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“Schism and legal disputes over ownership of church buildings in the history of the Nederduitsch Hervormde (Dutch Reformed) Church in South Africa”
Yolanda van der Vyver
This article is a caution of the detrimental effect that schism and legal disputes over the ownership of church buildings can have on the religious and built environment. I illustrate how seemingly trivial religious differences can throw houses of worship into crisis. The article compares two legal disputes, heard 120 years apart, in Pretoria, South Africa. The parties to the dispute are different congregations of the same Dutch Reformed denomination, the Nederduitsch Hervormde Kerk or NHK and the disputes pertain to ownership of immovable property — houses of worship — as well as the open space attached thereto.
The first case determined by the Supreme Court in 1894 was about ownership of the church that was built in the center of Church Square, the heart of Pretoria from where the town grew. The dispute was the result of schism, when certain members of the NHK, which was the state church of the Zuid-Afrikaansche Republiek (South African Republic or ZAR), withdrew due to the state meddling in church affairs and because they refused to sing hymns. The second more recent case is the subject of a decade-long, bitter legal conflict that has had a different outcome. Here the court decided that houses of worship belong to congregations and not the NHK, even if congregations decide to break away.
The Case of Church Square, Pretoria (1894)
Church Square in the heart of Pretoria, the administrative capital of the current Republic of South Africa,1The Republic of South Africa (1960-) must not be confused with the ZAR or South African Republic (1852-1902). was named for the Dutch Reformed Church (Nederduitsch Hervormde Kerk, NHK) that stood at its center from 1855 to 1904. Two different church buildings occupied the site: the first mud-walled, thatched church (figure 1) burnt down in 1882 and a second Neo-Gothic church (figure 2) was constructed in 1883. The square was the natural meeting place of the farming community from the surrounding countryside, not only during the quarterly communion (nachtmaal), but also for other religious occasions, social and political gatherings, and trade.
Establishment of the Three Sister Churches
The three sister churches as they are known today — Nederduitsch Hervormde Kerk (NHK 1854), Gereformeerde Kerk (GK 1859), and Nederduitse Gereformeerde Kerk (NG) — split from one Dutch Reformed Church in the middle of the nineteenth century. The original church was established in the Cape in 1665 under the presbytery of Amsterdam, but in 1824 an autonomous NG synod was established, removing the church from Dutch control. Before the Great Trek,2Between 1836 and 1838 thousands of Dutch descendants trekked from the British-owned Cape Colony on the southern tip of Africa to escape the reality of British colonial power that was working its way through the continent. This migration of Europeans (Voortrekkers) became known as the Great Trek. Various settlements by these emigrant farmers (Boers) ensued in the interior and Boer Republics were formed. British rule was a deciding factor in the Voortrekkers’ move northward during the Great Trek. the church was embroiled in a hefty struggle against the “wrong and unbiblical” principles of the state meddling in church affairs, which originated under previous Dutch control. The focal point was the Synod of 1837 that eventually led to the proclamation of the new church ordinance of 1843, which determined that the NG church in the Cape Colony was granted self-governance, embracing democracy as a founding principle from the time of the Reformation. The NG synod expressed itself strongly against the Great Trek, and with the establishment of the ZAR, the NHK was established (1854) and became the state church of the ZAR in 1860.
Schism and Unification
In 1859, fifteen members of the then established NHK in the ZAR (called the “Psalmsingers” because of their refusal to sing hymns in church) notified the synod of their intention to relinquish their membership to form an own, free church, and the GK was established. The idea of a free church was brought to the ZAR from the Netherlands where, in 1834, one was established in opposition to the nation’s church or state church.3Pont, A.D. 1987. Die vrye kerk: enkele opmerkings oor die herkoms en inhoud van die opvatting [The Free church: some comments on the origin and contents of this idea]. DOI:10.4102/hts.v43i1/2.5724. With the unification of two congregations (from the NHK and NG churches) in 1885, many of the original members left the church and all three parties claimed ownership of the building and the square, which was public space. The Supreme Court decided in 1894 that the unification of the two churches was ultra vires and therefore invalid, thus the members of the congregation who did not unify, remained the owners of the church properties. Today, church historians view the merging of the congregations as a failure: an idealistic attempt to unify two of the three Afrikaans sister churches, who remain separated to this day. Ironically, it did strengthen the NHK, as membership increased when many returned to the original congregation.
The parties reached an agreement and decided to sell Church Square and the church building to the ZAR in 1899. Townspeople were always concerned that if Church Square remained the possession of the congregation, the church council could build up the area around the church, which would have meant the end of its use as a public square.4Beanes, C.J. 1960. Church Square. Pretoriana feesuitgawe – festival edition, 32&33: 45. After not being used as a church for five years, it was demolished in 1904, by the British colonial government following the Anglo-Boer War, who cited the instability of the steeple (clock tower) that had only been standing for twenty years (figures 3 and 4). Church Square was finally transferred to the Municipal Council of Pretoria in 1905 by Crown Grant (through the Crown Land Disposal Ordinance of 1903). The title deed stipulated that the square was for the “perpetual use and enjoyment of the inhabitants of Pretoria” and that no religious structure was to be erected on the square again. In keeping with the spirit of the deed, two different fountains occupied the centre of the square, but in 1954, at the height of apartheid, a bronze statue of ZAR president and tragic Anglo-Boer War hero, Paul Kruger, was inserted as part of a monumental ensemble. The square was once again repurposed as a public space, but this time with a clear political meaning. Despite the absence of a church, the name Church Square has persevered for over 120 years, but its local sense of place and identity as religious gathering space, was changed forever.
At the turn of the century, three new churches were built in the area, one for each of the sister churches. For many years these new mother churches were the most influential of the Pretoria presbytery, but the change in political dispensation saw a distinct change in demographic of the inner city of Pretoria, and after 1991, the Dutch Reformed churches rapidly lost members. Afrikaans services were scrapped, and church buildings were swallowed up in the 1980s by glass skyscrapers. All three churches have been declared national monuments and are protected by law, but only the GK building still houses an active congregation. The NHK is currently being converted into a museum and the old NG church now houses the Uniting Reformed Church Melodi ya Tshwane, with an African base involved in community work in the inner city.
Ownership Disputes after Schism in the NHKA (2010-2023)
Houses of worship are once again the subject of legal conflict. Between 2010 and 2014, thirteen congregations broke their ties with the NHKA (now called the NHK of Africa) after it changed its stance on apartheid.5The period between 1948 and 1994 was known for apartheid, a political system of institutionalised racial segregation and discrimination, under which non-whites were notoriously brutalised. Apartheid sprouted from colonial racism and power constellations that formed after the Second World War. When the National Party (NP) gained power in South Africa in 1948, its all-white government immediately began enforcing existing policies of racial segregation under a system of legislation that institutionalised racism and discrimination. The break was sparked by the wording of the NHKA’s apology for apartheid, because it contained a sentence stating that apartheid was damaging to the image of God. The congregations maintain that the image of God is not in man, but only in one Man, namely in Jesus and therefore claimed that the church’s decision on its apartheid stance was procedurally incorrect.
All thirteen congregations relinquished ownership and control of their properties by donating and transferring their houses of worship to third parties, voluntary associations that are not members of the NHKA. The NHKA claimed that the transactions were not in accordance with the church’s Constitution and Church Order, that the congregations did not have the necessary authority to dispose of their property and that the agreements should be set aside. The High Court in Pretoria determined in March 2022 that the congregations may alienate their properties and that the NHKA was not a party to the donations, and therefore has no legal standing to challenge the validity of the agreements. But council for the NHKA did not agree and submitted that, although the court has found in favour of the congregations, it still needed to interpret the church Constitution and Church Order to determine the exact legal relationship between the NHKA and the congregations. The court, however, held that it would be a time-consuming exercise that would lead to an opinion, and that it would be a waste of precious judicial resources that would place a huge financial burden on the parties. It is interesting to note that various legal experts in South Africa have written about the authority that civil courts have to interpret a church order and to adjudicate accordingly by means of judicial review. “The church order or constitution determines that the particular organisation is regulated by means of internal church or organisational rules, compiled by the institution itself and not the state.”6EH van Coller ‘Regsgeskille en die Kerk: Lesse te Leer uit die Saak van Johannes Fortuin en die Church of Christ Mission/Legal Disputes and What the Church can Learn from the Case of Fortuin v Church of Christ Mission of the Republic of South Africa and Others’ LitNet Akademies (2017) 14(3) 592–617. “However, it is a vital function of government to resolve, through its judicial arm, disputes pertaining to the rights and obligations of its subjects.”7J Van der Vyver ‘Constitutional Perspective of Church-State Relations in South Africa’ Brigham Young University Law Review (2001) 1999(2) 670.
Separation of Power
The different outcomes probably stem from the separation of powers, in this case between state and church. At the end of the nineteenth century, the NHK was recognised as the state church, there was no separation of powers, and the judge determined that the church building and square belong to the synod. However, since the end of apartheid in 1994, the powers of state, church, and law function separately. The law determined that if members of a congregation agree to break away from the denomination, its assets belong to the congregation — not the synod. Assets can be transferred to the majority when a congregation splits up, but if all members cannot agree, its assets are to be transferred to the synod of the church. The local congregation is seen to be a complete, fully functional church, responsible for its own assets, since the synod does not carry any risk in terms of a congregation’s assets and liabilities. The synod does not agree, however, and is considering appealing the decision.
The reasons for schism may seem frivolous to outsiders, but the rift is real to many members. The secretary of the NHKA stated that the matter was more about breaking the religious bond between the faithful, than about the properties. The advocate acting for the congregations called the NHK the most hard-hearted Christians he ever encountered. The congregations made various settlement offers to the NHKA, allowing them to keep their agreements in place, while the NHKA would keep the properties and cash that had not been alienated yet, but the NHKA refused to settle. The judge called the dispute “the unfortunate rift between members of the Christian faith.”8This quote is from Justice Van Nieuwenhuizen’s judgment: Case Number: 5167/2016 describes the matter in the High Court of South Africa (Gauteng Division, Pretoria, Republic of South Africa), between 25 Plaintiffs, [including 13 voluntary associations that function as congregations of the NHKA in terms of its Constitution and Church Order (hereinafter referred to as “the congregations”), and 12 voluntary associates that are the owners of immovable properties (hereinafter referred to as “the associations”)] and two Defendants, [the Nederduitsch Hervormde Kerk van Afrika (NHKA) and the Registrar of Deeds, Pretoria]. It certainly has had an adverse effect on the religious environment. So far, the church buildings alienated by the congregations are being maintained and are fully functioning houses of worship although it remains to be seen what fate would befall them in future without the support of the NHKA.♦
Yolanda van der Vyver holds a PhD in Architecture from the University of the Free State, is a founding member of Y and K Architects and was the 2021 inaugural Emory University–Halle Institute Fulbright South Africa Distinguished Chair at the Center for the Study of Law and Religion. Her interests include interdisciplinary study and the convergence of law, religion, and architecture.
van der Vyver, Yolanda. “Schism and legal disputes over ownership of church buildings in the history of the Nederduitsch Hervormde (Dutch Reformed) Church in South Africa.” Canopy Forum, May 19, 2023. https://canopyforum.org/2023/05/19/schism-and-legal-disputes-over-ownership-of-church-buildings-in-the-history-of-the-nederduitsch-hervormde-dutch-reformed-church-in-south-africa/.