A guest post by David Scrooby on a recent South African case.
In Maree and Others v Moravian Church of South Africa and Another (1091/2020; 15254/2023) [2026] ZAWCHC 383, the applicants sought a finding of contempt of court against the respondents. However, mala fides were not established against the respondents for noncompliance with a previous court order of 21 February 2022, and the applicants were ordered to pay the respondents 50% of the rental collected, as directed by the previous court order. The applicants also applied for review of disciplinary proceedings and a sanction imposed by the Overseers Council. The Court found that the disciplinary proceedings and the imposition of a sanction were not provided for by the Church Order and Ordinance and that the Church had acted beyond its authority. The Church’s decision was therefore set aside.
Both applications were based on the same factual circumstances, and the parties agreed to consolidate the two and they were subsequently heard together. In the contempt application, the applicants sought an order declaring that the respondents were in contempt of the previous court order, that the court impose a fine on the Church, and that the Church must account to the Elim Overseers Council (“the EOC”) for the period February 2022 to the date of the court’s order and pay to the EOC 50% of the rental collected in respect of land rented to government institutions.
Background
The Elim Moravian Mission Station located in the Western Cape was established more than two hundred years ago. The land comprising Elim is registered in the name of the Moravian Church and governed by the Moravian Church Order (“the Church Order”) and the Elim Mission Station Ordinance” (“the Ordinance”). The Ordinance governs occupational rights and life on the Mission Station. The powers, duties, and responsibilities of the EOC are set out in the Ordinance. The residents of Elim are required to build their own houses at their own expense. During the hearing of this application, the Court was informed of pending action proceedings about the ownership of the land comprising Elim.
The Moravian Church was founded in the 15th century in what is now the Czech Republic and is one of the oldest Protestant churches in the world. In 1737, a Moravian missionary established Genadendal mission station in the Western Cape. The communities consist of members of the Church, who have the right to a plot of land on which to build a house as well as the right to agricultural land for subsistence farming.
The supreme regulatory authority of the Church is the Provincial Synod, which convenes quadrennially, followed by the Provincial Board, District Councils, Congregations, and Overseers’ Councils. The Overseers Council is responsible for the daily operations of the Mission Station. In terms of the Church Order, the Provincial Synod embodies the unity of the Church and serves as its legislative body. It has the authority to administer and control all immovable property of the Church. the Provincial Board, as the executive body, represents the Provincial Synod; it is responsible for executing the Synod’s decisions and is accountable to Synod. Its function is to exercise the duties assigned by the Provincial Synod to control all transactions involving immovable property. An Overseers Council accounts to the Provincial Board.
The conflict between the applicants and the Church and the existing order of court
A longstanding conflict has persisted over many years between the residents of Elim, the EOC, and the church leadership represented by the Provincial Board. The applicants contended that the Church’s leadership disregarded their constitutional and other rights as residents. This led the residents to challenge the Church’s ownership of the land. The residents of Elim have, over generations through rental payments, fundraising and direct financial contributions, purchased additional farms adjacent to Elim, which were subsequently incorporated into the Mission Station. At the Elim Mission Station, all revenue from property leases and projects has been paid directly to the Church.
In 2020, the Church Board brought an urgent application for a declaratory order that the Board had exclusive rights to conclude lease agreements concerning land within Elim’s boundaries, and to void all lease agreements made with the EOC. The Church also sought an urgent order that the EOC remit all rental income collected, amounting to R1,758,155,22, to the Church within five days of the order being granted.
The EOC opposed the Church’s application and filed a counterapplication seeking an order that the inhabitants of Elim are the beneficial owners of the land comprising Elim and the Church is only the nominal or titular owner of the land. The EOC contended that the Church had failed in its fiduciary duties to hold, govern, and manage Elim for the benefit of the inhabitants, and sought an order that the land be transferred to the Elim Community Trust.
At the 2022 hearing, the Court requested the parties to explore the possibility of settling the matter or narrowing the issues. Both parties submitted draft orders. The Court then granted an order that obligated the Church to pay the EOC 50% of the total monthly rental collected for land leases to government institutions. The Church was also ordered to provide monthly spreadsheets of the total rental collected. The EOC also had an obligation to submit a monthly statement in respect of municipal property rates, and the costs of the upkeep and maintenance of the Elim Mission Station. The applicants contended that they had submitted monthly reports and statements. The EOC said the Church was victimising and harassing members of the EOC, and no payments were received from the Church. Accordingly, the Church was in contempt of the original order. The Board contended that the EOC cannot produce invoices or receipts, as required in the same Court Order.
Findings
The Church raised two preliminary issues in response to the application. Firstly, that the applicants were suspended, pending an independent inquiry. The report of the independent inquiry was submitted on 15 August 2023, and the Church resolved to remove the first to fifth applicants as members of the Board of the EOC. Secondly, the respondents submitted that the EOC was a subordinate structure within the Church. Due to resignations and the removal of five members, the committee was not correctly constituted and lacked legal capacity.
The issues to be decided in the contempt of court application were whether the application was premature and whether the respondents were in contempt of court. Lekhuleni J did not find the respondents in contempt of court; however, he did order the Church, as respondents, to pay punitive costs.
Regarding the conduct of the respondents, Lekhuleni J said this at [44];
“In my view, this approach was contrary to values and ethos of a Church that ought to uphold the Christian values on which its foundation rests. The Bible, central to the Church’s mission, instructs Moravian Church members, including the Church’s leadership (the respondents), in Galatians 6:2 to carry each other’s troubles to fulfil the law of Christ. Significantly, the Bible tells the Church and its members to clothe themselves with compassion, kindness, and forgiveness, just as God forgave them (Colossians 3: 12–13; Ephesians 4: 32). Regrettably, the Church leadership failed to live up to these principles.”
In addition to the contempt application, he reviewed the Provincial Board’s decision to suspend the first five applicants, who were members of the EOC. He set aside the decision to suspend the applicants, and the decision to place the EOC under “under administration”.
He also ruled the Church’s internal appeals procedure unconstitutional because it violated the applicants’ rights under section 34 of the Constitution: “Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum”. It is trite that any law or conduct inconsistent with the Constitution is invalid, and the Court directed that the Provincial Board remedy the appeal process within six months of the date of judgment.
He set aside the Church’s decisions to suspend the first five applicants and to hold a disciplinary inquiry, and he directed the Provincial Board to remedy its appeal process within six months of the date of his judgment: 3 August 2026.
David Scrooby, Attorney, ACSA Diocese of Pretoria
Cite this article as: David Scrooby, “When a Church’s internal appeals procedure conflicts with constitutional law: Maree and Others” in Law & Religion UK, 10 August 2026: https://lawandreligionuk.com/2026/08/10/when-a-churchs-internal-appeals-procedure-conflicts-with-constitutional-law/