Mureri and Others v (UAAC) United African Apostolic Church and Others - Appeal (HCAA06/2023) [2023] ZALMPPHC 114 (29 November 2023)

IN

THE HIGH COURT OF SOUTH AFRICA

LIMPOPO DIVISION, POLOKWANE

HC APPEAL CASE NO: HCAA06/2023

COURT A QUO CASE NO: 750/2019

REPORTABLE: YES/NO

OF INTEREST TO OTHER JUDGES: YES/NO

REVISED: YES/NO

Date: 29/11/2023

In the matter between:

MURERI

AILWEI DAVID 1st

APPELANT

MURERI AILWEI DAVID (CHAIRPERSON) 2nd

APPELANT

MULEYA LUKAS (TREASURER) 3rd

APPELANT

MURERI

ORBERT 4th

APPELANT

UNITED

AFRICAN

APOSTOLIC 5th

APPELANT

CHURCH

NEW NEC

LANGA

SELINA 6th

APPELANT

MUDZANANI

TIMOTHY 7th

APPELANT

TSHIKORORO

MASHUDU 8th

APPELANT

MATODZI

THIZWILONDI WILSON 9th

APPELANT

MANENZHE

LACKSON 10th APPELANT

MULEYA

SALPHY 11th

APPELANT

MURERI

AILWEI DAVID 12th

APPELANT (CHAIRPERSON OF THE MURERI ROYAL COUNCIL) AND (UAAC)

UNITED AFRICAN APOSTOLIC CHURCH 1st

RESPONDENT

NETSHITONGWE

TSHIMANGODZO LESIE 2nd

RESPONDENT

MURUDI

TSHIWELA ELIZABETH 3rd

RESPONDENT

TSHILILO

MASHUDU SARAH 4th

RESPONDENT

MAKGELE

TSHINAKANO

LEAH 5th

RESPONDENT

NELUFHANGA

NINNDANGANENI SOLOMON 6th

RESPONDENT

NENZHELELE

MBULAHENI ROLLET 7th

RESPONDENT

RAMUDZULI

EMMANUEL 8th RESPONDENT

TSHINDANE

MOSES 9th

RESPONDENT

LONDANI

THOMANI DAVID 10th RESPONDENT

JUDGMENT

NGOBENI AJ:

This judgment is handed down electronically by circulation to the parties through their legal representatives' e-mail addresses. The date for the hand-down is deemed to be 29 November 2023.

INTRODUCTION:

[1] This is an appeal against the whole judgment of the Limpopo Local Division, Thohoyandou (A.M.L. Phatudi J), sitting as court of first instance (court a quo), which was granted on 11 June 2020, in which in the main, the 1st appellant was interdicted from directly or indirectly interfering with the administration and management of the United African

Apostolic Church (UAAC). The 1st appellant was also interdicted from entering the places of residence of the 2nd, 3rd, 4th and 5th respondents.

[2] The application for leave to appeal the said judgment was launched, but it was only heard on 24 March 2022. Judgment was delivered on 11 April 2022. Leave to appeal the judgment was not successful, and that led to the appellants approaching the Supreme Court of Appeal (SCA) on petition for leave to appeal, which was successful. The appeal was properly filed in the Limpopo Local Division, Thohoyandou (Thohoyandou), with leave of the SCA within 20 days as prescribed by the Uniform Rules of the High Court (the Rules).

[3] The appeal was subsequently filed in the Limpopo Division, Polokwane (Polokwane) on 15 February 2023. The submission by the appellants is that it was just the case number that was changed for the same appeal that was filed timeously in Thohoyandou, and sought condonation of the change of case numbers. The respondents oppose the application for condonation on the basis that the appeal in Polokwane was filed way out time. The appeal is also opposed by the respondents.

PROCEEDINGS IN THE LIMPOPO DIVISION OF THE HIGH COURT (POLOKWANE):

[4] The appeal was set down for hearing by the Full Court in the Limpopo Division of the High Court, Polokwane. The appellants were represented by Advocate Mervyn M. Rip SC, instructed by Kern Dekker & Muthevhuli Inc., whereas the respondents were at the beginning of the proceedings represented by Mr. V.M. Netshipale of VM Netshipale Attorneys. Mr Netshipale raised an objection against the hearing of the appeal, his reasons being, inter alia, that he was not served by the appellants with documents to be used during their argument.

[5] It then became apparent after the submissions by both legal representatives that he was actually served with those documents, but under the case number allocated for the Limpopo Local Division, Thohoyandou. The court ordered that the appeal hearing should therefore be proceeded with.

[6] Mr Netshipale then raised a point in limine that the Full Court, has no jurisdiction to hear the appeal since the matter was not transferred to it in terms of section 27 of the Superior Courts Act 10 of 2013 from Thohoyandou to Polokwane. This court ordered that the matter proceed to argument and that the issue of transfer would be decided in due course. Instead of allowing the matter to proceed to the merits, Mr Netshipale applied for the recusal of the Full Court members and requested also for postponement in order to prepare full argument on the application for recusal and to also consult with his clients.

[7] He stated that the basis for the recusal application was that the Full Court was biased against the respondents. His application for recusal was refused as it was based on an ill-conceived apprehension of biasness, since the court had not yet given any judgment or ruling against the respondents up to that stage, except to order that the matter be argued on the merits and judgment with full reasons for the order would be given in due course.

[8] Mr Netshipale subsequently withdrew as attorney of record for the respondents and as a result, was then excused by the court. The court gave Advocate Rip SC an opportunity to address it. Meanwhile, the 10th respondent rose and requested the court to postpone the matter in order for them to secure another legal representative. When asked about a tender for costs, his response was that they have to consult with the church leaders with regard to that. The court refused the application, and ordered that the appeal matter be proceeded with.

SECTION 27 OF THE SUPERIOR COURTS ACT 10 of 2013:

[9] Mr Netshipale purported to challenge the hearing of the Appeal by the Full Court in the Limpopo Division sitting in Polokwane on the basis that the appeal was not transferred in terms of section 27 of the Superior Courts Act 10 of 2013 (the Act)[1]. Section 173 of the Constitution gives the superior courts inherent power to protect and regulate their own processes and to develop the common law for easy administration of justice. The court hearing the appeal is still vested with the discretion as to how to deal with the matter.

[10] The Thohoyandou Local Division (Thohoyandou) is the local seat of the Limpopo Division of the High Court sitting in Thohoyandou. The Thohoyandou court is currently structured to have three permanent judges, one of whom wrote the judgment that is appealed against. The petition order from the Supreme Court of Appeal (SCA) is that the "Full Court of the relevant division" must hear the appeal. With the composition of Thohoyandou Local Division, it would mean that there would be on each occasion only two judges available who can hear an appeal, at any given moment, and the most feasible avenue was that the appeal be heard in the main seat in Polokwane, as there is sufficient pool of Judges in this court.

[11] The notice of set down specifying the seat where the appeal would be heard was served timeously on Mr Netshipale representing the respondents in the appeal proceedings. The bundles pertaining to the appeal proceedings were also served on the respondents. That is evident from the fact that Mr Netshipale and the 10th respondent were present in the Polokwane court when the matter was called. The history of this appeal has been outlined in the opening paragraphs of this judgment. Having said that, one would expect that all parties would come ready to argue the matter on appeal.

CONDONATION:

[12] Rule 27(3) of the rules provides that the court may on good cause shown condone any non-compliance with these Rules. It is common cause that the appeal was noted timeously as required by the rules and timeously served on the respondents on 02 August 2022.The Limpopo Division of the High Court, Polokwane was approached on 15 February 2023 with regard to the allocation of the date for hearing of the appeal in Polokwane. The respondents argue that the appeal in Polokwane was filed way out of time. The same appeal that was timeously noted in Thohoyandou is the same one that was noted in Polokwane. It is only the seats and the case numbers that changed, which do not render the notice of appeal late.

[13] The interests of justice demand that all litigation must be concluded as expeditiously as possible. This appeal hearing has been pending in our courts for more than three years. There could be no prejudice suffered by any party if the matter was to be heard in Polokwane, in as much as the legal representatives of the parties were present in court. It is on that basis that the court directed that the matter be proceeded with in this court (Appellate Court). The late filing of the notice of appeal in Polokwane or the changing of the appeal case numbers is therefore condoned in line with the provisions of the Act.

REASONS FOR PROCEEDING WITH THE APPEAL HEARING:

[14] In Take and Save Trading CC v Standard Bank of SA Ltd [2], Harms JA said: "One of the oldest tricks in the book is the practice of some legal practitioners, whenever the shoe pinches, to withdraw from the case

(and more often than not to reappear at a later stage), or of clients to terminate the mandate (more often than not at the suggestion of the practitioner), to force the court to grant a postponement because the party is then unrepresented. Judicial officers have a duty to the court system, their colleagues, the public and the parties to ensure that this abuse is curbed by, in suitable cases, refusing a postponement. Mere withdrawal by a practitioner or the mere termination of a mandate

does not, contrary to popular belief, entitle a party to a postponement as of right."

[15] In Carephone (Pty) Ltd v Marcus NO and Others[3], the court held that:

"In a court of law the granting of a postponement is not a matter of right. It is an indulgence granted by the court to a litigant in the exercise of a judicial discretion. What is normally required is a reasonable explanation for the need to postpone and the capability of an appropriate costs order to nullify the opposing party's prejudice or potential prejudice." The 10th respondent in the appeal at hand had no definite answer on the issue of costs, as they were still to consult with the church members.

[16] In exercising a discretion to postpone the matter, the court must consider whether the application was made timeously, whether the explanation given by the applicant for postponement is full and satisfactory, whether there is prejudice to any of the parties which cannot be ameliorated by a cost order, whether the application is opposed and the broader public interest[4]. It is common cause that the application for a postponement was not made timeously. The historical background of this matter is that, the main application was heard by the court a quo on 24 and 25 March 2020.Judgment was handed down on 11 June 2020, and the variation order was handed down on 15 June 2020.

[17] The application for leave to appeal was heard inordinately late on 24 March 2022, and judgment was handed down on 11 April 2022, after application for leave to appeal was dismissed with costs. It took at least 21 (twenty-one) months for the application for leave to appeal the judgment handed down on 11 June 2020 to be heard. The Supreme Court of Appeal granted leave to appeal on 07 July 2022.

[18] The appellants applied for a preferential date of the hearing of this appeal, which took at least 11 (eleven) months for the appeal to be finally heard. It took at least three years for this appeal to ultimately be heard. That said, it could not be said to be reasonable to grant a postponement lightly, based on what the court said in the Take and Save Trading and Carephone case, supra.

[19] The aspects that the court had to consider as set down in the Lekoloane's case, supra, vitiated against a postponement of the hearing of the appeal. The appellants have been prejudiced since it took long for them to be heard on appeal. There are obviously costs that were incurred up to the hearing of the appeal. It would not be in the interests of justice that the hearing of the appeal could be delayed any further, because the matter involves two factions of the same church, and the matter must be resolved as expeditiously as possible in order to bring litigation to an end.

THE APPEAL:

[20] The appeal arises from the dispute among the members of the United African Apostolic Church (UAAC), led by Archbishop Muthahadini Elias Mureri until his death on 22 December 2018. Upon his death, the church split into two factions. One faction is led by the 1st appellant, and the other by the 2nd respondent who alleges that she is "the mother of all members of UAAC" and the administrator of its affairs as appointed by the late Archbishop Muthahadini Elias Mureri, who was her husband. As logic would dictate, it would be difficult for the two factions to co-exist and work together because different people operating from the same church premises lead them.

[21] Their co-existence alongside each other is made more difficult as they have to use the same headquarters where the church of origin was housed. The co-existence of the churches alongside each other is not easy because they do not subscribe to the same principles anymore, hence in the court a quo there was more than one Constitution which were said to be governing them. There are also allegations that there is a new church that was registered under the name UAAC.

APPLICATIONS IN THE COURT A QUO:

[22] The court will for easy reference and for purposes of clarity refer to the parties as they were referred to in the court a quo. The applicants approached the court a quo for the orders that can be summarised as follows:

(i) " That the 2nd respondent (Mureri Royal Council), 3rd respondent (United African Apostolic Church) and 19th respondent (United African Apostolic Church New National Executive Committee) be declared to be illegal/ unlawful/unconstitutional/nullity/invalid and to be declared as such,

(ii) That the appointment of chief Livhuwani Matsila as chairperson of United African Apostolic Church (UAAC) be found to be illegal and be declared null and void,

(iii) That chief Livhuwani Matsila, David Ailwei Mureri, Mureri Royal Council and the UAAC new National Executive Committee, be interdicted from getting involved or interfering with the running or administration of UAAC structures which were in existence as at 22/12/2018, being the date on which Dr Archbishop Muthahadini Elias Mureri (late Archbishop) passed away,

(iv) That pending the appointment of a new Archbishop of UAAC, the structures of the UAAC which were in force as at 22/12/2018 remain in force, and that pending the appointment of a new Archbishop, no person must carry out church service or work which was exclusively carried out by the late Archbishop,

(v) That David Mureri be interdicted from interfering with the family affairs of the late Archbishop in any manner, directly or indirectly,

(vi) That the United African Apostolic Church new cabinet, David Ailwei Mureri, Chief Livhuwani Matsila, Mureri Royal Council, United African Apostolic Church New Executive Committee and any member of the mentioned formations be interdicted from hiring any security company to render security services at the UMC headquarters, and be ordered to stop the rendering of such security services at the said headquarters,

(vii) That David Ailwei Mureri be interdicted from carrying out any threats or instigation of any acts of violence against 2nd (Netshitongwe Tshimangadzo Lesie), 3rd (Murudi Tshiwela Elizabeth), 4th (Tshililo Mashudu Sarah), 5th (Makgele Tshinakaho Leah), 8th (Phaswana Doris), 9th (Muleya Lukas) and 10th (Mureri Meshack) applicants, or any member of UMC directly or indirectly by any means,

(viii) The challenged conduct of the respondent (not specified) be found to be inconsistent with the Constitution and invalid,

(ix) That David Ailwei Mureri be interdicted from entering into the homestead/ place of residence of the 2nd ,3rd ,4th, and fifth applicants,

(x) That it be ordered that no person shall be appointed as the Archbishop of UMC until the lapse of the mourning period for the late Archbishop, being the 30/12/2019,

(xi) That in the event the respondents have already appointed or nominated any person to be the Archbishop of the UMC, such appointment or nomination be found to be illegal and to be declared null and void,

(xii) That pending the appointment of a new Archbishop for the UAAC, that David Ailwei Mureri be interdicted from attending church or gatherings of the church or to participate in any meeting of the UAAC, and also not to phone any member of the UAAC on any aspect of the UAAC,

(xiii) That the costs of this application be paid by the respondents if they oppose the application,

(xiv) Granting the applicants such further and/ or alternative relief as the court may deem it fit".

[23] In support of the notice of motion the founding affidavit of the 2nd applicant (2nd respondent in the appeal) together with confirmatory affidavits of the other applicants were filed.

[24] In opposing the application the 1st respondent (1st appellant in the appeal) deposed to an answering affidavit, and in addition launched a counter-application, and the terms of the said counter-application in summary are as follows:

a. "That the second and third applicants together with any other member of UAAC (the newly registered church) be restrained and interdicted from using the premises of the 1st applicant as its headquarters,

b. That the newly registered church be restrained and interdicted from using the abbreviations and the name of the 1st applicant as its name,

c. That the party opposing the counter-application be ordered to pay costs occasioned by the opposition,

d. Further and / or alternative relief that the court deems necessary".

THE ISSUES:

[25] The dispute between the parties is mainly that they on each side claim exclusive use of the headquarters of the church situated at stand number D179, Ha-Mureri, Makungwi village at Ha-Mavhunga, Vhembe District, Limpopo Province. The 2nd applicant brought the application in her personal capacity as the senior wife of the late Archbishop, and also as the senior member of the 1st applicant entrusted with the running of the family affairs by the late Archbishop, and she referrers to herself as "the mother of all members of UAAC". The 2nd, 3rd, 4th and 5th applicants are the wives of the late Archbishop, and their houses are built on the said stand of the headquarters of the church.

[26] The judgment of the court a quo reflects that prayers 1.4, 1.10, 1.11 and 1.12 of the main application were abandoned by the applicants (the respondents in the appeal) because the relief sought was overtaken by events. It is worth mentioning at this stage that above filing the answering affidavit, the respondents also subsequently filed the supplementary answering affidavit.

[27] The judgment of the court a quo from paragraphs 14 to 30 deals with points in limine that were raised by the respondents (applicants in the main application) in their supplementary replying affidavit mainly pertaining to how the affidavits in the supplementary answering affidavits of the respondents (appellants) were commissioned. The judgment of the court a quo is mainly based on the fact that the points in limine that were raised by the applicants were not challenged or opposed.

[28] The court will now deal with how the proceedings unfolded in the court a quo, based on the documents that are placed before this court, which in the court's view led to how this matter was dealt with in the court a quo. The main application was filed on 24 May 2019. The answering affidavit together with the counter-application was received by V.M. Netshipale Inc. on 25 May 2019, and the stamp of the Registrar is not legible. On the date that appears to be, 04 February 2020 the respondents filed a supplementary answering affidavit to the main application.

[29] The applicants on 18 February 2020 filed a reply to that supplementary answering affidavit of the respondents. In that reply the applicants raised the points in limine which the court a quo based its judgment mainly on. The issue that would be problematic in the court a quo would then be the manner in which the respondents were to deal with their response to the points in limine raised in the supplementary replying affidavit to their supplementary answering affidavit, because the respondents could not reply thereto.

[30] At the time of the hearing, the court a quo enquired from Advocate Mpofu SC as to whether it could find in favour of the applicants on the points in limine raised because they were not opposed and order that costs be in the main application, and he did not accede to that suggestion. It cannot therefore be correct to say that the points in limine were not opposed. That is evident from the court record where his response was recorded as follows on paginated and indexed pages 137 to 138 of the court record:

"...I am saying the points in limine do not have any merit, let us start there... so because those points have no merit whatsoever M' Lord but I am just saying we do not even have to go there... I am saying if and maybe that is the most important thing, even, firstly I say they have no merit but I then say they have no merit but I then say even if your Lordship were to uphold them, so it is a secondary statement, even then they must still lose the case because they have not made their case."

[31] It cannot be correct therefore, reading from the submission by Advocate Mpofu SC that the respondents were not opposing the points in limine. It would be difficult to challenge the points in limine as raised from what the respondents referred to as a secondary statement. The said points in limine as raised by the applicants, rightly so, mainly dealt with the manner in which the affidavits of the respondents were commissioned.

[32] Rule 6 of the Uniform Rules deals with applications, and specifies the time periods to respond to each process, and also what documents to accompany each process[5]. There are three affidavits in an application, as stated in Ndlebe v Budget Insurance Limited[6], and further affidavits must only be admitted with the leave of the court. One cannot just file a further affidavit without the leave of court. The records of the court a quo do not show such an application or applications where the court a quo exercised its discretion on allowing further affidavits to be filed.

[33] The court a quo acknowledged on paragraph 13 of its judgment that only three sets of affidavits are allowed in motion proceedings, and that further affidavits can only be allowed with leave of the court. The court a quo however, continued and dealt with the contents of the supplementary answering affidavit and the supplementary replying affidavit on the basis that: "the applicants seems not to have any quam with the filing of the supplementary answering affidavit"

[34] In Meropa Communications (Pty) Ltd & Another v Verb Media (Pty) Ltd [GLDH] case[7], the court stated the following:

"The mere filing of the supplementary founding affidavit does not constitute an irregular step. The affidavit will in any event not be considered admitted until leave is granted by the court dealing with the application ...If the respondent had filed the affidavit without seeking the leave of the court, the affidavit at best, in the discretion of the court, could be regarded a pro non scripto."

[35] In the case at hand, the court a quo should have declared the filing of the supplementary answering affidavit in the main application, without leave to do so, a pro non scripto, and simply not consider the contents thereof, unless if leave was granted to file such and other affidavits that would flow from that.

[36] The resultant supplementary replying affidavit could not flow from an affidavit that was filed without leave when such leave was a requirement. The court finds, therefore, that the court a quo misdirected itself by dealing with points in limine flowing from a statement from which leave was not granted for it to be filed and the resultant affidavits. The court a quo struck out some affidavits which according to it were not at par with the acceptable rules of practice, which was a misdirection on the part of the court a quo.

[37] The main application was challenged by the respondents (appellants) on the basis that the 2nd applicant together with the other applicants had no legal standing to bring the application on behalf of the 1st applicant as they were not authorised by resolution because the 1st applicant is an autonomous entity which can sue and be sued in its own name, and the court below was therefore asked to strike out the founding affidavit of the 2nd applicant.

LOCUS STAND/

[38] The appellants alleged that the 2nd respondent has no locus standi to bring the application on behalf of the 1st respondent (UAAC) because there is no resolution to that effect. The 2nd respondent in her founding affidavit stated that she resides at the headquarters of the 1st applicant, and brought the application in her personal capacity as a senior wife of the late Archbishop, and as the manager of the residential houses built in the headquarters of UAAC. In S.A. Transit Services CC and ICollege Pty Ltd[8], the court said it is trite that a notice of motion must be deposed to by any person who is in a position to provide the necessary material to support the claim, and any person who can lawfully be a witness to execute an affidavit.

[39] In the Namibian decision of Kayla Trading Enterprises CC v Okavu Renaissance Investments CC[9], the court said on paragraph 16 that:

"In the case of an artificial person, unlike an individual, it can only function through its agents, and can take decisions only by the passing of resolutions in the manner prescribed by its constitution..."

[40] The 2nd respondent does not expressly say that she brought the application on behalf of UAAC. The decision that the court took in SA Diatomite (Pty) Ltd v Maritz NO and Others (2049/2022) [2023]

ZANCHC 13 (10 February 2023), guided by the decisions in Eskom vs Soweto City Council[10], Ganes and Another v Telecom Namibia Ltd[11] and Unlawful Occupiers, School Site v City of Johannesburg[12] is that the deponent is not precluded to make an affidavit on facts that are of personal knowledge to them.

[41] Section 38 of the Constitution of the Republic of South Africa, 1996 (Constitution) reads as follows:

Enforcement of rights

38. Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The person who may approach a court are-

(a) anyone acting in their own interest,

(b) anyone acting on behalf of another person who cannot act in their own name,

(c) anyone acting as a member of, or in the interest of, a group or class of persons,

(d) anyone acting in the public interest, and

(e) an association acting in the interest of its members.

[42] The affidavit of the 2nd applicant is to the effect that she acted in her personal capacity as the actions of the respondents affected her directly together with the other wives of the late Archbishop who are also residents at the headquarters. She deposed to an affidavit about facts that she claims to have knowledge thereof. We find that following Ganes' authority, she was not precluded to depose to the affidavit as a witness, or of facts that she has knowledge of, not necessarily an initiator of legal proceedings. She was allegedly as well affected personally by the alleged actions of some of the respondents. The court a quo dealt with that aspect in its judgment fully and correctly from paragraphs 39 to 45.

APPOINTMENT OR NOMINATION OF A NEW OR ACTING ARCHBISHOP:

[43] The judgment of the court a quo demonstrates that paragraphs 1.4, 1.10, 1.11 and 1.12 of the main application were abandoned. Paragraph 1.4 deals with the suspension of church services pending the appointment of a new Archbishop. Paragraph 1.10 is a prayer that no person should be nominated as Archbishop until the mourning period had lapsed. Paragraph 1.11 is a prayer that no person should be appointed or nominated to be Archbishop or acting Archbishop, and if such had happened, it be declared invalid or void ab initio. Paragraph 1.12 is to the effect that David Ailwei Mureri should be interdicted from attending church or any gathering of UAAC or phoning any member of UAAC. There was therefore no need for the court a quo to decide on the mentioned aspects.

CONSTITUTIONS OF THE UAAC:

[44] It is common cause that there are more than one Constitutions, both alleged to be those of the UAAC. The court a quo was not tasked with determining as to which faction of UAAC is legitimate. The court a quo accepted the submission by the applicants that the Constitution that was filed by the respondents was falsified on the basis that, like other points in limine that were raised in the supplementary replying affidavit to the supplementary answering affidavit, was not specifically challenged. That was a misdirection on the part of the court a quo to make such a finding without supporting evidence.

[45] It is well established that according to the well-known principle of Plascon-Evans rule, that when factual disputes arise in an application, relief should be granted only if the facts stated by the respondent, together with the admitted facts in the applicant's affidavits, justify the order. To quote from the judgment itself, Plascon-Evans Paints (TVL) Ltd v Van Riebeck Paints (Pty) Ltd[13], on paragraph 8, the court said the following

"It is correct that where in proceedings on notice of motion disputes of fact have arisen on the affidavits, a final order, whether it be an interdict or some other form of relief, may be granted if those facts averred in the applicant's affidavits which have been admitted by the respondent, together with the facts alleged by the respondent, justify such an order"

[46] There may be exceptions to the general rule, for example where the allegations of denials of the respondent are so far-fetched or

clearly untenable that the Court is justified in rejecting them merely on the papers, as was said in Associated South African Bakeries (Pty) Ltd v Oryx & Vereinigte Backereien (Pty) Ltd en Andere[14]. However, in the case at hand the respondents did not go to the court a quo barely when called upon to do so.

[47] They supported their case with several documents, including the written Permission To Occupy (PTO) the headquarters in question, which the applicants also allege that it is not a valid document, and they question the institution that issued that written PTO produced by the respondents. That was a clear indication that there was a dispute of fact between the parties, which could not be resolved on the papers, because application proceedings are not designed to resolve factual disputes.

[48] Rule 6(5) (g) of the Uniform Rules (the Rules) states that

"Where an application cannot properly be decided on affidavit the court may dismiss the application or make such order as it deems fit with a view to ensuring a just and expeditious decision .In particular, but without affecting the generality of the foregoing, it may direct that oral evidence be heard on specified issues with a view to resolving any dispute of fact and to that end may order any deponent to appear personally or grant leave for such deponent or any other person to be subpoenaed to appear and be examined and cross-examined as a witness or it may refer the matter to trial with appropriate directions as to pleadings or definition of issues, or otherwise."

[49] This is clearly a case, which could not be resolved on papers looking at the issues involved. The appellants in the court a quo launched a counter­ application and papers were exchanged amongst the parties pertaining to that application. The 1st appellant has been interdicted to enter the headquarters of the church which is where the houses of some of the respondents (applicants in the main application) are.

[50] On the other hand, the appellants also launched a counter-application in which they sought an interdict for the 2nd respondent and the structures of the newly formed church, according to them, not to enter the same headquarters of the church. The court a quo in its judgment did not deal with the counter- application, which is an error on the part of the court a quo, and that vitiates against the judgment of the court a quo. The reality is that the impasse that is ongoing between the two factions of UAAC must be resolved by a court of law by way of trial proceedings.

[51] In the result the following order is made:

(a) Condonation is granted for the late filing of the appeal in the Limpopo Division of the High Court (Polokwane),

(b) The appeal is upheld with costs. Such costs to include the costs of two counsel. The judgment of the court a quo is set aside, and replaced with the following order:

(i) " the main application of the applicants (respondents in the appeal) and the counter-application of the appellants are referred to trial in terms of Rule 6(5) (g) of the Uniform Rules of Court before another Judge in the Limpopo Local Division, Thohoyandou,

(ii) the notice of motion in the main application shall stand as a simple summons,

(iii) the answering affidavit will stand as a notice of appearance to defend,

(iv) the applicants shall deliver their declaration within 15 days from the date of this order,

(v) the respondents shall deliver subsequent pleadings in terms of the Uniform Rules of Court,

(vi) the Uniform Rules of Court pertaining to actions shall apply to the action."

J.T.

NGOBENI

Acting Judge of the High Court

Limpopo Division: Polokwane

I agree and it so ordered

G.

MULLER

Judge of the High Court

I agree

M.G.

PHATUDI

Limpopo Division, Polokwane

Appearances Counsel for the Applicants : Advocate Mervyn M. Rip SC, with Advocate R.C. Mathevhula. Instructed by : Kern Dekker & Muthevhuli Inc. of Louis Trichardt. Instructed by : Kern Dekker & Muthevhuli Inc. of Louis Trichardt. 1st to 10th Respondents : Mr V.M. Netshipale, but withdrew from the proceedings = No appearances Date of the hearing : 11 August 2023 Date of delivery : 29 November 2023

Judgment transmitted electronically

[1] Section 27: Removal of proceedings from one Division to another or from one seat to another in same Division (1) If any proceedings have been instituted in a Division or at a seat of a Division, and it appears to the court that such proceedings- (a) Should have been instituted in another Division or at another seat of that Division, or (b) Would be more conveniently or more appropriately heard or determined- (i)at another seat of that Division, or (i) by another Division that court may, upon application by any party thereto and after hearing all other parties thereto, order such proceedings to be removed to that other Division or seat, as the case may be. (2) ...

[1] Section 27: Removal of proceedings from one Division to another or from one seat to another in same Division

(1) If any proceedings have been instituted in a Division or at a seat of a Division, and it appears to the court that such proceedings-

(a) Should have been instituted in another Division or at another seat of that Division, or

(b) Would be more conveniently or more appropriately heard or determined-

(i)at another seat of that Division, or

(i) by another Division

that court may, upon application by any party thereto and after hearing all other parties thereto, order such proceedings to be removed to that other Division or seat, as the case may be.

(2) ...

[2] (21/2003)[2004]

ZASCA 1, 2004 (4) SA 1 (SCA), [2004] 1 All SA 597 (SCA) (27 February 2004) paragraph 3.

[3] (JA52/98) [1998] ZALAC 11 (1 September 1998).

[4] Lekolwane & another v Minister of Justice and Constitutional Development 2007 (3) BCLR 280 (CC).

[5] Rule 6: Applications (1) Every application must be brought on notice of motion supported by an affidavit as to the facts upon which the applicant relies for relief, (2) to (4) ... (5) (a) to (c) ... (5)(d) Any person opposing the grant of an order sought in the notice of motion­ (i) ... (ii) within fifteen days of notifying the applicant of intention to oppose the application, deliver such person's answering affidavit., if any, together with any relevant documents, and, (iii)... (e) Within 10 days of the service upon the respondent of the affidavit and documents referred to in subparagraph (ii) of paragraph (d) of sub rule (5) the applicant may deliver a replying affidavit. The court may in its discretion permit the filing of further affidavits.

[5] Rule 6: Applications

(1) Every application must be brought on notice of motion supported by an affidavit as to the facts upon which the applicant relies for relief,

(2) to (4) ...

(5) (a) to (c) ...

(5)(d) Any person opposing the grant of an order sought in the notice of motion­

(i) ...

(ii) within fifteen days of notifying the applicant of intention to oppose the application, deliver such person's answering affidavit., if any, together with any relevant documents, and,

(iii)...

(e) Within 10 days of the service upon the respondent of the affidavit and documents referred to in subparagraph (ii) of paragraph (d) of sub rule (5) the applicant may deliver a replying affidavit. The court may in its discretion permit the filing of further affidavits.

[6] (7457/2017) [2019] ZAGPJHC 320 (22 February 2019).

[7] (29646/16) [2017]

ZAGPJHC 464 (11 August 2017) para [17].

[8] (38592/2020) [2021] ZAGPPHC (02 August 2021)

[9] (141/2015) [2016] NAHCNLD 101 (05 December 2016)

[10] 1992 (2) SA 703 {WLD).

[11] 2004(3) SA 615 (A),

[12] 2005 (4) SA 199 (SCA) (17 March 2005).

[13] (53/84) [1984]

ZASCA 51; [1984] 2 All SA 366 (A) (21 May 1984).

[14] 1982 (3) SA 893 (A) at pages 923G-924 D.