Qalase N.O. v Mtana and Others (4219/14) [2014] ZAECPEHC 95 (19 December 2014)

Not Reportable

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE – PORT ELIZABETH

Case No: 4219/14

REV. MAKHOSONKE GALFORD QALASE N.O. ….............................................Applicant

and

BONISWA MTANA..............................................................................................1st Respondent

NOMHLE FEZI.................................................................................................. 2nd Respondent

NOMFUSI NGOZA............................................................................................. 3rd Respondent

NOTHEMBILE LUDWALA................................................................................4th Respondent

PUMLA TOBA.......................................................................................................5th Respondent

NOMONDE BHONGA..........................................................................................6th Respondent

NOLUKHOLO MDOLOMBA............................................................................ 7th Respondent

NOTHUKELA MOOI...........................................................................................8th Respondent

REVEREND AMOS MPULU..............................................................................9th Respondent

REVEREND J.B JEBE.......................................................................................10th Respondent

REVEREND AMOS MPULU N.O. …...............................................................11th Respondent

REASONS FOR JUDGMENT

REVELAS J

[1] The applicant sought an order, on an urgent basis, interdicting the first to eights respondents from entering the church premises

situated at 26 Khoza Street, Zwide Port Elizabeth (“the church premises”) and an interdict restraining the ninth to eleventh respondents from interfering in any way with the applicant in the exercise of his duties as minister of the Zwide-Veeplaas Church and moderator of the Zwide-Veeplaas Circuit.

[2] The first to eighth respondents are the members of the Zwide-Veeplaas Women’s Committee (‘the committee’). The ninth respondent is the Moderator of the Cape Presbytery, presbytery of the Presbyterian Church of Africa. The tenth respondent is allegedly a minister whom the eleventh respondent has appointed in the church where the applicant is a minister. The eleventh respondent is the ninth respondent, cited in his capacity of moderator.

[3] The orders sought, were requested to operate as an interim interdict pending the outcome of legal proceedings to be instituted, to obtain a declarator confirming that the formation of the Southern Presbytery was lawful and proper and in accordance with the constitution of the Presbyterian Church of Africa.

[4] The respondents are aggrieved by the fact that the Southern Cape Presbytery was formed, which diminished the number of circuits which fell under the Cape Presbytery of which the ninth respondent was a minister and moderator.

[5] According to the applicant, the first to eighth respondents, who side with the ninth respondent on this issue, expressed their

dissatisfaction by singing different hymns to the ones he proposed during church services, and on occasion came to the front of the church whilst toyi-toying and ululating, and causing a general disruption of the service. The police were called twice.

The respondents also attempted to evict the applicant from his manse. The respondent’s case is that the applicant had

been excommunicated but provided no evidence to support that assertion.

[6] The first to eighth respondents admitted that they deliberately sang different hymns in the church to protest against the applicant’s

participation in the Cape Presbytery issue, and his insistence that they should accept the situation. They denied that they

disrupted the church service. All of the respondents deny that they tried to evict the applicants from his manse.

[7] Having read the papers, I formed the view that on the probabilities, that the respondents conducted themselves as described by the applicant. The presence of the police would not have been required if nothing had happened. If the first to eight respondents’ disruptive conduct was outlawed by an interdict, I did not see the need to interdict them from the premise. It would be tantamount to interdicting them to attend the church of their choice. It would also be an infringement of their right of freedom of association. It is so that the conduct complained of stopped some time prior to the hearing, but the respondents failed to give an undertaking sought by the applicant to the effect that they would refrain from behaving themselves in the manner sought to be interdicted.

[8] The relief sought was interim relief, pending the outcome of the Southern Cape Presbytery dispute. If I granted the order in the precise terms sought, it would mean that the respondents could revert to unacceptable conduct once the Southern Cape Presbytery issue was resolved. That would make no sense. Had I granted an interdict against the first to eighth respondents from entering the church premises, as prayed for, that order would have been granted on an interim basis only. But for the reasons given, I declined to do so.

[9] The respondents also raised various points in limine. The first was a question of non-joinder. The respondents contended that the Presbyterian Church of Africa ought to have been cited as a party to this application. Secondly, it was argued that the applicant was precluded from bringing this application in the name of his church, as he was precluded from doing so by the constitution of the Presbyterian Church of Africa.

[10] After consideration of the comprehensive arguments presented on these aspects, I was not persuaded to dismiss the application.

Considering that since the relief granted, was not to interdict the first to eighth respondents from entering the church premises, which would have been more invasive of their rights, strict adherence to the Constitution was not required. The relief granted merely concerned the conducting of the applicant’s church services in peace and in an orderly atmosphere. As a minister of the church, the applicant was entitled to bring such an application in the capacity, he did.

[11] In the result, and for the aforesaid reasons, the following order was made.

1. The first to eighth respondents are interdicted from disrupting the church services conducted by the applicant in his capacity as a Presbyterian Minister in the Zwide-Veeplaas Church at 26 Khoza Street, Zwide, Port Elizabeth, by:

1.1 Singing different hymns to those directed by the applicant during his church services.

1.2 Toyi-toying, ululating or conducting themselves in any other manner designed to cause a disturbance during the church services conducted by the applicant.

The respondents are interdicted and restrained from evicting the applicant from his manse.

The respondents are interdicting from interfering in any manner with the applicant in the exercise of his duties as Minister of the Zwide-Veeplaas Presbyterian Church and Moderator of the Zwide-Veeplaas Circuit.

The respondents are to pay the costs of this application, the one paying the other to be absolved

___________________

E REVELAS

Judge of the high Court

Counsel for the applicant, Adv Richards and Adv Williams instructed by Boqwana Burns Inc.

Counsel for the respondents, Adv Bands instructed by respondents in their capacity.

Date Heard: 17 December 2014

Date Delivered: 19 December 2014