Text in English / Lebowakgomo congregation is situated in the Northern Province the growth point of former Lebowa Government The study was based on the understanding the procedures and processes which were followed when legitimising the congregational secession . Secession is an act to withdraw formally from a union, especially from a religious organisation. The secession of Lebowakgomo congregation from Lerato congregation took a decade before it was implemented. The secession was delayed by technical problems such as the expulsion of the minister, the death of an eider's son, the arrival of three ministers and various interpretations of the Church Order. The Process of secession was affected by the legacy of change within the community. That is, the idea of secession was introduced to the congregation by the minister in trying to curb congregation administration problems. This process could not take off because some of the congregants had not fully conceptualised the idea. The process of secession ended into conflicts of ideology and also in the interpretation of the Church Order of which lead to additional attitudinal developments within the management structures of the NGKA. The church council of Lebowakgomo also developed an attitude against the Synodical commission which lead to the involvement of the court of law as an arbitrator. The hypothesis tested in this thesis is: "Is Lebowakgomo congregation a legitimate congregation within the structures of the NGKA?" Lebowakgomo congregation is the first to challenge a decision made by the Synod. It is the first to demand its rights through the court of law. This was a drastic change with regard to the Church history of the NGKA. Thus, this study has traced the development of Lebowakgomo secession until it was legitimised by the court of law. The main thrust of this study was to provide academic reasoning to the following questions, Is secession legitimised after being approved by: - the Church council? - the Presbytery council? - after a secession ceremony was held? - after registration by the Synodical commission secretary? - after being published in the Church news paper? The positive ruling by the court of law in legitimising Lebowakgomo congregation within the structures of the NGKA, was noted in spite of dissatisfaction expressed by some church structures and church management. This clearly indicated that the role of church managers in a changing society is one in constant metamorphosis with regard to reconstructing and developing church organisation and management. / Church History / Th. M. (Church History)

Text in English / Lebowakgomo congregation is situated in the Northern Province the growth point of former Lebowa Government The study was based on the understanding the procedures and processes which were followed when legitimising the congregational secession . Secession is an act to withdraw formally from a union, especially from a religious organisation. The secession of Lebowakgomo congregation from Lerato congregation took a decade before it was implemented. The secession was delayed by technical problems such as the expulsion of the minister, the death of an eider's son, the arrival of three ministers and various interpretations of the Church Order. The Process of secession was affected by the legacy of change within the community. That is, the idea of secession was introduced to the congregation by the minister in trying to curb congregation administration problems. This process could not take off because some of the congregants had not fully conceptualised the idea. The process of secession ended into conflicts of ideology and also in the interpretation of the Church Order of which lead to additional attitudinal developments within the management structures of the NGKA. The church council of Lebowakgomo also developed an attitude against the Synodical commission which lead to the involvement of the court of law as an arbitrator. The hypothesis tested in this thesis is: "Is Lebowakgomo congregation a legitimate congregation within the structures of the NGKA?" Lebowakgomo congregation is the first to challenge a decision made by the Synod. It is the first to demand its rights through the court of law. This was a drastic change with regard to the Church history of the NGKA. Thus, this study has traced the development of Lebowakgomo secession until it was legitimised by the court of law. The main thrust of this study was to provide academic reasoning to the following questions, Is secession legitimised after being approved by: - the Church council? - the Presbytery council? - after a secession ceremony was held? - after registration by the Synodical commission secretary? - after being published in the Church news paper? The positive ruling by the court of law in legitimising Lebowakgomo congregation within the structures of the NGKA, was noted in spite of dissatisfaction expressed by some church structures and church management. This clearly indicated that the role of church managers in a changing society is one in constant metamorphosis with regard to reconstructing and developing church organisation and management. / Church History / Th. M. (Church History)

Every system of church government, which declares to be Christian, takes its starting point in the New Testament revelation that Christ is the Head of his body, the church, (Col. 1:18); however each of these systems arrives at vastly different conclusions. The Presbyterian system of church government is founded on.the principle that Jesus Christ, the Son of God who became man, is the organic Head of the church, the elected mankind. "Bead" and "body" are bound together as one vital unity, undivided and unmixed. Therefore the church, as body of Christ, has no human head. Christ Himself governs the church, while He at the same time rules over heaven and earth. He, the Mediator, Who in the unity of his Person is indivisible, is Himself personally present in his church. He is also represented by the Holy Spirit, who works directly in the heart and mind of ail believers and speaks to them by means of the holy ~ Word of God. Christ reigns his church through his Holy Spirit by his Holy Word. The believers, as members ,in the body, the church, have come of age as a royal priesthood by anointment with the Holy. Spirit. Therefore the congregation is subject to the instructions of Christ to· the church. While the body still grows up unto Christ, its Head, He has given the off ices to the church for the perfecting of the saints in their ministry. The government of the Head is served in the church by the elders as a council of the church. Their instruction from the Head is to be shepherds to the saints and not to be lords over God's heritage. Of this ministration of the church government the congregation is the object. The Presbyterian church government, as organized in the Church Order of Dort (1618-19), maintains the church as· an organic unity that lives for, through and to Christ. The church is the subordinate of its Personal Head, the living and present Jesus Christ. Therefore the Church Order of Dort maintains the ministerial character of the offices in the church, the coming of age· of the believers and the Word of God as the border of all ministerial authority and power. The Presbyterian church government is then, according to the principles of the Church Order of Dort, the ministration of the one supremacy of the one Head, Jesus Christ, in his church as one body. / Oorspronklike uitgegawe as proefskrif voorgelê --PU vir CHO

Every system of church government, which declares to be Christian, takes its starting point in the New Testament revelation that Christ is the Head of his body, the church, (Col. 1:18); however each of these systems arrives at vastly different conclusions. The Presbyterian system of church government is founded on.the principle that Jesus Christ, the Son of God who became man, is the organic Head of the church, the elected mankind. "Bead" and "body" are bound together as one vital unity, undivided and unmixed. Therefore the church, as body of Christ, has no human head. Christ Himself governs the church, while He at the same time rules over heaven and earth. He, the Mediator, Who in the unity of his Person is indivisible, is Himself personally present in his church. He is also represented by the Holy Spirit, who works directly in the heart and mind of ail believers and speaks to them by means of the holy ~ Word of God. Christ reigns his church through his Holy Spirit by his Holy Word. The believers, as members ,in the body, the church, have come of age as a royal priesthood by anointment with the Holy. Spirit. Therefore the congregation is subject to the instructions of Christ to· the church. While the body still grows up unto Christ, its Head, He has given the off ices to the church for the perfecting of the saints in their ministry. The government of the Head is served in the church by the elders as a council of the church. Their instruction from the Head is to be shepherds to the saints and not to be lords over God's heritage. Of this ministration of the church government the congregation is the object. The Presbyterian church government, as organized in the Church Order of Dort (1618-19), maintains the church as· an organic unity that lives for, through and to Christ. The church is the subordinate of its Personal Head, the living and present Jesus Christ. Therefore the Church Order of Dort maintains the ministerial character of the offices in the church, the coming of age· of the believers and the Word of God as the border of all ministerial authority and power. The Presbyterian church government is then, according to the principles of the Church Order of Dort, the ministration of the one supremacy of the one Head, Jesus Christ, in his church as one body. / Oorspronklike uitgegawe as proefskrif voorgelê --PU vir CHO

Thesis (PhD)--Stellenbosch University, 2015. / ENGLISH ABSTRACT: South Africa faces many challenges, as a country. Our communities are struggling with many issues such as poverty, inequality, rape, abuse, violence, corruption and many more. Yet, our faith community seems reluctant to lament these issues during their worship services. This research looks specifically at the practice of the Uniting Reformed Church in Southern Africa. The question that this research wrestles with is: “Given the challenging times that we live in, in what way could a re-discovery or a re-claiming of lament in liturgy, against the background of healing and hope, obtain new meaning in our congregations?” The assumption of the research is that if the church wants to be relevant in the lives of their members today, she would need to revisit and reclaim the process of lament in the liturgy. It could further be argued that a re-thinking and a re-introduction of lament in liturgy could have far-reaching and enriching implications in the life of the faith community, especially where the healing of memories is concerned. Part of the research was a literature study while another section consisted of empirical studies. Congregations from the Uniting Reformed Church in Southern Africa, in the Western Cape, took part in the studies. The main focus of the research was descriptive empirical and the information gathered had to be interpreted. Through the normative task, theological reflections could be carried out and finally possible criteria could be deduced in terms of how lament could be re-integrated into existing liturgies of our church. / AFRIKAANSE OPSOMMING: Suid Afrika word gekonfronteer met baie uitdagings. Ons gemeenskappe gaan gebuk onder geweldige druk en word daagliks gekonfronteer met armoede, ongelykheid, verkragting, mishandeling, geweld, korrupsie en nog vele meer. Ongeag hierdie uitdagings blyk dit asof ons geloofsgemeenskap teensinnig is om te weeklaag gedurende eredienste. Hierdie navorsing kyk spesifiek na die praktyk rondom weeklaag in die liturgie van spesifieke gemeentes in die Verenigende Gereformeerde Kerk in Suider Afrika. Die vraag waarmee hierdie navorsing worstel is: “Gegewe die uitdagende tye waarin ons lewe, op watter manier kan die herontdekking of die her-besit van weeklaag in liturgie (teen die agtergrond van heling en hoop), nuwe betekenis aanneem in ons gemeentes?”. Die uitgangspunt van die navorsing is dat as die kerk relevant wil bly in die lewens van haar lidmate, dan het sy nodig om die proses van weeklaag, binne die liturgie, weer te besoek en te eien. Verder kan dit geredeneer word dat ‘n nuwe denkpatroon en ‘n nuwe bekendstelling aan weeklaag in die liturgie verreikende gevolge kan hê in die lewens van die geloofsgemeenskap, veral waar daar na die heling van ons verlede gekyk word. Een deel van die navorsing was ‘n literêre studie terwyl die tweede deel ‘n empiriese studie was. Gemeentes van die Verenigende Gereformeerde Kerk in Suider-Afrika het deel uitgemaak van die empirisie navorsing. Die klem van die navorsing was beskrywendempiries en die data moes interpreteer word. Gedurende die normatiewe deel kon daar teologies gereflekteer word oor die maniere waarop weeklaag weer deel van die bestaande liturgie gemaak kan word in ons kerk. Verskeie moontlikhede het aan die lig gekom in hierdie verband.

Thesis (DD(Kerkgesk.)--University of Pretoria, 2003. / Includes bibliographical references (p. 262-276).

Thesis (Th. M.)--Dallas Theological Seminary, 2000. / Includes bibliographical references (leaves [47]-50).

It is a fundamental characteristic of his existence that man will establish associations. This phenomenon is acknowledged in all spheres of life, in eluding the juridical. The purpose of this thesis is to examine the distinctive way in which jurisprudence characterizes human association conferring legal subjectivity (legal personality) upon it. Prominence has been given to aspects of legal subjectivity (legal personality) of associations in private law with ideal or non-profit intent. The legal status of the associative legal person in private law is not governed by statute at the moment and is therefore determined by the rules of Common law. Although there is no explicit acknowledgement of the legal person as a separate legal entity in Roman law, the Roman jurists did record certain features of co-operative institutions like corpora, collegia. universitates and eodalitates. Early Roman-Dutch jurists did not consider the legal person to be a separate legal entity either, but they applied the inherited features of the Roman co-operative institutions to other associative groups like guilds and churches. The legal person has been acknowledged as a separate legal entity (legal subject) since the eighteenth century, although the term legal person only originated towards the end of that century. The historical part of the investigation reveals the significant fact that the legal person was already recognized as a separate legal entity in Medieval canon law. The Medieval Roman-Catholic and the Reformational concept of the church exerted an important influence on the view held by later jurists concerning the legal person. The historical part of the investigation further demonstrates that the following features of the common law legal person (association or foundation) in South Africa derive from Roman law, canon law and Roman-Dutch law: It is composed of people (members or administrators); It has perpetual succession, i.e. it exists notwithstanding changes in membership; It is vested with rights and obligations independent of its constitutive members or administrators; It participates in the processes of law through organs; Through its organs it can exercise an independent volition, and therefore it has the capacity to act, the capacity to appear in court in its own name, and to be accountable for its actions; For its continued existence it has to comply with the requirements for the conferment of legal personality as laid down by positive law; It has to have a lawful objective that is not contra bonos mores. It is noticeable that no authority exists at common law for the current supposition that the associative legal person is contractually founded, and also that, at common law, the legal position of the associative legal person was as a rule distinguished from that of societates (societies or partnerships), which are contractually founded. Against this historical background the underlying principles concerning the legal person were investigated. Since the beginning of the nineteenth century the Pandectists, in particular, have attempted a theoretical analysis of the legal person. This gives rise to a number of theories concerning the legal person. Most of the legal theorists, however, tend to over-emphasize one aspect or the other. Von Savigny, for example. stresses the fact that only the individual person (as a moral entity) can act as an actual legal subject and that the legal person as such is merely a legal fiction. Von Gierke, on the other hand, argues that the legal person is composed of organs and that it participates in the processes of law as a super organism with human capacities. Brinz declares that a separate estate can act as a subject in the processes of law. Molengraaff brings the actions of the legal person in connection with the members thereof in their personal capacity; and advocators of juridical realism consider the legal person to be a nominal reality that really exists, but only as an immaterial construction of the mind. From the organ theory of Von Gierke and the functional societal theory of Dooyeweerd, two conclusions, which I would like to endorse, can be drawn: Both these jurists agree that the legal person is founded not on con~ tract, but on internal corporate law (interne verbandsreg). Therefore the statute or constitution is not a contract between the members, but the internal corporate law on which all legal relations between members mutually, and towards outsiders. is based. The legal person is capable of volition and action through organs, and when the organs will and act, juridically speaking it is the legal person that wills and acts. This renders the legal person capable of acting, of appearing in court in its own name, and of being accountable for its actions. In my opinion the nature of the legal person can only be determined by an analysis of legal Subjectivity. Using the transcendental-empirical method as methodological basis, it is imperative in the investigation of legal subjectivity to take both the theoretical analysis of the concept and its practical application into account. The South African legal practice requires the following for the existence of a legal person: there must be an entity vested with rights and obligations independent of its constitutive members or administrators; this entity must continue its existence notwithstanding changes of membership; the entity must pursue lawful objectives that are not contra bonos mores, To this can be added (although it is not explicitly required) that there should be an internal structure of authority, arising from the internal corporate law according to which the organs function. The lack of authority for the supposition made by the South African legal practice (according to some verdicts) that the common law legal person is contractually founded, has already been pointed out. Legal subjectivity is the capacity of an entity to act in a subject in the processes of law. In my opinion only man can act as a legal subject. Seen from a Christian point of view, God created man in His image, and placed him on earth as the pinnacle of creation, to subject, cultivate and protect that creation. Man owes his ability to take part in the processes of law to this God-given status, and he derives his legal capacities from this status. All people are bearers of these capacities, though not always to the same extent. If we deny the legal subjectivity of man, we lose sight of a given fact of creation. Owing to the demand made by God in his creation, only man can be a legal subject. To confer legal subjectivity upon something else than man would be a negation of God's commands and would detract from man's God-given status. Due to the occurrence of associating, however, man does not act as a legal subject only in his individual capacity, but also in association with an organised group. The important difference, however, is that legal subjectivity accrues to the natural person as a matter of course, while the acquisition of legal subjectivity (legal personality) by associations is established according to the legal principles whereby the state regulates society. When legal subjectivity (legal personality) is conferred, an entity comes into being (in actual fact consisting of people) that is more than the sum of its constitutive members or administrators. It is an entity that will continue its existence notwithstanding any changes of membership and it is vested with rights and obligations independent of those of its constitutive members or administrators. Legal subjectivity, therefore, can be defined as that characteristic of man by which he participates in the processes of law either individually (as a natural person) or in association with others (as a legal person), in a distinctive way as a real, concrete organic legal subject), by being vested with capacities (from which arises Subjective rights and legal obligations); this capacity of the legal person exists quite independently of that of each of the individuals that associated to form the legal person. This is an implicit God-given characteristic of every natural person, while the positive law vested the legal person with the same Characteristic in accordance with the legal principles whereby the state regulates society. The legal person of the common law, vested with legal subjectivity (legal personality), displays the following features: It is a real. distinct associative person that participates in the processes of law as a legal subject. It is constituted of members and/or administrators (organs) and although it is similar in some instances to the natural person with regard to the way in which both participate in the processes of law, not all human capabilities can be found in the legal person, and even similar capabilities differ in some respects. In other words, this is no super organism, but a distinct associative person; It is a concrete legal entity, because it is constituted of members and/or administrators. It is not a legal fiction or a mental construction, but a real, existing entity. Even in the case of the foundation the associative person is situated in the success ion of (an) administrator(s) that control(s) or administer(s) an estate with a view to reaching (al predetermined objective(s) within the processes of law; It is a separate entity that, although constituted of members and/or administrators. exists notwithstanding the succession of members and/or administrators, and it is vested with separate rights and obligations; It participates in the processes of law by means of organs. The volition or acts of the organs are the volition or acts of the legal person, juridically speaking. if it is performed in accordance with the internal corporate law (as described in the statute or constitution). This gives the legal person as legal subject the capacity to act, to appear in court in its own name. and to be accountable for its actions. The non-statutory associative legal person at common law is not, in my opinion, contractually founded. but is based on internal corporate law. This legal phenomenon has to be distinguished from the association with~ out legal personality (which is contractually founded). Features of the associative legal person are the following: By virtue of the internal corporate law reciprocal claims are established between members and the legal person as a result of which performances can be demanded between the members and the legal person respectively; The associative legal person is the owner of a separate associative estate that is engaged and administered by the organs. By virtue of their claims against the legal person the members have the capacity to control and to have a say in the management of the estate; The associative legal person is capable of a separate volition and it therefore has the capacity to act, to appear in court in its own name and to be accountable for its actions; In my opinion the associative legal person can lay claim to personality rights as a persona. and demand satisfaction in some cases of prejudice to those rights; The associative legal person as an entity can not only be held liable for lawful acts of the organs, but also for the unlawful acts of the organs, in cases where the legal person directed its volition to effect a certain unlawful action, or acted with unacceptable negligence. As it is possible for the legal person to form its own volition, it can also disclose a guilty inclination. It is furthermore possible for the legal person to be held liable by means of vicarious liability. am .of the opinion that the underlying principles of the legal person at common law present the most suitable basis on which the legal position of cooperative institutions in private law, like churches, political parties. charitable institutions, unions and social associations of the corporative type can be constructed. In doing this the internal legal relations among the members and external legal actions towards outsiders is accounted for in the most satisfactory manner. The legal position of churches is quite distinctive. but in essence it still complies with the requirements for the acquisition of legal personality at common law. In my opinion churches should for this reason be acknowledged as legal persons at common law. The legal position of associations without legal personality (clubs) should be distinguished from the position of legal persons at common law. Associations without legal personality, like the English clubs. are contractually founded; their members are co-owners of the separate club estate and no distinct entity (perosona) is formed. Although the prerequisites for acknowledging legal personality at common law have, in my opinion. been defined satisfactorily in the South African case law, it is not always easy to determine whether these prerequisites are present, especially in the case of informal associations. In order to achieve certainty about the law, I would like to propose that a simple system of registration be introduced for associations and foundations. Those associations and foundations that would like to confirm their legal personality to the outside world, can do so by means of registration. This ought to remove the uncertainties of outsiders (and sometimes members themselves) as to the question whether an informal social association or club is a legal person at common law, and if it is, who the authorized organs are. Such a system of registration, that would naturally have to be instituted by statute, should comprise the following: Legal personality is still conferred according to the requirements laid down by common law; An association that complies with the requirements of common law, is indeed a legal person before registration, but members and administrators can be held responsible personally for actions taken by the organs on behalf of the legal person; Registration serves the purpose of proclaiming the legal personality to the outside world and of indemnifying members and administrators from being held responsible personally for actions taken by the organs. This will make it possible to distinguish the following co-operative institutions: Registered associative legal persons, the members and administrators of which cannot be held responsible personally for actions taken by the organs; Unregistered associative legal persons, the members and administrators of which can be held responsible personally for actions taken by the organs; Clubs or societies that do not qualify for legal personality, because of their contractual nature. Most of the local churches, and without doubt the local Reformed churches, comply with the requirements for legal personality at common law. Because of the adoption and application by the South African courts of the English concept of a church, a conflicting situation has arisen by which local Churches, although they have indeed been defined as common law legal persons at times are considered by the courts to be based on contractual legal relations. No common law authority exists for this point of view, because legal persons are not contractually based according to Roman-Dutch law, and the English unincorporated associations that are indeed contractually based, are not acknowledged as legal persons in English law. To establish the legal position of churches on a purely common law base. one should, in my opinion, characterize the local churches as common law legal persons (based on internal corporate law). Such a point of view would also be in accordance with the fundamental views of Reformed theologians about local churches. As a result of the Reformed dogmatics the connection between local Reformed churches cannot be Seen as a base for an institutionalized body or legal person, but rather as an experience of the unity existing between local churches (with the same articles of faith and church government) because of the fact that all Christians are members of the universal church (the body of Christ). This means that the Reformed Church in South Africa (as a group of churches) is not a legal person and therefore it cannot own land or participate as an entity in the processes of law in any way. It is therefore suggested that the Administrative Bureau of the Reformed Church(es) and the governing body of the Theological Seminary of the Reformed Church(es) act as common law legal persons to perform all the combined legal actions of the individual local churches. The result is that the national synod or religious denomination (kerkverband) itself need not be vested with legal personality. The national synod is a temporary, more comprehensive (meerdere) meeting of the local Reformed churches that is dissolved at the end of each session. Through the meeting of local churches in the national synod and other comprehensive meetings. the religious denomination as such is visibly experienced. In such a way the Reformed concept of church is taken into account. without losing sight of the necessity that local Reformed churches sometimes have to enter into combined legal actions. / Thesis (LLD)--PU for CHE, 1983

It is a fundamental characteristic of his existence that man will establish associations. This phenomenon is acknowledged in all spheres of life, in eluding the juridical. The purpose of this thesis is to examine the distinctive way in which jurisprudence characterizes human association conferring legal subjectivity (legal personality) upon it. Prominence has been given to aspects of legal subjectivity (legal personality) of associations in private law with ideal or non-profit intent. The legal status of the associative legal person in private law is not governed by statute at the moment and is therefore determined by the rules of Common law. Although there is no explicit acknowledgement of the legal person as a separate legal entity in Roman law, the Roman jurists did record certain features of co-operative institutions like corpora, collegia. universitates and eodalitates. Early Roman-Dutch jurists did not consider the legal person to be a separate legal entity either, but they applied the inherited features of the Roman co-operative institutions to other associative groups like guilds and churches. The legal person has been acknowledged as a separate legal entity (legal subject) since the eighteenth century, although the term legal person only originated towards the end of that century. The historical part of the investigation reveals the significant fact that the legal person was already recognized as a separate legal entity in Medieval canon law. The Medieval Roman-Catholic and the Reformational concept of the church exerted an important influence on the view held by later jurists concerning the legal person. The historical part of the investigation further demonstrates that the following features of the common law legal person (association or foundation) in South Africa derive from Roman law, canon law and Roman-Dutch law: It is composed of people (members or administrators); It has perpetual succession, i.e. it exists notwithstanding changes in membership; It is vested with rights and obligations independent of its constitutive members or administrators; It participates in the processes of law through organs; Through its organs it can exercise an independent volition, and therefore it has the capacity to act, the capacity to appear in court in its own name, and to be accountable for its actions; For its continued existence it has to comply with the requirements for the conferment of legal personality as laid down by positive law; It has to have a lawful objective that is not contra bonos mores. It is noticeable that no authority exists at common law for the current supposition that the associative legal person is contractually founded, and also that, at common law, the legal position of the associative legal person was as a rule distinguished from that of societates (societies or partnerships), which are contractually founded. Against this historical background the underlying principles concerning the legal person were investigated. Since the beginning of the nineteenth century the Pandectists, in particular, have attempted a theoretical analysis of the legal person. This gives rise to a number of theories concerning the legal person. Most of the legal theorists, however, tend to over-emphasize one aspect or the other. Von Savigny, for example. stresses the fact that only the individual person (as a moral entity) can act as an actual legal subject and that the legal person as such is merely a legal fiction. Von Gierke, on the other hand, argues that the legal person is composed of organs and that it participates in the processes of law as a super organism with human capacities. Brinz declares that a separate estate can act as a subject in the processes of law. Molengraaff brings the actions of the legal person in connection with the members thereof in their personal capacity; and advocators of juridical realism consider the legal person to be a nominal reality that really exists, but only as an immaterial construction of the mind. From the organ theory of Von Gierke and the functional societal theory of Dooyeweerd, two conclusions, which I would like to endorse, can be drawn: Both these jurists agree that the legal person is founded not on con~ tract, but on internal corporate law (interne verbandsreg). Therefore the statute or constitution is not a contract between the members, but the internal corporate law on which all legal relations between members mutually, and towards outsiders. is based. The legal person is capable of volition and action through organs, and when the organs will and act, juridically speaking it is the legal person that wills and acts. This renders the legal person capable of acting, of appearing in court in its own name, and of being accountable for its actions. In my opinion the nature of the legal person can only be determined by an analysis of legal Subjectivity. Using the transcendental-empirical method as methodological basis, it is imperative in the investigation of legal subjectivity to take both the theoretical analysis of the concept and its practical application into account. The South African legal practice requires the following for the existence of a legal person: there must be an entity vested with rights and obligations independent of its constitutive members or administrators; this entity must continue its existence notwithstanding changes of membership; the entity must pursue lawful objectives that are not contra bonos mores, To this can be added (although it is not explicitly required) that there should be an internal structure of authority, arising from the internal corporate law according to which the organs function. The lack of authority for the supposition made by the South African legal practice (according to some verdicts) that the common law legal person is contractually founded, has already been pointed out. Legal subjectivity is the capacity of an entity to act in a subject in the processes of law. In my opinion only man can act as a legal subject. Seen from a Christian point of view, God created man in His image, and placed him on earth as the pinnacle of creation, to subject, cultivate and protect that creation. Man owes his ability to take part in the processes of law to this God-given status, and he derives his legal capacities from this status. All people are bearers of these capacities, though not always to the same extent. If we deny the legal subjectivity of man, we lose sight of a given fact of creation. Owing to the demand made by God in his creation, only man can be a legal subject. To confer legal subjectivity upon something else than man would be a negation of God's commands and would detract from man's God-given status. Due to the occurrence of associating, however, man does not act as a legal subject only in his individual capacity, but also in association with an organised group. The important difference, however, is that legal subjectivity accrues to the natural person as a matter of course, while the acquisition of legal subjectivity (legal personality) by associations is established according to the legal principles whereby the state regulates society. When legal subjectivity (legal personality) is conferred, an entity comes into being (in actual fact consisting of people) that is more than the sum of its constitutive members or administrators. It is an entity that will continue its existence notwithstanding any changes of membership and it is vested with rights and obligations independent of those of its constitutive members or administrators. Legal subjectivity, therefore, can be defined as that characteristic of man by which he participates in the processes of law either individually (as a natural person) or in association with others (as a legal person), in a distinctive way as a real, concrete organic legal subject), by being vested with capacities (from which arises Subjective rights and legal obligations); this capacity of the legal person exists quite independently of that of each of the individuals that associated to form the legal person. This is an implicit God-given characteristic of every natural person, while the positive law vested the legal person with the same Characteristic in accordance with the legal principles whereby the state regulates society. The legal person of the common law, vested with legal subjectivity (legal personality), displays the following features: It is a real. distinct associative person that participates in the processes of law as a legal subject. It is constituted of members and/or administrators (organs) and although it is similar in some instances to the natural person with regard to the way in which both participate in the processes of law, not all human capabilities can be found in the legal person, and even similar capabilities differ in some respects. In other words, this is no super organism, but a distinct associative person; It is a concrete legal entity, because it is constituted of members and/or administrators. It is not a legal fiction or a mental construction, but a real, existing entity. Even in the case of the foundation the associative person is situated in the success ion of (an) administrator(s) that control(s) or administer(s) an estate with a view to reaching (al predetermined objective(s) within the processes of law; It is a separate entity that, although constituted of members and/or administrators. exists notwithstanding the succession of members and/or administrators, and it is vested with separate rights and obligations; It participates in the processes of law by means of organs. The volition or acts of the organs are the volition or acts of the legal person, juridically speaking. if it is performed in accordance with the internal corporate law (as described in the statute or constitution). This gives the legal person as legal subject the capacity to act, to appear in court in its own name. and to be accountable for its actions. The non-statutory associative legal person at common law is not, in my opinion, contractually founded. but is based on internal corporate law. This legal phenomenon has to be distinguished from the association with~ out legal personality (which is contractually founded). Features of the associative legal person are the following: By virtue of the internal corporate law reciprocal claims are established between members and the legal person as a result of which performances can be demanded between the members and the legal person respectively; The associative legal person is the owner of a separate associative estate that is engaged and administered by the organs. By virtue of their claims against the legal person the members have the capacity to control and to have a say in the management of the estate; The associative legal person is capable of a separate volition and it therefore has the capacity to act, to appear in court in its own name and to be accountable for its actions; In my opinion the associative legal person can lay claim to personality rights as a persona. and demand satisfaction in some cases of prejudice to those rights; The associative legal person as an entity can not only be held liable for lawful acts of the organs, but also for the unlawful acts of the organs, in cases where the legal person directed its volition to effect a certain unlawful action, or acted with unacceptable negligence. As it is possible for the legal person to form its own volition, it can also disclose a guilty inclination. It is furthermore possible for the legal person to be held liable by means of vicarious liability. am .of the opinion that the underlying principles of the legal person at common law present the most suitable basis on which the legal position of cooperative institutions in private law, like churches, political parties. charitable institutions, unions and social associations of the corporative type can be constructed. In doing this the internal legal relations among the members and external legal actions towards outsiders is accounted for in the most satisfactory manner. The legal position of churches is quite distinctive. but in essence it still complies with the requirements for the acquisition of legal personality at common law. In my opinion churches should for this reason be acknowledged as legal persons at common law. The legal position of associations without legal personality (clubs) should be distinguished from the position of legal persons at common law. Associations without legal personality, like the English clubs. are contractually founded; their members are co-owners of the separate club estate and no distinct entity (perosona) is formed. Although the prerequisites for acknowledging legal personality at common law have, in my opinion. been defined satisfactorily in the South African case law, it is not always easy to determine whether these prerequisites are present, especially in the case of informal associations. In order to achieve certainty about the law, I would like to propose that a simple system of registration be introduced for associations and foundations. Those associations and foundations that would like to confirm their legal personality to the outside world, can do so by means of registration. This ought to remove the uncertainties of outsiders (and sometimes members themselves) as to the question whether an informal social association or club is a legal person at common law, and if it is, who the authorized organs are. Such a system of registration, that would naturally have to be instituted by statute, should comprise the following: Legal personality is still conferred according to the requirements laid down by common law; An association that complies with the requirements of common law, is indeed a legal person before registration, but members and administrators can be held responsible personally for actions taken by the organs on behalf of the legal person; Registration serves the purpose of proclaiming the legal personality to the outside world and of indemnifying members and administrators from being held responsible personally for actions taken by the organs. This will make it possible to distinguish the following co-operative institutions: Registered associative legal persons, the members and administrators of which cannot be held responsible personally for actions taken by the organs; Unregistered associative legal persons, the members and administrators of which can be held responsible personally for actions taken by the organs; Clubs or societies that do not qualify for legal personality, because of their contractual nature. Most of the local churches, and without doubt the local Reformed churches, comply with the requirements for legal personality at common law. Because of the adoption and application by the South African courts of the English concept of a church, a conflicting situation has arisen by which local Churches, although they have indeed been defined as common law legal persons at times are considered by the courts to be based on contractual legal relations. No common law authority exists for this point of view, because legal persons are not contractually based according to Roman-Dutch law, and the English unincorporated associations that are indeed contractually based, are not acknowledged as legal persons in English law. To establish the legal position of churches on a purely common law base. one should, in my opinion, characterize the local churches as common law legal persons (based on internal corporate law). Such a point of view would also be in accordance with the fundamental views of Reformed theologians about local churches. As a result of the Reformed dogmatics the connection between local Reformed churches cannot be Seen as a base for an institutionalized body or legal person, but rather as an experience of the unity existing between local churches (with the same articles of faith and church government) because of the fact that all Christians are members of the universal church (the body of Christ). This means that the Reformed Church in South Africa (as a group of churches) is not a legal person and therefore it cannot own land or participate as an entity in the processes of law in any way. It is therefore suggested that the Administrative Bureau of the Reformed Church(es) and the governing body of the Theological Seminary of the Reformed Church(es) act as common law legal persons to perform all the combined legal actions of the individual local churches. The result is that the national synod or religious denomination (kerkverband) itself need not be vested with legal personality. The national synod is a temporary, more comprehensive (meerdere) meeting of the local Reformed churches that is dissolved at the end of each session. Through the meeting of local churches in the national synod and other comprehensive meetings. the religious denomination as such is visibly experienced. In such a way the Reformed concept of church is taken into account. without losing sight of the necessity that local Reformed churches sometimes have to enter into combined legal actions. / Thesis (LLD)--PU for CHE, 1983

Thesis (Th. M.)--Dallas Theological Seminary, 2000. / Includes bibliographical references (leaves [47]-50).