Central Trustees of the Church of England in South Africa v Trustees Appointed under Act 9 Of 1910 (N), (1)

• Jurisdiction: South Africa
• Judge: Holmes J and Jansen J
• Judgment Date: 07 March 1958
• Citation: 1958 (3) SA 650 (N)
• Court: Natal Provincial Division

C Holmes, J.:

This is an appeal from the judgment of a single Judge ordering the appellants to transfer certain immovable property to the present respondents.

The factual background is as follows. When the British came to the Cape, many of them were of the Church of England faith, and gradually they D formed scattered congregations throughout the country. In 1853 the Crown erected Natal into a separate diocese, under Bishop Colenso. Various grants of land throughout Natal were made to the Church, the nominal transferee being the Bishop. One of these grants in 1862 was to the Church of England at Addington, Durban. It was exchanged for other land in 1902 but the condition of the original trust deed is still in E the title deeds, namely that the land shall be used for the purposes of the Church of England at Addington - now known as Christ Church. Bishop Colenso died in 1883. The Crown did not appoint a successor as Natal had by then acquired its own legislative status. This meant that there was no legal successor as nominal owner of the various grants of land. In the meantime there had been formed the Church of the Province F of South Africa. In 1910 the Natal Legislature passed Act 9 of that year. The preamble referred inter alia to the failure of the trust grants for want of a legal owner, recorded that the Church of the Province of South Africa most nearly fulfilled the objects for which the said properties had been set apart, and enacted in sec. 1 Schedule A G that the various properties (38 in number) should be transferred in trust to the Bishop of the English Church in Natal and his successors, and the diocesan trustees for the time being, for the use of the Anglican Communion in Natal, whether known as the Church of England, or the English Church, or the Church of the Province of South Africa. However there was a special provision in sec. 4 to the effect that a few H properties (one being the grant to Christ Church, Addington) should not come within the operation of the Act without the consent of the congregation. In the event of such consent, the effect of sec. 3 (a) in the present case would be that the property is to be administered for the use and benefit of Christ Church and its minister and congregation.

Holmes J

Despite that Act, Christ Church, Addington, did not join the Church of the Province of South Africa, or invoke the terms of the Act, and continued to exist as a separate entity as one of the congregations of the Church of England in South Africa...