Ncapayi v Holy United Church of Christ and Another (193/2018) [2019] ZAECGHC 98 (15 October 2019)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

Case No: 193/2018

Date heard: 10 October 2019

Date delivered: 15 October 2019

In the matter between:

XOLA NCAPAYI Applicant and THE HOLY UNITED CHURCH OF CHRIST First Respondent ARCH-BISHOP SIVENGAYE KULANA Second Respondent

JUDGMENT

LOWE, J:

INTRODUCTION

[1] In this matter Applicant, the Secretary General of the National Executive Committee (NEC) of First Respondent, seeks to Review and set aside the decision of First and Second Respondents taken on 24 September 2017 suspending him from the NEC. Secondly he seeks to review the First and Second Respondents’ “Bishop in Council” decision of 6 January 2018 to expel him from the NEC.

[2] This is opposed there being a counter-application seeking amongst other things an order restraining Applicant from acting on behalf of “Applicant” (in fact Respondents) pending finalization of the Application and from transacting on Respondents’ bank account. The

counter-application is opposed to a very limited extent.

[3] Neither Counsel’s argument laid any emphasis on the counter-application, nor was interim relief sought in this regard.

[4] An analysis of the papers disclosed several deep disputes of fact crucial to the outcome of the matter being:

[4.1] The correct Church Constitution, Applicant relying on one and Respondent on another, a very different document.

[4.2] Whether Applicant had the opportunity of being heard prior to his suspension and expulsion.

[4.3] The limited issues raised in the counter-application.

[5] The Church Constitution is relevant to the procedure in respect of suspension, expulsion and discipline and is crucial to a proper understanding of this matter. Regardless of which Constitution operates the issue of a fair hearing (which is deeply disputed) is also crucial.

[6] There are other disputes of fact and the affidavits are unhelpful in this regard impermissibly annexing documents intended to be relied on but without, in many instances, highlighting the part of each document relevant. It is not for the Court to peruse documents not specifically referred to as to content relevant.

[7] Mr Poswa for Applicant was hard put to argue the contrary and retreated, as he was bound to do, to the submission that the matter should be referred to oral evidence.

[8] Mr Nzuzo submitted that the disputes were foreseeable and deep and that the matter should be dismissed entirely with costs.

THE PROPER APPROACH

[9] Generally applications are not designed to resolve factual disputes between the parties and are decided on common cause facts. Probabilities and onus issues are not of Application[1].

[10] As is set out in Civil Procedure in the Supreme Court[2]:

“It is well established the Plascon-Evans rule that wherein motion proceedings disputes of fact arise on the affidavits, a final order can be granted only if the facts averred in the applicant’s affidavits, which have been admitted by the respondents, together with the facts alleged by the latter, justify such order. It may be different if the respondent’s version consists of bald or uncreditworthy denials, raises fictitious disputes of fact, is palpably implausible, far-fetched or so clearly untenable that the court is justified in rejecting them merely on the papers.” [3]

[11] The Court has to accept those facts averred by Applicant that were not disputed by Respondent, and Respondent’s version insofar as it was plausible, tenable and credible[4].

[12] This however is not the end of the matter as is pointed out in Harms Civil Procedure in the Supreme Court [5] as follows:

“It is accordingly generally undesirable to endeavour to decide an application upon affidavit where the material facts are in dispute.

In such a case it is preferable that oral evidence be led to enable the court to see and hear the witnesses before coming to a

conclusion.[6] On the other hand, it is equally undesirable for a court to take all disputes of fact at their face value. If this were done a respondent might be able to raise fictitious issues of fact and thus delay the hearing of the matter to the prejudice of the applicant.[7] In every case the court should examine the alleged disputes of fact and determine whether in truth there is a real[8] issue of fact that cannot be satisfactorily resolved without the aid of oral evidence.[9] Whether a factual dispute exists is not a discretionary decision; it is a question of fact and a jurisdictional pre-requisite for the exercise of the discretion given by the rule.[10] It is not a question of any difference of character between the various kinds of claims being enforced, but a question of the proper method of determining in each case the facts upon which any claim depends.[11]”

[13] In this matter there are irresoluble factual disputes which are real and genuine. As Applicant has asked for the matter to be referred for evidence, I must consider this issue.

[14] If the material dispute of fact should have been foreseen by Applicant the Court may dismiss the Application[12]. The Court has a discretion however and may order cross-examination, evidence or trial[13].

[15] If the disputes are not narrow or the scope is not clear (as in this matter) the matter may be referred to trial[14]. This requires directions regarding pleadings and definition of the issues[15]. As to an alternative approach see Metallurgical and Commercial Consultants (Pty) Ltd v Metal Sales Co (Pty) Ltd [16]. The applicability of Rules 35 and 36 must be considered.

[16] The matter is complicated by the fact that the crucial Minutes of 24 September 2017 are attached only in isiXhosa and no translation made available rendering this unavailable to the Court, contrary to the relevant precepts.

[17] In my discretion this is not a matter which should in justice and equity (in my view) be simply dismissed. I am unconvinced that the Church Constitution dispute was, at least initially, foreseeable when the application was launched – this being the crucial time – nor even perhaps the audi alteram partem dispute, though I cannot say this reliably due to the unavailability of access to an appropriately translated minute.

[18] I am also of the view that, as the extent of the disputes are not entirely certain, this matter should be referred to trial and not oral evidence on limited disputes.

[19] The matter thus is to be referred to trial with directions as appears below.

[20] The costs must stand over as the trial Judge will better determine this issue on all the facts.

ORDER

[21] The following order issues:

1. The application and counter-application (the latter insofar as necessary) are referred for trial, at a time to be arranged with the Registrar, on the questions and issues raised on the affidavits in both matters, as between Applicant and Respondents.

2. The affidavits shall stand as the pleadings in each matter.

3. The evidence shall be that of any witnesses whom the parties, or either of them, may elect to call, subject, however, to what is provided in paragraph 4 hereof.

4. Save in the case of Mr X Ncapayi and Mr M Noqayi, neither party shall be entitled to call any witness unless:

(a) having served on the other party at least 14 days before the date appointed for the hearing (in the case of a witness to be called by Respondent) and at least 10 days before such date (in the case of a witness to be called by Applicant), a statement wherein the evidence to be given in chief by such person is set out; or

(b) the Court, at the hearing, permits such person to be called despite the fact that no such statement has been so served in respect of his evidence.

5. Either party may subpoena any person to give evidence at the hearing, whether such person has consented to furnish a statement or not.

6. The fact that a party has served a statement in terms of paragraph 4 hereof, or has subpoenaed a witness, shall not oblige such party to call the witness concerned.

7. Within 21 days of the making of this order, each of the parties shall make discovery, on oath, of all documents relating to the issues referred to in paragraph 1 thereof, which are or have at any time been in the possession or under the control of such party.

8. Such discovery shall be made in accordance with Rule of Court 35 and the provisions of that Rule with regard to the inspection and production of documents discovered shall be operative. Rule 36 is declared applicable insofar as is relevant.

9. The incidence of the costs incurred up to now shall be determined after the hearing of oral evidence by the trial Judge and are accordingly reserved.

_________________________

M.J. LOWE

JUDGE OF THE HIGH COURT

Appearances:

Obo Applicant: Adv S.G. Poswa

Instructed by: NT VUBA Inc, Grahamstown

Obo Respondents: Adv S Nzuzo

Instructed by: Yokwana Attorneys, Grahamstown

[1] Plascon-Evans Paints (TVL) Ltd v Van Riebeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 A 634 – 635; National Director of Public Prosecutions v Zuma 2009 (2) SA 279 SCA [26]

[2] Harmse (Butterworths) B6.45

[3] Media 24 Books (Pty) Ltd v Oxford University Press Southern Africa (Pty) Ltd 2017 (2) SA 1 (SCA)

[4] Airports Company South Africa Soc Ltd v Airports Bookshops (Pty) Ltd t/a Exclusive Books [2016] 4 All SA 665 (SCA).

[5] Butterworths B6.45

[6] Frank v Ohlsson’s Cape Breweries Ltd 1924 AD 289 294; Plascon-Evans 634-635

[7] Petersen v Cuthbert & Co Ltd 1945 AD 420 428. A hollow denial or a detailed but fanciful and untenable version does not create a dispute of fact: Truth Verification Testing Centre CC v PSE Truth Detection Centre CC 1998 (2) SA 689 (W) 698; Rosen v Ekon [2000] 3 All SA 23 (W) 39; Ripoll-Dausa v Middleton NO [2005] 2 All SA 83 (C), 2005 (3) SA 141 (C).

[8] Rothman v Curr Vivier Inc 1997 (4) SA 540 (C) 551; Peterson v Cuthbert & Co Ltd supra 429; President of the Republic of South Africa v South African Rugby Football Union 2000 (1) SA 1 (CC) pars 234-239. It has variously been called a “genuine” or “bona fide” dispute (“’n werklike of direkte feitegeskil”: Van der Merwe v Meyer 1971 (3) SA 22 (A) 26G) but the meanings are the same. Whether the converse of a “real” dispute is a “mala fide” dispute of fact as suggested in Von Steen v Von Steen 1984 (2) SA 203 (T) is open to doubt. Speculation does not create a real dispute of fact: Standard Credit Corporation Ltd v Smyth 1991 (3) SA 179 (W); Governing Body of Hoërskool Fochville and Another v Centre for Child Law; In re: Governing Body of Hoërskool Fochville and Others (Greenside High School Governing Body as amicus curiae) [2014] 4 All SA 204 (GJ).

[9] Petersen v Cuthbert & Co Ltd supra 428; Administrator, Transvaal v Theletsane [1990] ZASCA 156; 1991 (2) SA 192 (A) 197; G v Superintendent, Groote Schuur Hospital 1993 (2) SA 255 (C).

[10] Ismail v Durban City Council 1973 (2) SA 362 (N) 374A-B; Du Preez v NWK Ltd [2005] 3 All SA 551 (B)

[11] Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) 1162; Ter Beek v United Resources CC 1997 (3) SA 315 (C) 329D-E.

[12] Harilal v Rajman and Others [2017] 2 All SA 188 (KZD); Prinsloo NO and Others v Goldex 15 (Pty) Ltd and Another 2014 (5) SA 297 (SCA)

[13] Lombaard v Droprop CC and Others 2010 (5) SA 1 (SCA)

[14] Pressma Services (Pty) Ltd v Schuttler and Another 1990 (2) SA 411 (C) 419

[15] Melamed and Another v BP Southern Africa (Pty) Ltd 2000 (2) SA 614 (W) 623

[16] 1971 (2) SA 388 (W) 396