International Church of South Africa v Apel International Church of South Africa and Another (48731/2014) [2018] ZAGPPHC 600 (24 April 2018)

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

(GAUTENG DIVISION, PRETORIA)

(1) NOT REPORTABLE

(2) NOT OF INTEREST TO OTHER JUDGES

(3) REVISED.

Case No: 48731/2014

24/4/2018

In the matter between:

INTERNATIONAL CHURCH OF SOUTH AFRICA

Plaintiff

and

APEL INTERNATIONAL CHURCH OF SOUTH AFRICA First Defendant

N J MABULA

Second Defendant

JUDGMENT

D S FOURIE, J:

[1] The plaintiff seeks an order evicting the first and second defendants from the plaintiffs church and church site and directing them to forthwith return certain movable goods to the plaintiff. A special

plea that the plaintiff lacks locus standi was raised by the defendants. Having heard evidence an order was previously granted (by the late A A Lauw J) on 28 April 2016 dismissing the special plea with costs.

[2] On 4 July 2017 another order was granted (by Ranched J) that the following questions be separated in terms of Rule 33(4) from all the other remaining issues, namely:

[a] Is plaintiff the legitimate holder of a permission to occupy the church and church site at [….], or did all rights, title and interest in such occupation pass to the first defendant?

[b] Did the plaintiff or did the first defendant become owner of or acquire the property mentioned in paragraphs 6.1 to 6.15 of the particulars of claim?

[3] At the commencement of the trial before me on 12 March 2018 the parties

agreed that the trial should proceed (at this stage) only in respect of the abovementioned two issues as all other remaining issues have already been separated and postponed sine die. The parties also agreed on facts which are common cause between them as set out in Exhibit "A2".

[4] During the course of proceedings the plaintiff applied for leave to amend its particulars of claim to make provision for further relief that would be in keeping with the issues referred to above. The application was unopposed and the amendment was therefore granted. In terms thereof a new prayer was inserted. It reads as follows:

"8. A declaratory order in the following terms:

8.1 The plaintiff is the legitimate holder of a permission to occupy the church and church site at Stand [….], and all rights, title and interest therein did not pass to the first defendant; and/or

8.2 The plaintiff and not the first defendant became the owner of or acquired the property mentioned in paragraphs 6.1 to 6.3 and 6.5 to 6.15 of the particulars of claim".

BACKGROUND

[5] It is common cause between the parties that the plaintiff on or about 1 June 1999 applied to the then Minister of Cooperation and Development for a church site in the District of Sekhukhune. The application was recommended by the Northern Province Traditional Local Council and the church site was determined by the Magistrate, Sekhukhune-land on x about 11 May 2000. The site is presently known as [….]. This appears from an invoice issued by the local municipality to the plaintiff.

[6] It is also common cause that at some stage the defendants prohibited members of the plaintiff to enter the church and church site. According to the defendants this prohibition took place because members of the plaintiff do not have any legal right to the premises. It appears also not to be in dispute that the first defendant is in possession and control of the church site and that both defendants fail and/or refuse to vacate the church and church site or to return the movable goods listed in paragraphs 6.1 to 6.15 of the particulars of claim. These goods include a bank account held at Standard Bank; two additional bank accounts held at ABSA Bank; a Peugeot church bus; a music set with accessories and other movable goods to which I shall refer to later again.

[7] The defendants' plea is to the effect that the plaintiff was officially dissolved by resolution on 2 September 2000 whereafter all its movable assets were sold at an auction held on 25 September 2000.

According to the defendants the first defendant then, in terms of the said resolution, acquired sovereign and independent status as a distinct new church and that all rights, title and interest then passed to the first defendant upon the dissolution of the plaintiff.

[8] According to the list of common cause facts (Exhibit "A2") it is now common cause that all the parties have locus standi herein and the only issues to be determined are those referred to above.

THE EVIDENCE

[9] Several witnesses were called by the plaintiff and the first defendant to testify. The second defendant also testified. Only evidence relevant to the issues will be referred to.

EVIDENCE FOR THE PLAINTIFF

Mabula

[10] Mr Mabula testified that the plaintiff is also known as ICSA. He referred to the application for a church site attached as annexure "POC3" to the particulars of claim. He and other members of the church council applied for a church site on behalf of the plaintiff. They were members of the plaintiff church. The application was approved by the relevant authorities and a church site known as Stand 1315 was allocated to the plaintiff. The second defendant is his younger brother who, at that stage, was also a member of the plaintiff.

[11] In cross-examination he conceded that the second defendant was a pastor of the plaintiff church. It was he who signed the application for a church site (annexure "POC3"). He also conceded that during 1989 ICSA had four districts. He was not aware of autonomy granted to any of these districts. He was not present at the meeting of September 2000 as he was then apparently no longer a member of ICSA. He was informed that movable assets of the four districts could be sold and that the Apel Branch bought some of these assets.

Mathebe

[12] Mr Mathebe testified that he is a full member of ICSA and also the chairperson of the local committee of Apel International Church of South Africa. He confirmed that the second defendant is a bishop of the first defendant, a new church establishment of which he is not a member According to him the first defendant is not part of ICSA, the plaintiff. He explained that the plaintiff has branches, one of which is the Apel branch of ICSA which falls under the Apel District.

[13] He was involved in the obtaining of a church site for the plaintiff. The previous witness was a member of the church council and they were delegated by the plaintiff to apply for a church site. It was only during 2013 that they became aware that the second defendant had a new church known as Apel ICSA. They had to complete a form to become members of the first defendant, but they refused to do so. The second defendant and his church then remained in the church building claiming to be entitled thereto.

[14] He then confirmed the contents of Exhibit "D1", i.e. a diagram setting out the church structure of the plaintiff. According to him it was only the governing body of districts, known as the TEC, that was dissolved at the meeting of 2 September 2000 when districts were granted autonomy. It was only during 2013 that the second defendant ceased to be a pastor of the plaintiff. He also testified that both the ABSA accounts were opened by the Apel branch of the plaintiff of

which he was the chairman. He was also one of the signatories of these accounts until 2014 when his authority as a signatory was

terminated. The purpose of these accounts was to enable the plaintiff to finance church buildings on the church site.

[15] He also testified that there was a need to carry elderly people to and from the church. It was therefore decided to buy a church bus for this purpose. A bus was purchased for the plaintiff using the Apel ICSA account to finance the transaction. Although the bus was registered in the name of the second defendant, according to this witness it became the property of the plaintiff.

[16] In cross-examination it was put to him that the districts were already granted autonomy during 1993, but he denied this allegation. It was also put to him that the first defendant was using its name from 1993 which he also denied. According to the witness the second defendant was a full member of the plaintiff until 2013.

Tseke

[17] Mr Tseke testified that he was a member of the plaintiff since its inception. It was during 1999 that the plaintiff applied for permission to occupy a certain site. The purpose was to build a church centre for the benefit of the plaintiff's branches. A church centre was built later during 2008 on this site and one of the plaintiff’s branches, Apel ICSA occupied it.

[18] He was then referred to Exhibit "C3" (p 3) being a cheque drawn by Apel IC of SA on the Standard Bank. According to the witness he was one of the signatories when this account was opened for the plaintiff during 1993. Also the post box, PO Box 130, has always been used by ICSA, the plaintiff.

[19] During May 2013 the second defendant and his wife visited the witness at his home. At that stage there were only two pastors at the Apel branch of the plaintiff, i.e. the second defendant and his wife. The witness was a pastor of another branch of the plaintfif, known as Maisela. During this meeting the second defendant and his wife suggested that

the witness should seek a new home for his church. He accepted the proposal to start a new church.

[20] Later during 2013 the second defendant called for a general council meeting. During this meeting he presented a certificate of separation, but it was not accepted by the general council. Later during 2013 the second defendant called another meeting during which he referred to a constitution of his church empowering him to appoint a church board. The witness did not agree to become a member of this new church.

[21] In cross-examination it was put to him that during 1993 the districts of the plaintiff had already been granted autonomy, but the witness disagreed. It was also put to him that the first defendant purchased certain movable assets at an auction, but it was denied. Exhibit "C3" (p 13) was then put to him as a bank account belonging to the first defendant, but the witness denied this allegation.

Choma

[22] Mr Choma testified that he has been a member of the plaintiff since 1999. He is now a pastor. During 2013 the second defendant was still a member of the plaintiff. During May 2013 the second defendant called a general meeting during which it was announced that the previous witness will leave to establish his own church.

[23] In cross-examination it was put to him that the purpose of this meeting was to hand over a certificate of independence to the previous witness. His reply was that this was a meeting of ICSA where the members of the church did not approve the certificate of independence. According to him it was not a meeting of the first defendant.

Maphutha

[24] Mr Maphutha was the chairman of the interim committee and chairman of youth between 2003 and 2008. He testified that he was delegated on behalf of the plaintiff to purchase all of the musical instruments referred to in paragraph 6.6, 6.7, 6.14 and 6.15 of the particulars of claim. According to him all the movable goods referred to in paragraphs 6.6 to 6.15 belonged to the plaintiff. The plaintiff started to conduct church services in the church building after it had been completed during 2008.

[25] During 2013 he became aware that the second defendant had established a new church. The second defendant informed the church members that his church had a new constitution and people who wanted to become members had to complete a form. According to the witness the second defendant also indicated that people not prepared to complete the form would

expel themselves. He and other members of the plaintiff felt uncomfortable as a result whereof an interim committee of the plaintiff was established.

[26] In cross-examination he conceded that for a certain period he and the second defendant were members of the same church. According to him the church was the plaintiff and the second defendant was then a pastor of the plaintiff. He also explained in cross-examination that the establishment of the first defendant as a new church was done secretly. He denied ever having been a member of the first defendant.

Manganeng and Maseema

[27] The evidence of these two witnesses was very similar. It relates to a Sunday in September 2013 when the second defendant showed the congregants a form he wanted them to complete. People who were not prepared to do so, were requested by the second defendant to leave the church building. In cross-examination both these witnesses conceded that they were present in the court room whilst the other witnesses were testifying.

EVIDENCE FOR THE DEFENDANTS

[28] The first witness to testify was the second defendant. He was a pastor of the plaintiff when the plaintiff had applied for a church site. He testified that during 1993 the mother church granted autonomy to each district. Problems in the church led to a meeting that was held on 2 September 2000.

[29] At the meeting of 2 September 2000 the four districts of the plaintiff were again granted autonomy. From that day districts were independent and according to the witness it implied that the main body no longer existed. It was also decided that movable property belonging to the plaintiff could be sold at an auction to be held on 25 September 2000. He was referring to Exhibit "A3", the minutes of the meeting held on 2 September 2000 (p 35).

[30] According to the second defendant the first defendant bought certain movable property at the auction, but not all of them. The first defendant bought a generator, a base guitar, an amplifier, box speakers, a microphone and a set of music drums. The first defendant also bought the items mentioned in paragraphs 6.6, 6.7, 6.8 and 6.9 of the particulars of claim. The Peugeot bus referred to in paragraph 6.5 was bought by the Apel International Church of South Africa. That, according to the witness, is a reference to the first defendant. The bank accounts referred to in Exhibit "C3" (pp 14 and 15) are accounts opened by Apel ICSA, a reference to the first defendant.

[31] At a church service held during September 2013 the witness presented two documents, a membership pledge and the constitution of the Apel International Church of South Africa. He invited church members "who are still with us" to complete the membership pledge. According to him it was all done in good spirit. He also testified that the church structures built on this stand are immovable property owned by the first defendant. The districts which existed before September 2000 have all been granted autonomy. That means they are no longer part of the umbrella body which used to be the plaintiff.

[32] In cross-examination he alleged that the plaintiff ceased to exist. A new church by the same name as that of the plaintiff, was then established. This new church was established after September 2000 and is not the same as the plaintiff. He conceded that if the plaintiff was not dissolved it would still be entitled to occupy the church site. He also conceded that, although districts were granted autonomy in 1993, they were still linked to the mother body, i.e. the plaintiff.

[33] Exhibit "D1'' (church structure) was then put to him. He agreed with the contents of paragraph 2 thereof. It states that the governing body of districts known as TEC was dissolved on 2 September 2000 whereafter the districts were autonomous. He further explained in cross-examination that during 1993 the first defendant already existed. Shortly thereafter he conceded that the first defendant was established as an independent new church during 2000. He also conceded that during 1993 it was still part of the plaintiff. He then explained that he and his church members ceased to be members of the plaintiff on 2 September 2000. He finally also admitted that only two items, referred to in paragraphs 6.6 and 6.14 of the particulars of claim, were bought at the auction

on 25 September 2000, whereas all the other movable property of the first defendant were bought elsewhere.

Nchtabaleng

[34] This witness is a member and a pastor of the first defendant. On 5 May 2013 and at a council meeting the second defendant announced that pastor Tseke had agreed to become independent. The second defendant handed him a certificate of sovereignty, but before he could accept it another church member objected thereto. This person said the second defendant was old and he must leave. In cross-examination he conceded that he was never a pastor of the plaintiff.

Ms Mabula

[35] Ms Mabula is the wife of the second defendant and also a pastor of the first defendant. She testified about a meeting with pastor Tseke during May 2013. She confirmed that she and her husband, the second defendant visited pastor Tseke. It was agreed that pastor Tseke would be given independence to start his own church. He wanted a certificate of independence to indicate that he was allowed to do so. Later at a general meeting the second defendant announced that pastor Tseke and the branch Maisela was independent. Mr Mathebe stood up and objected.

[36] In cross-examination she conceded that pastor Tseke was not a member of the first defendant but a member of the plaintiff. She reiterated the plaintiff ceased to exist. She said pastor Tseke wanted to be independent and have his own church.

Ms Makgaleng

[37] Ms Makgaleng is a member of the first defendant. She attended the meeting during which the second defendant announced that pastor Tseke would like to be independent and have his own church. The second defendant was supposed to hand a certificate of independence to pastor Tseke, but Mr Mathebe objected and caused a disruption of the proceedings. She also referred to other disruptions that were caused by members of the plaintiff.

DISCUSSION

[38] Before considering the evidence, it is not only appropriate, but also necessary to say something about the credibility and reliability of the witnesses. An assessment in this regard has to take into account the general context, the witness' memory and the ability to express him- or herself properly. It is a well­ known fact that sometimes witnesses do make mistakes and even contradict themselves. One should therefore distinguish between bona fide errors and an intentional untruth. I have had the opportunity to observe the demeanour of all the witnesses and to listen carefully to their evidence. Although some of the incidents took place long ago, the second defendant sometimes took a while to answer some critical questions. On the other hand, there was also a time when I gained the impression that he was overstating his evidence. I take into account that he is no longer a young man. Notwithstanding these remarks, I have no reason to conclude that any one of them was untruthful. This is a matter that should be decided by taking into account the evidence and probabilities.

PERMISSION TO OCCUPY

[39] The first question to be considered is whether the plaintiff is the legitimate holder of a permission to occupy the church and church site or whether all rights, title and interest therein passed to the first defendant?

[40] It was contended on behalf of the plaintiff that the right and permission to occupy the church and church site was granted by the relevant authorities to the plaintiff. No agreement of cession of such right has been pleaded or even alleged by the defendants. Therefore, so it was submitted, the first question should be answered in favour of the plaintiff.

[41] It was contended on behalf of the defendants that after 2 September 2000 the first defendant acquired the rights, title and interest of the plaintiff and continued as a church organisation distinct from the plaintiff. It was also pointed out that according to the minutes of the meeting held on 2 September 2000 immovable property was "to be invested to each district". In other words, each district would retain the immovable property in its possession. Therefore, so it was submitted, the first question should be answered in favour of the defendant’s.

[42] The evidence of the second defendant (and other witnesses) was to the effect that after 2 September 2000 the plaintiff ceased to exist and therefore, so it was contended, the entity that continued to exist after this date is the first defendant. There are two problems with this approach. First, it has already been decided that the plaintiff has locus standi and according to Exhibit "A2" (facts which are common cause) it was agreed between the parties that all the parties herein have locus standi. Furthermore, on a proper and plain reading of the minutes of the meeting held on 2 September 2000 it is clear that the TEC (governing body of districts) was dissolved and not the plaintiff as the umbrella body. It was also admitted by the second defendant that paragraph 2 of Exhibit "01", confirming the dissolution of the TEC, is correct. The defendants' contention, repeated and still relied upon in the present proceedings, that the plaintiff is not the erstwhile International Church of South Africa, can therefore not be sustained in the light of the aforegoing. In my view the plaintiff was not dissolved and continued to exist.

[43] Second, the evidence does not support the contention that after 2 September 2000 the entity that continued to exist is the first defendant. In cross-examination the second defendant conceded that between 1989 and 2000 they were all members of ICSA, i.e. the plaintiff and all districts were part of the plaintiff. He also

conceded in cross-examination that the first defendant became a new distinct church during September 2000. This is also in accordance

with the defendants' plea (par 3.2 thereof) that in terms of the resolution passed on 2 September 2000, the first defendant acquired

sovereign and independent status "as a distinct new church". The first defendant could therefore not be the entity, as was contended, that continued to exist after 2 September 2000. At best, it only then came into existence operating alongside the plaintiff and its districts.

[44] As far as the right or permission to occupy the church and church

site is concerned, it is common cause according to Exhibit "A2" that such a right was granted to the plaintiff. This was also the uncontested evidence of Mr Mabula and Mr Mathebe. No agreement of cession of such right has been pleaded or even alleged by the defendant’s. Furthermore, they do not claim that a new right to occupy was granted to them by any of the authorities concerned. On the contrary, according to the evidence of the second defendant and paragraph 7.2 of the defendants' plea they rely upon the dissolution of the plaintiff in asserting that all rights, title and interest to occupy the church and church site passed to the first defendant. I have already concluded that the plaintiff was not dissolved. It was also conceded by the second defendant in cross-examination that if the plaintiff had not been dissolved in 2000, the plaintiff would still be entitled to stand 1315 as the church site.

[45] What about the argument that according to the minutes of the meeting held on 2 September 2000 the immovable property "was to be invested to each district" and therefore the first defendant should be entitled to occupy the church and church site? It is correct that in the minutes under the heading "Immovable Property" it has been recorded that "all the immovable properties are invested to each district as alluded above". This appears to be a reference to the existing districts of the plaintiff as the mother body. The first defendant did not continue to exist as part of the plaintiff. On the contrary, according to the evidence of the second defendant the first defendant was established as an independent new church during 2000. That will

also explain why during September 2013 he presented two documents, an application for membership and the constitution of the Apel

International Church of South Africa being the first defendant. In short, the first defendant did not continue as a church belonging to one of the districts of the plaintiff. This argument can therefore not assist the defendants.

[46] In the light of the aforegoing, I am of the view that the plaintiff remains the legitimate holder of the permission to occupy the church and church site at Stand [….] and that no such right, title and interest passed to the first defendant.

THE MOVABLE GOODS

[47] The next question to be considered is whether the plaintiff or the first defendant became the owner of or acquired the property mentioned in paragraphs 6.1 to 6.15 of the particulars of claim. During argument both counsel agreed that I am not called upon to determine this question ex nunc, but ex tune. This means I should determine who purchased these movable goods and upon so purchasing them therefore became the owner thereof.

[48] These movable goods are referred to in paragraph 6 of the particulars of claim. They are the following:

(a) a bank account held at Standard Bank with No: [….];

(b) a bank account held at ABSA Bank with No: [….];

(c) a bank account held at ABSA Bank with No: [….];

(d) a bank account held at First National Bank with No: [….];

(e) a church bus, being a Peugeot with registration number [….] L (previously [….]);

(f) a music set with drums;

(g) a snake cord;

(h) approximately 600 plastic chairs;

(i) steel tables;

(j) two deep freezers;

(k) one standing freezer;

(I) a water coolant;

(m) three standing standard fans;

(n) keyboards and organs; and

(o) speakers.

[49] The defence is firstly to deny that the plaintiff acquired these movable properties. It has been specifically pleaded (paragraph 8.2 of the plea) that the first defendant acquired all this property in the following manner:

(a) the account held at Standard Bank ([….]) was opened during 1993 in the name of the first defendant;

(b) the ASSA Bank account ([….]) is the name of Apel Building Club and was opened to cater for development projects of the first defendant;

(c) the ASSA Bank account ([….]) is also in the name of the Apel Building Club and was opened as an investment account of the first defendant;

(d) the First National Bank account ([….]) is in the name of the first defendant and serves as an emergency account of the first defendant;

(e) the Peugeot bus was bought from funds held in the ABSA account ([….]) in 2011 and the purchase of this asset was authorised by the church board of the first defendant on 11 October 2011;

(f) the items mentioned in paragraph [47](f) to (o) above were all bought by the first defendant in terms of tax invoices and cheques.

[50] During the course of proceedings the parties agreed that those documents listed in Exhibit "0 3" are what they purport to be. Exhibit "C3" (p 13) is such a document. It is a letter of Standard Bank confirming

that Apel I C of SA opened a business current account ([….]) on 15 July 1993. At that stage the first defendant did not exist as a distinct new church. According to Exhibit "0 1" (par 4) Apel I C of SA was then a branch of Apel district of ICSA, all members of the plaintiff. I have no reason to doubt the veracity of Exhibit "0 1" and accept it to be correct. This account could therefore not have been opened in the name of and for the first defendant. In the premises the second question with regard to the Standard Bank account (par 6.1 of the particulars of claim) should be answered in favour of the plaintiff.

[51] As far as the two ABSA Bank accounts are concerned, it appears not to be in dispute that according to Exhibit "C3" (pp 14 and 15) these accounts were opened in the name of Apel Building Club at the Apel branch of ABSA Bank. It also states that the Apel Building Club has been an ABSA client in respect of these two accounts since 7 February 2006 and 3 December 2008 respectively.

[52] Mr Mathebe testified that both these ABSA accounts were opened by the Apel branch of the plaintiff of which he was the chairman. He was also one of the signatories of these accounts until 2014 when his authority as a signatory was terminated. The purpose of these accounts was to enable the plaintiff to finance a building project on the church site. According to him the second defendant was a full member of the plaintiff until 2013 when they became aware that the second defendant had established a new church known as Apel ICSA. This evidence was substantially corroborated by Mr Tseke who confirmed that he also was one of the signatories and that these accounts were not opened in the name of the first defendant. According to him the church buildings were completed during 2008.

[53] The second defendant testified that both these accounts were opened by Apel I C of SA. According to him that is a reference to the first defendant. The defendant's case is therefore that both the ABSA accounts were opened in the name of and for the first defendant. How do I resolve this conflict of evidence? In my view it is important to bear in mind that according to the evidence of Mr Mathebe both these accounts were opened by the Apel branch of the plaintiff. Both he and Mr Tseke were signatories to these accounts. This evidence was not disputed. They were members of the plaintiff and not the first defendant. Why would these bank accounts therefore be opened in the name of another church and why would they become signatories of these accounts on behalf of that other church of which they were not members? Furthermore, they only became aware of the existence of this new church during 2013, long after these accounts had been opened. Taking into account these facts it seems to me more probable than not that both these accounts were opened by the Apel branch of the plaintiff and therefore the second question with regard to these accounts (as referred to in paragraphs 6.2 and 6.3 of the particulars of claim) should be answered in favour of the plaintiff. With regard to the bank account held at First National Bank (referred to in paragraph 6.4 of the particulars of claim) counsel for the plaintiff informed me during argument that the plaintiff is no longer persisting with this part of its claim. It is therefore not necessary to deal with it at all.

[54] Mr Mathebe who was the chairman of the local committee of Apel ICSA, a branch of the plaintiff, testified that there was a need to carry elderly people to and from the church. It was therefore decided to buy a church bus for this purpose. A bus was then purchased for the plaintiff using the Apel ICSA account to finance the transaction. Although the bus was registered in the name of the second defendant, according to Mr Mathebe it became the property of the plaintiff. According to the evidence of the second defendant this bus was bought by the first defendant using its own funds.· The second defendant testified that this is the same vehicle as the one referred to in paragraph 6.5 of the particulars of claim. However, Mr Mathebe

also testified it was only during 2013 that they became aware that the second defendant had established a new church. The registration

certificate of the bus (Exhibit "C3", p 19) indicates that the date of liability for first licensing was 1 June 2012. Although this document also indicates that the bus was registered in the name of the second defendant, it is improbable that this bus would have been bought for the first defendant with funds coming from the bank account of Apel ICSA, a branch of the plaintiff. It is, in my view, more probable that the vehicle was bought for the plaintiff with funds coming from this bank account. I therefore conclude that the second question with regard to the Peugeot bus (referred to in paragraph 6.5 of the particulars of claim) should be answered in favour of the plaintiff.

[55] According to paragraph 6 of the particulars of claim the plaintiff became the owner of the other movable goods referred to in subparagraphs 6.6 to 6.15. It has been pleaded by the defendants that these goods were all bought by the first defendant in terms of tax invoices and cheques. Mr Maphutha testified that he was delegated on behalf of the plaintiff to purchase all of the musical instruments referred to in paragraphs 6.6, 6.7, 6.14 and 6.15 of the particulars of claim. According to him all the movable goods referred to in paragraphs 6.6 to 6.15 belong to the plaintiff. The second defendant conceded in cross-examination that only two of these items (those referred to in paragraphs 6.6 and 6.14 of the particulars of claim) were bought at the auction on 25 September 2000, whereas all the other movable property of the first defendant were bought elsewhere by the first defendant.

[56] According to the minutes of the meeting held on 2 September 2000 it was agreed that "all church assets should be brought for auction" on 25 September 2000. Even if the items listed in paragraphs 6.6 and 6.14 of the particulars of claim were initially acquired by the plaintfif, one cannot ignore the evidence that these two items were ultimately put up for sale at the auction. The other movable items (referred to in paragraphs 6.7 to 6.13 and 6.15) all belong to the plaintiff according to the evidence of Mr Maphutha. The second defendant conceded in cross-examination that these items were not bought by the first defendant at the auction. Having regard to all the evidence in this regard, I am of the view that the second question, with regard to the items mentioned in paragraphs 6.7 to 6.13 and 6.15 should be answered in favour of the plaintiff.

ORDER

In the result I make the following order:

1. It is declared that the plaintiff is the legitimate holder of a permission to occupy the church and church site at Stand [….],

and that no right, title or interest therein passed to the first defendant;

2. It is declared that the plaintiff and not the first defendant became the owner of or acquired the property mentioned in paragraphs 6.1 to 6.3 as well as paragraphs 6.5, 6.7 to 6.13 and paragraph 6.15 of the particulars of claim;

3. The first and second defendants are ordered to pay the costs of suit to date hereof, jointly and severally.

D S FOURIE

JUDGE OF THE HIGH COURT

PRETORIA

Date: 24 April 2018