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

The NHKA (Nederduitsch Hervormde Kerk van Afrika) was a church with various congregations owning immovable properties. Around 2010-2011, some members of certain congregations became dissatisfied with the NHKA's stance on apartheid and its theological justification. By majority vote within these original congregations, the dissatisfied members donated and transferred properties to newly created juristic entities outside the NHKA. The dissatisfied members then broke away completely from the NHKA and formed new congregations while retaining possession of the transferred properties. The new congregations and the entities who received the properties (the respondents) instituted proceedings seeking declaratory relief confirming their authority to transfer the properties. They cited only the NHKA as defendant, not the original congregations who were the registered owners. The original congregations applied to intervene. By agreement, the intervention applications were held over pending determination of a separated issue formulated by the case managing judge about whether members who break away from the NHKA could by majority decision alienate assets to entities outside the NHKA. During the hearing, the trial judge mero motu raised an issue of privity of contract - whether the NHKA, not being the registered owner, could challenge the validity of the donation contracts. The trial judge concluded the dispute was moot due to lack of privity and ordered costs against the NHKA from that date.

• Whether intervening parties (the original congregations) should be joined in the application for leave to appeal where they were the original registered owners of disputed properties
• Whether a court may mero motu raise new legal issues not canvassed in the pleadings and decide a case on that basis
• Whether the high court misdirected itself by introducing the issue of privity of contract which was not part of the pleaded case
• Whether the dispute between the parties had become moot based on the privity of contract issue
• What constitutes a 'direct and substantial interest' for purposes of intervention applications

1. The intervening applicants (Meyerspark, Pretoria Tuine, Die Wilge Potchefstroom and Koster congregations) were granted leave to intervene and joined as co-applicants in the application for leave to appeal. 2. The application for leave to appeal was granted. 3. The appeal was upheld. 4. The high court's order that the issue between the parties had become moot was set aside and replaced with an order: 4.1 Remitting the action to the high court for hearing by a judge other than Janse van Nieuwenhuizen J; 4.2 Ordering the plaintiffs (respondents) to pay costs incurred in the high court from 25 January 2022 jointly and severally, including costs of two counsel where employed. 5. The respondents were ordered to pay the costs of the intervention applications, the application for leave to appeal, and the costs of appeal, jointly and severally, including costs of two counsel where employed.

1. Parties who were the original registered owners of disputed properties have a direct and substantial interest in proceedings concerning those properties and are entitled to intervene in appeals concerning them. 2. In civil litigation, it is for the parties, not the court, to define the nature of their dispute as appears from the pleadings. A court may not mero motu raise new legal issues not traversed in the pleadings and decide the case on that basis, particularly where this causes prejudice to a party. 3. While a court may suggest a line of argument or approach to a case, it is for the parties to determine whether they wish to adopt the new point. A court cannot compel parties to deal with matters not formulated in their pleadings. 4. Where the pleadings define the dispute as concerning authority under governing documents to alienate property, the issue is not one of privity of contract but of whether the requisite authority existed.

The court noted that the trial judge was not aware of the pending intervention applications by the original congregations or that these had been placed on hold by agreement pending determination of the separated issue. The court observed that had the trial judge been made aware of these applications, the case would not have proceeded as it did. This suggests the importance of case management judges ensuring continuity of information when matters are heard by different judges. The court also observed that the question of whether the intervening parties exist as congregations is not purely factual but involves interpretation and application of the NHKA's governing documents (the Church Order and Constitution), therefore the Plascon-Evans principle regarding factual disputes in motion proceedings did not assist the respondents' opposition to the intervention.

This case reinforces the fundamental principle of civil procedure that it is for parties to define the nature of their dispute through their pleadings, not for courts to introduce new issues. It confirms the limits on judicial intervention established in Fischer v Ramahlele, emphasizing that while courts may suggest lines of argument, they cannot compel parties to address matters not pleaded, particularly where this would cause prejudice. The case also provides guidance on intervention applications, confirming that former title holders of disputed property have a direct and substantial interest warranting joinder even where their legal status as entities is itself disputed. The judgment serves as a caution against judicial overreach and highlights the importance of courts confining themselves to adjudicating the issues actually in dispute between parties. The case also demonstrates the practical consequences of judicial misdirection - waste of costs, court time and resources when matters must be remitted for rehearing.