NORTH-EASTERN NATIVE APPEAL COURT,

30 Ashton, Permanent

Member: —

I agree that theappeal must be upheld andthat thespoliation order asked for must be granted. 1

am

in

some

doubt as to whether the

common

law^“

mandament

van spolie”hasits exact counterpart in the Native law system but even df there is no counterpart the judgment is stilLthe right one. Applicant wasa

widow

and presumably an adult

—

_-tocureanydefectinherstatus that there might be she took the precaution ofciting her father as assisting her in the application

—

and ^shehad a

common

law right against the world not to be despoiled of the possession of the articles listed in her affidavit. She was, therefore, entitled to have the articles restored to her possession and this is what thejudgment of this Court effects.

Marais,

Member:

I concur.

For Appellant: Adv. A. S. v. d. Spuy, instructed by Jackson

&

Joubert.

For Respondent: Adv. R. van Rooyen, instructed by Bekker, Brink

&

^Brink.

31 Menge, President:

—

The

appellant was the applicant in the Native Commissioner’s Court fora spoliation order. His case according to his affidavit is this:

He

is the “Presiding Minister of the Ethiopian Church of South Africa”.

As

from the 11th February, 1959 he was in lawful, undisturbed possession and control of a church building and a dwelling-house belonging to the saidchurch.

On

the 21st February he went

away

on duty, having locked the dwelling and retained the key, and leaving certain of his belongings in the dwelling; and between the 21st February and the 18th

March

the respondents

moved

into these premises.

The

first respondent was in the dwelling to which a

new

lock had

been fitted and the second respondent had possession of the key of a lock which had been affixed to the church building.

The

applicant asked that hispossession be restored and that the rule nisiserve as an interim interdict.

The

rule nisi was granted and thereafter the respondents filed replying affidavits. In thesethey do not denyany of the allega- tions

made

by the applicant save that they deny that he is the presiding minister of the church. Their case is (a) that the applicant has no locus standi to bring the application and ₍b) that, in as

much

as the executor of the late“_registered owner^” of the building had authorised them to take possession thereof in 1958, they and not the applicant are entitled to occupation.

The

latter allegation is ofcourse irrelevant andis no reply to the application; but in regard to the former the respondents’

reasoning is “That the said church has no legal personna (sic), as the said church has not been recognised by the Department ofNativeAffairs^”.

On

the return day evidence was given on behalf of the respondents by one Melrose Seshube

who

claims to be ^“

Hoof

in diehele land^”of'the “ Ethiopian Kerk”.

He

went on to say that no single person has the right to “ besluit oor die geboue^” and ^“Die

Kerk

word beheer deur

Rade

en Trustees^”.

Under

cross-examination, however, he stated that there is a split in the church and that two groups, to one of which he and the respondents belong, are contending forauthority, andthat a case

is

now

pending in the Supreme Court to decide which group

is tobe in authority.

No

^further evidence was tendered. Thereupon the Native Commissioner dismissed the application, holding that the applicant had no locus standito bring the action.

He

relied on the case of

Mpunga

v.

Malaba

1959 ((1) S.A. 853.

The

applicant

now

appeals on grounds which, briefly stated, contend that he did have rights over and above the interest which he has as a minister or servant of the church. This is

one aspect, but there is another. In Mpunga’s case, where the broad facts were very similar, the Court refused the application because on the applicant’s

own

showing (to quote from page 862 of the report) the “ user of the key, rested clearly, on the evidence, with the Deacon’s Court”, a properly constituted body which had entrusted the applicant with the care of the key, and which the Court accepted as lawfully entitled so to dispose of the key. Consequently, on the evidence, the applicant was merely a servant of a master and had no rights above those which he had qua servant.

But in the present! case there is nothing to

show

that the applicant is merely the servant of a church body. Apart from the fact that, as counsel argued before us, there certainly seems inregard to the residence to be a personal right over and above what would be held as a mere servant of a principal, there is

32

nothing to

show

that the applicant has a principal. In his applicationhe alleges that he hascontrol.

The

evidence adduced does not establish that any other person or body has control.

The

finding of the Native Commissioner that “according to the constitution of the Ethopian Church of South Africa, buildings of the church at Leslie are controlled by a church council”

is unjustified.

The

witness did not mention the EthopianChurch of South Africa in his evidence; but even if one assumes that he meant that church it is clear that, whatever

may

have been thepositionatonetime,there isnolonger acontrolling authority

—

not until the courts have decided the dispute. Besides being unjustified on the evidence the finding is quite vague. It does not necessarily convey that the exercise of control by the applicant is in any

way

unconstitutional.

The

furtherstatement by the Native Commissioner that “There was allegation in the pleadings that plaintiff sued in a representative capacity ” is

wrong.

The

applicant merely described himself, quite un- necessarily, as a minister of the church, but he did not say or convey he was suing in a representative capacity; and the defendants emphatically deny that he represents the church.

As

theonly defencetothe applicationfailstheapplicantshould have succeeded.

The

appeal is upheld with costs and the judg- ment of the Native Commissioner altered to read: “Interim order confirmed with costs as prayed^”.

Ashton, Permanent

Member: —

It seems to

me

that all that is necessary for the correct decision of this case is to find out whether applicant was a servant of the Church or not and whether he “ occupied^” the buildings as such a servant for the church or not. If he did exercise his rights as a servant of the Church for the Church then in conformity with the ruling in Mpunga’s case it was the Church and not he

who

had the right to instituteproceedings.

In his affidavit applicant claimed to be ^“a Presiding Minister of theEthopian Church of South Africa ”and tohavepossession and control of the premises in succession to his predecessor in office

who

had occupied them for the previous six years.

He made

noclaim as did the plaintiffin Mpunga’s case to the “use of the key for the purposes of control of the building” which

“was entirely at the discretion of the Deacons’ Court, whose orders the plaintiff had to obey

In thecase fortherespondentsthere wasa denial thatapplicant was the Presiding Minister of the Church because the Church was not a legal pcrsoita as it had no Departmental recognition and it was contended that consequently application had no locusstandi.

The

respondent sought to

show

by evidence that by the Church’s constitution the possession and control of its property vested in a ^“Kerkraad^” or General Board of Trustees but the Constitution was not put in and all that was done was to call the self-styled “

Hoof

van die

Kerk

in die hele land ”

who

testified to what inhis opinion was the content of the constitu- tion on thesubject.

It is clear that the respondents’ attack on the applicant’s locus standi failed and as the case was decided on that point, the appeal must succeed.

Marais,

Member:

I concur.

For Appellant: Adv. J. Broude, instructed by Ferreira

&

^van

der Merwe.

For Respondent: ^J. L. Taitz,ofSherman,Taitz

&

^Sacks.

33