Setsiba and Others v Trans-Orange Conference of Seventh Day Adventists and Others (6277/2014) [2018] ZAGPJHC 62 (28 March 2018)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NUMBER: 6277/2014

In the matter between:

ABRAM MPAPI SETSIBA

1st Applicant

AMANDA SEGALE

2nd Applicant

JABU SITHOLE

3rd Applicant

MOSES BUSANG KHANYE

4th Applicant

TEBOGO BENJAMIN SEGOPA

5th Applicant

JOHANNES ELIJAH LEKHUWANE

6th Applicant

VICTOR NGOAKO MABITSELA

7th Applicant

MABEL GLORIA SEGOTSANE

8th Applicant

LESINA NATHANIEL MOABELO

9th Applicant

RICHARD MOTOBI NQHATSETSENG

10th Applicant

MAMACHEU BENARD MOLOPA

11th Applicant

TOTO MOLOBYE

12th Applicant

MOSEKIEMANG GREGORY MOROKA

13th Applicant

PAUL PANDELANI MBEDZI

14th Applicant

BOTHA JEREMIAH NEMARANZHE

15th Applicant

and

TRANS-ORANGE CONFERENCE OF SEVENTH

DAY ADVENTISTS

1st Respondent

SOUTHERN AFRICA UNION CONFERENCE OF

THE SEVENTH-DAY ADVENTIST CHURCH

2nd Respondent

SOUTHERN AFRICA-INDIAN OCEAN DIVISION

OF THE SEVENTH DAY ADVENTIST CHURCH

3rd Respondent

GENERAL CONFERENCE OF THE SEVENTH-

DAY ADVENTISTS CHURCH

4th Respondent

THE ILLEGITIMATE EXECUTIVE OF THE TRANS

ORANGE CONFERENCE

5th Respondent

JUSTICE MAVANYISI MONGWE

6th Respondent

THAMSANQA RICHARD DANXA

7th Respondent

BONGANI MESHACK KHANYILE

8th Respondent

ELLIOT SIBANYONI

9th Respondent

N MAKHAVU

10th Respondent

M PHOSHA

11th Respondent

E SEOKETSAS

12th Respondent

TE MOKOLOMETSA

13th Respondent

ZIPHOZONKE OSCAR MBATHA

14th Respondent

MASALA MAKUMULE

15th Respondent

FRANS THEMBA

16th Respondent

SIFISO MASINA

17th Respondent

THULA NKOSI

18th Respondent

ANDREW MODISE

19th Respondent

KABELO FINGER

20th Respondent

LESEDI MATHLOLWA

21st Respondent

B KHUMALO

22nd Respondent

AYANDA NOMATYE

23rd Respondent

VELILE MGWEVU

24th Respondent

PETRUS MAHLANGU

25th Respondent

RONALD SEIKANENG

26th Respondent

PAUL MAGAGULA

27th Respondent

PEARL SEMEMNYA

28th Respondent

L HOHO

29th Respondent

LWANDILE ZWEDALA

30th Respondent

TE MOGANE

31st Respondent

FRANK MDLALOSE

32nd Respondent

MANDLA MASHIYANE

33rd Respondent

THULANI MKHIZE

34th Respondent

MAURICE MITILENI

35th Respondent

SIYABONGA MAGADLELA

36th Respondent

EDWARD TSHIVHASE

37th Respondent

MAYBEL RAPITSI

38th Respondent

GOMOLEMO EUPHEMIA AFRICA

39th Respondent

ML MBEDZI

40th Respondent

BHEKI KNUTHA

41st Respondent

T KHUMALO

42nd Respondent

FRANS MOEKETSI

43rd Respondent

RUFUS WESI

44th Respondent

P TSHIVHENGA

45th Respondent

ZILIBELE MTUMANE

46th Respondent

FRANS T LANGA

47th Respondent

F HAYTER

48th Respondent

GODFREY RASEOKGO

49th Respondent

GM RANTSOABE

50th Respondent

CHARLES SIBENKE

51st Respondent

THULANI QWATI

52nd Respondent

MOGOMOTSI JABA

53rd Respondent

THEBIKILE JULIET MHLANGA

54th Respondent

MASEGO MODISE

55th Respondent

BHEKI DAVID SHONGWE

56th Respondent

RAETSANG MOTHELETSI

57th Respondent

KAISER MAKHOALI

58th Respondent

JUDGMENT

EF DIPPENAAR, AJ:

Introduction

[1] This application concerns a feud between two factions within a structure of a worldwide religious organisation; the Seventh Day Adventist Church (‘the Church’).

[2] The Trans Orange Conference (‘TOC’), the first respondent, is the structure in question. The TOC is a voluntary organisation regulated by a written constitution. It is part of seven conferences constituting the South African Union Conference of the Church (‘SAU’), the second respondent. In turn, the SAU is part of the South African Indian Ocean Division (‘SID’), the third respondent of the General Conference (’GC’) of the Church, the fourth respondent. Each structure of the Church has its own constitution. Each structure within the Church holds meetings at certain constitutionally pre-determined intervals whereat administrative and other decisions are taken.

[3] The members of the TOC consist of a substantial number of properly organised churches under the jurisdiction of the TOC which have been formally approved for membership by a vote of delegates at any regularly scheduled constituency meeting.[1] The local churches appoint delegates to a session or meeting of the TOC. The TOC operates through an executive committee that gets

elected from time to time.

[4] This application has its origin in what transpired at a special business session or meeting of the TOC held on 24 February 2013 (‘the February meeting’) at which certain resolutions were adopted, inter alia, removing the entire existing executive committee and appointing a new one. The applicants were all members of the TOC executive when the February meeting was called. The TOC executive who was removed is referred to as ‘the former TOC executive’.

[5] The notice convening this meeting stated that the purpose of the meeting was ‘to receive the report of the Diswilmar Farm TOC (West Rand District)’. The sale of the Diswilmar farm was a contentious issue which formed the spark of the events which occurred at the February meeting. The history of the Diswilmar disputes is not relevant to the present application.

[6] The applicants disputed the validity of the resolutions adopted at the February meeting, and continued to act as executive of the TOC, resulting in two parallel TOC’s forming under the management of the respective executive committees, each claiming to be the only legitimate TOC executive. This has resulted in two factions forming in the TOC and a fracturing of the unity of the Church, with various member churches supporting each of the two rival factions. The respondents complain that the applicants formed a break-away group which illegitimately continued to administer the TOC’s business in a parallel TOC.

[7] Although the relief sought is aimed mainly at what transpired at the February meeting and a subsequent meeting of the TOC held in October 2013 (‘the October meeting’), it is necessary to also consider certain subsequent events and the conduct of the respective parties in order to properly contextualise the matter, as they have all contributed to the present state of affairs.

[8] The applicants seek declaratory relief that the various resolutions removing the former TOC executive, the appointment of a new executive at the February meeting (‘the February executive’) and a new executive committee at the October meeting (‘the October executive’) are void, together with ancillary relief. They further seek declaratory relief to declare the former TOC executive as being the only legitimate executive committee of the TOC and an order directing the TOC to convene a regular business session within four months for the election of a new executive committee in accordance with the provisions of the TOC’s constitution.

[9] The respondents characterise the application as a review application. Their main defences are that there have been undue delays in the launching and prosecution of the review proceedings and that the applicants are not permitted to ignore decisions and take the law into their own hands by resorting to self-help. In the alternative, they contend that the common law should be developed by extending the principle of administrative law[2] that a decision stands until it is set aside by a competent court, to decisions taken by governing or representative bodies of voluntary associations in order to prevent a resort to self-help, which violates the rule of law. I return to these issues later in the judgment as it is first necessary to contextualise the events which transpired.

[10] The defences raised by the original opposing respondents and the twenty seventh respondent, after the joinder of the ninth to fifty eighth respondents, differ in various respects. The main defences, central to determination of the application, appear from the affidavits of the twenty seventh respondent. Various technical objections were raised by the original opposing respondents, such as hearsay evidence and improper confirmatory affidavits which have been taken into account, where necessary, but do not in my view require any detailed consideration in this judgment.

[11] There are various disputes of fact on the papers. The factual disputes primarily pertain to the history of the sale of the Diswilmar farm and certain detail of the events which transpired. These factual disputes are however not central to the determination of the application nor do they justify a dismissal thereof, as contended by the respondents. As the applicants seek final relief, the matter has been considered on the basis of the respondents’ version, together with the admitted facts on the applicants’ papers[3].

[12] Despite the various issues on the papers regarding the detail and legitimacy of what occurred, the primary issue on which the parties agree is that it is imperative that unity be restored to the TOC. The applicants contend that in order to do so, the clock must be turned back to the February 2013 meeting in order to restore legitimacy, whereas the respondents contend that these events occurred so far in the past that they have become academic[4] and that any attempt to turn back the clock would result in chaos in the affairs and organisation of the TOC.

[13] These views are so divergent that the impasse cannot be resolved by acceding to either of such views as it would only serve to fortify the fracture of unity which has occurred. In my view, the matter must be approached from the perspective of considering an order which is just and equitable in the circumstances so as to restore unity to the TOC.

The February meeting and validity of the resolutions taken thereat

The common cause facts

[14] It is common cause that the SAU executive convened the February meeting on 2 December 2012 calling for a special constituency meeting of the TOC to be held on 24 February 2013. The meeting was thus not a regular business session. It is undisputed that pursuant to an unsuccessful appeal by the former TOC executive, they distanced themselves from the meeting by way of letter on 21 February 2013 and boycotted the meeting.

[15] It is common cause that the notification of the meeting stated the purpose of the meeting to be to ‘receive the report of the Diswilmar Farm TOC (Westrand District)’.

[16] It is common cause that at the February meeting, four resolutions were adopted which have no direct bearing on the Diswilmar farm issue, being resolutions: (1) removing the entire former TOC executive; (2) constituting an organising committee, comprised of inter alia, regular delegates; (3) constituting a nominating committee for nomination of new members to the executive committee; and (4) electing a new executive committee, who would hold office until the TOC regular business session to be held on 25 to 27 October 2013.

[17] It is undisputed that no notice had been given that these matters would be attended to at the February meeting.

[18] It is undisputed that the provision of an agenda is a peremptory requirement under the TOC constitution[5]. It is further undisputed that the notification for the February meeting was only to receive the report on the Diswilmar Farm.

[19] The agenda of the said meeting contained the following items:

a. ‘Chairman’s remarks;

b. Devotion;

c. Mission statement of the Seventh Day Adventist Church;

d. Diswilmar farm matters

i. Presentation by Mr Andrew du Preez SEDCOM director; and

ii. Discussion on the matter

e. Special constituency meeting declared closed;

f. Adjournment;

g. Closing prayer’

[20] The only business to be conducted at the meeting was thus reflected in item d of the aforesaid agenda.

[21] It is undisputed that from the minutes of the February meeting it appears that the first applicant elected not to chair the special constituency meeting and members of the former TOC executive were not present thereat.

[22] The minutes of the meeting reflect that voting took place to note the report of a Sedcom director, to approve the transfer of the Diswilmar farm to the purchaser, to mandate the Sedcom director to negotiate an out of court settlement with the purchaser and to require the purchaser to settle the full purchase price.

[23] After an adjournment of the meeting and a consultation with the GC, the SID and SAU executive committee, the minutes reflect that various criticisms were reflected against the former TOC executive, pursuant to which it was voted on that the entire former TOC executive were to be removed for cause. This took place in the absence of the said executive members. The vote was carried 185/9. An organising committee was thereafter constituted which nominated a nominating committee and votes were taken in each instance. Various office bearers were thereafter voted for and appointed, constituting the February executive.

The issues

Duly constituted meeting of the TOC

[24] The starting point to determine the validity of the resolutions taken at the February meeting is that the resolutions must have been passed at a duly constituted meeting of the TOC[6], thus the TOC corporately and constitutionally assembled. If not, they are not resolutions of the TOC.

[25] The applicants contend that as the meeting was a special constituency meeting and was convened by the SAU, the TOC was not corporately or constitutionally assembled and the meeting was not capable of holding elections for the appointment of a new executive committee. It is contended that axiomatically, it was not capable of removing the entire executive for cause.

[26] The respondents contend that the SAU had the power to convene the meeting in accordance with the TOC’s bylaws, specifically article II, section 2(4)(b).

[27] In accordance with the express provisions of article II, section 2 of the TOC constitution it expressly provides for the TOC executive to call the meeting

[28] The relevant portion of article II, section 2 of the TOC constitution provides as follows:

“Sec 2. Special Meeting:

a. The executive committee of the conference shall call a special constituency meeting, at a time and place it deems proper when:

……

4)

a). It is voted by the SAU Executive committee, SID Executive Committee, or the GC Executive Committee.

b). The Union committee or the Division Committee may call a special constituency meeting of the Conference. …”

[29] From a reading of these provisions in context, in terms of section 2 it is the TOC executive that calls the meeting, regardless of whether or not the meeting is one that occurs as a result of a decision of the executive committee, delegates, members or of the SAU.

[30] A regular meeting of the TOC is defined as its regular triennial constituency meeting. In terms of article 5(1): ‘The executive committee of the conference shall be elected at its regularly scheduled constituency meeting’.

[31] The election of the TOC executive committee is regulated by article II, section 1, article II, section 8 and article V, section 1 of the TOC constitution. In each instance, reference is made to a regular triennial constituency meeting and no reference is made to a special constituency meeting, as was the February meeting.

[32] Article II, section 1, dealing with regular meetings provides:

‘The conference shall hold a regular triennial constituency meeting at such time and place as the executive committee of the conference

shall designate. The constituency meeting shall review performance of the conference for the preceding term, facilitate planning for the next triennial term, elect officers, constitute committees, and transact such other business as it may deem appropriate. Notice of the time, place and agenda of the constituency meeting of delegates representing the members shall be given at least four (4) weeks before the date of the constituency meeting by:

(a) a notice printed in the official publication of the SAU or the conference; or

(b) a method approved by the conference executive committee’’

[33] Article II, section 8 provides:

‘All officers and members of the executive committee who are not ex officio members shall be elected by the delegates at the regular

meeting of the conference constituency and shall hold their office until the next regular meeting of the conference constituency, unless they resign or are removed from office, for cause, by the executive committee or a special constituency meeting. The election/appointment

of departmental directors, associate departmental directors, associate secretaries, or associate treasurers, if not determined by the delegates at the conference constituency meeting, shall be referred to the executive committee’.

[34] In terms of article V section 1: ‘The Executive committee of the conference shall be elected at its regularly scheduled constituency meeting’.

[35] Article V, section 4 provides for a delegated authority to the executive committee of certain powers, including the authority to elect or remove for cause officers, committee members, boards and directors of departments/services on behalf of constituents between regular constituency meetings.

[36] The respondents contend that all meetings enjoy the power express or implied to deal with a situation removing the executive. They rely on article II, section 8 for the entitlement to remove the TOC executive for cause. It is argued that because the meeting had the power to remove the executive, for cause, it implicitly enjoyed the right to elect and appoint a new executive as, failing that, the TOC would be left leaderless.

[37] This argument fails to recognise the express provisions of the constitution dealing with the election of an executive committee at regular business sessions and is not underpinned by any facts in substantiation of the contention.

[38] In order to infer an implied term into the TOC constitution, as respondents seek to do, the applicable test is that for inferring an implied term into a contract.[7] No evidence was presented that the parties necessarily intended that the suggested stipulation should exist.

[39] In my view, the respondents’ contention for the importation of an implied term, must fail.

[40] It is contended by the respondents that the resolution for the vote of no confidence and removal of the former TOC executive stemmed from their handling of the sale of the Diswilmar farm issue. Such resolution was proposed after consultation with the Church’s GC counsel and consideration of Article II, section 8 of the TOC by-laws, the rules of order of the day and the SAU working policy 15.15. A conclusion was reached that the proposed motion was ‘related’ to the item that was on the agenda and was justified by virtue of the disruptive conduct of the former TOC executive members displayed at and preceding the meeting.

[41] It is further contended that the rules of order of the day allowed the chair to entertain the motion to remove the executive. These rules however describe themselves as procedural rules and empower the chair to rule on matters not specifically covered by the general conference rules of order, provided they are procedural issues. It is further not alleged by the respondents that these rules were adopted by the meeting and it remains unclear whether these rules apply to meetings of the TOC. Moreover, considering the nature of the resolutions taken and the fact that no notice was given of such proposed resolutions, it is untenable to contend that it relates to procedural matters only, as the issues raised pertain to matters of substance.

[42] The evidence presented by the respondents and the minutes of the February meeting reflect that the TOC constitution was in any event not complied with in relation to the election of the organising committee and the new executive committee members inasmuch as the voting was not held by secret ballot, as is required, but by ordinary vote.

[43] Upon a proper interpretation of the TOC constitution and its bylaws, it does not make express provision for the removal of the entire executive committee as was done. It further delineates a peremptory obligation to elect members of the executive at regular business sessions and not at special sessions and affords a delegated authority to the executive committee itself to elect members in between regular business sessions.

[44] In my view, the TOC was not corporately or constitutionally assembled and the meeting was not capable of holding elections for the appointment of a new executive or the removal of the entire former TOC executive for cause.

Notification

[45] Even if I am wrong on this issue, it must still be considered whether the meeting was convened with proper notice of the matters to be attended thereat.

[46] If the meeting was convened without proper notice in terms of the pre-emptory provisions of the TOC constitution[8] or at variance therewith[9] or by an incorrect authority, the resolutions taken thereat are null and void ab initio and unauthorised [10].

[47] Article II, section 2 of the TOC constitution deals with the notice required in respect of a special meeting as follows:

‘(c) The agenda for special constituency meetings shall be included in the notice of the meeting which shall be given at least 4 (four) weeks before the constituency meeting; (d)the time and place of special constituency meetings shall be given in the same manner as for regularly scheduled constituency meetings’.

[48] The notice convening the February meeting as well as the agenda dictated that the business to be conducted was the receipt of the Diswilmar report and a discussion thereon. It is common cause that the notice did not refer to any removal of the former TOC executive or the election of a new executive committee.

[49] The special meeting was thus convened for the purpose of dealing with a particular specified business. As such, the meeting did not have the power to deal with entirely distinct and different business and any resolution beyond the notification is invalid.[11]

[50] I have set out the respondents’ contentions regarding how the issue of removal arose in [40] above. The contention that the other issues pertaining to the removal of the executive and the appointment of a new executive were ‘related’ to the agenda item dealing with the Diswilmar Farm, is predicated upon the contextual history giving rise to the report on the Diswilmar farm and the conduct of the former TOC executive preceding and at the meeting.

[51] In considering whether the resolutions put to the meeting pertaining to the removal of the former TOC executive and the appointment of a new executive is sufficiently related to the notification of the meeting[12], the purpose of the notice must be borne in mind.

[52] This purpose is to give members a fair warning of the matters which will arise at the meeting,[13] sufficient to enable them to have an understanding, form a judgment upon the business and be sufficiently furnished with the information

required for a proper consideration thereof[14].

[53] No evidence was put up by the respondents that the members of the TOC were aware of any wrongful conduct on the part of the former TOC executive or that there was any prospect that their removal would be considered. On the respondents’ version, the Diswilmar farm report was only made available at the meeting to the members’ delegates. It must be borne in mind that the members of the TOC are the local churches and not the delegates sent to represent those churches at meetings of the TOC.

[54] Although the notice is not to be construed with excessive strictness, in measuring the notification given of the February meeting, the notice did not in my view give members fair notice of all the matters which arose at the meeting. Insufficient information was provided to the members to enable them to properly understand, consider and form a judgment upon the business of the meeting[15].

[55] The importance to the TOC and its members of the removal of the entire former executive and the appointment of an entirely new executive committee is in my view substantial. These are matters which the member churches should have had an opportunity to consider and form a judgment on.

[56] The notice and agenda in their respective terms provided no indication that as part of the discussion of the Diswilmar farm issue, a removal of the former TOC executive would be contemplated. The local churches who received such notice would not have been alerted to the possibility that the removal of the former TOC executive or the appointment of a new executive would be issues at the meeting and were not afforded any opportunity to consider these issues or to provide their delegates attending the meeting with any mandates or instructions on the issue.

[57] The respondents’ contention that the resolutions relating to the removal of the former TOC executive and the appointment of a new executive were ‘related’ to the agenda item, is at best, tenuous and at worst, fanciful in the circumstances and must be rejected.

[58] The members of the former TOC executive were similarly not given any prior notice that their removal would be sought at the meeting. No evidence was presented that they were given any opportunity to prepare themselves on the removal issue. It further does not appear from the minutes of the February meeting that the relevant provisions of the TOC constitution had been followed in the constitution of the organizing committee or the nominating committee, which preceded the appointment of the February executive.

[59] From the evidence tendered by the respondents and the minutes of the meeting, it appears that the events which resulted in the removal of the former executive were spontaneously raised and gained momentum after the issues pertaining to the Diswilmar report farm had been finalised and a vote was taken on various matters relating thereto, rather than on any pre-considered additions to the agenda.

[60] In my view the procedure adopted at the meeting did not follow the peremptory procedures laid down by the TOC constitution and fall foul of the notice and other requirements prescribed therein.

[61] In the circumstances, I am of the view that the resolutions taken at the February meeting pertaining to the removal of the former TOC executive, the constitution of an organising and nomination committee and the appointment of a new executive committee are invalid and fall to be set aside. I return later to whether such an order should be granted.

[62] I shall also later deal with the applicants’ contention that they were entitled to ignore the resolutions taken at the February

meeting[16] as they were void and invalid.

Locus standi

[63] It is apposite to now deal with the respondents’ attack on the locus standi of the applicants. Although the TOC is a voluntary

association, exercising private law powers, when it adopted the resolution removing the former TOC executive, it prejudicially

affected the applicants’ rights and entitlements, and could only do so, once the applicants had been afforded an opportunity to be heard [17]. The members of the said executive clearly have an interest in the events which occurred thereat and were not afforded any proper notice or opportunity to deal with the issue prior to the meeting or to speak to such resolution at the meeting.

[64] In this context, in my view it matters not whether the ordination of the first, fifth, eleventh, fourteenth and fifteenth applicants was later revoked. This occurred whilst this application was pending. At least to the extent that the resolutions taken at the February meeting are concerned, they have the relevant locus standi to seek relief.

[65] Moreover, as pointed out by the applicants, only the position of the first applicant is affected by ordination, and this issue does not impact on the locus stand of any of the other applicants. It is undisputed that the said applicants[18] did not participate in any of the disciplinary proceedings against them but sought to appeal the result of those proceedings. The respondent’s defence that the applicants lack locus standi, must fail.

Non-joinder

[66] The respondents further raised the non-joinder of the seller and purchaser involved in the Diswilmar farm issue, being Prestige Park and Sedcom.

[67] I am not satisfied that either of these parties has a direct and substantial interest in the present proceedings and there is no merit in this contention[19], specifically in light of the applicants’ express disavowal of any intention to take any action to prevent the transfer of the property.

[68] This ground of opposition must accordingly fail.

Events leading up to the October 2013 meeting

[69] Pursuant to their election at the February meeting, the February executive actively managed the business of the TOC.

[70] In parallel, since the February meeting the former TOC executive, including the applicants or at least certain of them, led by the first applicant, continued managing the TOC’s business as if they were still the legitimate TOC executive.

[71] It is undisputed that during May 2013, hundreds of delegates representing member churches in some thirteen districts met pursuant to complaints that they were not aware of the events which transpired including the possibility that the former TOC executive would be removed at the February meeting. The member churches resolved to disregard the outcome of the February meeting on the basis that it was unconstitutional and illegitimate.

[72] On 13 August 2013, the February executive notified members of the convening of a regular triennial constituency meeting of the TOC ‘on the strength and mandate of the TOC executive committee action 240-2012’ to be held on 24 to 27 October 2013.

[73] The respondents dispute that the February executive convened the meeting and relies on the TOC executive committee action 240-2012, which it is contended predates the impugned February meeting by a year. The document relied on is however not the resolution contended for but is the same document, dated 13 August 2013, which evidences the convening of the October meeting by the February executive. The twenty seventh respondent, who put up this evidence, was not part of the February executive and his evidence was challenged as hearsay.

[74] The February executive adopted the position that constituent churches that failed to recognise them as legitimate were no longer members in regular standing and would accordingly not be recognised at the October meeting, at which voting for a new executive would take place.

[75] It is undisputed that the February executive communicated to the constituent churches by way of letter dated 13 September 2013 in which organised churches were reminded to register their delegates and attention was drawn to the fact that according to the TOC constitution those elected to be delegates should be members who are in regular standing. The offending churches were informed of the position adopted by the February executive in the following terms:

‘… In light of the above, we regret to inform those churches that have placed themselves outside of the teachings and policies of the

Church, and outside of the actions of the World Church in session, that through their regrettable resolutions to withhold tithes and offerings, they have violated the teachings and policies of the Church.

Accordingly, we would like to inform those churches, that their actions have left the Executive Committee, which sat on the 1st of September 2013, with no option, but to regard them as not being in regular standing with the Conference, and their conduct will be dealt with as provided for in the policies of the Church. Consequently, delegates from those churches will not be participating

in the coming regular session as they are deemed not to be in regular standing as required by Article 3 Section 2 of the TOC Constitution.”

[76] The respondents’ contention that the letter was simply standard practice for reminding delegates that they were required to be members in good standing, is unconvincing and inconsistent with the recordal in the letter of the February’s executive resolution deeming the offending churches not to be in regular standing.

[77] In terms of article III, section 2 of the TOC constitution, delegates appointed to represent members of the conference at any constituency meeting are required to be members in regular standing.

[78] It is undisputed that expulsion and/or disciplining of churches is regulated by chapter 5 of the church manual[20]. Only two grounds apply, being because of a loss of membership threatening the existence of the church; or in consequence of discipline applied to the church in question. In the latter instance, the TOC is required to undertake a series of reconciliatory and remedial actions before a church can be disciplined or expelled and various avenues are available to such church to state its case and seek to rescind any recommendation for expulsion. The manual sets out a series of steps which must be taken. Ultimately, a decision must be taken at a regular or special TOC constituency meeting whether to endorse a recommendation that a church be expelled.

[79] The respondents did not contend that the aforesaid procedure was followed, nor was it particularised what steps were in fact taken by the February executive in compliance with the prescripts of the church manual. It was further not disputed that the member churches who supported the applicants’ faction were excluded from voting at the October meeting.

[80] On 23 October 2013 and shortly before the regular business meeting was to be held, the applicants launched an urgent application, inter alia to prevent the October meeting from being held, pending an application setting aside the decisions taken at the February meeting

and an order declaring the former TOC executive as the only legitimate executive. The application was withdrawn shortly before

the hearing thereof.

[81] The respondents argued that by doing so, the applicants acquiesced in the resolutions taken at the February meeting and have waived the right to seek relief in relation thereto. The subsequent conduct of the applicants has however persistently indicated the contrary[21]. Although the applicants withdrew the urgent application seeking to interdict the October meeting, this is not in my view illustrative of any acquiescence in the said resolutions. This view is fortified by the applicants’ explanation that they received legal advice that the papers were defective and the application doomed to failure.

[82] The defence that the applicants waived their rights to challenge the resolutions fail to meet the relevant requirements and must fail.

The October meeting and appointment of October executive

[83] Pursuant to the appointment of the February executive, organising and nomination committees were constituted by the February executive to arrange the triennial TOC regular meeting during October 2013 at which a new TOC executive was to be appointed.

[84] The applicants contend on the same legal grounds that since the October meeting was convened by the February executive, the October meeting was thus not validly convened. As such, it is contended that the election of the October 2013 executive must be visited with invalidity and declared null and void. Considering that the resolutions in terms of which the February executive was appointed were void, the February executive could not validly convene the October meeting.

[85] Other than disputing that the October meeting was convened by the February executive, which I have rejected for the reasons already provided, no other grounds of opposition were advanced by the respondents.

[86] Having found that the resolutions taken at the February meeting were void, consideration must be given to whether the fact that the October meeting was irregularly convened by the tainted February executive, vitiates the resolutions taken thereat as it did not occur at a properly convened regular business session of the TOC by a duly appointed TOC executive [22]. In my view it does. The meeting was not convened by a duly appointed TOC executive in accordance with the prescripts of the TOC

constitution.

[87] Another factor which must be considered is the conduct of the February executive in relation to certain member churches as set out in [74] to [79] above.

[88] It is undisputed that the churches who were found to not be in regular standing because they supported the faction led by the applicants, were excluded from participating or voting at the October meeting.

[89] As the 1 September 2013 resolution by the February 2013 executive was thus implemented without the proper prescribed TOC prescripts and procedures being followed, the exclusion of member churches from the October meeting was irregular. The October meeting was not a duly constituted meeting of the TOC, constitutionally assembled.

[90] The issue left open in Osman v Jhavary and Others[23], being whether a resolution at a meeting not properly convened would be invalid if all the members were present and consented to the meeting being held, does not arise in the present instance as it cannot be said that all the members were present in the absence of the excluded churches and it is not necessary to further consider this issue.

[91] In the circumstances, the resolution appointing the October 2013 executive at the October meeting, convened by the February executive, is, at common law, invalid.

[92] I return later to the issue whether the declaratory relief sought, should be granted.

Relevant subsequent events

[93] During December 2013, a disciplinary enquiry was held pursuant to which the first, fifth, eleventh, fourteenth and fifteenth applicants were found guilty on various charges. The October executive resolved to sanction and dismiss those applicants, although the said applicants (other than the fifth applicant) did not participate in the proceedings as they did not recognise the jurisdiction of the October executive. Pursuant to an unsuccessful appeal, the SAU consequently resolved to void their ordination during June 2014.

[94] The present application was launched on or about 21 February 2014. It is not necessary to set out the long and troubled history of the application in any detail. The present litigation is but one of a plethora of litigation which has ensued pursuant to the February meeting and the positions adopted by the respective parties.

[95] The first applicant’s membership of his local church was terminated on 11 May 2014 by vote of the Batho Seventh Day Adventist Church business meeting.

[96] On 19 May 2016, the October executive informed all the local churches which sided with the applicants of a resolution taken on 7 and 8 May 2016 to implement a policy of returning all dissenting churches to ‘company status’, failing notification that they were cutting ties with the ‘breakaway group’ by 27 May 2013. The letter recorded ‘an open invitation to return home’ to such churches made on 6 April 2016.

[97] On 31 May 2016, the October executive informed 35 local churches in 10 districts of their status reduction in the following terms:

“You are no longer in a position to function as a fully-fledged church, and are no longer enjoying privileges accorded to organized churches….All actions on your part that have resemblance of a fully-fledged church will be null and void and of no force and effect…..It must be borne in mind that the actions of the TOC exco follows repeated invitations (which were spurned) to your church and members to return to the fellowship of the church’.

[98] The October executive thereafter arranged a triennial meeting of the TOC to be held on 20 to 23 October 2016, at which meeting a new executive committee was appointed. The churches whose status was reduced, were excluded.

[99] In its handling of the situation, the October executive appears to have taken a high-handed approach in their communications with the churches supporting the applicants. Rather than to meaningfully engage to resolve the problems, the tenor of the correspondence sets ultimatums to return to the fold, failing which negative consequences would follow.

[100] As in the case of the February executive’s conduct in interacting with offending churches prior to the October meeting, there is no evidence that the church manual or other prescripts were followed in disciplining the offending churches.

[101] On the other hand, the Applicants and their supporters simply considered the February executive and the October executive as illegitimate and disregarded any requests to return to the fold. They proceeded to take numerous steps to conduct the business of the TOC in an entirely separate and parallel structure, which forms the subject matter of various of the other pending litigation.

[102] These facts in my view have an important bearing on considering an appropriate remedy in the circumstances.

[103] I now turn to the main defences raised by the respondents, who consider the present application as review proceedings. The applicants contend that the proceedings which seek declaratory relief are based on causes of action founded in contract and constitutional issues, rather than review proceedings.

Undue delay in instituting and prosecuting application

[104] The respondents contend that the decisions in issue constitute administrative action[24] for the purposes of Promotion of Administrative Justice Act (‘PAJA)[25]. The applicants dispute that the present proceedings constitute review proceedings and thus that the delay principle is applicable, as their claim has been formulated on contractual and constitutional grounds[26]. They further dispute that PAJA is applicable.

[105] It is however common cause that this issue does not require determination and that for present purposes it does not matter whether the application can properly be characterised as a review application, the relief sought being compatible with a common law review of the exercise of private power.

[106] It is undisputed that this court has jurisdiction to entertain this application[27].

[107] A court, exercising any review jurisdiction, retains the discretion to withhold relief if there has been an undue and unreasonable

delay.[28] First it must be considered on a factual basis whether there was an undue delay. If so, it must be established whether any unreasonable

delay should be condoned.[29]

[108] In order to decide whether there was any undue delay, it must first be considered whether the proceedings were brought within a reasonable time[30].

[109] The February meeting occurred on 24 February 2013. This application was launched on 21 February 2014, pursuant to an abortive urgent application launched on 23 October 2013 wherein interim interdictory relief was sought pending the determination of review proceedings. It is not clear what information was available to the applicants at the time the papers in the urgent application were drafted.

[110] The explanation tendered by the applicants was that since the February meeting, various attempts were made to engage the various church structures to resolve the issues internally as dictated by the church manual and the tenets of the Church. Although there are factual disputes regarding exactly what occurred in certain instances, it is not disputed that there were attempts at engagement and resolution over a protracted period of time.

[111] The applicants further explained that it took time to collate all the relevant information required after new counsel were employed when the October 2013 urgent application was withdrawn. The finalisation of the papers was delayed by the intervening festive period when counsel were not available. The present application was launched some four months after the withdrawal of the urgent application, which included the festive holiday period. Although the explanation is somewhat tersely stated, in my view it cannot be said that the delay in instituting the proceedings was unreasonable in the circumstances.

[112] The technical approach adopted by the respondents in relation to this application and the intervening interlocutory applications caused substantial delays in the finalisation thereof and explains the protracted duration of the litigation. No explanation was however tendered by the applicants for the delay in prosecuting the application for a period of some two years after the replying affidavit was ultimately delivered on 21 August 2015 until about 29 June 2017, when steps were taken by the applicants to enroll the matter for hearing. Seen in isolation, such delay appears extensive and unreasonable.

[113] The lack of any explanation for the delay must however be measured against the extensive period which has passed since the institution of the proceedings, the various subsequent events which transpired in the interim and the conduct of both the applicants and respondents in the intervening period.

[114] Considering all these factors, I am of the view that condonation should be granted for the delay in all the circumstances of the matter, insofar as same is required and on the assumption that the relief claimed is properly a review at common law. A refusal of condonation resulting in a bar to the relief sought would only result in further conflict between the factions rather than to put an end to the fracture which presently exists and would not ensure justice between the parties.

[115] The respondents’ contention that the application falls to be dismissed on this basis, must thus fail.

Appropriate relief

[116] The respondents, relying on section 21(1)(c) of the Superior Courts Act, 2013[31] contend that due to the considerable passage of time since the institution of the proceedings and the subsequent events which

occurred as set out in this judgment, the relief sought by the applicants has been rendered moot and has become academic.

[117] Thus, it is argued that even if the applicants establish an entitlement to the relief sought, this court should exercise its discretion against the granting of relief.

[118] The respondents emphasised the discretionary nature of a declaratory order and the judicial policy directing courts not to exercise the discretion in favour of deciding points that are merely abstract, academic or hypothetical and produces no concrete or tangible result. It is argued that it would have disastrous consequences for the TOC if the declaratory relief sought is granted which is aimed at the past rather than at future events. The respondents further contend that too much has happened in the interim which cannot reasonably be unraveled.

[119] To illustrate that the relief sought has become academic, the respondents rely on the fact that a new TOC executive was appointed during October 2016 at a further regular triennial meeting of the TOC, which is now in charge of its affairs. It is further contended that the members of this executive committee are not parties to this application and should have been joined to the application.

[120] In response, the applicants pointed out that the entire TOC is the first respondent in this application and that as such, every member of the TOC is before court, including the current TOC executive committee. I agree with the applicants that it is not necessary to formally join the members of the present TOC executive committee in the circumstances as the individual members assert their rights by virtue of their membership of the TOC[32].

[121] I do not agree with the contention that the application has become moot. The declaratory relief sought should not be seen in isolation, nor can it be construed as being academic and relating purely to past events, as it clearly has an impact not only on the consequences of the intervening events which occurred, but also the future of the TOC and its proper administration. The relief sought must be considered in context of what relief would be appropriate, just and equitable in the circumstances. In doing so, the discretion afforded to a court in the context of the declaratory relief sought, must be judicially exercised.

[122] The respondents contend that the applicants resorted to self-help in acting on the basis of their belief that the resolutions taken at the February meeting were invalid, which should not be countenanced as self-help falls foul of the prescripts of the rule of law.

[123] They contend for a tacit term, based on a proper interpretation of the TOC constitution and rules, that decisions taken stand until set aside by a court of law. It is contended in the alternative that, if there is no such tacit term to be imported, the common law adequately caters for such determination alternatively should be developed.

[124] In my view, the respondents have not made out a proper case for the importation of the tacit term contended for, applying the appropriate

test[33]. The respondents in very broad terms rely on (1) the structure of the Church as a whole, (2) the functions performed by the various organs in terms of the constitution, (3) the importance of its decision making in relation to its financial obligations and the impact thereof on members and (4) the need to be faithful to the tenets of the Church. Ultimately, these matters all appear to be based on consensus and negotiation and adherence to the basic tenets of the Church.

[125] The respondents have made out no proper case that the proposed tacit term is necessary in applying the so-called officious bystander test or that the proposed term is, as stated in Alfred Mc Alpine[34]:

'an unexpressed provision of the contract which derives from the common intention of the parties, as inferred by the Court from the express terms of the contract and the surrounding circumstances.’

[126] The respondents’ challenge for the development of the common law in accordance with the Oudekraal principle is predicated upon various policy considerations, aimed at criticising the applicants for the chaos that has ensued.

[127] A development of the common law by extending the Oudekraal principle would have a substantial impact on decisions taken by governing or representative bodies of voluntary associations and careful consideration is required whether it is appropriate or necessary to do so in the present circumstances.

[128] The policy considerations advanced by the respondents in support of the development of the common law in my view apply equally to both the present factions in the TOC, which in broad terms can be characterised as ‘the applicant faction’ and ‘the respondent faction’.

[129] It is not in dispute that a voluntary association should at no time be headed by two competing executives, each claiming to be the only legitimate executive. It is further undisputed that Church members and third parties may be confused or prejudiced by the current state of affairs and that the Church’s reputation may be damaged.

[130] Inasmuch as members of the TOC cannot take the law into their own hands by ignoring decisions with which they disagree, members of the TOC cannot take the law in their own hands by making decisions at meetings which fall foul of the prescriptive requirements of the TOC constitution and other rules. The failures on the part of the February executive and the October executive to comply with the TOC constitution and the failings in the convening and notification of the February meeting and the resolutions taken thereat, cannot simply be condoned or ignored.

[131] Considering the irregularities which occurred, the blame for the current state of affairs cannot be laid squarely at the door of the applicants and their supporters. The respondents can equally be criticised for the way in which they dealt with the impasse and how the TOC constitution and other regulations were disregarded and their conduct could be characterised as ‘self-help’. It appears clear that the issues evoked a strong emotional response from the respective parties, and that emotion rather than reason and the fundamental tenets of the church may have influenced the decisions and conduct which followed.

[132] Insofar as the resolutions taken at the February meeting and what followed were flawed, it is equally arguable that the February executive, and later the October executive, took the law onto their own hands in implementing the resolutions and the disciplinary measures taken against individuals and local churches which supported the applicants. It appears clear that the TOC constitutional and other prescripts as well as the principles of natural justice were not properly complied with in various respects.

[133] Considering the facts of this matter and the conduct of the parties, the matter cannot and should not in my view be determined on the basis of self-help. From the undisputed facts it appears that both the applicant faction and the respondent faction effectively did so, albeit under the belief that their actions were justified.

[134] It is thus in my view not appropriate to consider the development of the common law considering the facts of this matter as it is not necessary to resort thereto in order to grant an appropriate remedy.

[135] Section 172(1)(b) of the Constitution[35] confers a generous jurisdiction on a court in proceedings for judicial review to make orders that are just and equitable.

[136] It is not disputed that the present application raises constitutional issues and the parties have not contended otherwise. The parties have approached the matter on the basis that it does not matter whether the application can properly be characterised as a review application, the relief sought being compatible with a common law review of the exercise of private power.

[137] In Electoral Commission v Mhlope and Others[36], the constitutional court explained the breadth of the phrase ‘just and equitable’ thus:

‘Section 172(1)(b) clothes our courts with remedial powers so extensive that they ought to be able to craft an appropriate or just remedy even for exceptional, complex or apparently irresoluble situations. And the operative words in this section are” an order that is just and equitable”. This means that whatever considerations of justice and equity point to as the appropriate solution for a particular problem, may justifiably be used to remedy that problem. If justice and equity would be best served or advanced by that remedy, then it ought to prevail as a constitutionally sanctioned order contemplated in section 172(1)(b)’.

[138] In a separate judgment, Madlanga J explained the position as follows:

‘The statement of the law in Ermelo to the effect that there does not have to be a declaration of constitutional invalidity for a court to be able to exercise the section 172(1)(b) power spells out how expansive the remedy may be. Kriegler J held in Fose that what constitutes an appropriate order is determined by the facts. The outer limits of a remedy are bounded only in considerations of justice and equity. That indeed is very wide. It may come in different shapes and forms dictated by the many and varied manifestations in respect of which the remedy may be called for. The odd instance may require a singularly creative remedy. In that case, the court should be wary not to self-censor. Instead, it should do justice and afford an equitable remedy to those before it as it is impowered to do’[37]

[139] As set out elsewhere in this judgment, at common law, non-compliance with the peremptory provisions of an agreement or constitution

results in the setting aside of the conduct which flowed therefrom.[38]

[140] The Applicant seeks declaratory orders which will have this consequence. The granting of a declaratory order to such effect, is however discretionary. As correctly pointed out by the respondents, the orders sought and their inevitable consequences would result in chaos in the regulation of the affairs of the TOC.

[141] The setting aside of a principal act does not however inevitably result in the invalidation of all the subsequent acts. As quoted by Koen J in Dube[39], it was held by the constitutional court in Democratic Alliance v President of the Republic of South Africa and Others[40] by Yacoob ADCJ :

‘However, in these circumstances, we should make an order that the invalidity of Mr Simelane’s appointment will not by itself affect the validity of any of the decisions taken by him whilst in office as national director. This will mean that all decisions made by him remain challengeable on any ground other than the circumstances that his appointment was invalid…”

[142] In the present circumstances, it would not serve the interests of justice or resolve the disputes between the parties to merely grant the declaratory orders sought and render void all the actions taken by the February executive and the October executive consequent thereto. To the contrary, this would only deepen the divide between the two factions.

[143] After considering various options, I am of the view that the appropriate approach would be to broadly follow the approach adopted in Dube[41] that the court should be disinclined to determine how the TOC should regulate its internal procedures. Certain decisions regarding the validity of actions taken by the parallel TOC executives are best left to the TOC itself in regulating its internal processes. This will avoid prejudice to church members, employees, service providers and third parties, matters best judged by the TOC itself. There are however certain decisions and actions which, if left unchecked, would inevitably result in further conflict and fractures within the TOC.

[144] In my view, the primary policy consideration applicable in the present instance is that appropriate steps must be taken to reunify the TOC and the divided factions within it. A remedy must be crafted which sets aside the divisive actions of the past and creates a mechanism where unity can be achieved by making a fresh start in the management of the TOC in order to be fair and just within the context of the present disputes[42].

[145] This can only be achieved if the local churches whose status was reduced and who were excluded from voting at the election of an executive committee at both the meetings of October 2013 and October 2016, were allowed to participate in the election of a new executive committee. In similar vein, new churches which became members of either of the parallel TOC structures in the intervening period since the February meeting must not be prejudiced.

[146] The termination of employment and voiding of the ordination of certain of the applicants during the tenure of the October 2013 executive have contributed to the present strife. These actions should in my view be reviewed and set aside. If independent grounds exist for the termination of the employment of the applicants who were dismissed and the voiding of their ordination, such issues should be considered and decided on by a new TOC executive.

[147] Although the members of the October 2016 executive committee were not formally joined in these proceedings, as part of the TOC, they are before court. They were elected at a meeting which was preceded by questionable conduct on the part of the October executive who excluded member churches from participation in their election. In order to achieve unity in the TOC, a small sacrifice is required on the part of those individuals elected to the executive committee at the October 2016 meeting. Any prejudice suffered by such individuals would be adequately compensated if they be afforded the opportunity to be nominated for election at a meeting specifically convened for purposes of electing a new executive committee for the TOC.

[148] It would not be in the interests of justice to set aside all the steps taken by either the February executive or the October 2013 executive as sought by the Applicants. The same applies to the actions taken by the October 2016 executive. This would indeed result in chaos in the affairs of the TOC.

[149] In order to achieve unity in the TOC, steps must be taken to reconcile the parallel TOC structures which have developed in the intervening period since the February meeting and the various actions which have been taken by each of the parallel structures. This important task must be undertaken by a new, reconciled executive comprising of duly elected members of both the warring factions within the TOC and in accordance with the dictates and prescripts of the TOC constitution and the Church.

[150] In my view it would be just and equitable to ensure that whoever is elected as a new TOC executive committee must properly and proportionately represent the two factions, so that an equal and democratic representation of each of the factions is achieved.

[151] Considering the wide ambit of the remedial powers afforded a court under section 172(1)(b) of the Constitution, and the specific intricate circumstances of this matter, an order which extends beyond the ambit of the relief sought by the applicants is required to achieve relief which is just and equitable in the circumstances.

[152] The granting of the declaratory relief sought by the applicants will not in my view adequately address the present problems; but will only result in further disputes and litigation. A broad declaratory order setting aside the resolutions and meetings of February 2013 and October 2013, coupled with a declaration that the erstwhile executive is the only legitimate executive, would only foster the strife and discord in the TOC.

[153] Considering the history of the matter and the events which occurred, neither faction is blameless; both the applicant faction and the respondent faction acted outside the prescripts of the TOC’s constitution, rules of order and the Church Manual. It is clear that the issues which arose fueled emotions and that individual positions hardened as a result. Going forward, reasonableness and the fundamental principles of the Church should inform and regulate the conduct of a new TOC executive.

[154] Insofar as certain of the relief I intend to grant has not been sought in the notice of motion, the parties should be afforded the opportunity of seeking a variation of the order in certain respects on good cause shown.

Costs

[155] I turn to the issue of costs. The parties have sought adverse costs orders against each other, including the costs consequent upon the employment of two counsel. On the day of the hearing, the eleventh applicant withdrew his application. The respondents do not seek any cost order against him.

[156] The applicants have been substantially successful in this application. It has not been argued that there are compelling reasons to deviate from the normal principle that the costs follow the results. The application is voluminous and complex and the costs of two counsel are justified.

[157] In considering the liability of the respondents for costs, it would in my view not be fair to the parties to direct the respondents to pay the costs jointly and severally, considering that the majority of the respondents are individuals. In the exercise of a discretion which I consider just and equitable to the parties, the costs should be borne by the first respondent, the TOC.

Order

[158] I grant the following order:

158.1 The resolutions taken at the special business session of the first respondent on 24 February 2013 removing the then existing executive committee of the first respondent and appointing a new executive committee are set aside as invalid, subject thereto that the decisions taken and the acts performed by the said executive committee so appointed are not invalid merely because of the invalidity of their appointment.

158.2 The resolution electing a new executive committee of the first respondent at the regular business session of the first respondent on 24 to 27 October 2013 is set aside as invalid, subject thereto that that the decisions taken and the acts performed by the said executive committee so appointed are not invalid merely because of the invalidity of their appointment.

158.3 The resolutions taken by the executive committee of the first respondent appointed at the special business session of the first respondent on 24 February 2013 and the executive committee of the first respondent appointed at the regular business session of the first respondent during October 2013, taken during September 2013 and May 2016 respectively, to declare certain local churches not to be in regular standing and to reduce the status of certain local churches on the basis of their support of the applicants, and all steps taken in relation thereto are set aside.

158.4 All resolutions and steps taken in relation to the dismissal of the first, fifth eleventh, fourteenth and fifteenth applicants and the voiding of their ordination are set aside.

158.5 The present executive committee of the first respondent as elected at the regular business session of the first respondent during October 2016 (‘the current executive’) is directed to convene a regular business session of the first respondent within four months of the date of this order for the election of a new executive committee of the first respondent in accordance with the constitution of the first respondent and subject to this order.

158.6 The present executive committee of the first respondent is directed, to:

158.6.1 Formulate and distribute to all member churches, including all churches referred to in 158.3 above, appropriate guidelines and instructions for the nomination of individuals to be considered for election to the TOC executive committee at the TOC regular business session referred to in 158.5 above;

158.6.2 Include in such guidelines a mechanism in relation to the election of a new executive committee, which ensures that the new executive committee to be elected, comprises of a proportionate number of individuals representing (1) the applicants and the local churches who support them and (2) the respondent members of the executive committee of the first respondent appointed during February 2013 and October 2013 respectively and the local churches who support them (collectively referred to as ‘the respective factions’);

158.6.3 Formulate and distribute appropriate directives for the nomination of an appropriate number of nominees to achieve the result envisaged in 158.6.2;

158.6.4 Formulate and distribute as part of the agenda for the proposed regular business session in 158.5 above, a proposed mandate to be provided to the executive committee to be elected at the meeting, which mandate is to include the following matters:

158.6.4.1 Identifying the number of local member churches who support each of the factions;

158.6.4.2 Listing the steps taken by each of the two parallel executive committees of the first respondent from 24 February 2013 to date;

158.6.4.3 Deciding which of the steps referred to in 158.6.4.2 must be ratified and which must be reviewed and/or set aside and determining appropriate mechanisms to do so;

158.6.4.4 Identifying and particularising the steps necessary to unite the two parallel executive committees of the first respondent and the actions taken by each from 24 February 2013 to date, including but not limited to the reintegration of bank accounts, leases, employment contracts and contracts concluded with service providers and/or other third parties;

158.6.4.5 Furnishing the new executive committee with appropriate mandates;

158.7 The executive committee to be appointed at the regular business meeting of the first respondent to be convened in terms of 158.5 above, shall comprise of a proportionate number of members as nominated by each of the respective factions.

158.8 The parties are granted leave to approach a court for directions in relation to the formulation of appropriate directives to achieve the goals referred to in 158.6 above, if necessary.

158.9 The parties are granted leave to approach a court for a variation of 158.6 and 158.7 of this order, on good cause shown.

158.10 A copy of this order is to be served on each member of the present executive committee of the first respondent elected at the regular business session of the first respondent during October 2016, by hand or via email.

158.11 A copy of this order is to be provided via email or hand delivery to all member churches of the first respondent, including all new churches who became members of the first respondent after 24 February 2013 to date, those member churches who were directed not to be in regular standing prior to the October 2013 triennial meeting of the first respondent by virtue of their support of the applicants and those churches whose status were reduced pursuant to the first respondent’s October executive committee’s letter dated 31 May 2016 by virtue of their support of the applicants.

158.12 The first respondent is directed to pay the costs of the application, including the costs consequent upon the employment of two counsel.

_____________________________________

EF DIPPENAAR

ACTING JUDGE OF THE HIGH COURT, JOHANNESBURG

APPEARANCES

DATE OF HEARING

: 27 & 28 November 2017

DATE OF JUDGMENT

: 28 March 2018

APPLICANT’S COUNSEL

: Adv AG Sawma SC

Adv AE Ayayee

Adv I Currie

APPLICANT’S ATTORNEYS

: Ngcingwana Attorneys

C/o Mabaso Inc Attorneys

RESPONDENTS’ COUNSEL

: Adv GJ Marcus SC

Adv A Liversage

RESPONDENTS’ ATTORNEYS

: Rossouws Attorneys

[1] TOC constitution, article 5

[2] Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA) (the so-called Oudekraal principle)

[3] Plascon-Evans Paints Ltd v van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634E-635C; Stellenbosch Farmers Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 (C) at 235E-G; National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA) para [26]

[4] Section 21 (1)(c) of the Superior Courts Act,10 of 2013

[5] Article II, section 2

[6] The Mayor, Constables and Company of Merchants of the Staple of England v the Governor and Company of the Bank of England (1888) 21 QBD 160 at 165; Osman v Jhavary and Others 1939 AD 351 at 360, where the question was left open whether a resolution at a meeting not properly convened would be invalid if all the members were present and consented to the meeting being held; Roberts v Chairman, The Local Road Transportation Board and Others 1980 (2) SA 840C at 504D-E

[7] Natal Union of Textile Workers v Ndlovu and Others 1987 (30 SA 149 (D&CLD) 131I-J; 153I-154A

[8] Dynamos Football Club Pvt Ltd and Another v Zimbabwe Football Association and Others [2006] JOL 18132 (ZS) p19-20

[9] Bantu Callies Football Club (also known as Pretoria Callies Football club) v Mmotihamme and Others 1978 (4) SA 486 (T) 490E

[10] Mphahlele v Moloto 2013 JDR 1436 (GSJ) p34, para [88]; Bantu Cllies supra 490E; Dynamos supra p20

[11] Bethel N.G.K Vrededorp Congregation v Dempers 1911 WLD 82 at 84; Normandy v Indcoope and Co [1908] 1 Ch 84 at 86; 102; Young v Ladies Imperial Club Ltd [1920] 2 K.B. 523 at 530-531; 533; Neale v Mayor, East London 1935 EDL 225; Visser v Minister of Labour and Another 1954 (3) SA 975 (W); Williamson and Another v Durban City Council 1977 (3) SA 342 (D&CLD) at 347H-348H; Devereaux Holdings (Pty) Ltd v Pelsart Resources (Pty) Ltd (No. 2) (1985) 9 ACLR 956 SC (NSW) at 958; Residues Treatment and Trading Co Ltd v Southern Resources Ltd (1988) 14 ACLR 375 SC (SA) at 377

[12] Williamson and Another v Durban City Council, fn12 supra, at 348H

[13] Visser v Minister of Labour and Another, fn 12 supra, at 984B-C and the cases there referred to

[14] Devereaux Holdings (Pty) Ltd v Pelart Resources (Pty) Ltd (No.2) fn 12 supra, at 958-959

[15] Williamson v Durban City Council supra 348H; Visser supra, 984B-C and Devereaux supra 958, 959

[16] Ntsiri Shadrack Pooe and Another v Narius Molote and Others Case no 43982/13 (SGHC) unreported judgment dated 5 December 2013, par 28-31

[17] Nkwanyana v SA Bantu Football Association 1972 (4) SA 309 (D) 313E-G; Lunt v University of Cape Town and Another 1989 92) SA 438 (C) 448H; 1990 (3) SA 536 (SWA) 538F-H

[18] Other than the fifth applicant

[19] Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 A

[20] Part of the binding policies of the general conference under article III of the TOC constitution

[21] Dynamos fn9 supra, p19

[22] Roberts v Chairman, The Local Road Transportation Board and Others fn6 supra, 504D-E

[23] Fn 6 supra

[24] Asla Construction (Pty) Ltd v Buffalo City Metropolitan Municipality [2017] ZASCA 23 (24 March 2017) at para [12].

[25] Act 3 of 2000

[26] Unreported full bench decision of the KZN High Court, Pietermaritzburg, in Lawrence Dube and Others v Sihle Zikalal and Others Case number 7904/2016P (‘Dube’), paras [117]- [121]

[27] Jockey Club of South Africa and Others v Friedman 1942 AS 340; Taylor v Kurtstag NO and Others 2005 (1) SA 362 W, paras [42]-43] and authorities cited therein; Transman (Pty) Ltd v Dick and Another 2009 (4) SA 22 (SCA) paras [26]-[27]; Klein v Dairnfern College 2006 (3) SA 3T para [34], overturned in Transman supra, only insofar as the Klein decision permitted a judicial review of employment dismissals

[28] Waenhuiskrans Arniston Ratepayers Association and Another v Verreweide Eiendomsontwikkeling 2011 (3) SA 434 (WCC) para [70]

[29] Wolgroeiers Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad 1978 (1) SA 13A, 41-42; Oudekraal Estates Ltd v City of Cape town and others 2010 91) SA 333 (SCA) paras [51] and [58]

[30] Wolgroeiers, fn29 supra

[31] JT Publishing (Pty) Ltd and Another v Minister of Safety and Security and Others [1996] ZACC 23; 1997 (3) SA 514 (CC) at para [15]

[32] Burger v Rand Water Board and Another 2007 (1) SA 30 (SCA)

[33] Alfred Mc Alpine & Son (Pty) Ltd v Transvaal Provincial Administration 1974 (3) SA 506A at 531H-532A; Airports Company South Africa Ltd v Airport Bookshops (Pty) Ltd t/a Exclusive Books 2016 (1) SA 473 (GJ) paras [27]-[33]

[34] Fn 33 supra

[35] Act 108 of 1996

[36] 2016 (5) SA 1 (CC) para 132

[37] Mhlophe, fn 22 supra, para [83]

[38] See Matlholwa v Mahume and Others [2009] 3 All SA 238 (SCA); ([2009] ZASCA 29) para [11]; Dube supra, para [143]

[39] Fn 27 supra, para [155]

[40] 2013 (1) SA 248 (CC) para [93]

[41] Supra, para [159]

[42] Head of Department, Mpumalanga Department of Education and Another v Hoerskool Ermelo and another 2010 (2) SA 418 (CC), Dube supra para [146]-149] and the authorities cited therein