This case concerns a leadership dispute among congregants of the Masjidul Jaamia – Kalk Bay Mosque, established in 1847 and administered by the local community. Until 13 February 2022, the applicants held positions on the Mosque's executive committee for a period extending over 10 years, having been elected in 2019. On 13 February 2022, a meeting was held where a vote of no confidence was moved by the first respondent against the applicants' executive committee. The applicants alleged that the first respondent facilitated attendance by individuals predominantly from outside Kalk Bay, including members of PAGAD (People Against Gangsterism and Drugs), who had no direct affiliation with the Mosque. The applicants were ousted as office bearers, and the respondents took over control and governance of the Mosque. The applicants left the meeting to avoid physical confrontation. Thereafter, on 18 February 2022, the applicants were prevented from attending the Mosque by the first respondent, PAGAD members, and others. The Imam was also prevented from performing his duties. The applicants challenged the lawfulness of the takeover, characterising it as an unlawful dispossession. A constitution drafted in 1995 governed the Mosque's affairs, though the respondents claimed it was only used to open a bank account and had fallen into disuse.
1. It is declared that the respondents' dispossession of the applicants' physical control of the Mosque is unlawful. 2. The respondents are directed to restore the applicants' possession of the Mosque, hand over all locks and keys, hand over all funds collected for the Mosque, and account for all funds collected since 13 March 2022. 3. The respondents are interdicted from unlawfully dispossessing the applicants from their physical control of the Mosque. 4. The respondents are interdicted from collecting funds or goods for the Mosque. 5. The respondents are ordered to pay the applicants' costs jointly and severally.
Where a religious body or society has an existing constitution that prescribes the procedure for electing and removing office bearers, any removal of office bearers must comply strictly with the provisions of that constitution. A constitution of a voluntary association remains valid and binding until it is repealed, amended, or altered in accordance with its own provisions; non-implementation or disregard of the constitution does not render it obsolete or effect its tacit repeal. A meeting that is not an annual general meeting and is not empowered by the constitution to remove or elect office bearers lacks the legal competence to do so, and any such removal is unlawful, constituting an unlawful dispossession warranting judicial intervention, even in religious body disputes.
The court made several important observations beyond the ratio decidendi: (1) The court acknowledged the general reluctance of courts to involve themselves in the internal affairs of religious bodies, citing the doctrine of entanglement from De Lange v Presiding Bishop, Methodist Church of Southern Africa and Hendricks v The Church of the Province of Southern Africa, but stated that courts will intervene where there is illegal usurping of power or control and use of a religious body. (2) The court noted with regret the 'incredible conflict amongst the members of the Mosque', contrasting it with the preamble of the 1995 Constitution which states: 'And hold fast the Rope of Allah Together and do not be divided amongst yourselves.' (3) The court observed that high-handed action to arbitrarily change power dynamics through coercive means in a religious body is contrary to the rule of law, even if the party doing so erroneously believes it has the authority. (4) Citing Green v Fitzgerald and others 1914 AD 88 at 110-111, the court discussed the doctrine of desuetude, noting that a very long term of disuse is required for tacit repeal, and suggested that the constitution (from 1995) was not sufficiently old for prolonged disregard to feature or manifest.
This case is significant in South African law for several reasons: (1) It reaffirms that while courts are generally reluctant to interfere in the internal affairs of religious bodies (the doctrine of entanglement), they will intervene when there is illegal usurping of power or coercive takeover of a religious body's governance and property. (2) It provides important authority on the binding nature of constitutions of voluntary associations and religious bodies, establishing that such constitutions are not rendered obsolete by mere disuse and can only be amended or repealed according to their own terms. (3) It clarifies that the doctrine of desuetude (tacit repeal by disuse) requires a very long period and does not apply automatically; the court relied on Green v Fitzgerald 1914 AD 88. (4) The judgment demonstrates the application of spoliation principles in the context of leadership disputes within religious communities, where the right to control and possess communal religious property is at stake.