Dutch Reformed Church in Africa Free State and Lesotho v Dibane and Others (4815/2020) [2021] ZAFSHC 174 (22 August 2021)

IN THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Reportable: YES/NO

Of Interest to other Judges: YES/NO

Circulate to Magistrates: YES/NO

Case no: 4815/2020

In the matter between:

DIE NEDERDEUITSE GEREFORMEERDE KERK IN AFRIKA

VRYSTAAT EN LESOTHO

(DUTCH REFORMED CHURCH IN AFRICA

FREE STATE AND LESOTHO)

PLAINTIFF/APPLICANT

and

TG DIBANE

1ST RESPONDENT

TJ MOLOI

2ND RESPONDENT

EM KOSA

3RD RESPONDENT

DIE NEDERDEUITSE GEREFOMEERDE KERK

4TH RESPONDENT

IN AFRIKA, ALGEMENE SINODE (GENERAL SYNOD)

CORAM: MBHELE, J

HEARD ON: 22 APRIL 2021

DELIVERED ON: 10 AUGUST 2021

[1] The Applicant launched an application in this court seeking relief in the following terms:

1. That the First, Second and Third Respondents be prohibited and interdicted from:

1.1 Informing congregants and members of The Dutch Reformed Church in Africa, Free State and Lesotho, that the first, Second and Third Respondents form part of a newly created Regional Synod: The Dutch Reformed Church in Africa, Eastern Free State Synod and Lesotho.

2. The first, second, and third respondents to be prohibited, from using any property belonging to the Applicant, inclusive of Church buildings, to conduct any business and/or meetings on behalf of the alleged Regional Synod, Eastern Free State and Lesotho (Dutch Reformed Church in Africa).

3. That the first, second and third respondents desist from using the name and / or letterhead of The Dutch Reformed Church in Africa, in connection with the alleged “new” Synod, Eastern Free State and Lesotho.

4. That the first, second and third respondents be ordered to pay the costs of this application on an Attorney and own client scale, the one paying the other to be absolved.

5. Further and/ or alternative relief.

[2] On 25 March 2021 Opperman, J ordered the respondents to file their supplementary answering affidavit on or before 02 April 2021. This was necessitated by the fact that the answering affidavit filed on 12 February 2021 was without annexures. The respondents only filed the supplementary answering affidavit with annexures on 09 April 2021.

[3] The respondents brought a substantive application for condonation of the late filing of their supplementary answering affidavit. They attribute their failure to file annexures to the answering affidavit and non-compliance with the court order to their erstwhile Attorney of record. The applicants opposed the application. I considered the degree of lateness and the reasons advanced by the respondents in support of their application for condonation. There was no demonstrable prejudice suffered by the applicants as a result of the late filing of the supplementary answering affidavit. In the interest of justice, the late filing of the answering affidavit by the respondents is condoned.

[4] The deponent to the founding affidavit is the Moderator of the Free State and Lesotho Synod of the applicant (Moderator). The current Management Team (Moderamen) of the applicant was elected at its Synod held in September 2019.

[5] The first, second and third respondents were part of the Moderamen of the applicant whose term ended in 2019 and were not re-elected. On 10 March 2020 the respondents met congregants of various churches where the Eastern Free State Synod was established. The first, second and third respondents (the respondents) addressed a letter to the Free State and General Synod Moderator notifying them of the establishment of the newly established Regional Synod of the Dutch Reformed Church in Africa, called the Eastern Free State and Lesotho Regional Synod (the new Regional Synod).

[6] The Moderamen wrote to the Moderators of the newly established Regional Synod (represented by the first, second and third respondents) informing them that the holding of meetings with various congregations was illegal and that the establishment of the new Regional Synod was unlawful and not sanctioned by the General Synod of the Dutch Reformed Church in Africa, Free State and Lesotho (the General Synod) as required by the Church articles.

[7] An attempt was made to broker settlement between the Moderamen and the respondents at a meeting of the General Synod held on 8 -10 June in Bloemfontein. At the said meeting the Chairman of the General Synod ruled that there cannot be a Regional Synod which is not established by the Free State and Lesotho Synod (the applicant) and that there cannot be Ministers of the Word, working in the Free State congregations, who are not under the leadership of Free State and Lesotho Synod. Before the meeting was closed the parties, further, agreed as follows:

That they would engage using Church order

That they will use article 31 thoroughly

That they will bring order to all involved

That there would be mutual respect and understanding

That canvassing in other Reverends’ Churches would not be allowed

That the respondents would write a letter asking for the establishment of a Synod in consultation with Church councils

That they would engage with each other

[8] The Moderamen withdrew from the resolution after it was signed. The respondents went ahead and established the new Regional Synod. Their correspondence with the General Synod and other structures of the Church was under the letterhead of the Dutch Reformed Church of Africa, Eastern Free State and Lesotho Synod.

[9] It is the applicant’s case that the 1st to 3rd respondent continued visiting Congregations falling under the applicant stating that the said congregations are now part of the newly established Regional Synod. The Moderamen are of the view that The Dutch Reformed Church in Africa, Free State and Lesotho Synod is responsible for the day to day running of the affairs of the congregations within there are of jurisdiction.

[10] The respondents resist the application on the basis that the applicant does not own copyright on the name of the Church and as such cannot prohibit the newly established regional Synod from using the letterhead bearing the name of the Dutch Reformed Church in Africa. They, further, contend that the Synod is at liberty to divide or join other Synods without the consent or approval of the General Synod or the affected Regional Synod. In their answering affidavit they aver that the conduct of the Moderamen and the General Synod left them with no option but to start the new Regional Synod.

[11] The Dutch Reformed Church (the DRCA) is governed by its constitution called the Church Order. The Church order is binding on all members of the DRCA. The copy of the Church Order placed before me deals with powers, duties and obligations of various structures of the DRCA. Each structure has to perform its duties within the confines of the Church Order. Like any other voluntary association, The DRCA’s Church Order forms the basis of the contractual relationship existing between the Church and its members. In Du Preez en Andere v Nederuitse Gereformeerde Gemmente, De- Deur 1994 (2) SA 191 (W) at 194 G the court held:

‘Die Kerkorde, waarvan 'n eksemplaar voor my geplaas is, word uit 'n regsoogpunt wesenlik as die ooreengekome grondwet van 'n vrywillige

vereniging beskou. In Van Vuuren v Kerkraad van die Môrelig Gemeente van die NG Kerk in die OVS 1979 (4) SA 548 (O) te 557EH het De Wet R hom in hierdie verband soos volg uitgelaat:

'Vir die doeleindes van hierdie aansoek moet aanvaar word dat die verhouding tussen die applikant ("'n behoorlik gelegitimeerde bedienaar van die Woord in die Kerk") en die respondent (die bogenoemde kerkraad) 'n kontraktuele verhouding is. Die kontrak is skriftelik en is die Kerkorde (vgl Long v Bishop of Cape Town (1863) 4 Searle 162 te 176; Du Plessis v The Synod of the DR Church 1930 CPD 403 te 414, 417, 426; Odendaal v Loggerenberg en Andere NNO (1) 1961 (1) SA 712 (O) te 717BC; Theron en Andere v Ring van Wellington van die NG Sendingkerk in SuidAfrika en Andere 1976 (2) SA 1 (A) te 25AB, 26DE, 27H, 31EF, 35H, 37EF). Dit is reeds by herhaling beslis dat die Nederduitse Gereformeerde Kerk 'n vrywillige vereniging is (Theron v Ring van Wellington van die NG Sendingkerk in SuidAfrika en Andere (supra te 25FG) ;Odendaal v Loggerenberg en Andere NNO (1) (supra te 719D) ; De Vos v Die Ringskommissie van die Ring van die NG Kerk, Bloemfontein, and Another 1952 (2) SA 83 (O) te 93FH;

Bredell v Pienaar and Others 1922 CPD 578 te 581; De Waal and Others v Van der Horst and Others 1918 TPD 277 te 281). Die grondwet wat (sic) 'n vrywillige vereniging moet volgens die gewone beginsels wat op kontrakte van toepassing is vertolk 35H, 37EF). Dit is reeds by

herhaling beslis dat die Nederduitse Gereformeerde Kerk 'n vrywillige vereniging is (Theron v Ring van Wellington van die NG Sendingkerk in SuidAfrika en Andere (supra te 25FG) ; Odendaal v Loggerenberg en Andere NNO (1) (supra te 719D) ; De Vos v Die Ringskommissie van die Ring van die NG Kerk, Bloemfontein, and Another 1952 (2) SA 83 (O) te 93FH; Die grondwet wat (sic) 'n vrywillige vereniging moet volgens die gewone beginsels wat op kontrakte van toepassing is vertolk word (Constantinides v Jockey Club of South Africa 1954 (3) SA 35 (K) te 44CD; De Vos v Die Ringskommissie van die Ring van B die NG Kerk, Bloemfontein, and Another (supra te 94H95A)).'

[12] Article 31 of the Church Order provides as follows with regard to the establishment of a new Regional Synod:

‘ARTIKEL 31

Dit staan enige streeksinode vry om met goedkeuring van die Algemene Sinode te verdeel of met ‘n ander streeksinode te verenig of om in oorleg met ‘n ander streeksinodes en met goedkeuring van die Algemene Sinode en die betrokke gemeentes ‘n herindeling van die gemeentes te maak om ’n nuwe streeksinode te vorm.’

[13] Article 31 allows a Regional Synod to split or join another Regional Synod. It confers the powers to establish a new Regional Synod on the existing Regional Synod with the permission of the General Synod and affected congregations. It is clear that the process of establishing a new Regional Synod must be initiated by the affected Regional Synod. In the current matter the disgruntled members of the congregations falling under the applicant came together to form a new Regional Synod within the DRCA without the approval of the General Synod. The first to third respondents did not comply with the requirements laid down in Article 31 of the Church Order. The process was not initiated by the Regional Synod nor was its formation permitted by the General Synod.

At the meeting of the General Synod held on 08- 10 June 2020 the Chairperson of the General Synod reiterated that there cannot be a Regional Synod which is not established by the applicant. This decision was taken in the presence of the respondents.

[14] The proposed new Regional Synod cannot enjoy the status of a Regional Synod if its formation upsets the Church order. It bears all the characteristics of a splinter group. If it is not formed according to the prescripts of the DRCA it cannot operate within the Church neither can it recruit from the Church structures.,

[15] Mr. Kilowan, on behalf of the respondents, submitted that the applicant does not own copyright to the letterhead

of the DRCA and as such has no right to interdict its use by the first to third respondents. Article 29 of the Church Order provides

as follows on the powers of the Regional Synod.

‘Article 29

Tot die taak en bevoeghede van die streeksinode behoort:

29.1 die opstel en wysiging van bepalinge en reglemente vir die werksaamhede aan hom toevertrou mits dit nie met die kerkorde in stryd is nie;

29.2 die behartiging van alles wat die plaaslike kerke in die gebied geneem het, met uitsondering van die sake wat by die algemene sinode tuishoort.

[16] Article 29 gives the Regional Synod powers to handle all matters affecting the Local Churches falling within its area excluding those matters that fall within the jurisdiction of the General Synod. Is the newly established Eastern Free State and Lesotho Synod entitled to use the DRCA letterhead for its business? A letterhead often bears an organization’s logo and business address. It is more than just a means of correspondence; it is an essential part of an organisation’s brand image. I have already found that the newly established Regional Synod does not exist as a structure within the DRCA because it was not established according to the Church Order. It follows that those promoting it cannot use the DRCA letterhead to promote an organisation existing outside its prescripts.

[17] The respondents contend that the applicant has no right to interdict the use of various Church buildings as the Church buildings are not the property of the applicant. Article 10 of the Church Order provides as follows:

VASTE EIENDOM

10.1 Die vaste eiendomme van ‘n gemeente van die NGKA-OVS word ooreenkomstig die wette van die betrokke land geregistreer op naam van die gemeente van die NGKA-OVS

10.2 In die geval waar die registrasie of vergunning op naam van die kerkraad van die NGK-OVS staan, mag die eiendom nie vervreem of beswaar word, sonder die vooragaande goedkeurig van die sinode of sinodale kommissie van die kerk nie. In die geval van ‘n gemeente in Lesotho moet die goekeuring van die gesamentlike kommisie vir werk in Lesotho verkry word.

[18] In Nederduitse Gereformeerde Kerk in Afrika (OVS) en 'n Ander v Verenigende Gereformeerde Kerk in SuiderAfrika (536/96) [1998] ZASCA 111; 1999 (2) SA 156 (SCA); [1999] 1 All SA 480 (A) (27 November 1998) the court remarked as follows:

‘Ons howe het tot dusver gemeentes van verskillende denominasies konsekwent as regspersone beskou. Uit die kerkorde is dit duidelik

dat dit ook die geval is met elke plaaslike gemeente van die NGKA. As regspersoon is die gemeente die wettige eienaar van sy goedere, eiendomme en fondse. (Venter en Andere v Den Kerkeraad der Gereformeerde Kerk te Bethulie 1879 OVS 4 op 6; Prinsloo and Others v Ned. Herv. of Geref Church 1889 SAR 220; Peach and Co v The Jewish Congregation of Johannesburg 1894 SAR 345; Dutch Reformed Church, Van Wijk's Vlei v Registrar of Deeds 1918 CPD 375 op 377-8 en Ex parte Congregation of the Apostolic Church 1968 (3) SA 377 (W).’

[19] A congregation is a juristic person with rights and obligations and can sue and be sued in its own right. It is well established that in the Presbytery system adopted by the DRCA a local congregation is the owner of its immovable property and funds. The management and governance of the affairs of a local congregation fall within the province of a Church council. The applicant is not the owner of the church buildings registered in the names of local congregations and as such cannot prohibit the local Church councils from using their properties as they deem fit.

[20] The law relating to the granting of a final interdict is trite. Wallis JA had the following to say when dealing with a final interdict in Hotz and Others v University Of Cape Town 2017 (2) SA 485 at par. 29:

‘The law in regard to the grant of a final interdict is settled. An applicant for such an order must show a clear right; an injury actually committed or reasonably apprehended; and the absence of similar protection by any other ordinary remedy. Once the applicant has established the three requisite elements for the grant of an interdict, the scope, if any, for refusing relief is limited. There is no general discretion to refuse relief. That is a logical corollary of the court holding that the applicant has suffered an injury or has a reasonable apprehension of injury and that there is no similar protection against that injury by way of another ordinary remedy. In those circumstances, were the court to withhold an interdict, that would deny the injured party a remedy for their injury, a result inconsistent with the constitutionally protected right of access to courts for the resolution of disputes, and potentially infringe the rights of security of the person enjoyed by students, staff and other persons on the campus.’

[21] Mr. Kilowan submitted that the applicant failed to show that the respondents used the letterhead of the DRCA and that they continued to canvass for membership of the New Regional Synod post 08 June 2020 meeting except in Congregations that expressed their willingness to join the newly established Regional Synod. The letters from various congregations show that even in January 2021 there were letters written by officials of Church Councils confirming that their respective congregations have joined the newly Established Regional Synod. There is no doubt that the unlawfully established Regional Synod disturbs order within congregations that fall under the applicant’s jurisdiction. The respondents’ answering affidavit, further, confirms that when the Moderamen and the General Synod did not give their matter the attention they believed it deserved, they continued to establish the new Regional Synod.

[22] Although the applicant did not demonstrate a clear right to interdict the use of Church Building by the respondents it succeeded to show that the purported new Regional Synod is an illegal formation seeking to exert itself within the Congregations falling under the applicant’s scope of operation. The applicant demonstrated that the respondents have interfered with its operations and caused disorder that led to division of the Regional Synod into two. This conduct, if left unattended poses a risk to destabilise the operations of the Regional Synod.

[23] The applicant was substantially successful in its application. There is no reason why costs should not follow the event.

Order:

1. The respondents’ application for condonation is granted

2. The First, Second and Third Respondents are prohibited and interdicted from informing congregants and members of The Dutch Reformed Church in Africa, Free State and Lesotho, that the first, Second and Third Respondents form part of a newly created Regional Synod: The Dutch Reformed Church in Africa, Eastern Free State Synod and Lesotho.

3. The first, second, and third respondents are prohibited from using any property belonging to the Applicant.

4. The first, second and third respondents are prohibited from using the name and / or letterhead of The Dutch Reformed Church in Africa, in connection with the purported new Synod, Eastern Free State and Lesotho.

5. The first, second and third respondents are ordered to pay the costs of the main application as well as the condonation application jointly and severally, the one paying the other to be absolved.

N.M. MBHELE, J

On behalf of the Applicant Adv C.A.J. Van Rensburg

Instructed by:

Rosendorff Reitz Bary

BLOEMFONTEIN

On behalf of the 1st 2nd & 3rd Respondent: Adv.Kilowan

Mbabane Attorneys

C/O Matsepes Inc