IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)
Case No.: 8100/2010

In the matter between:

and

JUDGMENT DELIVERED WEDNESDAY 16 MARCH 2011 
SALDANHA, J

[1.] The first applicant, the Presbyterian Church of Africa (the Church) established more than a century ago in 1898 has in recent years been the subject of a number of court applications as a result of intractable internal divisions. This application is but one of such matters and it appears that because of the ongoing strife will unfortunately not be the last. The governance of the Church is codified in its written Constitution and which provides for a hierarchy of elders, ministers, Moderators and congregants and also deals with disciplinary measures and various other internal matters. The central issue in this application is the determination of who of the contending parties to the dispute has the legitimate authority to represent the Church and who may use and control its property. This also appears in part to have been the subject of other and ongoing litigation within the Church.
[2.] The subject matter over which the application was brought is the immovable property of the Church, its buildings and a manse situated at the corner of NY 50 and NY 1 Gugulethu, Cape Town.

[8.]    The respondent in opposing the relief, filed a counter application in which
he sought the following relief;

4. That the costs of the counter-application be paid to Reverend Mongezi Amos Mpulu."

Background to the application.

"1. First and Second Respondents are interdicted and restrained from conducting and/or attending any meetings under the name, description and auspices of the Presbyterian Church of Africa within the area of jurisdiction of the above honourable court;

3. The Second Respondent is interdicted and restrained from exercising its powers and performing the duties of the Stated Clerk of the Presbyterian Church of Africa;"
4. ... (relating to the cost order against the respondent". (Case no: 1379/2004)

September 2009 between Mpulu and the Church as the applicants against Matomela, Mokabo and others where the following interim relief was granted;
"1. That, in order to give effect to the order granted by agreement between the parties on 28® September 2009 by Pickering J, the Sheriff, assisted by members of the South African Police Service, be and are hereby directed to take all steps necessary to clear any venue or place utilized for any meeting conducted by the Respondents or any person under their auspices under the name of the Second Applicant (The Presbyterian Church of Africa) or any other entity of a similar name purporting to be the Second Respondent usurping the constitution of the Second Applicant as its own, and to ensure that such venues remain vacated, and that no such meeting proceeds until such time as the main application is finalized.
2.      That the costs of this application be and is hereby reserved for determination in the main application." 
It appeared though that this order was not made final as the application had subsequently been struck from the roll. There is also no indication whether the main application was eventually determined.

The Gugulethu dispute.
[12.] In April 2009, the duly authorized minister in charge of the Gugulethu District under which the immovable property fell was a Reverend Xolani Kaiser

[14.] Notwithstanding the court order, the schism within the church remained. Threats and acts of violence ensued between the members of the Church and the police had to be called in on various occasions to prevent violence from erupting. Discussions were also held between the police, community leaders and the elders of the Church in an unsuccessful attempt at to resolve the situation. Mpulu claimed that there was existed a real possibility that the property of the Church would have been destroyed should Mlonyeni have continued conducting services at the Church. It was therefore agreed between the parties that in order to protect the property of the Church and to calm the parishioners that the buildings of the Church would be locked and the keys handed to the Station Commander of the Gugulethu police station for safekeeping. It was also decided that in order to calm the situation that Mlonyeni would conduct church services at a neutral venue and so too, would the supporters of Ntliziywana. It was envisaged that this arrangement would have ensued until the determination of the application in August 2010.

[17.] Since October 2009 Mlonyeni and Ntliziywana's followers had conducted services peacefully at separate venues which had dissipated the risk of violence between them. It also appeared that the respondent had withdrawn his application under case no: 7646/10. Mpulu claimed that he had instructed his attorneys to approach the respondent's attorneys with a request to amicably resolve the present dispute but that the respondent was not prepared to entertain any form of discussion and he, Mpulu, therefore feared for the real possibility of violence breaking out. The parties had subsequently agreed to the interim relief. The applicants now seek a final order.

The respondent's version.

Ngoza had bought a Section 21, shelf company named Biz Africa 1185, with the specific intention of breaking away from the Church. He claimed that the name of the company Biz Africa was subsequently changed to "Presbyterian Church of Africa" and that Mpulu was one of its founding directors.

2.1.1. wrongful, of no force and legal effect; and
2.1.2. be set aside."

2. The respondents are ordered to pay the costs of the application jointly and severely the one paying the other to be absolved, including the cost occasioned by the employment of two counsel."

[23.] It appears from the judgment that the court had found that no deliberate intention on the part of Nocanda had been proved to constitute contempt of court. The court nonetheless also made an order of costs against Nocanda in respect of the contempt of court application.

[26.] The respondent also contended that the order made by Allie J (referred to above) was merely a "Draft Order" and should carry no weight before this court. He also disputed that during July 2009 the Reverend Qalase was the Moderator of the Cape Presbytery and claimed that he (the respondent) was its lawful Moderator. Qalase he claimed was also a member of the Section 21 company and could therefore not be a Moderator of the Church.
[27.] The respondent also disputed that there was any likelihood of violence within the Church and denied that there were any congregants who were upset or angered and claimed that it was rather the members of the Section 21 company that had caused the disruption within the Church.

[28.] In opposing the counter application, Mpulu on behalf of the applicants disputed that the respondent had been appointed as a Moderator or that he was lawfully in charge of any of the Church's property. He further claimed that in as far as the respondent purported to have obtained authority from certificates and resolutions signed by Faleni that Faleni had no authority nor any right to represent the Church. Faleni, he repeated, had been the subject of numerous court applications in other jurisdictions in which he had been interdicted and restrained from exercising the powers and performing the duties of Moderator of the Church.

[30.] If anything, the list of the various court applications in which the Church was involved in reflected the extent of the disputes between it and its officials.

[32.] With regard to the applications brought in the Bisho High Court (under case number 1691/09 and 1757/09) against the Nocanda and the Section 21 company, Mpulu pointed out that Nhlangulela J in his judgment had stated the following;

Mpulu claimed therefore that there was no order by Nhlangulela J concerning the proceedings conducted at the meeting and moreover neither did the applicants (in that matter) seek such relief.    Mpulu further contended that in the circumstances it was unclear on what basis this court was being asked to assist the respondent in the relief it sought in paragraph 1 of its counter claim. He further claimed that the respondent had not set out any factual basis justifying any such relief.

[33] Mpulu also emphasized that the respondent had incorrectly claimed that he, (Mpulu) had been elected at the General Meeting held in 2009. He referred to the founding affidavit where he had stated that he was elected as Moderator during 2008, a year before the meeting of September 2009 and that he had only been inducted into the position of Moderator in the 2009 meeting.

[34.] With regard to the ex-communication of the respondent Mpulu referred to the letter sent to the respondent in which he had been informed of his excommunication and that three letters had been sent to him where he had been invited to attend meetings which he had simply ignored. Mpulu disputed that there were any other procedures which the Church was required to have complied with in regard to the respondent's ex-communication.

The requisites for the interdictory relief.
[36.] The applicants are required to satisfy three requirements for a final interdict. They have to establish a clear right, an injury actually committed or reasonably apprehended and the absence of any other ordinary remedy. Mr. Torrington argued that the crisp issue to be decided by the court was which of the parties, could lawfully represent the Church. He submitted that such a finding would determine which party had the clear right to possess the keys of the Church.

[39.] Mpulu, in opposing the relief sought in the counter application referred to the various applications made in various courts which included both interim and final orders against both Matomela and Faleni where they were interdicted and restrained from representing the Church. The respondent does not challenge or correct any of these allegations by filing a replying affidavit to the counter application, The respondent for his part had clearly associated himself with the Matomela group of which Faleni was part of. There is no claim by the respondent that at anytime subsequent to the granting of the orders that either Matomela or Faleni had obtained legitimate authority to represent the Church or the right to exercise the power of Moderator.

The counter application.
[40.] The respondent claimed that the meeting of the 2009 111 General Assembly held in Port Elizabeth had been declared unlawful and of no force and effect by the order of the Bisho High court. In this regard reliance was placed specifically on the interim order granted on the 21 September 2009 by Luthuli AJ.

I am therefore of the view that there is no basis for the relief sought in paragraph 1 of the counter application.

[44.] Mpulu had also made it clear in the founding affidavit that he had been elected as the Moderator of the Church in a General Assembly held during 2008 but that he had only been inducted into that position at the meeting of the General Assembly in September 2009. In addition to what has already been stated there is no basis to set aside the election of Mpulu which took place at a meeting a year earlier to that claimed by respondent. Insofar as Mpulu had been inducted at the meeting of the General Assembly of 2009 there is also no basis for this court to set aside such induction and moreover since neither Nocanda nor Mpulu were joined as parties to the counter application.

"(2.1) That the respondent or any person acting for or on his behalf or on his instruction or on his followers be hereby interdicted and restrained from interfering, disturbing and/or disrupting the General Assembly Meeting of the second applicant to be held at Badibanise Locality. Mt Frere.
2.2)	That the respondent or any person acting for or on his behalf or on any of his instructions or his follower be and is hereby interdicted from misleading the Sheriff and members of the South African Police Services about Annexure "B.J.D.6" to disrupt the General Assembly Meeting aforementioned.
3.)	That the respondent pay the cost in the event of opposition
(4.)    That 2.1 and 2.2 shall operate as an interim relief pending finalization 
(5.)    Further alternative relief. *

The injury.

[50.] The respondent denied that there was a threat of violence and the risk of damage to the Church's property. It is clear from Mpulu's affidavit that it was necessary for the police to have been approached because of the threats of violence and that the keys of the property had to be handed to the police for safekeeping. Furthermore an application had to be brought in order to stop Ntliziywana and his followers from interfering with the affairs of the applicant. It is apparent that there existed the real risk of violence and or damage to the property of the Church. I am of the view that the applicants had in the circumstances no other option but to bring the application for relief I am however, not persuaded that in the circumstances of the dispute, that a punitive order of costs on an attorney client scale should be visited on the respondent in his personal capacity.

(1) That respondent and those authorized by him be interdicted and restrained from utilizing the Immovable Property of the Church inclusive of the Church buildings and the Manse situated at corner of NY 50 and NY1 Gugulethu ('the property') for any purposes whatsoever.
(2) The keys of the Church which are presently being held by the Sheriff in terms of the Interim Order granted on Friday 13 April 2010 be handed over to the applicants.
(3) The costs of this application and the counter application be paid by the respondent in his personal capacity.