An application challenging the suspension of the Africa Evangelical Church’s Reverend Bheki Nxumalo was dismissed by the High Court.
High Court Judge Mumcy Dlamini issued the judgment last Friday and stated that Nxumalo’s local church lacked the legal standing to institute court proceedings. She said the application had been made by the Mankayane AEC Local Church Committee under the leadership of Thabo Nhleko, who is the chairperson.
The matter arose from a dispute over the suspension of Reverend Nxumalo, who is a pastor at the AEC’s Mankayane church.
The applicants had sought the court to review and set aside a decision they claimed was taken by the President of the AEC, Reverend Meshack Dladla, to suspend the pastor in September. They argued that the decision was unconstitutional, unlawful and outside Dladla’s powers. They contended that disciplinary matters at local churches fall within the mandate of local church committees and not the church board, which they said lacked original jurisdiction in such matters.
However, Reverend Dladla, AEC Regional Secretary Anson Zwane and Vincent Makhubu, who were respondents in the matter, denied that the president had personally issued the suspension. They raised several preliminary objections, including nonjoinder of relevant church structures, misjoinder of parties and the applicants’ lack of capacity to bring an action or to appear in a court.
In her ruling, Justice Dlamini noted a critical defect in the application: that the suspended pastor, who had a direct and substantial interest in the matter, did not depose to an affidavit or even file a confirmatory affidavit. As a result, she said key allegations, including service of the suspension letter and correspondence challenging it, were found to be hearsay and inadmissible.
She said the failure by Nxumalo to depose to an affidavit has adverse legal connotations, and that prayers seeking to set aside the suspension were fatally flawed on this basis alone.
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Regardless of these defects, the court proceeded to consider the merits of the application in the interests of justice. The judge examined the AEC constitution and found that the letter suspending the pastor emanated from the church board, whose chairperson is the church president and not from a local church structure.
Crucially, the court held that under Articles 4.5.2.7 and 4.5.2.9 of the AEC constitution, only the church board has the authority to sue or be sued and to sanction legal proceedings on behalf of the church. The constitution also provides that local church committees and their members, including ex officio members such as pastors, do not have the power to institute litigation against the church.
“The right to sue is the preserve of the church board,” Justice Dlamini said, stressing that church members must first exhaust internal remedies provided for in the church’s constitution before approaching the courts.
The judge further ruled that the church board did not act beyond its authority in suspending Reverend Nxumalo, as it is constitutionally empowered to administer the affairs of the church as a whole, receive challenges and resolve them.
Accordingly, the application was dismissed with costs, which the court ordered to be paid personally by the applicants, jointly and severally. The applicants were represented by N.E. Ginindza Attorneys.
