Uniting Presbyterian Church in Southern Africa v Reformed Presbyterian Church in Southern Africa (Tiyo Soga Memorial Congregation)

• Jurisdiction: South Africa
• Judge: Leach JA, Tshiqi JA, Zondi JA and CHG Van der Merwe JA and Dolamo AJA
• Judgment Date: 30 September 2019
• Docket Number: 1438/2018
• Court: Supreme Court of Appeal
• Hearing Date: 27 August 2019
• Citation: 2019 JDR 1853 (SCA)

Van der Merwe JA (Leach, Tshiqi and Zondi JJA and Dolamo AJA concurring):

[1]

The first appellant, the Uniting Presbyterian Church in Southern Africa (the UPCSA), is a voluntary association with legal personality. The second appellant is a constituent congregation of the UPCSA, situated in Langa, Cape Town (the Langa Congregation). The Langa Congregation forms part of the Western Cape Presbytery of the UPCSA. It is common cause that the Langa Congregation is a legal person in its own right. The first respondent is cited as the Reformed Presbyterian Church in Southern Africa (the RPCSA). Whether the persons who acted in the name of the RPCSA in this matter in fact represented that entity, is one of the issues in the appeal. For convenience I refer to them simply as the respondent.

[2]

The City of Cape Town (the City), a duly constituted municipality, is the second respondent. The City filed a helpful explanatory affidavit in the court a quo. It opposed only a portion of the relief claimed by the appellants, which relief the latter subsequently abandoned. The City abides the decision of this court. The third respondent, the Registrar of Deeds: Cape Town (the Registrar), did not participate in the appeal.

Litigation history:

[3]

The appeal concerns two adjoining properties occupied by the respondent, namely erven 546 and 547, Washington Street, Langa (the properties). As I shall explain, erf 546 is registered in the name of the RPCSA. The City is the registered owner of erf 547.

[4]

On 22 March 2005, the respondent, acting in the name of the RPCSA, submitted a written application to the City to purchase erf 546. After having followed its standard processes in this regard, the City approved the application. Consequently, the City entered into a written agreement of sale with the respondent, acting in the name of the RPCSA, in terms of which the City sold erf 546 to the respondent for the amount of R22 500. Pursuant to the agreement of sale, the Registrar registered erf 546 in the name of the RPCSA on 17 July 2007.

[5]

On 26 June 2008, the respondent, again acting in the name of the RPCSA, submitted an application to the City to purchase erf 547 as well. In terms of its

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Van der Merwe JA (Leach, Tshiqi and Zondi JJA and Dolamo AJA concurring)

standard procedures, the City published the application for public comment. This resulted in an objection to the application by the Langa Congregation. The attorneys of the Langa Congregation conveyed the grounds of the objection in a detailed letter to the City. As I shall explain fully, the essence of the objection was that the respondent neither constituted nor represented the RPCSA.

[6]

At about this time, the appellants became aware that erf 546 had already been sold and transferred as set out above. They consequently approached the Western Cape Division of the High Court, Cape Town, for an order aimed at setting aside the sale and transfer of erf 546, obliging the City to transfer it to the Langa Congregation and affording the Langa Congregation the opportunity to submit an application to purchase erf 547. That court (per Thulare AJ) dismissed the application with costs, but granted leave to the appellants to appeal to this court.

[7]

On appeal the appellants limited their claim for relief to an order: (a) setting aside the sale and transfer of erf 546 to the RPCSA; (b) interdicting the City from considering the respondent's application to purchase erf 547 until such time as the Langa Congregation has submitted its application to purchase erf 547. I proceed to consider whether the appellants made a case for any of this relief.

Background:

[8]

The properties have for many decades been used as a church hall (erf 546) and manse (erf 547). The RPCSA was previously known as the Bantu Presbyterian Church in Southern Africa. One of its congregations was the Tiyo Soga Memorial Congregation (the Tiyo Soga Congregation). The Tiyo Soga Congregation occupied the properties since at least 1940. The respondent averred that the Bantu Presbyterian Church in Southern Africa or the Tiyo Soga Congregation had during 1940 entered into a 99-year lease agreement in respect of the properties with the legal predecessor of the City. Although neither the respondent nor the City was able to produce such a lease agreement, the City did not dispute its existence.

[9]

During 1979 the Bantu Presbyterian Church in Southern Africa changed its name to the RPCSA. By that time the RPCSA consisted of 11 presbyteries situated across South Africa, each in turn consisting of several congregations. The RPCSA

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Van der Merwe JA (Leach, Tshiqi and Zondi JJA and Dolamo AJA concurring)

owned and had rights to various immovable properties. The majority of the members and worshippers of the RPCSA were black. Its mainly white counterpart was the Presbyterian Church of Southern Africa (the PCSA). The demise of apartheid led to the desire to unify the RPCSA and the PCSA. This set in motion a comprehensive process to constitute a new unified church.

[10]

During 1998, the highest decision-making body of each of the RPCSA and the PCSA, the general assembly, adopted a document entitled 'BASIS OF UNION: BETWEEN PRESBYTERIAN CHURCH OF SOUTHERN AFRICA (PCSA) AND REFORMED PRESBYTERIAN CHURCH IN SOUTHERN AFRICA (RPCSA)' (the Basis of Union). It was the principal constitutive document of the UPCSA, and it provided that the highest decision-making body of the UPCSA would be its general assembly. It also provided that each congregation of the RPCSA and the PCSA 'shall enjoy in the Uniting Church the status which it held in its own Church prior to union ...'.

[11]

In respect of property and investments, para 10 of the Basis of Union further provided:

'The properties and investments of the negotiating Churches shall become the properties and investments of the Uniting Church in the following manner:

(a)

fixed property formerly held by the General Assembly of the PCSA shall be re-registered in the name of The Uniting Presbyterian Church in Southern Africa;

(b)

fixed property formerly held by other Courts and congregations of the PCSA shall become the property of the corresponding bodies in the Uniting Church;

(c)

fixed property formerly held by the RPCSA shall be reregistered in the name of The Uniting Presbyterian Church in Southern Africa;

(d)

sites in former Black townships and areas which either of the negotiating Churches has leased or has permission to occupy shall be re-registered in the name of The Uniting Presbyterian Church in Southern Africa;

(e)

fixed property acquired after the formation of the Uniting Church shall be registered in the name of The Uniting Presbyterian Church in Southern Africa; and

(f)

all investment and other assets held and registered in the name of either of the negotiating Churches shall become the property of the Uniting Church.'

(I draw specific attention to para 10(d), which applies to the...