It appears from evidence led in the case that this Church body was tounded by Samson Ramokonopi m 1942 when he became President, with headquarters at Germiston. On the 22nd June, 1945, a document was drawn up, the preamble of which reads as follows:-
ELECTlON OF THE SYNOD OF BANTU REFORMED CHURCH OF S.A., 22No JUNE, 1945.
We hereby certify in the name of the High Synod of the Bantu Reformed Church of S.A. that the tollowing are the proper Rules of the Constitution.
The following were elected Committee to draft Constitution in 1945:-
(l) Mr. J. Nkaki, Secretary.
(2) Rev. E. Aau, Chairman.
(3) Rev. S. Ramokonopi, Superintendent.
CONSTITUTION.
The relevant portions of the Constitution are:-
(2) Wherever Bantu Reformed Church exists the congregation is represented by a Committee of Elders and Officers, elected according to the Constitution, through Notices served for three weeks in Church. (See Exodus, Chap. 19,
vs. 13-27. Acts, Chap. 6, vs. 1-6.)
(3) Every Bantu Reformed Church is represented by the Synod, that is by officers delegated by members of the Church by Ministers and Evangelists.
7. All Bantu Reformed Churches are to be as one body under one Law.
11. Church Committees are to solve all disputes and cases which affect the Church of God.
20. The Synod binds that any meeting of Ministers and Evange- lists shall be summoned through a written application signed or recommended by the Ministers and Evangelists and this to be announced in Church for three weeks; if the meeting is approved or not this shall also be made in writing and announced in Church.
23. The Synod binds that a Minister, Evangelist or Church Elder who obstructs the work shall be summoned to the Church Committee immediaely and be shown his mistakes, if he refuses or ignores the call, shall at once forfeit his office on the written authority of the Supenntendent and a M1nister.
24. The Synod binds that Church ordinary members can only be dealt with by the Church Committee. but Elders and those in the service of the Church shall be dealt with by the Synod.
There is no provision whatever in this 1945 Constitution as to the manner in which Church Committees must be elected. Rule 2 states that Committees are "elected according to the Constitu- tion " but as to the manner of election the rules are silent. Now.
on the 22nd June, 1945, Jonathan Tsuene, first defendant, was appointed Evangelist at Bloemfontein. On 28th June, 1947, he appears to have been dismissed from office by resolution of a Synodal Committee and by written notice signed by E. M. Aau, Chairman, Samson Ramokonopi, President, Jacobs Nkoko, Secretary (Exhibit C).
Apparently first defendant did not give up his office or control of Church property. Legal proceedings followed against him before the Native Commissioner at Bloemfontein in 1948. A settlement was arrived at which was made an order of Court.
The settlement required both contending Church Committees to resign, in order that a new Committee should be elected at a meeting called for the purpose under the Chairmanship of Mr.
Viljoen, the Location Manager. As a result of this meeting all the present defendants, except first defendant, were elected to
the new Committee and they have taken control of the Church property at Bloemfontein for delivery of which they are now being sued by plaintiffs. Apparently the new Committee reinstated first defendant as Evangelist.
Plaintiffs purport to come into this case in the following manner. At a Synod held at Clocolan on 11 September, 1948, while fully supporting and confirming the judgment of the Native Commissioner on 4 August, 1948, they refused to confirm the election of the new Church Committee. they expeEed first defen- dant from the Church, they (the Synod) "elected and confirmed the following members (16 mentioned) as a True Body of Counsellors of Bantu Reformed Church of S.A. in Bloemfonte;n ".
According to the 1945 Constitution there is no provision by which the Synod could itself appoint a Church Committee. Its action therefore in purporting to appoint the Bloemfontein Committee was unconstitutional. The present plaintiffs have stated that they were not prepared to abide by the Order of Court. Yet paradoxically they do seem to realise that a Church body, being a voluntary association, can obtain enforcement of its rules only by order of Court. In our opinion the Committee elected by the Church Congregation as a result of the order of the Court was properly elected and is or was the duly elected Church Committee at Bloemfontein. The Synod had no con- stitutional power or authority to discard or dismiss it. It is common cause in this case that there are two factions in the Bloemfontein Church, one supported by plaintiffs and the other represented by defendants. Plaintiffs section comprise 260 members whereas defendants' section have 500 members. Never- theless, in pursuance of their dissatisfaction with the existing state of affairs and unwilling to give their support to the large majority of the members of the Church in Bloemfontein, the plaintiffs, as now represented by the persons who gave evidence in this case, again acted in an unconstitutional way when in June, 1949, at a Synod called at Germiston for the sole purpose of dealing with some trouble at Germiston in which the President of the Church was involved, they proceeded to draw up a new Constitu- tion, in which. inter alia, they gave themselves tuil control of all church property, they dismissed their President, Samson Ramo- konopi, from the Church and they excommunicated the present defendants for "Having refused and failed to comply with the terms of agreement arrived at in the presence of the Native Commissioner on 17 September, 1949 ". (The date 17th Septem- ber, 1949, is apparently intended for 4th August, 1948, as we can find no reference. on the record to any agreement before the Native Commissioner on 17th September, 1949.)
We are totally at a loss to understand the reaso!ls given by the Synod for the excommunication of defendants. The evidence discloses that defendants faithfully complied with the agreement arrived at before the Native Commissioner whereas the plaintiffs themselves are the very ones who have repudiated this agreement.
It might be as well to quote an extract from the evidence to indicate the manner in which the affairs of this Church body seem to be conducted.
Esaia Aau, who claimed to be a member of the Synod of the Ban tu Reformed Church and its Chairman stated: "The meeting took place in the Municipal Hall at Germiston. It was on 18th and 19th June, 1949. Rev. Ramokonopi was absent at the Synod meeting. He refused to come. He was given notice of the meeting. He was given written notice by the Secretary and I also wrote to him. Before 18-19 June, 1949, he was still a member of the Executive of the Synod. He was the President of the Synod before June, 1949, i.e. up to the time of the meeting of the Synod. He refused to call the meeting for the 18th and 19th June, 1949. I had a right to convene the Synod because I was the Chairman of the Synod. I spoke to Ramoko- nopi about trouble that we had at Germiston but he refused to
43
convene the Synod. I do not know why he refused. Ramokonopi was the President of the Executive Committee at that time and I was the Chairman of the Synod and Executive Committee. The Executive Committee had to appoint dates for the Synodal meetings. I told the President that there was trouble at Germis- ton and he said that I could convene a meeting but that he would not go to Germiston. He told me I can convene the meeting and the meeting was for the sole purpose of enquiring into the trouble at Germiston. That was the only notice that he had from me of the meeting. At this meeting (Synod) complaints were made against Mr. Ramokonopi and I then decided to discard him. Mr. Ramokonopi was informed of the complaints against him after he was discarded and also before the meeting. It was done in writing before the meeting. He knew what the position of the Synod was after the meeting of the Synod.
"The Constitution of the Bantu Reform Church, Ex. A. 1 wa.;
agreed to by the Synod on 18th and 19th June, 1949. The Bloemfontein Congregation of the Bantu Reformed Church was represented at the Synod by Letsela, Nkoale and I think Siiio.
The Council elected in terms of the Court's Order was not represented at the Synod. Letsela and Nkoale and Sillo agreed to the Constitution of the Church. Ex. A. 1. They agreed on behalf of the Bloemfontein congregation. They agreed in writing to the constitution. !hey were g1ven authority by the congregation of Bloemlontein and its Council to represent the Bloemtontein Congregation."
There is nothing in the Constitution to support or authorise the actions of this witness in his capacity as Chairman.
We are of opinion that here, too, the plaintiffs have acted in an unconstitutional way in adopting a new constitution without having convened a meeting of the Synod for that special purpose.
Rule 3 of the 1945 Constitution lays down that delegates to the Synod must be chosen by members of the Church, f\linisters and Evangelists. We have seen that the Synod, or may be Synod Committee, nominated their own committee at Bloemfontein and that members from this nominated committee represented Bloem- fontem at the June, 1949. Synod at Germ1ston. 1 hese delegates were not elected, in terms of the Constitution, by members of the Church and they were therefore not duly constitUted delegates or members of the Synod. The action of the Clocolan Synod was in conflict with the principles of natural justice in that they (the Synod) arbitrarily nommated a committee from among the minority section of the church congregation, in conflict With the right of the majority to elect their own Committee. Not only, therefore, was the ~ynod at Gern11ston .n June, 1949, wrong m dealing with matters for which the Synod was not called together but its membership in so far as the delegates from Bloemfontein were concerned. was unconstitutional and any resolutions passed would be invalid (See Dwane v. Goza and Others, 17, E.D.C., 16).
One of the objections in defendants' plea to this claim was that the persons who purport to sue as the Synod ot the Bantu Reformed Church of South Africa are not in fact the lawful Synod of the said church.
On a review of the evidence in this case we are gravely of opinion that there is substance in th1s allegation of de.enoants.
The persons who appeared at the trial as representing the plaintiffs appear to have obtained control of the affairs of this church body by means which are not authorised in any written constitution. It is not our function to interfere in their internal affairs but where a body seeks to enforce legal rights, the possession of those rights must be clearly shown to be well founded. The Native Com- missioner came to the conclusion that the plaintiffs had not proved their right to relief as against the defendants.
We are of opinion that the Native Commissioner's judgment was correct.
4.
The appeal is dismissed with costs.
For Appellant: Mr. E. B. Horscroft, Bloemfontein.
For Respondent: Adv. J. P. G. Eksteen, instructed by Mr.
Geo. Arvan, Bloemfontein.