The Trustees for the Time Being of The Norwegian Settlers Church v The Minister of Public Works

• Jurisdiction: South Africa
• Judge: Wallis J
• Judgment Date: 24 February 2009
• Citation: 2009 JDR 0125 (N)
• Docket Number: 8049/06
• Court: Natal Provincial Division

Wallis J:

[1]

On 14 July 1882 a congregation of the Norwegian Evangelical Lutheran Church emigrated from Aalesund, Norway destined for what was then the Colony of Natal. They landed at Port Shepstone on 29 August 1882. The congregation emigrated as a single community under the auspices of the Land Immigration Board of the then Government of Natal, which Board had been constituted under Law 21 of 1876 (Natal). Apparently in their native Norway the immigrants were a fishing community, but on their arrival in South Africa they were allocated lots which they used for agricultural purposes in a 7000 acre area known as the Marburg Settlement. Initially the settlement area was divided into fifty lots of 100 acres each with the balance of some 2000 acres being set aside as commonage. [1]

[2]

The settlers were accompanied by their own pastor and teacher, the Reverend E. Berg. According to a letter written by the Rev. Berg to Colonel Mitchell, the Chairman of the Immigration Board on 30 August 1882, he had been allocated Lot 16 and he requested the Board to allocate Lot 17 to him in addition because, so he

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said, his salary was insufficient to support him and his family and he would also have to combine farming with his pastoral duties. On 14 September 1882 the secretary of the Board advised the Rev. Berg that the Board had resolved that Lot 17 should be given to him in trust, as pastor, and that the land should be vested in the hands of trustees, for church and educational purposes and for glebe land. That letter concluded as follows :

"No charge will be made for this land, but the Pastor for the time being, will have the full and sole use of it as Glebe land, due regard being given to the requirements of the Church and Schools."

[3]

Over the next few years correspondence passed back and forth concerning the appointment of trustees for the purpose of holding the property and at some stage there are indications of a measure of division in the community giving rise to the Rev. Berg resigning his post and subsequently being recalled to it. In the course of this correspondence and the debates that lay behind it agreement appears to have been reached that ten acres of Lot 17 would suffice for the church and educational purposes contemplated in the gift and the remaining 90 acres would be used as glebe land for the benefit of the pastor. According to the correspondence there was an endeavour by Rev. Berg to secure the 90 acres for his own benefit free of any trust, but this was never accepted by the Board. It appears that by around 1887 it was settled that Lot 17 should be held by trustees for the benefit of the church and for educational purposes amongst the congregation, with 90 acres to be available as glebe land for the benefit of the pastor.

[4]

This situation was regularised by way of a Deed of Grant executed on 25 September 1908 under which the then governor of the Colony of Natal, acting on behalf of King Edward VII granted in freehold to certain named trustees:

"… as trustees in trust for the inhabitants of the Settlement of Marburg, their successors in office and assigns, who may, from time to time, be appointed … the Lot No.17 of the Settlement of Marburg, in the county of Alfred, containing 100 Acres, more or less, …"…"

The purpose of the grant was expressed as follows:

"To hold the same unto the said trustees and their successors in office, in trust for the purposes of schools and other public purposes of the settlement known as Marburg with full power and authority henceforth to possess the same in perpetuity, provided, however, that

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the said land shall not be alienated, nor shall it, without the consent of His Excellency the Governor in writing being first had and obtained, be mortgaged, charged or leased."

[5]

In 1972 proceedings were brought before this court to rectify the terms of the grant on the basis that it did not accord with the original arrangements between the community and the Natal Immigration Board and that application was granted. In the result the conditions under which the land was then held read:

"to hold the same until the said trustees and their successors in office in trust as to 10 acres for the purposes of the Marburg Norwegian Evangelical Lutheran Church at Marburg, province of Natal and for school purposes for the congregation of the said church, and as to the remaining 90 acres as and for Glebe Land to be utilised by the Pastor of the said church for the time being to aid in his sustenance of the settlement known as Marburg, with full power and authority henceforth to possess the same in perpetuity, provided, however, that the said land should not be alienated, nor shall it, without the consent of His Excellency the Governor in writing be first had and obtained, be mortgaged, charged or leased."

I suspect that the words "of the settlement known as Marburg" should also have been deleted when the deed was rectified, but fortunately this does not affect matters.

[6]

The effect of this rectification was to narrow considerably the purposes for which Lot 17 could be used. These were no longer general school and public purposes, but were now limited to purposes specific to the activities of the Norwegian Settlers Church and its pastor. This becomes of central importance in the determination of the issues in this case. Marburg has changed substantially since 1882 but the work of the church has continued. Not least amongst those changes has been the fact that the pastor of the church has not for many years needed to conduct farming operations on the glebe land in order to supplement his stipend. Instead, for many years, the land was leased for the growing of sugar cane.

[7]

In the mid 1990's the church embarked on an ambitious programme of expansion involving the construction of a care centre for patients suffering from Aids, a gymnasium for the particular purpose of reaching out to young people in the area, the provision of crèches and a number of other activities linked to the growth of the

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church and its outreach into the local community. All of this was highly commendable but it required finance. In order to realise this the decision was taken to dispose of portion of Lot 17 to a member of the church who agreed to pay R1 500 000.00 for some 25 hectares of land that had formerly formed part of the glebe land. Mr Neethling, who gave evidence on behalf of the plaintiffs, explained that this was not a market price but represented the funds that the church needed and that the purchaser, a Mr Robinson, who was also a member of the church, regarded a portion of the price as being his tithe or contribution to the church.

[8]

There then followed a lengthy process during which the church, represented by its attorney, Mr D Kent, sought to address the issues arising from the sale of this land to Mr Robinson. This process appears to have commenced in 1997. On 28 July 1998 approval was given for the sub-division of Lot 17 in terms of the Subdivision of Agricultural Land Act, 1970. Thereafter attention was focussed on the rectified provisions of the deed of grant that are quoted above and various routes were taken to seek the removal of the restrictions embodied in that provision. It is unnecessary to trace that process. It culminated with a letter dated 1 November 2002 addressed by Mr Kent to the Director of State Property Holdings in the Department of Public Works explaining that the trustees wished to dispose of 25.7206 hectares forming part of the original lot and explaining that the disposal of this piece of land and the use of the funds by the church would assist the church in establishing residential accommodation for its pastors...