Mazwi and Others v Fort Beaufort United Congregational Church of Southern Africa and Another (3865/2009)  ZAECGHC 123 (10 December 2010)
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE – GRAHAMSTOWN
CASE NO: 3865/2009
In the matter between:
FEZILE MAZWI 1ST Applicant
BONGISWA PANGO 2ND Applicant
HEADMAN PANGO 3RD Applicant
KHAYALETHU NGWATA 4TH Applicant
MANDLEKHAYA NGECE 5th Applicant
MLINDELI SOLANI 6TH Applicant
MZOXOLO NYENYEKU 7TH Applicant
NOSIPHO KOTSWANA 8TH Applicant
PHILANI KAMANDE 9TH Applicant
SIPHOKAZI PHEZISA 10TH Applicant
XOLANI PRENS 11TH Applicant
NOLUTHANDO MGXOTHWA 12TH Applicant
SIBAHLE PEZISA 13TH Applicant
ZANEKHAYA SIBANE 14TH Applicant
TOLANI GOSANI 15TH Applicant
NTSIKELELO MLENZE 16TH Applicant
FORT BEAUFORT UNITED CONGREGATIONAL
CHURCH OF SOUTHERN AFRICA First Respondent
THE UNITED CONGREGATIONAL CHURCH
OF SOUTHERN AFRICA Second Respondent
 In this matter the Applicants seek an order setting aside the First
Respondent’s suspension of their membership of the First Respondent
dated 8th December 2002 and the reinstatement of all Applicants herein
to the full and unfettered membership of First Respondent. On the
papers, this order is sought against First Respondent, alternatively the
 First Respondent is a local church situate at Fort Beaufort and is a
member of Second Respondent.
 Second Respondent in turn is a union of local churches, Regional
Councils, Synods and an Assembly.
 Second Respondent does not oppose the relief sought and
asserts that it has done all in its power to reinstate the Applicants to full
membership but has been unsuccessful due to the defiant stance adopted
by Reverend Hartland, Minister in charge of the First Respondent.
To its knowledge, the current legal proceedings are rooted in a dispute
that dates back 8 years and despite its best efforts, Second Respondent
as the principal ecclesiastical mother body to whom First Respondent is
affiliated, has been unable to compel First Respondent to readmit the
It appears to it that the level of animosity runs regrettably deep and has
over time, perpetuated an acrimonious state of affairs between and
among parties mired in the conflict.
In setting out this background, I am assisted by the Second
Respondent’s Answering papers which in their fullness provide a more
helpful background to the history of the dispute.
 The Applicants, described as a group of young church members,
fell into disfavour with the local governing executive of the
First Respondent over their concerns relating to a number of issues
involving, inter alia, suspected financial mismanagement, the use of a
church vehicle and the whereabouts of cutlery. The manner in which they
raised their concerns in turn raised the ire of the bulk majority members
of the First Respondent’s congregation and its leader Reverend Hartland
and the Applicants were suspended on the 8 December 2002.
The decision to suspend the Applicants was, in line with the Church’s
Constitution, taken by a General Members meeting of the First
Respondent and was premised on the Applicants alleged undermining of
the Church leadership including their own ward deacons and interim
 In May 2003, again in line with the Church’s Constitution, the Applicants
appealed to the Kei Regional Council which considered the matter and
ruled that the First Respondent’s suspension of Applicants had been
lawful. The decision of the First Respondent to suspend the Applicants
was thus endorsed by the Kei Synod.
 Applicants then appealed to the National Synod headed by Second
Respondent. This National Synod then set up in January 2004, what is
referred to as a Synod Commission, with the purpose of reopening the
matter by visiting Fort Beaufort, meeting the respective parties and
interviewing them with the objective of reconciling them.
It would appear from the papers that news of this was received with
surprise and hostility by Reverend Hartland and the congregation of the
First Respondent resulting in no resolution to this ecclesiastical
 As at January 2006 (3 years later) the differences between the
Applicants and First Respondent had not abated and First Respondent
came before this Court and secured an interim interdict preventing
Applicants from attending church activities pending disciplinary
proceedings against the Applicants. Applicants were furthermore
precluded from undertaking protest actions within 50 meters
of the First Respondent’s church grounds.
 In light of these developments, the Second Respondent appointed in
April 2006, a further Commission, the “Bulawayo Commission”, to
investigate what it called – the Fort Beaufort situation. The commission
paid a visit to Fort Beaufort between the 1st to 4th June 2006 and
reported to Second Respondent on or about the 14th September of that
It was, consequent thereon, resolved that:
9.1 Reverend Hartland and the First respondent be instructed to
withdraw the Court interdict;
9.2 Reverend Hartland and the First respondent be instructed to
allow the applicants to participate fully in the activities of the
church in order to honour witness as the body of Christ.
9.3 the applicants be heard and their concerns be dealt with;
9.4 the applicants be instructed that their actions were
 These resolutions were communicated to the parties in March 2007 and
were not met with enthusiasm or welcomed by the Reverend
Hartland and the First respondent but both groups nevertheless
committed themselves to a process of reconciliation.
A “reconciliation team” was appointed by the Second respondent to
facilitate a process of healing and reconciliation. The First respondent
was also requested to withdraw the interdict against the Applicants with
immediate effect and by no later than the 31st May 2007. The failure to
do so was that Second Respondent would suspend the First respondent
and Reverend Hartland without any further delay.
 On the 12 December 2007, with no resolution in sight, Second
Respondent suspended Reverend Hartland on the basis of what it says
was the Resolution of the Assembly of 19-22 March 2007 outlined
Significantly, that Resolution provided for the possible suspension of
both the local church and its Minister.
Nothing on both the Applicants and Second Respondents papers sheds
light on why only part of the Resolution was put into effect and the First
Respondent was not suspended and/or disassociated from Second
Respondent. Be that as it may, Reverend Hartland approached the
South Gauteng High Court which set the purported suspension aside on
the basis, inter alia, that he had not been afforded his right to be heard
prior to the decision.
 Second Respondent in its Answer states at paragraph 25 that
“Rev Hartland is a former Mayor of the Fort Beaufort district
municipality and enjoys widespread support from both the First
Respondent’s congregants and the wider community. Due to the
popularity of Rev Hartland, UCCSA has tried to tread carefully for
fear of exarcebating the conflict which has the potential to erupt into
violence and bloodshed. Whilst stating this, UCCSA is mindful of the
fact that this diplomatic approach has not brought the Applicant’s
desired results which is why the UCCSA believes that the only way
forward is through resorting to the High Court in order to bring
finality to the dispute.”
At paragraph 42.3-4 Second Respondent states;
“UCCSA has sought to deal with this matter in every way short of the
disassociation and severance of the First Respondent. That remains
“Achieving this goal has not been an easy task considering
the support enjoyed by Rev Hartland as explained above. Legal
action to evict Rev Hartland from the manse and to interdict him
from entering church premises might have inflamed emotions and
triggered events leading to confrontation and violence which is why
this course of action has not been taken by the UCCSA to date.”
FIRST RESPONDENT’S REPLY
 Reverend Hartland in his capacity as First Respondent’s authorised
representative states the following that:
the congregation of First Respondent is vehemently opposed to the relief sought by Applicants. At the outset, he emphasises that such a reinstatement would lead to an “inevitable bloodbath” and the consequences would be “too ghastly to contemplate.” ; and
”It would be an extremely irresponsible and insensitive thing to do. Not only would it exarcebate the already tense and volatile situation between the two groups, characterized by occasional outbursts of violence, but it would also paralyze the progress our church has made to attend to the after-effects of the schism since the Applicant’s left.” ; and
He blames the Second Respondent for having dismally failed to exercise leadership and for believing that suspending him would lead to the resolution of the impasse; and
He furthermore states that;
“Presently the objective reality is that since 2002 the relationship between the two groups has deteriorated to such an extent that the Applicant’s group are no longer part of the First Respondent’s church. They daily boast of having no less than 200 members; they have their own place of worship and a priest who was appointed by the Second Respondent in 2008 to minister to their spiritual needs and to perform other attendant tasks a priest is normally required to carry out to the congregation in terms of our denomination.”
he has been a member of UCCSA since birth; was educated by the church; holds a Diploma in Theology and has always been a priest in the service of the church save a stint in the private sector and the period as Mayor of Fort Beaufort District. He has never been found guilty of any misconduct.
He has served the public in leadership positions in many capacities. Notably, in the 80’s he was detained under the then Emergency Regulations; served as Chairman and Secretary of the Kei Region; First Chairperson of the South African Synod between 2002-4; Chairperson of Border Council of Churches in the 80’s etc.
the Applicant’s group complained in 2002 about a vehicle and other church property which they alleged was being misused by certain members. This led to a stand-off and violent clashes with random attacks and some of the adversaries were charged with assaults and public violence and were convicted. Church services came to a stop as a result hereof. In his view, the Interdicts restraining the Applicants were for this reason necessary and that there has been no change in the Applicant’s attitude.
He furthermore asserts that;
“For those of us who are dealing with the situation on the ground, this is a life and death matter which can lead to the loss of lives if not handled carefully…”;
 Now from the First Respondent’s papers, it is clear that the
congregation as a whole continues to be acutely opposed to the
prospect of having the Applicants being reinstated to full membership
of the First Respondent.
 Furthermore it appears from its papers that in 2008, the Second
Respondent appointed a Minister and constituted the Applicants as
a distinct congregation with Constitutional status within the UCCSA.
A Reverend Mthana was introduced to the Applicants church by the Kei
Regional Council represented by Reverend Snyman. This has not been
denied by Second Respondent.
 Applicant in reply seeks to understate the schism between the two
groups and the potential for more violence. It is of the view that the
reference in answer to;
“…the inevitable blood bath if the applicants are allowed back to Church”
appears to it to have been calculated by the First Respondent to
generate acrimony and hate and that it is a gross exaggeration and
unfortunate use of language. That the Applicants have pledged
themselves to peace and due process of the constitutional imperatives
of the Church and will do nothing which may serve to compromise that
peaceful process and the laws of Christianity; and states
“I submit that there would be no reasonable belief after the substantial period of time which has elapsed, and given the undertakings furnished, that there would be no further outbursts nor that the Church would be ‘paralyzed’ that harmony would not prevail. There is nothing tense or volatile about the situation at this stage and especially should it please this Honourable Court to grant relief in favour of the Applicants, all parties will be protected by the terms of that order.” (paragraph 11)
 Turning now to the Constitution of the Second Respondent, it is
necessary to highlight that this document is the bedrock on which the
governace of the church is premised and it sets out, inter alia, the
procedural processes to resolve disputes. This is the Constitution in
force as at the commencement of the dispute in 2002.
 Clause 1 defines the Second Respondent (UCCSA) as a union of the
18.1 church Aid Missionary Society of South Africa; and
18.2 the London Missionary Society of Southern Africa; and
18.3 Bantu Congregational Church of the American Board; and
18.4 the South African Association of the Disciples of Christ.
 Clause 2 defines the structure of the organisation as composed of local
churches, Regional Councils, Synods and an Assembly.
 Clause 3 states that a local church is;
20.1 recognised by the Assembly as a fellowship of members of the
Church gathered in a particular locality for worship, witness and
service. A local church may consist of one or more
congregations. (my underlining).
and can be formed
20.2 at the request of existing local churches, on the
recommendation of the appropriate Regional Council, or by a
Regional Council in terms of any one or any combination of the
following (my underlining).
20.2.1 division of the existing church;
20.2.2 establishment and constitution of new congregations
and local churches;
 Procedure 17 of the Constitution is titled “TROUBLE IN A LOCAL
CHURCH” and sets out an investigations mechanism and provides
The parts relevant to this are as follows:
21.1 “When the Secretary of a Synod/Regional Council has
reason to believe that there is serious trouble in a local
church, he/she reports it to the Administrative
Committee of the Synod/Region concerned which
institutes a full investigation.” (clause 17.1)
21.2 Certain steps are then outlined in relation to how the
process is to proceed with regard to the right of each
party to be heard whereafter the following sanction is
set out as available to the church in the event of
non-cooperation by one or other of the belligerents.
21.3 “When the Administrative Committee of the
Synod/Region is satisfied from the written report of the
investigation that there is serious trouble in the church,
it reports its findings to the local church, the
complainants and the Assembly Executive Committee”.
21.4 “Should a local church refuse to accept a full
investigation or to abide by the award given, such
local church may, by the decision of the Assembly,
upon the recommendation of the Synod/Regional
Council concerned, be disassociated from the United
Congregational Church of Southern Africa.”
 It is clear that the Constitution of the Second Respondent is exhaustive
and provides for a variety of possible outcomes and adequate sanctions
in the event that difficulties confront the church in its lower structures,
that is, in local churches.
 Constitutions of voluntary associations such as ecclesiastical entities are
revised from time to time in order to set out as far as is foreseeable,
remedies to deal with possible disputes and conflict. Once members
join the church, they subject themselves to its restraints.
These Constitutions provide the Church with the rules framework with
which to deal with all matters of discipline, faith and adherence to
ecclesiastical norm and custom. Once it is shown in specific cases that
the Church in dealing with a dispute followed the correct internal
procedures, Courts will not readily interfere. Voluntary associations
are provided with a wide berth to deal with faith related matters in an
as appropriate a manner as is possible based on the tenets accepted
by the members thereof.
Courts will intervene where there is a discernible deviation from the
governing Constitution or where there is a failure to implement them
resulting in an injustice to one or more of its members. In many of
these Constitutions, the rules will stipulate that internal remedies be
first exhausted by a member before resorting to the Courts. Whether or
not possible remedies are exhausted is always a matter that varies from
one instance to the other but can be easily discerned from the facts.
 In Yiba and Others v African Gospel Church 1999 (2) SA 949 (C)
the Court, per Schippers AJ set out the following at page 960 E:-
“In summary, the principles are these:
A voluntary association is founded on the basis of mutual agreement which entails an intention to associate and consensus on the essential characteristics and objectives of the association (Joubert (ed) The Law of South Africa first re-issue vol 1 at 303 para 455; Turner v Jockey Club of South Africa 1974 (3) SA 633 (A) at 645B-C, 645H-646A; Theron en Andere v Ring van Wellington van die NG Sendingkerk in Suid Afrika en Andere 1976 (2) SA 1 (A) at 25B).
An association has no inherent power to conduct disciplinary proceedings and to punish a member (Durr en Andere v Universiteit van Stellenbosch en ‘n Ander 1990 (3) SA 598 (A) at 608B-609A). The constitution of the association and its rules and regulations determine what violations of the rules by members warrant disciplinary action being taken against them, how the domestic tribunal entrusted with the investigation of such violations is to be constituted, the procedure to be followed by the tribunal in the exercise of its functions, and the penalties to be imposed for a violation of the rules (The Law of South Africa (op cit at 310 para 467)).
It must in my view be added that, the decision maker in an
ecclesiastical tribunal charged with the responsibility to hear matters
where a dispute is arbitrated, must follow the Constitution and where
sanctions are provided for, must apply such according to the letter of
the Constitution without unduly and irrationally deviating therefrom.
This promotes certainty and with that, an unbiased application of the
churches’ rules and covenants to which all members have elected to be
bound. Once an adverse finding is made pursuant to a lawful internal
hearing, the legislated sanctions must be fairly and consistently applied.
The ultimate responsibility for this lies with the Church Executive, Synod
or Assembly as the upper guardians of the Constitution.
 When one has regard to the history of this matter following the dispute
in 2002, it is possible to summarise the material conclusions capable of
being drawn as follows:
A properly constituted hearing took place in
December 2002 leading to the suspension of
(ii) A properly prosecuted appeal to the Kei Synod
was heard and dismissed by that Synod in May
A further appeal to the National Synod resulted
in the Second Respondent reopening the
matter and resolving to follow a path whose
end objective was re-integration and
Following the appeal to the Assembly the
Second Respondent sought to reopen the whole
matter with a view to seeking to persuade the
parties to make peace and to reconcile.
This course has not been successful and the
schism remains alive.
First Respondents’ collective congregation does
not accept the Second Respondents’ ambitions
and are also firmly behind its leader the
Reverend Hartland. In attempting to reopen
and to resolve the dispute, Second Respondent
has wholly underestimated the commitment of
the congregation and erroneously sought to
isolate Reverend Hartland (whom it sought to
suspend without following its own Constitution)
and has now been paralysed by the response.
(viii) Second Respondent has unduly leaned
towards a conciliatory solution and
underestimated the depth of the distance
between the belligerents. This has been
viewed by First Respondent and Reverend
Hartland as undermining its moral authority
over the Applicants.
An opportunity existed for the Second
Respondent to follow its own Constitution and
its own resolution of the 19-22 March 2007 and
to suspend both the First Respondent and
Reverend Hartland if it felt so disposed. Second
Respondent failed to implement the full terms
of the resolution and this led to a successful
challenge by Reverend Hartland of his
suspension before the South Gauteng High
 The common consensus between the First Respondent and the Second
Respondent is the ever present prospect of violence if the parties were
to be forcefully reintegrated. Applicants conveniently downplay this
prospect. No doubt the levels of hatred have set over the years and a
sudden and abrupt unmonitored reintegration may well create an
opportunity for more violence resulting in possible injury and loss of
life. Moreover, in light of the vast period of time that has elapsed, and
the appearance that life has moved on fundamentally since 2002, a
reintegration may not be practical.
 Furthermore, First Respondent asserts that Second Respondent
has already put in train a process by which the Applicant’s have
what now amounts to their own congregation. This has not been
disputed by the Applicant’s nor by the Second Respondent and the
Court must assume there is some truth in the assertion. This
is a solution that is clearly available to the Second Respondent as the
guardian of the Constitution of the church. It is a Constitutionally
competent alternative remedy which the First Respondent says has
been implemented. If that is so then this Court has no need to grant
the order sought. If this is not the position then the question is why
not. Second Respondent is enjoined to promote the full tenets of its
Constitution and to implement each such available remedy.
 Applicant, in any event seeks final relief as against the First Respondent
and, in the alternative the Second Respondent. In those circumstances
it is clear that the matter must be decided on the facts as stated by the
Respondents, together with those facts stated by the Applicant which
Respondents do not deny. – See Plascon-Evans Paints Ltd. v Riebeek
Paints (Pty) Ltd 1984 (3) SA 623 (AD) at 634.
 I am also concerned with the fact that the Applicants were lawfully
suspended in December 2002 and this decision was later ratified by the
Kei Regional Council. Nowhere in its papers does the Second
Respondent or Applicants state that the decisions of the local
and Regional structures were ever formally overturned or if the
Applicants ever reapplied to commence with any process of atonement
after the Kei Synod suspension. What the Second Respondent states is
that the Assembly resolved to reopen the matter with a view to
promoting reconciliation. It does not say it set the Kei decision aside. In
its papers the Applicants have failed to deal with this background and in
fact sought to downplay its relevance to the current proceedings.
Whether or not on the papers before me the Applicants have a right to
the relief they seek, as against First Respondent, is also of doubtful
Taking into account all the aforegoing, I am of the view that Second
Respondent has at its disposal sufficient Constitutional outcomes and
remedies to guide it in concluding this dispute and these are set out
succinctly in its own Constitution. It has hitherto failed to follow its
own resolutions and Constitution without a discernible rationale.
Furthermore, I am not convinced that the Applicants are entitled to the relief
sought for reasons set out above.
In the result, I make the following order:
The application is dismissed
Each party is to pay its own costs
10 DECEMBER 2010
APPLICANTS ATTORNEYS MICHAEL RANDELL ATTORNEYS
C/O BORMAN NEVILLE & BOTHA
APPLICANTS COUNSEL MR S COLE
FIRST RESPONDENTS ATTORNEYS DULLABH ATTORNEYS
FIRST RESPONDENTS COUNSEL MR N SANDI
SECOND RESPONDENTS ATTORNEYS WEBBER WENTZEL
C/O LEGAL RESOURCES
SECOND RESPONDENTS COUNSEL MR BOSWELL