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

• Jurisdiction: South Africa
• Citation: 1958 (3) SA 650 (N)

Central Trustees of the Church of England in South Africa v Trustees Appointed under Act 9 Of 1910 (N), (1)
1958 (3) SA 650 (N)

1958 (3) SA p650

Citation	1958 (3) SA 650 (N)
Court	Natal Provincial Division
Judge	Holmes J and Jansen J
Heard	February 27, 1958; February 28, 1958
Judgment	March 7, 1958

Flynote : Sleutelwoorde D

Church — Act 9 of 1910 (N), sec. 4 — Effect — 'Congregation' — Meaning of in section.

Headnote : Kopnota

E The effect of the application of section 4 of Act 9 of 1910 (N) is merely to substitute one set of property trustees for another. A church does not thereby lose its identity, or come under the episcopal supervision or ministration of the Bishop of Natal. He is merely to be one of the trustees of the property, who hold it as the legal, as distinct from the beneficial owners thereof. The church continues to have the lawful use of the property within the meaning of section 4.

In applying section 4 of Act 9 of 1910 (N) 'congregation' is not used in F its narrow sense as signifying the members, but in its more ordinary meaning as connoting the body of worshippers. There is nothing in the section which expressly or impliedly limits the right to vote to persons who are (a) members and (b) habitual worshippers. G

Case Information

Appeal from the decision of a single Judge [HENOCHSBERG, J.]. The facts appear from the reasons for judgment.

E. A. Kellaway, for the appellants: The essence of the opposition to the original application was that the persons who voted at a meeting called in terms of sec. 4 of Act 9 of 1910 (N) were not 'the congregation who had the use of the property'.

The section of the Act was intended to provide machinery for unaffiliated entities joining the Church of the Province. In 1938 when Christ Church, Addington, joined the C.E.S.A., that unaffiliated body disappeared. Consequently, persons who voted at the meeting called under sec. 4 had, long prior to the resolution passed at that meeting, ceased to be habitual worshippers of the congregation who had the use of the property as contemplated by sec. 4 of Act 9 of 1910.

1958 (3) SA p651

The persons who had the use of the property constituted one congregation of a constituent church of the C.E.S.A. voluntary association. That one congregation split into two parts, viz., dissenters and persons who remained loyal to the C.E.S.A., who had the use of the property. When dissenters broke away they could no longer be the congregation who 'had A the use of the property'. The words 'habitual worshippers' is merely descriptive of the members of the congregation 'who may vote' at the meeting called in terms of sec. 4 of the Act.

Where persons agree to be bound by the rules found in a constitution, binding them together, a majority of the members who are bound by the B constitution cannot change the rules, where no such power forms part of the constitution. See Harrington v Sendall, 1903 1 Ch. 921, a majority can only bind the minority in everything that lies within the scope and object of the corporation, or voluntary association, Nederduitsch Hervormde Church v Gereformeerde Church, 1893 Hertzog 63, or 10 C.L.J. at p. 327. See also Ackerman v Henry, 1919 W.L.D. 23; C Fisher v SA Bookmakers Association, 1940 W.L.D. at p. 92, followed in de Vos v Ringskommissie van die N. G. Kerk, 1952 (2) SA at p. 94; Darroll v Tennant, 1932 CPD 428. The following two cases are factually in point: Craigdallie v Aikman, (1820) 21 R.R. 107; Broom v Summers, 54 R.R. 396. As to what constitutes a congregation, see In re D Hutchinson's Trusts, 1914 (1) I.R. 271. It is well established that, if a property is left in trust for a particular purpose, a majority cannot lay claim to the property and possess it for another purpose. Free Church of Scotland v Overtoun, 1904 A.C. 515; Wilken v Brebner, 1935 AD at p. 187. Members of a religious body may adopt rules for enforcing discipline within their body, which will be binding on those E who expressly or by implication assent to them. Long v Bishop of Cape Town, 4 Searle at p. 176; Bishop of Natal v Gladstone, 3 Eq. at p. 35. The rules of a church constitute a contract between the latter and its members. Breach of such rules confers a right to sue members in default. See Macdougall v Gardiner, 1 Ch. 14 at p. 25; Burland v Carle, 85 L.T. F 533 at p. 555; Cooper v Garrett, 1945 W.L.D. at p. 148 - 149.'Church which has the use of the property' means not the building but 'the operative institution which administers religion and gives spiritual edification to its members'. Schoales v Schoales, 1930 (2) Ch. D. 75; In re Simpson v Barnes, 1930 (2) Ch. D. 80. Individual members of a voluntary association are not possessed of any rights of ownership in the property. Their only claim is as members of a corporate body. Moloi v St. John's Apostolic Faith Mission, 1954 (3) SA at pp. 941 - 942; Malebjoe v Bantu Methodist Church of S.A., 1957 (4) SA at p. 466.

D. G. Fannin, Q.C. (within R. C. C. Feetham), for the respondents: Act 9 of 1910 (N) was passed because there was no lawful successor to the Rt. Rev. J. W. Colenso as trustee in respect of the lands which had been donated for the uses of the English Church. In re Lord Bishop of Natal, 16 E.R. 43 at p. 56; Merriman v Williams, Foord 135 at p. 180. It is stated in the preamble that 'the Church of the Province of South Africa . . . is the only religious body...