Church of God and Saints of Christ and Another v Church of God and Saints of Christ - Stone of truth (Cradock/Bishop Seyibhokhwe Group) and Another (3977/17) [2018] ZAECGHC 65 (7 August 2018)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

Case no.: 3977/17

Date heard: 28 June 2018

Date delivered: 7 August 2018

In the matter between:

CHURCH OF GOD AND SAINTS OF CHRIST First Applicant

BISHOP MKHUSELI JOSEPH MATSHOBA Second Applicant

and

CHURCH OF GOD AND SAINTS OF CHRIST –

STONE OF TRUTH

(CRADOCK / BISHOP SEYIBHOKHWE GROUP) First Respondent

SIMON SEYIBHOKHWE Second Respondent

JUDGMENT

BENEKE, A.J.

[1] This matter has a long and convoluted history, all of which is set out in detail in the affidavits filed of record. What is important for present purposes is that all of the parties in this matter once formed a unified whole under the umbrella of the first applicant. During 2006, and consequent upon dissatisfaction by certain congregants of the first applicant with the appointment of the second applicant as a bishop, the church split into two groups. The one group remained known, after the split, as the first applicant, with the second applicant as its bishop. The second group underwent further schisms and from that process the first respondent was formed with the second respondent as its bishop.

[2] As a consequence of the various divisions amongst the congregants of the various churches, disputes arose regarding who the lawful holders of the churches’ various properties were. Various applications were filed to determine these disputes. This is one of those applications.

[3] This is an application wherein the applicants seek the return of possession of certain immovable property, as well as certain interdictory and consequential relief against the respondents. The respondents resist the application on the basis of three special pleas and on the merits. In their special pleas the respondents aver that the applicants lack locus standi, that the resorting to litigation is expressly excluded by the constitution of the first applicant, and that there has been material non-joinder of an interested party.

[4] I deal, firstly, with the issue of locus standi. I do this because, if the respondents’ contentions are correct that the applicants lack locus standi, this would end the matter without having to investigate the cogency of the other defences raised.

[5] It is for the party instituting proceedings to allege and prove that he has standing and the onus to establish this issue rests upon that party throughout the proceedings (Mars Inc v Candy World (Pty) Ltd 1991 (1) SA 567 (A) at 575). This means that the person instituting motion proceedings on behalf of a church (either the church itself or a natural person) has to establish his authority to do so (Yiba and Others v African Gospel Church 1999 (2) SA 949 (C) at 957H and 958E/F – H/I).

[6] Having considered the constitution of the first applicant, attached to the applicants’ papers, I am able to find only the following clauses which impact on the locus standi of the applicants:

(a) “The General Synod shall be composed of bishops, Grand Father Abraham, evangelists, elders, deacons and trustees [all of these roles are defined by the constitution of the first applicant], and all the members of the church who can furnish a credential of authority from the church shall be entitled to seat in the General

Synod. Here we refer to the Sabbath Schoolteachers and secretaries of the tabernacles” (clause 2, section 1);

(b) “The presiding bishop shall preside at the general synod” (clause 2, section 2);

(c) “There shall be not more than four (4) bishops in the Church of God and Saints of Christ. We proclaim that the presiding bishop shall not make any decisions pertaining the church without its council” (The Bishop’s Charge);

(d) “The bishop or bishops Grand Father Abraham shall have a council of evangelists which will advise him on all matters pertaining to duties of the bishop, church administration, and the day to day business of the Church of God and Saints of Christ. All decisions shall be made by the bishop-in-council (comprises the bishop + 4 evangelists)” (Duties of a Bishop-in-Council, section 2); and

(e) “Trustees shall be appointed by the Elder in charge and we recommend that there shall be three trustees in each tabernacle. Trustees shall be responsible for the property of the Church of God and Saints of Christ, and such activities as the building of new tabernacles, buying of property, and the maintenance of the buildings of the Church of God. They shall be accountable for any damage to or loss of the church property” (Trustees, sections 1 and 2).

[7] From this it appears that the only methods by which the applicants could institute legal proceedings would be either through the general synod or through the bishop-in-council. It also appears that the bishop is not the person responsible for the management of the property of the first applicant, but rather the trustees.

[8] In their affidavits the applicants make the following allegations which bear upon their authority to institute these proceedings:

(a) “[The Second Applicant is a] Bishop of the 1st Applicant. As such I am duly authorized to depose to this affidavit on behalf of the 1st Applicant as well” (Founding Affidavit, par 1.2);

(b) “1st Applicant is Church of God and Saints of Christ, a universitas with perpetual succession…” (Founding Affidavit, par 1.3);

(c) “The 1st Applicant has the legal capacity and locus standi to institute these proceedings in its own name in terms of its Constitution… (Founding Affidavit, par 1.5);

(d) “[The Second Applicant] acting in [his] capacity as the Presiding Bishop and the leader of the 1st Applicant [has] the obligation to attend to the affairs including the properties of the 1st Applicant” (Founding Affidavit, par 2);

(e) “By virtue of my leadership of the 1st respondent [sic] as its presiding bishop I have the requisite locus standi to act on its behalf” (Replying Affidavit, par 15);

(f) “The second applicant was duly authorized to act on behalf of the first applicant” (Replying Affidavit, par 17);

(g) “The 1st applicant operates its churches through its various structures and functionaries in terms of its constitution” (Replying Affidavit, par 26);

[9] It is clear from what has been set out by the applicants that they understand that the first applicant, as a voluntary association, can only act through its structures. There is, however, a singular lack of any evidence of these structures complying with the constitution of the first applicant - There has not been attached to the applicants’ affidavits any resolution or minutes of any meeting between the second applicant and the council of evangelists which evidence, firstly, that such a meeting was held, and secondly, that it was resolved to initiate this litigation. There is, similarly, no such resolution or minute from a general synod reflecting a similar outcome attached to the applicants’ affidavits. There is also no evidence of the

involvement of one or more of the trustees in any of the decisions pertaining to this litigation.

[10] It appears from the applicants’ affidavits that the second applicant has therefore unilaterally sought to bring the application both in the name of the first applicant and in his personal capacity. When confronted by this difficulty, counsel for the applicant conceded in argument that, as a result of non-compliance with the constitution, the first applicant was not properly before the court. This concession is properly made.

[11] Counsel for the applicant went on to argue that the second applicant has a separate authority from that of the first applicant, which is founded in his rights as the bishop. He argued further that, even in the absence of compliance with the requirement of a meeting with the council of evangelists, the second applicant would have a direct and substantial interest in the matter sufficient to give him the requisite locus standi.

[12] From the constitution of the first applicant, at Trustees, sections 1 and 2, it is apparent that, of all of the various committees of the church, it is the trustees who are responsible for the management of the property of the first applicant. No right vests in the second applicant in respect of property of the church. I find the matter of Moloi v St John Apostolic Faith Mission 1954 (3) SA 940 (T) at 942E – 943E instructive in this regard.

[13] The second applicant does not allege, and I have been unable to find in the first applicant’s constitution, any other rights which he may have which would allow him to bring the application in his personal capacity. In particular, he does not allege that he is entitled to worship at the tabernacles in question (as was the case in Louvis and Others v Oiconomos and Others, 1917 TPD 465), or that he is in some other way entitled, in his personal capacity, to any of the relief sought in the notice of motion. In light of this, I find that the second applicant has no locus standi in his personal capacity.

[14] During argument on this point I asked both counsel for the applicant and counsel for the respondent whether there was some other conceivable ground to found the second applicant’s authority – particularly in light of the fact that there was no evidence suggesting that anything prevented proper compliance with the constitution of the first applicant. Neither party was able to suggest a legal basis which would be supported by the facts in the instant matter. I have also been unable to find any.

[15] In light of what has been set out above, I find that the applicants have not shown that they possess the necessary locus standi to bring this application. That being the case, it is unnecessary to deal with the remainder of the defences raised by the respondents.

[16] I, accordingly, make the following order:

The application is dismissed with costs.

________________________________

M BENEKE

JUDGE OF THE HIGH COURT (ACTING)

Appearances:

For the Applicants: Mr PHS Zilwa SC

On the instructions of Cloete & Co

For the Respondents: Mr TJM Paterson SC and Ms C van der Merwe

On the instructions of Nettletons