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Dutch Reformed Church Vergesig Johannesburg Congregation and Another v Rayan Soknunan t/a GloryDivinee World Ministries (2012/14569) [2012] ZAGPJHC 97; 2012 (6) SA 201 (GSJ); [2012] 3 All SA 322 (GSJ) (14 May 2012)

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REPORTABLE

THE SOUTH GAUTENG HIGH COURT (JOHANNESBURG)



Case no: 2012/14569

In the matter between:


DUTCH REFORMED CHURCH VERGESIG .............................................First Applicant

JOHANNESBURG CONGREGATION

HENDRIK ABEL VAN ROOYEN....................................................................Second Applicant

and

RAYAN SOOKNUNAN t/a …..........................................................................Respondent

GLORY DIVINE WORLD MINISTRIES


Neutral citation: Dutch Reformed Church v Rayan Sooknunan 2012 SA (GSJ)

Coram: SATCHWELL J

Heard: 2 May 2012

Delivered: 14 May 2012

Summary: Interdict – freedom of expression and inflammatory publication – Facebook social media – registration of users – creation of Facebook page – control of postings on Facebook – anonymity of postings – responsibility for content on Facebook – unique nature of religious language – injurious but not defamatory or inciteful – disclosure of email addresses on Facebook invasion of privacy – to liken a Dutch Reformed Minister with Judas Iscariot interdicted.



JUDGMENT

SATCHWELL J


INTRODUCTION

[1] The Dutch Reformed Church of the Vergesig Johannesburg Congregation (‘DRC’) is the registered owner of certain church premises situated at Main Street and Church Square, Langlaagte (‘the church’) and Henrik Abel van Rooyen (‘van Rooyen’) is an ordained Minister of the DRC and Chairman of the DRC Council. They seek an order against Rayan Sooknunan (‘Sooknunan’) trading as Glory Divine World Ministries (‘GDWM’) which is essentially in three parts: interdicting Sooknunan/GDWM from publishing certain allegedly harmful allegations and comments; interdicting Sooknunan/GDWM from unlawfully interfering in a contract between the DRC and the potential purchaser of the church; and interdicting Sooknunan/GDWM from interfering in the DRC’s rights as owner of the church.


[2] This application was heard as one of urgency. It raises some important issues which, unfortunately, were not apparently anticipated by counsel representing either party with the result that there was no reference to any authorities with regards to these particular issues nor much exploration in argument of those issues. These issues are the use to which social media, such as Facebook, are or can be put and the legal implications thereof; the interrelationship between inflammatory language and incitement on the one hand and freedom of speech and entitlement to lobby for a point of view on the other hand; and the particular nature of religious language.

BACKGROUND

[3] The background to the dispute between the DRC and van Rooyen and Sooknunan/GDWM contextualises the various issues which are raised in this judgment.


[4] During 2000/2001 the DRC decided to allow another religious organisation to conduct services at the church building on Sunday mornings once the DRC service was finalised. Over a period of time the white Afrikaans DRC congregation of the Vergesig church decreased until there are apparently now very few, if any, members. This decrease in membership was accompanied by a parallel increase in the membership of the other church organisation utilising these church premises. Sooknunan is the ‘Founder and Head’ of the GDWM and there is, apparently, now a congregation in the region of some one thousand persons whose activities focus around these church premises.


[5] In 2010 the DRC and van Rooyen decided to sell the Vergesig premises. DRC and Sooknunan could not agree on a purchase price. The Council of the DRC offered a sole tenancy of the Vergesig church to Sooknunan/GDWM pending the sale of the church which offer of tenancy was accepted on 7th February 2011.


[6] The DRC has now sold the church to Rafeek Ahmed Hathurani on behalf of As-Salihoot Islamic Academy (being a section 21 company to be formed) for the sum of R2.7 million. The reasons for selling the church include that there are only a few remaining members of the white Afrikaans DRC congregation, the financial burden of maintaining different church buildings not always in use, and the intention to utilise the amount received from sale of buildings for ministering work.


[7] Sooknunan has wished to purchase the church premises from the DRC. It made an offer of R700 000.00 (seven hundred thousand rand) which was not acceptable to the DRC. Sooknunan has been unable to achieve the sale price of R2.7 million which has been offered by the successful purchaser.


[8] On 24th October 2011 the DRC advised Sooknunan/GDWM that his and their occupancy would be terminated and notice was thereby given. This notice was not well received. DRC alleges that Sooknunan changed the locks on the doors of the church and installed chains to those doors thereby excluding the DRC from the premises which allegation is denied by Sooknunan who states that access has been sought and granted on occasion. The DRC brought an application for the eviction of the GDWM which application was withdrawn for technical reasons and is to be reinstated.


[9] This inability to purchase the church premises and obtain permanent occupation thereof and the impending sale and/or eviction, has understandably resulted in considerable distress on the part of Sooknunan and GDWM.1 Sooknunan/ GDWM has apparently embarked on a public campaign to cause the DRC to abandon the sale of the church building and the eviction of Sooknunan/GDWM and is lobbying to this effect.

THE LOBBYING CAMPAIGN

[10] It is freely admitted by Sooknunan and GDWM that he and they have been lobbying against the proposed sale of the church buildings. It appears from his papers that they do so on three main grounds. Firstly, Sooknunan maintains that there was a verbal agreement that the GDWM could remain in occupation of the building indefinitely for as long as they propagated the Christian faith from those premises and this decision to sell the building and evict them is ‘treachery’ and going back on the word of the church. Secondly, Sooknunan objects to one faith based organisation evicting another faith based organisation from church premises for ‘commercial reasons’. Thirdly, Sooknunan objects that a Christian organisation would sell Christian church premises to a Muslim organisation.


[11] DRC’s complaints to this court concern this campaign on the part of Sooknunan.


[12] Van Rooyen states that Sooknunan ‘created a website where he commenced a vicious vendetta against me and the first applicant’. The view is taken that ‘the contents of the website created by the respondent incited the public and, particularly the Christian public to act against me, as I am the Chairman of the Board which decided to sell the church to the Islamic community for educational purposes’.




[13] Van Rooyen believes ‘my life may be in danger’ as ‘some members of the public are extremely radical and, may in fact, take my life’. They may do so because they may ‘believe their conduct is justified and in the interests of the entire Christian community’. Furthermore, the ‘various newspaper articles and facebook articles published by the respondent created a widespread response and I received numerous calls from the public wherein I was accused of acting contrary to Christian beliefs and wherein veiled threats were made’.2 Van Rooyen goes on to state that he received ‘email correspondence from various sources where he is accused and insulted which is a clear indication that I am being targeted’.


[14] Finally van Rooyen concluded that Sooknunan ‘in acting as he does may cause friction and tension between the Christian community and the Islamic community to such an extent that anything may happen. People’s conduct when it comes to religion are always unpredictable and, many individuals believe they act in the interests of the Deity should they take action, and particularly, violent action’.


[15] Accordingly, a number of interdicts are sought restraining Sooknunan trading as GDWM ‘from publishing any “malicious, injurious, inflammatory and /or defamatory matter” either verbally or in writing through literature, documents, emails, SMS messages or by using the internet or any website.’


FREEDOM OF EXPRESSION

[16] Nowhere in the DRC/Van Rooyen founding affidavit nor in argument did it appear that applicants had given consideration to the relationship between their concerns/complaints and the Constitutional protection of ‘freedom of expression’. I sought to engage with them on this level – an invitation which counsel for Sooknunan had anticipated.


[17] Throughout Sooknunan’s answering affidavit, where there is admission of authorship of comment, the defence is raised that what is written or published is ‘fair and reasonable comment’.


[18] The court must consider not only the defence of ‘fair comment’ but also have regard to the Constitutional protections offered to expression of views and engagement in discussion and debate.


[19] Human interaction is based upon communication and is one of the main sources and products of human development.3 As was said in South African National Defence Union v Minister of Defence and Another ‘freedom of expression constitutes one of the essential foundations of a democratic society, as is one of the basic conditions for its progress and for the development of every woman and man’.4


[20] The particular South African experiences enjoin all of us to be alert to infringements of the right to freedom of expression wherever it may be found.5 In a matter such as this, where one institution is pitted against another, where the expression of another right (that of religious practice) is also involved, where there appear to be not only religious but also racial and class undertones, then the court must be mindful that freedom of expression is ‘valuable for many reasons’ which include ‘its facilitation of the search for truth by individuals and society generally’ because the ‘Constitution recognises that individuals in our society need to be able to hear, form and express opinions and views freely on a wide range of matters.’6


[21] However, there is no doubt that there is no unlimited right to unfettered freedom to express every thought or viewpoint whenever and wheresoever and about whomsoever one chooses regardless of the consequences. There are always limitations placed upon expression. For such limits, the court must consider what is ‘reasonable and justifiable in a democratic society based upon human dignity, equality and freedom’.7


[22] In evaluating the publications of which the DRC and Van Rooyen complain one must do more than consider the ‘fair comment’ defence which has been raised but also consider the responsibilities of Sooknunan as ‘founder and leader’ of a Christian church.


[23] Expression may often be robust, angry, vitriolic, and even abusive.8 One has to test the boundaries of freedom of expression each time. The court must be alive to the issues involved, the context within which the debate takes place, the protagonists to the dispute or disagreement, the language used as well as the content of which is said, written and published and about whom it is published.


NEWSPAPER REPORTS

[24] Van Rooyen’s founding affidavit refers to approaches by Sooknunan to ‘most of the major newspapers, radio stations and ETV’ and ‘the various newspaper articles’.


[25] In the founding affidavit itself, Van Rooyen sets out extracts from one newspaper article in the Durban Post (which was replicated on the GDWM Facebook page). This is not a photocopy of that which appeared in the paper itself nor does it purport to be the entire article. What appears to be objectionable is what is quoted in the founding affidavit:

How can one religious institute replace another?’

He is upset that his multi-racial Christian congregation of 1000 will no longer have a place to worship’

This comes after…. Was sold to an Islamic Academy for 2.7 million in November to open a Madressa (School)’

He was upset as Muslim Academy purchased the church’.


[26] At page 74 of the (extremely messy and incoherent annexures) to the founding affidavit is what may or may not be a newspaper article. It does however appear to be a printout of that which is attached to the Sooknunan/GDWM answering affidavit identified as an article from The Star dated 17 April. The headline is ‘Holy War for one of city’s oldest churches’. That headline is obviously the creation of the subeditor of the newspaper who was tasked with editing the article for publication. The article refers to a ‘bitter legal battle’, identifies who is involved in this ‘holy war’, has quotes from spokesman Neels Engelbrecht and ‘GDWM bishop Dr Ryan Sooknunan’.


[27] There is another annexure (which is either a website or a blog) identified only as ‘Mike Smith’s Political Commentary’. One ‘article’ of 15th April 2012 concerns ‘the time when Mike became a Muslim’ and sets out his disillusionment with Islam in crude and deliberately insulting verbiage.


[28] Another may or may not be an article or blog by Mike which comments on the sale of the church and the reasons why Mike believes that Afrikaner people are ‘abandoning their useless church’. He claims the DRC is ‘dying a slow and painful death’ through ‘mostly emigration and the bullshit dogma they preach’. He comments on the role of the DRC during the apartheid era and the changing views of the DRC in the 1980’s. His language is robust – ‘indoctrinating their congregations’, ‘selling out to the forces of Satanic Marxism’, ‘vociferous whores of Babylon’ and ‘thousands of dominees who have studies seven years will join the unemployment line’.


[29] In argument, I asked applicant’s counsel to refer me to and identify the objectionable passages and explain to me the grounds of such objection. I was not referred to any further newspaper passages save those identified in the founding affidavit.


[30] I can find nothing which is inflammatory or defamatory or inciteful or in any way requiring to be interdicted in the two newspaper articles (Durban Post and the Star). As far as the website/blog of Mike Smith – he expresses in crude and insulting language his views of Islam. It does not concern the applicants. Insofar as his website/blog refers to the Dutch Reformed Church generally – again his views are not relevant to this application or the interdict sought against Sooknunan/GDWM. His comments may be categorised as ‘fair comment’ on the past and present role of the DRC and would certainly be covered under any reading of the right to freedom of expression. However, since I do not know the connection between this Mike Smith and his website/blog and Sooknunan/GDWM, even if my view were different, I would not find it appropriate to take any action.


[31] There are many other annexures which appear to be emails or blogs or some type of communication (one being a letter from Sooknunan to City Press). No specific reference has been made to these in the founding affidavit. I am left to trawl through these myself and try to identify that which is deserving of being interdicted.


FACEBOOK

Creation of Facebook wall

[32] The DRC has referred the court to some fifty pages of documents purporting to be printouts from a Facebook page of which the source is ‘Glory Divine World Ministries’ and ‘www.glorydivine.co.za’. It is claimed that ‘the respondent created a website’ and that there are ‘facebook articles published by the respondent’ and that ‘the respondent also published the following words on facebook’ and there are numerous extracts from ‘comments on facebook’ and ‘as it appears upon the facebook of the respondent as well as the support group’.


[33] Sooknunan, rather disingenuously and ambiguously, denies ‘the creation by myself of a website to incite religious hatred’. However, he goes on to state that ‘as far as I am aware there exists a Facebook page set up by concerned community members and some local printing houses’ and says that ‘I am not an administrator of this page but I have visited it…. And deny the fact that I am responsible for the posting of the content of this page’. Later he refers to comments ‘made in a facebook page, neither created nor administered by myself’.


[34] The old saying – ‘if it looks like a duck, quacks like a duck and waddles like a duck then it probably is a duck’ certainly applies in this case. This Facebook page is announced as that of GDWM, it is only concerned with GDWM affairs and has comments from GDWM. It is more than likely the Facebook page of GDWM. To my mind the GDWM denial of responsibility for or control over this Facebook page is not credible.


[35] There are several reasons for such finding:

    1. The Facebook page is entitled “Glory Divine GDwm” which is a most unusual and distinctive name which can only refer to the respondent in this matter, particularly when one has regard to the content and subject matter of the Facebook page which is entirely devoted to this spat between the DRC and Sooknunan/GDWM.

    2. There are almost daily entries from Glory Divine GDwm bringing readers up to date on the dispute, inviting comment, referring to newspaper articles and Sooknunan’s response thereto. Quite clearly Sooknunan is the author thereof. He refers to himself in the first person and to his actions and developments of which he has personal knowledge. For example, the entry of the 19th April posts an article which appeared in the Durban Post and then appear the words: ‘Glory Divine GDwm: What is your view on the issue?’ Quite clearly Sooknunan is soliciting views on the affairs of GDWM and its disagreement with the DRC.

    3. Numerous entries contain comments emanating from ‘Glory Divine GDwm’ and the respondent, under the name ‘Dr Ryan Sooknunan’ providing his address as www.glorydivine.co.za. I have googled this address – it is the website of the GDWM. Sooknunan and the ‘first lady’ appear in photographs. Full details are given of GDWM activities, its bank details and a curriculum vitae of Sooknunan claiming that he holds a ‘Doctorate of Arts in Theology from the United States of America’!

    4. At some point the source of the documentation became ‘Facebook SUPPORT GROUP Glory Divine GDwm www.glorydivine.co.za’ which suggests that the other comments were not from a ‘support group’ but from the GWDM itself.


[36] In short, I am unimpressed by Sooknunan’s disavowal of what clearly appears to be his or his church’s Facebook page.


[37] The test in motion court proceedings where there is a dispute such as this was set out in Plascon-Evans Paints Ltd v Van Riebeeck Paints Pty Ltd 1984(3) SA 623 (A) as follows:

In certain instances the denial by respondent of a fact alleged by the applicant may not be such as to raise a real, genuine or bona fide dispute of fact. . . . If in such a case the respondent has not availed himself of his right to apply for the deponents concerned to be called for cross-examination under Rule 6(5)(g) of the Uniform Rules of Court. . . . and the court is satisfied as to the inherent credibility of the applicant’s factual averment, it may proceed on the basis of the correctness thereof and include this fact among those upon which it determines whether the applicant is entitled to the final relief which he seeks. . .’


[38] In this case I am not in the least persuaded by the denial by Sooknunan of his responsibility for the GDWM website. He proclaims himself to be ‘the founder and head’ of his church. He has a most professional and informative website for himself and his church. That website provides details of church activities and also solicits funds. It is not credible that he would or could permit another to utilise the name he has chosen for his congregation/business enterprise to engage in the very dispute in which he is most central. It is not credible that he would or could allow unknown persons to express views for and on behalf of his congregation/business enterprise without having provided the facility therefore.


[39] I postulated in argument a similar situation where a Facebook page or website was set up under the aegis of and purporting to be that of the Roman Catholic Church which advocated for contraception, abortion and gay marriage. In such circumstances the Holy Father the Pope, the entire congregation of Cardinals and Archbishops (and in South Africa the Catholic Bishops Conference) would certainly wish to and be entitled to close down that publication. Yet Sooknunan is comfortable with use of his and his congregation/business enterprise’s name, his dispute, his views by others and even contributes to that Facebook page!


[40] In Dhladhla v Erasmus 1999 (1) SA 1065 (LCC), whilst affirming that ‘the court should not lightly settle a factual dispute solely by weighing up the probabilities emerging from the papers without the advantage of viva voce evidence’, the court added the following to the passage in Plascon Evans quoted above:

If, on the papers before the Court, the probabilities overwhelmingly favour a specific factual finding, the Court should take a robust approach and make that finding. The same applies when a denial by a respondent of a fact alleged by an applicant is insufficient to give rise to a real, genuine and bone fide dispute of fact. The approach should, however, be followed with some circumspection.’


[41] Accordingly, I find that Sooknunan personally is the owner of the Facebook wall entitled GDWM which postings form the subject matter of this application.


Regulation of Facebook Wall

[42] I am indebted to Mr Meyer, appearing for the applicant, who sent on to my chambers after this application was heard, a judgment from the court of common pleas of the 39th Judicial District of Pennsylvania – Franklin County Branch.9 I have no knowledge of the status of this court nor whether its opinion10 could or should be of assistance to this court. However, the judgment provides a useful overview of Facebook and I quote therefrom:

Facebook is a free social networking site. To join a user must set up a profile, which is accessible only through the user’s ID (email) and a password. Facebook allows users to interact with, instant message, email and friend or unfriend other users; to play online games; and to upload notes, photos and videos. Facebook users can post status updates about what they are doing or thinking. Users can post their current location to other friends, suggest restaurant, businesses, or politicians or political causes to “like”, and comment or “like” other friends’ posts.

Social networking websites like Facebook, Google+ and MySpace are ubiquitous. Facebook which is only seven years old, has more than 800 million active users, 505 of whom are active on the site at any given day (Facebook statistics as at 25 October 2011). Facebook has spawned a field of academic research, books and a movie. Social networking websites also have a dark side – they have caused criminal investigations and prosecutions and civil tort actions. . . .11

Facebook has a detailed, ever-changing privacy policy. Only people with user account can access Facebook. For all practical purposes, anyone with an email account can set up a Facebook account. Users can set their privacy settings to various levels, although a person’s name, profile picture and user ID are always publicly available. At the least restrictive setting, named “public”, all 800 million users can view whatever is on a certain user’s profile. At an intermediate level, only a user’s Facebook friends can view such information, and at the least restrictive, only the user can view his or her profile. Facebook also currently allows users to customize their privacy settings.

Facebook alerts users that Facebook friends may “tag” them in any posting . . . . “You can either approve each post individually or approve all posts by your friends. If you approve a post and later change your mind, you can always remove it from your profile. If you do not want someone to tag you in their posts, we encourage you to reach out to them and give them that feedback. If that does not work, you can block them. This will prevent them from tagging you going forward.” (Facebook Data Policy)

Therefore, users of Facebook know that their information may be shared by default, and a user must take affirmative steps to prevent the sharing of such information.’12


[43] I have also had regard to the Wikipedia overview of ‘Facebook’. I am mindful that the authors of Wikipedia are anonymous and that Facebook does not itself affirm the accuracy or correctness of the content of Wikipedia. I have also had regard to Facebook’s own site and policies. However, for the purposes of this judgment a full and more detailed exegesis on Facebook is not necessary.


[44] The upshot is, that if Sooknunan or GDWM are indeed the initiators and creators of the Facebook page identified as belonging to and being that of ‘Glorious Divine GDwm’, he would be the ‘user’ who has created a personal profile and allowed other users as ‘friends’ to exchange messages. These messages could be both private or public and using the chat feature – in the present case the court appears to have been furnished by DRC with the public or chat feature communications or postings – after all those to which the DRC has been able to access. On this most public setting it appears that anyone, anywhere in the world, with an interest in the dispute between GDWM and the DRC can read and contribute to this discussion.


[45] Sooknunan is perfectly capable of regulating access to the Facebook page and censoring postings thereto. This court does not know if Sooknunan has or has not, at any stage, chosen to delete or censor any of the content thereon.


[46] Facebook is not perfectly secure - there has been hacking of accounts and interference with profile pictures. There is no suggestion that this has happened in GDWM facebook page.


Anonymity of Postings and Regulation by Creator

[47] Those who post on Facebook (even if they have been accepted as ‘friends’) are not required to identify themselves by name, address or contact number. They may choose to be as anonymous as anyone of the approximately 800 million Facebook users in the world. Some do so choose while others give their full names. This is clear from the postings on the Facebook wall in question (the fifty or so pages attached to the founding affidavit) where there are comments (sometimes frequently) from ‘Vince Smith’, ‘Preshy Shokie’, ‘Jennifer Pillay’, ‘Adeola Akintoye’, ‘Lesiba Joel Mashego’, ‘Esther Rousseau’ and so on.


[48] The implications of such anonymity are that those persons who have made postings are not identified (save by a name which may nor may be their own), may or may not be contactable, cannot be cited as parties to these proceedings and cannot be interdicted from publishing anything which may have been or may be defamatory, inciting, inflammatory or unlawful in any manner. Unless and until they are identified and joined in proceedings, they are little different from persons who have attached a scrappy piece of paper to a felt notice board in a passage with a pin or stub of prestik.


[49] However, Sooknunan has created and made available this notice board in a public passage. He then has an obligation to take down those scrappy pieces of paper which are shown to be unlawful in content or impact. He has made available the opportunity for such unlawful content and is, in effect, the publisher thereof – much as a newspaper takes responsibility for the content of its pages.


INFLAMMATION/ INCITEMENT/ DANGER

The Complaints

[50] Van Rooyen avers that he believes ‘my life may be in danger’ because ‘some members of the public are extremely radical’. The newspaper and Facebook ‘articles’ ‘have created a ‘widespread response’ and he has been ‘accused of acting contrary to Christian beliefs’.


[51] Van Rooyen’s specific complaints set out in his founding affidavit are:

    1. The extracts from the Durban Post article to which I have already referred;

    2. The call by Sooknunan that ‘prayer warriors are meeting…. If you are in the area come and join us in the battle’;


    1. A posting that:

the difference between Muslim leaders and Christian leaders is. The Muslim leaders if they believe that they are fighting a righteous battle, they will be prepared or die. The Christian leaders will stand behind the shadows and spectate for the outcome. …. I wish we can be like the apostles, be ready to give our lives for the cause of Christ’;

    1. A posting that ‘James says faith without work is dead… Thank God for warriors like Martin Luther and great men of God’;

    2. A posting that:

My brother I am with you, we praying for you… do you know how many of us are in agreement with you in what is called a holy war, but what now do you expect the Christian leaders to do?’;

    1. A posting that:

At the centre of this holy war… accused the NG Kerk of being like Judas Iscariot and selling them out for “30 pieces of silver”. . .’ Sooknunan said …’I will not allow Muslims to buy the church. We are on Church Square not Madrassa Square’;

    1. A posting that:

I decree Ezra 6 verse 7, 11…. That I must interfere with the work on temple of God . . . any 1 violate this decree in anyway will have a beam pulled from their house, be tied up 2 it and flocked and their house will be reduced to a pile of rubble’;

    1. A posting that:

This is a spiritual battle and we cannot allow ourselves to be sidetracked from a specific prayer purpose… the prayer point must be firstly their law, Neels Engelbrecht, who is so adamant to evict us, then Hennie van Rooyen who is driven by money and then the Molana who is HELLBENT on turning a church into a madressa’; and


    1. An email or posting:

      1. According to Mr Joe Brown… an elder of the Dutch Reform Church mentions that there are about 30 Dutch Reformed members that has been abandoned by Reverend Hennie van Rooyen and never visited or consulted’;

      2. .. the Reverend Hennie van Rooyen has lied and went back on his promises and agreement. . . .He already had a buyer in mind because of being money driven and not people or Christian mandate driven’; and

      3. Blatant lie. Reverend Hennie van Rooyen has not spent a cent on the building for nearly two years’.


[52] The founding affidavit expresses extreme concern at the use of the following words in the various documents: ‘holy war’, ‘this battle’, ‘to die’, ‘fire’, ‘sold Him for 30 pieces of silver’, ‘the NG Kerk should be ashamed of themselves’, ‘how can a Christian sell the house of God’, and van Rooyen believes that he is referred to as ‘the devil’.


[53] Further complaints in the replying affidavit with reference to further annexures attached thereto. I am not referring to those in this judgment. The applicant’s case should have been made out in the founding affidavit.


The Context

[54] The protagonists in this dispute are both faith based organisations with congregations and supporters who hold strong beliefs as to their faith of which the basis is the Holy Bible, the manner in which the Word of God and religious practice ought to be both observed and treated.


[55] The issue appears clear-cut to both groups. The owner of a church building no longer requires it and has sold it to another group who will be free to use it (presumably once it has been deconsecrated). The tenant of the building does not want to leave the building but cannot afford to buy it and resents that another group can afford to purchase same.


[56] Of course, Sooknunan can take a number of quite lawful actions to frustrate the sale or remain in occupation. Firstly, he can try and change the mind of the DRC that the property should be sold to anyone at all or for a price more than he or his congregation could raise. Secondly, he can try and raise the amount for which the DRC is prepared to sell the building – in this he has been unsuccessful. Thirdly, he can try and obtain so much public support for his ministry and continuing occupation that the DRC will feel constrained to support Sooknunan/GDWM by forsaking the DRC’s need for the funds and allowing Sooknunan/GDWM to remain on site. This is what Sooknunan/GDWM has chosen to do. Very clearly he has launched a publicity campaign.


[57] The campaign appears to involve a number of avenues. There are newspaper articles to alert the public or interested parties to the issue – but this is a limited avenue since the issue does not indefinitely remain newsworthy and one or two articles appear (thus far) to be the limit. There are approaches to former and current church members and occupants of the Abraham Kriel home in the hope that they could or would add their voices to the objection to the sale and the pending evicting of Sooknunan/GDWM – but this does not appear to have taken the matter any further. There is a cheap and unending means of expressing the GDWM view on Facebook - Sooknunan and his members and any supporters can express their views endlessly – but this is somewhat of a closed circle with limited impact.

[58] Of course, the campaign has the added frisson of the identity of the purchaser. The DRC church is sold to a Muslim institute. The campaign makes much of the sale to non-Christians, ‘heathens’, that the church will be ‘turned into a mosque’.


Religious Language

[59] It is commonsense that communication reflects the user. Elizabethans in the 16th century lit fires on hills to alert the danger of the Spanish Armada; rural people in Africa beat drums to advise the arrival of British redcoats; artillery officers used pigeons and the heliograph to tell guns where to fire on opposing trenches in the First World War; and in the twentieth century the telegram and telephone enabled persons to compose messages and use individualised language to share information, ideas, thoughts, feelings with each other. Yesterday it was the photocopy and the telefax and today it’s the email and social networking such as Facebook.


[60] However, the means of communication is not only pen and paper or keyboard and screen but the language utilised. It is obvious that language is differently used for different purposes – lovers use affectionate words and their own shorthand; businesses use the truncated style of invoices and receipts; lawyers and judge tend to use Latin tags and legal aphorisms; and politicians are fond of transparent inclusivity.


[61] Many religions have both an oral and a written tradition as well as a stylized mode of expression and choice of language. Certainly, the Protestants (of which the Dutch Reformed Church is a member) have always spread the Word of God and His teachings through preaching and reference to both the Old and New Testaments. The independent and more Pentecostal churches (of which GDWM appears to be another offshoot) place heavy reliance upon missionary and prophetic preaching coupled with the literalism of the Holy Bible.


[62] It is therefore not surprising that a dispute between faith based organisations should be aired through language and particularly through words and language construction which reflects the somewhat archaic usage of the many versions of the King James Bible. Preaching, prayer, hymns all rely on repetition, rhythm, sometimes rhyme. Religious communication is frequently allegorical and often metaphorical. What is said or written is designed to catch the ear and the mind and the heart of the listener, reader or singer, the congregant, believer or nonbeliever.


[63] Religious and church sources often reflect the turmoil and violence of earlier generations (the Crusades, the Inquisition, the Reformation) and the continuing and individual spiritual struggle of good versus evil. The Bible is robust in its thought and teaching and in its language. Preaching is not wishy-washy but also directive and strong. And, one should point out, aggressive and warlike or militant. The Church of England refers to itself as ‘The Church Militant’. One can think of hymns such as ‘Onward Christian Soldiers marching as to war’ and phrases which have entered the common English speaking lexicon such as ‘Fire and brimstone heaped on one’s head’.


[64] Small wonder then that those who have been interested in, occupied with or even distressed by this dispute over the sale of the church building and the potential eviction of the GDWM have fallen back upon the language of their church, their Bible, their faith.

The Content of the Media Campaign

[65] Newspapers have titled this dispute a ‘holy war’ which is a snappy, ironic and familiar phrase. It doesn’t mean actual weaponry and soldiers. The phrase can be applied to any dispute which is taken seriously, obsessively, fervently. It can be applied to rugby or soccer league tables as much as to the Crusades of the 14th Century.


[66] The metaphor within which this dispute is situated is that of ‘the holy war’ - there are ‘prayer warriors’ and ‘warriors like Martin Luther’ and ‘the battle’ and ‘the spiritual battle’. All familiar language in a religious context – certainly not incitement to put on Kefflar vests and take out AK 47s.


[67] One posting bemoans the absence of strong Christian leadership and wishes ‘we can be like the apostles, ready to give our lives for the cause of Christ’. Hardly, a call to shed the blood of anyone since none of the Apostles is recorded to have killed or harmed or injured anyone else. Martyrdom was their experience of loss of life.


[68] Although there are questions such as ‘What now do you expect the Christian leaders to do?’, the only response is to call to the general public to meet in prayer. ‘The prayer warriors are meeting’, ‘we are praying for you’, ‘we cannot be sidetracked from a specific prayer purpose’. Individual ‘prayer points’ are identified - Engelbrecht, Van Rooyen and the Muslim purchaser of the building.


[69] One posting refers to interference with the house of God resulting in reduction of that person’s house ‘to a pile of rubble’. This is much the same as saying ‘what goes around comes around’ or ‘do as you would be done by’ but it certainly is no call for destruction of church or individual property.


[70] I have not dealt with the additional postings attached to the replying affidavit. However, one annexure to the replying affidavit is an email dated 13 October 2011 from Sooknunan to the DRC in which he repeats his ‘disgust’ at the sale of the church to ‘heathens’ and warns that the ‘congregation is planning a peaceful march lifting the banner of Christ – stating stop selling our church to muslims to be turned into mosques. They will march to NG Kerk Vergesig and to TV stations, media etc.’ This seems to be the high point of Sooknunan’s activities – a march which is intended to be peaceful. The proposed banners express a point of view which is hardly ecumenical as between Christians and Muslims but then neither usually claims to be part of the same faith community or tolerant of each other. There is certainly no call to violence or encouragement of religious hatred.


Impact

[71] We have no knowledge of who and how many have read the newspaper articles. We certainly have no idea of who and how many have read the Facebook commentary. The Facebook readership may be local, regional, national or international.


[72] This court has not been told if tens or twenties or hundreds or thousands have taken up the campaign, the cause and attended at the church premises in support of the GDWM. This court does not know if the whole campaign has been a total flop.


[73] The outcome of the campaign appears to have been nil. There is still an impasse and the parties are still at loggerheads.


[74] In argument, the DRC’s counsel pointed out that it would take just one person to perform some precipitate action – but who and where this one person is, what he or she would do, where they would do it – are all unknown. The crucial question is whether Sooknunan has published anything which would incite or inflame anyone to perform any unlawful action – the answer is in the negative.


Making Public the email addresses of Van Rooyen and Attorney

[75] Van Rooyen states that his name and email address has been supplied to the public by Sooknunan and that both he and his attorney ‘received and still receive intimidating and threatening emails and telephone calls, wherein we are abused and insulted’.


[76] After the hearing I was provided with a copy of a Facebook posting of 8th April, posted by ‘Glory Divine GDwm’ stating that ‘he person that is adamant and driving this – Hennie van rooyen his email is [email address]. . . and his attorney Engelbrecht from Northcliff, email is [email address]. . ..’


[77] Sooknunan has answered that these email addresses were already available to the public. If that is the case then one must query why it was necessary for Sooknunan to place this posting on Facebook. There can be no doubt that the purpose of posting this information was to encourage and to enable readers of this Facebook page to communicate with both Van Rooyen and Engelbrecht to express their points of view about this dispute.

[78] I consider it a gross invasion of privacy to furnish an individual’s personal contact details on a public forum such as this Facebook wall. It exposes the recipient to unsolicited and unwanted messages. It interferes with the recipient’s normal communications to others. It is private information which only Van Rooyen or Engelbrecht have the right to impart or make public.


The Death Threat

[79] Van Rooyen received a phone call from cellphone 082 203 9143 on 30th March 2012 – ‘Hennie van Rooyen, in jou kar huis of by jou kerk sal jy uitgesit word’. There is no doubt that this is a threat and Van Rooyen is entitled to be most distressed as a result and to fear that someone who has gone to the trouble to make the call may carry through on this threat.


[80] After the threat and ‘having had sight of the various articles posted on the website’, Van Rooyen approached the DRC attorney intending that the attorney ‘assist me in laying criminal charges against the individual who threatened me with death’. Van Rooyen apparently did lay a complaint and states that he ‘supplied the cellphone number in my possession to the South African Police Services’ but says he has not heard anything from the SAPS and ‘doubt whether they could trace the person who threatened me’.


[81] The court does not know the date when the complaint was laid nor to which station of the SAPS. It is inexplicable that it is not possible to trace the cell number. Frequently, in these courts officers from both MTN and Vodacom give evidence about cellphone records. Obviously certain procedures have to be taken for such information to be disclosed but there is nothing to suggest that Van Rooyen and the DRC have been insistent that the appropriate steps are taken to pursue the maker of this call.


[82] What is noticeable is that Van Rooyen does not allege that the cell number is that of Sooknunan – whose number he must know since they have communicated previously.


[83] The result is that the call was made by an unknown person and this court has no information on which one could conclude that he has any connection with Sooknunan/GDWM. He might simply have been a newspaper reader. He might or might not be a Facebook user.


[84] I cannot find that the maker of the cellphone threat is a member of the GDWM congregation or even that he was inspired or encouraged by the Facebook postings. Although possible, there is no evidence of any causal connection between the lobbying campaign and the threat.


[85] In any event I have found that the postings on Facebook are not inflammatory or inciteful to any unlawful action.


INSULT, DEFAMATION, INJURY

Van Rooyen’s Care for the Congregation

[86] Clearly there is some disaffection amongst the former congregants of Vergesig DRC since there is continual reference to a former elder, Mr Joe Brown, who has allegedly said that Van Rooyen has neglected the remaining thirty or so members of the congregation. It is stated in an email from Sooknunan to City Press that ‘about 30 Dutch Reformed members that has been abandoned by Reverend Hennie van Rooyen and never visited or consulted’.


[87] I do not know if Brown is a member of the DRC or the GDWM congregations. In any event, he is not a party to these proceedings.


[88] Understandably, Van Rooyen finds this allegation distressing. He is an Ordained Minister of the Dutch Reformed Church and is Chairman of the Council of the DRC, Vergesig congregation. His mission and calling, as minister of religion, includes the provision of pastoral services to members of his congregation. To suggest otherwise is to call into question his ministry and his commitment to his duties.


[89] Such an allegation is irrelevant to the dispute between DRC, Van Rooyen and Sooknunan/GDWM. Such an allegation does not contribute to understanding or resolving the dispute about the sale of the building. It is extraneous to any lobbying or campaign to try to prevent the sale and eviction. This allegation cannot possibly be covered by the licence one gives to those lobbying against the sale in the exercise of their rights of free speech and expression.


[90] This allegation is simply an attempt to tarnish Van Rooyen as an individual and as a churchman. It is an attempt to ‘play the man and not the ball’ in the sense that the allegation goes to the character of one of the parties rather than the merits of their dispute.


[91] This is offensive, insulting and injurious.


[92] Van Rooyen is also concerned that Sooknunan avers that the DRC has not maintained the church premises which he considers to be defamatory. In return, Sooknunan deals at length with expenditure by himself on the church premises. This is not an issue which this court is able to determine.


Van Rooyen and Judas’ 30 pieces of Silver

[93] In an email from Sooknunan (apparently to City Press) he states that the Reverend Hennie van Rooyen is ‘money driven and not Christian mandate driven’. In a posting on Facebook by Glory Divine GDwm it is stated that the ‘prayer point’ must be ‘Hennie van Rooyen who is driven by money’.


[94] Van Rooyen avers in his founding affidavit that there is a posting on Facebook that the DRC and Van Rooyen ‘sold Him for 30 pieces of silver’. I cannot find this posting. In the founding affidavit there is reference to a publication which Sooknunan confirms is from the Star and has attached a photocopy of the article. Therein appears ‘GDWM… accuse the NG Kerk of being “like Judas Iscariot” and “selling them out for 30 pieces of silver”.’ The quotations in the Star are clearly meant to represent quotations from the GDWM spokesman - identified in the article as Bishop Ryan Sooknunan.


[95] The article and the quotes do not identify Van Rooyen and do not state that ‘He’ (ie Jesus Christ) was sold for 30 pieces of silver. It is the DRC who is stated to have sold “them” (ie Sooknunan/GDWM).


[96] Anyone who knows or knows of the New Testament and the story of Christ knows that the person of Jesus Christ was sold into captivity and death by one of his own followers, Judas Iscariot, who was rewarded for this betrayal with payment of thirty pieces of silver.


[97] To suggest or state or publish that a church or churchmen or an ordained minister in the Christian religion is behaving in a manner akin to the betrayal of Jesus Christ is to attack the very foundation of his mission and profession and personal commitment.


[98] It is appreciated that feelings run high when finances prevent a church congregation from retaining what they consider to be their church premises and they face eviction as a result. But there remain boundaries. Just as Sooknunan expected more understanding from another Christian faith based organisation, so he must appreciate that he should show respect and courtesy to the fundamental beliefs of the minister of that church.


[99] These statements are injurious in the extreme. They are hurtful and intended to be so. By definition they are defamatory because there is no suggestion at all that there is any truth in the statement that the DRC (which includes Van Rooyen) is unfaithful to their Christ or his teachings or that their souls can be purchased for money.


Objection to sale of church to Muslims

[100] The objection to the sale of the church appears to be primarily based on the sale to a third party which will result in the eviction of Sooknunan and his church. However, there is also a very strongly expressed objection to the sale of Christian church premises to a Muslim academy.


[101] The postings from Sooknunan and other persons are replete with references to ‘heathens’, ‘mosques’ and so on.


[102] This application does not purport to represent the interests of the Muslim community or the purchasers of the church. The inflammatory language is attributed to Christians and members of both the DRC and GDWM congregations. There is no suggestion that it is directed at any individual or group of Muslims and the complaint is that the DRC and Van Rooyen are being targeted. The insulting and injurious language is similarly described as being hurtful to and harmful to the DRC and Van Rooyen.


[103] The language is intemperate and certainly not ecumenical. But what is written under the name of Sooknunan and GDWM is not strictly untrue - persons who are not Christians are traditionally described as ‘heathen’ and there is dissociation between these major faith based congregations.

ACCESS TO BUILDING

[104] The building is the property of the DRC. Sooknunan is the tenant. There is no reason why the landlord cannot reasonably access its premises for purposes of inspection and ensuring the good order of the premises. There is also no reason why the landlord cannot reasonably access its premises for purposes of showing same to potential buyers and allowing such buyers to inspect same from time to time.


[105] Sooknunan denies that the DRC have been denied access.


[106] This dispute cannot be resolved on the papers.


INTERFERENCE WITH SALE

[107] The DRC is quite entitled to sell to the church premises to whomsoever it wishes. Sooknunan’s counsel was quick to concede this in argument. Sooknunan and his congregation may not like the sale to a third party and be particularly enraged that the sale is to a non-Christian entity. But this gives them no right to unlawfully interfere with marketing or conclusion of a sale agreement or implementation of the sale agreement.


[108] Press interviews, Facebook campaign and letters are not unacceptable. Prayers can never be objectionable. A lawful march approved of by the relevant authorities cannot be prevented.


[109] There is nothing before me to suggest that anything has been done to dissuade the purchaser from proceeding with the sale – no approaches to any individual or member of the Muslim community, no threats that they will not be permitted to take occupation or utilise the building. I am unable to find that the purchasers have not been granted access to the premises for any reason. This is an issue in dispute and no details have been given.


[110] Clearly, as pointed out in the founding affidavit, the purchaser needs to be assured it/he can take occupation – that condition is in the hands of the application for eviction of Sooknunan and his congregation.



CONCLUSION

[111] I have not found any incitement to violence or inflammatory language or publication of and concerning the DRC or van Rooyen which would justify an interdict. I have found that certain statements of and concerning the DRC and van Rooyen are injurious and harmful and should be interdicted. I have found that the email addresses of van Rooyen and the attorney for the DRC and van Rooyen should not be disclosed on a public website. I have found that the death threat cannot be attributed to Sooknunan/GDWM or his Facebook page. I have found no interference with access to the building of the sale of the premises.


[112] The issue of costs is not an easy one to decide. On the one hand most of the complaints made by the applicants have not been accepted and the relief sought by them has not been granted. On the other hand, Sooknunan has not behaved with decorum or treated his co-ministers with respect. But the law is not concerned with decorum or respect but with lawfulness or otherwise. I have found Sooknunan’s version as regards Facebook to be unacceptable and therefore untrue. But that was as finding on papers and without further evidence. I have found Sooknunan’s crusade offensive – to the seller and to the purchaser. But the law is not concerned with what I, as an individual, find offensive.


[113] In the result I must find that the applicants have been substantially unsuccessful in their application and the respondent has been substantially successful. Costs must follow that result.


ORDER


[114] An order is made as follows:

    1. Ryan Sooknunan also known as ‘Dr Ryan Sooknunan’ also known as ‘Bishop Ryan Sooknunan’ trading as or operating under the name of ‘Glory Divine World Ministries’ is interdicted and restrained from uttering, stating, writing, publishing or in any other manner or mode suggesting or implying that the Dutch Reformed Church Vergesig or any of its congregants or Hendrik Abel Van Rooyen:

      1. Are betrayers of the Christian faith and their commitment to the Word of Jesus Christ or Jesus Christ;

      2. Are actuated by commercial considerations in their ministry or pastoral work or in their membership of the DRC or their management of the affairs of the DRC, which commercial considerations are opposed to or inimical to their commitment as Christians, to their faith, membership of the DRC, ministry in the DRC;

      3. Are in any way to be compared or likened to Judas Iscariot or any person who is understood to be a betrayer of Christ, a traitor to Christianity or a heretic to the teachings of the Christian faith;

      4. The words ‘Judas Iscariot’ and ‘thirty pieces of silver’ are not again to be utilised in the context of this dispute between the DRC and Sooknunan; and

      5. Are failing or have failed, in any manner whatsoever, to carry out their pastoral duties towards and for any members of their DRC Vergesig or any other DRC congregation.

    2. Ryan Sooknunan also known as ‘Dr Ryan Sooknunan’ also known as ‘Bishop Ryan Sooknunan’ trading as or operating under the name ‘Glory Divine World Ministries’:

      1. Is directed forthwith to remove the email addresses of Hendrik Abel Van Rooyen and Attorney Neels Engelbrecht from the GDWM Facebook page/wall and any information concerning the person or residence of business operations of van Rooyen or Engelbrecht from such public domain; and

      2. To make no further disclosure of any personal or private information of and concerning Hendrik Abel van Rooyen or Attorney Neels Engelbrecht.

    3. Applicants are to pay the respondents taxed party and party costs.



DATED AT JOHANNESBURG THIS 14TH DAY OF MAY 2012


_______________________

K Satchwell



APPEARANCES

APPLICANTS: G Meyer

Instructed by Neels Engelbrecht Attorneys, Johannesburg

RESPONDENT: A Ayaye

Instructed by Itzikowitz Attorneys, Johannesburg

1 GDWM has raised, in its answering affidavit, that its tenancy of the church premises was agreed in April 2001 ‘indefinitely provided I continued preaching and/or propagating the Christian faith from the premises’. It has been argued that this oral agreement, varied a number of times regarding monetary contribution/rental, disentitles the DRC from terminating GDWM’s occupation of the premise, evicting GDWM or selling the premises. This is not an issue to be determined by this court. That is an issue to be decided by a court hearing the eviction application as and when it is reinstated.

2 Van Rooyen states that ‘I have no knowledge of the identify of any of these individuals’.

3 See Phillips and Another v Director of Public Prosecutions 2003 (4) BCLR 357 (CC).

4 1999 (6) BCLR 615 (CC); 1999 (4) SA 469 (CC); See also Phillips supra.

5 Phillips supra.

6 South African Broadcasting Corporation Limited v National Director of Public Prosecutions and Others (CCT58/06) [2006] ZACC 15; 2007 (1) SA 523 (CC); 2007 (2) BCLR 167 (CC); [2006] JOL 18339 (CC) (21 September 2006).

7 See S v Mamabolo (E TV and Others Intervening) 2001 (3) SA 409 (CC)[2001] ZACC 17; ; 2001 (5) BCLR 449 (CC) where it was said ‘With us the right to freedom of expression cannot be said automatically to trump the right to human dignity. The right to dignity is at least as worthy of protection as the right to freedom of expression. How these two rights are to be balanced, in principle and in any particular set of circumstances, is not a question that can or should be addressed here. What is clear though and must be stated, is that freedom of expression does not enjoy superior status in our law.’

8 In Case and Another v Minister of Safety and Security and Others; Curtis v Minister of Safety and Security and Others 1996 (3) SA 617 (CC)[1996] ZACC 7; ; 1996 (5) BCLR 609 (CC) freedom of expression extends ‘even where those views are controversial. The corollary of the freedom of expression and its related rights is tolerance by society of different views. Tolerance, of course, does not require approbation of a particular view. In essence, it requires the acceptance of the public airing of disagreements and the refusal to silence unpopular views.’


9 Largent v Reed and Pena, No 2009-1823.

10 The issue for decision by that court was discovery and privilege in civil litigation.

11 Reference is made in the judgment to, inter alia, employee firing for posting on Facebook while at work, women criminal prosecuted for breaching MySpace terms of use, prosecution of a juvenile who hacked another child’s Facebook account and posted vulgar material therein, lawsuit concerning allegedly defamatory material posted in a Facebook group.

12 Largent v Reed and Pena, No 2009-1823 at 3 - 5.