Mazwi and Others v Fort Beaufort United Congregational Church of Southern Africa and Another (3865/2009) [2010] ZAECGHC 123 (10 December 2010)

IN

THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE – GRAHAMSTOWN

CASE NO: 3865/2009

In the matter between:

FEZILE

MAZWI …...............................................................1ST Applicant

BONGISWA PANGO …........................................................2ND Applicant

HEADMAN PANGO …..........................................................3RD Applicant

KHAYALETHU

NGWATA …..................................................4TH Applicant

MANDLEKHAYA NGECE …....................................................5th Applicant

MLINDELI SOLANI ….........................................................6TH Applicant

MZOXOLO NYENYEKU ….....................................................7TH Applicant

NOSIPHO KOTSWANA …....................................................8TH Applicant

PHILANI

KAMANDE …........................................................9TH Applicant

SIPHOKAZI PHEZISA …....................................................10TH Applicant

XOLANI

PRENS ….............................................................11TH Applicant

NOLUTHANDO MGXOTHWA …..........................................12TH Applicant

SIBAHLE

PEZISA …..........................................................13TH Applicant

ZANEKHAYA SIBANE …....................................................14TH Applicant

TOLANI

GOSANI …...........................................................15TH Applicant

NTSIKELELO MLENZE …...................................................16TH Applicant

and

FORT

BEAUFORT UNITED CONGREGATIONAL

CHURCH OF SOUTHERN AFRICA …................................First Respondent

THE

UNITED CONGREGATIONAL CHURCH

OF SOUTHERN AFRICA …..........................................Second Respondent

_________________

JUDGEMENT

MAGEZA AJ

[1] In this matter the Applicants seek an order setting aside the First

Respondent’s suspension of their membership of the First Respondent

dated 8th December 2002 and the reinstatement of all Applicants herein

to the full and unfettered membership of First Respondent. On the

papers, this order is sought against First Respondent, alternatively the

Second Respondent.

[2] First Respondent is a local church situate at Fort Beaufort and is a

member of Second Respondent.

[3] Second Respondent in turn is a union of local churches, Regional

Councils, Synods and an Assembly.

[4] Second Respondent does not oppose the relief sought and

asserts that it has done all in its power to reinstate the Applicants to full

membership but has been unsuccessful due to the defiant stance adopted

by Reverend Hartland, Minister in charge of the First Respondent.

To its knowledge, the current legal proceedings are rooted in a dispute

that dates back 8 years and despite its best efforts, Second Respondent

as the principal ecclesiastical mother body to whom First Respondent is

affiliated, has been unable to compel First Respondent to readmit the

Applicants.

It appears to it that the level of animosity runs regrettably deep and has

over time, perpetuated an acrimonious state of affairs between and

among parties mired in the conflict.

BACKGROUND

In setting out this background, I am assisted by the Second

Respondent’s Answering papers which in their fullness provide a more

helpful background to the history of the dispute.

[5] The Applicants, described as a group of young church members,

fell into disfavour with the local governing executive of the

First Respondent over their concerns relating to a number of issues

involving, inter alia, suspected financial mismanagement, the use of a

church vehicle and the whereabouts of cutlery. The manner in which they

raised their concerns in turn raised the ire of the bulk majority members

of the First Respondent’s congregation and its leader Reverend Hartland

and the Applicants were suspended on the 8 December 2002.

The decision to suspend the Applicants was, in line with the Church’s

Constitution, taken by a General Members meeting of the First

Respondent and was premised on the Applicants alleged undermining of

the Church leadership including their own ward deacons and interim

youth structures.

[6] In May 2003, again in line with the Church’s Constitution, the Applicants

appealed to the Kei Regional Council which considered the matter and

ruled that the First Respondent’s suspension of Applicants had been

lawful. The decision of the First Respondent to suspend the Applicants

was thus endorsed by the Kei Synod.

[7] Applicants then appealed to the National Synod headed by Second

Respondent. This National Synod then set up in January 2004, what is

referred to as a Synod Commission, with the purpose of reopening the

matter by visiting Fort Beaufort, meeting the respective parties and

interviewing them with the objective of reconciling them.

It would appear from the papers that news of this was received with

surprise and hostility by Reverend Hartland and the congregation of the

First Respondent resulting in no resolution to this ecclesiastical

conondrum.

[8] As at January 2006 (3 years later) the differences between the

Applicants and First Respondent had not abated and First Respondent

came before this Court and secured an interim interdict preventing

Applicants from attending church activities pending disciplinary

proceedings against the Applicants. Applicants were furthermore

precluded from undertaking protest actions within 50 meters

of the First Respondent’s church grounds.

[9] In light of these developments, the Second Respondent appointed in

April 2006, a further Commission, the “Bulawayo Commission”, to

investigate what it called - the Fort Beaufort situation. The commission

paid a visit to Fort Beaufort between the 1st to 4th June 2006 and

reported to Second Respondent on or about the 14th September of that

year.

It was, consequent thereon, resolved that:

9.1 Reverend Hartland and the First respondent be instructed to

withdraw the Court interdict;

9.2 Reverend Hartland and the First respondent be instructed to

allow the applicants to participate fully in the activities of the

church in order to honour witness as the body of Christ.

9.3 the applicants be heard and their concerns be dealt with;

9.4 the applicants be instructed that their actions were

misguided.

[10] These resolutions were communicated to the parties in March 2007 and

were not met with enthusiasm or welcomed by the Reverend

Hartland and the First respondent but both groups nevertheless

committed themselves to a process of reconciliation.

A “reconciliation team” was appointed by the Second respondent to

facilitate a process of healing and reconciliation. The First respondent

was also requested to withdraw the interdict against the Applicants with

immediate effect and by no later than the 31st May 2007. The failure to

do so was that Second Respondent would suspend the First respondent

and Reverend Hartland without any further delay.

[11] On the 12 December 2007, with no resolution in sight, Second

Respondent suspended Reverend Hartland on the basis of what it says

was the Resolution of the Assembly of 19-22 March 2007 outlined

above.

Significantly, that Resolution provided for the possible suspension of

both the local church and its Minister.

Nothing on both the Applicants and Second Respondents papers sheds

light on why only part of the Resolution was put into effect and the First

Respondent was not suspended and/or disassociated from Second

Respondent. Be that as it may, Reverend Hartland approached the

South Gauteng High Court which set the purported suspension aside on

the basis, inter alia, that he had not been afforded his right to be heard

prior to the decision.

[12] Second Respondent in its Answer states at paragraph 25 that

“Rev Hartland is a former Mayor of the Fort Beaufort district

municipality and enjoys widespread support from both the First

Respondent’s congregants and the wider community. Due to the

popularity of Rev Hartland, UCCSA has tried to tread carefully for

fear of exarcebating the conflict which has the potential to erupt into

violence and bloodshed. Whilst stating this, UCCSA is mindful of the

fact that this diplomatic approach has not brought the Applicant’s

desired results which is why the UCCSA believes that the only way

forward is through resorting to the High Court in order to bring

finality to the dispute.”

At paragraph 42.3-4 Second Respondent states;

“UCCSA has sought to deal with this matter in every way short of the

disassociation and severance of the First Respondent. That remains

its goal”.

“Achieving this goal has not been an easy task considering

the support enjoyed by Rev Hartland as explained above. Legal

action to evict Rev Hartland from the manse and to interdict him

from entering church premises might have inflamed emotions and

triggered events leading to confrontation and violence which is why

this course of action has not been taken by the UCCSA to date.”

FIRST RESPONDENT’S

REPLY

[13] Reverend Hartland in his capacity as First Respondent’s authorised

representative states the following that:

the congregation of First Respondent is vehemently opposed to the relief sought by Applicants. At the outset, he emphasises that such a reinstatement would lead to an “inevitable bloodbath” and the consequences would be “too ghastly to contemplate.” ; and

”It would be an extremely irresponsible and insensitive thing to do. Not only would it exarcebate the already tense and volatile situation between the two groups, characterized by occasional outbursts of violence, but it would also paralyze the progress our church has made to attend to the after-effects of the schism since the Applicant’s left.” ; and

He blames the Second Respondent for having dismally failed to exercise leadership and for believing that suspending him would lead to the resolution of the impasse; and

He furthermore states that;

“Presently the objective reality is that since 2002 the relationship between the two groups has deteriorated to such an extent that the Applicant’s group are no longer part of the First Respondent’s church. They daily boast of having no less than 200 members; they have their own place of worship and a priest who was appointed by the Second Respondent in 2008 to minister to their spiritual needs and to perform other attendant tasks a priest is normally required to carry out to the congregation in terms of our denomination.”

he has been a member of UCCSA since birth; was educated by the church; holds a Diploma in Theology and has always been a priest in the service of the church save a stint in the private sector and the period as Mayor of Fort Beaufort District. He has never been found guilty of any misconduct.

He has served the public in leadership positions in many capacities. Notably, in the 80’s he was detained under the then Emergency Regulations; served as Chairman and Secretary of the Kei Region; First Chairperson of the South African Synod between 2002-4; Chairperson of Border Council of Churches in the 80’s etc.

the Applicant’s group complained in 2002 about a vehicle and other church property which they alleged was being misused by certain members. This led to a stand-off and violent clashes with random attacks and some of the adversaries were charged with assaults and public violence and were convicted. Church services came to a stop as a result hereof. In his view, the Interdicts restraining the Applicants were for this reason necessary and that there has been no change in the Applicant’s attitude.

He furthermore asserts that;

“For those of us who are dealing with the situation on the ground, this is a life and death matter which can lead to the loss of lives if not handled carefully...”;

[14] Now from the First Respondent’s papers, it is clear that the

congregation as a whole continues to be acutely opposed to the

prospect of having the Applicants being reinstated to full membership

of the First Respondent.

[15] Furthermore it appears from its papers that in 2008, the Second

Respondent appointed a Minister and constituted the Applicants as

a distinct congregation with Constitutional status within the UCCSA.

A Reverend Mthana was introduced to the Applicants church by the Kei

Regional Council represented by Reverend Snyman. This has not been

denied by Second Respondent.

APPLICANT’S

REPLY

[16] Applicant in reply seeks to understate the schism between the two

groups and the potential for more violence. It is of the view that the

reference in answer to;

“…the inevitable blood bath if the applicants are allowed back to Church”

appears to it to have been calculated by the First Respondent to

generate acrimony and hate and that it is a gross exaggeration and

unfortunate use of language. That the Applicants have pledged

themselves to peace and due process of the constitutional imperatives

of the Church and will do nothing which may serve to compromise that

peaceful process and the laws of Christianity; and states

“I submit that there would be no reasonable belief after the substantial period of time which has elapsed, and given the undertakings

furnished, that there would be no further outbursts nor that the Church would be ‘paralyzed’ that harmony would not

prevail. There is nothing tense or volatile about the situation at this stage and especially should it please this Honourable Court to grant relief in favour of the Applicants, all parties will be protected by the terms of that order.” (paragraph 11)

[17] Turning now to the Constitution of the Second Respondent, it is

necessary to highlight that this document is the bedrock on which the

governace of the church is premised and it sets out, inter alia, the

procedural processes to resolve disputes. This is the Constitution in

force as at the commencement of the dispute in 2002.

[18] Clause 1 defines the Second Respondent (UCCSA) as a union of the

following Churches:

18.1 church Aid Missionary Society of South Africa; and

18.2 the London Missionary Society of Southern Africa; and

18.3 Bantu Congregational Church of the American Board; and

18.4 the South African Association of the Disciples of Christ.

[19] Clause 2 defines the structure of the organisation as composed of local

churches, Regional Councils, Synods and an Assembly.

[20] Clause 3 states that a local church is;

20.1 recognised by the Assembly as a fellowship of members of the

Church gathered in a particular locality for worship, witness and

service. A local church may consist of one or more

congregations. (my underlining).

and can be formed

20.2 at the request of existing local churches, on the

recommendation of the appropriate Regional Council, or by a

Regional Council in terms of any one or any combination of the

following (my underlining).

20.2.1 division of the existing church;

20.2.2 establishment and constitution of new congregations

and local churches;

..

[21] Procedure 17 of the Constitution is titled “TROUBLE IN A LOCAL

CHURCH” and sets out an investigations mechanism and provides

a sanction.

The parts relevant to this are as follows:

21.1 “When the Secretary of a Synod/Regional Council has

reason to believe that there is serious trouble in a local

church, he/she reports it to the Administrative

Committee of the Synod/Region concerned which

institutes a full investigation.” (clause 17.1)

21.2 Certain steps are then outlined in relation to how the

process is to proceed with regard to the right of each

party to be heard whereafter the following sanction is

set out as available to the church in the event of

non-cooperation by one or other of the belligerents.

21.3 “When the Administrative Committee of the

Synod/Region is satisfied from the written report of the

investigation that there is serious trouble in the church,

it reports its findings to the local church, the

complainants and the Assembly Executive Committee”.

(clause 17.2.7)

21.4 “Should a local church refuse to accept a full

investigation or to abide by the award given, such

local church may, by the decision of the Assembly,

upon the recommendation of the Synod/Regional

Council concerned, be disassociated from the United

Congregational Church of Southern Africa.”

(clause 17.2.10)

[22] It is clear that the Constitution of the Second Respondent is exhaustive

and provides for a variety of possible outcomes and adequate sanctions

in the event that difficulties confront the church in its lower structures,

that is, in local churches.

[23] Constitutions of voluntary associations such as ecclesiastical entities are

revised from time to time in order to set out as far as is foreseeable,

remedies to deal with possible disputes and conflict. Once members

join the church, they subject themselves to its restraints.

These Constitutions provide the Church with the rules framework with

which to deal with all matters of discipline, faith and adherence to

ecclesiastical norm and custom. Once it is shown in specific cases that

the Church in dealing with a dispute followed the correct internal

procedures, Courts will not readily interfere. Voluntary associations

are provided with a wide berth to deal with faith related matters in an

as appropriate a manner as is possible based on the tenets accepted

by the members thereof.

Courts will intervene where there is a discernible deviation from the

governing Constitution or where there is a failure to implement them

resulting in an injustice to one or more of its members. In many of

these Constitutions, the rules will stipulate that internal remedies be

first exhausted by a member before resorting to the Courts. Whether or

not possible remedies are exhausted is always a matter that varies from

one instance to the other but can be easily discerned from the facts.

[24] In Yiba and Others v African Gospel Church 1999 (2) SA 949 (C)

the Court, per Schippers AJ set out the following at page 960 E:-

“In summary, the principles are these:

A voluntary association is founded on the basis of mutual agreement which entails an intention to associate and consensus on the essential characteristics and objectives of the association (Joubert (ed) The Law of South Africa first re-issue vol 1 at 303 para 455; Turner v Jockey Club of South Africa 1974 (3) SA 633 (A) at 645B-C, 645H-646A; Theron en Andere v Ring van Wellington van die NG Sendingkerk in Suid Afrika en Andere 1976 (2) SA 1 (A) at 25B). … …

An association has no inherent power to conduct disciplinary proceedings and to punish a member (Durr en Andere v Universiteit van Stellenbosch en ‘n Ander [1990] ZASCA 70; 1990 (3) SA 598 (A) at 608B-609A). The constitution of the association and its rules and regulations determine what violations of the rules by members warrant disciplinary action being taken against them, how the domestic tribunal entrusted with the investigation of such violations is to be constituted, the procedure to be followed by the tribunal in the exercise of its functions, and the penalties to be imposed for a violation of the rules (The Law of South Africa (op cit at 310 para 467)). …”

It must in my view be added that, the decision maker in an

ecclesiastical tribunal charged with the responsibility to hear matters

where a dispute is arbitrated, must follow the Constitution and where

sanctions are provided for, must apply such according to the letter of

the Constitution without unduly and irrationally deviating therefrom.

This promotes certainty and with that, an unbiased application of the

churches’ rules and covenants to which all members have elected to be

bound. Once an adverse finding is made pursuant to a lawful internal

hearing, the legislated sanctions must be fairly and consistently applied.

The ultimate responsibility for this lies with the Church Executive, Synod

or Assembly as the upper guardians of the Constitution.

[25] When one has regard to the history of this matter following the dispute

in 2002, it is possible to summarise the material conclusions capable of

being drawn as follows:

A properly constituted hearing took place in

December 2002 leading to the suspension of

the Applicants.

(ii) A properly prosecuted appeal to the Kei Synod

was heard and dismissed by that Synod in May

2003.

A further appeal to the National Synod resulted

in the Second Respondent reopening the

matter and resolving to follow a path whose

end objective was re-integration and

reconciliation.

Following the appeal to the Assembly the

Second Respondent sought to reopen the whole

matter with a view to seeking to persuade the

parties to make peace and to reconcile.

This course has not been successful and the

schism remains alive.

First Respondents’ collective congregation does

not accept the Second Respondents’ ambitions

and are also firmly behind its leader the

Reverend Hartland. In attempting to reopen

and to resolve the dispute, Second Respondent

has wholly underestimated the commitment of

the congregation and erroneously sought to

isolate Reverend Hartland (whom it sought to

suspend without following its own Constitution)

and has now been paralysed by the response.

(viii) Second Respondent has unduly leaned

towards a conciliatory solution and

underestimated the depth of the distance

between the belligerents. This has been

viewed by First Respondent and Reverend

Hartland as undermining its moral authority

over the Applicants.

An opportunity existed for the Second

Respondent to follow its own Constitution and

its own resolution of the 19-22 March 2007 and

to suspend both the First Respondent and

Reverend Hartland if it felt so disposed. Second

Respondent failed to implement the full terms

of the resolution and this led to a successful

challenge by Reverend Hartland of his

suspension before the South Gauteng High

Court.

[26] The common consensus between the First Respondent and the Second

Respondent is the ever present prospect of violence if the parties were

to be forcefully reintegrated. Applicants conveniently downplay this

prospect. No doubt the levels of hatred have set over the years and a

sudden and abrupt unmonitored reintegration may well create an

opportunity for more violence resulting in possible injury and loss of

life. Moreover, in light of the vast period of time that has elapsed, and

the appearance that life has moved on fundamentally since 2002, a

reintegration may not be practical.

[27] Furthermore, First Respondent asserts that Second Respondent

has already put in train a process by which the Applicant’s have

what now amounts to their own congregation. This has not been

disputed by the Applicant’s nor by the Second Respondent and the

Court must assume there is some truth in the assertion. This

is a solution that is clearly available to the Second Respondent as the

guardian of the Constitution of the church. It is a Constitutionally

competent alternative remedy which the First Respondent says has

been implemented. If that is so then this Court has no need to grant

the order sought. If this is not the position then the question is why

not. Second Respondent is enjoined to promote the full tenets of its

Constitution and to implement each such available remedy.

[28] Applicant, in any event seeks final relief as against the First Respondent

and, in the alternative the Second Respondent. In those circumstances

it is clear that the matter must be decided on the facts as stated by the

Respondents, together with those facts stated by the Applicant which

Respondents do not deny. – See Plascon-Evans Paints Ltd. v Riebeek

Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (AD) at 634.

[30] I am also concerned with the fact that the Applicants were lawfully

suspended in December 2002 and this decision was later ratified by the

Kei Regional Council. Nowhere in its papers does the Second

Respondent or Applicants state that the decisions of the local

and Regional structures were ever formally overturned or if the

Applicants ever reapplied to commence with any process of atonement

after the Kei Synod suspension. What the Second Respondent states is

that the Assembly resolved to reopen the matter with a view to

promoting reconciliation. It does not say it set the Kei decision aside. In

its papers the Applicants have failed to deal with this background and in

fact sought to downplay its relevance to the current proceedings.

Whether or not on the papers before me the Applicants have a right to

the relief they seek, as against First Respondent, is also of doubtful

import.

Taking into account all the aforegoing, I am of the view that Second

Respondent has at its disposal sufficient Constitutional outcomes and

remedies to guide it in concluding this dispute and these are set out

succinctly in its own Constitution. It has hitherto failed to follow its

own resolutions and Constitution without a discernible rationale.

Furthermore, I am not convinced that the Applicants are entitled to the relief

sought for reasons set out above.

In the result, I make the following order:

The application is dismissed

Each party is to pay its own costs

_______

10 DECEMBER 2010

APPLICANTS

ATTORNEYS MICHAEL RANDELL ATTORNEYS

C/O BORMAN NEVILLE & BOTHA

APPLICANTS

COUNSEL MR S COLE

FIRST

RESPONDENTS ATTORNEYS DULLABH ATTORNEYS

FIRST

RESPONDENTS COUNSEL MR N SANDI

SECOND

RESPONDENTS ATTORNEYS WEBBER WENTZEL

C/O

LEGAL RESOURCES

CENTRE

SECOND

RESPONDENTS COUNSEL MR BOSWELL

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