Presbyterian Church of Africa and Another v Peter (3045/2014) [2015] ZAECPEHC 40 (2 June 2015)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE LOCAL DIVISON, PORT ELIZABETH

CASE NO: 3045/ 2014

Date heard: 28 May 2015

Date delivered: 2 June 2015

NOT REPORTABLE

In the matter between

PRESBYTERIAN CHURCH OF AFRICA

First Applicant

AMOS MONGESI MPULU N.O.

Second Applicant

And

PATRICK VUYISILE PETER

Respondent

JUDGMENT

GOOSEN, J.

[1] The applicant is the Presbyterian Church of Africa represented by the Rev Amos Mpulu as Moderator of the Cape Presbytery of the church. The respondent is a Minister whom it is alleged has been excommunicated by the Cape Presbytery. The applicant seeks a final interdict restraining the respondent from holding himself out as being a member of the applicant; from soliciting funds from members of the church and from entering in or upon any property owned or rented by the applicant.

[2] The application is another in a very long line of similar cases where the church has sought to restrain certain individuals from participating in its affairs. There are numerous judgments of this court, which detail a sorry saga of factional and related disputes within the governing structure of the church. In this case – as in a number of other matters – the respondent has raised certain challenges to the authority of the applicant. In this case too the respondent has placed in issue – to a certain extent – the authority of the deponent to the founding affidavit to act on behalf of the church.

[3] In response to this challenge the Rev Amos Mpulu filed an application to be joined as co-applicants in his capacity as Moderator of the Cape Presbytery of the applicant. I was informed of this application at the commencement of the hearing of the matter. The application was not opposed. The respondent adopted the attitude that the application was of little or no consequence, inasmuch as it served only to highlight the deficiency in the deponent’s authority to commence proceedings. Counsel for the applicant also adopted a curious attitude, namely that the joinder was entirely unnecessary and was pursued only ex abundanti cauteli in the event that the court found that Mpulu did not have authority. I may mention that the notice of motion in the joinder application

reflected the applicant as being the Presbyterian Church of Africa, rather than the Rev Mpulu in his capacity as Moderator. Be that as it may. I was asked to join the Rev Mpulu as second applicant and this was not opposed. No costs order was sought against the respondent and, accordingly, the joinder should be ordered. The application will therefore be adjudicated on the basis that Mpulu is joined as second applicant.

[4] The applicants allege that the respondent was formerly a minister of the church until he was excommunicated. It is alleged that in 2014 several complaints about the conduct of the respondent relating to alleged misappropriation of funds; attempted disposal of church assets and preaching dogma contrary to that authorized, were raised. The respondent was summoned to the Annual Sitting of the Cape Presbytery held between 27 and 29 April 2014. He did not attend. As a result he was formally excommunicated. On 30 May 2014 a letter advising the respondent of his excommunication was served upon him. It required that he vacate the Manse and that he desist from continuing to hold himself out to be a member of the church. The respondent admits that he received the letter of excommunication. The applicant’s case is that the respondent has continued to hold himself out to be a member of the church, notwithstanding his excommunication. It is on this basis that the applicants seek the interdictory relief referred to above.

[5] In opposing the application the respondent has raised several points in limine. The first of these is a challenge to the qualifications of the second applicant. It is alleged that he does not hold the requisite

qualifications to hold the title of minister in the church. The challenge is, in my view, spurious. The respondent admits that the second applicant is an ordained minister of the church and that he has been so for many years. He also admits that the second applicant is the Moderator of the Cape Presbytery and that until recently the local Church of which the respondent is a minister fell under the aegis of the Cape Presbytery. The respondent’s challenge to the qualifications of the second applicant is, in the circumstances, mere makeweight.

[6] The second point in limine is that the second applicant is not the moderator of the first applicant and therefore lacks authority to litigate on behalf of the first applicant. The third point, related to this, is that the litigation is not authorised by resolution of the General Assembly of the first applicant as is required by the chapter XX clause 19 of the Constitution of the first applicant.

[7] As already indicated the respondent admits that the second applicant is the duly appointed Moderator of the Cape Presbytery, which is one of several Presbyteries established within the broader community of the church. There is accordingly no denial of the authority of the second applicant to act in that capacity as Moderator of the Cape Presbytery.

[8] Chapter V of the Constitution of the first applicant sets out the nature and jurisdiction of the church judicatories. Clause 2 of that chapter provides that:

There are five ecclesiastical judicatories in our Church Government, namely: The Church Session, The Deacons Court, The Presbytery, The Synod, and the General Assembly.

[9] Clause 5 provides that:

All actions for offence against Ministers must be initiated in the Presbytery of which they are members. And every action, traditional or otherwise, which may have ground for the consideration and determination of the Courts, will carry the course of whatsoever nature, in one of the four ways provided in the Form of Government (by general review, by reference, by complaint or by appeal) in regular order from the court, where it regularly initiated, first to the next higher then to the next and finally to the General Assembly, which is the court of last resort. Any deviation from this order is irregular.

[10] In terms of clause 6, no court (used in the sense of a judicatory within the church) can interfere with the proper authority and jurisdiction of another. The powers and functions of the General Assembly are set out in clause 10, which provides that:

The General Assembly, as in the relevant court, can issue and determine judicial cases, when regularly brought before it, from the lower court; can determine all doctrinal questions; can interpret the Constitution, decide controversies respecting discipline, and give advice and instruction in all cases submitted to it, in conformity with the Constitution of the Church; and it can also overture the Presbytery is for Amendments to the Constitution or Organic law of the whole Church. But its decisions are of no force to establish any new law, and can only be employed as precedents for future guidance.

[11] In seeking to establish the authority of the second applicant reference was made to the provisions of chapter XX clause 15 which provides that:

The Moderator and Clerk, or any of them of all of our ecclesiastical judicatories, shall, at all times, have full power, to pursue, or defend, any action or actions, in whatever court, or courts of law or justice, for the enforcement, maintenance, or protection, of the rights, interests, all privileges of the said judicatory use, all of the Church or members of the Church at large, in, or in any way connected with, the Church property bought ought to be bought; erected ought to be erected; freely given ought to be freely given.

(My emphasis)

[12] It was argued that this section of the Constitution confers upon the Moderator of a Presbytery the authority to act in the interests of the church as a whole and, in particular, to initiate litigation, inter-alia in the protection of the rights of the church in relation to property.

[13] The respondent argued to the contrary, pointing to the provisions of chapter XX, clause 19 which provides that:

No party or parties, whatsoever, shall have any right or title to pursue the trustees (local or general) before any court of law or justice, in reference to the use, position, occupation, or enjoyment, or management, and disposal of Church property, unless with the express consent and concurrence of the General Assembly or the Executive Commission thereof;…

[14] Since there was no proof of any written certificate as envisaged by the clause, so the argument went, the litigation is not authorised.

[15] A reading of the clause in the context of the chapter which deals with the management and control of church property as a whole, indicates that the reference to local or general trustees is a reference to the members of the Deacons Court. Clause 19 prohibits suit against the members of the Deacons Court in their capacity as local or general trustees without the consent and concurrence of the Moderator of the General Assembly. In this instance the clause does not apply.

[16] In my view clause 15 quoted above confers on the Moderator of a Presbytery the authority to litigate on behalf of the church in the protection of its rights and interests. It follows that the challenge to the second applicant’s authority in this application must fail.

[17] I turn to consider the merits of the application. It was submitted on behalf of the respondent that there are material disputes of fact which ought to have been anticipated by the applicants and that, mindful of previous of judicial warnings in this regard, this court ought to dismiss the application on that ground alone. I disagree. As already indicated the respondent admits to receipt of the letter advising him of his excommunication from the Cape Presbytery. The respondent states the following in relation to the decision of the Cape Presbytery to excommunicate him:

17. Until recently, our local church used to fall under the Cape Presbytery of which he [’s second applicant] is the moderator but left because of disagreements and general abuse of the membership. Things had come to a stage where in the differences were so irreconcilable that we could no longer continue working together under the same roof. A letter to communicate the decision of the congregation to leave the Cape Presbytery was forwarded to Mr Mpulu and is now Annexure “AN 2” of his application papers.

18. This did not go down well with Mr Mpulu who sent me a so-called letter of excommunication, Annexure “AN 3” trying to subject me to discipline. But as matters stand now, we as a congregation have nothing to do with Mr Mpulu and now fall under the leadership of the Rev Qalase.

[18] What is significant is that the respondent does not dispute the act of excommunication undertaken by the Cape Presbytery as is set down in the founding affidavit. All that he states is that his church has dissociated itself from the Cape Presbytery and now associates itself with another Presbytery, namely the Southern Cape Presbytery. In respect of this latter allegation the applicants state that no such Presbytery has yet been officially recognised and sanctioned by the General Assembly of the first applicant.

[19] It appears from the papers that the respondent has taken no steps to challenge his excommunication from the Cape Presbytery. In this regard Mr Moorhouse made reference to clause 30 of chapter 2 of the Constitution which provides that:

A deposed Minister desiring to be restored, must apply to the Presbytery that deposed him, and not to any other.

[20] It was therefore submitted that on the respondent’s own version that there is no dispute of facts relevant to the relief sought by the applicants. The respondent admits to holding himself out as a Minister of the first applicant and admits to being in possession of the church property. The applicant’s averments in regard to the unlawful conduct of the respondent are not challenged.

[21] In these circumstances the applicant’s have established a breach on the part of the first respondent of the provisions of the Constitution of the first applicant and have established, upon a proper reading of the papers, all of the requisites for the granting of the relief which is sought.

[22] In the circumstances the following order will issue:

1. The respondent is interdicted and restrained from holding himself out as a Minister and/or as a member of the Presbyterian Church of Africa;

2. The respondent is interdicted and restrained from soliciting any funds from members of the Presbyterian Church of Africa;

3. The respondent is interdicted and restrained from entering upon any premises owned or rented by the Presbyterian Church of Africa.

4. The respondent is ordered to pay the costs of the application.

__________________________

G. GOOSEN

JUDGE OF THE HIGH COURT

Appearances:

For the Applicants

A.C. Moorhouse

Instructed by Michael Randell Attorneys

For the Respondent

N. Sandi

Instructed by S. B. Maqungu Attorneys