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Legal Issues Involving Succession Disputes among South African Churches: Some Lessons
Published online by Cambridge University Press: 27 April 2021
Abstract
South African Christian churches have been widely recognised as major civil institutions that play a role in the provision of social services to complement the state effort. But the concern is there has been an increase in the number of disputes involving leadership succession in these churches that have had to be adjudicated by the civil courts in the last decade. These disputes impact on the governance, growth, reputation and sustainability of churches. The South African Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL Rights Commission) identifies weak or lack of effective succession planning in the governing policies of churches as the major cause of these disputes. Against this backdrop, this article analyses some specific cases to explore how church policies influence succession disputes in South African churches. It further explores how the courts engage and interpret the governance policies of churches in the resolution of these disputes. The article reveals that the findings of the CRL Rights Commission are justified. It observes that, among other issues, some churches lack effective and workable succession planning in their governing policies. The policies on leadership succession of these churches are poorly drafted, thereby creating significant lacunae and vacuums leading to conflicts. The article concludes by identifying some lessons that churches can learn from the judicial approach in the resolution of disputes in order to enhance the quality of church policies, thereby reducing their exposure to succession disputes.
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- Copyright © The Author(s), 2021. Published by Cambridge University Press behalf of Ecclesiastical Law Society
Footnotes
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The author is indebted to Professor Helena Van Coller for her mentoring and comments on this article.
References
2 Sachs J in Christian Education South Africa v Minister of Education 2000 (4) SA 757 at para 33. Bentley, R, ‘Speaking to a higher authority: teaching philanthropy in religious settings’, (2002) 36 New Directions for Philanthropic Fundraising 21–36CrossRefGoogle Scholar; Schoeman, W, ‘The involvement of a South African church in a changing society’, (2012) 33:1 Verbum et Ecclesia 1–8 at 7CrossRefGoogle Scholar; P Strauss, ‘Mense in Hart van Kerkwees’, Volksblad, 21 January 2013, p 6; Swart, Ignatius, ‘Networks and partnerships for social justice? The pragmatic turn in the religious social development debate in South Africa’, (2005) 12:1 Religion and Theology 20–47CrossRefGoogle Scholar. A church in this context refers to a local congregation or religious community of a particular sect of a Christian denomination. It includes both the mainline and African Independent Churches.
3 E Goodchild, ‘Best corporate governance practices: financial accountability of selected churches in the Free State Province’, LLM thesis, University of the Free State (2016), pp 2–5.
4 Christian Education South Africa at para 33, citing Carmella, A, ‘Mary Ann Glendon on religious liberty: the social nature of the person and the public nature of religion’, (1998) 73:5 Notre Dame Law Review 1191–1216 at 1195Google Scholar.
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6 Goodchild, ‘Best corporate governance practices’, p 5.
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8 See, for instance, the cases of African National Church v Tsatsa (2308/2016) [2017] ZAFSHC 108; African Presbyterian Bafolisi Church of Southern Africa v Moloi (3775/2009) [2010] ZAFSHC 1; African Gospel Church v Ndyalivani (513/2014) [2015] ZAECBHC 6; Christian Catholic Apostolic Church in Zion v Hlamandlana (1499/14) [2015] ZAECMHC 51; Waanar v Emmanuel Pentecostal Mission Churches (Case No 27044/04, Gangen AJ, 11 December 2012); Church of God and Saints v Mzileni (Case No 669/94, Ebrahim AJ, 25 September 1997). Leadership succession in this context refers to a transition from one leader to another in a church.
9 The AICs are churches that have been started independently in Africa by Africans. In other words, they are churches that express Christianity in the African context. In the South African case of Mduduzi Shembe v Vela Shembe (AR 250/2017) [2018] ZAKZPHC 45 at para 18, Madondo DJP said, regarding the AICs: ‘In practice, in churches of this nature the application of the canon law is much blended with the application of traditional law and customs.’ Furthermore, according to Pieter Coetzen, this category of churches constitutes the highest population of Christians in South Africa, with a membership of 40.8 per cent of the total Christian population. See P Coertzen, ‘Constitution, charter and religions in South Africa’, (2014) 14 African Human Rights Law Journal 126–141 at 127.
10 See, for instance, the cases of The Presbyterian Church of Africa v Sihawu (3375/12) [2013] ZAECGHC 36; The Presbyterian Church of Africa v Peter (3045/2014) [2015] ZAECPEHC 40. The mainline churches, also known as the established or mainstream churches, are churches with long roots, often from connection to the colonial powers and missionaries, such as the Anglican Church of Southern Africa, which is in communion with the Church of England. Other examples of mainline churches include the Methodist Church, the Presbyterian Church, the Dutch Reformed Church and Seventh Day Adventists, among others.
11 For a similar experience in Nigeria, see I Akinloye, ‘Human flourishing, church leadership and legal disputes in Nigeria churches’, in C Green (ed), Law, Religion and Human Flourishing in Africa (Stellenbosch, 2019), pp 25–41. For Zimbabwe, see E Ruwona, ‘An investigation into the leadership retirement and succession systems and practices of churches in Zimbabwe: a study of the church of the Province of Central Africa (Anglican dioceses of Harare and Manicaland), Methodist Church in Zimbabwe and the United Methodist Church from assumption of first African leaders to present’, MA thesis, Africa Leadership and Management Academy (2009), pp 7, 13–17. For Kenya, see the cases of Board of Trustees of African Independent Pentecostal Church of Africa Church v Peter Mungai Kimani & 12 Ors (Civil Case No 285 of 2014); Andrew Inyolo Abwanza v Board of Trustees of Pentecostal Assemblies Of God – Kenya & 3 others [2009] eKLR; David Muli v Daniel Nzioki Muli & 2 Others (Civil Appeal 1 of 2005).
12 Akinloye, ‘Human flourishing’, pp 33–37.
13 I Lupu and R Tuttle, ‘Courts, clergy, and congregations: disputes between religious institutions and their leaders’, (2009) Georgetown Journal of Law & Public Policy 1–80.
14 See Van der Vyver, J, ‘Equality and sovereignty of religious institutions: a South African perspective’, (2012) 10 Santa Clara Journal of International Law 147–169Google Scholar; De Lange v The Presiding Bishop of the Methodist Church of South Africa 2015 (1) SA 106 (SCA) at para 39; Theron v Ring van Wellington van die NG Kerk 1976 (2) SA 1 (SCA); Taylor v Kurtstag 2005 (1) SA 362 (W).
15 2015 (1) SA 106 (SCA).
16 Nwauche, E, ‘A comment on the exclusive jurisdiction of domestic religious tribunals in South Africa: De Lange v The Presiding Bishop of Methodist Church of South Africa’, (2015) 4:2 Oxford Journal of Law and Religion 313–317 at 315CrossRefGoogle Scholar, emphasis added. See also E Nwauche, ‘The religious question and the South African Constitutional Court: Justice Ngcobo in Prince and De Lange’, (2017) 32:1–2 Southern African Public Law 1–17 at 6, where Nwauche argues that ‘the courts do enquire into matters that are ordinarily inherently religious and a fit for the religious question. Justice Sachs’ specific opinions in S v Lawrence reveal that the Court would engage with doctrinal matters … South African courts would engage with any religious claim pertaining to belief and/or practice, whether entangled or otherwise’.
17 G Van der Schyff, ‘Freedom of religious autonomy as an element of the right to freedom of religion’, (2003) 3:3 Journal of South African Law 512–539 at 527.
18 Unreported, Case No 40819/17.
19 I Akinloye ‘Examining the efficacy of church internal governance mechanisms in reducing legal disputes within South African and Nigerian churches’, PhD thesis, Rhodes University (2020), pp 94–95.
20 Ngewu v The Anglican Church of Southern Africa [2016] ZAKZPHC 88; H Van Coller, ‘The church, the bishop, and the missing money: a reflection on the case of Bishop Ngewu and the Anglican Church of Southern Africa’, (2017) 6:3 Oxford Journal of Law and Religion 610–618 at 614.
21 CRL Rights Commission, ‘Final report of the hearings on commercialisation of religion and abuse of peoples’ belief systems’, p 32 <https://www.gov.za/sites/default/files/gcis_document/201708/report-commecializationofreligionandabuseofpeoplesbelievesystems.pdf>, accessed 12 August 2019. The investigative study followed some complaints made to the commission and a number of media allegations regarding the commercialisation of religion and abuse of people's beliefs by certain religious organisations in the country. Section 181(c) of the Constitution of the Republic of South Africa 1996 establishes the CRL Right Commission as one of the State institutions to ‘strengthen constitutional democracy’ in the country. Section 185(1) provides for the functions of the commission, which include to ‘promote respect for the rights of cultural, religious and linguistic communities’ and also to ‘promote and develop peace, friendship, humanity, tolerance and national unity among cultural, religious and linguistic communities, on the basis of equality, non-discrimination and free association. Further, sections 5(1)(e) and 7 of the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities Act of 2002 empower the commission ‘to monitor and conduct an investigation on any issue concerning the rights of religious communities in South Africa’.
22 Shembe Church is an AIC in South Africa and is one of the largest church denominations in the country. See S Kumalo and M Mujinga, ‘Now we know that the enemy is from within: Shembeites and the struggle for control of Isaiah Shembe's legacy and the church’, (2017) 30:2 Journal for the Study of Religion 122–153 at 123, 135.
23 Cited in L Mpondwana, ‘Succession issues leading to conflicts in several South African churches’, 702, <http://www.702.co.za/articles/192926/succession-issues-leading-to-conflicts-in-several-south-african-churches>, accessed 11 January 2019.
24 O Afolabi, ‘Alternative dispute resolution: a tool for managing leadership conflict in a church’, (2018) 12:4 Journal of Leadership Studies 41–45 at 42.
25 H Black, Black's Law Dictionary (fifth edition, St Paul, MN, 1979), p 1283. See also, The South African Judicial Dictionary (Durban, 1960), p 771, where succession is defined as ‘a real right passed from a deceased person to a living person’.
26 R Hammar, Pastor, Church and Law (Springfield, MO, 1983), p 32.
27 For instance, in the Anglican Church, most of the principles of canon law do not bind those churches internationally but are of persuasive authority. However, at the international level, the 1983 Code of Canon Law of the Roman Catholic Church binds all the faithful of the Church, including bishops, clergy and laity.
28 Theron v Ring van Wellington van die NG Kerk; Taylor v Kurtstag; Ngewu. See also Van Coller, ‘The church, the bishop, and the missing money’.
29 See, for example, W Rothwell, Effective Succession Planning: ensuring leadership continuity and building talent from within (third edition, New York, 2005); P McKenna, ‘The leadership succession process: identifying, developing, electing’, (2015) 34:6 Of Counsel 6–11; R Charan, ‘Ending the CEO succession crisis’, (2005) 83:2 Harvard Business Review 72–81; R Khurana, Searching for a Corporate Savior: the irrational quest for charismatic CEOs (Princeton, NJ, 2002).
30 See B Pugh, ‘Succession plans: is there a biblical template?’, (2016) 36:3 Journal of the European Pentecostal Theological Association 117–130.
31 C Tushima, ‘Leadership succession patterns in the apostolic church as a template for critique of contemporary charismatic leadership succession patterns’, (2016) 72:1 HTS Teologiese Studies/Theological Studies 1–8, <https://hts.org.za/index.php/hts/article/view/2968/7375>, accessed 17 February 2021; E Johnson, ‘How congregations experience leadership: patterns of leadership succession in US Presbyterian and Methodist congregations’, paper presented at the American Sociological Association Annual Meeting, 2007, 1–23; R Ngomane and E Mahlangu, ‘Leadership mentoring and succession in the charismatic churches in Bushbuckridge’, (2014) 70:1 HTS Teologiese Studies/Theological Studies 1–10, <https://hts.org.za/index.php/HTS/article/view/2065>, accessed 17 February 2021; K Garfield, ‘The Graham succession’, Christian Century, 25 August 2009, pp 25–29.
32 Church polity is the operational and governance structure of a church. It denotes the ministerial and authority relationship and structure of a church.
33 K McDonagh, L Prybil and M Totten, ‘Leadership succession planning: a governance imperative’, (2003) 66:4 Journal for Hospital Governing Boards 15–18.
34 Ibid.
35 See above, note 9. See also R Hackett, ‘Regulating religious freedom in Africa’, (2011) 25 Emory International Law Review 853–879 at 856: the author, an American professor of religious studies who has undertaken several studies on religions in Africa, observes that the mainline religious organizations that have long enjoyed the patrimony of colonial and post-independence governments now find themselves threatened by AICs.
36 The Church of Nazareth is known for its long history of succession disputes, which have polarised the church into factions. In Shembe, five factions of the church were identified: those of Ekuphakameni, Ebuhleni, Ginyezinye, Thembezinhle and Johannesburg. See Mduduzi Shembe v Vela Shembe at para 24. However, the religious scholars Kumalo and Mujinga list seven factions: see Kumalo and Mujinga, ‘Now we know that the Enemy is from within’, pp 123, 135. In 1996, the number of members of the Shembe Church was put at 454,760: see Statistics South Africa Census 2001: Primary Tables South Africa Census ’96 and 2001 Compared, Report no 03-02-04 (Pretoria, 2001), p 25.
37 Mduduzi Shembe v Vela Shembe at paras 116, 191.
38 Ibid at para 70.
39 Ibid at paras 40, 199.
40 Ibid at paras 178, 189.
41 (4132/2011) [2011] ZAWCHC 380.
42 Mbewana v The Gospel Church of Power at para 5.
43 Ibid at para 9.
44 Ibid at paras 10, 12.
45 Ibid at paras 31, 36, 42(1), 42(3).
46 (6277/2014) [2018] ZAGPJHC 62.
47 It must be noted that this incident birthed other litigation. The court in this suit observed: ‘The present litigation is but one of a plethora of litigation which has ensued pursuant to the February meeting and the positions adopted by the respective parties.’ See Setsiba v Trans-Orange Conference at para 94.
48 Setsiba v Trans-Orange Conference at para 16.
49 Art 2(8) of the TOC constitution provides: ‘All officers and members of the executive committee who are not ex officio members shall be elected by the delegates at the regular meeting of the conference constituency and shall hold their office until the next regular meeting of the conference constituency, unless they resign or are removed from office, for cause, by the executive committee or a special constituency meeting. The election/appointment of departmental directors, associate departmental directors, associate secretaries, or associate treasurers, if not determined by the delegates at the conference constituency meeting, shall be referred to the executive committee.’
50 Setsiba v Trans-Orange Conference at paras 27, 29 and 44.
51 Ibid at para 31.
52 Ibid at paras 54–63.
53 Ibid at para 139.
54 Ibid at paras 13, 142, 144, 152.
55 P Awojobi, ‘Leadership conflict in the Nigerian church’, available at <http://www.biblicaltheology.com/Research/AwojobiPO01.pdf>, accessed 11 December 2018.
56 See similar cases, such as Waanar v Emmanuel Pentecostal Mission Churches; Church of God and Saints v Mzileni.
57 Setsiba v Trans-Orange Conference at paras 42, 58, 60.
58 Setsiba v Trans-Orange Conference, emphasis added.
59 Mbewana v The Gospel Church of Power at para 42(3).
60 Ibid at para 4(2).
61 Mduduzi Shembe v Vela Shembe at paras 181, 130.
62 Mduduzi Shembe v Vela Shembe at paras 170–171, emphasis added.
63 Mbewana v The Gospel Church of Power at paras 31, 42(1). In the case of the Church of God and Saints v Mzileni at pp 9–10, the court similarly identified the uncertainty in the multiple governing documents as one of the causes of the dispute and lamented the non-clarity of the church documents.
64 Mduduzi Shembe v Vela Shembe at paras 163, 165.
65 Mpondwana, ‘Succession issues’.
66 I Ekwo, Incorporated Trustees: law and practice in Nigeria (Durban, 2007), p 74.
67 Mduduzi Shembe v Vela Shembe at paras 117, 181.
68 Mbewana v The Gospel Church of Power at para 16.
69 Mduduzi Shembe v Vela Shembeparas at para 181.
70 B Sundkler, The Christian Ministry in Africa (London, 1962), p 128. See also P Kohls, ‘A look at church leadership in Africa’, (1998) 17:2 Africa Journal of Evangelical Theology 107–126 at 114; I Zokoue, ‘Educating for servant leadership in Africa’, (1990) 9:1 Africa Journal of Evangelical Theology 3–13; M Matshobane and M Masango, ‘Understanding power struggles in the Pentecostal Church government’, (2018) 74:1 HTS Teologiese Studies/Theological Studies 1–6, <http://www.scielo.org.za/pdf/hts/v74n1/55.pdf>, accessed 17 February 2021.
71 B Garner, Black's Law Dictionary (tenth edition, Saint Paul, MN, 2014), p 95. According to S Ware, Alternative Dispute Resolution (St Paul, MN, 2001) pp 5–6, ADR encompasses ‘all legally permitted processes of dispute resolution other than litigation’.
72 Afolabi, ‘Alternative dispute resolution’, p 42.
73 Setsiba v Trans-Orange Conference at para 110: ‘Although there are factual disputes regarding exactly what occurred in certain instances, it is not disputed that there were attempts at engagement and resolution over a protracted period of time.’
74 S Shippee, ‘Blessed are the peacemakers: faith-based approaches to dispute resolution’, (2002) 9:1 ILSA Journal of International and Comparative Law 237–255 at 240.
75 Afolabi, ‘Alternative dispute resolution’, 42.
76 M Broyde, ‘Faith-based arbitration evaluated: the policy arguments for and against religious arbitration in America’, (2018) 33:3 Journal of Law and Religion 340–389 at 340.
77 Akinloye, ‘Human flourishing’, p 39; Shippee, ‘Blessed are the peacemakers’, pp 241–242.
78 Mduduzi Shembe v Vela Shembe at paras 40, 130, 199.
79 Setsiba v Trans-Orange Conference, paras 36–39, emphasis added.
80 Mduduzi Shembe v Vela Shembe at para 207.
81 Ibid at paras 119–120, 122, 163.
82 Mbewana v The Gospel Church of Power para 36.
83 Church of God and Saints v Mzileni at p 11.
84 Mbewana v The Gospel Church of Power at para 36.
85 Mbombo v Diocese of Highveld (Case No 49468/2010) [2011] ZAGPJHC 93 at para 52.
86 For example of cases where the issue of fair hearing was raised in the removal of a church pastor, see Mbombo v Diocese of Highveld; De Lange v The Presiding Bishop; Fortuin v Church of Christ Mission of the Republic of South Africa (3626/15) [2016] ZAECPEHC 18.
87 Setsiba v Trans-Orange Conference at para 132.
88 Ibid at paras 13, 144, 152. See further Mazwi v Fort Beaufort United Congregational Church of South Africa (Case No 3865/2009) [2010] ZAECGHC 123.