Church and the Court: Some Comments

by koot van wyk (DLitt et Phil; ThD)

Kyungpook National University

Sangju Campus

South Korea

conjoint lecturer of Avondale College

Australia

20 October 2009

There will be many interpretations surrounding the recent Court case in the Bloemfontein High-Court of Justice with a contention between members of the Seventh Day Adventist Church and the SDA Union, Division and General Conference.

Biblically

The Bible has clear references to indicate that the civil court systems should not be considered fit to make judgements over church affairs or issues related to church affairs. Whether the case was a victory for one or both parties, a polarization into two opposing sides in a public court expecting a non-SDA to decide on SDA matters is very risky and very irresponsible. In the case of the Bloemfontein Judge in October of 2009, the SDA sides were in a way fortunate that he may have been a member of some Protestant church himself and thus, could empathize with the tension one whatever side it existed. It is clear from the Judges' comments and approach of reconciliation that he did not want to designate or decide on the costs of the Court case since he felt that they have to work in future together and should he judge on the costs to one side, he will polarize the church just further in future. One can be very thankful for his deep wisdom in this case. But, wisdom it will not always be and a Christian judge it will also not always be, and that is why it is risky and irresponsible to go this far.

Ultra vires

It is logical and sensible to research for both sides long in advance whether their actions are ultra vires or not. When a constitution or rules or principles are spelled out or embodied in a guideline like Church Manual or any other document considered binding by both parties, the first thing they have to do is to compare their actions to the clear statements and requirements set in these guidelines. The Church Manual is a careful document using the Bible and Spirit of Prophecy as in the counsel of Ellen White to provide a modus operandi, a way of action for a member or for the Conference administration.

In Trust

It should have been clear by the Administration of the Church that they are holding the church in trust for the members. This means that the local members or any member cannot just sell the church without a complicated process and procedure that involves all the members of that local church or the administration (conference, union, division, GC). To keep it in trust means that the Administration is owner in trust. They cannot really own it but has paternal functions (bona fide functions) goodwill functions on behalf of the local church members and the property where they worship. Just like the procedures of Church Manual guides, the local members are the real owners of their place of worship. In reality it must be remembered that most of the times 80% of the costs for the building of the place of worship came from the local members and that the conference may have contributed 20% of the costs. It is irresponsible for the administration to embark on activities and actions that overlook its local members feelings, decisions and actions. They need to be consulted and convinced for sensitive issues to succeed. Consultation is the key word here as spelled out by Church Manual and also the Bible.

Costs

The Christian Judge wanted reconciliation between both parties in future and thus made his Christian decision that costs would not be allocated to one side only since it would just continue the disparity between the members and administration further and they will have to work together in future. Wisdom of Solomon decision. In future court dealings, the situation may not be so "Christian". That is why the Bible asks us to stay away from civil jurisprudence to decide over our issues.

Adventist structure

The Adventist church has a hierarchy in function but not in form since the members are the highest form of operation. However, the members are not all-powerful to deal with all issues and that is why the higher function has the power to steer in matters outside the qualifications and ability of the local members. Although doctrines are accepted by members and constantly be investigated for example, it is also the task of the scholars interacting with the administration that demarcate the doctrinal interpretations in the light of the pioneers, history, present tendencies, biblical and guidelines by Ellen White. This is a tedious task and no single member can count himself able to ride this horse alone. So the functional hierarchy is the instrument through which one member can bring his doctrinal issues to be investigated.

Merging plans

The General Conference, probably due to tight budgets, wanted to  merge many conferences that are just a duplication of funds? There is nothing wrong with merging per se and that will be easy and smooth in a society that is uni-cultural. In a plural society and especially in a multi-cultural society, this situation is not that simple. The interesting thing is about the South African problem recently is that all parties actually decided to merge in 2005 but that there was not a willingness to take certain decisions back to the members or session to modify, or vote on it. Certain procedures were sidestepped and the judge was clear on that issue. The judge said that he could not decide whether merging is wrong since it did not happen yet. He cannot decide on something that may happen, only on something that really happened. This is not wisdom, it is a natural rule of law. Members and the Administration should study law better to know what they content or not since this could have been predicted already before their approach to the court.

Books closed what next?

The members were responsible for the action against the Administration. The members know what the Administration wants to do and it is the members that now must decide what they want under current circumstances. The judge did not place the members on a throne since the Administration is still owner in trust of the local churches. The member has a spiritual, biblical responsibility to his community for the carrying out of the task of mission and evangelization. Making swords to politically fight the administration at court or in any other way, is not the way to progress of the mission and task of the church. The Administration must take their task to multi-cultural societies very careful and in accordance with the guidelines provided by the Church Manual, Bible and Ellen White. Their powers are limited by the sources. And yet, they have a responsibility that they cannot run away from. Wisdom is what is needed and moving forward on the knees.

Pulled out churches

Pastor Eddy Harris is to be complemented and not scorned for pulling out of the court case. The two churches of the Cape Conference which pulled out of the case, did the right thing. Right, because it is the biblical and spiritual thing to do. Yes, the eggs of the Cape Conference cannot now be unscrambled since they pulled out of the proceedings before the case, but there is a God in control of His affairs and He knows why He said that no civil justice should be approached for our ecclesiastical issues. Their faith will grow since the Holy Spirit is satisfied with their actions. Since the books are closed, the case is over, members are to get back to the tasks outlined by Jesus for us in our mission as members of the remnant.

Eschatological vision

We are in the end of time and soon we will have to maybe ran away from the very churches that we cherished to leave cities and towns for our lives. A persecuting society is a future prediction for the Time of Jacob's Trouble to come before the coming of Jesus. We are in the 12th hour. It is not wise to waste precious time and especially money, on cases like this.

Dear God

May this action not repeat itself again. All of us from time to time overstep our limits but Great Guide of our footsteps and Holder of our hands, take control of us to walk the way Jesus did and cleanse us from our own selfish gains, we all pray

Amen 

APPENDIX

CASE RESULTS AS PROVIDED BY AN E-MAIL

Subject:

COURTCASE JUDGEMENT - BLOEMFONTEIN HIGH-COURT

Date: Mon, 19 Oct 2009 18:58:34 +0200

Greetings All,

During the past few weeks many inquiries regarding the judgment emanating from the High Court in Bloemfontein have been received.  We enclose the following attachments:

A.  Court Case Bloemfontein Memorandum from the Advocate

B.  Court Case Bloemfontein : Judgement by Judge

SUMMARY:

The judgment has produced a mixed result.  These can be summarized as follows:

The gains The court found that members, churches and congregations indeed have a legal interest, and a legal right, and is regarded by the courts as legal persona or universitas in any decisions which may affect them when taken by the higher hierarchy/leadership of the church.  This is a very positive development for members, churches, and the plaintiffs in this case, and negates the statements by the SAU/SID (and in effect the GC) and their contention that the church member, church or congregation has no legal right to challenge them in any decision, even in court. The SAU/SID relentlessly attempted to have the case thrown out of court under the legal term "Absolution".  Any future decisions, especially in relation to unilateral or illegal merging, realignment or re-structuring in the Tvl or TOC conferences, need to be carefully watched by the constituents of these conferences, because now the doors have been opened for legal challenges should they step out of line or work outside the Church Manual or Church Constitutions. The SAU/SID should take careful note of this particular aspect of the judgment.

The losses  to the members, churches and the plaintiffs was that the judgment did not go in favour of having the re-alignment declared "ultra vires", as the Judge could not rule on an event which had not yet happened with the Tvl or TOC conferences.   As we know, these inland conferences did not merge, or realign, or restructure, due to the fact that the unfamiliar "Organising Session" held in St Georges hotel was disrupted and brought to a halt by the delegates themselves.  As far as the Cape Conference was concerned, due to the fact that the two churches who were the original plaintiffs (Strand Church and Hermanus Church), were deliberately, actively and emotionally targeted/coerced by Pastor Eddie Harris(under instruction from the Cape Conference, to withdraw 24 hours prior to the court case commencing, this effectively pulling the plug as the plaintiffs of the Cape Conference. (the convenient argument used by the SAU in the Court was that this egg could now not be unscrambled).  These churches needed to remain  as plaintiffs for the case to have been successful as far as the Cape Conference is concerned.  By default the SAU/SID seems to have been successful in re-structuring/merging the Cape due to lack of due diligence or involvement by churches challenging this. (It is also noteworthy to mention that virtually all members of the Strand Church and most of the Hermanus church members have been replaced by "other" new members. The original members having all but left). The sad part is that none of the internal issues have been resolved, and none of the procedural mistrust and distrust of the leadership has been addressed.  The communication and lack thereof remains unresolved.

No Order on costs:  The Judge did not make a ruling on costs as he perceived this to be a stumbling block to further unity and co-operation in the church.  The judge perceived there to be a great divide between the leadership of the church and its members and it seemed to express his wish that somehow this divide could be changed into a trusting responsive and closer relationship.  We see this as one of the reasons why costs were not awarded to any party in this case, as this may have made the desired reconciliation more difficult or even impossible.  Noted in the judgment as "the most important aspect" is the following:  "The parties are part and parcel of one church.  The parties will in future have to work together in reconciliation, trust and brotherhood, ... to implement the resolution."  (It is therefore an indictment on our church leaders that so much time and cost was incurred and for the judge to have to make such a statement).

The surplus funds gathered for the court case, will naturally be held in trust and rather than appealing the full judgment, we as the Legal Steering Committee will keep a watchful eye over the proceedings and the decisions taken to "re-align?the Tvl and TOC conferences in the future.  Should there be a procedural step constitutionally out of line, we as church members will actively activate our rights within the ambit of the law and the parameters as set out in this judgment. It now only requires a single church/member to conclude that the leadership had acted outside of the constitution, church manual, or illegally so, now having legal persona as per this judgment, to seek clarity and assistance by the courts. As was indicated in the judgment, what was specifically required in the case of the TC, is an agreement to a constitution in the case of a re-alignment or merger with the TOC, and that they must agree to dissolve with a ?majority as per the Church Constitution.

Although we would have wished for the judgment to have been more specific, we accept that in this case it seems as if it was not possible.  The judge did however note that the defendants ( SAU / SID) had been underhanded or deceitful in their approach and "leading the plaintiffs up the wrong path".  It is doubtful that the SAU/SID would ever acknowledge this outside of the court or admit their omission to rectify the matter.

We thank those who continually encouraged, prayed and supported us, the members and congregations concerned, with their e-mails, letters and also their financial contributions.  No one doubts that this has been a great learning experience and one that makes the church leadership realise that it will be held accountable.  It also brings to mind the verse literally central and in the centre Bible teaching....a passage found in Psalms 118:9  "It is better to trust in the Lord than to put confidence in princes (leaders)" 

May you be Blessed and fruitful as we continue to serve a might Lord, God and Creator.

The full judgment has been attached for your reading information.

Leon Naude'

Member:  Legal Steering Committee

20 October 2009

COMMENTS ON THE JUDGMENT

For the benefit of those who did not attend the trial and thus do not have the background regarding the judgment a few comments may be in order as per the specific paragraphs of the judgment: 

Paragraph 2:  this paragraph confirms that the judge found that the church follows a representative nature of church governance.  The SAU/SID lawyer had argued that the SDA church is 멻ierarchical?and thus has the authority to make certain changes over its subordinates.  Whereas the judge mentions that the SDA church has a hierarchy of levels, it did not conclude that it had a 멻ierarchy of authority?

Paragraph 3:  It is confirmed that the business of the conferences must be dealt with at Conference business sessions.

Paragraph 4:  this confirms that divisions, union conferences and local conferences are separate legal entities that can sue and be sued.

Paragraph 5:  confirms that the two congregations from the Cape Conference withdrew.  This was as a result of the activities of Ps Eddie Harris, acting upon the instructions of the Cape Conference. 

Paragraph 6: this paragraph confirms that the individual members of the plaintiff congregations were allowed by the judge to be added as the 9th ? 14th plaintiffs as page 1 of the judgment indicates.  This was allowed despite the objections by the SAU/SID lawyer.  This issue was discussed at length in court.  When the SAU/SID lawyer opposed the application to add individual church members as plaintiffs, the judge pointed out to the SAU/SID lawyer that whereas the SAU/SID denies that a congregation is a legal entity and whereas it does not want individual church members to be added as plaintiffs, it would then mean that no entity is able to seek legal clarification in a court of law regarding illegal or unconstitutional actions by church leadership.  This finding is very significant, since it means that in future any individual church member can enter into a process of legal clarification via the objective setting of a court of law, should they be affected by irregular decisions by church leaders.

Paragraph 9: it is noteworthy that this paragraph records that 밶n application for absolution from the instance by the defendant뭩 was dismissed?  In terms of this application for absolution the SAU/SID lawyer applied that the case be thrown of court for the following three reasons: Firstly, that local congregations have no legal standing since they do not own property; do not have a constitution, lack the capacity to litigate and do not have sufficient legal interest in whether there is a merger or not.  Secondly, that the TOC churches in the Northern Cape are still part of the Cape Conference, and that a 몋erritorial re-alignment?thus did occur, and Thirdly, that no unilateral action was taken by the Union and that they were authorized to take this action.

Paragraph 10:  the SAU/SID argued that a) congregations are not legal entities and thus do not have the capacity to litigate, and b) they do not have 몊ufficient interest?to litigate.  The judgment points out that if (a) is not valid, then (b) is irrelevant.   And if  (a) is valid, then (b) is not necessary.

Paragraph 11-14: the judge gives an assessment of the legal arguments presented for deciding whether a congregation is a legal entity or not

Paragraph 15:  Summary of arguments by congregations to support the claim that they are in fact legal entities.

Paragraph 16:  Arguments presented by the SAU/SID lawyer that disputes the claim that congregations are legal entities.  Then the judge clearly states in the last sentence that he does not agree with their arguments.

Paragraph 17:  the judge reaches the important conclusion that 밶 consideration of the nature and object of the congregations as set out above, in my judgment establishes that they are universitates and therefore capable of suing in own name?

Paragraph 18:  the judge makes an important finding that 밃 decision to dissolve the local conference and to bring into being a new local conference, would have a direct impact on the congregation?? something which the SAU/SID lawyer continually denied in his pleas.

Paragraph 19-22: mainly historical background.

Paragraph 23:  the judgment recognizes the fact that 뱓he TC voted in favour of what they referred to as a merger, subject however to an acceptable constitution for the conference being put forward.  According to the evidence of Pastor Botha this resolution was never rescinded ?  at this meeting the provision in the constitution of the TC that it may be dissolved only be a ?majority vote of the delegates present and voting at any regular or special business session of the TC, was reaffirmed?   The judgment thus confirms that an acceptable constitution must still be agreed upon by the TC and that before the TC can be dissolved, a ?majority vote at a business session is required.

Paragraph 25:  What is noteworthy is the comment of the judge where he states:  밒t would appear that as a result thereof the TOC congregations in the previous Cape Province are presently included in the new Cape Conference?  This is as a result of the SAU/SID lawyer repeatedly stating that this is the case.  This information as supplied by the SAU/SID lawyer is simply not correct, as is evidenced by the fact that the TOC congregations from the Northern Cape did not attend the latest Cape Conference business session which has been Sept 2009.  It is unfortunate that the judge states that 멹or reasons that are not clear from the evidence?the meeting of 26 March between the TC and TOC never commenced, since these reasons were made clear by Botha, Spencer and Ficker.  This meeting was terminated by members of the TOC since they believed the meeting and the procedures leading up to it were unconstitutional.

Paragraph 31:  what is noteworthy is that while it was mentioned that certain boundary adjustments were envisaged, the fact is that they never took place.  The TOC churches in the Northern Cape and Free State never left the TOC and did not join other conferences.  The president of the TOC was subpoenaed to appear in court in order to confirm this, but refused to attend.  When Themba Ngwenya of the Kimberley TOC church appeared in court in order to testify (as called by the Plaintiffs), he was escorted out of court by members of the TOC/SAU so that he could not testify at this hearing.

Paragraph 32:  the judge states:  밅ounsel for the defendants made it very clear what the position of the defendants is on this point, namely that the resolution should not be interpreted and was not interpreted by them to mean that there was an automatic dissolution of the TC and establishment of the new Northern Conference?   This is significant, since it means that there can be no automatic dissolution of the TC and establishment of a new conference, i.e. there must FIRST be agreement on a new constitution, as approved by a conference business session  --  this THUS CANNOT BE AN AUTOMATIC PROCEDURE.  The judgment furthermore states 밫he defendant뭩 position is that the constituency meeting in order to formally constitute the new Northern Conference has not yet taken place inter alia as a result of the present litigation, that it still has to take place, that in the light hereof the TC continues to exist and will continue to exist until the new conference is formally constituted, as the TC will in this regard only be dissolved as a result of the formal constitution of the new conference?  The judgment hereby confirms that the SAU has stated that the formal constitution of a new conference must still be agreed on and that a constituency meeting of the TC must still be called, and that only after this may the TC be dissolved.

Paragraph 33:  it is here confirmed that the TC and TOC have not been dissolved, despite that constitution of the SAU indicating that they do not exist anymore.

Paragraph 34:  it is significant that the judge finds that the SAU/SID worded their resolution at the 2005 SAU business session 밿n such a manner as not to reflect their true intention and for so leading the plaintiffs up to the wrong path? It can only be hoped that the SAU will not again lead congregations up the wrong path in the future.   The judgment confirms that the SAU/SID is unsuccessful in their insistence that congregations have no legal personality.   However, the plaintiffs were not successful in having the SAU decision declared invalid.  What remains in the case of the TC is that a constitution for a merged conference must still be agreed on by a constituency meeting of the TC, after which they must vote for their dissolution (see paragraph 32).

Trust that the above highlights of the judgement were helpful....

REPORT COMPILED BY AN ACTIVE MEMBER AND ORGANIZER OF THE COUNTERACTION LEON NAUDE