Judge Smith Judgement

JUDGMENT

SMITH J:

[1] The first applicant initially brought an urgent application for an interdict restraining the second respondent from holding a general meeting to elect new trustees, and other ancillary relief. He, however, subsequently abandoned the relief sought in his notice of motion after the second applicant had joined the proceedings. He has since effectively made common cause with the relief sought by the second applicant.

[2] The second applicant seeks an order directing the first respondent to hold a general meeting where the congregation would vote on whether or not the second respondent should continue as its pastor. He also seeks directives regarding the procedure to be adopted at that meeting, publication of the notice

thereof, the appointment of a chairperson, and in respect of members who would be eligible to attend and vote at the meeting.

The Parties

[3] Although the memberships of the applicants are now disputed, it is common cause that at least until January 2013, they were both active members of the church. The first applicant was a trustee, the treasurer of the church, and together with the second respondent, joint signatory of the church banking accounts. The second applicant served as a deacon. After a fracas had ensued between members at a church meeting on 13 January 2013, the applicants have not been attending church services. The respondents contend that they have thus voluntarily terminated their memberships in terms of the first respondent's constitution.

[4] The first respondent is a voluntary association operating as a church along the teachings of one Reverend William Branham. It adopted a constitution during 1978, and although there initially was a dispute regarding the validity of that constitution, it is now common cause that that is the only valid and binding constitution. The second respondent has been the pastor of the church for the past thirty years.

[5] The following issues now fall for decision:

(a) the locus standi of the applicants;

(b) whether the applicants are entitled to compel the first respondent to hold a general meeting where the conduct of the first respondent would be discussed and appropriate resolutions adopted.

Locus standi

[6] The respondents have contended that the applicants lack locus standi because they have unilaterally decided to leave the church, and have accordingly split into a separate church. They assert that the applicants have failed to attend services regularly and to participate in the activities of the church as required of members in terms of its constitution.

[7] I am of the view that this is a self-serving argument and has no merit. It is clear from the papers that the applicants did not voluntarily withdraw from the activities of the first respondent, but that they were compelled by sheer force of circumstances, including the real possibility of violence if they (and others who shared their views) attended services together with those members who sided with the second respondent. They have throughout asserted their memberships of the first respondent, and the very fact that they have brought these proceedings is incompatible with an inference that they intended to terminate their memberships. Furthermore, there appears to be evidence to the effect that the second respondent was at least partly to be blamed for creating the circumstances which prevented the applicants from exercising their rights as members of the first respondent. The contention that they have, under these circumstances, abandoned their membership is unfair and untenable.

Applicants entitlement to call a meeting

[8] It is common cause that the second respondent has been charged with transgression of taxation laws in respect of his alleged mismanagement of the first respondent's finances. That criminal case is still pending. The applicants assert that as members of first respondent they have the right to call a general meeting of the first respondent where the conduct of the second respondent

would be discussed and appropriate resolutions adopted by the members. They contend that only those who were bona fide members during January 2013 should be allowed to vote, and in this regard the second applicant has annexed a list of members to his notice of motion.

[9] The respondents contend that the issue of whether or not the second respondent is fit to continue as pastor of the first respondent is a doctrinal issue and on the basis of the doctrine of entanglement the court should refuse to become involved in this regard they relied on the following dictum by Ponnan JA in Ecclesia De Lange v The Presiding Bishop of the Methodist Church of Southern Africa (726/13) 2014 ZASCA 151 (29 September 2014), at paragraph 39:

"As the main dispute in the instant matter concerns the internal rules adopted by the church, such a dispute, as far as is possible, should be left to the church to be determined domestically and without inference from a court. A court should only become involved in the dispute of this kind where is strictly necessary for it to do so. Even then it should refrain from determining doctrinal issues in order to avoid entanglement. It would thus seem that a proper respect for freedom of religion precludes our courts from pronouncing on matters of religious doctrine which falls within the exclusive realm of the church."

[10] The first respondent's constitution does not provide guidelines in respect of the disciplinary procedures applicable to members or its pastor. According to the respondents the teachings of the Reverend Branham would therefore determine the applicable disciplinary procedure. They contend that such a consideration of the Reverend's teachings would require the court to become involved in doctrinal matters, which in terms of the doctrine of entanglement it should be astute to avoid.

[11] It is indeed so that the first respondent's constitution is unfortunately a very rudimentary document which provides no guidelines in respect of disciplinary matters. It merely enjoins the second respondent to:

"Minister the word of God along with guidelines of the ministry and teaching of Reverend William Branham"

[12] It does appear, however, that the Reverend Branham anticipated disputes within congregations regarding alleged misconduct by a pastor, and advocated the following procedure for dealing with such allegations:

"If you want me to move the pastor, tell me why. Has he done anything?

Yes, we caught him drunk. Or, we caught him doing this, or doing something wasn't right.

Have you got three witnesses of it?

Yes we have.

Them witnesses must first be tried. Don't receive an accusation against an elder 'less it be of two or three witnesses, let them first be proved; against an elder. Then you have to swear to it, that they saw it, and prove it, they saw it.

And then, if you did, then that sin is rebuked openly, that, it's wrong. Then say Congregation, do you want to change your pastor?

And if the congregation voted, Forgive him, and let him go on yet, that's the way it has to stand. See? That isn't that fair enough the way to run a church? That's what the Bible said. We have no bishops and overseers, and boards and so forth, moves this one in and got a lot of authority. There's nobody got authority here but the Holy Ghost. That's right He does the moving. And we take him as the majority of the people, the way the people go."

[13] The applicants contend that the first respondent's constitution should be read so as to incorporate these guidelines in respect of disciplinary proceedings

against the pastor. They contend that it provides a procedurally fair manner of resolving any allegations of misconduct against the pastor, that it is merely procedural in nature, and its interpretation and implementation accordingly do not require any pronouncements on doctrinal issues.

[14] In my view, even though the first respondent's constitution is silent on the rights of members to call a meeting where, inter alia, allegations of misconduct against the pastor would be discussed, this right is so central to the essence of membership, that it must be considered to be an inevitable corollary of membership. In Cronje v Stemmet 2010 (JOL) 25531 (WCC), at page 16, the court held that:

\\ in the absence of any express provision and the constitution of a voluntary association, whether a universitas or not, it can only be fair, and in accordance with the law, that the right of members to recall an elected executive committee a properly constituted annual general meeting, must be applied. To view it any differently would be untenable and can produce absurd results."

[15] In this case also, to hold that members are not entitled to insist upon a general meeting to discuss allegations of misconduct against their pastor would mean that the pastor would have free rein to rule the affairs of the church, and be virtually exempt from any form of discipline. The papers filed in this matter are replete with allegations of serious misconduct by the second respondent. While I am not called upon to pronounce on the validity or otherwise of those allegations, it is common cause that the second respondent faces serious criminal charges regarding his management of the first respondent's finances. It

is in my view accordingly absurd to suggest under these circumstances that members do not have the right to insist that the alleged misconduct be discussed at a duly constituted meeting of the church.

[16] Messrs Dyke and Crompton, appearing for the first and second applicants respectively, correctly submitted that the teachings of the Reverend Branham, which in terms of the first respondent's constitution must guide all its activities, prescribe a fair procedure for disciplinary proceedings against a pastor. I am also of the view that the facts of Ecclessia De Lange (supra) are distinguishable. While that matter clearly required pronouncement on internal rules of the church (and thus entanglement with doctrinal issues), in this matter the court is required only to rule on the constitutional entitlement of members to call meetings. In addition, I am not called upon to pronounce on the fitness, or otherwise, of the second respondent to continue as pastor of the first respondent. There is therefore no danger that the court will become involved in doctrinal issues.

[17] Regarding the applicant's contention that only those members whose names appear on the list annexed to the second applicant's notice of motion should be allowed to attend and vote at the meeting, I am not convinced that such an order will be appropriate. First, there is no way of telling whether all those persons are still bona fide members of the church, and second, it would be inappropriate to exclude any other bona fide member who had joined the church after the institution of these proceedings. It is the church as presently constituted that has the power to decide on the fate of its pastor. It would thus be untenable to exclude bona fide members from attending or voting at the said meeting.

[18] The order sought by the applicants also envisages comprehensive directives to be given by the court regarding: the chairperson of the meeting; the manner of voting; the date of the meeting; and attendance of the SAPS in order to avoid violence. I am not convinced that such a prescriptive order is competent or that it will necessarily achieve the intended results. I am of the view that it will suffice under the circumstances for the first respondent to call a general meeting within a prescribed period, and that the existing office bearers of the first respondent must be allowed to arrange and conduct the meeting in accordance with its procedures.

[19] Regarding the issue of costs, the applicants have conceded that even though they may arguably have been substantially successful, it is in the best interests of all the parties that there should be no order as to costs.

[20] In the result the following order issues:

(a) The first respondent must convene, within a period of 30 days from the date of this order, a general meeting of its members to allow the applicants to present allegations of misconduct by the second respondent;

(b) The bona fide members of the first respondent attending the meeting must be called upon to vote on whether or not disciplinary action should be instituted against the second respondent and if so, the procedure to be adopted in respect thereof.

Appearances:

Counsel for 1st Applicant

Attorneys for 1st Applicant

Advocate Dyke

Brown Braude and Vlok Inc.

317 Cape Road Newton Park PORT ELIZABETH

Ref: C Jessop/ydm/Christi

IN THE HIGH COURT OF SOUTH AFRICA

QUINTIN PETERS ISAACS N. 0. JOHN LLEWELLYN ADRIAANSE

ENDTIME LIG HT CHRISTIAN ASSOCIATION (PE TABERNACLE)

JUDGMENT