Presbyterian Church of Africa v Sihawu and Others (3375/12) [2013] ZAECGHC 36 (25 April 2013)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE, GRAHAMSTOWN

CASE NO: 3375/12

Date Heard: 28 March 2013

Date Delivered: 25 April 2013

In the matter between:

THE PRESBYTERIAN CHURCH OF AFRICA .....................................................Applicant

and

SICHUMILE MAXIN SIHAWU ......................................................................1st Respondent

VUYISILE ALFRED SIYOBI .........................................................................2nd Respondent

LOYISO DYANI ..............................................................................................3rd Respondent

XOLILE TOTO .................................................................................................4th Respondent

SAKHEKILE MGIJIMA ..................................................................................5th Respondent

NONCEMBU ELSIE SIYOBI ..........................................................................6th Respondent

NOBUKHOSI KUNENE ..................................................................................7th Respondent

BONISWA MONICA SHOBA ........................................................................8th Respondent

THERESA MGIJIMA .......................................................................................9th Respondent

MAPASEKA DYANI .....................................................................................10th Respondent

VUYANI VICTOR MSINDO ........................................................................11th Respondent

JUDGMENT

GOOSEN, J:

Introduction

The applicant seeks, in this application, a final interdict against the respondents. In respect of the first respondent it seeks an order restraining him from holding himself out as a minister and or a member of the Presbyterian Church of Africa, as also restraining him from soliciting funds from any member of the Presbyterian Church of Africa. In respect of the first to tenth respondents an order is sought interdicting and restraining them from assaulting, threatening or intimidating congregants of the church and or entering or being upon any Presbyterian Church premises including eight properties identified in the notice of motion. In respect of the eleventh respondent, a practicing attorney, an order is sought prohibiting him from taking any steps in the name of the Presbyterian Church or purporting to act on behalf of the Presbyterian Church of Africa.

The application is opposed by the respondents who, apart from opposing the merits of the application, raise several objections in limine to the granting of the relief.

This application has its origins in an ongoing dispute within the Presbyterian Church of Africa. According to the Respondents the dispute relates to fundamental disagreements regarding the legitimacy of the current leadership of the church. This dispute,

which has beset the church for a number of years, has given rise to numerous High Court applications over the past few years. That this is so is borne out by the papers filed by the applicants to which have been annexed judgments and orders of the High Court, in apparently related matters, of no less than five High Courts including the judgments of this Court. I am aware that there are more than a dozen judgments of the courts of the Eastern Cape in matters related to this ongoing leadership dispute. A reading of these judgments reflects the depth of the apparently intractable dispute as to who may legitimately claim to lead and represent the Presbyterian Church of Africa, the applicant in this matter. It is against this backdrop that the present application must be considered.

Although there are numerous factual disputes relating to the alleged conduct of the respondents, which will be addressed hereunder, it is nevertheless possible to outline an essential background. It is this: The applicant is a voluntary association which exists and functions in accordance with a written constitution. The deponent to the founding affidavit is Reverend Mongezi Amos Mpulu whom it is alleged is a minister of the Presbyterian Church of Africa and the duly elected Moderator of the General Assembly of the applicant, the highest judicatory and executive body of the applicant. It is alleged that the application is authorised by resolution of the Special General Assembly of the applicant. The first to tenth respondents are alleged to be dissidents, former members of the applicant, who broke away from the church under the leadership of three individuals namely Matomela, Faleni and Mokabo. These three individuals have, so it is alleged, been interdicted and restrained by various High Courts from holding themselves out as ministers of the Presbyterian Church of Africa. The applicant owns and rents premises at which its congregants worship. The papers identify eight (8) such ‘stations’ situated in various locations in the Eastern Cape. The applicant alleges that the first respondent is a leader of what is described as a ‘mob’, apparently involving the second to tenth respondents. It is alleged that these respondents have at various times unlawfully taken occupation of the applicant’s premises; that they have threatened congregants with violence; and that they have ejected the lawfully appointed members of the applicant from these premises. These actions it is alleged have been taken in defiance of the several judgments and court orders obtained by the applicant to protect its members and to protect its property. For present purposes it suffices to note that premised upon the alleged unlawful and violent conduct of the respondents the applicant seeks a final interdict against them.

As indicated above, the respondents raise a number of objections in limine. The several objections are (a) that this court lacks jurisdiction in respect of the respondents; (b) that the applicant elected to proceed by way of application proceedings in the face of clearly foreseeable disputes of fact; and (c) that the application

is unauthorised and that the applicant lacks locus standi.

In argument before me Mr Brooks who appeared for the respondents submitted that the matter, including that of the points raised in limine, should be adjudicated in the light of the fact that the applicant has proceeded by way of application in the certain knowledge that real and material disputes of fact would arise and that, in the light of this, the court should dismiss the application

with costs.

It seems to me however that the primary initial question which calls for adjudication is whether this court has the necessary

jurisdiction to adjudicate the application. If it were to be found that the court lacks jurisdiction that would dispose of the matter. If the court only has jurisdiction in respect of some of the respondents then, and only then, would it be necessary to consider the further objections raised by the respondents.

The challenge to the court’s jurisdiction

It is common cause between the parties that the causes of action upon which the applicant relies in respect of the distinct relief

sought against the respondents (as outlined above) pertain to the alleged conduct of the respondents in the vicinity of Dimbaza. It is also common cause that all of the respondents, save the fifth and ninth respondents, reside in Dimbaza, Zwelitsha or Mthatha. In the case of the eleventh respondent he practices as an attorney from offices situated in Mthatha.

The respondents contend that by reason of these common cause facts this court does not have jurisdiction to adjudicate the matter and, inasmuch as the court has jurisdiction over the fifth and ninth respondents no case is made out against them. The applicant in turn alleges that this court has territorial jurisdiction over the areas within which the causes arose and that it therefore is vested with the necessary jurisdiction to deal with the matter.

In terms of Section 19 of the Supreme Court Act, 59 of 1959 this court has jurisdiction over all persons residing in or being in and in relation to all causes arising and all offences triable within its area of jurisdiction. It is trite that each High Court has a defined territorial jurisdiction. The effect of Section 19 (1) of the Supreme Court Act is to confirm the territorial jurisdiction of a High Court. In terms of Section 19 (1) (b) the territorial jurisdiction may be extended on the basis that the court also has jurisdiction over any incola of the Republic who is joined either by way of third party notice or otherwise as a party to a suit in respect of which the court has jurisdiction, irrespective of whether the court would otherwise have had jurisdiction over the incola (see Majola v Santam Insurance Co Ltd 1976 (1) SA 874 (SE)). The court must however have jurisdiction in respect of the cause arising within the jurisdiction of the court (see Estate Agents Board v Lek 1979 (3) SA 1048 (A) at 1062F – 1063E).

The applicant’s counsel argued that this court does have jurisdiction over the Dimbaza, Zwelitsha and Mthatha areas where the respondents are resident or where the property which is the subject of this application is situated. The submission was based on the assertion that these areas, in which the church properties are apparently situated, all lie eastwards of the named magisterial

districts which form part of the territorial jurisdiction of this court as referred to in the First Schedule to the Supreme Court Act, 1959. On this basis it was submitted that this court has concurrent jurisdiction with the High Courts of Bhisho and Mthatha.

The argument loses sight of the constitutional history of the territories of the former Transkei and Ciskei as well as the

provisions of the Constitution of 1993 and the Constitution, 1996. Prior to the commencement of the 1993 Constitution the so-called

TBVC states (including Transkei and Ciskei) were territorially excised form the Republic of South Africa. In each of these TBVC

states court structures of comparable status and jurisdiction to the Divisions of the Supreme Court of South Africa were established.

These courts exercised territorial jurisdiction of the territories comprising the TBVC states. Such was the nature of the constitutional status of the TBVC states prior to the commencement of the 1993 Constitution that those territories fell outside of the ambit of the territorial jurisdiction of the relevant Divisions of the Supreme Court of South Africa. The courts of the TBVC states exercised wholly separate and distinct jurisdiction over the respective territories for which those courts were established.

The Constitution of 1993 effected a re-incorporation of the territories of the TBVC states into the national territory of the

Republic of South Africa. Section 241(1A)(b) of the 1993 Constitution provided that:

‘(b) a Provincial or Local Division of the said Supreme Court of South Africa, and any other Supreme Court or General Division thereof, shall have the same jurisdiction as that which vested in terms of this Constitution in a Provincial or Local Division contemplated in s 101(1), and shall exercise such jurisdiction in respect of the area of jurisdiction for which it was established.

(emphasis added)

The effect of s 241 of the Constitution, 1993 was to preserve the existence of the court structures and their relevant territorial

jurisdictional areas as existed immediately prior to that Constitution coming into effect (cf. Steelchrome (Pty) Ltd v Jacobs and Others 1995 (2) SA 873 (B) at 877C, see also S v Nocuse and Others 1995 (3) SA 240 (Tk) and S v Mngonyama 1995 (3) SA 246 (Tk)).

The Constitution of 1996 also makes provision for transitional arrangements in respect of the structure and jurisdiction of courts.

The relevant provisions of Item 16 of Schedule 6 to the Constitution read as follows:

Every court, including courts of traditional leader, existing when the new Constitution took effect, continues to function and to exercise jurisdiction in terms of the legislation applicable to it…..

(a) A provincial or local division of the Supreme Court of South Africa or a supreme court of a homeland or a general division of such a court, becomes a High Court under the new Constitution without any alteration in its area of jurisdiction, subject to any rationalisation contemplated in subitem (6).

(a) As soon as practical after the new Constitution took effect all courts, including their structure, composition, functioning and jurisdiction, and all relevant legislation, must be rationalised with a view to establishing a judicial system suited to

the requirements of the new Constitution.

The rationalisation contemplated by Item 16(6)(a) has not yet occurred. The legislature has however enacted the Interim Rationalisation of Jurisdiction of High Courts Act, Act 41 of 2001.1 That Act does not however, change the territorial jurisdiction of the High Courts as they existed at the time of commencement of the Constitution. It provides a mechanism for the removal of a matter commenced before a court which does not have jurisdiction to the appropriate court having jurisdiction. As to the ambit and effect of this legislation see Road Accident Fund v Rampuka;; Road Accident Fund v Gumede 2008 (2) SA 534 (SCA)).

The effect of these constitutional provisions is that this court’s territorial jurisdiction does not include the areas in respect of which the now renamed Bhisho High Court and Mthatha High Court, respectively, exercise territorial jurisdiction. There is accordingly no merit in the submissions advanced by the applicant to establish this court’s so-called concurrent jurisdiction with those courts.

The applicant did not expressly rely upon section 19(1)(b) of the Supreme Court Act as a basis upon which jurisdiction is established.

Nevertheless it is necessary to briefly consider that issue. Section 19(1)(b), as noted earlier in this judgment, serves to extend the jurisdiction of a High Court to an incola of the Republic who has been joined in a suit in respect of which the court has jurisdiction. The effect of the section is not to confer on a High Court country-wide jurisdiction. In order to confer jurisdiction over an incola of the Republic who is a peregrinus of the High Court. That person must be joined in a suit in respect of which the court enjoys jurisdiction by reason of one or other rationis jurisdictionis at common law (see Estate Agents Board v Lek (supra)). The causes giving rise to this application do not, on the applicant’s version, arise within the area of jurisdiction of this court. The principal allegations relating to the alleged unlawful conduct of the respondents all pertain to events which are said to have occurred at Dimbaza. It is there that the respondents are alleged to have forcibly taken control of the church property; where the respondents are alleged to have threatened congregants with assault; where they have allegedly unlawfully ejected the duly elected members of the church from their possession of church property. In this instance the fact that this

court may have jurisdiction over the persons of the fifth and ninth respondents by reason of them residing in it area of jurisdiction

does not constitute a basis upon which that jurisdiction can be extended to cover all of the respondents cited in this application.

That is so because this court does not, upon its territorial jurisdiction, have jurisdiction in respect of the cause in which the said respondents are cited.

It follows therefore that on the applicant’s own case this court does not have jurisdiction in respect of the respondents, save for the fifth and ninth respondents and that the properties which are the subject of the dispute, save for one to which I shall revert hereunder, do not fall within the jurisdiction of this court. Accordingly this court lacks the necessary jurisdiction to adjudicate the matter and to grant the relief sought by the applicant in respect of the first to fourth; sixth to eighth; tenth and eleventh respondents. In respect of those respondents the application falls to be dismissed. It is therefore not necessary to consider any further the other objections in limine or the merits of the applicant’s application.

As already indicated it is common cause that the properties in respect of which the applicant seeks a prohibitory interdict are,

with the exception of one, all situated in areas outside of the territorial jurisdiction of this court. The one property, namely the station situated at Qonce, King Williams Town, is however the subject of a dispute of fact. The respondents allege that there is in fact no preaching station, or building or structure of any sort located there which belongs to the applicant. Insofar as this dispute of fact is concerned, it is submitted that I should adopt a robust approach and determine the question on the basis of the facts alleged by the applicant which have been admitted by the respondent. On this basis it is argued that I should find that there is no property of the applicant which is situated within the area of jurisdiction of this court to which the present dispute relates and that this court accordingly only has jurisdiction over the fifth and ninth respondents by virtue of them being resident within the area of this court.

I agree, and for the reasons set out above I find that this court does not have jurisdiction over the respondents other than the fifth and ninth respondents.

The position of the fifth and ninth respondents

The question therefore arises in respect of the fifth and ninth respondents whether the applicant has established a basis upon which relief may be granted in respect of these respondents. It is argued that regard should be had to the remaining points raised in limine, namely the fact that the applicant has proceeded by way of application well knowing that material disputes of fact would arise and that the applicant lacks the necessary locus standi. In my view however, the matter is more readily resolved by considering whether, notwithstanding the points raised in limine, the applicant has properly founded a case upon which the relief sought can be granted against the fifth and ninth respondents.

As indicated the applicant seeks a final interdict against the fifth and ninth respondents restraining them from assaulting, intimidating or threatening members of the congregation of the applicant as well as from entering upon the applicant’s premises identified in the notice of motion. The basis upon which the interdict is sought is the alleged participation of the fifth and ninth respondents in a “mob” or group of dissidents acting under the leadership of the first respondent. It is alleged that the members of this “mob” have threatened members of the applicant and ejected the lawfully appointed leadership of the applicant from various properties utilised by the applicant.

A reading of the applicant’s papers reflects that there is not a single allegation made against either the fifth or ninth

respondents which directly implicate them in the alleged commission of the unlawful activity which the applicant seeks to prohibit. At best for the applicant reference is made to them being part of a “mob”. The allegation in this regard can carry little weight since it is apparent that the deponent to the applicant’s affidavit was not present at any of the incidents giving rise to this application. The applicant is accordingly reliant upon the evidence deposed to by those who were allegedly present as set out in the confirmatory affidavits filed. These make no reference at all to the fifth and ninth respondents, do not identify them and do not positively link the fifth and ninth respondents with any of the alleged activities of the “mob”.

To compound the difficulty for the applicant the fifth and ninth respondents deny that they have acted unlawfully, that they have threatened and intimidated members of the applicant or that they have unlawfully ejected members of the applicant from the

applicant’s premises. In these circumstances and having regard to the facts as must be taken to be established in these

proceedings, it is not established that the fifth and ninth respondents were part of the “mob”; that they acted unlawfully and that there is any apprehension that they may do so in the future. No basis has therefore been established upon which this court may properly grant an interdict against the fifth and ninth respondents.

Order

It follows from what I have set out above that the applicant’s application must fail. It was argued by the respondents’

counsel that in the light of the applicant’s conduct of this matter, in particular the fact that it has brought an application

before this court when this court patently did not have jurisdiction to entertain the matter; the fact that it brought an application in circumstances when it must have been apparent that material disputes of fact would arise are factors which would warrant an award of attorney client costs. I disagree. I cannot ignore the fact that this application arises out of a protracted leadership dispute within the applicant. I cannot ignore the fact that the applicant is entitled to protect its interests and to seek to ensure that its activities are not disrupted by persons who contest the legitimacy of the current leadership of the applicant. In my view the circumstances of this matter do not warrant a punitive costs order. It suffices to make the usual order in respect of costs.

In conclusion it is appropriate to remark briefly on the fact that this is yet another in a long line of High Court applications

related to the ongoing leadership dispute in the applicant church. In almost every instance the litigation has been directed to a prohibitory interdict of one form or another, often brought on the basis of some alleged urgency. Different parties have been involved in some instances but, as appears from the several judgments of this court and the courts of the Eastern Cape, very similar issues have been raised and the allegations and counter allegations have followed a familiar pattern.

In this instance I decided the application essentially on the basis of this court’s lack of jurisdiction. It was therefore not necessary to consider the issues raised in relation to the existence of disputes of fact which it was alleged were readily foreseeable. At face value however, it seems to me that there is some merit in the contention that the existence of fundamental disputes of fact are readily apparent in this ongoing saga of litigation. That being so the time may well come when a party to this intractable leadership squabble is non-suited on that account.

One would hope however that an appeal to the rationality of the protagonists to this dispute and those legal practitioners who

represent them, would cause them to seek a solution other than episodic litigation which appears to serve little purpose other than to entrench the enmity and to provide fuel for still more conflict within the Presbyterian Church of Africa.

I make the following order:

The application is dismissed with costs.

_________________________

G GOOSEN

JUDGE OF THE HIGH COURT

APPEARANCES:

FOR APPLICANT: Ms. J. Wild

Instructed by McCallum Attorneys

FOR RESPONDENTS: Mr. R. Brooks

Instructed by Yeko Attorneys

1The First Schedule to the Supreme Court Act has been repealed by s 4 of the Interim Rationalisation of Jurisdiction of High Courts Act with effect from 5 December 2001. The section nevertheless retains the areas of jurisdiction of the High Courts, subject to any alterations as may be effected in terms of s 2 of the Act. To date no alteration to the territorial jurisdiction of this court has taken effect.