United Apostolic Faith Church v Boksburg Christian Academy

• Jurisdiction: South Africa
• Citation: 2011 (6) SA 156 (GSJ)

United Apostolic Faith Church v Boksburg Christian Academy
2011 (6) SA 156 (GSJ)

2011 (6) SA p156

Citation	2011 (6) SA 156 (GSJ)
Case No	08/18662
Court	South Gauteng High Court, Johannesburg
Judge	Willis J
Heard	April 18-21, 2011; April 28, 2011; April 29, 2011
Judgment	June 2, 2011
Counsel	MW Verster (attorney) for the plaintiff.; JJ Botha for the defendant.

Flynote : Sleutelwoorde F

Ejectment — Ownership and locus standi — Church seeking to evict school operating on land registered in name of church's parent body in England G in 1945 — Church having gained administrative autonomy — Church's constitution allowing it to acquire rights and obligations in own name — Having authority to exercise rights and duties in relation to ownership of property — If ownership still vested in English body, church bona fide possessor with a right in rem giving rise to right to apply for eviction order — By necessary implication, church having taken cession of immovable property H rights from English body — Deeds Registries Act 47 of 1937, s 16.

Headnote : Kopnota

A church sought the eviction of a school that had been operating from its land, ownership of which had been registered in the name of the parent body of the church in England in 1945. Though the church had its origins in England, it later gained administrative autonomy from the English governing I body and had since twice revised its constitution.

The school contended that the church had failed to prove ownership of the property, and had failed to establish locus standi. It argued that the church would have to go back to the highest governing body in England to obtain approval for the eviction order, alternatively seek their approval for the transfer from the English church (or its governing body) into the name of J the South African church. Reliance was placed on s 16 of the Deeds

2011 (6) SA p157

Registries Act 47 of 1937 which provided that ownership of land may be A conveyed only by means of a deed of transfer.

Held, that the church's current constitution provided that it shall be a body corporate with perpetual succession, capable of suing and being sued in its own name, and of acquiring rights and incurring obligations (including the power to own land and buildings) separately and distinctly from its members. It was clear that the church was indeed a universitas capable of acquiring rights and obligations separate from its members. It was also capable of B suing and being sued in its own name. (Paragraphs [9] – [11] at 160I – 161D.)

Held, further, that upon a proper understanding of the facts and the law pertaining to the situation, the highest governing body of the church in South Africa at any particular time had always had authority to exercise the C rights and duties relating to ownership of the property. The church had been properly cited as the plaintiff. It was the owner of the property in question and had locus standi. (Paragraph [15] at 162A – B.)

Held, further, that, even if it were accepted that ownership of the property remained vested in the English church or the governing body thereof, a person in bona fide possession of immovable property acquired a right in D rem which gave rise to the right to apply for an eviction order. The church was clearly the bona fide possessor of the property and, as such, entitled to apply for the ejectment of others occupying it. (Paragraph [16] at 162C – D.)

Held, further, that if transfer or cession were indeed a necessary requirement for a person to seek the ejectment of persons occupying immovable property, then it was clear, on a balance of probabilities, that the church in E South Africa (or its governing body) must, by necessary implication, have taken cession from the church in England (or its governing body) of all rights in respect of immovable properties owned in South Africa. (Paragraph [17] at 162E – 163B.)

Cases Considered

Annotations: F

Reported cases

Southern Africa

Ahmadiyya Anjuman Ishaati-Islam Lahore (South Africa) and Another v Muslim Judicial Council (Cape) and Others 1983 (4) SA 855 (C): referred to G

Aktiebolaget Hässle and Another v Triomed (Pty) Ltd 2003 (1) SA 155 (SCA) ([2002] 4 All SA 138): referred to

Bantu Callies Football Club (also known as Pretoria Callies Football Club) v Motlhamme and Others 1978 (4) SA 486 (T): dictum at 489 applied

Buchholtz v Buchholtz 1980 (3) SA 424 (W): dictum at 424H – 425D applied H

Business Aviation Corporation (Pty) Ltd and Another v Rand Airport Holdings (Pty) Ltd 2006 (6) SA 605 (SCA) ([2007] 1 All SA 421): referred to

Buzzard Electrical (Pty) Ltd v 158 Jan Smuts Avenue Investments (Pty) Ltd en 'n Ander 1996 (4) SA 19 (A) ([1996] 3 All SA 1): dictum at 29I – J applied

Cupido v Kings Lodge Hotel 1999 (4) SA 257 (E): dictum at 263B – C and 264B applied

De Meillon v Montclair Society of the Methodist Church of Southern Africa I 1979 (3) SA 1365 (D): dictum at 1369D – E applied

Eduan Hoogtes (Pty) Ltd v Charin Electronics (Pty) Ltd 1973 (2) SA 795 (T): dictum at 796F – G applied

Ex parte Hamer 1946 OPD 164: referred to

Ex-TRTC United Workers Front and Others v Premier, Eastern Cape Province 2010 (2) SA 114 (ECB): dictum in paras [14] – [16] applied J

2011 (6) SA p158

Fellner v Minister of the Interior 1954 (4) SA 523 (A): referred to A

Glofinco v Absa Bank Ltd t/a United Bank 2002 (6) SA 470 (SCA): dictum in para [15] applied

Group Areas Development Board v Hurley NO 1961 (1) SA 123 (A): compared

Harris and Others v Minister of the Interior and Another 1952 (2) SA 428 (A): referred to

Heckroodt, NO v Gamiet 1959 (4) SA 244 (T): dictum at 246D – 247A applied B

Hughes v Savvas and Hira 1931 WLD 237: referred to

Interim Ward S 19 Council v Premier, Western Cape Province, and Others 1998 (3) SA 1056 (C): dictum at 1059H – 1061B applied

Jadwat and Moola v Seedat 1956 (4) SA 273 (N): referred to

Kanniappen v Govender 1962 (1) SA 101 (N): referred to

Kudu Granite Operations (Pty) Ltd v Caterna Ltd 2003 (5) SA 193 (SCA) ([2003] 3 All SA 1): dictum in para [17] applied C

Lechoana v Cloete and Others 1925 AD 536: dictum at 546 – 547 applied

Mndi v Malgas 2006 (2) SA 182 (E): dictum in para [22] applied

Namibian Minerals Corporation Ltd v Benguela Concessions Ltd 1997 (2) SA 548 (A) ([1997] 1 All SA 191): referred to

Ndlovu v Ngcobo; Bekker and Another v Jika 2003 (1) SA 113 (SCA) ([2002] 4 All SA 384): dictum in para [20] applied D

Nicholas v Wigglesworth 1937 NPD 376: referred to

Nortje en 'n Ander v Pool, NO 1966 (3) SA 96 (A): dictum at 106, 124A – C and 130E – F applied

Palabora Mining Co Ltd v Coetzer 1993 (3) SA 306 (T): dictum at 309C – D applied E

Parker v Rand Motor Transport Co and Another 1930 AD 353: dictum at 358 applied

Rex v Faithfull and Gray 1907 TS: referred to

Sandton Square Finance (Pty) Ltd and Others v Vigliotti and Another 1997 (1) SA 826 (W): dictum at 831A – B applied

South African Farmers' Representatives v Bonthuys 1930 CPD 132: referred to F

Trade Fairs and Promotions (Pty) Ltd v Thomson and Another 1984 (4) SA 177 (W): referred to

Wynland Construction (Pty) Ltd v Ashley-Smith en Andere 1985 (3) SA 798 (A): dictum at 812F – G applied.

England G

R v Secretary of State for the Home Department, Ex parte Daly [2001] 3 All ER 433 (HL): referred to.

Unreported cases

Governing Body of the Juma Musjid Primary School and Others v Essay and Others NNO H [2011] ZACC 13: discussed and compared.

Statutes Considered

Statutes

The Deeds Registries Act 47 of 1937, s 16: see Juta's Statutes of South Africa 2010/11 vol 6 at 3-49.

Case Information

I A church's claim for eviction against a school operating on its land.

MW Verster (attorney) for the plaintiff.

JJ Botha for the defendant.

Cur adv vult.

Postea (June 2). J

2011 (6) SA p159

Judgment

Willis J: A

[1] The plaintiff claims an order that 'the school or any person claiming occupation through or under it, be ordered to forthwith vacate the immovable property described as erf 1029, Boksburg North and situated at 24 Paul Kruger Street, Boksburg North to restore vacant possession thereof to the plaintiff' together with costs. In addition, the plaintiff seeks B an order that, in the event that the defendant or any other person claiming occupation refuses to vacate the premises as ordered by the court so to do, the sheriff may effect an eviction.

[2] The plaintiff originally approached the court by way of motion proceedings but, by reason of the disputes of fact, the case was referred C to trial. I think it will simplify matters if, as a general rule, I refer to the plaintiff as 'the church'. It will appear later that the 'defendant' has, in fact, no legal personality. It therefore cannot be evicted. I shall, however, in order to facilitate the reading of this judgment, refer to what several witnesses described as 'The Boksburg Christian Academy' as 'the D school'. Mr Barry Peter Hill and his wife, Brenda, have been operating a school known as the 'Boksburg Christian Academy' on the premises in question since 1999. They have applied the 'ACE' system of education. 'ACE' stands for 'Accelerated Christian Education'. Mr Hill is an engineer. His wife is a teacher. In 2000 Mr and Mrs Hill were ordained as elders of the church. They have since left the fold and worship elsewhere. E

[3] It is common cause that the school remains in occupation of the property despite having been given notice by the church to vacate on 6 March 2007, having been requested by the local church council to do so on 10 November 2006. After various attempts, involving attorneys F acting for both the church and the school, had failed to negotiate a settlement between the parties, a further letter was sent to the school on behalf of the church on 28 November 2008 advising the school to...