Moloi and Others v Maduna and Others (2140/2018) [2019] ZAFSHC 226 (28 November 2019)

Moloi and Others v Maduna and Others (2140/2018) [2019] ZAFSHC 226 (28 November 2019)

The court found that the Inter-Synod and Synod acted outside their constitutional and procedural powers by suspending and expelling the applicants. The Code of Conduct required disciplinary proceedings to be conducted by the Church Judicial Committee, with the Synod and Inter-Synod serving as appeal bodies. The meetings of 4 November 2017 and 9 December 2017 were not lawfully convened, as the correct procedures and notice requirements were not followed, and the appropriate office-bearer did not convene the meetings. The applicants' suspensions and expulsions were therefore unlawful and must be set aside. The court declined to reinstate the applicants to their former positions, as those...

Citation
[2019] ZAFSHC 226
Parties
Applicant: Shadrack Nkomeni Moloi; Applicant: Jonas Mosebetsi Maleka; Applicant: Petros Mokete Cindi; Applicant: Matla Joseph Motete; Applicant: Manyathela Abel; Applicant: Mathodisa Daniel Mojalefa; Applicant: Monareng Legheku Amos; Applicant: Tsatsi Ntja Alfred; Applicant: Mopedi Habofanwe; Applicant: Motaung Khoatleli; Applicant: Mthombeni Frank; Respondent: Edward Ephraim Maduna; Respondent: Ntleli Gabriel Swartbooi; Respondent: Mbathane P Gaba; Respondent: Hlakotsa Raymond; Respondent: Tsotetsi Tumelo; Respondent: African Presbyterian Bafolosi Church of South Africa
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
28 November 2019
Case Number
2140/2018
Procedural Posture
Civil Application / Judgment After Hearing on Merits
Outcome
Applicants partially successful: suspensions and expulsions set aside; no reinstatement to office; costs order limited to wasted costs for postponement.
Judges
JP Daffue
Legal Topics
Voluntary Association Governance, Internal Remedies Exhaustion, Church Constitution, Disciplinary Procedure, Domestic Remedies, Unlawful Suspension and Expulsion
Civil Procedure Commercial and Corporate Family and Children Voluntary Association Governance Internal Remedies Exhaustion Church Constitution Disciplinary Procedure Domestic Remedies +1 more

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Parties

Shadrack Nkomeni Moloi

Applicant

Jonas Mosebetsi Maleka

Applicant

Petros Mokete Cindi

Applicant

Matla Joseph Motete

Applicant

Manyathela Abel

Applicant

Mathodisa Daniel Mojalefa

Applicant

Monareng Legheku Amos

Applicant

Tsatsi Ntja Alfred

Applicant

Mopedi Habofanwe

Applicant

Motaung Khoatleli

Applicant

Mthombeni Frank

Applicant

Edward Ephraim Maduna

Respondent

Ntleli Gabriel Swartbooi

Respondent

Mbathane P Gaba

Respondent

Hlakotsa Raymond

Respondent

Tsotetsi Tumelo

Respondent

African Presbyterian Bafolosi Church of South Africa

Respondent

Procedural Posture

Civil Application / Judgment After Hearing on Merits

Legal Issues

  1. 1 Whether the suspensions and expulsions of the applicants as members of the Church were lawful and consistent with the Church's Constitution and Code of Conduct.
  2. 2 Whether the meetings of 4 November 2017 and 9 December 2017 were lawfully convened and conducted.
  3. 3 Whether the applicants exhausted internal remedies before approaching the court.

Ratio Decidendi

The court found that the Inter-Synod and Synod acted outside their constitutional and procedural powers by suspending and expelling the applicants. The Code of Conduct required disciplinary proceedings to be conducted by the Church Judicial Committee, with the Synod and Inter-Synod serving as appeal bodies. The meetings of 4 November 2017 and 9 December 2017 were not lawfully convened, as the correct procedures and notice requirements were not followed, and the appropriate office-bearer did not convene the meetings. The applicants' suspensions and expulsions were therefore unlawful and must be set aside. The court declined to reinstate the applicants to their former positions, as those...

Court Disposition

Applicants partially successful: suspensions and expulsions set aside; no reinstatement to office; costs order limited to wasted costs for postponement.

Orders

  • The resolution taken on 12 August 2017 at Heilbron, terminating first respondent's membership, is declared unlawful and set aside.
  • The suspension of first, second, third, and ninth applicants as members of the Church on 4 November 2017 and their expulsion on 9 December 2017 are declared unlawful and rescinded.