Cape Conference of the Seventh Day Adventist Church and Others v Magalela and Others (5385-2016) [2017] ZAECGHC 68 (1 June 2017)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

CASE NO.: 5385/2016

In the matter between:

CAPE CONFERENCE OF THE SEVENTH-DAY

ADVENTIST CHURCH First

Applicant

LEONARD MELUMZI MBAZA N.O. Second

Applicant

JOZA SEVENTH-DAY CHURCH Third

Applicant

MPHUMZI XONXA Fourth Applicant

And

MLUNGISI PETER MAGALELA First

Respondent

NOMACHINA ROSEY MAGALELA Second

Respondent

PETER MAGALELA Third

Respondent

XABISA G BUWA Fourth

Respondent

BUBELE BUWA Fifth

Respondent

NCEDISA BUWA Sixth

Respondent

SAMUEL KATARI NOGQALA Seventh

Respondent

VUYANI G HANISE Eighth

Respondent

CHUMISA MATHI Ninth

Respondent

DANIWE MILDRED NGESI Tenth

Respondent

MKHANYISELI A SOLOMON Eleventh

Respondent

THOZAMILE TIYO Twelfth

Respondent

NONTSIKELELO TIYO Thirteenth

Respondent

LINDA MELTAFA Fourteenth

Respondent

ANDISWA MELTAFA Fifteenth

Respondent

NWABISA MELTAFA Sixteenth

Respondent

JUDGMENT

BESHE J:

[1] This is an extended return date of rule nisi that was issued by Makaula J on the 24 November 2016. The effect of the rule is that there is an interim interdict in place against the respondents. In terms of the order / rule nisi, the respondents are interdicted and restrained from disturbing, interrupting or interfering with any church services, programs or activities of the Joza Seventh-Day Adventist Church in Joza Extension 6, Grahamstown.

[2] The confirmation of the rule nisi is opposed by the respondents. Initially, in addition to opposing the confirmation of the rule, respondents make a counter application in which they seek an order to compel the parties in this matter to adopt an agreement that was allegedly reached between them. Also sought by the respondents was an order to compel the parties to convene a meeting to discuss the implementation of the said agreement. The counter application has since been abandoned.

[3] Second applicant is an ordained minister and president of the first applicant, which as the name suggests, is the Cape Conference of the Seventh-Day Adventist Church.

[4] It appears to be common cause that there is a long standing unhappiness on the part of some members of the church about what the respondents refer to as their “deep pain and sadness by the current state of affairs in the church”. This agreement between some members of the church and the leadership dates as far back as the year 2012. An application similar to the present one was launched in 2012. By agreement between the parties however the application and counter application were withdrawn. It is common cause that there is a division in the church. Applicants refer to the disgruntled group as being the “concerned group” and allege that first respondent is the leader of the concerned group. In response to this first respondent denies he is the leader of the “so-called concerned group”.

[5] Before dealing with the merits of the matter, it is necessary to deal with point in limine raised by the parties.

[6] Respondents challenge the locus standi in judicio of the second and fourth applicants to act on behalf of first applicant. They attack a letter that is marked LMM1 which is dated 14 November 2016 and addressed to Dullabh Attorneys. According to the letter, the Cape Conference Committee that was held on the 14 December 2015 voted in favour of re-instating the interdict against the concerned group or anyone who will disrupt the church services and that the Administration assist in the matter.

[7] It is common cause that second applicant is the president of the first applicant and the chairperson of its executive committee.

Fourth applicant is an elder of the third applicant.

[8] Respondents complain that the purported resolution predates the events that are alleged to have given rise to the need for this

application.

[9] As indicated earlier in this judgment, the stand-off between the leadership and some members of the congregation dates back to 2012. The tensions between the leadership and some disgruntled members simmered to the extent that in March 2015 the church building was locked. As a result of the church building being locked, services were conducted in two separate venues by the respective groups. According to second applicant, this state of affairs came to an end in September of 2016 and the warring factions came to an agreement / understanding. However at meetings held later that same day, it transpired that the dispute was far from being over.

[10] Even though LMM1 on which the applicants rely for their authority to institute these proceedings indicates that the resolution to do so was taken on the 14 December 2015. The letter addressed to Mr M Wolmarans of Dullabh and Co. is dated 14 November 2016. From the history of the strife sketched above, it is clear that the strife would erupt from time to time, including during 2015 when the resolution was purportedly taken and during 2016 when their present application was launched. I am not persuaded that the applicants lack the locus standi in judicio to institute these proceedings. They were authorised to do so. In addition thereto by virtue of the positions they hold in first applicant they have an interest in the subject matter of the interdict.

The present complaint

[11] This is outlined by the fourth applicant, who is the elder of third applicant being the Joza Seventh-Day Adventist Church, Mr Mphumzi Ramie Xonxa (Xonxa). According to Xonxa, the investiture program, which he describes as a graduation ceremony for the children was scheduled to take place on the 29 October 2016. On arrival at Joza Church he found that an additional lock and chain had been placed around the gate. It became necessary to break the additional padlock in order for them to gain entry into the church premises. Just before the start of the service at 9h00, first respondent and other members of the concerned group entered the church building and told the congregants to leave as the service would not be going ahead. Nonetheless the service went ahead albeit that the usual program was not followed because of interruptions by the respondent and his group. This led to police being called and a meeting being held at the Joza police station by Xonxa and some members on the one side and first respondent and his group being held. With respondent and his group demanding that they be allocated leadership roles within the church structures. As to what happened on the 5 November 2016, Xonxa alleges that the service could not start on time as first respondent demanded that a meeting be held. It was at that meeting that he demanded to conduct the service.

[12] On the 12 November 2016 after persuading a child to give him the church keys, first respondent intimated that his group would conduct the service. When this was refused he insisted that a meeting should be held. This too was refused on the basis that Saturdays were days of worship not holding meetings. When the service eventually started, first respondent encouraged his group to disrupt the service by singing. This resulted in the program not going ahead as planned. The congregants dispersed after praying briefly. Tempers also ran high between the two groups with shouting and intimidation taking place. Xonxa fears that the situation may escalate to physical violence with incidents of disruption of services happening frequently.

[13] Xonxa contends that the actions of first respondent and his group have the effect of denying the applicants and members of the congregation of their constitutional right to freedom of religion.

[14] The version of the fourth applicant of the events of the 19 December 2016 is confirmed by Pastor Zuko Ludaka.

[15] The affidavit in opposition of the application for an order interdicting the respondents is deposed to by the first respondent,

Mr Mlungisi Peter Magalela (Magalela). Magalela confirms that members of the congregation in question are divided. Magalela goes on to sketch the history and what he considers to be the source / cause of the division which he alleges is further fuelled by those in leadership and the minority that is intent on imposing their will on others. Part of what concerns them as respondents are the Church’s financial affairs. Second applicant refuses to engage with them on this and other concerns they have.

[16] Regarding the decorum and quietness during services that applicant allege are quintessential to the Church’s services, respondents retort that this can only be achieved when order and normality is restored. Further that they have a right to worship freely within the confines of the church structures. And that second applicant failed to facilitate this process by refusing to engage with the majority members of the church. Respondents deny that applicants have no other remedy at their disposal or that they face irreparable harm. That all they need to do is to meaningfully engage with the respondents to find a solution to the impasse.

[17] Magalela denies he placed the additional padlock to secure the church’s gate. He admits that he told the congregants to leave and that the program will not go ahead on the 29 October 2016. He however denies that he and the members of his group demanded leadership positions in the church.

[18] Regarding what happened on the 5 November 2016, he denies that he demanded a meeting – he contends that a meeting was requested. As regards the 12 November 2016, he denies that he persuaded a child to give him the church keys – saying anyone can get the key from where it is kept. He denies that he demanded that the concerned group should conduct the service. He admits that a request for a meeting was made. He denies that violence was imminent at any stage. That as a measure of last resort they sang to get the leadership of the church to take steps to resolve the impasse. This, he contends, was a peaceful protest on their part.

[19] According to Magalela, not all the respondents would be present during the incidents complained of by the applicants. He points out that tenth and eleventh respondents were absent on 29 October 2016, respondents sixth, seventh, tenth, twelfth, thirteenth, fifteenth and sixteenth were not present on the 5 November 2016 and respondents fourth, sixth, eighth, fifteenth and sixteenth were not present on the 12 November 2016. He further complains that applicants do not specify what each of the respondents did which in applicants’ view amounted to disruption of the church services and by necessary implication, their right to worship freely and peacefully. What is stated by first respondent is confirmed by the remaining respondents.

[20] In reply, and for the first time applicants aver that first, sixth and seventh respondents were disfellowshipped in 2011. That in 2016 their co-respondents were re-instated with the exception of first, sixth and seventh respondents. I am not certain what the significance of this allegation is to the relief sought especially that it is only made in reply. Applicants deny that they are not committed to the attainment of peace and unity within the church membership. They allege that the disruption of church services stands in the way of the attainment of peace and unity. According to the applicants the timing of the requests / demands for meeting is meant or designed to disrupt worship services and serves to deny worshipers of their right to worship peacefully.

[21] Applicants concede that not all the respondents would be present at all times when it is alleged there would be a disruption of worship services. Applicants allege that respondents acted as a group in furtherance of a common purpose.

[22] Applicants seek an order to interdict the respondents from disrupting third applicant’s church services and activities. It is trite that this can be achieved through an interdict which is a judicial process whereby a person is ordered to refrain from doing something or is ordered to do something. It is also trite that an interdict may be granted for the purpose of restraining an infringement of another’s right / rights. The requisites for a final interdict are the following:

(a) A clear right on the right of the applicant/s.

(b) An injury actually committed or reasonably apprehended.

(c) The absence of any other satisfactory remedy available to the applicant/s.

[23] It brooks no argument that applicants have a right to worship freely and peacefully and for their worship services not to be disrupted.

[24] It appears to be common cause that first respondent told congregants to leave and that the program planned for the day will not proceed on the 29 October 2016. That he requested that a meeting be held on the 5 November 2016. That a meeting was requested on the 12 November 2016 and breaking into song as a measure of last resort in order to get the leadership to resolve the impasse. It appears to be common cause that this happened at times when the worship service was supposed to commence.

[25] There can be no doubt that this, as applicants allege, resulted in the disruption of church services.

[26] It was argued on behalf of the respondents that there is no evidence or allegation of any unlawful conduct on the part of the respondents. That it is also not clear which of the respondents are alleged to have disrupted church services and what each respondent did. In my view it is not necessary for the act / conduct complained of to be unlawful. It suffices if it can be shown that such conduct interfered with applicants’ rights.

[27] The difficulty with applicants’ case however is that apart from an allegation that members of the concerned group which is alleged to be led by first respondent disrupted church services, there is no particularity as to what each of the respondents did. This difficulty is exacerbated by applicants’ concession such that not all the respondents will be present on all the occasions in question. Respondents point out which of the respondents were absent on which dates. Even in those instances where it can be determined which respondents were present by necessary implication, it is not clear what each of the respondents that were present did.

[28] As was rightly pointed out by counsel for the respondents, Mr Mpahlwa, in a number of decisions, our courts have made a pronouncement in this regard which is essentially that in cases where the person or persons against whom the interdict is sought have not been identified, or where no unlawful conduct amount to breach of applicants’ rights has been alleged, no interdict can be granted. This was aptly stated by Nocholas J in Mondi Paper (a Division of Mondi Ltd) v Paper Printing Wood and Allied Workers Union and Others (1997) 18 ICJ 84 (D) as follows:

“The evil of intimidation of employees by striking workers and the unlawful blocking of transport to company premises can never be condoned. Juxtaposed against that evil is that a court granting orders against “innocent non-participants” without evidence. The latter evil seems to me to outweigh the former. It seems to me that the whole court system will lose respect of the public at large if it grants orders against “innocent non-participants”.”

[29] In casu no unlawful conduct has been ascribed to the second to the sixteenth respondents. No evidence was placed before me as to what they did to disrupt the church services. In fact no evidence was placed before me specifying which of the respondents was present on

what occasion and what they did. The respondents aver that not all the respondents would be present during or the occasions on which it is alleged there was a disruption of church services. That has not been gainsaid by the applicants in reply. What then would be the basis of confirming the rule nisi against them? First respondent disavows the existence or being a leader of the so-called “concerned group”. Even membership to that group per se would not justify an order interdicting the second to the sixteenth respondents from disrupting worship services and other planned programs of third respondent in the absence of evidence that they participated in such disruption/s.

[30] I am therefore not persuaded that applicants have made out a case for relief sought against second and fourth to sixth respondents. First respondent is also cited as third respondent (Peter Magalela). The same does not apply to first respondent. He admits to have been present on all three occasions. He admits requesting that meetings be held, telling congregants to go home as no service will take place, and taking part in singing so as to get the leadership on the church to attend to the prevailing impasse between the two groups.

[31] It is trite that everyone has the right to, peacefully and unarmed to assemble, to demonstrate, to picket and present petitions[1].

[32] It is however trite that in exercising this right – namely to assemble, demonstration, picket and petition, care must be taken to do so peacefully and unarmed. That the exercise of this right does not interfere with the rights of others.

[33] There can be no doubt, as pointed out earlier, that members of third applicant as well as anyone else who elects to attend church services at the Joza Seventh-Day Adventist Church has a right to worship freely and peacefully without the services being disrupted.

[34] Clearly the actions of the first respondent, which have now became common cause, resulted in services at Joza Seventh-Day Adventist

Church being disrupted and that in turn infringed on the rights of the worshipers to worship freely and peacefully being infringed.

[35] In my view the applicants have succeeded in making out a case for relief they seek against first respondent.

[36] In the result the following order will issue:

The rule nisi issued on the 24 November 2016 is confirmed in the following varied terms:

1.1 That first respondent be and is hereby interdicted and restrained from disturbing, interrupting or interfering with any church services,

programs or activities of the Joza Seventh-Day Adventist Church, located at Joza Extension 6, Joza Location Grahamstown (herein after “the church”);

1.2 That the South African Police Service are hereby authorised to assist the applicants in ensuring that first respondent does not disturb, interrupt or interfere with any church services, programs or activities at the church, and the South African Police Service are to afford the applicants every assistance to ensure that they are allowed to freely and peacefully worship without any disturbance,

interference or interruption from the first respondent;

1.3 That the South African Police Service are authorised to use reasonable force to remove first respondent from the church should he cause any disruption, interference or disturbance of any church service, program or activity of the church;

1.4 That the first respondent be and is hereby ordered to pay the costs of this application.

_______________

NG BESHE

JUDGE OF THE HIGH COURT

APPEARANCES

For the Applicants : Adv: JA Knott

Instructed by : NN DULLABH & CO.

5 Bertram Street

GRAHAMSTOWN

Tel.: 046 – 622 6696

Ref.: Mr Wolmarans

For the Respondents : Adv: M Mpahlwa

Instructed by : BA WILLIAMS ATTORNEYS

38 Somerset Street

Tel.: 046 – 622 7898

Ref.: Mr B Williams

Date Heard : 20 April 2017

Date Reserved : 20 April 2017

Date Delivered : 1 June 2017

[1] Section 17 of the Constitution.