govern the control, management and administration of the First Respondent.
2. An order that an independent mediator be appointed by the Chairperson of the Legal Practice Council, Western Cape, with such independent mediator being vested with the following powers, rights and duties:
2.1 . . .’
[4] In terms of the notice of intention to amend, the applicants seek to delete paragraphs 1.2-1.4 and replace it with the following:
‘1.2 An order declaring that:
1.2.1 the Constitution adopted in February 2000 (annexure MBK 10 to the founding affidavit) is the current constitution in terms of which the affairs of the first respondent (the Church) are governed.
1.2.2 the International Council is the highest authority of the Church consisting of the pastors and ministers as at the date when the President’s Council ceased to exist.
B. By deleting paragraph 1.3 and replacing it with the following:
1.3 Alternatively to 1.2 above, an order declaring that:
1.3.1 the Church has no binding and enforceable constitution or framework which makes provision for its control, management and administration.
1.3.2 the fourteenth applicant, sixteenth applicant and the 27th plaintiff in the action under case number no 22079/18, Cornelius Carolus Goliath, be authorised to manage and administer the affairs of the Church pending the adoption of new constitution and leadership structure.
C. By deleting paragraph 1.4.
D. By inserting the following at the start of paragraph 2, before the words “An order that and independent mediator be appointed . . .”
“In the further alternative to paragraph 1.2.2 and 1.3.2 above. . .”’
In the respondents’ notice of objection in terms of Rule 28 (3), the following is stated:
‘1. The applicants’ proposed amendment is mala fide for the following reasons: -
1.1 Applicants filed a notice of intention to amend on 8 February 2021;
1.2 Respondents filed a notice of irregular step in terms of Uniform Rule 30 (2) on February 2021 due to the non- compliance to the prescriptive format as it is required by the Rule;
1.3 No supporting allegations are contained in the founding affidavit deposed to by Melvyn Katz on 10 April 2019 in support of the proposed amendment to the prayers contained in the notice of motion;
1.4 The Applicants have failed to lay foundation and provide supporting evidence to warrant the proposed amendment to the prayers in the notice of motion;
1.5 The Applicants through the proposed amendment intends to introduce new issues, which issues are not supported by the required allegation and evidence;
1.6 The Applicants cannot be allowed to cure the failure to have included the required allegations and evidence to justify the proposed amendment by way of the contents of the Applicant’s Replying Affidavit.’
Did the applicants comply with the provisions Rule 28?
[5] Much was made about the delay in bringing the application, as well as the manner in which the leave to amend application has been brought. Pursuant to the delivery of the notice of objection, in terms of Rule 28 (3), the applicants only moved their interlocutory application to amend in court, on the day of the hearing of the main applications.
[6] It is the respondents’ contention that the applicants failed to comply with the provisions of the Uniform Rules, in particular Rule 28 (4). Rule 28 (4) provides as follows:
‘If an objection which complies with subrule (3) is delivered within the period referred to in subrule (2), the party wishing to amend may, within 10 days, lodge an application for leave to amend.’
[7] In De Kock v Middelhoven 2018 (3) SA 180 (GP) the following is opined at paragraphs 13, 14 and 17:
‘[13] . . . The old rule 28 (4), which was amended on 28 January 1994 by the new rule reads as follows: . . .
In terms of the old rule a party that “wish[ed] to pursue an amendment” had to make a substantive application for leave to amend . . .
[14] Quite clearly the provisions of the new rule 28 (4) are quite distinct from the provisions of the old rule. While the old rule 28 (4) put it expressly that a party pursing an amendment “shall . . . apply to Court . . . for leave to amend”, the new rule 28 (4) states that “the party wishing to amend may . . . lodge an application for leave to appeal.” . . .
[17] . . . In my view, the new rule 28 (4) postulates two procedures by which a party seeking an amendment may approach the court for leave to amend. It is of capital importance to point out in the first place that the choice of the procedure to seek such leave is, by using the word “may”, left entirely to the discretion of such a party. The first procedure that a party pursuing an amendment may use is oral. By this method, all that such a party has to do after receiving the notice of objection in terms of rule 28 (3) is to set such a matter down for hearing and, on the date of hearing, simply walk into court and orally apply for leave to amend. The second procedure of applying for leave to amend is to “lodge an application for leave to amend” as enjoined by the provisions of rule 28 (4). What the new rule 28 (4) has done is to abolish the regimented procedure of the old rule 28 (4) which compelled a party seeking an amendment to bring a substantive application for leave to amend. The new rule 28 (4) does not compel a party seeking an amendment to deliver an application for leave to amend. . . .’
[8] From Middelhoven, I get the distinct impression that the court suggests that Rule 28 (4) confers on a litigant a subjective discretion, and allows the litigant to have a virtually unfettered discretion. First and foremost, I fully agree that the relevant Rule does not signify a peremptory provision, but suggests procedural flexibility. However, I am not of the view that it was the intention of the legislator, when making the provisions of Rule 28 (4) discretionary, to afford a litigant an absolute or sole discretion to be exercised on an indiscriminate basis.
[9] Contrary to the stance adopted in Middelhoven, in so far as the discretion related to the decision as to whether an application should be lodged as prescribed in Rule 6 of the Uniform Rules, by filing a notice of motion, or to simply introduce the application for the first time in court, it is my view that Rule 28 (4) does not bestow wide powers upon litigants. Surely, if the decision is left at the disposal of a party to elect its own procedure without limits, that decision may be used capriciously or unfairly. Hence, a litigant’s discretion cannot be left unfettered. A party in court proceedings cannot be given broad power or choice to do as he or she thinks fit. It makes no sense that a complete procedural discretion be granted to a litigant. Obviously, in the exercise of its discretion the party should consider certain things.
[10] In passing I may mention that the test is objective and not subjective. In my mind, the view of a subjective discretion is not practical, as it empowers a litigant to do as he or she deems fit. Clearly, there should be something which will constrain the wide power in order to avoid the perils of unconfined powers. It is quite surprising that the Middelhoven decision does not put any limit to that power. The exercise of the discretion afforded should be measured against the nature of the amendment and the subject matter of the case in question. I firmly believe that the circumstances of a particular case will determine which course of action to follow. It is further my view that if a party chooses the wrong procedure out of the two permissible courses of action, it may do so at his or her own peril, and runs the risk of an order being granted against him or her.
[11] In Swartz v Van Der Walt T/A Sentraten 1998 (1) SA 53 (W), page 57A-C, the court opined:
‘Amendments to pleadings can be of a wide variety. Some are simple and purely formal in nature, ie to amend arithmetical and clerical errors in pleadings. Other amendments may be more substantial, for example amendments seeking to withdraw an admission made on the pleadings. It is trite law that amendments constituting the withdrawal of an admission have to be done on affidavit. However, it would, in my view, be absurd to interpret the new Rule 28 (4) as prescribing the use of the Rule 6 procedure in all cases of applications for leave to amend pleadings. In cases where a mere word or figure requires amendment, it would be totally absurd to file a notice of motion supported by an affidavit to secure such amendments. Affidavits would only be necessary in more substantial amendments, such as the withdrawal of admissions.’
[12] When regard is had to Swartz page 57D, the court stated that the legislator must be deemed to have taken into consideration that many an amendment is sought and granted during the course of a trial. The court further pronounced that if such amendments are in all cases to be brought on notice of motion, and supported by affidavits, trial proceedings will needlessly be interrupted and become inordinately protracted. In my mind, the aforegoing evinces further proof that there is a standard to determine which course to take when a party is considering amending its pleadings. A party cannot simply follow any procedure of its own choosing. Being so, the procedure to be followed is determined on a case-by-case basis, depending on the particular circumstances.
[13] This leads me to consider whether the course chosen by the applicants was the correct course of action to pursue in the context of this matter. It was stated in the notice of objection that, after receiving the notice of intention to amend, the respondents filed a notice of an irregular step, in terms of Uniform Rule 30 (2), in February 2021, citing the non- compliance with the prescriptive format as it is required by the Rule. Oddly, the Rule 30 irregular step complaint does not form part of the papers or the arguments.
[14] Be that as it may, as already alluded to, it is contended on behalf of the respondents that the applicants failed to bring an application as contemplated in Rule 28 (4). From the aforegoing, it is obvious the respondents’ contention is not correct. The real question, therefore, is whether the route chosen by the applicants to bring the amendment was the correct course under the circumstances of this case.
When scanning for differences between the two notices of motion, one only picks up superficial deviations. As I was examining the nature of the proposed changes, I perceived no paradigm shift as proposed by the respondents. From this it becomes clear that the proposed amendments are merely a means to an end for attaining a leadership position for the first respondent. All the more so in context of this case, the proposed amendments do not need new evidence to justify, as they will result in small adjustments, which will produce the same outcomes as those initially desired. For instance, the current notice of motion seeks:
‘An order that it be declared that the First Respondent, alternatively the Committee, has no binding and enforceable constitutional or framework to control, manage and administer the affairs of the First Respondent,
An order that control, management and administration of First Respondent vest in the Pastors of the First Respondent.’
[15] Whereas in terms of the notice of intention to amend, the applicants are seeking to delete paragraph 1.2 and replacing it with the following:
‘An order declaring that:
1.2.1 the Constitution adopted in February 2000 (annexure MBK 10 to the founding affidavit) is the current constitution in terms of which the affairs of the first respondent (the Church) are governed.
1.2.2 the international Council is the highest authority of the Church consisting of the pastors and ministers as at the date when the President’s Council ceased to exist.’
[16] Though the applicants have simply changed their approach, the underlying causa (legal cause) of the application is the same. The content has not changed that much; merely the process of achieving the objectives has changed. The changes are merely an adoption of a new strategy. They do not seek to make up a new case. Moreover, the proposed changes are somewhat related to the original motion and the founding affidavit. This will further be illustrated hereunder. However, the question is whether the amendments will prejudice the respondents. Because, in various material respects, the proposed amendments do not deviate from the notice of motion, I am accordingly in agreement with the submission made on behalf of the applicants that it is not fathomable that the proposed changes will prejudice the respondents. For these reasons, it seems to me that the applicants cannot be blamed for the course they chose to bring the amendment. Obviously, the circumstances of the case allowed the course.
Delay in bringing an amendment
[17] It is the respondents’ contention that the applicants did not account for their inordinate delay in bringing the application for an amendment. This is based on the time-period specified in Rule 28 (4). Plainly, the 10 days are applicable when an application is lodged.
[18] In view of the of the above finding, that there are two ways of bringing an application for an amendment, coupled with the fact that in the context of this case the applicants did not need to lodge a substantive application as contemplated in Rule 28 (4), the assertion that the applicants have delayed in bringing the application, cannot be sustained.
[19] This brings me to the issue as to whether it was necessary for the applicants to have included an affidavit.
Was the affidavit necessary?
[20] In the notice of objection, it is stated that the applicants have failed to lay a foundation and provide supporting evidence to warrant the proposed amendments to the prayers in the notice of motion. In Swartz, supra, it was stated that an application brought on notice does not require a supporting affidavit unless the particular circumstances require same. The court further stated that not all applications for amendment will require an affidavit. In the context of this matter, I hold the view that the notice to amend did not need to be accompanied by an affidavit.
Mala fide amendment
[21] It is settled that an amendment sought mala fide shall not be allowed. The respondents, in their attack upon the amendments sought, categorically rely on the grounds that the contemplated amendments are premised on mala fides. It is the respondents’ contention that the intention behind the amendments sought is to, amongst others, introduce new issues, and to cure the failure to have included the required allegations and evidence.
[22] Inasmuch as the grounds upon which the objections are founded, are stated by the respondents as intended by Rule 28 (3), the attack remains baseless and unsustainable. To me, it is clear from the papers that the thread that permeates the various headings in the founding affidavit, and continues throughout, is that the first respondent has no binding and enforceable constitution or framework which makes provision for its control, management and administration. This, amongst others, is evinced in the founding affidavit when it is contended that the succession plan, which ought to have been implemented by Apostle Poole and Mrs. Poole, never materialised, and that this has left a void with regards to the issue of who are to constitute, manage and administer the affairs of the first respondent. This is actually the golden thread which underscores the entire application.
[23] It is important to keep in mind that the applicants, by seeking to delete paragraph 1.3 of the notice of motion and to replace it with a different prayer, do not by any stretch of imagination, in the context of this matter, seek to introduce new issues, which are not supported by the necessary allegations. In fact, the founding affidavit of Melvyn Katz refers to the necessary facts, which support the amendment sought. Hence, I hold the view that the incorporation of a new paragraph 1.3 does not mean incorporation of new incidents, or facts.
[24] As far as the proposed amendment to paragraph 1.4 of the notice of motion is concerned, it clearly illustrates that the contention is rather perplexing under the circumstances of this case. It boggles one’s mind as to how a deletion of paragraph 1.4 of the original notice of motion can be mala fide. If the proposed amendment to paragraph1.3 is granted, then paragraph 1.4 of the original notice of motion would be irrelevant. Logic suggests that it makes absolute sense that if prayer 1.3 of the original notice of motion is deleted, prayer 1.4 should follow suit.
[25] Similarly, when it comes to the amendment pertaining to the February 2000 constitution, first and foremost the relevant constitution is annexed to the founding affidavit. Furthermore, the deponent to the founding affidavit states, in paragraph 69, that the specific constitution was adopted by the first respondent on the 1st of February 2000 and that its provisions were similar to the one adopted on the 1st of January, save for the fact that there was an addendum to the constitution of February 2000. He further contends that the members of the first respondent adopted and ratified the February constitution. The respondents, in the answering affidavit, admitted the assertions, save to mention that the constitution of the 1st of February 2000 was the third constitution.
[26] Interestingly, in paragraph 74 of the founding affidavit, it is stated that the constitution which was adopted on the 21st of April 2007, annexed as MBK 11, is similar to the previous constitutions, except for the fact that it replaced the International Council with a Committee. What I glean from the founding affidavit is that there are indeed averments made that justify the amendment sought, which is, to make the International Council the highest authority of the Church consisting of the pastors and ministers as at the date when the President’s Council ceased to exist. The amendments sought are consistent with the assertions made in the founding affidavit. The applicants, in seeking the amendments, are not taking up fresh issues. For all intents and purposes, the applicants simply want to adjust the relief that they are seeking.
[27] It is of some significance that the proposed amendments are exclusively confined to the notice of motion. Importantly, a notice of motion, unlike the founding affidavit, does not outline the facts upon which an application is based. By necessary implication, this leads to the conclusion that a notice of motion does not include evidence. Put simply, a notice of motion, which is ordinarily delivered together with an affidavit, mainly serves to notify the court and the opponent about an intent to approach a court to seek the indicated relief. Essentially, the applicants, with the proposed amendments, are seeking to amend their prayers in the notice of motion. Hence, I find the contention that the proposed amendments to the notice of motion are mala fide, quite curious.
[28] When regard is had to what the amendments seek to introduce, together with the founding affidavit, I simply cannot fathom the basis for questioning the bona fides of the applicants. It is my view that while the respondents contend that the applicants did not lay a foundation or provide supporting evidence to warrant the proposed amendments, or that the amendments sought are aimed at introducing new issues and to cure the failure to have included the required allegations and evidence, this is not borne out by the facts in the papers before this court. It is my view that the contention is entirely predicated upon a fallacy and appears contrived.
Generally, an amendment is to be allowed unless the application to amend is mala fide or unless the amendment will lead to prejudice or injustice to the other party, which cannot be compensated with a cost order.
In this matter there is no reason why all the amendments sought in the notice dated 20 February 2021, should not be allowed.
[29] The law as far as amendments are concerned is quite clear. The courts have taken a liberal approach in allowing amendments at any stage before judgment. The amendments sought are thus allowed.
Condonation of late filing of the replying affidavit
[30] It is settled that condonation is not to be had merely for the asking. The applicants have made an application for the late filing of the replying affidavit, which application the respondents did not oppose. The applicants have given a full account as to why the replying affidavit was filed out of time. I hold the view that the account constitutes valid grounds for the delay.
[31] The delay, in my view, cannot be described as an inordinate delay. It is my firm view that it is in the interests of justice to grant the condonation. The applicants have made out a case for condonation. Consequently, the late filing of the replying affidavit is condoned.
Application (by the respondents) to file supplementary affidavit
[32] The respondents seek leave to file a supplementary affidavit. The applicants strongly object thereto. The opposition hinges mainly on the relevance of the supplementary affidavit.
[33] When the circumstance of this matter are taken into account, it is my view that the supplementary affidavit is relevant in the adjudication of the issues raised. It raises issues which are related to the constitution of the first respondent. It is also most important that full ventilation of issues should not be avoided.
[34] Though it is trite that only three sets of affidavits are allowed in motion proceedings, it is axiomatic that in terms of Rule 6 (5) (e) the court has a discretion to permit the filing of further affidavits. I cannot see how the applicants can be prejudiced in the filing of the additional affidavit.
[35] Despite the opposition, I am permitting the respondents to supplement their answering affidavit. Consequently, the filing of the supplementary affidavit is condoned.
Main Applications
[36] As indicated above, chiefly, there are two applications before this court. The first one is an application under case number 6195/19; the second application is an interdict application under case number 22079/16.
[37] In respect of the matter under case number 6195/19 (“the first application”), the applicants are the suspended members of the Followers of Christ Church of South Africa and Namibia (“the first respondent”). In the first application, the applicants are challenging the legitimacy of their suspension from the first respondent, by the committee of the church (“the respondents”) in March 2016, and the authority of the respondents to manage the affairs of the first respondent. Regarding the interdict application (“the second application”), the respondents bring the application in their capacity as the committee of the first respondent, seeking interdictory relief restraining the suspended members, and a declaratory order.
[38] For convenience, I shall refer to the parties as they appear under case number 6195/19, the first application.
The first application
Points in limine
[39] In relation to this application, the respondents raised a number of preliminary legal points.
[40] I deal seriatim with each of these seven preliminary points.
Locus standi of the applicants
[41] It is settled that an applicant must have the requisite locus standi before it can have the issue it brings before court adjudicated. In other words, the applicants’ rights must have been affected before they can seek interference by the court.
[42] The respondents are of the view that the applicants have no right to approach the court to seek redress regarding issues relating to the first respondent. They claim that the applicants lack locus standi, therefore, they are incompetent litigants. It is the respondents’ contention that the applicants are no longer members of the first respondent; alternatively, the respondents contend that the applicants remain, at best, suspended members of the first respondent. It appears that the respondents are viewing the applicants’ litigation as being frivolous. It further seems as if the respondents are entertaining a view that the applicants’ interests in the affairs of the first respondent have since been extinguished.
[43] On the other hand, in the founding affidavit the applicants aver that the parties in these proceedings are all members of the first respondent. In addition, the applicants, amongst others, claim that they are aggrieved by the decision, taken by some of the respondents, to terminate their memberships. They claim that the decision, which was taken by the members of the committee, affected their rights.
[44] Significantly, if regard is had to the pleadings, it becomes apparent that the applicants have a real and direct interest in the matter. Suspension prevents the applicants from enjoying the rights and privileges of membership of the first respondent. In this case for an indefinite period.
[45] The applicants claim that the committee, which is currently running the affairs of the first respondent, is an illegitimate body. The applicants further say that if the court does not hear the issues they bring to court, they may unfairly lose their membership in the first respondent, and the first respondent may be hijacked by an illegitimate structure.
[46] It is evident that the applicants still want to retain their membership of the first respondent, and they want to assert their rights against the committee they claim is illegitimate.
[47] Whilst it is true that it is common cause that the applicants’ membership had been terminated, clearly, the decision to terminate membership remains impugned, by virtue of the fact that the applicants are still seeking redress against it. Moreover, even the respondents’ contention that the applicants are suspended members, clothes the applicants with standing. Only from this, the preliminary issue is doomed to fail.
[48] It surely cannot be presumed that merely because membership has been terminated or suspended, a party’s standing to challenge the decision to terminate membership has been extinguished.
The respondents’ contention that, because the applicants’ membership has been suspended or terminated, the applicants are temporarily debarred from privilege, office or functions of the church, is incredibly bizarre to me, and in the same breath very illuminating. It suffices to state for present purposes that, by definition, albeit the applicants are currently suspended members of the first respondent, they have, however, made out a case that they all have locus standi in this case, as they are amongst others challenging their suspension. Fundamentally, even if their membership was entirely terminated they would have standing to challenge the decision to terminate their membership. Surely, the decision to suspend or terminate membership is not beyond scrutiny.
[49] The locus standi in this matter is inextricably linked to the impugned decision to suspend the applicants’ membership. For that matter, it is indeed so that a suspended member or an expelled member has an inherent standing to challenge the legitimacy of the body which expelled him or her. I say this because the applicants assert that the committee unlawfully interfered with their rights. This invariably permits the applicants, as affected right-holders, to challenge the decision concerned. In light of the issues raised in this matter, I do not view the applicants as being over-zealous litigants. This is a matter which is the applicants’ exclusive concern.
[50] Surely, it is not up to the respondents to decide which rights the applicants can assert, particularly if the interests the applicants seek to protect are germane to the first respondent’s purpose. However, strangely enough, though the applicants are raising issues which deserve judicial resolution, the respondents still want to marginalise them. Inasmuch as the respondents are claiming that the committee is legitimately in power, that does not exempt it from being challenged. Excluding the applicants, who are seeking to raise issues which directly affected them, would lead to a travesty of justice. Consequently, it is quite evident that the arguments proffered on behalf of the respondents in this regard are highly flawed.
[51] In view of the aforegoing, I find it difficult to understand why the respondents are set on challenging the standing of the applicants. The point in limine is dismissed.
The dispute of fact
[52] It is the respondents’ contention that the dispute of fact and law present in this application cannot be resolved through motion proceedings. Plainly, in this matter there is a dispute of fact which arises from the affidavits; particularly when it comes to the authority of the committee.
[53] In National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA), at paragraph 26, the following is stated:
‘Motion proceedings, unless concerned with interim relief, are all about the resolution of legal issues based on common cause facts. Unless the circumstances are special they cannot be used to resolve factual issues because they are not designed to determine probabilities. It is well established under the Plascon-Evans rule that where in motion proceedings disputes of fact arise on the affidavits, a final order can be granted only if the facts averred in the applicant's (Mr Zuma’s) affidavits, which have been admitted by the respondent (the NDPP), together with the facts alleged by the latter, justify such order. It may be different if the respondent’s version consists of bald or uncreditworthy denials, raises fictitious disputes of fact, is palpably implausible, far-fetched or so clearly untenable that the court is justified in rejecting them merely on the papers.’ (Internal footnote omitted.)
[54] Davis J, in Bester NO and Others v CTS Trailers (Pty) Ltd and Another 2021 (4) SA 167 (WCC) paragraph 44 stated:
‘The injunction by Harms DP in National Director of Public Prosecutions v Zuma. . . that motion proceedings are designed for the resolution of legal disputes based on common cause-cause facts looms large. The oft-cited test set out by Corbett JA . . . in Plascon – Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd . . . is that is an applicant seeks to have matter decided on motion, he or she or it is ordinarily obliged to accept the facts alleged by the respondent as true. This rule, of course, may not apply –
‘if the respondent’s version consists of bald or creditworthy denials, raises fictitious disputes of facts, is palpably implausible or farfetched or so clearly untenable that the court is justified in rejecting them merely on the paper.’
In Mthizana-Base and Others v Maxhwele and Others (3351/18) [2019] ZAECMHC 11 (28 February 2019) the following was observed at paragraphs 5 and 7:
‘[5] . . . In most applications, however, disputes of fact, whether minor or more substantial, arise. As a result, rules have been developed to determine the facts upon which matters must be decided where disputes of fact have arisen and the parties do not want a referral to oral evidence or trial. . . .
[7] In other words, generally speaking, in motion proceedings in which final relief is sought, factual disputes are resolved on the papers by way of an acceptance of those facts put up by an applicant that are either common cause or are not denied as well as those facts put up by the respondent that are in dispute. I have said that this rule applies “generally speaking” because there are exceptions to it, as already alluded to by Corbett JA. These are instances where despite denials by a respondent, no real, genuine or bona fide dispute of fact can be said to have been created.’
[54] The respondents have correctly indicated what the dispute of fact is in this matter. In light of the aforegoing, it is evident that not every dispute of fact will lead to conversion of a matter. The court should therefore be able to distinguish between a real dispute which warrants conversion and a fictitious one.
[55] The question that immediately arises is whether there is a genuine dispute of fact on the affidavits on vital issues in this application, and would such dispute be irresolvable without viva voce evidence.
[56] It is so that it is the applicants’ contention that there was a constitution which was adopted in 2005, however they do not have a copy of it. On the other hand, the respondents contend that there never was a constitution adopted in 2005. It may be so that at face value it may appear that this is a dispute of fact. However, in the bigger scheme of things, when everything is taken into consideration, it becomes clear that in the effected amendment the applicants are not saying that they require the court to declare the 2005 constitution a valid constitution of the first respondent. In any event, the applicants could not even produce the 2005 constitution. In my view the dispute pertaining the 2005 constitution is neither here nor there in the context of this matter.
[57] Additionally, gleaning from the papers it becomes apparent that it is not in dispute that there are various constitutions, which were created to manage the affairs of the first respondent. It is further not in dispute that the existing committee, which is made up largely of the respondents, came into power after the demise of Apostle Poole and his wife. The critical dispute between the parties is whether the existing committee has the powers to manage the affairs of the first respondent and, if so, from where does it derive such powers. Put differently, the critical dispute pertains to the question as to whether there is a constitution currently, which bestows powers on the existing committee.
[58] Furthermore, this court does not agree with the respondents’ contention that the dispute of fact and law in the present matter cannot be resolved on application. In this case there are undisputed facts and documents which can make it possible to determine the disputed facts, without resorting to oral evidence. I consider that these disputes can be properly be resolved on the papers; I further believe that, although the issues are there, there is enough to enable the affidavit to pass muster. Consequently, the dispute of fact can be resolved on paper.
[59] I thus fully align myself with what was stated in Stellenbosch Farmers’ Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 (C), at 235E–G, when the court observed as follows:
‘. . . where there is a dispute as to the facts a final interdict should only be granted in notice of motion proceedings if the facts as stated by the respondents together with the admitted facts in the applicant’s affidavits justify such an order . . . Where it is clear that facts, though not formally admitted, cannot be denied, they must be regarded as admitted.’
[60] It is therefore my view that this objection in limine cannot be sustained under the circumstances of this case.
Non-Joinder
[61] Clearly, there is no merit in the contention that the applicants should have joined other branches of the first respondent in this application. In this matter it is not in dispute that the first respondent is a church organisation with its head office in Elsies River. It is also not in dispute that the first respondent is the mother church.
[62] Inasmuch as an institution like a church is a very complex entity, it is unimaginable that the applicants would be required to join all the other branches and their members in this litigation. In Judicial Service Commission and Another v Cape Bar Council and Another 2013 (1) SA 170 (SCA), at paragraph 12, the following is stated:
‘It has by now become settled law that the joinder of a party is only required as a matter of necessity — as opposed to a matter of convenience — if that party has a direct and substantial interest which may be affected prejudicially by the judgment of the court in the proceedings concerned (see eg Bowring NO v Vrededorp Properties CC and Another 2007 (5) SA 391 (SCA) para 21). The mere fact that a party may have an interest in the outcome of the litigation does not warrant a non-joinder plea. The right of a party to validly raise the objection that other parties should have been joined to the proceedings, has thus been held to be a limited one . . .’
[63] In this matter the applicants seek this court to determine which constitution is valid to govern the affairs of the first respondent, and whether the current committee of the first respondent derives powers from that constitution. The applicants are not seeking that the court should change the constitution of the first respondent. They are seeking relief which will facilitate the lawful running of the first respondent’s affairs. Under the circumstances, I do not see how other branches would be prejudiced if they are not joined, or what other case they would present in these proceedings. This preliminary point also stands to be dismissed.
That the applicant be estopped from denying existence of 2009 constitution
[64] In Aris Enterprises (Finance) (Pty) Ltd v Protea Assurance Co Ltd 1981 (3) SA 274 (A), on page 291D-E, the following was stated:
‘The essence of the doctrine of estoppel by representation is that a person is precluded, ie estopped, from denying the truth of a representation previously made by him to another person if the latter, believing in the truth of the representation, acted thereon to his prejudice (see Joubert The Law of South Africa vol 9 para 367 and the authorities there cited). The representation may be made in words, ie expressly, or it may be made by conduct, including silence or inaction, ie tacitly (ibid para 371); and in general it must relate to an existing fact . . .’
[65] From the outset, this preliminary issue is stillborn. It is inconceivable that a party can be estopped from challenging an issue merely because he or she did not challenge it in the past. Surely, the fact that a person does not challenge an issue does not always lead to the conclusion that he or she has made a representation. Ex facie paragraphs 43 and 44 of the answering affidavit, it is clear that the respondents are making assumptions. The respondents did not present evidence to fulfil the requirements of estoppel.
[66] Moreover, under the circumstances of this case, considerations of fairness require that the issues be ventilated. It is further my view that what is stated in the affidavit of the respondents does not satisfy the requirements of estoppel.
[67] Consequently, the objection of estoppel stands to fail.
Failure to join the Provincial Council, Western Cape Province and Process of mediation
[68] These last two preliminary points are ill conceived. They do not require immediate ruling before attention is given to the merits of this matter. Hence, if the need arises, I will handle them at an appropriate time hereunder.
[69] I turn now to consider the merits of the first application.
Merits (first application)
[70] The applicants have approached the court to resolve the disputes involving members of the first respondent. Clearly, this matter evinces that there is a vigorous battle for the control of the first respondent. The applicants desire that the court should, amongst others, examine the first respondent’s governing structure.
Is there a binding and enforceable constitution which currently governs or regulates the affairs of the first respondent?
[71] It is common cause between the parties that the constitution of 2012, marked as ‘MBK12’, is an invalid constitution. The respondents further aver, in paragraph 88.2 of the answering affidavit, that both the 2007 and 2009 constitutions are not authentic documents and they further deny that the first respondent adopted a constitution on the 21st of April 2007. In paragraph 100.2 of the answering affidavit, the respondents maintain that the applicants’ 2007 constitution is of no force and effect.
[72] Ex facie the answering affidavit, it is palpable that the respondents in paragraph 84.2 make a contention that the first respondent never adopted a constitution in 2005 or 2007. In response to this averment of the respondents, the applicants maintain that there was a constitution which was adopted in 2005, however, they do not have a copy thereof.
[73] On the other hand, the respondents’ supplementary affidavit states that the first respondent adopted a constitution on the 13th of September 2009. It is my view that the supplementary affidavit does not help to establish that the first respondent adopted a constitution in 2009. The supplementary affidavit is unable to take the issue of the 2009 constitution any further. Particularly if the respondents are also not in the position to produce the said constitution. The annexures attached to the supplementary affidavit also took the matter no further in favour of the respondents. For that matter, the letter of the attorney, marked as ‘MW7’, also indicates that he perused the constitution that he was provided with, and it appears to be a ‘straight forward agreement’. The use of the word ‘agreement’ tends to muddy the already murky waters.
[74] In the effected amendment it appears that the applicants are of the view that the constitution that was adopted in February 2000 is actually the constitution in terms of which the affairs of the first respondent can be governed.
[75] The founding affidavit further reveals that the first constitution of the first respondent was ratified and adopted in January 2000. It is further stated in the founding affidavit that the constitution made provision for three regulating structures, namely: the Presidential Council; the International Council; and the Executive Council. The Presidential Council was the highest authority of the first respondent, and it had at its helm Apostle Poole and his wife Mrs. Poole. It is further averred in the founding affidavit that on the 1st of February 2000, the first respondent adopted a new constitution and that the provisions of the February Constitution were similar to the one in January; however, the February constitution was drafted in English. Significantly, these assertions are not disputed in the answering affidavit, except for the fact that the respondents state that the Constitution of February 2000 was the third constitution.
[76] It appears that it is common cause that the parties in this application cannot produce a constitution which was ratified and adopted after February 2000.
[77] The question which aptly arises, therefore, is whether the last adopted constitution of the first respondent, which was produced in these proceedings, can be declared under the circumstances to be the prevailing constitution to govern the affairs of the first respondent. Can it be said that the February 2000 constitution is the only one which is existing and effective to manage the affairs of the first respondent?
[78] As mentioned before, the 2005 and the 13 September 2009 constitutions were not produced, for purposes of these proceedings. The mere say so that a constitution exists is not sufficient, in my view.
[79] While approaching the issue with the caution and sensitivity that it deserves, I am of the view, however, that there is not enough evidence to establish that the 2005 and September 2009 constitutions ever existed. No wonder then that the applicants did not seek to place reliance on either of them, as a form of remedy.
[80] In light of this, it is apparent that the only constitution which is existing and can be effective to govern the affairs of the first respondent, is the one of February 2000. The parties are also not in dispute that this constitution was adopted and ratified.
The committee
[81] The applicants in the amended notice of motion seek an order declaring that:
a. The Constitution adopted in February 2000 (annexure MBK 10 to the founding affidavit) is the current constitution in terms of which the affairs of the first respondent (the Church) are governed.
b. The international Council is the highest authority of the Church, consisting of the pastors and ministers as at the date when the President’s Council ceased to exist.
[82] In this matter, it is common cause that the President’s Council ceased to exist when Apostle Poole and his wife passed away. At the risk of repetition, it is also common cause that the 2007 constitution, which has been placed before the court, does not have an authentic signature made by the late Apostle Poole.
[83] According to the applicants, the 2007 constitution, with a questionable signature, replaced the International Council with a Committee.
[84] This doubtful 2007 constitution stated the following:
‘DIE KOMMITEE: Die Navolgers van Christus Kerk verleen eenparig gesag aan die Presidentsraad om ʼn Komitee te kies en saam te stel deur die inspirasie en oortuiging van die Heilige Gees, om die kerk se leerstellings te oorsien, beskerm en uit te dra soos beskryf in die Konstitusie. Die Presidentsraad wat die hoogste gesag in die Kerk is, sal die komitee verkies en saamstel terwyl albei nog in die lewe is, wat dan daarna die kerk vorentoe sal vat en die werksaamhede van die Kerk sal uitdra. Die Komitee sal presies lei en bestuur soos die Presidentsraad dit gedoen het, soos die verantwoordelikheid, verpligtinge en dag-tot-dag bestuur van die Kerk en die Kerk se jurisdiksie sal direk onder hulle val. Die komitee vervang outomaties die Presidentsraad op die beleid van deursigtigheid. Daar sal ook verteenwoordigers van Namibië ingesluit word in die saamstel van die Komitee, naamlik die Pastore. Alle reëls en Regulasies van die Kerk genome in seksie 4 tot 6 en subseksie a tot g is onderhewig aan die Komitee na die heengaan van die Presidentsraad. Daar sal ook Plaasvervangers wees wat meebring indien enige lid van die Komitee heengaan of die Kerk verlaat om welke rede ookal, daar dan ʼn plaasvervanger sal wees. Die Plaasvervanger sal deur die Presidentsraad aangewys word terwyl nog in die lewe en die Komitee sal dan ʼn geskikte person aanwys wat enige Komitee lid vervang wat afsterwe of die Kerk verlaat.’
[85] The applicants contend that an election to constitute a committee, as envisaged by the suspicious constitution of 2007, was never done whilst Apostle Poole and his wife were still alive. The applicants further contend, in the replying affidavit, that despite their initial thinking that the 2007 Constitution was an original document, it has turned out that this is not the case.
[86] The inexorable corollary is that any action or conduct that stems directly from this questionable 2007 constitution, is not effective. Otherwise, it will perpetuate an illegality.
[87] According to the applicants, the direct consequence of this is that it led to a vacuum in leadership of the first respondent, as the current committee was not validly and/or legally established. The applicant contends that there is a dearth of leadership because the succession plan that ought to have been implemented during the lifetime of Apostle Poole and his wife, did not take place.
[88] This brings me to the question of whether the present committee has the necessary authority to run the affairs of the first respondent.
Does the current committee have authority delegated to it to manage the affairs of the first respondent?
[89] It is common cause in this matter that some of the applicants in this application also initiated action proceedings in November 2016, out of this court, against the respondents and the deponent to the founding affidavit of the instant application, under case number 22079/2016. The applicants contend that serious anomalies arose in the action proceedings, which led the applicants to apply for the relief set out in the notice of motion.
[90] In the action proceedings, which were withdrawn, the plaintiffs sought, inter alia, the following relief: that the committee be declared invalid, unlawful and unconstitutional; that all decisions and appointments of the committee be declared invalid, unlawful and unconstitutional; that the applicants be reinstated to the first respondent; and that the respondents render a full account in respect of the financial affairs of the first respondent. In the replying affidavit it is asserted that the action was withdrawn when it was established that, even if they were successful in the action, the first respondent would be faced with a constitutional impasse.
[91] It is contended in the founding affidavit that there is an inescapable inference, from the averments made by the respondents in their pleadings, that the committee acknowledges that there is no constitution which is in force and effect.
The following is asserted in the founding affidavit:
‘In their Plea to the action, the Respondents deny the validity of all the constitutions adopted by the FOC as set out in the Particulars of Claim. In particular, they deny the validity of the constitutions adopted by the FOC ON 1 January 2000, 1 February 2000, April 2005, 21 April 2007 and 12 September 2009 respectively. Based on the Respondents Plea, they have effectively admitted and acknowledged that they are administering the affairs of the FOC absent a constitution. The fact that the Respondents deny the validity and legality of all the constitutions referred to by the Applicants in the action means that the FOC has no binding and enforceable constitutional framework that governs its control.’
[92] The respondents deny that the committee was not elected and constituted while Apostle Poole and his wife were still alive. Of equal importance, I deem it necessary for the purposes of this application to quote in full what is stated in the answering affidavit regarding this aspect. The following is asserted in the answering affidavit:
‘86.2 The church has convened several meetings which were attended by all members during which occasion the intention to adopt the contents of the constitution were discussed prior to the adoption of the constitution and signed by Poole, Arends and I on 12 September 2009. The adoption of the constitution was made known to all members of the First Respondent on 13 September 2009 at a meeting. Melvin Katz was not a member of the First Respondent at the time and would therefore not be aware of the process followed.
A copy of minutes of a meeting held on 13 September 2009 referring to adoption of the constitution, as well as the list of names is annexed hereto, marked “MW4”.
86.3 It is reiterated that the constitution, marked “MBK12” is not the authentic 2009 constitution signed by Poole, Arends and I . . .
91.2 Arends admitted that, when he was confronted about his fraudulent activities by the Fourteenth Respondent, he fraudulently signed documentation of the First Respondent which the late Pastor Poole had to sign and admitted to having altered and destroyed documentation of the First Respondent in order to ensure change within the structures of the First Respondent . . .
92.1 . . . I submit that the second list was indeed the list of names, which was prepared by Poole . . .
94.2 I deny that the First Respondent has ever adopted a constitution on 21 April 2007, therefore the same is of no force and effect . . .
95.1 The list of names as signed by the late Pastor Poole, marked “MBK13”, is the actual authentic list of names comprising and constituting the committee as prepared and signed by the Late Pastor Poole himself . . .
113.2 The church adopted a well workshopped constitution in 2009 which makes provision for a succession plan and was implemented by Poole in his life time. As aforesaid, Arends removed the original constitution and has never returned same. Instead, the Applicant is approaching the Honourable Court with a document purporting the same to be original authentic 2009 constitution which was adopted September 2009 and in he (sic) possession of the Respondent . . .
129.2 It is the Applicants’ contention that the 2007 constitution, marked “MBK11,” was adopted in 21 April 2007 and that the same was authentic. It follows therefore that the 2009, “MBK12” constitution was not authentic based on a report which the Applicant has acquired from a forensic handwriting examination . . .
129.3.1 The signature contained in annexure “MBK11” is not the genuine signature of apostle Poole, meaning the 2007 constitution is not authentic.
129.3.2 The same opinion applies to “MBK12”.’
[93] I have already dealt with the aspect of the Constitution of September 2009, above, in some detail.
[94] Central to the claim of the committee to have the necessary authority is the lack of proof thereof. Counsel on behalf of the respondents strongly submitted that the circumstantial evidence presented in these proceedings proves that the committee has the authority to manage the affairs of the first respondent. The heavily reliance on circumstantial evidence is mind-boggling.
[95] The case law has produced an outpouring of authorities that state that, in civil proceedings, the reliance on circumstantial evidence can be sustained if the inference sought to be drawn is the most readily apparent and acceptable inference from a number of inferences. In so far as the minutes of the 13th of September 2009 (“WM4”) are concerned, they do not take the issue of the September 2009 constitution, or the issue of whether the committee has the necessary authority, any further. Annexure “WM4” is far from being helpful proof that on the 13th of September 2009 a constitution was adopted, or that a list of names exists. By all accounts, “MW4” does not bolster the claim of the respondents. Under the circumstances of this matter, it is a neutral factor adding nothing to the case. The overarching impression about “MW4” is that there are various inferences that can be drawn from its contents.
[96] In my view, there can be no gainsaying that there is absolutely no scintilla of evidence in these proceedings to show that the committee which suspended the applicants was properly constituted. There is no constitution to back up the committee’s composition. Consequently, it is evident that the current committee of the first respondent never had powers to manage the affairs of the first respondent after the passing away of the Apostle Poole and his wife.
[97] Little wonder then that the applicants contend that their suspension is unconstitutional, invalid, unlawful and/or unfair. Quite clearly, the committee which suspended them was not constituted in terms of a constitution.
[98] The direct consequence of the finding that the committee never had any authority, is that the suspension of the applicants was unlawful.
[99] The finding that the current committee of the first respondent was not properly constituted leaves the first respondent with the vacuum in leadership. For obvious reasons, uncertainty and a leadership vacuum must be eschewed, particularly in situations such as the prevailing one.
[100] Under the circumstances, I cannot see why the relief sought in prayers 1.2 of the amended notice of motion should not be granted. The significance of this is that the members of the first respondent will be the ones who are taking charge of resolving the challenges and conflicts of the Church. This leads to the conclusion that the sixth and seventh preliminary points automatically fall away.
[101] The February 2000 constitution specifically outlines the chain of command within the first respondent. Regulation 5 of the February constitution provides that, on the passing away of the President’s Council; the International Council will come into existence as the highest authority. In accordance with regulation 5 of February 2000 constitution, the International Council is authorised, allowed and entitled to take charge of the affairs of the first respondent. In terms of the relevant constitution, the responsibility falls squarely on the International Council. The International Council has to forge a way forward and new beginnings for all the members of the first respondent.
[102] In light of the enormous scale of challenges the Church has faced thus far, it has become clear that the International Council has a number of tasks ahead of it. I highly suspect that this is going to be an onerous task for it, particularly under the prevailing circumstances.
[103] Unfortunately, without authority, this court cannot impose solutions on the Church. The applicants prayed that the court should appoint a mediator. Given the provisions of the existing constitution, I do not see why this court should impose a mediator on the International Council. In fact, it should be the International Council which should decide whether or not it requires the services of a mediator. It is my view that what is clearly needed for the prosperity of the first respondent is a significant shift in mind-set of the members.
[104] I turn therefore to consider the second case which was brought by the respondents against the applicants.
The second application
[105] It is plain that in light of the above findings the applicants in this second case had no standing in bringing the application. It was conceded on behalf of the applicants in this particular matter, that should the court find that the committee had no authority to run the affairs of the church, then the application for an interdict is without merit. The concession was, in my view, correctly made. This is so because it was an application brought without legitimate authority. It is thus not necessary to have regard to the entire matter.
[106] There is only one residual issue, which is the issue of costs.
Costs
[107] I find what was said in the matter of Shembe v Shembe NO (957/2018) [2019] ZASCA 172 (2 December 2019) resonating with the circumstances of this case when the following was stated:
‘. . . The effect of this is that each party pays its own costs . . . It can also be said that in matters such as these, where two factions which belong to the same body are at loggerheads, further costs orders may well unnecessarily add fuel to any resentment caused by the main order. . .’
It is my view that what is most important is that, with the current crisis within the first respondent, the parties should be pushed towards achieving a grand compromise that reconciles their fundamental interests. This will in turn enable them to act in concert to provide solutions. It is of paramount importance that anything which may aggravate the situation must be avoided at all costs. Though the applicants were substantially successful, I am not convinced that under the circumstances of this case I should make a cost order.
[108] that the following order is made:
1. In respect of the application under Case Number 6195/19:
a) It is declared that the Committee which includes and consists of the second to sixteenth respondents, that purports to have been duly nominated, constituted and appointed to control, manage and administer the affairs of the first respondent; has no authority.
b) It is declared that the Constitution adopted in February 2000 (annexure “MBK10” to the founding affidavit) is the current constitution in terms of which the affairs of the first respondent (the Church), are to be governed.
c) It is declared that The International Council is the highest authority of the Church consisting of the pastors and ministers as at the date when the President’s Council ceased to exist.
2. In respect of the interdict application under Case Number:22079/2016:
a) The application is dismissed.
3. No order as to costs in respect of both applications.
CN NZIWENI
Acting Judge of the High Court