Kyk ook:
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
REPUBLIC OF SOUTH AFRICA
Case Number: 5167/2016
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
DATE: 07/03/2022
SIGNATURE: JANSE VAN NIEUWENHUIZEN J
In the matter between:
DIE WILGE HERVORMDE GEMEENTE First Plaintiff
DIE WILGE VERENIGING Second Plaintiff
HERVORMDE GEMEENTE GROOTVLEI Third Plaintiff
DIE GEMEENSKAP VAN GELOWIGES GROOTVLEI Fourth Plaintiff
HERVORMDE GEMEENTE KOSTER Fifth Plaintiff
DIE DIAMANT VERENIGING Sixth Plaintiff
HERVORMDE GEMEENTE MEYERSPARK Seventh Plaintiff
MEYERSPARK CHRISTELIKE VERENIGING Eighth Plaintiff
HERVORMDE PIETERSBURG GEMEENTE NOORDELIKE Ninth Plaintiff
YSTERBERG VERENIGING Tenth Plaintiff
HERVORMDE GEMEENTE SCHWEIZER-RENEKE Eleventh Plaintiff
HERVORMDE KERK VERENIGING SCHWEIZERRENEKE Twelfth Plaintiff
HERVORMDE GEMEENTE PREMIERMYN Thirteenth Plaintiff
HERVORMDE GEMEENTE PRETORIA TUINE Fourteenth Plaintiff
SAAMSTAAN VERENIGING Fifteenth Plaintiff
HERVORMDE GEMEENTE THERESAPARK Sixteenth Plaintiff
THERESAPARK VERENIGING Seventeenth Plaintiff
HERVORMDE GEMEENTE RUSTENBURG Eighteenth Plaintiff
RUSTENBURG CHRISTELIKE VERENIGING Nineteenth Plaintiff
HERVORMDE GEMEENTE VREDE Twentieth Plaintiff
NH VREDE EIENDOMSVERENIGING Twenty-First Plaintiff
HERVORMDE GEMEENTE DENDRON/VIVO Twenty-Second Plaintiff
DE LOSKOP/BLOUBERG VERENIGING Twenty-Third Plaintiff
HERVORMDE GEMEENTE OOSTELIKE PIETERSBURG Twenty-Fourth Plaintiff
MOREGLOED HULPVERENIGING Twenty-Fifth Plaintiff
And
NEDERDUITSCH HERVORMDE KERK VAN AFRIKA First Defendant
DIE REGISTRATEURVAN AKTES, PRETORIA Second Defendant
JUDGMENT
JANSE VAN NIEUWENHUIZEN J:
[1] This matter pertains to the unfortunate rift between members of the Christian faith. It involves the Nederduitsch Hervormde Kerk van Afrika (NHKA), one of the oldest Reformed Christian denomination churches in South Africa. The dispute pertains to the ownership of immovable property.
Parties
[2] The first, third, fifth, seventh, ninth, eleventh, thirteenth, fourteenth, sixteenth, eighteenth, twentieth, twenty second, twenty fourth and twenty sixth plaintiffs are voluntary associations that functions as congregations of the NHKA in terms of the Constitution and Church Order of the NHKA (hereinafter referred to as “the congregations”).
[3] The second, fourth, sixth, eight, tenth, twelfth, fifteenth, seventeenth, nineteenth, twenty first, twenty third and twenty fifth plaintiffs are voluntary associates that are the owners of immovable properties (hereinafter referred to as “the associations”).
[4] The plaintiffs will be referred to as the congregations and the associations or collectively as the plaintiffs.
[5] The first defendant is the NHKA, a voluntary association that functions as a religious institution. The functions of the NHKA are regulated by a Constitution and Church Order.
Background
[6] The dispute between the parties commenced in 2010, when certain congregations of the NHKA decided to break their ties with the NHKA. Following the aforesaid decision and during 2010 to 2014 the congregations donated and transferred their immovable properties to the associations that were not associated with the NHKA.
[7] The NHKA was of the view that the congregations were not authorised in terms of the Constitution and Church Order to alienate their properties to parties that were not associated with the NHKA.
[8] As a result, the transfers led to a host of applications between the NHKA and the congregations. In an effort to curtail the flood of litigation between parties, Fourie J was appointed as case manager and it was agreed in 2016 that the congregations and the voluntary associations would institute the present action against the NHKA.
[9] In its particulars of claim the plaintiffs sought inter a/ia declaratory orders to the effect that congregations may, notwithstanding the provisions of the Constitution and Church Order of the NHKA, alienate their properties to third parties.
[1O] The NHKA filed a counterclaim in terms of which it alleged that the alienations were not in accordance with the Constitution and Church Order of the NHKA and should be set aside. The NHKA claimed the retransfer of the properties into the name of the congregations.
Separated issue
[11] As alluded to supra, the matter was case managed by Fourie J who issued an order on 11 June 2018 separating the following issue from the remainder of the disputes:
“Kan lidmate of ’n gemeente van die NHKA wat probleme het binne of met die NHKA en/of wil wegbreek en/of weggebreek het uit die NHKA, by meerderheidsbesluit die bates van ’n gemeente van die NHKA aan vrywi/lige verenigings of gemeentes wat buite die NHKA funksioneer vervreem.”
[12] Loosely translated the separated issue pertains to the question whether members or a congregation of the NHKA who have problems within or with the NHKA and/or want to break away and/or has broken away from the NHKA may by a majority decision sell or donate its assets to a voluntary association or another congregation that does not form part of the NHKA.
[13] The aforesaid separated issue was set down for hearing before this court.
[14] I pause to mention, that by agreement between the parties, the filing of a plea by the plaintiffs to the counterclaim of the NHKA, was postponed until the finalisation of the separated point.
Privity of contract
[15] Having had regard to the pleadings, I raised the issue of privity of contract with counsel in chambers prior to the commencement of the trial on the separated issue.
[16] Mr du Plessis SC, counsel for the plaintiffs, requested the court to deal with the privity of contract point before the separated issue is heard. Mr Raath SC, counsel for the defendants acceded to the request and both counsel addressed me on the principle of privity of contract in relation to the dispute between the parties.
[17] I delivered judgment on the point and held that the principle of privity of contract is applicable to the dispute between the parties. The finding entails that the NHKA is not a party to the donation agreements between the congregations and the associations and therefore has no legal standing to challenge the validity of the agreements.
Further conduct of trial: mootness
[18] Mr du Plessis submitted that the finding by the court in respect of the privity of contract point, entails that the NHKA has no legal defence against the relief sort by the plaintiffs. In the result, the dispute between the parties have become moot.
[19] In support of this contention, Mr du Plessis referred to the following passage in Normandien Farms (Pty) Ltd v South African Agency for Promotion of Petroleum Exploration and Exploitation SOC Ltd and another 2020 (4) SA 409 CC (the Normandien case”):
“[47] Mootness is when a matter ‘no longer presents an existing or live controversy’. The doctrine is based on the notion that judicial resources ought to be utilised efficiently and should not be dedicated to advisory opinions or abstract propositions of the law, and that courts should avoid deciding matters that are ‘abstract, academic or hypothetical.”
[20] The question then arises whether there is still a “live controversy” between the parties in respect of the validity of the agreements entered into between the associations and the congregations.
[21] In view of the finding that the NHKA was not a party to the agreements and therefore had no legal standing to attack the validity of the contracts, there is, to my mind, no longer a “live controversy” between the parties.
[22] Mr Raath SC, counsel for NHKA, did not agree. Mr Raath submits that, although the court has found in favour of the plaintiffs in respect of the privity of contract point, there are still live issues on the pleadings that needs to be adjudicated and that such issues should be adjudicated by the court.
[23] The “live issues” pertain to the interpretation of the Constitution and Church Order of the NHKA to determine the exact legal relationship between the NHKA and the congregations. The NHKA alleges that the congregations did not have the necessary authority to dispose of their immovable property to third parties that were not members of the NHKA.
[24] The end result of such a finding is a declarator that the agreements between the congregations and associations, being two separate legal entities, be declared void at the behest of an entity that is not a party to the agreements. This issue was decided in favour of the plaintiffs when judgement was delivered on the privity of contract point.
[25] Mr Raath, however, persisted that the court should hear the aforesaid dispute and referred to the following passage in Fischer and Another v Ramahlele and Others 2014 (4) SA 614 SCA (“the Fischer matter”):
“[14] It is not for the court to raise new issues not traversed in the pleadings or affidavits, however interesting or important they may seem to it, and to insist that the parties deal with them. The parties may have their own reasons for not raising those issues. A court may sometimes suggest a line of argument or an approach to a case that has not previously occurred to the parties. However, it is then for the parties to determine whether they wish to adopt the new point. They may choose not to do so because of its implications for the further conduct of the proceedings, such as an adjournment or the need to amend pleadings or call additional evidence. They may feel that there is sufficiently strong as it stands to require no supplementation. They may simply wish the issues already identified to be determined because they are relevant for future matters and the relationship between the parties. That is for them to decide and not the court. If they wish to stand by the issues they have formulated, the court may not raise new ones or compel them to deal with matters other than those they have formulated in the pleadings and the affidavits.”
[26] An example of a situation where a court may suggest a line of argument or an approach to a case that has not previously occurred to the parties, is to be found in Electricity Supply Commission v Stewarts and Lloyds of SA (Pty) Ltd 1981 (3) SA 340 A. The relevant passage appears at 345 A -E:
“Early in the hearing before this Court, my brother TROLLIP, raised the question whether, on the facts of this case, prescription could only start to run after the expiration of the twelve-month period of maintenance …
Counsel for the appellant, after savouring the point cautiously, adopted it as part of his argument; and it was canvassed by both sides … “
[27] The approach by the Supreme Court of Appeal in the Electricity Supply Commission v Stewarts and Lloyds of SA (Pty) Ltd is on par with the facts in casu.
[28] Once the principle of privity of contract was raised by this court, Mr du Plessis adopted it as part of his argument. Both counsel addressed me on the point which culminated in the judgment on the point.
[29] The point raised by Mr Raath is therefore not applicable to the question of mootness raised by Mr du Plessis.
[30] In respect of the point of mootness, it is apposite to mention that the mootness point in the Normandien case resulted from the facts underlying the relief having changed drastically. The application for the right to explore, that formed the subject matter of the dispute, was withdrawn prior to the hearing, which led to the finding of mootness.
[31] In casu the mootness arises from a legal conclusion on the facts that are common cause between the parties. The result is, however, the same.
[32] Mr Raath accepted that the privity of contract point is the end of the NHKA’s defence to the validity of the agreements between the congregations and the associations. Mr Raath, however, emphasised that the interpretation of the Constitution and Church Order is of vital importance to the NHKA and the congregations in order to regulate the future relationship between the parties.
[33] Having regard to the subject matter of the dispute herein, to wit the validity of the agreements between the congregations and the associations, the interpretation issue would not contribute to the resolution of the dispute. The interpretation of the Constitution and Church Order of the NHKA is a complex and a time-consuming exercise that will lead to an advisory opinion on an issue that is not a “live controversy” on the pleadings. This in turn will be a waste of precious judicial resources and will place a huge financial burden on the parties.
[34] In view of the history of the matter and the vast amount of costs already incurred by all the parties concerned, it will not be in the interest of justice to venture into providing an advisory opinion on the interpretation of the Constitution and Church Order of the NHKA.
[35] In the result, I find that the issue between the parties have become moot.
[36] Mr du Plessis with reference to the Normandien case, alerted the court to the finding by the Constitutional that mootness is not an absolute bar to the justiciability of an issue. [See: Normandien Farms (Pty) Ltd v South African Agency for Promotion of Petroleum Exploration and Exploitation SOC Ltd and another supra at par [48] to [50]]. Having considered the passages referred to by Mr du Plessis, it appears to me that the principle only applies to a limited extent to a court of first instances. Even if I am wrong in this regard, this is not a matter in which the interests of justice dictates that the issue raised by Mr Raath should be adjudicated in the present forum.
Costs
[37] Mr du Plessis made out a strong argument for a cost order in favour of the plaintiffs. Having regard to the fact that the parties were, until the privity of contract point was raised by the court, ad idem that the issues as defined in the pleadings should be adjudicated, I am not convinced that the plaintiffs are entitled to all their costs.
[38] I deem it fair and reasonable that the parties should each bear its own costs prior to the raising of the point of privity of contract by Mr du Plessis.
[39] The costs of all further proceedings thereafter, should be borne by the NHKA. I deem the matter of sufficient complexity to allow the cost of two counsel.
Order
The following order is issued in respect of the plaintiffs’ claim against the first defendant:
1. The issue between the parties have become moot.
2. The first defendant is ordered to pay the costs from 25 January 2022, which costs will include the costs of two counsel.
(signed)
N. JANSE VAN NIEUWENHUIZEN
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
DATE HEARD PER COVID19 DIRECTIVES: 18 January 2022 – 27 January 2022
DATE DELIVERED PER COVID19 DIRECTIVES: 07 March 2022
APPEARANCES
Counsel for the Plaintiffs: Advocate R. du Plessis SC and Advocate M Boonzaaier
Instructed by: Ross & Jacobsz, Mr A van Eck and Ms M Smith
Counsel for the First Defendant: Advocate R.J. Raath SC
Instructed by: Eben Griffiths Attorneys, Mr E. Griffiths