Die Nederduitsch Hervormde Kerk van Afrika: ’n Vrywillige vereniging of ’n vereniging sui generis?

Abstract

The Nederduitsch Hervormde Kerk van Afrika: A voluntary association or an association sui generis
The Nederduitsch Hervormde Kerk is seen as a voluntary association in South African law which is founded on a contractual basis. Recent case law has re-affirmed this fact. This was not always the case. Earlier case law referred to the church as a legal person (universitas). Because of the influence of English law and also the role of De Mist in the Cape during the nineteenth century, the courts have adopted the view that the church is a voluntary association The Nederduitsch Hervormde Kerk, however, disagrees with this view of the courts. According to the the Nederduitsch Hervormde Kerk, one cannot simply talk of ‘voluntariness’ when membership of the church is at stake. The church is also not found on a contractual basis; Christ brought it together. The church is the communion of saints, because the believers, being members of the body of Jesus Christ, share in Christ and all He has. Recently an English court found that a church had the power to decide whether a preacher (rabbi) was fit to be a preacher and declared that the court will not interfere in such matters. This case could help to convince South African courts that the church differs from the ordinary voluntary association. The Nederduitsch Hervormde Kerk also has the task to convince the courts in this regard and should be adamant in its stance that it should not be considered as a voluntary association, but rather as an association sui generis.