Old Apostolic Church of Africa v Non-White Old Apostolic Church of Africa

• Jurisdiction: South Africa
• Judge: Watermeyer J
• Judgment Date: 12 March 1975
• Citation: 1975 (2) SA 684 (C)
• Court: Cape Provincial Division

Watermeyer, J.:

The applicant church applies on notice of motion for an order restraining the respondent church from continuing to use the name "Non-White Old Apostolic Church of Africa", and for an order that the respondent take all steps H necessary to ensure that any records of any Registrar of Deeds within the Republic of South Africa in which the name "Non-White Old Apostolic Church of Africa" has been used by the respondent are amended to delete the use of such name by the respondent.

It appears from the affidavits that in the year 1890 one Klibbe came to South Africa as an evangelist for a church which was established in Germany. Klibbe thereafter broke away from the mother church in Germany and established an independent church in South Africa under the name of "The New Apostolic Church (Africa)". In 1927 there appears to have been a split in this church and after litigation the applicant Church

Watermeyer J

was established under the name of "The Old Apostolic Church of Africa". Since 1927 it has operated under that name. Its headquarters are in the Transvaal and, although there is no specific allegation in the papers to the effect that it operates throughout the Republic, it seems clear that it operates not only in the Transvaal but also in the Cape A Province, the Orange Free State, Mocambique, Rhodesia, Botswana and South-West Africa. Membership is open to all racial groups and applicant has 14 000 members in Mocambique, 200 in Rhodesia, 1 000 in Botswana and 1 400 in South-West Africa. There is no statement in the affidavits as to the size of its membership within the Republic, but in an affidavit B filed by the present head of respondent Church, one Apostle Neethling, it is said that applicant's membership outside the Republic and South-West Africa is only a small portion of its total membership. From this it would seem to follow that it has a fairly considerable membership in the Republic. Applicant's balance sheet for the financial year 1969 - 1970 is before the Court, and this shows that it has assets amounting to almost R3 000 000.

C From the aforegoing it appears that the applicant has been operating under the name of "The Old Apostolic Church of Africa" for nearly 50 years, that it has a large membership of all races and that it has very substantial assets.

In or about the year 1972 there appears to have been dissension D within the applicant church and, under the leadership of one Lombard, a number of members broke away and formed their own church, the present respondent, with headquarters in Elsies River, Cape. It adopted a constitution of its own which, with one or two necessary alterations, is identical with that of the applicant, and its Catechism is the same as that previously E used by the applicant. Respondent chose for itself the name "Non-White Old Apostolic Church of Africa" and, although its constitution does not specifically say so, it would appear that its membership consists only of non-White persons. There is no mention in the affidavits of the size of respondent's membership, of the area in which it operates or the extent of its funds, but it is clear that it owns movable property at F least in Kraaifontein and Uitenhage.

Applicant now applies for an interdict restraining respondent from using the name "Non-White Old Apostolic Church of Africa", and it contends that the name adopted by the respondent is so similar to that by which the applicant has been known for 48 G years that it is calculated to lead to confusion on the part of the public between the two bodies. Furthermore, it alleges that confusion has in fact already occurred on more than one occasion.

Respondent denies that the names are so similar that confusion is likely to result, and denies also that its choice of a name was intended to cause confusion. Apostle Neethling states in H para. 10 of his affidavit that he, Apostle Lombard, Brother Apostle Gamba and their families were for many years members of the applicant church, that they were closely associated with it and that the name of the applicant church was consequently of great sentimental value and meaning to them and to the other members of respondent church. He points out that the doctrine, creed and ritual of the respondent church is to all intents and purposes the same as that of applicant Church. He submits that there can be no prejudice to applicant arising out of any...