Diocesan Council of the Evangelical Lutheran Church in SA, Cape Orange Diocese and Another v Khumalo and Others (1022/2019) [2020] ZANCHC 46 (2 April 2020)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

NORTHERN CAPE DIVISION, KIMBERLEY

Case No: 1022/2019

Heard on: 21/02/2020

Available on: 02/04/2020

In the matter between:

DIOCESAN COUNCIL OF THE EVANGELICAL

LUTHERAN CHURCH IN SA, CAPE ORANGE DIOCESE

First Applicant

THE EVANGELICAL LUTHERAN CHURCH IN SA:

CAPE ORANGE DIOCESE

Second Applicant

and

NA KHUMALO

First Respondent

KR LETSELEBE

Second Respondent

AS MOHAPANELO

Third Respondent

MM GABUZA

Fourth Respondent

BH MATTHEWS

Fifth Respondent

M DIPICO

Sixth Respondent

M RAMOROA

Seventh Respondent

P PHOLO

Eighth Respondent

M NODOBA

Ninth Respondent

IB SHUPING

Tenth Respondent

J VRIES

Eleventh Respondent

THE STANDARD BANK OF SOUTH AFRICA

Twelfth Respondent

THE EVANGELICAL LUTHERAN CHURCH IN SA

Thirteenth Respondent

JUDGMENT

MAMOSEBO J

[1] The relief sought by the First and Second Applicants is a final interdict. The Second to Eleventh Respondents initially took two

points in limine, first, they challenged applicants' commissioning of the founding affidavit and secondly, whether the applicants have locus standi to bring this application. The first point was however abandoned by the respondents. No relief is sought against the Twelfth Respondent (the Standard Bank of South Africa) and the Thirteenth Respondent, (the Evangelical Lutheran Church of Southern Africa).

[2] The issues for determination in this application are crisp:

2.1 Whether the deponent to the founding affidavit, Bishop Motsamai Zachariah Manong, a Bishop of the Diocese of the Evangelical Lutheran Church in Southern Africa (ELCSA), has the authority and/or the locus standi to bring this application; and

2.2 Whether the applicants have met all the requirements for a final interdict.

Point in limine: locus standi or authority to bring application

[3] This is what the deponent to the answering affidavit, Mr Kgosietsile Reginald Letselebe, contended:

"I deny the fact that the deponent has the authority to bring this application and the applicant is put to the proof. For the applicants to have locus standi there must be compliance with the Evangelical Lutheran Church in Southern Africa constitution. I note from the founding affidavit that the Bishop (who is acting in the capacity of the Diocesan council) has deposed to the affidavit. I put applicant to the proof that he has complied with Part IX, Chapter 8, Clause 8.4 of the Constitution."

[4] Part IX, Chapter 8, Clause 8.4 stipulates:

"Any power of attorney, consent or other document required for the purposes stated in Part IX, Ch 8, para 8.3 or any power of attorney required for instituting, conducting or defending any action or other proceedings brought by or against a Diocese, Circuit, Parish or Congregation and/or by or against officiating members of any Diocesan Council, Circuit Council, Parish Council or Congregational Council in their official capacities, shall be deemed to be fully executed when witnessed in accordance with law and signed by any two of the following officers of the Diocese concerned: the Bishop, the Chairperson of the Diocesan Synod, the Diocesan Executive Secretary and the Diocesan Executive

Treasurer. Proof as to who the members of the Diocesan Council are, when required, shall be furnished by way of a copy of the minutes recording their election and/or appointment duly certified as correct under the hand of any two of the following four officers of the Diocese concerned: the Bishop, the Chairperson of the Diocesan Synod, the Diocesan Executive Secretary and the Diocesan Executive Treasurer." (Own emphasis added).

[5] Counsel for the applicants, Ms Erasmus, submitted that it was unclear to the applicants whether the respondents were contesting locus standi or authority to have instituted the proceedings. If they were attacking the locus standi then the following is apposite. The applicants deposed at para 7 of the Founding Affidavit as follows:

"The applicants have been duly constituted in terms of Part IX, Chapter 5 and 6 of the Constitution and Part 1 Rule 5 of the By-Laws of the ELCSA and are capable of suing or being sued under its own name."

The First Respondent just noted the contents of paras 1 to 13 of the applicants' founding affidavit in his answering affidavit. The Second to Eleventh Respondents admitted the contents of paras 2, 3, 4, 5, 6 and 7 of the applicants' founding affidavit.

[6] Ms Erasmus further submitted that it seemed later that it was the authority of the applicants that was being attacked gleaning from para 17 of the respondents' heads of argument. The persistence by the respondents on the lack of authority by the Bishop should have prompted them to invoke Rule 7 of the Uniform Rules of Court which they failed to do.

[7] Despite the failure by the respondents to invoke the provisions of Rule 7, the applicants attached "REP 3" to their replying affidavit. It is a power of attorney under the letterhead of the Evangelical Lutheran Church in Southern Africa Cape Orange Diocese dated 10 April 2019. It reads:

APPLICATION FOR AN INTERDICT TO THE HIGH COURT ON BEHALF OF THE EVANGELICAL LUTHERAN CHURCH IN SOUTHERN AFRICA - CAPE ORANGE DIOCESE - AGAINST NA KHUMALO AND TEN OTHERS AT THE NORTHERN CAPE HIGH COURT

Please be advised that the Diocesan Council of the Evangelical Lutheran Church in Southern Africa - Cape Orange Diocese, the applicant - hereby gives permission and appoints the law firm Gqadushe Attorneys and Mr Nkululeko Gqadushe thereof to represent us as the applicants in this matter. Thus dated and signed at Kimberley in the presence of the following witnesses on this 10th day of April 2019.

Signed Rev A T Khunou, Diocesan Executive Secretary and Rev JA Stander, Diocesan Executive Treasurer. Two witnesses appended their signatures at the bottom of the document.

[8] Mr Van den Berg, appearing for the respondents, argued in his written submissions that the application is still defective because the attempts by the applicants to cure the defect by attaching "REP 3" has failed to meet all the requirements as set out in the Constitution. In actual fact, continued counsel, "REP 3" only gives authority to the first applicant to bring this application.

It is inexplicable how Mr Van den Berg arrived at that conclusion because REP appoints Gqadushe Attorneys and Mr Nkululeko Gqadushe "to represent us as the applicants in this matter". It is not discernible how the statement can single out the first applicant.

[9] Mr Van den Berg further argued that there are two requirements in Clause 8.4 of the Constitution of the Church and the applicants have only met the one requirement which gives authority only to the first applicant to bring this application. The remainder of the clause requires that to be an authorised signatory one must have been duly elected or appointed with the necessary authority to act. The applicants have not filed any minutes as proof of their election. Counsel maintains that the applicants have evaded to deal with this point in the replying affidavit.

[10] What seems to have been overlooked by the respondents is the Legal Status of the Church as a Legal Persona. PART 11, CHAPTER 1 provides:

"The Church is a Legal Persona who can sue and be sued in its own right. Any power of attorney, consent or other document required for the purposes of transfer or mortgage or in connection with any deed of transfer or mortgage bond, or any power of attorney required for instituting, conducting or defending any action or other proceedings brought by or against the Church and/or by or against the officiating members of the Church Council in their official capacities, shall be deemed to be duly executed when signed by any two of the following officials: The Presiding Bishop or his/her Deputy; the President of the General Assembly or his/her Deputy; The General Secretary and the General Treasurer and witnessed in accordance with the law."

[11] First and foremost Clause 8.4 contains a deeming clause. Trollip JA in S v Rosenthal[1] observed that:

"The words 'shall be deemed' ('word geag’) in the signed, Afrikaans text) are a familiar and useful expression often used in legislation in order to predicate that a certain subject-matter, eg a person, thing, situation, or matter, shall be regarded or accepted for the purposes of the statute in question as being of a particular, specified kind whether or not the subject-matter is ordinarily of that kind. The expression has no technical or uniform connotation. Its precise meaning, and especially its effect, must be ascertained from its context and the ordinary canons of construction. Some of the usual meanings and effect it can have are the following. That which is deemed shall be regarded or accepted (i) as being exhaustive of the subject-matter in question and thus excluding what would or might otherwise have been included therein but for the deeming, or (ii) in contradistinction thereto, as being merely supplementary, ie, extending and not curtailing what the subject-matter includes, or (iii) as being conclusive or irrebuttable, or (iv) contrarily thereto, as being merely prima facie or rebuttable. I should add that, in the absence of any indication in that statute to the contrary, a deeming that is exhaustive is also usually conclusive, and one which is merely prima facie or rebuttable is likely to be supplementary and not exhaustive."

[12] The respondents do not question the capacities of the deponent and the signatories of the "REP 3". Regard being had to the fact that Part II Chapter 1 of the constitution empowers the parties to sue or be sued on behalf of the Church provided that the authorised officials have signed a power of attorney which was witnessed, there is no reason why the applicants should be disqualified for not having produced minutes which confirm who had elected them to act on behalf of the applicants.

[13] I am of the view that the signatories are not imposters who purport to portray what they are not. They rank the highest in the hierarchy of the Cape Orange Diocese. It is sensible to say that Clause 8.4 serves to augment instead of being exhaustive and the fact that the applicants have produced "REP 3" should suffice.

I am satisfied that "REP 3" meets the requirements and the point in limine stands to fail.

The merits: First Respondent

[14] The First Respondent, Mr Nkululeko Aubrey Khumalo, is currently employed at the Kwa-Zulu Natal Christian Council. He is a former pastor who previously served fulltime in the ministry of ELCSA and was assigned to the congregation of the St. Martin Parish which included churches in Galeshewe and Ritchie. St. Martin falls under the jurisdiction of the First and Second Applicants.

[15] In an undated letter received by the Executive Secretary's office, ELCSA, Cape Orange Diocese, on 03 November 2016, the First Respondent requested to be transferred to the South Eastern Diocese of the ELCSA- SEO. On 16 and 17 November 2016 the applicants held a meeting where it was resolved as per Resolution 107/9.2 that the meeting should accede to his request.

[16] Bishop Manong, in his capacity as the Diocesan Executive Secretary, addressed a letter to the first respondent dated 30 November 2016, confirming that his request for a transfer was successful effective from 31 December 2016. The First Respondent was offered an appointment to the KZNCC Child and youth Development Coordinator with effect from 04 February 2017. Notwithstanding that the Second Applicant had erroneously acceded to his request to second him to his new employment, it informed him that it should not have granted him the secondment and withdrew its letter.

[17] In a Church Council Meeting Number 137 held during the period 28 to 31 May 2017, the following was reported at item 24.2: Abscondment of Rev Nkululeko Khumalo: Church Council was informed that Rev Khumalo has absconded and was employed by another institution. After a lengthy deliberation on the matter, it was resolved that Rev Khumalo be subjected to a disciplinary enquiry by the SEO. ELCSA -SEO and ELCSA -COD (COD stands for Cape Orange Diocese) should work closely with the Churchwide Office to conclude this matter soonest.

[18] The Church Council of the ELCSA Council No 138 resolved on 01 to 04 October 2017 that since the First Respondent had absconded, he has dismissed himself as a result of the abscondment and Council has therefore resolved to withdraw his ordination rights in the ELCSA. The First Respondent was informed by letter dated 24 October 2017 under signature of Rev PB Mathe, the ELCSA General Secretary of the decision. In similar vein the KZN CC Director was informed of the said resolution and further that the Church no longer ratifies his employment with their organisation. On 25 January 2018 all Parish Councils in ELCSA COD were notified of the termination of the First Respondent's services as a Pastor in ELCSA due to his abscondment.

[19] The effect of the withdrawal of the resolution is that the First Respondent was no longer recognised and ordained as a pastor by the ELCSA. More importantly, this meant that he was no longer allowed to preach and administer the Holy Sacraments according to the confessions of ELCSA. The First Respondent has not by means of any Court or disciplinary process challenged the decision by the Church Council to withdraw his ordination rights. He has further not exhausted his internal remedies as provided for in the

Church Constitution and By-Laws of ELCSA. See Koyabe and Others v Minister of Home Affairs and Others[2]. Failure by the First Respondent to exhaust the internal remedies defeats the very purpose why they were created. It undermines the mechanisms that are meant to promote sound structures in institutions and organisations. It is my view that the First Respondent ought to have exhausted such remedies.

[20] It is common cause that the First Respondent, among the parties that launched the review application in this Court under Case No 311/2017, failed to prosecute it to finality. Relying on Aquila Steel (S Africa) (Pty) Ltd v Minister of Mineral Resources and Others[3], Ms Erasmus urged me to find that the decision of the Council still stands unchallenged and remains valid.

[21] Notwithstanding that his services were terminated as aforesaid, First Respondent was seen preaching during Easter 2018; on 02 December 2018, 06 January 2019 and 18 to 21 April 2019 and administering the Holy Sacraments in Church and to the congregation of the applicants, namely, St. Martin Parish, Ritchie and Galeshewe in the Northern Cape. It is because of this conduct that the applicants maintain that the First Respondent has acted in contravention of its Constitution and By-Laws.

[22] Mr Van den Berg referred me to the pronouncements at para 17 of the unreported judgment of this division by Williams J[4] where the following was said:

".... .. This in my view shows at the very least that the Church Council was aware of the cross transfer and approved it."

It is correct that the South Eastern Diocese of the ELCSA had approved the First Respondents' cross transfer with effect from 14 January 2017, however, the First Respondent received an offer of appointment to the KwaZulu-Natal Christian Council as a Child and Youth Development Coordinator by letter dated 04 February 2017. The First Respondent requested the Evangelical Lutheran Church in Southern Africa, Cape Orange Diocese, to approve his secondment to the aforementioned institution, which they did. More importantly on 09 February 2017 the following extract was directed to the First Respondent by letter under signature of Rev Motsamai Manong, Diocesan Executive Secretary:

".. .After deliberations with the South Eastern Diocese it has come to our attention that we (ELCSA-COD) do not have the constitutional mandate to have granted you the secondment. Under these circumstances we have no alternative but to withdraw our letter of secondment."

[23] First Respondent was aware of the decision to transfer him to Bethlehem and on his own version, as stated in his answering affidavit, he was also aware of the decision to withdraw his secondment and the proposed disciplinary steps to be taken against him as per the minutes of the Church Council Meeting held during 28 to 31 May 2017. First Respondent also concedes that he was notified by email dated 24 October 2017 that he had absconded from the South Eastern Diocese and had therefore dismissed himself.

The Second to Eleventh Respondents

[24] The applicants' gripe against the Second to Eleventh respondents is that they purport to function as the Congregational Council of the St. Martin Parish when that was not so. This, submitted Ms Erasmus, is based on the fact that they have not been re-elected to assume such office. Despite their non-re-election, they have continued to manage the affairs of the congregation, including, its financial affairs. In doing so, they acted in contravention of the ELCSA Constitution and By-Laws.

[25] The applicants confirm that while the Second to Eleventh respondents were indeed members of the Congregational Council of the St. Martin Parish, a term which is valid for six years, their term of office lapsed in September 2018. Elections were supposed to take place in March 2018 but were prevented by internal conflicts and disputes. According to the applicants there is no Congregational Council in place.

[26] Ms Erasmus submitted that it is the Second to Eleventh Respondents who allowed the First Respondent to administer the holy sacraments and to preach in the church buildings of ELCSA to the congregation of ELCSA well knowing that his rights to perform those functions, were revoked.

Fourth, Fifth and Eleventh Respondents

[27] The Fourth, Fifth and Eleventh Respondents served as signatories on the Standard Bank Accounts of the St. Martin Parish during their active term as members of the Congregational Council. They have not been re-elected to serve as such. They nevertheless continued to operate the following bank accounts:

27.1 St. Martin Lutheran Church Cheque Account No: [….];

27.2 St. Martin Parish OMS Account No: [….];

27.3 St. Martin Lutheran Church 32 Day Notice Deposit Account No:[….];and

27.4 St. Martin Lutheran Church Retail/Wholesale Call Deposit Account No: [….].

[28] It is the applicants' averment that money continued to be withdrawn and deposits made into the accounts by the Fourth, Fifth and Eleventh Respondents and were supposed to deal with the movable property of the ELCSA under the supervision of the First Applicant.

[29] From the First to Eleventh Respondent's answering affidavit the following is apparent: The First Respondent denied that he is a 'former' pastor and not having been subjected to any disciplinary hearing in terms of the Church Constitution and further denied that he has absconded to KwaZulu Natal Church Council. The Second to Eleventh Respondents pleaded a bare denial that they were members of the Congregational Council until September 2018 and claimed that they had been re-elected in March 2018. The applicants

are adamant that had such elections taken place the Second Respondent would have attached minutes of the congregational meeting, the list of the nominations and the approval thereof by the Parish Council. The elective process and procedure, as explained by the applicant, is prescribed in Part 1, Chapter 2, and Rule 1.1 to 1.6 of the By-laws. The Second Respondent also failed to attach the confirmatory affidavits of the Parish Council that would have established the election committee as well as the pastor in charge who had run and overseen the elections. This is based on Part 111 Chapter 10 Rule 10.4 of the By-laws. The Second Respondent would also have attached confirmatory affidavits of the officers of the Church who had presided over the handing-over processes that would accord with Part 111, Chapter 10, and Rule 10.5 of the By-laws. I am not persuaded by the submission on behalf of the respondents that the re-election of the Second to Eleventh Respondents took place. The omissions are too blatant and the claims so outlandish as to be dismissed on the paper as they stand.

[30] The First Respondent did not deny that he preached and served the Holy Sacraments at the St. Martin Parish, Ritchie and Galeshewe despite having been made aware officially that he was no longer having the ordination rights as a pastor.

[31] There was also an argument around the movable and immovable property of ELCSA. It is the submission by the applicant that the immovable property (land and Church buildings) belong to the ELCSA. A Deed search has confirmed such ownership as per MZM 15 and 16. The respondents have merely "noted" this averment in their answering affidavit.

[32] It is disconcerting that the Second to the Eleventh Respondents, being members of the St. Martin Parish, do not conform to the provisions of the Constitution and the By-Laws of the Church neither do they recognise the Church structures because, as averred by the applicants, they do not even report to the applicants. They cannot be allowed to take the law into their own hands. Self-help creates anarchy and lawlessness.

The legal position

[33] In order to succeed in an application for a final interdict as enunciated in Setlogelo v Setlogelo[5] and reaffirmed by the Constitutional Court in Pilane and Another v Pilane and Another[6]:

"[39] The requisites for the right to claim a final interdict were articulated by Innes JA in Setlogelo v Setlogelo. An applicant desirous of approaching a court for a final interdict must demonstrate: (i) a clear right; (ii) an injury actually committed or reasonably apprehended; and (iii) the absence of an alternative remedy."

[34] It is clear to me that the Lutheran Church in Southern Africa has established its own governance structures, including its constitution and by-laws. These provide the Church with mechanisms to run its own affairs as a voluntary association. It has a specified hierarchy which has been observed. The applicants operate within that hierarchy. I am satisfied that they have established a clear right on which they stake their claim.

[35] In as far as the actual or reasonable apprehension of injury is concerned, the following needs mentioning:

The First Respondent's persistence to serve while his rights to do so have been withdrawn defeats the purpose of sound management and encourages ill-discipline. His continued church services and the administering of the Holy Sacrament compromises the regulatory structures like the Constitution and By-Laws of the Evangelical Lutheran Church in Southern Africa.

[36] In the absence of the re-election of the Second to Eleventh Respondents as members of the Congregational Council, their continued functioning and exercising of rights and obligations only conferred to duly elected members is disturbing. If this deprecated conduct is not put to a stop it would undermine the authority of the Diocesan Council of ELCSA, Cape Orange Diocese with even wider ramifications. Joubert[7] describes a final interdict as a remedy not only for a past infringement and harm but also for a future violation of rights and

consequent harm.

Regard being had to the harm as averred to by the applicants, it is my finding that the apprehension of the harm recurring is reasonable.

[37] The applicants are also required to show that no other alternative remedy exists. The First Respondent's conduct of performing functions in Church over which he has been stripped of and the persistence by the Second to Eleventh Respondents to operate as members of the Congregational Council, as well as the Fourth, Fifth and Eleventh Respondents continuing not only retain the bank accounts but to operate them fully, leaves the applicants with no other alternative remedy.

[38] Regard being had to Chapter 2 at 2.1 of the ELCSA Constitution pertaining to the Faith Doctrine of the Church[8], I am constrained to leave the parties with the following. Fighting in churches hinders the advancement of the good news of Jesus Christ. Driven by root causes of pride and the pursuit of personal goals. Fighting Christians will damage the church's witness in the community. See James 4: 1-7.

[39] I am therefore satisfied that the Applicants stand to succeed in this application for a final interdict and there is no reason why costs should not follow the result.

[40] In the result, the following order is made:

1. The First Respondent is interdicted and restrained from preaching and/or administering the Holy Sacraments in any church belonging to and/or under the jurisdiction of the Cape Orange Diocese of the Evangelical Lutheran Church in Southern Africa, the Second Applicant.

2. The First Respondent is interdicted and restrained from preaching and/or administering the Holy Sacraments to any member of the congregations of the Evangelical Lutheran Church in Southern Africa: St. Martin Parish, Richie and Galeshewe and/or any other congregation falling under the jurisdiction of the Cape Orange Diocese of the Evangelical Lutheran Church in Southern Africa, the Second Applicant.

3. That the Second to Eleventh Respondents are interdicted and restrained from performing any function assigned to a member and/or associated with that of a member of the Congregational Council and/or Parish Council of the St. Martin Parish of the Evangelical Lutheran Church in Southern Africa: Cape Orange Diocese.

4. The Second to Eleventh Respondents are interdicted and restrained from purporting and/or presenting to any member of the congregations of the St. Martin Parish that they are members of the Congregational Council and/or Parish Council of the St. Martin Parish and/or that they are entitled to perform the functions of the Congregational Council and/or Parish Council of the St Martin Parish of the Evangelical Lutheran Church in Southern Africa: Cape Orange Diocese, the Second Applicant.

5. The Fourth, Fifth and Eleventh Respondents are interdicted and restrained from operating on, transferring any funds from and/or withdrawing any funds from the Standard Bank Accounts: St Martin Lutheran Church Cheque Account No: [….]; St Martin Parish OMS Account No: 14 [….]; St Martin Lutheran Church 32 Day Notice Deposit Account No: [….]; St Martin Lutheran Church Retail/Wholesale Call Deposit Account No: [….]of the St Martin Parish of the Second Applicant, the Evangelical Lutheran Church in Southern Africa: Cape Orange Diocese.

6. The Fourth, Fifth and Eleventh Respondents are ordered to deliver to the Executive Secretary of the First Applicant all bank cards, cheque books, bank statements of the bank accounts listed at para 5 above and the 2017, 2018 and 2019 financial statements of the Congregation of St Martin Parish within 30 days from date of this order.

7. That the Twelfth Respondent, namely, the Standard Bank of South Africa, is directed to take all necessary steps to ensure that the Fourth, Fifth and Eleventh Respondents are prevented from making withdrawals and/or transferring any funds from Standard Bank accounts of the Second Applicant, listed in paragraph 5 above and held at Standard Bank.

8. The First to Eleventh Respondents are ordered to pay the costs of the application, jointly and severally, the one paying, the other to be absolved.

MC MAMOSEBO

JUDGE OF THE HIGH COURT

NORTHERN CAPE DIVISION

For the Applicants:

Adv S L Erasmus

Instructed by

Gqadushe Attorneys

For the 1st to 11th Respondents:

Adv JP Van Den Berg

Instructed by:

Haarhoffs Inc

[1] 1980 (1) SA 65 (A) at 75G - 76A

[2] 2010 (4) SA 327 (CC) at paras 35 and 36

[3] [2018] ZACC 5 paras 95 and 97

[4] Case No 311/2017

[5] 1914 AD 221 at 227

[6] 2013 (4) BCLR 431 (CC) at para 39; (CCT 46/12) [2013] ZACC 3

[7] LAWSA Vol 11 para 390

[8] The foundation upon which the Church stands is Jesus Christ, the Word of God as proclaimed in the canonical books of the Old and New Testaments, which we believe to be correctly explained by the three ecumenical symbols, namely the Apostles Creed, the Nicene Creed and the Athanasian Creed and the writings of the Lutheran Reformation, especially the Catechisms of Dr Martin Luther and the Unaltered Augsburg Confession.