Judge Tshiki

REASONS FOR JUDGMENT

TSHIKI J:

[1] By way of notice of motion the applicant filed an application against the two respondents Quintin Peter Isaacs and John Llewellyn Adriaanse both first and second respondents respectively.

[2] In terms of the applicant's notice of motion, the application was to be made on Thursday, the 21st April 2016 at 09h30 or soon thereafter as the matter may be heard for an order in the following terms:

"1. Directing that the matter be heard as a matter of urgency and that the time limits, forms and service provided for in the Rules of Court are dispensed with in terms of the provisions of Rule 6(12);

2. That a rule nisi be issued calling on first and second respondents to show cause to this Honourable Court on Friday, the 22nd of April 2016 at 09h30 why the following order should not be made final:

2.1 Pending the determination of the full extent and powers, as per the attached annexure "ETL", of the Chairman of the general meeting called by the judgment of Smith J on 9 February 2016,

all members of the Concerned Believers are prohibited from accessing any of the Church Centers of the applicant at either Port Elizabeth , Port Alfred, Hankey, Adelaid and Paterson;

2.2 The Concerned Believers immediately stop their circulation of

SMS messages which refer to either PETER ROBERT TWYNHAM or the applicant in respect of or commenting on the reasons and arrangements for the impending general meeting as ordered by Smith J on 9 February 2016;

2.3 Prohibiting the meeting of office bearers called by the Concerned Believers for 19h00 on the 21^st April 2016 at the Town Lodge on Beach Road, Summerstrand, Port Elizabeth;

3. That paragraph 2 operate as an interim interdict pending the applicant holding the impending general meeting as ordered by Smith J on 9 February 2016;

4. That there should be service of the rule nisi on the offices of G Malgas

& Associates c/o Nash Vandiar & Associates, 1 Nedbank Building, Goven Mbeki Avenue, North End, Port Elizabeth;

5. Further and/or alternative relief."

[3] The applicant has also annexed a document referred to as annexure ''ETL" on page 7 of the record which is referred to as "Powers of the Chairperson".

[4] Before the filing of the present proceedings there was another application that was brought by "Endtime Light Christian Association (PE Tabernacle) the applicant, against Quintin Peter Isaacs as first respondent and John Llewellyn Adriaanse as the second respondent. That case was served before Smith J. I do not intend to deal in detail with the issues in proceedings before Smith J for obvious reasons. The main crux of those reasons is that according to the respondents herein, they contend that Smith J in his order provided that the existing office bearers of the applicant were

entitled to arrange and conduct a meeting of the applicant in terms of the procedures. Therefore, due to no general meeting which took place per Smith J's judgment the existing office bearers were obliged to make the necessary arrangements to give effect to Smith J's judgment./ The contents of this letter were ignored despite it informing the applicant that the ;office bearers' meeting would be going ahead at 19h00 on 21 ^st April 2016.

[5] Respondents also contended that the applicant has had at least since Friday the 15th April 2016 to launch this application but did nothing until the eve of the legitimately constituted general meeting called with the bona fide intention to give effect to Smith J's judgment. This conduct was never accompanied by an explanation for the delay.

[6] The respondents have also challenged the locus standi of the Endtime Light Christian Association, an association regulate by a constitution. No such constitution and/or regulation was annexed. In my view, in the absence of proof of locus standi the applicant's locus standi has not been proved. This is confirmed by clause 11(a) and (b) of the applicant's association which reads:

"14.1 The Association shall have power to sue or be sued in its own name.

14.2 Authority to institute or defend legal proceedings shall be agreed upon at a General Meeting."

(7] There is no averment either by Twynham or any other legally constituted or authorised person who has complied with clause 11(a) and (b) of the applicant's association. Contrary to the first application brought before Smith J, unlike in the present proceedings the application was brought by the first respondent in his personal capacity. In Mall (Cape) (Pty) Ltd v Merino Ko-operasie Bpk 1957 (2) SA 347 (C) Watermeyer J said:

"In such cases some evidence should be placed before the Court to show that the applicant has duly resolved to institute the proceedings and that the proceedings are instituted on its instance. Unlike the case of an individual, the mere signature of the notice of motion by an attorney and the fact that the proceedings purport to be brought in the name of the applicant are in my view insufficient. The best evidence ·that the proceedings have been properly authorised would be provided by an affidavit made by an official of the company annexing a copy of the resolution but I do not consider that that form of proof is necessary in every case." However, in proceedings like the one in issue compliance thereof is obligatory.

[8] It also seems to me that the facts of the present case and those that served before Smith J are similar if not closely related. In my view, it is the same cause of action which was finalised before Smith J to proceed to institute fresh proceedings in the circumstances clearly indicates that the applicant is inviting a defence of res judicata. The only remedy is for the aggrieved parties to proceed either by way of contempt of Court.

[9] Mr Dyko for the first respondent has submitted that the church in issue is not only polarised but also divided in two groups. This means that in such a situation there can be no locus standi in the matter for there can be no one to contend that he or she is for any of the protagonists. There is no one leading the wearing two groups as a result it is difficult to assume that they are ad idem on how to proceed with their case.

[1O] As things are it seems to me that applicant's camp is divided. This is shown by the parties in particular the respondents in this case in ignoring the directives of the Court order dated the 9^th February 2016 whose directive and/or recommendations were not complied with, instead the wearing factions are continuing with their battles against each other. In my view, the matter can only be resolved if the parties agree to refer the matter to a forum akin to arbitration. It does not appear that they can resolve their protracted disputes without the assistance of another independent person.

[11] My experience has taught me that all issues and disputes which involve contested issues in a church are seldom, if any, finalized in a Court of law. The way the Court operates in most cases is that it considers the issues in accordance with what the law provides and which party has deliberately contravened the church rules. That procedure does not necessarily have regard to fairness of the decision instead the party who loses the case will be mulcted in costs a situation which may fuel the antagonism instead of bringing peace to the church people at large. In our roll in the Eastern Cape alone we have more than twenty church case - disputes which have not be finalised. This is so, because the Courts deal with issues _ at hand and thereafter give a judgment. Whereas arbitration and other dispute resolution mechanisms view such matters slightly different from the approach adopted in the Courts. In other words, Courts deal with issues in Court in accordance with the Court procedure designed for the forum in that particular case.

[12] When I read the founding papers, I was of the bona fide view that the matter was as urgent as it was purported to be and the main problem against the applicants herein being lack of locus standi. In his founding papers Peter Robert Twynham who deposed to the affidavit on behalf of the applicant herein does not indicate by way of an averment that he has authority to depose to the affidavit on behalf of the general meeting of the association. He only seeks to rely on his alleged sufficient interest and authority, which, in my view, does not amount to locus standi. He also does not indicate where his authority comes from. There was also no General Meeting of the Association authorising him to bring this application on behalf of the applicant herein.

[13] I, therefore, conclude that the deponent to the applicant's affidavit had no authority to depose to the answering affidavit. In such circumstances there is no authority for him to interfere with the issues in these proceedings by way of an affidavit. I intend not to deal at length with other issues unavailable to the applicant.

[14] It is for that reason that there was no application at all and therefore Idismissed the applicant's application with costs.

P.W. TSHI

JUDGE OF THE HIGH COURT