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IN THE HIGH COURT OF SOUTH AFRICA

(NORTH WEST DIVISION, MAHIKENG)

CASE NO: CIV APP 1/14

In the matter between:

DUTCH REFORMED CHURCH IN AFRICA,

LEHIKA CONGREGATION                                                          APPELLANT

And

UNITING REFORMED CHURCH IN

SOUTHERN AFRICA, LEHIKA

CONGREGATION                                                             1^ST RESPONDENT

BAKWENA BA-GA MOLOPYANE TRIBAL

AUTHORITY                                                                      2^ND RESPONDENT

FULL BENCH CIVIL APPEAL

GURA J, DJAJE AJ, MATLAPENG AJ

JUDGMENT

DJAJE AJ:

A. Introduction

[1]        The Appellant instituted an action for spoliation against the First Respondent in respect of three properties namely two church buildings and a manse or rectory (‘the immovable property’). No relief was claimed against the Second Respondent as it was cited only in the event it had an interest or was the registered owner of the properties in dispute. The trial was held before Gutta J who on 20 June 2013 dismissed the action with costs.  A subsequent application for leave to appeal was also dismissed with costs. Leave to appeal to the Full Bench of this division was thereafter granted by the Supreme Court of Appeal, hence the present appeal.

B. The Historical Background

[2]        In order to fully understand the matter at hand regard must be had to the following historical background which was sketched more fully by Mr Stander on behalf of the first Respondent in his heads of argument as follows. ‘The Dutch Reformed Church denomination is, as its name suggests, a reformed church which has its origins in the Netherlands in the sixteenth and seventeenth centuries. The principal doctrines and the structure of the denomination, which are shared by the Dutch Reformed Church in Africa (DRCA) and the Uniting Reformed Church in Southern Africa (URCSA) are set out in “Die Hersiende Kerkorde van die NG Kerk in Afrika 1996” ( “ the Kerkorde”).

[3]        The Dutch Reformed denomination came to South Africa when Dutch settlers first arrived in the Cape of Good Hope from Holland in the mid-seventeenth century.  Originally it was a single denomination including all races in its membership. It was however divided in 1881 over the practice of serving the sacrament of Holy Communion to mixed race congregations. The divided denomination comprised four separate denominations in a “Kerkverband”.  Each denomination, white, black, coloured and indian, was independent of the others, but all recognised the close ties between them based on their shared history, doctrine and structure. Each denomination also recognised the possibility of the affiliation of new congregations to the denomination if the congregation wishing to affiliate satisfied the necessary requirements.

[4]        Both the DRCA and the URCSA denominations have the same structural hierarchy which may be described as the Presbyterian-Synodal (reformed) system of church government.  It is as follows:

“Various self- existent and autonomous local church congregations are governed by church councils which are composed of elders or presbyters called “leraars” and certain other officials including deacons.  These local congregations represent the local church or body of Jesus Christ wherever the congregation in question is situated.  The moral oversight of each local congregation and its day to day governance and administration is entrusted to its church council.  The church council is also responsible for control over both the movable and immovable property used and/or owned by the local congregation. The various local church congregations are in turn grouped in “Rings” or “Circuits”. Circuits in turn are grouped into Regional Synods.  The Regional Synods meet, not less than once every four years, in a General Synod for specific purposes as set out in the Kerkorde.  The General Synod however is constituted for only as long as it meets and its powers are limited to those contained in the Kerkorde.  In particular, the Regional Synods and the General Synod cannot exercise powers which are reserved to the individual affiliated congregations.”  

[5]        The division described above of the Dutch Reformed Church denominational family along racial lines was a matter of great political debate for many years.  From as far back as 1975, attempts were made to re-unify the four denominations in the Dutch Reformed Church family but difficulties were always encountered.  In July 1991 however, the General Synod of the DRCA (black) denomination adopted a resolution that there should be unification.  A similar stance was adopted by the NGSK (coloured) denomination. From the date of the DRCA General Synod in July 1991 there were further moves within the DRC family of churches towards unification, but it emerged that the DRC (white) denomination delayed in taking a final decision on this aspect. 

[6]        Not wishing to be part of the delay caused by the DRC and following on the July 1991 resolution of the General Synod of the DRCA, a meeting of the General Synods (including Regional synods) of the DRCA and the NGSK denominations was held at Belhar in Cape Town from 14 to 17 April 1994.  On 17 April 1994 a resolution was adopted at the Belhar meeting of the various Regional Synods and their representatives of the DRCA and the NGSK which constituted a “Stigting Sinode”. The resolution reads:

“The NGSK and the DRCA denominations were merged.  Each of the two original denominations was “dissolved” and reconstituted jointly as the new Uniting Reformed Church in Southern Africa (i.e. “the URCSA”).New regional synods and circuits were to be appointed for the URCSA denomination. All assets and liabilities of the two erstwhile DRCA and NGSK denominations were transferred to the URCSA.”

[7]        In due course it was anticipated that, when the DRC (i.e. the white denomination) and the Reformed Church in Africa (i.e. the indian denomination) were also ready, there would be a merger with those denominations as well, to finalise the unification of all four of the segregated denominations into an original single, multiracial denomination.

[8]        At this time (i.e. prior to and at the Belhar meeting of 14 – 17 April 1994), 76 of the local church congregations of the DRCA in the Free State and 26 congregations in the Northern Cape indicated they were not satisfied with the proposed union of the DRCA and NGSK denominations and would not participate in the unification.  They immediately adopted the attitude that the purported union would be invalid as far as they were concerned.  They also voiced their opposition at both local congregational and regional level. The dispute referred to above initiated by the 102 congregations affiliated to the DRCA Free State and the DRCA Phororo with the URCSA denomination escalated.  The DRCA Free State Regional Synod held its own meeting in September 1995 and its member congregations rejected the union.  The URCSA then brought an application in the Free State Provincial Division of the High Court of South Africa seeking a declaratory order, that:

(a)       The DRCA and the NGSK (denominations) had validly united on 14 April 1994 to form the URCSA;

(b)       The DRCA denomination no longer existed; and

(c)        All rights, obligations, property, assets and liabilities of the legal entities of the DRCA were transferred to the legal entities of the URCSA denomination.

[9]        This application was opposed by the DRCA Free State Synod also by the DRCA – Phororo Synod and the 102 DRCA congregations referred to above. The Bloemfontein High Court found in favour of the URCSA, but then the matter went on appeal to the Supreme Court of Appeal in the case of Nederduitse Gereformeerde Kerk in Afrika (OVS) en Ander v Verenigende Gereformeerde Kerk in Suider-Afrika 1999(2) SA 156 (SCA)  (the SCA decision). The decision of the Supreme Court of Appeal reversed the decision of the Free State Provincial Division. 

[10]    The Supreme Court of Appeal held:

(a)       That the Kerkorde provided for a reformed (i.e. presbyterian)   system of church administration;

(b)       That the Kerkorde stipulated that each local congregation                affiliated to the DRCA denomination still remained an autonomous (i.e. independent) legal entity notwithstanding its affiliation. The local congregation therefore, remained owner and controller of its property and funds;

(c)        That in terms of the Kerkorde, the church council of the local congregation had exclusive authority over certain matters, one of which was to deal with the property of the particular congregation on its behalf;

(d)       That the local congregations were not individually represented on  the General Synod which assembly was in any event only temporarily constituted for the duration of its particular meeting. The local congregation therefore, did not in its own right have any meaningful part in the deliberations of the General Synod, which in this instance in 1991 had purported to arrange the transfer of the property rights of the local  congregations the URCSA denomination as a whole. It also could not force affiliation upon local congregations who did not wish to affiliate.

(e)       That the General Synod (i.e. that of the DRCA denomination held in 1991 or any other) could not take any decision beyond those powers conferred upon it by the Kerkorde, however beneficial or otherwise well meant the intention may have been. The General Synod of the DRCA in 1991 could not, therefore, take any decision in conflict with the Kerkorde nor could it amend the Kerkorde to enable the General Synod to achieve a goal which was outside its powers as it had purported to do.

(f)        That URCSA was validly established on 14 April 1994 and as to how that was influenced by the unlawful decision of the General Synod of the DRCA in 1991, was never fully investigated and canvassed before the Supreme Court of Appeal. The NGSK was also not a party to the proceedings before the Supreme Court of Appeal.’

[11]     It can be deduced from this decision of the Supreme Court of Appeal that:

(i)         The DRCA denomination continued to exist and that whilst a new denomination, the URCSA had come into being, the General Synod could not force unwilling congregations who were autonomous in their own right to affiliate to the new denomination – particularly by way of the method followed at the General Synod of April 1991.

(ii)        Further that none of the property rights and obligations of the “legal entities” of the DRCA (i.e. the congregations and the Regional Synods) were transferred to their opposite number in the URCSA. This then meant that any local church congregation may choose to join a different denomination, i.e. affiliate to any church denomination other than the one to which it may be affiliated at the time.

C. The Trial

[12]      The viva voce evidence led by both the Appellant and the Respondent is comprehensively summarised by the court a quo under the heading “Evidence” from paragraph [17] to [45], and need not be repeated herein. It is noteworthy that no attack whatsoever was launched at the summary of the evidence tendered and it can therefore be concluded that what appears in these paragraphs are indeed a true and comprehensive summary of the evidence tendered.

[13]    The court a quo found that the evidence tendered together with the admitted facts which was also accepted, lent support to the following finding:

(a)       The Lehika congregation, as an independent legal persona, possesses its own property and assets, which is in the control and responsibility of its church council.

(b)       The three properties in question were allocated to the DRCA, Lehika congregation prior to 1994, who accordingly acquired lawful occupation of the properties.

(c)        The URCSA denomination came into existence at Belhar in April 1994.

(d)       Pursuant thereto, announcements were made regarding the decision taken at Belhar to the congregation on Sundays at church services.

(e)       The church council had, in terms of the church tradition, practice, the articles and regulations of the church, the jurisdiction to take a decision on behalf of the congregation after the church council consulted with the congregation. There was no objection voiced to the unification by the congregation.

(f)        The Lehika congregation, through its council, took a decision to affiliate to the URCSA and on 28 May 1994 signed a declaration which reads as follows:

“This is to certify that the Church Council of Lehika Dutch Reformed Church in Africa at its general meeting held on the 28^th May 1994 at Montshiwa Dutch Reformed Church in Africa building at 10h00, in accordance with the resolution of the general synod of the Uniting Reformed Church in Southern Africa held in Cape Town on the 14-18 April 1994 resolved on behalf of the said congregation and its members on the following;

To stop with immediate effect existing and functioning under the name of           the old defunct N.G. Kerk in Africa, and shall henceforth exist and function in accordance with the resolution of the General Synod, as the Uniting Reformed Church in Southern Africa, Lehika Congregation.

 To transfer all assets and liabilities and everything belonging to N.G. Kerk

 in Afrika, Lehika Congregation to the Uniting Reformed Church in

 Southern Africa, Lehika Congregation.”

(g)       A notice was then sent on the URCSA letterhead dated 20 June 1994 to the Phororo Synod informing about the resolution by both the church council and the congregation to affiliate to URCSA.

[14]      The court a quo’s factual findings are encapsulated in paragraph [91] to [104] of its main judgment. For the sake of completeness same is repeated hereunder.

“[91]     Mr Dinake, who was the secretary of the Phororo regional synod and a member of the church council, failed to provide a satisfactory explanation why he appended his signature to the resolution taken by the church council on 28 May 1994.  At times under cross-examination, he was evasive.  His explanation that they were under the impression that if a decision is taken by synod, then they had no choice but to sign, is improbable when considering that he was part of the delegation sent by the Phororo regional synod, in his capacity as secretary and there was a decision taken by the synod that they should report the unification to the congregation.  Furthermore, at the church council meeting of the 28 May 1994, he at no stage voiced any objection or concern that the congregation had not been informed.

[92]      The resolution was signed by, amongst others, Messrs Hlabahlaba, Mmolawa and Dinake.  Members of the church council would not have appended their signatures to the resolution if they themselves were not in favour of the resolution or if members of the congregation had expressed opposition to the decision.  Further, it is apparent from the minutes of the church council meeting that it is only at the meeting of 10 September 1994, where for the first time dissent to the affiliation was expressed.

[93]      I accept the first defendant’s evidence that on a few Sundays before 28 May 1994, announcements were made at church services, and the congregation at no stage expressed any reservation or resistance to the unification.  In fact, the evidence tendered is that the congregants were overjoyed, elated and ululating.  Hence, on 28 May 1994, the church council for the Lehika adopted the resolution to stop existing and functioning under the NGKA and to exist and function as the URCSA.  Accordingly, the Lehika congregation consented to the unification.

[94]      Reverend Moremedi corroborated the witnesses for the first defendant in the following material respects:

94.1    that the church is governed by the church council and that when the church council takes a decision and communicates the decision to the congregation, there is no vote on the matter;

94.2    that Exhibit C, the declaration, was signed by members of the church council;

94.3    that Exhibit D was binding on the NGKA.

[95]      A faction that did not accept the unification only emerged some five months later.  This faction initially opposed the appointment of Reverend Phara.  It is apparent that the problems with the appointment of Reverend Phara precede the unification.  This Court cannot close its eyes to the cracks that appeared within the NGKA, even before the merger occurred and which were exacerbated after the merger.  From the time of Reverend Phara’s appointment, he was undermined by, amongst others, Reverend Sebolai, Messrs Hlabahlaba, Mmolawa and Dinake.

[96]      At a council meeting of 10 September 1994, the church council of the URCSA resolved, inter alia, that Reverend Phara remain the duly appointed minister of the congregation of URCSA, Lehika.  At that meeting, Reverend Sebolai expressed that he was still a member and minister of the NGKA and staged a walk-out, followed by other members.

[97]      Mr Qhobosheane was cross-examined on the content of different minutes where there appeared to be a discrepancy between the original minute book, Exhibit E and Exhibit X. The majority of the challenges relate to minor discrepancies.  It is the minutes of 28 May 1994, Exhibit X⁸, which according to Mr Monare is the crux of the matter and which appears not to be consistent with the original minutes, Exhibit X⁸, in so far as the decision taken by the church council to affiliate.  Mr Monare put it to Mr Qhobosheane that the original minute book contains a correction which does not appear in Exhibit X⁸.

[98]      Mr Monare’s contention that Mr Qhobosheane doctored the minutes is a bald submission, without evidence to support it.  Not even Mr Dinake’s evidence lend support to this contention.  I accept Mr Qhobosheane’s evidence that the ‘issue’ to discuss at the next meeting was the logo and that the church council resolved to sign the declaration on 28 May 1994.  This is supported by the fact that the church council did indeed sign the declaration on 28 May 1994.  Further support is the minutes of the next meeting, dated 18 June 1994, which was already written on the URCSA letterhead, and one of the topics on the agenda was the logo and not the declaration.  Further, the evidence of Mr Qhobosheane was corroborated by Mr Leburu concerning the events that transpired at the meeting of the 28 May 1994 and the signing of the declaration.

[99]      Although it is undesirable that the correction which was pasted on the original minutes was not initialed, I accept Mr Qhobosheane’s testimony that the second posting is a correct reflection of what transpired at the meeting of the 28 May 1994 and that the correction itself did not have to be signed, but the minutes with the correction had to be signed by either himself as secretary or the chairperson.  Furthermore, Mr Dinake under cross-examination, did not object to the admission of Exhibit X⁸.

[100]    This Court, as stated supra, is not called upon to make an enquiry into the validity of the minutes of the meeting of 28 May 1994 or the validity of the declaration.  The enquiry is purely factual and the facts lend support to the fact that the church council on 28 May 1994, signed the declaration.

[101]    From the evidence of Reverend Betha, Mr Qhobosheane, Mr Leburu and Mrs Phara, it is apparent that a decision to affiliate was taken on 28 May 1994 by the leadership, with the full concurrence of the members of the Lehika congregation.  Hence, the Lehika congregation, which was originally affiliated to the NGKA, affiliated to the URCSA and as at 28 May 1994, the URCSA was in de facto possession of the properties.  See Le Riche v PSP Properties CC 2005 (3) SA 189 (C) at 193G.

[102]    There is no evidence that the plaintiff was dispossessed.  Although the plaintiff tendered evidence and challenged the process that unfolded when the Lehika congregation affiliated to the URCSA, it failed to produce any evidence that following the unification of the Lehika congregation to the URCSA, they were dispossessed.  The evidence before this Court is that some five months after the unification, certain members of the congregation staged a walk-out and informed the congregation that they do not recognise Reverend Phara as the reverend, that, they are still the NGKA and that Reverend Sebolai is their reverend.  Furthermore, as stated supra, the plaintiff only issued summons five years later, alleging to be spoliated.

[103]    The date that the plaintiff relies on for spoliation alternatively unlawful occupation is significantly 14 April 1994, and not 28 May 1994, when the declaration was signed.  Hence, as at 14 April 1994, there was no spoliation or unlawful occupation of the properties.

[104]    A party can justify dispossession by showing that the other party has genuinely and freely consented to give up his possession.  I am satisfied that the plaintiff, by its conduct, consented to the unification and accordingly consented to the fact that the URCSA is in possession of the properties.”

The court a quo found that the decision of the Lehika Congregation to affiliate to the URCSA denomination was properly taken with the full concurrence of its members and that it was a valid decision.

D.   Leave to Appeal and Appeal.

[15]     In her judgment on the application for leave to appeal, Gutta J reiterated her comments in the main judgment in paragraph [89] and [101] stating:

“[89]    This Court cannot look at the minutes of the church council meeting of 28 May 1994 and Exhibit C, the Declaration, flowing from the decision, in isolation.  As the enquiry is purely a factual one, it is necessary to consider the chronology and the evidence in totality”

and

“[101]From the evidence of Reverend Betha, Mr Qhobosheane, Mr Luburu and Mrs Phara, it is apparent that a decision to affiliate was taken on 28 May 1994 by the Leadership, with the full concurrence of the members of the Lehika congregation.  Hence, the Lehika congregation, which was originally affiliated to the NGKA (DRCA), affiliated to the URCSA and as at 28 May 1994, the URCSA (affiliated congregation), was in de facto possession of the properties. 

In my view, these factual findings cannot be faulted.

[16]    The issue before this court is whether the court a quo erred in finding that as at 14 April 1994 there was no spoliation or unlawful occupation of the properties and that the Lehika congregation which was originally affiliated to the DRCA, affiliated to the URCSA and whether as at 28 May 1994 the URCSA was in de facto possession of the properties.

[17]   In the present appeal, the Appellant contended that the issue to be decided is one of law rather than fact. In this regard the Appellant focused on the wording alone of the Declaration of Intent and contests its validity. This is done to the exclusion of all the facts and circumstances both before and after signing of the Declaration of Intent on 28 May 1994.  Furthermore, the Appellant contended that the court a quo erred in finding that the date the Appellant relies on for spoliation alternatively unlawful occupation is significantly 14 April 1994 and not 28 May 1994 when the declaration was signed. As a result at 14 April 1994 there was no spoliation or unlawful occupation of the properties. Further that the court a quo erred in finding that the Appellant by its conduct consented to the unification and accordingly consented to the fact that the Uniting Reformed Church in Southern Africa is in possession of the properties.  This finding was based on the evidence that the Church Council on 28 May 1994 signed the declaration. As a result the Appellant argued that the court a quo was not dealing with a factual issue but a legal issue involving the interpretation of a document and the court a quo was not at liberty to resort to extrinsic evidence to interpret what the meaning of the resolution of 28 May 1994 was because it is unambiguous.

[18]      The argument on behalf of the Appellant is further that the assets of the

Dutch Reformed Church in Africa could not have been validly transferred to the Respondent by virtue of the resolution of 28 May 1994 when it is properly construed. The Appellant referred to the case of Coopers and Lybrand v Bryant [1995] ZASCA 64; 1995 (3) SA 761 (A) at 767E – 768E on the approach adopted by our courts in construing written instruments.  On this aspect of interpretation the Appellant’s main contention is that the resolution of the Church Council on 28 May 1994 was invalid because it was premised on the resolution of the General Synod of 14-18 April 1994 which was declared invalid by the Supreme Court of Appeal on 27 November 1998 in the case of Nederduitse Gereformeerde Kerk in Afrika (OVS) en Ander v Verenigende Gereformeerde Kerk in Suider Afrika [1998] ZASCA 111; 1999 (2) SA 156 (SCA).  

[19]      Further, the contents of the Church Council’s resolution of 28 May 1994 make it abundantly clear that the Church Council was rubber stamping the resolution of the General Synod made at Belhar in Cape Town from 14-18 April 1994. In addition to that, the usage of the word “old defunct” in the Church Council resolution of 28 May 1994 buttresses the fact that the Church Council was labouring under a wrong notion that the DRCA had ceased to exist when the said resolution was taken, whereas in fact that was not the case.

[20]     The Appellant contended that the decision of the Supreme Court of Appeal nullified the coming into being of the URCSA denomination in addition to its actual findings in respect of the General Synod acting outside the ambit of its powers in terms of the Kerkorde.  The Appellant contended therefore that the URCSA was never formed in April 1994 and the “Declaration of Intent” signed “in accordance with the resolution of the General Synod” was merely a “rubber stamping” exercise performed by the Lehika church council.

[21] The Respondent on the other hand submitted that the Appellant’s contention that the resolution was a mere rubber stamping exercise is in direct contradiction of the finding in the decision of the Supreme Court of Appeal referred to above, which stated that a General Synod could not force congregations into a merger or affiliation against their wishes.  Further, that the Appellant’s attack on the validity of the resolution was properly rejected by Gutta J, in her judgment refusing leave to appeal.

[22]      The Respondent further submitted that the approach and conclusion contended by the Appellant is flawed in that:

(i)       The Appellant admits that the URCSA denomination exists;  

(ii)        The Appellant itself describes the Respondent as being a part of URCSA;

(iii)       The Appellant overlooks the method of interpretation approved in the decision of Supreme Court of Appeal – the very case on which the Appellant relies.

(iv)       In addition to the above however, the contention that the Court a quo should only have applied its mind to the ‘literal grammatical meaning  of the phrases’ of  the Declaration of Intent and only applied the legal principles applicable to the interpretation of written contracts to that declaration and that declaration alone, is untenable for the following reasons:

(a)       The resolution of 28 May 1994 is not a contract and cannot be described as such by any stretch of the imagination – although it is addressed “To Whom it May Concern”;

(b)       The resolution of 28 May 1994 was not and has never been suggested by anyone to be “a complete memorial of a jural act” as is now suggested by the Appellant; and

(c)        The contention overlooks the content of the very approach set out in Coopers and Lybrand v Bryant [1995] ZASCA 64; 1995 (3) SA 761 (A) at         768A which requires a Court after ascertaining the literal           meaning of a word to have regard:

(i)         To the context in which the word or phrase is used with its interrelation to the contract as a whole, including the nature and purpose of the contract;

(ii)        To the background circumstances which explain the genesis and purpose of the contract, i.e. to matters probably present to the minds of the parties when they contracted;

(iii)       To apply extrinsic evidence regarding the surrounding circumstances when the language of the document is on the face of it ambiguous, by considering previous negotiations and correspondence between the parties, subsequent conduct of the parties showing the sense in which they acted on the document, save direct evidence on their own intentions.

(d)       Lastly the contention that the resolution was a mere rubber stamping exercise is in direct contradiction of the finding in the decision of the Supreme Court of Appeal that a General Synod could not force congregations into a merger or affiliation against their wishes. 

[23]      As far as the issue of interpretation is concerned, the following was stated in the case of Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) at par [17] and [18]:

          “[17]…  In view of this it is necessary to say something about the current state of  

             our law in regard to the interpretation of statutes and statutory instruments and

             documents generally.

[18] Over the last century there have been significant developments in the law relating to the interpretation of documents, both in this country and in others that follow similar rules to our own. It is unnecessary to add unduly to the burden of annotations by trawling through the case law on the construction of documents in order to trace those developments. The relevant authorities are collected and summarised in Bastian Financial Services (Pty) Ltd v General Hendrik Schoeman Primary School. The present state of the law can be expressed as follows: Interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production. Where more than one meaning is possible each possibility must be weighed in the light of all these factors. The process is objective, not subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document. Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or businesslike for the words actually used. To do so in regard to a statute or statutory instrument is to cross the divide between interpretation and legislation; in a contractual context it is to make a contract for the parties other than the one they in fact made. The 'inevitable point of departure is the language of the provision itself',read in context and having regard to the purpose of the provision and the background to the preparation and production of the document.”

[24]      Applying the abovementioned dictum to the Declaration of Intent of 28 May 1994, the language and context in which it was written makes the intention of the Church Council apparent that a decision was being taken. This was a resolution by the Church Council on behalf of the congregation. The literal meaning that can be attached to the declaration is that this was not a confirmation of the invalid decision by the General Synod. The Church Council held a meeting and resolved. The clear purpose of the said meeting was for the congregation to voice their intent to either align or disassociate with the unification of URCSA.  At the time of the meeting of 28 May 1994 there was already a decision by the General Synod , however the Church Council with the concurrence of the congregation had a choice to make. The meeting of 28 May 1994 cannot be presumed to be a rubber stamp as the congregation had the choice to voice their dissent to the decision which did not happen. The literal meaning of the word “resolved” used in the declaration can be interpreted to mean that there was a discussion and thereafter a resolution taken whether to align to unification or not. There is no basis to sustain the contention that the resolution of the Church Council was to implement the decision of the General Synod.

[25]      On 28 May 1994 the Lehika congregation was acting in accordance with the provision of the Kerkorde in the Presbyterian system and taking the decision affecting its ownership of their assets. The decision being that they chose to affiliate with the URCSA denomination. The URCSA denomination existed at Belhar in April 1994. The DRCA denomination also exists separately from the URCSA. The Lehika congregation took a decision to stop existing and functioning under DRCA and henceforth exist and function as URCSA. At the time of the announcements there was no dissent from any member of the congregation and subsequent thereto a notice was sent to the Phororo Synod on the letterhead of UCRSA informing it of the resolution taken. It was only in September 1994(some five (5) months later) that a dissent was shown by some members of the congregation. However, at that point in time the resolution was already taken and binding.

[26]      The Appellant’s contention that the Church Council was labouring under the wrong notion that at the time of the declaration the DRCA ceased to exist cannot be sustained. There was no objection from the congregation about the affiliation. This therefore meant that all the assets and liabilities and everything belonging to the Dutch Reformed Church in Africa, Lehika Congregation were transferred to the Uniting Reformed Church in Southern Africa, Lehika Congregation.  The URCSA became the lawful occupiers of the properties previously owned by DRCA and the Appellant’s right to occupy the premises ceased when the Lehika Congregation affiliated to URCSA. The findings of the court a quo in this regard cannot be faulted.

E. Conclusion

[27]      In my view the court a quo’s finding that there is no spoliation and that the First Respondent is in lawful occupation cannot be faulted. The decision by the Lehika Congregation on 28 May 1994 agreeing to the affiliation to URCSA, placed the First Respondent in lawful possession of the three properties initially owned by the DRCA Lehika Congregation. As far as costs are concerned, there is no plausible reason why costs should not follow the event. The Appellant being unsuccessful should pay the costs of the appeal.

F.  Order

[28]      Consequently, the following order is made:

1. The appeal is dismissed with costs.

T J DJAJE

ACTING JUDGE OF THE HIGH COURT

I agree

SAMKELO GURA

JUDGE OF THE HIGH COURT

I agree

D I MATLAPENG 

ACTING JUDGE OF THE HIGH COURT

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