IN THE HIGH COURT OF SOUTH AFRICA EASTERN CAPE GRAHAMSTOWN CASE NO: 3865/2009. In the matter between: FEZILE MAZWI BONGISWA PANGO HEADMAN PANGO

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1 IN THE HIGH COURT OF SOUTH AFRICA EASTERN CAPE GRAHAMSTOWN CASE NO: 3865/2009 In the matter between: FEZILE MAZWI BONGISWA PANGO HEADMAN PANGO KHAYALETHU NGWATA MANDLEKHAYA NGECE MLINDELI SOLANI MZOXOLO NYENYEKU NOSIPHO KOTSWANA PHILANI KAMANDE SIPHOKAZI PHEZISA XOLANI PRENS NOLUTHANDO MGXOTHWA SIBAHLE PEZISA ZANEKHAYA SIBANE 1 1 ST Applicant 2 ND Applicant 3 RD Applicant 4 TH Applicant 5 th Applicant 6 TH Applicant 7 TH Applicant 8 TH Applicant 9 TH Applicant 10 TH Applicant 11 TH Applicant 12 TH Applicant 13 TH Applicant 14 TH Applicant

2 TOLANI GOSANI NTSIKELELO MLENZE 15 TH Applicant 16 TH Applicant and FORT BEAUFORT UNITED CONGREGATIONAL CHURCH OF SOUTHERN AFRICA First Respondent THE UNITED CONGREGATIONAL CHURCH OF SOUTHERN AFRICA Second Respondent JUDGEMENT MAGEZA AJ

3 [1] In this matter the Applicants seek an order setting aside the First Respondent s suspension of their membership of the First Respondent dated 8 th December 2002 and the reinstatement of all Applicants herein to the full and unfettered membership of First Respondent. On the papers, this order is sought against First Respondent, alternatively the Second Respondent. [2] First Respondent is a local church situate at Fort Beaufort and is a member of Second Respondent. [3] Second Respondent in turn is a union of local churches, Regional Councils, Synods and an Assembly. [4] Second Respondent does not oppose the relief sought and asserts that it has done all in its power to reinstate the Applicants to full membership but has been unsuccessful due to the defiant stance adopted by Reverend Hartland, Minister in charge of the First Respondent. To its knowledge, the current legal proceedings are rooted in a dispute that dates back 8 years and despite its best efforts, Second Respondent as the principal ecclesiastical mother body to whom First Respondent is affiliated, has been unable to compel First Respondent to readmit the Applicants. 3

4 It appears to it that the level of animosity runs regrettably deep and has over time, perpetuated an acrimonious state of affairs between and among parties mired in the conflict. BACKGROUND In setting out this background, I am assisted by the Second Respondent s Answering papers which in their fullness provide a more helpful background to the history of the dispute. [5] The Applicants, described as a group of young church members, fell into disfavour with the local governing executive of the First Respondent over their concerns relating to a number of issues involving, inter alia, suspected financial mismanagement, the use of a church vehicle and the whereabouts of cutlery. The manner in which they raised their concerns in turn raised the ire of the bulk majority members of the First Respondent s congregation and its leader Reverend Hartland and the Applicants were suspended on the 8 December The decision to suspend the Applicants was, in line with the Church s Constitution, taken by a General Members meeting of the First Respondent and was premised on the Applicants alleged undermining of

5 the Church leadership including their own ward deacons and interim youth structures. [6] In May 2003, again in line with the Church s Constitution, the Applicants appealed to the Kei Regional Council which considered the matter and ruled that the First Respondent s suspension of Applicants had been lawful. The decision of the First Respondent to suspend the Applicants was thus endorsed by the Kei Synod. [7] Applicants then appealed to the National Synod headed by Second Respondent. This National Synod then set up in January 2004, what is referred to as a Synod Commission, with the purpose of reopening the matter by visiting Fort Beaufort, meeting the respective parties and interviewing them with the objective of reconciling them. It would appear from the papers that news of this was received with surprise and hostility by Reverend Hartland and the congregation of the First Respondent resulting in no resolution to this ecclesiastical conondrum. [8] As at January 2006 (3 years later) the differences between the Applicants and First Respondent had not abated and First Respondent came before this Court and secured an interim interdict preventing Applicants from attending church activities pending disciplinary 5

6 proceedings against the Applicants. Applicants were furthermore precluded from undertaking protest actions within 50 meters of the First Respondent s church grounds. [9] In light of these developments, the Second Respondent appointed in April 2006, a further Commission, the Bulawayo Commission, to investigate what it called - the Fort Beaufort situation. The commission paid a visit to Fort Beaufort between the 1 st to 4 th June 2006 and reported to Second Respondent on or about the 14 th September of that year. It was, consequent thereon, resolved that: 9.1 Reverend Hartland and the First respondent be instructed to withdraw the Court interdict; 9.2 Reverend Hartland and the First respondent be instructed to allow the applicants to participate fully in the activities of the church in order to honour witness as the body of Christ. 9.3 the applicants be heard and their concerns be dealt with; and 9.4 the applicants be instructed that their actions were misguided. [10] These resolutions were communicated to the parties in March 2007 and

7 were not met with enthusiasm or welcomed by the Reverend Hartland and the First respondent but both groups nevertheless committed themselves to a process of reconciliation. A reconciliation team was appointed by the Second respondent to facilitate a process of healing and reconciliation. The First respondent was also requested to withdraw the interdict against the Applicants with immediate effect and by no later than the 31 st May The failure to do so was that Second Respondent would suspend the First respondent and Reverend Hartland without any further delay. [11] On the 12 December 2007, with no resolution in sight, Second Respondent suspended Reverend Hartland on the basis of what it says was the Resolution of the Assembly of March 2007 outlined above. Significantly, that Resolution provided for the possible suspension of both the local church and its Minister. Nothing on both the Applicants and Second Respondents papers sheds light on why only part of the Resolution was put into effect and the First Respondent was not suspended and/or disassociated from Second Respondent. Be that as it may, Reverend Hartland approached the South Gauteng High Court which set the purported suspension aside on the basis, inter alia, that he had not been afforded his right to be heard 7

8 prior to the decision. [12] Second Respondent in its Answer states at paragraph 25 that Rev Hartland is a former Mayor of the Fort Beaufort district municipality and enjoys widespread support from both the First Respondent s congregants and the wider community. Due to the popularity of Rev Hartland, UCCSA has tried to tread carefully for fear of exarcebating the conflict which has the potential to erupt into violence and bloodshed. Whilst stating this, UCCSA is mindful of the fact that this diplomatic approach has not brought the Applicant s desired results which is why the UCCSA believes that the only way forward is through resorting to the High Court in order to bring finality to the dispute. At paragraph Second Respondent states; UCCSA has sought to deal with this matter in every way short of the disassociation and severance of the First Respondent. That remains its goal. Achieving this goal has not been an easy task considering the support enjoyed by Rev Hartland as explained above. Legal action to evict Rev Hartland from the manse and to interdict him from entering church premises might have inflamed emotions and triggered events leading to confrontation and violence which is why

9 this course of action has not been taken by the UCCSA to date. FIRST RESPONDENT S REPLY [13] Reverend Hartland in his capacity as First Respondent s authorised representative states the following that: a) the congregation of First Respondent is vehemently opposed to the relief sought by Applicants. At the outset, he emphasises that such a reinstatement would lead to an inevitable bloodbath and the consequences would be too ghastly to contemplate. ; and b) It would be an extremely irresponsible and insensitive thing to do. Not only would it exarcebate the already tense and volatile situation between the two groups, characterized by occasional outbursts of violence, but it would also paralyze the progress our church has made to attend to the aftereffects of the schism since the Applicant s left. ; and c) He blames the Second Respondent for having dismally failed to exercise leadership and for believing that suspending him would lead to the resolution of the impasse; and 9

10 d) He furthermore states that; Presently the objective reality is that since 2002 the relationship between the two groups has deteriorated to such an extent that the Applicant s group are no longer part of the First Respondent s church. They daily boast of having no less than 200 members; they have their own place of worship and a priest who was appointed by the Second Respondent in 2008 to minister to their spiritual needs and to perform other attendant tasks a priest is normally required to carry out to the congregation in terms of our denomination. e) he has been a member of UCCSA since birth; was educated by the church; holds a Diploma in Theology and has always been a priest in the service of the church save a stint in the private sector and the period as Mayor of Fort Beaufort District. He has never been found guilty of any misconduct. He has served the public in leadership positions in many capacities. Notably, in the 80 s he was detained under the then Emergency Regulations; served as Chairman and Secretary of the Kei Region; First Chairperson of the South African Synod between ; Chairperson of Border Council of Churches in the 80 s etc. f) the Applicant s group complained in 2002 about a vehicle

11 and other church property which they alleged was being misused by certain members. This led to a stand-off and violent clashes with random attacks and some of the adversaries were charged with assaults and public violence and were convicted. Church services came to a stop as a result hereof. In his view, the Interdicts restraining the Applicants were for this reason necessary and that there has been no change in the Applicant s attitude. g) He furthermore asserts that; For those of us who are dealing with the situation on the ground, this is a life and death matter which can lead to the loss of lives if not handled carefully... ; [14] Now from the First Respondent s papers, it is clear that the congregation as a whole continues to be acutely opposed to the prospect of having the Applicants being reinstated to full membership of the First Respondent. [15] Furthermore it appears from its papers that in 2008, the Second Respondent appointed a Minister and constituted the Applicants as a distinct congregation with Constitutional status within the UCCSA. A Reverend Mthana was introduced to the Applicants church by the Kei Regional Council represented by Reverend Snyman. This has not been denied by Second Respondent. 11

12 APPLICANT S REPLY [16] Applicant in reply seeks to understate the schism between the two groups and the potential for more violence. It is of the view that the reference in answer to; the inevitable blood bath if the applicants are allowed back to Church appears to it to have been calculated by the First Respondent to generate acrimony and hate and that it is a gross exaggeration and unfortunate use of language. That the Applicants have pledged themselves to peace and due process of the constitutional imperatives of the Church and will do nothing which may serve to compromise that peaceful process and the laws of Christianity; and states I submit that there would be no reasonable belief after the substantial period of time which has elapsed, and given the undertakings furnished, that there would be no further outbursts nor that the Church would be paralyzed that harmony would not prevail. There is nothing tense or volatile about the situation at this stage and especially should it please this Honourable Court to grant relief in favour of the Applicants, all parties will be protected by the terms of that order. (paragraph 11)

13 [17] Turning now to the Constitution of the Second Respondent, it is necessary to highlight that this document is the bedrock on which the governace of the church is premised and it sets out, inter alia, the procedural processes to resolve disputes. This is the Constitution in force as at the commencement of the dispute in [18] Clause 1 defines the Second Respondent (UCCSA) as a union of the following Churches: 18.1 church Aid Missionary Society of South Africa; and 18.2 the London Missionary Society of Southern Africa; and 18.3 Bantu Congregational Church of the American Board; and 18.4 the South African Association of the Disciples of Christ. [19] Clause 2 defines the structure of the organisation as composed of local churches, Regional Councils, Synods and an Assembly. [20] Clause 3 states that a local church is; 20.1 recognised by the Assembly as a fellowship of members of the Church gathered in a particular locality for worship, witness and service. A local church may consist of one or more congregations. (my underlining). and can be formed 13

14 20.2 at the request of existing local churches, on the recommendation of the appropriate Regional Council, or by a Regional Council in terms of any one or any combination of the following (my underlining) division of the existing church; establishment and constitution of new congregations and local churches;.. [21] Procedure 17 of the Constitution is titled TROUBLE IN A LOCAL CHURCH and sets out an investigations mechanism and provides a sanction. The parts relevant to this are as follows: 21.1 When the Secretary of a Synod/Regional Council has local reason to believe that there is serious trouble in a church, he/she reports it to the Administrative Committee of the Synod/Region concerned which institutes a full investigation. (clause 17.1) 21.2 Certain steps are then outlined in relation to how the process is to proceed with regard to the right of each party to be heard whereafter the following sanction is

15 set out as available to the church in the event of non-cooperation by one or other of the belligerents When the Administrative Committee of the Synod/Region is satisfied from the written report of the investigation that there is serious trouble in the church, it reports its findings to the local church, the complainants and the Assembly Executive Committee. (clause ) 21.4 Should a local church refuse to accept a full investigation or to abide by the award given, such local church may, by the decision of the Assembly, upon the recommendation of the Synod/Regional Council concerned, be disassociated from the United Congregational Church of Southern Africa. (clause ) [22] It is clear that the Constitution of the Second Respondent is exhaustive and provides for a variety of possible outcomes and adequate sanctions in the event that difficulties confront the church in its lower structures, that is, in local churches. [23] Constitutions of voluntary associations such as ecclesiastical entities are 15

16 revised from time to time in order to set out as far as is foreseeable, remedies to deal with possible disputes and conflict. Once members join the church, they subject themselves to its restraints. These Constitutions provide the Church with the rules framework with which to deal with all matters of discipline, faith and adherence to ecclesiastical norm and custom. Once it is shown in specific cases that the Church in dealing with a dispute followed the correct internal procedures, Courts will not readily interfere. Voluntary associations are provided with a wide berth to deal with faith related matters in an as appropriate a manner as is possible based on the tenets accepted by the members thereof. Courts will intervene where there is a discernible deviation from the governing Constitution or where there is a failure to implement them resulting in an injustice to one or more of its members. In many of these Constitutions, the rules will stipulate that internal remedies be first exhausted by a member before resorting to the Courts. Whether or not possible remedies are exhausted is always a matter that varies from one instance to the other but can be easily discerned from the facts. [24] In Yiba and Others v African Gospel Church 1999 (2) SA 949 (C) the Court, per Schippers AJ set out the following at page 960 E:-

17 In summary, the principles are these: 1. A voluntary association is founded on the basis of mutual agreement which entails an intention to associate and consensus on the essential characteristics and objectives of the association (Joubert (ed) The Law of South Africa first reissue vol 1 at 303 para 455; Turner v Jockey Club of South Africa 1974 (3) SA 633 (A) at 645B-C, 645H-646A; Theron en Andere v Ring van Wellington van die NG Sendingkerk in Suid Afrika en Andere 1976 (2) SA 1 (A) at 25B) An association has no inherent power to conduct disciplinary proceedings and to punish a member (Durr en Andere v Universiteit van Stellenbosch en n Ander 1990 (3) SA 598 (A) at 608B-609A). The constitution of the association and its rules and regulations determine what violations of the rules by members warrant disciplinary action being taken against them, how the domestic tribunal entrusted with the investigation of such violations is to be constituted, the procedure to be followed by the tribunal in the exercise of its functions, and the penalties to be imposed for a violation of the rules (The Law of South Africa (op cit at 310 para 467)). 5. It must in my view be added that, the decision maker in an ecclesiastical tribunal charged with the responsibility to hear matters where a dispute is arbitrated, must follow the Constitution and where sanctions are provided for, must apply such according to the letter of the Constitution without unduly and irrationally deviating therefrom. 17

18 This promotes certainty and with that, an unbiased application of the churches rules and covenants to which all members have elected to be bound. Once an adverse finding is made pursuant to a lawful internal hearing, the legislated sanctions must be fairly and consistently applied. The ultimate responsibility for this lies with the Church Executive, Synod or Assembly as the upper guardians of the Constitution. [25] When one has regard to the history of this matter following the dispute in 2002, it is possible to summarise the material conclusions capable of being drawn as follows: i) A properly constituted hearing took place in December 2002 leading to the suspension of the Applicants. (ii) A properly prosecuted appeal to the Kei Synod was heard and dismissed by that Synod in May iii) A further appeal to the National Synod resulted in the Second Respondent reopening the matter and resolving to follow a path whose end objective was re-integration and reconciliation. iv) Following the appeal to the Assembly the Second Respondent sought to reopen the whole

19 matter with a view to seeking to persuade the parties to make peace and to reconcile. v) This course has not been successful and the schism remains alive. vi) First Respondents collective congregation does not accept the Second Respondents ambitions and are also firmly behind its leader the Reverend Hartland. In attempting to reopen and to resolve the dispute, Second Respondent has wholly underestimated the commitment of the congregation and erroneously sought to isolate Reverend Hartland (whom it sought to suspend without following its own Constitution) and has now been paralysed by the response. (viii) Second Respondent has unduly leaned towards a conciliatory solution and underestimated the depth of the distance between the belligerents. This has been viewed by First Respondent and Reverend Hartland as undermining its moral authority over the Applicants. ix) An opportunity existed for the Second Respondent to follow its own Constitution and 19

20 its own resolution of the March 2007 and to suspend both the First Respondent and Reverend Hartland if it felt so disposed. Second Respondent failed to implement the full terms of the resolution and this led to a successful challenge by Reverend Hartland of his suspension before the South Gauteng High Court. [26] The common consensus between the First Respondent and the Second Respondent is the ever present prospect of violence if the parties were to be forcefully reintegrated. Applicants conveniently downplay this prospect. No doubt the levels of hatred have set over the years and a sudden and abrupt unmonitored reintegration may well create an opportunity for more violence resulting in possible injury and loss of life. Moreover, in light of the vast period of time that has elapsed, and the appearance that life has moved on fundamentally since 2002, a reintegration may not be practical. [27] Furthermore, First Respondent asserts that Second Respondent has already put in train a process by which the Applicant s have what now amounts to their own congregation. This has not been disputed by the Applicant s nor by the Second Respondent and the Court must assume there is some truth in the assertion. This

21 is a solution that is clearly available to the Second Respondent as the guardian of the Constitution of the church. It is a Constitutionally competent alternative remedy which the First Respondent says has been implemented. If that is so then this Court has no need to grant the order sought. If this is not the position then the question is why not. Second Respondent is enjoined to promote the full tenets of its Constitution and to implement each such available remedy. [28] Applicant, in any event seeks final relief as against the First Respondent and, in the alternative the Second Respondent. In those circumstances it is clear that the matter must be decided on the facts as stated by the Respondents, together with those facts stated by the Applicant which Respondents do not deny. See Plascon-Evans Paints Ltd. v Riebeek Paints (Pty) Ltd 1984 (3) SA 623 (AD) at 634. [30] I am also concerned with the fact that the Applicants were lawfully suspended in December 2002 and this decision was later ratified by the Kei Regional Council. Nowhere in its papers does the Second Respondent or Applicants state that the decisions of the local and Regional structures were ever formally overturned or if the Applicants ever reapplied to commence with any process of atonement after the Kei Synod suspension. What the Second Respondent states is that the Assembly resolved to reopen the matter with a view to promoting reconciliation. It does not say it set the Kei decision aside. In 21

22 its papers the Applicants have failed to deal with this background and in fact sought to downplay its relevance to the current proceedings. Whether or not on the papers before me the Applicants have a right to the relief they seek, as against First Respondent, is also of doubtful import. Taking into account all the aforegoing, I am of the view that Second Respondent has at its disposal sufficient Constitutional outcomes and remedies to guide it in concluding this dispute and these are set out succinctly in its own Constitution. It has hitherto failed to follow its own resolutions and Constitution without a discernible rationale. Furthermore, I am not convinced that the Applicants are entitled to the relief sought for reasons set out above. In the result, I make the following order: 1. The application is dismissed 2. Each party is to pay its own costs MAGEZA AJ

23 10 DECEMBER 2010 APPLICANTS ATTORNEYS MICHAEL RANDELL ATTORNEYS C/O BORMAN NEVILLE & BOTHA APPLICANTS COUNSEL MR S COLE FIRST RESPONDENTS ATTORNEYS DULLABH ATTORNEYS FIRST RESPONDENTS COUNSEL MR N SANDI SECOND RESPONDENTS ATTORNEYS WEBBER WENTZEL C/O LEGAL RESOURCES CENTRE SECOND RESPONDENTS COUNSEL MR BOSWELL 23