Die Nederduitsch Hervormde Kerk van Afrika and Others v Die Wilge Hervormde Gemeente and Others

Former congregations of the Nederduitsch Hervormde Kerk van Afrika (NHKA) experienced theological and political disagreements with the NHKA, particularly concerning apartheid. By majority vote during 2010–2011, members of certain NHKA congregations broke away and transferred immovable properties, previously registered in the names of NHKA-affiliated congregations, to newly formed voluntary associations and congregations outside the NHKA. These new entities retained possession and use of the properties. The respondents instituted action in the Gauteng Division of the High Court seeking declaratory relief confirming their authority, under the NHKA Constitution and Church Order, to alienate the properties. The NHKA defended the action and counterclaimed. Original congregations sought to intervene, but by agreement this was held over pending determination of a separated issue. The High Court mero motu raised an issue of privity of contract, found that NHKA lacked standing to challenge the donation agreements, and held the dispute to be moot. The NHKA and intervening congregations sought leave to appeal to the Supreme Court of Appeal.

Leave to intervene was granted to the intervening congregations; leave to appeal was granted; the appeal was upheld. The High Court’s order declaring the dispute moot was set aside and replaced with an order remitting the action to the High Court for hearing before a different judge. The respondents were ordered to pay the costs of the intervention applications, the application for leave to appeal, and the appeal, including costs of two counsel where employed.

The judgment reinforces fundamental principles of South African civil procedure, particularly that courts must adjudicate disputes as defined in the pleadings and may not introduce new issues mero motu that prejudice parties. It clarifies the test for intervention based on direct and substantial interest and underscores the limits of judicial intervention under Fischer v Ramahlele. The case is also significant in disputes involving church governance and property, affirming that questions of authority under constitutive documents cannot be sidestepped by procedural doctrines such as privity of contract.