Property https://old.zimlii.org/taxonomy/term/9688/all en Chiangwa And 7 Others v AFM in Zimbabwe And 7 Others (SC 67-21, Civil Appeal No. SC 510/19) [2021] ZWSC 67 (28 May 2021); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2021/67 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>Judgment No. SC 67/21 </strong></p> <p>                                                                                                                                <strong>Civil Appeal No. SC 510/19 </strong></p> <p> </p> <p> </p> <p><strong>REPORTABLE</strong><strong>        (65)</strong></p> <p> </p> <p> </p> <p>                                                                                                             </p> <p><strong>(1)</strong><strong>               COSSAM     CHIANGWA     (2)     AMON     CHINYEMBA     (3)     NATHAN     </strong></p> <p><strong>NHIRA     (4)     SHEPHERD     SEBATA     (5)     APOSTOLIC     FAITH     MISSION     </strong></p> <p><strong>IN     ZIMBABWE     (6)     DONARD     MDONI     (7)     ARTHUR          NHAMBURO     (8)     M.      MASHUMBA </strong></p> <p><strong>v </strong></p> <p>      <strong>(1)</strong><strong>           APOSTOLIC     FAITH     MISSION     IN     ZIMBABWE     (2)     ASPHER     </strong></p> <p><strong>MADZIYIRE     (3)     AMON     DUBIE     MADAWO     (4)     MUNYARADZI     </strong></p> <p><strong>SHUMBA     (5)     TAWANDA     NYAMBIRAI     (6)     CLEVER     MUPAKAIDZWA     </strong></p> <p><strong>(7)     BRITON     TEMBO     (8)     CHRISTOPHER     CHEMBERE </strong></p> <p> </p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE </strong></p> <p><strong>MAVANGIRA JA, MAKONI JA &amp; KUDYA AJA </strong></p> <p><strong>HARARE: 5 JUNE, 2020 &amp; 28 MAY 2021 </strong></p> <p> </p> <p> </p> <p> </p> <p><em>T. Magwaliba </em>and<em> L. Madhuku, </em>for the appellants</p> <p><em>F. Girach </em>and Ms<em>. F. Mahere, </em>for the respondents</p> <p> </p> <p> </p> <p> </p> <p>                     <strong>KUDYA AJA:  </strong>This is an appeal against the entire judgment of the High Court dated 4 September 2019, in which the court <em>a quo</em> granted a <em>declaratur</em> and consequential relief sought by the respondents against the appellants and dismissed the application for a <em>declaratur </em>sought by the appellants against the respondents.</p> <p>  </p> <p>                    The order of the court <em>a quo</em> erroneously confirmed the terms of a provisional order of the initial urgent chamber application that had by consent of the parties been removed from the roll of urgent chamber matters on 8 October 2018, and enlisted on the opposed roll. The provisional order was substituted by an “amended draft order” filed together with the respondents’ answering affidavits and heads of argument on 2 November 2018. </p> <p> </p> <p>The erroneous order was, with the consent of the parties, corrected by this Court in</p> <p>terms of s 22 (1) (a) of the Supreme Court Act <em>[Chapter 7:13] </em>in Civil Appeal No. SC 527/2019, which was specially lodged by the respondents for that purpose and heard just before the present appeal.  The corrected order of the court <em>a quo, </em>therefore forms the basis of the present appeal. </p> <p>             </p> <p> </p> <p><strong>THE FACTS</strong></p> <p>The appeal concerns a church dispute between two formations for the control and</p> <p>leadership of the Apostolic Faith Mission in Zimbabwe (the AFM or the church). The appealed judgment is a consolidation of two applications that were filed separately by the parties.</p> <p> </p> <p>The first application, HC 9149/18, was filed by the first five respondents against the</p> <p>seven hominal appellants on 4 October 2018, while the second application, HC 179/19, was filed by the first five appellants against the second, third, sixth, seventh and eighth respondents on 10 January 2019. </p> <p> </p> <p>In the first application, the respondents sought the nullification of a meeting held by</p> <p>the appellants on 22 September 2018, and all subsequent acts flowing from it while in the second application the appellants sought recognition as the duly elected office bearers of the church and consequential relief. The High Court granted the first application and dismissed the second, with costs. </p> <p>The church is a <em>universitas</em> with a written constitution and consequent regulations,</p> <p>which inscribe its foundational values, confession of faith, mission and governance structures and reposes the power to sue and be sued in its national office bearers in clauses 1.2, 1.3, 1.4 1.4. 6 (f) and 12.4.1, respectively. </p> <p> </p> <p>The dominant protagonists in the two applications were the second respondent and the</p> <p>first appellant, respectively, who were elected President and Deputy President of the church at the triennial elections in April 2015. The third and fourth respondents were elected at the same elections as General Secretary and National Administrator. </p> <p> </p> <p>Between August 2015, and 15 September 2018, the Church, led by the Apostolic</p> <p>Council and Workers Council, conducted a constitutional review process (CRP) through a Constitutional Review Committee (CRC) chaired by the fifth respondent, a co-opted member of the Apostolic Council. The CRP was designed to address acute electoral, financial and governance shortcomings through the amendment of the constitution and geared to deliver free, fair and credible church elections, strengthen accountability and transparency and engender parity and equity in the conditions of service of the clergy and development programs of the church in both rural and urban areas. </p> <p> </p> <p>The CRP culminated in the Extraordinary General Meeting, EGM, of the Workers Council of 10 February 2018, which resolved to hold the triennial Provincial and Workers Council elections due on 28 April 2018, after “the Workers Council considers and if deemed fit, passes, with or without amendment, the proposed amendments to the Constitution of the Apostolic Faith</p> <p>Mission in Zimbabwe in terms of the attached draft” at its scheduled meeting of 28 April 2018. </p> <p> </p> <p>The meeting of 28 April 2018, was terminated unceremoniously without resolving the</p> <p>proposed resolution. Tonderai Mathende took the Church, the first, second and fifth respondents and the first appellant to court under HC 4756/18 and obtained an order compelling the 2015 office bearers to reconvene and conclude the aborted Workers Council meeting of 28 April 2018. </p> <p> </p> <p>                    By a letter dated 31 July 2018, the second respondent called for a Workers’ Council Meeting to be held on 15 September 2018 in compliance with the court order issued under HC 4756/18. </p> <p> </p> <p>On 15 September 2018, the Workers Council met and considered the proposed Constitutional amendments and “accepted” them subject to the suspension of all the provisions, except for the provisions relating to the conduct of elections in order to give other church members an opportunity to propose further amendments to the amendments.</p> <p> </p> <p>The resolution was carried by 2 021 votes, inclusive of the appellants’ votes, against 35, with no abstentions. The optimum number of councilors supplied by the respondents was 3 475 councilors against 2 056 provided by the appellants. </p> <p> </p> <p>On 21 September 2018, the Apostolic Council met to consider the dates and rules for</p> <p>the impending triennial elections. The provincial elections were to be held on 29 September and 3 October 2018, while the national elections would be on 3 November 2018. The first appellant told the meeting that “he would go his own way because he did not accept the resolution that was passed by the Workers Council on 15 September 2015”. Whereupon he served written notice, dated 20 September 2018, and co-signed by all the appellants, except the fourth, on his fellow national office bearers of the meeting of 22 September 2018.  Para 2, of the notice implored the targeted audience to:</p> <p>“Please note that this is a National Workers Council of all those councilors who strongly feel the adoption of the DRAFT resulted in the formation of a totally different church and is in itself a departure from the church that they have always cherished and loved. It is, therefore, a National Workers Council of those councilors who would like to remain in the AFM in Zimbabwe Church which is governed by the old constitution which the 15th September National Workers Council attempted to repeal.”(My emphasis)</p> <p> </p> <p> </p> <p>The meeting of 22 September 2018, was purportedly attended by 2 056 councilors</p> <p>comprised of 1 562 delegates and 567 pastors from 513 assemblies with apologies from 137 assemblies. The attendees ignored the cease and desist call from the second respondent. The meeting, <em>inter alia, </em>reviewed and nullified the resolution of 15 September 2018, and by a total 1 557 affirmative votes dismissed the serving national bearers other than the first appellant, arrogated to themselves the power to conduct triennial elections on 6, 13 and 20 October 2018 and incited the members to revolt against the defrocked office bearers.</p> <p> </p> <p>On 25 September 2018, the Apostolic Council abandoned the saved electoral</p> <p>amendments because they were in complete dissonance with the preserved governance structures of the amended constitution.</p> <p> </p> <p>On 26 September 2018, the appellants spurned the cease and desist order and call to</p> <p>return to the mainstream fold issued by the third respondent. They appointed their own 26 provincial overseers and the fourth appellant as the national administrator to whom church funds were to be remitted. They also urged all church members to ignore the triennial dates set by the apostolic council.  </p> <p> </p> <p>On 27 September 2018, appellants were suspended without pay and benefits and</p> <p>subsequently charged with participating in an illegal meeting and fomenting rebellion, disharmony, confusion, destabilization, disorder and disturbances against the church, forming a splinter group and usurping the powers of the Apostolic Council and the other office bearers in violation of clauses 1.4. 2 and 1.4.6 of the constitution. </p> <p> </p> <p>They snubbed the charges and notices of hearing, and were dismissed from their</p> <p>official positions on 15 October 2018, with effect from their respective dates of suspension.  They refused to vacate church premises and surrender church assets in their possession or under their control. They were permanently replaced as office bearers at the national elections held by the respondents on 3 November 2018.</p> <p> </p> <p> </p> <p>The appellants conducted parallel provincial elections on 3, 6, 7, 13 and 14 October  2018 and Worker’s council elections on 20 October 2018, where the first four appellants were elected as President, Deputy-President, General Secretary and National Administrator. It was in their collective capacity as purported office bearers that they lodged the second application. </p> <p> </p> <p> </p> <p><strong>THE ARGUMENTS PRESENTED IN THE COURT <em>A QUO</em> </strong></p> <p>The first application </p> <p>In the first application, the respondents submitted that they were the duly elected office</p> <p>bearers of the church, who had legal standing to sue on its behalf for the vindication and protection of its assets through a <em>declaratur</em> and an interdict. They contended that they had satisfied the requirements for a <em>declaratur </em>prescribed in s 14 of the High Court Act [<em>Chapter 8:06</em>] and the common law requirements for a final interdict and were thus entitled to such relief.</p> <p> </p> <p> They argued that the meeting of 22 September 2018, was <em>ultra vires</em> the constitution</p> <p>in that it violated the notice and quorum requirements stipulated in clause 12.7.1 as read with 12.3, clause 13.3.1 of the regulations and clauses 12.6 and 12.9 and the financial probity arrangements enshrined in clause 12.5 and 12.6 of the constitution. They also argued that the vote of no confidence was not only alien to the constitution but also violated the <em>audi alteram</em> rule. Lastly, they contended that the appointment, instead of election of office holders in the church, was anathema to the constitution.</p> <p> </p> <p>The appellants took five preliminary points. These were that the application was not</p> <p>urgent; the respondents did not have <em>locus standi</em> to represent the church as their tenure of office as national office bearers had expired on 28 April 2018, and had not been renewed, the matter was <em>lis pendens</em> in <em>Mujokeri v Madziyire</em> HC 4583/18, in which judgment had been reserved; the application was a disguised review of the outcomes of the meeting of 22 September 2018, which could not be sought urgently, on review, or through a declarator. And lastly, that there were material disputes of fact pertaining to the quorum of the meeting of 22 September 2018, which could not be resolved on the papers.</p> <p>                   On the merits, the appellants implicitly conceded that their meeting was not convened in terms of the constitution by ascribing the call to “a big constituency of the church which was clearly not happy with the way the church was going about the constitutional changes”. They, however argued that this amorphous grouping had the power to dis-appoint just as it had the power to appoint the respondents. They strongly contended that the resolution of 15 September 2018, was in breach of the mandatory procedural requirements of the two-thirds quorum prescribed in clause</p> <p>12.6 of the constitution. </p> <p> </p> <p>The second application </p> <p>In the second application, the appellants, who baptized themselves as “the Originals”, submitted that as the office bearers elected by the church at the triennial elections of 20 October 2018, they had the power to vindicate and protect the assets of the church from the respondents, whom they christened “the Reform Side”, whose tenure of office expired by the effluxion of time on 28 April 2018. They further submitted that the respondents by violating the amendment clause, clause 12.6, to the constitution had by public acclamation forfeited their claims to the leadership of the church to the appellants.  </p> <p> </p> <p>The respondents took two preliminary points. They contended that the appellants had</p> <p>no <em>locus standi</em> to represent the church as their election to the national offices was tainted by the illegality of the meeting of 22 September 2018, from which they traced their authority.  The second was that there were material disputes of fact on the procedure, substance and effect of the meeting of 22 September 2018, which could not be resolved on the papers.  </p> <p> </p> <p>On the merits, the appellants contended, for the first time in argument that, the</p> <p>appellants had seceded from the church on 22 September 2018 and therefore did not have<em> locus standi </em>to represent the church. They argued that the respondents sought to overhaul the constitution and reframe the church in their own image by abandoning the confession of faith and the fundamental doctrines of the church. </p> <p> </p> <p>THE DETERMINATION OF THE COURT <em>A QUO</em></p> <p>   The court <em>a quo</em> criticized both parties for raising preliminary points “in such a</p> <p>contentious matter.” It prefaced its decision on the preliminary objections by remarking that:</p> <p>“Both Madziyire and Chiangwa should have realized that preliminary matters, though permissible in terms of the rules of court, served no purpose in such a contentious matter as the present one. They should have remained alive to the fact that the same required the court to consider the merits of the case as opposed to having the same resolved on the basis of technical issues. Any technical issue which is not capable of resolving the dispute of the parties is not worth the paper on which it is written. It becomes a time-wasting exercise which does not enhance the work of the court. It should, therefore, be avoided as it constitutes an exercise in futility which is of no benefit to anyone. It does not benefit the party which raises it, let alone the party against which it is raised. Apart from the issue of <em>lis pendens</em> which Chiangwa raised, I shall, therefore, deal with all the parties’ preliminary issues in the body of this judgment. They all relate to the reasons which prompted Madziyire and Chiangwa to file their respective applications.”</p> <p> </p> <p> </p> <p>In regards to the preliminary objections moved by the appellants in the first</p> <p>application, the court <em>a quo</em> ruled that, the question of urgency was no longer a live issue, <em>lis pendens</em>, could not be sustained as the pending judgment in <em>Mujokeri v Madziyire</em> HC 4583/18, had been handed down on 25 March 2019, prior to the hearing before it, there were no material disputes of fact on the quorum of 15 September 2018, and the use of a declarator rather than a review in the circumstances of the application was proper, as a nullity could not be reviewed. And lastly, that as the respondents were the only office bearers of the church at the time the proceedings were instituted, they had the requisite <em>locus standi </em>to do so. </p> <p> </p> <p> On the merits, the court <em>a quo</em>, found that on a proper application of the operative</p> <p>constitution of the church, the respondents had established their case on a balance of probabilities and granted them the relief set out in the amended draft order filed on 2 November 2018, as corrected by this Court. </p> <p> </p> <p>It specifically found that they were the office bearers of the church vested with the</p> <p>power to call for, hold and preside over the Workers Council meetings.</p> <p> </p> <p>It also held that although the triennial anniversary date had passed on 28 April 2018,</p> <p>clause 13.3.1 of the constitution as read with clause 13.1.1 of the regulations, preserved their term of office until the holding of triennial elections in the calendar year in which the triennial year fell. And in the alternative that, the common law extended their appointment beyond the triennial anniversary date to the date of the investiture of their elected successors. </p> <p> </p> <p>It thus found that the respondents had proved that the conduct of the appellants on</p> <p>22 September 2018 had been motivated by selfish ambition to “illegally snatch power within the church through a coup” and “split the church in their quest for power” and not over any constitutional reform dispute, which reforms they voted in favour of.  It further determined that the meeting of 22 September 2018, suffered from fatal and incurable extrinsic and intrinsic irregularities that were in violation of the constitution, which rendered the meeting void <em>ab initio</em>. Lastly, it held that any outcomes that flowed from that meeting were also void and of no force or effect.</p> <p> </p> <p>On the preliminary issues raised by the respondents in the second application, the court</p> <p><em>a quo</em> ruled that there were no material disputes of fact, which could not be resolved on the averments on quorum on the papers of the appellants in respect of the meeting of 22 September 2018. It upheld the respondents’ objection on <em>locus standi</em>. It found that the meeting violated the constitution of the church. Further that, as the Workers Council elections held by the appellants on 20 October 2018, were premised on the meeting of 22 September 2018, they were tainted by these violations. It found both the meeting and the elections invalid and of no force or effect.</p> <p> </p> <p>On the merits, it held that the appellants bore the onus of establishing on a balance of</p> <p>probabilities that the respondents had seceded from the mainstream church and formed a new church by abandoning the church constitution and adopting the proposed amendments to that constitution. It found that the appellants had not placed any evidence capable of discharging the onus. They had not filed the proposed amendments nor particularized the clauses in the accepted but suspended constitution that violated the operative constitution. Rather, they had produced and relied on the same constitution as the respondents. The court dismissed the appellants’ contention that at the time the meeting of 15 September 2018, was held, the respondent’s tenure of office had expired on two grounds. The first, was that clause 13.3. 1 of the constitution as read with clause 13.3 of the regulations allowed the office bearers to continue in office beyond the triennial anniversary of their election to any date within the calendar year of such anniversary. The second was that the common law abhorred a vacuum and thus allowed office bearers of a <em>universitas</em> to continue in office until elections were held to replace them.</p> <p> </p> <p>It was on the basis of these findings that the court <em>a quo</em> granted the first application</p> <p>and dismissed the second application with costs. </p> <p> </p> <p><strong>THE GROUNDS OF APPEAL </strong></p> <p>The five grounds of appeal raised by the appellants were framed as follows:</p> <p>“1. The High Court erred in failing to find that the adoption of a new constitution by the second to eighth respondents and their followers on 15 September 2018, was unprocedural and not in accordance with the provisions of the Constitution of the fifth appellant.</p> <ol> <li>The High Court consequently erred in failing to find that the second to eighth respondents and their followers seceded from the church of the fifth appellant as from 15 September 2018 and therefore had not <em>locus standi </em>to challenge the proceedings of the fifth appellant’s church subsequent to that date.</li> <li>The High Court further erred in finding that the appellants had no <em>locus standi </em>to institute the proceedings in case number HC 179/19 and having so found in going ahead to determine the merits of that application.</li> <li>The High Court further grossly erred in finding that the new Constitution adopted by the second to eighth respondents was not a renunciation of the fifth appellant’s Constitution when the said constitution was not placed before the court by the respondents who had the onus to place it before the court.</li> <li>The High Court further erred in finding that the appellants could not seek consequential relief upon the grant of a declarator unless it was combined with an interdict or a claim for a vindicatory relief.”</li> </ol> <p> </p> <p> </p> <p><strong>ISSUES FOR DETERMINATION ON APPEAL </strong></p> <p>The cumulative import of the first four grounds of appeal was that the court <em>a quo</em></p> <p>grossly misdirected itself in finding that the respondents and not the appellants were the proper office bearers of the church imbued with the requisite legal standing to act on its behalf.  The last ground of appeal interrogates the correctness of the observation of the court <em>a quo</em> that the declarator sought by the appellants was fatally defective for want of vindicatory consequential relief. The two issues for determination on appeal that arise from all the grounds are:</p> <ol> <li>Whether the court <em>a quo</em> was correct in finding that the respondents and not the appellants were the recognized office bearers of the church, who had <em>locus standi</em> to act on its behalf.</li> <li>Whether the declarator sought by the appellants was not conjoined with consequential relief and therefore fatally defective.</li> </ol> <p> </p> <p><strong>SUBMISSIONS IN THIS COURT </strong></p> <p>In this Court, Mr <em>Magwaliba, </em>for the appellants submitted that the respondents did not</p> <p>have <em>locus standi</em> to institute or defend legal proceedings on behalf of the church because they seceded from the church on 15 September 2018. He contended that the adoption of the constitutional amendments by the Workers Council on 15 September 2018, constituted the act of secession in two respects. The main one was that the adoption was in breach of the peremptory notice and quorum requirements prescribed in clause 12.6 of the constitution. And the alternative was that the very adoption of the amendments whose content was materially at variance with the content of the amended constitution constituted a renunciation of the original constitution, and was therefore an act of secession. He also contended that the duty to place the constitutional amendments before the court <em>a quo,</em> which would have established secession, lay on the respondents. He argued that the effect of the act of secession was that the respondents ceased to be office bearers of the church and concomitantly lost the right to represent the church in any legal proceedings lodged after that date. </p> <p> </p> <p>He further contended that it was remiss of the court <em>a</em> <em>quo</em> to further determine the</p> <p>second application on the merits once it had decided the issue of <em>locus standi</em> against the appellants.</p> <p> </p> <p>Lastly, he contended that the finding of the court <em>a quo</em> that the relief sought in the</p> <p>second application was fatally defective for failing to conjoin the declarator with an interdict <em>cum</em> vindication was incorrect.</p> <p> </p> <p>      Mr <em>Girach</em>, for the respondents, submitted that the secession argument could not be properly raised in the court <em>a quo </em>or in this Court because it had not been pleaded by the appellants in their opposing affidavits in the first application and founding affidavits in the second application. He contended that the appellants’ case in both claims was based on the purported illegal stay in office subsequent to 28 April 2018. </p> <p> </p> <p>In the alternative, he argued that the resolution accepting and immediately suspending</p> <p>the constitutional amendments other than those relating to elections did not constitute secession. He contended that the respondents remained the only office bearers of the church imbued with the power to represent it in all legal proceedings launched by or against the church.</p> <p> </p> <p>In reply, Mr <em>Magwaliba</em> argued that the oblique reference to the negation of the “foundational and fundamental doctrines of the AFM in Zimbabwe and of the AFM International” in the appellants’ memorandum of 24 September 2018, and the averments in para 46 to 49 of the appellants’ founding affidavits sufficed to found secession as a cause of action.  </p> <p> </p> <p> </p> <p><strong>THE LAW </strong></p> <p>The law concerning <em>universitas</em> and the power of the courts to interfere in their affairs</p> <p>is reproduced in Bamford’s <em>The Law of Partnerships and Voluntary Associations in South Africa </em></p> <p>3rd ed at p 849 and restated in various cases such as <em>Dynamos Football Club (Pvt) Ltd &amp; Anor v ZIFA &amp; Ors</em> 2006 (1) ZLR 346 (S) 355G and 356A, <em>Independent African Church </em>v<em> Maheya </em>1998 (1) ZLR 552 (H) at 556E and <em>Independent African Church </em>v<em> Maheya </em>2000 (1) ZLR 39 (H). It is that courts generally construe the articles of association or constitution of voluntary associations’ strictly. Thus, any conduct, which falls outside the strict requirements of the constitution of a <em>universitas</em> would generally be adjudged to be invalid.</p> <p>   </p> <p>This is because the articles constitute the primary documents in which the nature,</p> <p>manner and scope of voluntary associations are reposed. It is also from these articles that voluntary associations derive universal recognition by the courts. </p> <p> </p> <p>Another established principle of our law is that an applicant’s cause stands or falls on</p> <p>his founding affidavit and not in an answering affidavit while the defence of a respondent stands or falls on his opposing affidavit. See <em>Steinberg v Cosmopolitan National Bank of Chicago</em> 1973</p> <p>(4) SA 564 (RA) at 575G, <em>Austerlands (Pvt) Ltd v Trade and Investment Bank Ltd &amp; Ors</em> SC 2006 (1) ZLR 372 (S) at 378D-E; <em>Moyo v Zvoma</em> SC 28/10, <em>Bonnyview Estates (Pvt) Ltd v Zimbabwe Platinum Mines (Pvt) Ltd</em> SC 15/18 and <em>Pountas’ Trustee v Lahamas</em> 1924 WLD 67 at 6. </p> <p> </p> <p>The principles on which secession is based are well settled in this country. They are</p> <p>crystallized in the case of <em>The</em> <em>Church of the Province of Central Africa v Diocesan Trustees, </em></p> <p><em>Harare Diocese</em> 2012 (2) ZLR 392 (S). In that case at 415B and in <em>Sibanda &amp; Ors v The Apostolic Mission of Port Oregon (Southern African Headquarters</em>) SC 49/18 at p 11, secession was equated to schism and unilateral declaration of independence and was authoritatively defined as “the separation of a Church into two Churches or the secession of a group owing to doctrinal, disciplinary differences”.  </p> <p> </p> <p>Again, the common law principle governing the expiration of fixed tenure of office</p> <p>bearers was settled in the cases of <em>Padayiche v Pavadai NO &amp; Anor</em> 1994 (1) SA 662 (W) at 672G and <em>Exparte United Party Club</em> 1930 WLD 277 at 281. It is that the tenure of office of elected office bearers is not terminated by the effluxion of time but by subsequent elections that are held for new office bearers. </p> <p> </p> <p><strong>APPLICATION OF THE LAW TO THE FACTS</strong> </p> <p><strong>Whether the court <em>a quo</em> was correct in finding that the respondents and not the appellants were the recognized office bearers of the church, who had <em>locus standi</em> to act on its behalf. </strong></p> <p>The appellants nailed their colours on the secession argument. In so doing, the</p> <p>appellants lost the opportunity to attack the bases upon which the court <em>a quo</em> held that the respondents and not the appellants were the proper office bearers of the church who had the legal standing to represent it in legal proceedings. </p> <p> </p> <p>The case pleaded by the appellants in the second application was predicated on the</p> <p>expiration of the triennial tenure of the respondents on 28 April 2018. This was expressly stated in paras 17 to 19 of the appellants’ main founding affidavit deposed to by the first appellant. That was why the court <em>a quo</em> relied on clause 13.3.1 of the constitution as read with clause 13.3 of the regulations and the common law principle stated in the <em>Padayiche</em> case and <em>Ex parte United Party Club</em> case for its decision.</p> <p> </p> <p>The secession argument was raised by the appellants for the first time in their</p> <p>supplementary heads of argument filed <em>a quo</em> some two months after the respondents had filed their own heads. The supplementary heads were not based on the pleadings before the court <em>a quo</em>.</p> <p>The failure to plead secession hamstrung the appellant’s case in that they failed to particularize the changes rendered to the constitution, which overhauled rather than amended the constitution, was the basis for the finding <em>a quo</em> that the appellants had failed to discharge the onus on them to establish secession. </p> <p> </p> <p>It is for these reasons that I agree with the submission made by Mr <em>Girach</em> in this Court</p> <p>that the appellants could not properly premise their grounds of appeal on a cause of action, which they did not plead <em>a quo</em>. The correctness of the submission is borne out by the well-established principle of our law that a case stands or falls on its founding affidavit. It does not stand on the answering affidavit or in correspondence exchanged between the parties before the institution of litigation.</p> <p> </p> <p>Thus, the contention by Mr <em>Magwaliba</em> that the oblique reference to the breach of “foundational and fundamental doctrines of the AFM in Zimbabwe and of the AFM International” in the appellants’ memorandum of 24 September 2018, coupled with the averments made in paras 46 to 49 of the appellants’ founding affidavit sufficed to found secession as a cause of action is incorrect. </p> <p> </p> <p>The letter addressed to the respondents on 24 September 2018, is not a pleading. The</p> <p>contents of that letter were not pleaded in the appellants’ founding affidavits and they do not, standing on their own, constitute pleadings.</p> <p> </p> <p>        Paras 46 to 49 of the appellants’ founding affidavit merely summarized the schism that existed in the church in the aftermath of the unconstitutional meeting held by appellants on 22 September 2018, and constituted the concluding remarks of the cause of action raised in paras 17 to 19 of the same affidavit. These paras do not plead secession to be a derivative of the meeting of 15 September 2018.  </p> <p> </p> <p>The submissions made by Mr <em>Girach</em> in this respect have merit and must be upheld.</p> <p> </p> <p>The import of this finding is that the appeal should really be dismissed at this stage. I,</p> <p>however, proceed to deal with the appeal in the further respects that were argued for the sake of completeness. </p> <p> </p> <p> </p> <p> Mr <em>Magwaliba</em> contended that the failure to strictly abide by the requirements of</p> <p>clause 12.6 of the constitution invalidated the meeting of 15 September 2018, and the outcomes that flowed from it. <em>Per contra </em>Mr <em>Girach</em> argued that that meeting together with its outcomes was valid. </p> <p> </p> <p>In terms of clause 12.9.1 of the constitution the <em>quorum</em> required for a valid meeting</p> <p>for the despatch of a constitutional amendment is a simple majority of the full complement of the Workers Council. Whether reliance is placed on the 3 475 total membership figure provided by the respondents or 2 056 figure supplied by the appellants, the quorum was achieved by the recorded total number of 2 056 councilors in attendance on 15 September 2018. </p> <p> </p> <p>Clause 12.6 of the constitution provides that:</p> <p>“To amend this Constitution written notice shall be given to the General Secretary by Provincial Workers Council, the Apostolic Council, at least six months before the next Workers’ Council meeting. In the said notice, details must be given of the proposed amendment. Such notice shall then be forwarded to all Provincial Workers Councils in preparation for the next Workers Council Meeting. A two-thirds majority of the Workers’ Council shall decide whether the Constitution should be amended or not.”  </p> <p>   </p> <p>The cumulative and conjunctive requirements to pass a valid constitutional amendment</p> <p>are that:</p> <ol> <li>Six months written notice from either the Provincial Workers Council or the Apostolic Council or both be given to the General Secretary before the Workers Council meeting at which the amendments are to be considered;</li> <li>The details of the proposed amendments must accompany the notice;</li> <li>The notice and the detailed amendments must be sent to all Provincial Workers</li> </ol> <p>Councils before that Council meeting;</p> <ol> <li>The quorum for passing the amendment is a two-thirds majority of the optimum membership of the Workers Council.</li> </ol> <p> </p> <p>Mr <em>Magwaliba</em> correctly contended that clause 12.4.1 and 12.3.1 of the constitution</p> <p>enjoins the Workers Council and the Apostolic Council and the office bearers, acting of their own accord, to strictly abide by the letter and spirit of the constitution. He also correctly contended that the courts are enjoined by case law, such as in the <em>Dynamos</em> matter, <em>supra</em>, to generally construe the constitutions of <em>universitas</em> like the church strictly. </p> <p> </p> <p>The meeting of 15 September 2015 was, however, convened on a month’s and not six</p> <p>months’ notice. The notice emanated from the President and General Secretary and not the Workers Council or Apostolic Council. However, the notice together with the proposed amendments were dispatched to the Provincial Councils for the next Workers Council meeting by the General Secretary. The parties were at variance on whether the resolution of that day was passed by the two-thirds quorum prescribed in clause 12.6.</p> <p> </p> <p>The second and third respondents did not convene that meeting of their own accord. They did so in obedience to a judicial command emanating from the unopposed Mathende application. They were commanded to convene the Workers Council meeting on 30 days’ notice to the members of the Workers Council. The 30 days were to be calculated to commence within 7 days of the service of the order on the last of the respondents cited in that order.</p> <p> </p> <p> </p> <p>The onus to establish, on a balance of probabilities, the date on which the last of the</p> <p>respondents in HC 4756/18 was served with the court order was on the appellants. They did not adduce any evidence to that effect in their papers. In the absence of that evidence, the argument by Mr <em>Magwaliba</em> that 15 September 2018, fell outside the outer limits of the court order is unsustainable.</p> <p> </p> <p>It seems to me that the failure of the respondents to abide by the constitutional time</p> <p>frame would not affect the constitutional validity of the meeting for the reason that the time limits for convening the meeting of 15 September 2018, were prescribed by a duly constituted court of law. It is trite that extant court orders must be obeyed. This principle was affirmed by this Court in <em>Econet Wireless (Pvt) Ltd v Minister of the Public Service, Labour and Social Welfare &amp; Ors </em>SC 31/16 at p 6, where BHUNU JA aptly remarked that:</p> <p>“The doctrine of obedience of the law until its lawful invalidation was graphically put across by Lord Radcliffe in<em> Smith v East Elloe Rural district Council</em> [1956] AC 736 at 769 when he observed that:</p> <p>“An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of illegality on its forehead. Unless the necessary procedures are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.” If it were not so, and every litigant challenging the validity of any law was excused from obeying the law pending determination of its validity, there would be absolute chaos and confusion rendering the application of the rule of law virtually impossible. This is because anyone could challenge the validity of any law just to throw spanners into the works to defeat or evade compliance with the law.”</p> <p> </p> <p> </p> <p>To the same effect is <em>Hodkinson</em> v <em>Hodkinson</em> (1952) 2 ALL ER 567 (CA) at 569C:</p> <p>“It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it even extends to cases where the person affected believes it to be irregular or even void”</p> <p> </p> <p> </p> <p>    That order was extant on the date of the meeting. It, therefore, conferred the</p> <p><em>imprimatur</em> of validity to the meeting, notwithstanding that it was not in accordance with the constitutionally stipulated six month notice period and that the notice did not come from the constitutionally mandated source. It is clear to me that the first three requirements prescribed by clause 12.6 were met.</p> <p> </p> <p>The only issue that has exercised my mind was whether the two-thirds threshold of the</p> <p>optimum membership of the Workers Council was met. If the full membership was the tally sheet figure of 3 475 supplied by the respondents, then the 2 021 councilors who passed the proposed amendments would have been short by 296 of the 2 317 members required to pass the resolution.</p> <p>My burden was removed by the finding of the court <em>a quo</em> on this aspect. It accepted the figure of</p> <p>2 056 councilors furnished by the appellants as the established optimum number of the Workers Council. That finding was not appealed. The effect of this finding is that the proposed amendments were passed by 98 per cent of the total Workers Council membership, which figure exceeded the minimum 67 per cent constitutional threshold. Consequently, the resolution of 15 September 2018, met all the procedural requirements prescribed in Clause 12.6. </p> <p> </p> <p>The alternative contention on secession submitted by Mr <em>Magwaliba</em> is unsustainable. The import of the submission is to deny the Church the constitutional power to reframe itself in tandem with evolving contemporary religious developments and thought, which would impact on its shared fundamental religious doctrines and principles. The constitution of any organisation is a living document, which must evolve and be amenable to necessary periodic reviews to remain relevant to its vision, mission and core values. The church is no exception. It cannot remain trapped in a time warp of a bygone era.</p> <p> </p> <p> In <em>casu</em>, there were no entrenched or pillar clauses in the church constitution which</p> <p>precluded the Workers Council from amending the Constitution. Rather, the constitution contemplated its own amendment, including the clauses relating to the church’s confession of faith, ecclesiastical doctrines, governance, worship and discipline. All that was required of the Workers Council was to follow the requirements of Clause 12.6 and the prescribed consultative processes. It did so subject to the intervening order of court that had to be obeyed in accordance with the doctrine of obedience to the law; an aspect the rule of law. </p> <p> </p> <p>In any event a reading of the <em>Church for the Province of Central Africa</em> case, <em>supra</em>, at p 407E suggests that the passing of an invalid resolution does not constitute a renunciation of the fundamental doctrines of the church but merely makes the resolution void <em>ab initio</em>. I am unable to find that, by passing an invalid resolution, the Workers Council evinced an intention to secede from the Church. A void <em>ab initio</em> resolution would be of no force or effect. It would have preserved the subsisting status <em>quo ante,</em> thus guaranteeing the continued validity of the subsisting constitution and tenure of the elected office bearers.</p> <p> </p> <p> The alternative submission predicating secession on the content of the constitutional</p> <p>amendments would, therefore, be dismissed for lack of merit.</p> <p> </p> <p> </p> <p>There is a further basis for dismissing the secession argument. It is that the appellants</p> <p>were aware, before their meeting of 22 September 2018 that the resolution had suffered a still birth at inception and would not be applied to the impending triennial elections. The awareness is shown by the following factors. Firstly, the appellants characterized the resolution in the notice of meeting of 20 September 2018, as an “attempt to repeal” the constitution. Secondly, they boasted in their memorandum of 26 September 2018 that their unsanctioned meeting had prompted the Apostolic Council to abandon the electoral amendments. Lastly, they declined to return to the mainstream fold when entreated to do so on 26 September 2018. There was therefore no secession by the respondents emanating from the adoption of the resolution at the time the appellants held the meeting of 22 September 2018, conducted their own triennial elections in September and October 2018 and lodged the second application in January 2019.</p> <p> </p> <p>The further contention by Mr <em>Magwaliba</em> that the appellants were prevented from</p> <p>particularizing the decimation of the subsisting constitution by the respondents’ failure to attach the constitutional amendments to their pleadings <em>a quo</em>, is clearly disingenuous. </p> <p> </p> <p>This contention, which relates to the fourth ground of appeal, seeks to place the onus</p> <p>of placing the amendments on the respondents. In so doing, the appellants overlooked the trite principle of our law that he who alleges must prove. This point was emphatically restated by this Court in <em>Zimbabwe United Passenger Company Limited v Packhorse Services (Pvt) Ltd</em> SC 13/2017 at 11 as follows<strong>:</strong></p> <p><strong>“</strong>The cardinal rule on <em>onus</em> is that a person who claims something from another in a Court of law has to satisfy the Court that he is entitled to it.  See <em>Pillay v Krishna</em>, 1946 AD 946 at 952 – 953.  It also settled that he who alleges must prove.  See <em>MB Investments (Pvt) Ltd v Oliver &amp; Partners</em>, 1974 (3) SA 269 (RA).” </p> <p> </p> <p>See also <em>Goliath v Member of the Executive Council for the Eastern Cape</em> [2014] ZASCA 182 at p.8.</p> <p> </p> <p>It is trite that the existence of secession is a question of fact. The appellants bore the</p> <p><em>onus </em>to establish secession by producing the proposed constitutional amendments. They disingenuously claimed that the amendments were hidden from them by the respondents when it was common cause that both hard and soft copies of the documents had been dispatched to all structures on 18 February 2018 and 31 July 2018. It is clear that the appellants did not attach the proposed amendments to their own pleadings because they were not necessary to establish the case they pleaded in the second application. This last point on secession is also unmeritorious. </p> <p> </p> <p>The appellants’ failed to establish the jurisdictional facts upon which they sought to</p> <p>predicate the secessionist argument. Accordingly, the first four grounds of appeal must fail. </p> <p> </p> <p>In the premises, the respondents wielded the power to institute legal proceedings for</p> <p>and on behalf of the church and were entitled to the declaratory order and consequential relief sought, which were designed to protect the assets of the church from the interlopers in the parallel formation. They properly exercised that power and obtained judgment in their favour in the court a quo, which judgment correctly declared the appellants meeting of 22 September 2018 and all its subsequent outcomes invalid. </p> <p> </p> <p>It is trite that all outcomes flowing from an invalid act are also invalid. See <em>Osman v </em></p> <p><em>Jhavary &amp; Ors</em> 1939 AD at 361 and <em>Muchakata v Netherburn Mine</em> 1996 (1) ZLR 153 (S) at 1578BC. The meeting of 22 September 2018 was the genesis of the appellants’ secession from the mainstream church which had matured by the time they held their own parallel elections in October 2018 and filed the second application in January 2019. The finding <em>a quo</em> that it was the appellants who seceded is therefore unassailable.</p> <p> </p> <p>I uphold the finding <em>a quo</em> that election year referred in clause 12.9.1 of the constitution</p> <p>as read with 13.3.1 of the regulations correlated to the 2018 calendar year in which the triennial cycle fell. Again the <em>Padayiche</em> and <em>Ex parte United Party Club,</em> cases, <em>supra</em><strong>,</strong> are authority for the proposition that office bearers continue to hold office even beyond their prescribed time until replaced by election. The finding of the court <em>a quo</em> to the same effect is unassailable. </p> <p> </p> <p>The finding that the meeting of 22 September 2018, was a nullity, undermines the basis</p> <p>upon which the second application was conceived. It was premised upon the legitimacy of the</p> <p>20 October 2018, elections, which in turn derived efficacy from the invalid meeting of 22 September 2018. The appellants brought this application as office bearers of the Church, which they were not. They, therefore lacked the legal capacity to do so. The court <em>a quo</em> correctly held that they did not have the <em>locus standi</em> to institute proceedings on behalf of the Church. </p> <p> </p> <p>It is correct that the court <em>a quo</em> then proceeded to deal with other ancillary issues. The</p> <p>issue of <em>locus standi</em> had been raised by both parties as a preliminary issue in their respective applications. The finding that the respondents had <em>locus standi</em> while the appellants did not adequately resolved the dispute between the parties. It was not necessary for the court <em>a quo</em> to delve into the other issues.</p> <p> </p> <p><strong>Whether the declarator sought by the appellants was not conjoined with consequential relief and therefore fatally defective. </strong></p> <p>It is correct that the court <em>a quo</em> erroneously remarked at the tail end of its judgment,</p> <p>on page 26, that it was incompetent to seek consequential relief in an application for a declarator that was not conjoined with an “interdict <em>cum</em> vindication”.  In contrast, at page 7 of the judgment the court stated that:</p> <p>“They allege that the respondents adopted a new constitution for themselves, and in the process have broken away from the church to form their own church which is separate and different from the Old AFM church. They move me to interdict them from using the name, accessing the assets of the church without their authority.”  (My underlining for emphasis)</p> <p> </p> <p> </p> <p> </p> <p>The relief sought by the appellants <em>a quo</em> was worded as follows:</p> <p>IT IS ORDERED THAT:</p> <ol> <li>The application for a declaratory order be and is hereby granted.</li> <li>The 1st to 4th applicants be and are hereby declared to be the duly and properly elected officials of the fifth applicant.</li> <li>The respondents are hereby barred from using the name of the fifth applicant in the conduct of their activities without the authorisation of the applicants.</li> <li>The respondents are hereby barred from accessing or using any assets or property of any kind belonging to the fifth applicant.</li> <li>The respondents and their followers or agents or assignees be and are hereby directed to relinquish to the fifth applicant all and any property belonging to fifth applicant that is in possession or under control of the respondents.</li> <li>Failure of 5 above, the Sheriff of Zimbabwe or his lawful deputy be and is hereby authorised to take all and any property and assets belonging to fifth applicant from the control and possession of the respondents and handover same to the applicants</li> <li>The respondents shall pay applicant’s costs of suit. (My underlining for emphasis)</li> </ol> <p> </p> <p>I agree with Mr <em>Magwaliba</em> that the appellants did seek a declarator conjoined with</p> <p>prohibitory interdicts in para 3 to 4 and vindication in para 5 and 6. The finding of the court <em>a quo</em>, though <em>obiter,</em> was therefore incorrect. It, however, did not constitute the rationale on which it based its judgment. </p> <p> </p> <p>The <em>ratio decidendi</em> was that the appellants did not have the requisite <em>locus standi</em> to</p> <p>institute HC 179/19 because they were not office bearers of the Church. This how the court <em>a quo</em> expressed itself on the question of <em>locus standi</em> at p. 22 of the judgment:</p> <p>“The question which begs the answer is did Chiangwa act in terms of the constitution and its regulations when he convened the meetings of 22 September 2018? The answer to the same is in the negative. The second question which flows from the first and its answer is was the meeting of 22 September 2018 which was called in violation of the constitution valid? The answer is in the negative. The third and final question is does any act which resulted from the invalid meeting carry any semblance of validity. The answer is, once again, in the negative.  On the strength of the above mentioned three questions and their respective answers, therefore, it cannot be said that Chiangwa has any <em>locus standi</em> to apply as he did under HC 179/19. His conduct which emanated from the meeting of 22 September 2018 is a complete nullity. All the activities which he undertook on the basis of that meeting were a nullity” Madziyire, and not Chiangwa, has <em>locus standi </em>to sue as he did. He has substantial interest in the affairs of the Church. Chiangwa does not have such.” </p> <p> </p> <p> </p> <p>It must have been apparent to the appellants that the remarks upon which the fifth</p> <p>ground of appeal is founded were <em>obiter</em>. It is improper to note an appeal against such remarks. This Court pronounced itself on the issue in <em>Muza v Saruchera &amp; Ors</em> SC 45/18 thus:</p> <p>“The appellant erred in noting an appeal against findings that were made by way of <em>orbiter</em> remarks. His error is however understandable in that he is a self-actor who could not discern between the ratio of a judgment and the other findings of the court <em>a quo</em> by way of obiter.”</p> <p> </p> <p> </p> <p> </p> <p>            The impugned remarks were, therefore, inconsequential to the decision made by the</p> <p>court <em>a quo</em>. The fifth ground, though substantively correct, is devoid of procedural merit and must be struck out.</p> <p> </p> <p> </p> <p>General comments </p> <p>       Mr <em>Magwaliba</em> criticized the court <em>a quo</em> for using the merits to determine the</p> <p>preliminary points. Mr <em>Girach </em>conceded that such an approach was “inelegant but not blatantly wrong.” The approach of the court <em>a quo</em> was colored by its misunderstanding of the sentiments made, <em>inter alia,</em> in <em>Telecel Zimbabwe (Pvt) Ltd v Postal and Telecommunications Regulatory Authority of Zimbabwe &amp; Ors</em> HH 446/15 at p 7, which deplored the futility of raising unsustainable preliminary points in a bid to avoid decision on the merits.  That case did not advocate the procedure adopted by the court <em>a quo</em>. It ought to have determined the matter without delving into the merits by assessing the admitted conduct of the parties against the provisions of the constitution. It is significant, however, that in the end justice was properly served. </p> <p> </p> <p>Costs </p> <p>The respondents sought the dismissal of the appeal with costs on the ordinary scale. They have substantially succeeded on appeal. There is no reason to depart from the general rule that costs follow the cause.</p> <p> </p> <p>Disposition </p> <p>The appellants did not have <em>locus standi</em> to launch the second application because their</p> <p>claim to office was anchored on their initial meeting of 22 September 2018, which was void <em>ab initio </em>and of no force or effect<em>.</em> The respondents, however, as the elected office bearers of the Church had the <em>locus standi</em> to bring the first application. The findings of the court <em>a quo</em> in these respects were correct and are upheld in this appeal. </p> <p> </p> <p>In regards to the second issue, the <em>obiter dictum</em> of the court <em>a quo</em> that the appellants</p> <p>did not conjoin the main relief that they sought in the second application with the consequential relief of an “interdict <em>cum</em> vindication” was incorrect. However, as the fifth ground of appeal, which related to this issue was improperly conceived, it is struck out.</p> <p> </p> <p>Accordingly, it is ordered that:</p> <ol> <li>The fifth ground of appeal be and is hereby struck out.</li> <li>The appeal be and is hereby dismissed in its entirety with costs.</li> </ol> <p> </p> <p>                                                              </p> <p>                         <strong>MAVANGIRA JA:</strong>        I agree</p> <p> </p> <p>                         <strong>MAKONI JA:</strong>                I agree</p> <p> </p> <p> </p> <p><em>G.S. Motsi Law Chambers</em>, appellants’ legal practitioners</p> <p><em>Mtetwa &amp; Nyambirai</em>, respondents’ legal practitioners  </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/67/2021-zwsc-67.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=42007">2021-zwsc-67.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/67/2021-zwsc-67.pdf" type="application/pdf; length=626817">2021-zwsc-67.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/administrative-law">ADMINISTRATIVE LAW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/audi-alteram-partem-rule">Audi alteram partem rule</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/church">CHURCH</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/dispute">Dispute</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/property">Property</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/declaratory-order">Declaratory order</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/locus-standi-0">Locus standi</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/order-practice-and-procedure">Order (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/declaratory-order-0">declaratory order</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/pleadings">Pleadings</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-proceedings-pleadings">application proceedings (Pleadings)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/extent-which-parties-are-bound-pleadings">extent to which parties are bound by pleadings</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/provisional-order">Provisional order</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2007/93">Maheya v Independent African Church (Civil Appeal No. 303/99 ) ((Civil Appeal No. 303/99 )) [2007] ZWSC 93 (13 November 2007);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2006/80">Austerlands (Pvt) Ltd. v Trade and Investment Bank Ltd. and Others (68/05) ((Pvt)) [2006] ZWSC 80 (26 March 2006);</a></div><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2018/58">Bonnyview Estates (Private) Limited v Zimbabwe Platinum Mines (Private) Limited &amp; Another (SC 58/18, Civil Appeal No. 411/17) [2018] ZWSC 58 (26 September 2018);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2018/49">Sibanda &amp; 2 Others v The Apostolic Faith Mission of Portland Oregon (Southern African Headquarters) Inc (SC 49/18, Civil Appeal No. SC 272/15) [2018] ZWSC 49 (27 July 2018);</a></div><div class="field-item even"><a href="/zw/judgment/harare-high-court/2011/206">Church of the Province of Central Africa v Diocesan trustees for the Diocesse of Harare and Another (HC 8893/11) [2011] ZWHHC 206 (22 September 2011);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2016/31">Econet Wireless (Pvt) Ltd. v Minister, Pubic Service, Labour &amp; Social Welfare &amp; Others (SC 31/16 Civil Appeal No. SC 213/15) [2016] ZWSC 31 (23 June 2016);</a></div><div class="field-item even"><a href="/zw/judgment/harare-high-court/2019/37">ZUPCO v Packhorse Services (Pvt) Limited (HH 37/19, HC 4673/17) [2019] ZWHHC 37 (23 January 2019);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1981/28">Supreme Court Act [Chapter 7:13]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1981/29">High Court Act [Chapter 7:06]</a></div></div></div> Mon, 31 May 2021 10:41:17 +0000 Sandra 10009 at https://old.zimlii.org St. Engenas Zionist Church v Mahwehwe and 6 Others (HMA 11-21, HC 103/18) [2021]'ZWMSVHC 11 (12 February 2021); https://old.zimlii.org/zw/judgment/masvingo-high-court/2021/11-0 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p> </p> <p>ST ENGENAS ZIONIST CHRISTIAN CHURCH</p> <p> </p> <p>versus</p> <p> </p> <p>MAXWELL MAHWEHWE</p> <p> </p> <p>RISIAS CHIKATO</p> <p> </p> <p>MICHAEL CHIKATO</p> <p> </p> <p>SOLOMON CHIKATO</p> <p> </p> <p>ALLETAH CHIKATO</p> <p> </p> <p>ST ENGENAS ZIONIST CHRISTIAN CHURCH HIGH SCHOOL (ZIVAVOSE HIGH SCHOOL)</p> <p> </p> <p>MINISTER OF PRIMARY AND SECONDARY EDUCATION (HONOURABLE PAUL MAVHIMA) N.O.</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>WAMAMBO J</p> <p>MASVINGO, 26 and 29 October 2020 and 12 February, 2021</p> <p> </p> <p>                                                                </p> <p> </p> <p><strong>Civil Trial</strong></p> <p> </p> <p> </p> <p><em>B. Maruva with him J. Zuze </em> for the plaintiff</p> <p><em>A. Majachana </em>for the 1st, 3rd and 4th defendants</p> <p>No appearance for the 2nd, 5th and 6th defendants</p> <p> </p> <p> </p> <p> </p> <p> </p> <p>WAMAMBO J:          This trial involves a dispute over who is the registered owner of 5th defendant school (sometimes simply referred to as the school). As crisply put in the issue referred to trial the issue is “Whether or not plaintiff is the registered owner of the school being 5th defendant”.</p> <p>On the plaintiff’s side is one Fana Phanuel Chikato and Costa Chimuka whilst a number of witnesses testified on behalf of the defendant namely Modina Mawewe, 4th defendant, 3rd defendant and lastly Cornelius Mapuranga. 1st defendant Maxwell Mahwehwe withdrew from the matter, 2nd defendant Risias Chikato now becomes 1st defendant with the rest of the defendants following thereafter. For expediency and convenience I will comment on each witness testimony as I summarise it.</p> <p>Fana Phanuel Chikato’s evidence can be summarised as follows:</p> <p>He is the Bishop of the St Engenas Zionist Christian Church. His father J.J.C. Mawewe before him was the Minister in Charge of the same church. His father died in 1986 after constructing 5th defendant school in 1982 with the assistance of congregants and his young brothers.</p> <p>The church Constitution provides that the only person who could take over the reins had to be one of his father’s biological children. The witness’ brother Gabriel Chikato took over as the leader from the father and when he died the witness took over in 2013. When the 5th defendant school was built a resolution was made that the church be named St Engenas Zionist Christian Church. Problems arose with the management of the school. The leader of the church automatically becomes the one who runs the affairs of the 5th defendant school.</p> <p>The witness produced a number of exhibits namely Exhibits 1, 2, 3, 4 and 5. When the witness spoke of the Constitution he was referring to a Constitution bearing a church date stamps of 10 March 2016 and 10 February 2016. There are two Constitutions with one that appears to be referred to during the course of the trial as the original Constitution. This Constitution is titled “Constitution of the St Engenas Zion Christian Church. Attached to this Constitution is a document which is in the following terms:-</p> <p>“<em>This Minister of Zimbabwe Mr J.C.C. Mawewe was baptised in 1927 on the 5th June and this church was founded in 1924 by the late Bishop Engenas Barnabas Lekganyane who died in 1948 having nominated his son Joseph Engenas Lekganyane to succeed him as Spiritual Leader and Bishop of the church. </em></p> <p><em>This Zimbabwe Minister Mr J.C.C. Mawewe decided (sic) to build F.2. in Zimbabwe so he applied to the Government. </em></p> <p><em>This Zimbabwe Minister, his full names are Joni Jakopo Chikato Mawewe, R.C. No. X 10338 was approved by Ndanga T.L.A. to build a Mission under Sadunhu Musuka of Chief Ndanga.</em></p> <p><em>The Mission will be starting with Form One to Form Two.</em></p> <p><em>The Bible School, is to be taught at that Mission and this Mission is for everybody</em>.”</p> <p>It is to be noted that on this document wherever Zimbabwe appears it is inserted in pen and substituted for Rhodesia. Except for the insertions of Zimbabwe in long hand the rest of the document is in typed form. The document bears no signature neither does it reflect who penned it. Of note is a date stamp inscribed “St Engenas Z.C.C. Minister J.J.C. Mawere” with a Ndanga, Masvingo address. The original Constitution reflects that the church was founded in 1924 by Bishop Lekganyane who was succeeded by Bishop Joseph Engenas Lekganyane in 1949. The other Constitution is the Zimbabwean version with the church now called St Engenas Christian Church (Z.C.C.) Zivavose.</p> <p>In 1982 a resolution was made to name the church St. Engenas Zionist Christian Church. When plaintiff’s turn came he was made the Bishop of the church by church members and family members, and worked well with family members.</p> <p>Problems arose in the management of the school (5th defendant). Plaintiff testified that he was supposed to receive 10% levy from the school funds as the responsible authority.</p> <p>It is common cause that the Zimbabwean version of the church Constitution emanates or borrows strongly from the church in South Africa. If one considers the original Constitution and the Zimbabwean version the two bear a strong resemblance in their preambles and historical background. Some of the clauses are similar. The original Constitution is however much longer with 60 clauses while the Zimbabwean version only has 28 clauses.</p> <p>The 1st, 3rd, 4th and 5th defendants started blocking the school entrance and pupils could not access the school buildings.  Although these defendants bear a different surnames from that of the witness they are his cousins and the surnames Chikato and Mawewe are used interchangeably amongst the feuding family members.</p> <p>Even the witness’ father J.C.C. Mawewe bore Chikato as one of his middle names.</p> <p>There were disagreements over the running of the school which is owned by the church. In 2014 the witness’ registered the Zimbabwean Church Constitution as referred to earlier. The church had been operating without being registered or having a Bishop’s licence. The church was only registered in response to a Government requirement for the registration of churches.</p> <p>In cross examination the witness was asked about the differences in the two Constitutions among others relating to the title of Bishop.</p> <p>The other witness called for the plaintiff is Costa Chimuka an Executive Chairperson of plaintiff. According to him the disputes arose because the Chikato family members want to personalise the church property. He was quick to testify that he knows of no link between plaintiff and St Engenas Zion Christian Church of South Africa. He insisted that plaintiff was founded in Zimbabwe in 1972.</p> <p>The defendants once locked the headmaster’s office leading to a police report. A query was sent to the Ministry of Education to clarify who the owner of Zivavose School (5th defendant) is and the response was that it is plaintiff. He was clear that the defendant cannot belong to St Engenas Zion Christian Church of South Africa as it was built in Zimbabwe by Zimbabweans.</p> <p>The witness appeared to be more forceful and adamant than the first witness that there was no connection between the South African Church and the Zimbabwean one.</p> <p>This assertion however does not quite resonate with the fact that plaintiff’s bundle of documents contains the South African version of the Constitution. Further the document attached to that Constitution is plaintiff’s basis of proving that Fana Phanuel Chikato derived his Bishopship from a lineage dating back to his father. Like most witnesses he was rather self-serving and seemed not to budge from his original stance.</p> <p>The defendants called Modina Mawewe, 4th defendant, 5th defendant and Cornelius Mazorodze Mapuranga. Modina Mawewe’s evidence was to the following effect – The Ndanga Branch of the St Engenas Zion Christian Church was started by four men of the Chikato family namely Jacob Phillip, Togera and Runochinja. These four men went to South Africa and joined the Zion Church. Upon their return to Zimbabwe they continued practising the South African principles of the church. The four men built 5th defendant along with other believers. The building of the school started before 1980 during the liberation struggle but was only then built up to slab level. The witness a 95 year old woman testified that she could not remember when the school opened. 5th defendant was built in the name of the church. She opined that the school belonged to the South African version of the church and that the church leader in South Africa allowed them to build the church. She testified that the South African leader would guide on issues of new leaders of the church. Her husband was a brother to the other four brothers who went to South Africa and returned to Zimbabwe after joining the church in South Africa.  She was of the view that 5th defendant belongs to the South African church but is known as the Ndanga Branch. It is to be noted that J.J.C. Mawewe’s name was only mentioned by her in cross examination. The role she ascribes to him is that he became leader of the church after being ordained by the four brothers referred to earlier. The witness testified that the moulding of bricks was done by the community. She testified that from 1972 the South African church leaders would visit Zimbabwe on a number of occasions and for a few years thereafter.</p> <p>After J.J.C. Mawewe’s death they did not visit the church to date. 1ST, 3RD and 4th defendants are the children of the four men who built the school. Her view was the 6th defendant belongs to the Chikato family as they constructed it. In response to a follow up question in re-examination she opined that the owner of the school is the church in South Africa.</p> <p>The witness though of an advanced age gave her evidence without hesitation and appeared quite alert. She is not necessarily expected to understand the concept of ownership.  Her testimony reflected that although the South African church leaders were involved by visiting the local church after J.J.C. Mawewe’s death they never returned.</p> <p>4th defendant testified as follows:-</p> <p>She began her testimony by pronouncing that she is opposed to the allegation that 5th defendant belongs to plaintiff. She gave the history of the beginnings of the church in South Africa. She appeared knowledgeable about the early history of the South African church. The witness referred to some events which took place when she was very young. She testified that the plaintiff church’s Bishop was never coronated. Her evidence  though rich on the South African background and roots of the church did not assist much on the question to be decided that is who is the owner of the 5th defendant.</p> <p>3rd defendant introduced himself as a Pastor of the St Engenas Church. He testified that he was born in the church and is Phillip’s son. There was a dispute with Fana Phanuel Chikato who formed his own church in 2014. He and others remained worshipping at Ndanga branch up to date.</p> <p>The building of 5th defendant was a result of the community moulding bricks and advise from Mr Mandava a Masvingo businessman. According to him, 5th defendant is owned by the Ndanga branch of the St Engenas Zion Christian Church. In cross examination when he was question as to the proof that St Engenas Zion Christian Church as opposed to plaintiff owned the 5th defendant he referred to the Constitution. He was unable to point out the particular clause in the Constitution as he said he was not learned.</p> <p>The witness appeared to be the leader of the opposing branch to that headed by Fana Phanuel Chikato. He testified that he was ordained a Pastor by the branch members.</p> <p>Cornelius Mazorodze Mapuranga the Zaka RDC Chairman and Councillor testified next. He was quite verbose and started off by referring to a “bokoshindi” among the parties over the school. The word generally refers to a dispute but of a rather violent type. He testified that in 1981 he was approached by the four brothers to assist by writing a letter seeking authority to construct a school. The school was built by the family. When he was approached by the brothers they had a South African Constitution and the leader was J.J.C. Mawewe. When asked who was the owner of the school his answer was that the one who courts the woman is the one who marries the woman not the mediator. As mentioned earlier the witness was quite verbose but was able at the end of the day mention who approached him for a recommendation for the building of the school, what Constitution they had and who assisted in the building of the school. At the end he could not point out who was the owner of 5th defendant.</p> <p>I have gone into some detail on the testimonies of the witnesses, because of the nature of the dispute, a dispute involving the Church and a church owned school and members of the same family. Because of the above there was a lot of emotional involvement in the witnesses’ testimonies.</p> <p>Apparently at the very root of the dispute is the administration of funds at the school. The family members are fighting over who administers the school, its funds and the various posts at the institution. Who owns the school becomes of paramount importance as the owner will be able to control, direct and administer the school.</p> <p>That the plaintiff has its roots in South Africa cannot be doubted. The very Constitution of plaintiff in its preface celebrates this history by tracing the founding of the church in 1924 and tracing it to J.J.C. Mawewe clearly a towering figure in the history leading up to the plaintiff’s establishment. Witnesses may have differed on whether it was J.J.C. Mawewe who went to South Africa alone and returned to form plaintiff or if it was the four brothers who went to South Africa and returned to form the church. It however becomes clear that J.J.C. Mawewe was the leader of the church when it was established in Zimbabwe.</p> <p>The evidence of Fana Phanuel Chikato that there was a Constitution as far back as 1982 which he registered in 2014 because of Government calls for the registration of churches was feebly opposed. If   J.J.C. Mawewe was the Chief Minister of the Zimbabwean established church and had a Constitution was drafted as far back as 1982 then there appears to be continuity in the leadership and principles of the church.</p> <p>The South African Constitution of the St Engenas Zion Christian Church has a document attached to it establishing J.C.C. Mawewe’s baptism and other credentials. The said document reflects that J.J.C. Mawewe is to build a school under Chief Ndanga. A reading of this document alongside the 2014 Church Constitution establishes that among the objectives of the church are to:</p> <p>“<em>2(c)    to purchase, construct school (sic) hire or acquire by way of donation or otherwise moveable or property and equipment buildings suitable for religion, educational, social and other purposes whatsoever, and to sell, let mortgage, transfer, donate or otherwise dispose of moveable and immovable property</em>.”</p> <p>Though not so elegantly expressed the above objectives include the construction of a school.</p> <p>The evidence reflects that the family members and other parties assisted in the establishment and construction of 5th defendant.</p> <p>Defendants’ witnesses were at pains to establish another branch of the church as opposed to plaintiff. There was no Constitution produced for this particular branch. 4th defendant even refers to himself as a Pastor of this particular church. As said earlier the South African connection of the St Engenas Zion Christian Church to the parties, excluding the 6th defendant is without doubt.</p> <p>The establish ownership of the South African version of the church of the 6th defendant has not been proved. The St Engenas Zion Christian Church Constitution (elsewhere referred to as the South African or original church) makes no reference to Zimbabwe (or Rhodesia as it was then). Its headquarters are given as Zion City, Moria, Pietersburg. There is no clause in the said Constitution for an establishment of other congregations outside South Africa.</p> <p>The evidence adduced reflects that at the most since the death of J.C.C. Mawewe there has not been any visits by the South African leadership of the church. 3rd defendant tried to insinuate that his branch also visits the South African church. If they do it however does not prove that they are the owners of the school. Nostalgic visits to shrines at St Moria can hardly qualify the South African version of the church as the owners of 5th defendant.</p> <p>In support of the contention that plaintiff owns 5th defendant is the letter by the Ministry of Primary and Secondary Education dated 9 February 2018 and the ED 16 Form authored by the Secretary for Education and Culture date stamped 4 May 2016.</p> <p>Following the words of Lord Denning in <em>Miller</em> v <em>Minister of Pensions</em> 1947 Z ALL ER 372 at 374 the standard of proof is as follows:-</p> <p>“<em>It must carry a reasonable degree of probability but not so high as required in criminal cases. If the evidence is such that the tribunal can say ‘we think it more probable than not, the burden is discharged, but if the probabilities are equal it is not.</em>’”</p> <p> </p> <p>In this matter for the reasons given above I am of the view that plaintiff’s evidence is such that it is more probable than not.</p> <p>I find therefore that plaintiff deserves the relief he seeks.</p> <p>I note however that disputes involving religious organisations should necessarily be minimised before our courts. In the <em>United Church of Christ</em> v <em>The Revival United Church of Christ</em> <em>International </em>HH 72-19 CHIRAWU-MUGOMBA J made the following remarks which are also relevant to the instant case:</p> <p>“<em>In recent times, the courts have been inundated with disputes involving churches or religious organisations. </em>In <em>Christian Faith Tabernacle</em> v <em>Sparrows West Ministries HH 69/09 PATEL J (as he then was) poignantly observed as follows:-</em></p> <p> </p> <p><em>“Both parties in this matter are Christian Church Organisations with specific missionary objectives. Regrettably as often happens in different times, their spiritual vision has been blurred by the material struggle for property ”-------- </em></p> <p> </p> <p>Plaintiff seeks costs on an attorney and client scale. There was no sufficient motivation justifying such a course. In fact the plaintiffs did not effectively pursue the prayer.</p> <p>To that end I find that costs on the ordinary scale fit the circumstances of this case.</p> <p>To that end I make the following order –</p> <ol> <li>The plaintiff is declared as the sole and only responsible authority to run and administer the affairs of the 5th defendant.</li> <li>1st to 5th defendants to pay plaintiff’s costs on the ordinary scale.</li> </ol> <p><em>Zuze Law Chambers</em>, plaintiff’s legal practitioners</p> <p><em>Alex F &amp; Associates</em>, 1st, 3rd and 4th defendants’ legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2021/11/2021zwmsvhc-11.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=26257">2021zwmsvhc-11.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2021/11/2021zwmsvhc-11.pdf" type="application/pdf; length=454139">2021zwmsvhc-11.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/church">CHURCH</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/dispute">Dispute</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/property">Property</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/education">EDUCATION</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/education-act-chapter-2504">Education Act [Chapter 25:04</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1987/5">Education Act [Chapter 25:04]</a></div></div></div> Mon, 10 May 2021 07:32:28 +0000 Sandra 9996 at https://old.zimlii.org Mhambare v Mhazha & 9 Ors (HH 2-21, HC 7547/20 Ref Case SC 522/20 Ref Case HC 2402/20) [2021] ZWHHC 2 (05 January 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/2 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>ERNEST MHAMBARE</p> <p>versus</p> <p>ALFRED KUSHAMISA MWAZHA</p> <p>and</p> <p>NGONI EDWARD MWAZHA</p> <p>and</p> <p>MASIMBA MWAZHA</p> <p>and</p> <p>JAMES MWAZHA</p> <p>and</p> <p>RICHARD JURU</p> <p>and</p> <p>ELSON TAFA</p> <p>and</p> <p>CHARLES TEKESHE</p> <p>and</p> <p>LOVEMORE MHARADZE</p> <p>and</p> <p>NORMAN SIYAMUZHOMBWE</p> <p>and</p> <p>AFRICAN APOSTOLIC CHURCH</p> <p>(VaApostora VeAfrica)</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUREMBA J</p> <p>HARARE, 23 December 2020 &amp; 5 January 2021</p> <p> </p> <p> </p> <p><strong>Urgent Chamber Application</strong></p> <p> </p> <p> </p> <p>Mrs <em>R Mabwe, </em>for the applicant</p> <p><em>D. Ochieng, </em>for the respondents</p> <p> </p> <p> </p> <p>            MUREMBA J: Following a leadership dispute in the African Apostolic Church (VaApostora VeAfrica) which is the tenth respondent in this matter, the applicant approached this court by way of a court application in case number HC 2402/20 for a relief. He petitioned the court in his capacity as an interested party, reverend and church member for a <em>declaratur</em> to set aside the purported appointment of the first respondent, Alfred Kushamisa Mwazha as the successor to the founder and Archbishop of the church, Paul Ernest Mamvuru Mwazha (Paul Mwazha) now a centurion at 102 years. The first respondent together with the second, third and fourth respondents are sons of Paul Mwazha.  Whilst the first and fourth respondents are bishops in the church, the second respondent is a former member and bishop of the church. The third respondent is a Seventh Day Adventist. The rest of the respondents from the fifth to the ninth respondent hold high ranking positions in the church, the tenth respondent. I must particularly mention that the fifth respondent is the General Secretary of the church. There is a point <em>in limine</em> that was raised by the applicant in the present urgent chamber application that relates to him that I will deal with later on in the judgment.</p> <p>            In HC 2402/20 it was the applicant’s contention that the first respondent usurped power by seeking to ascend to the position of Archbishop and leader of the tenth respondent unconstitutionally, contrary to the provisions of the tenth respondent’s constitution. He contended that the first respondent acted in connivance with the second to ninth respondent in usurping power.  The applicant contended that the first respondent was purporting to have been appointed by the Archbishop as his successor. Although the respondents opposed the application, Chitapi J made a finding that the note the respondents were relying upon did not support their claim that the Archbishop nominated or appointed the first respondent as successor. He granted the following order on 3 December 2020.</p> <p>            “1        The purported nomination and/or appointment of the first respondent as the</p> <p>Archbishop or successor to the Archbishop of the tenth respondent presently Ernest Paul Mamvura Mwazha is unconstitutional <em>vis – a vis</em> the 10th respondent’s constitution and resultantly is null and void.</p> <ol> <li>      Any appointments and reassignments of personnel made by the 1st respondent</li> </ol> <p>and other actions which changed the administration of the church made by the 1st respondent in the purported position of Archbishop are null and void.</p> <ol> <li>      The respondents are each and all of them ordered to comply with the    </li> </ol> <p>provisions of clause 9.2.2 of the 10th respondent’s constitution in regard to the</p> <p>succession dispute bedeviling the 10th respondent. The respondents must</p> <p>comply with this order within seven (7) days of the date of this order.</p> <ol> <li>      The 1st to 9th respondents jointly and severally, the one paying the other to be</li> </ol> <p>absolved shall pay costs of this application on a party and party scale”.</p> <p> </p> <p>Dissatisfied or aggrieved by the judgment of this court, the respondents noted an appeal under SC 552/2020 on 11 December 2020. In turn the applicant on 17 December 2020 filed the present urgent chamber application for leave to execute pending appeal. It is the applicant’s contention that since noting the appeal, the first to ninth respondent have been harassing him and other members of the church. They have been violently disrupting church services together with their followers. They have taken over the church structures and have been influencing their followers to disrupt church gatherings and places of worship. He then referred to some specific incidents which I will refer to later on in the judgment. The applicant averred that he wants peace and tranquillity.</p> <p>            In response to the application <a name="_Hlk60118096" id="_Hlk60118096">the respondents raised 2 points <em>in limine</em>. But before I deal with them, I will first deal with the <em>point limine</em> raised by the applicant in</a> response to the respondents’ notice of opposition.  It was to the effect that the tenth respondent is not before the court because firstly, the deponent to its opposing affidavit, Benjamin Takura is not in the hierarchy of the people who can represent it. Secondly, the fifth respondent, Richard Juru who signed the resolution authorising the deponent to represent the church has no such powers. Richard Juru is the General Secretary of tenth respondent. Mrs <em>Mabwe</em> submitted that the tenth respondent can only be represented by members of the Board of Trustees in terms of Clause 9.6.2 of its Constitution and Benjamin Takura is not a member.</p> <p>            I will dismiss this point <em>in limine</em> because as was correctly submitted by Mr <em>Ochieng</em>, clause 9.6.2 only says who the trustees of the board are. It reads:</p> <p>“Regular members of the Board of Trustees shall be Archbishop Ernest Paul Mwazha, Priesthood Council, Chairman of BoT &amp; vice  Chairman, General Secretary of BoT &amp; vice, Finance Chairman &amp; vice, Publicity Chairman &amp; vice, Transport Chairman &amp; vice and other appointed BoT Bishops co-opted by the Archbishop. The Board mat at any time appoint any individuals to sit in meetings to advise or perform projects related to any existing needs.”  </p> <p> </p> <p>            The clause does not speak to what Mrs <em>Mabwe</em> submitted. Even the preceding clause, clause 9.6.1 (although she did not refer to it) does not speak to that. It reads:</p> <p>“The Board of Trustees (BoT) shall serve the church by leading in planning, coordinating, conducting, and evaluating the ministries and programs of the church. The primary functions of the Board of Trustees shall be to recommend to the church suggested objectives and church goals, to review and coordinate ministry and programs recommended by church officers, organisations, and committees, to recommend to the church the use of leadership, calendar time, and other resources according to program priorities, and to evaluate achievements in terms of church objectives and goals.”</p> <p> </p> <p>            Clause 9.6. is the clause which deals with the issue of the Board of Trustees. It is made up of clauses 9.6.1 and 9.6.2 only. And I have already quoted both of them above. Nowhere in those clauses is it mentioned that legal action shall be taken or defended in the name of the church by the Board of Trustees as the applicant averred. So, the submission by Mrs <em>Mabwe</em> that the resolution authorising Benjamin Takura to depose to the affidavit on behalf of the tenth respondent cannot save him has no foundation. Mrs <em>Mabwe</em> did not demonstrate that the General Secretary, Richard Juru who also happens to be the fifth respondent in the present application has no powers to authorise a member of the church to institute and defend proceedings on behalf of the church. She needed to cite the relevant provision of the constitution which deals with who represents the church in bringing and defending legal action. At law, he who alleges must prove. The applicant did not prove his allegation. This point <em>in limine</em> is thus dismissed.</p> <p>I now revert to the points <em>in limine</em> raised by the respondents.</p> <p>As I have already stated elsewhere above, the respondents raised 2 points <em>in limine</em>. Firstly, that the matter is not urgent. Secondly, that <a name="_Hlk60249948" id="_Hlk60249948">the relief sought is not the remedy for the injury alleged</a>. In addition to that, the interim relief and the final relief that are being sought are identical.</p> <p><em>Urgency</em></p> <p>The respondents averred that the matter should not be treated as urgent because the applicant is seeking leave to execute an order that was granted in an ordinary application on an urgent basis. They averred that although the face of the judgment speaks of an urgent application, the matter was brought as an ordinary court application which shows that the applicant himself accepted that the matter was not urgent at the time that he filed it. The applicant did not dispute that the matter was brought as an ordinary application and not as an urgent application. The respondents averred that the certificate of urgency does not demonstrate the urgency of the matter save to make bald allegations of urgency. They averred that the applicant did not in the founding affidavit, demonstrate how and when the urgency arose. The respondents averred that more importantly, no evidence was placed before the court to show that there was violence and what the form of violence was. They contended that it seems that the applicant is bent on having an application for leave to execute on an urgent basis when there is no such urgency.</p> <p>      In the certificate of urgency, it is stated that the respondents filed the appeal with the</p> <p>aim of abusing, victimising, and harassing members of the church. The applicant and over a hundred thousand members of the church have been suffering the brunt of the respondent’s continuous violence and illegal actions and there is nowhere to run. It was further averred that the applicant acted with urgency. The notice of appeal was filed on 11 December 2020 and the said infractions had happened during the course of the previous week. There is imminent danger to the applicant’s rights, most importantly the right to gather, freedom of assembly and freedom of conscience. If the respondents are allowed to persist with their unlawful conduct it will lead to further violence, injury and destruction of property.   </p> <p>      In the founding affidavit the applicant averred that the first to ninth respondent have</p> <p>been waging a war against church members. They have been using groups of supporters to ferment violent habits, disrupt church services and alienate church property. The places of worship have been turned into places of conflict. Vulnerable members such as orphans, widows, the aged, and children are now unable to attend church services because of the violence. Their rights to freedom of assembly, association and conscience as enshrined in s 58 and 60 of the Constitution of Zimbabwe, Act 2013 need to be protected and preserved pending appeal. The applicant contended that there is danger of irreparable prejudice to him and hundreds of thousands of other church members in several countries and the ill Archbishop. The applicant averred that he acted at the earliest opportunity in bringing this application.</p> <p>      Mrs<em> Mabwe</em> submitted that the applicant did not waste time in protecting his rights</p> <p>because the disruption of churches happened from 4 December 2020 up to 10 December 2020. The notice of appeal was filed on 11 December 2020 and the violence continued up to 14 December 2020. The application was then filed on 17 December 2020. She further submitted that by noting the appeal the respondents wanted to disobey the court order as it is frivolous and vexatious.</p> <p>I find merit in the objection by the respondents. The certificate of urgency and the founding affidavit do not inform why the application for leave to execute has to be heard on an urgent basis given that the main matter giving rise to this application was brought and heard as an ordinary application. The judgment thereof by Chitapi J shows that the hearing started on 31 July 2020 and the judgment was handed down on 3 December 2020. In between the two dates the matter was heard on 5 August and 14 August 2020. The question that comes to mind is how then can execution thereof become urgent all of a sudden? A matter is urgent if at the time the need to act arises, the matter cannot wait<a href="#_ftn1" name="_ftnref1" title="" id="_ftnref1">[1]</a>. <a name="_Hlk60257220" id="_Hlk60257220">In other words, time being of the essence in urgent matters, the applicant should act when the need to act arises. The certificate of urgency and the founding affidavit must therefore exhibit urgency in the manner that the applicant reacted to the events or situation complained of.  If the situation complained of has been existing for a significant time before the application is made, the matter is not urgent.</a><a href="#_ftn2" name="_ftnref2" title="" id="_ftnref2">[2]</a></p> <p>In <em>casu</em>, the anarchy in the church is what necessitated the filing of the present application. The applicant is basically complaining about physical violence in the church, disruption of church services and alienation of church property. Despite his founding affidavit being 16 pages long, he only referred to 3 specific incidents. The rest are generalised averments about people fighting in the church over public address systems and other property of the church. There are also averments about people having resorted to leaving children, wives and the sick at home fearing violence at church. It is not stated where and when this happened. The specific perpetrators thereof are not mentioned.</p> <p>The following are the specific incidents that the applicant referred to. On 5 December 2020 there was violence at Hopely Circuit, Zone 6 Harare. One Chikono came with a group of people to disrupt church service. They claimed to be acting for and on behalf of the first respondent. A case of assault was opened under RRB 4620501 by the victim. In Mutare the weekend after the judgment was delivered, all church services were disrupted. People appointed into leadership positions by the first respondent tried to forcefully take control of church proceedings, resulting in resistance from the congregation. This led to violence erupting. Police had to be called to maintain peace and order during services. The applicant also referred to an assault incident that allegedly happened on 27 October 2020 at Caledonia Farm African Apostolic Church, Eastview Circuit. One Onias Sibanda assaulted one Hatidani Maphosa and a police report was made at Mabvuku Police station under RRB 4539885.</p> <p>These incidents show that the anarchy in the church has been ongoing since October 2020, well before the judgment was delivered on 3 December 2020. It continued even after the judgment had been passed and before the appeal was noted on 11 December 2020. The incident of 5 December 2020 is pertinent. Even after the appeal was noted the anarchy is said to have continued. This has been a continuing state of affairs with the bulk of the incidents complained of having happened before the appeal was noted on 11 December 2020. The matter cannot therefore be urgent. The applicant did not act when the need to act arose as far back as October 2020 right up to the time the appeal was noted on 11 December 2020. His application does not exhibit urgency in the manner that he reacted to the events or situation complained of. The events or situations complained of were in existence for a significant time before the application was made. The matter cannot therefore suddenly become urgent because the respondents have filed an appeal. To make matters worse, other than generalised averments, the applicant refers to no specific incident that happened after the 11th of December 2020, after the appeal was filed. Therefore, the applicant has not laid any foundation for his contention that since noting the appeal, the first to ninth respondent together with their followers have been harassing him and other members of the church by violently disrupting church services and taking over the church structures. The matter cannot therefore be urgent. Repetitive and unsubstantiated generalised averments that the applicant’s and other church members’ constitutional rights have been violated do not help the applicant’s case.</p> <p> </p> <p><em>The relief sought is not the remedy for the injury alleged</em></p> <p>What is alleged is wrongful conduct of violence, disruption of church services and alienation of church properties. On this basis, the applicant is seeking leave to execute pending appeal. It is the respondents’ contention that the relief being sought by the applicant is not the remedy for the injury or wrongful conduct alleged. Their argument is that the injury complained of does not arise from the inability to execute the judgment that was granted by Chitapi J on 3 December 2020. Mr <em>Ochieng</em>’s submission was that if these allegations are proven, they would entitle the applicant to some other remedy like an interdict, but certainly not leave to execute pending appeal. His argument was that the judgment that the applicant is seeking to execute pending appeal is centred on a succession dispute between the parties which emanated from the interpretation of a note the respondents are relying upon as the basis of the first respondent’s appointment. He further submitted that the judgment had nothing to do with the anarchy that the applicant is now complaining of in the present application. He argued that the two disputes are different. As such the applicant cannot seek to execute a judgment that was granted on a different cause of action on the basis of a different cause of action. I am in agreement. A judgment granted on a different cause cannot be executed on the basis of a different dispute. In my discussion of the first point <em>in limine</em> on urgency, I have already demonstrated that the wrongful conducts that necessitated the filing of the present application started as way back as October 2020 and continued after the judgment was delivered, before the appeal was noted. The delivery of the judgment did not stop the anarchy. The applicant did not in his founding affidavit explain how its execution pending appeal will stop the anarchy.</p> <p>The judgment simply declared unconstitutional the purported appointment of the first respondent as the successor to the Archbishop. It nullified his appointment. It also nullified all appointments of personnel that he made in his purported position as Archbishop. The judgment further ordered the respondents to comply with the provisions of clause 9.2.2 of the tenth respondent’s constitution, for the Priesthood Council (a council of bishops) to preside as the head of the church on behalf of the Archbishop. If the judgment is executed, it will change the leadership of the church into a further dimension which is totally different from what is prevailing now and what was prevailing before the purported appointment of the first respondent. It is going to remove the first respondent from the position of Archbishop. At the same time, it is not going to restore Paul Mwazha as the Archbishop. The question is how is all of this going to resolve or stop the anarchy that has been ongoing since October 2020 well before the judgment was delivered? The applicant did not explain the link between the execution of the judgment pending appeal and the wrongful conduct complained of. I am in agreement with the respondents that the two are divorced from each other. I will thus uphold the point <em>in limine.</em></p> <p><em>Disposition</em></p> <p>            The two points <em>in limine</em> are interwoven as the second point <em>in limine</em> also determines whether or not the matter is urgent. The applicant is seeking leave to execute judgment pending appeal on an urgent basis on the basis of a dispute that is different from the dispute that gave rise to the judgment. Clearly the relief that he is seeking is not the remedy for the injury alleged. In the circumstances, the matter cannot be urgent, even if it was timeously filed a few days after the appeal was noted. The relief sought is also an important consideration in determining whether or not the matter is urgent. If there is no link whatsoever between the injury complained of and the relief sought, as is the situation in <em>casu</em>, the matter cannot be urgent.</p> <p>In the result, I make the determination that the matter is not urgent. It be and is hereby struck off the roll with costs.</p> <p> </p> <p><em>Mushangwe and Company</em>, applicant’s legal practitioners</p> <p><em>Mupindu Legal Practitioners</em>, respondents’ legal practitioners.  </p> <p><a href="#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a> <em>Kuvarega v Registrar General &amp; Anor</em> 1998 (1) ZLR 188 (H).</p> <p><a href="#_ftnref2" name="_ftn2" title="" id="_ftn2">[2]</a> <em>Gwarada v Johnson &amp; Ors</em> 2009 (2) ZLR 159 (H).</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/2/2021-zwhhc-2.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=32171">2021-zwhhc-2.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/2/2021-zwhhc-2.pdf" type="application/pdf; length=553207">2021-zwhhc-2.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/church">CHURCH</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/dispute">Dispute</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/matters-exclusively-ecumenical-or-ecclesiastical-nature">Matters exclusively ecumenical or ecclesiastical in nature</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/property">Property</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/urgent-application">Urgent Application</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/certificate-urgency">certificate of urgency</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/what-constitutes-urgency-urgent-application">what constitutes urgency (Urgent application)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/when-may-be-made-urgent-application">when may be made (Urgent application)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Wed, 24 Mar 2021 13:46:51 +0000 Sandra 9979 at https://old.zimlii.org St. Engenas Zionist Christian Church v Mahwehwe & 6 Ors (HMA 11-21, HC 103-18) [2021] ZWMSVHC 11 (12 February 2021); https://old.zimlii.org/zw/judgment/masvingo-high-court/2021/11 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p> </p> <p>ST ENGENAS ZIONIST CHRISTIAN CHURCH</p> <p> </p> <p>versus</p> <p> </p> <p>MAXWELL MAHWEHWE</p> <p> </p> <p>RISIAS CHIKATO</p> <p> </p> <p>MICHAEL CHIKATO</p> <p> </p> <p>SOLOMON CHIKATO</p> <p> </p> <p>ALLETAH CHIKATO</p> <p> </p> <p>ST ENGENAS ZIONIST CHRISTIAN CHURCH HIGH SCHOOL (ZIVAVOSE HIGH SCHOOL)</p> <p> </p> <p>MINISTER OF PRIMARY AND SECONDARY EDUCATION (HONOURABLE PAUL MAVHIMA) N.O.</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>WAMAMBO J</p> <p>MASVINGO, 26 and 29 October 2020 and 12 February, 2021</p> <p> </p> <p>                                                                </p> <p> </p> <p><strong>Civil Trial</strong></p> <p> </p> <p> </p> <p><em>B. Maruva with him J. Zuze </em> for the plaintiff</p> <p><em>A. Majachana </em>for the 1st, 3rd and 4th defendants</p> <p>No appearance for the 2nd, 5th and 6th defendants</p> <p> </p> <p> </p> <p> </p> <p> </p> <p>WAMAMBO J:          This trial involves a dispute over who is the registered owner of 5th defendant school (sometimes simply referred to as the school). As crisply put in the issue referred to trial the issue is “Whether or not plaintiff is the registered owner of the school being 5th defendant”.</p> <p>On the plaintiff’s side is one Fana Phanuel Chikato and Costa Chimuka whilst a number of witnesses testified on behalf of the defendant namely Modina Mawewe, 4th defendant, 3rd defendant and lastly Cornelius Mapuranga. 1st defendant Maxwell Mahwehwe withdrew from the matter, 2nd defendant Risias Chikato now becomes 1st defendant with the rest of the defendants following thereafter. For expediency and convenience I will comment on each witness testimony as I summarise it.</p> <p>Fana Phanuel Chikato’s evidence can be summarised as follows:</p> <p>He is the Bishop of the St Engenas Zionist Christian Church. His father J.J.C. Mawewe before him was the Minister in Charge of the same church. His father died in 1986 after constructing 5th defendant school in 1982 with the assistance of congregants and his young brothers.</p> <p>The church Constitution provides that the only person who could take over the reins had to be one of his father’s biological children. The witness’ brother Gabriel Chikato took over as the leader from the father and when he died the witness took over in 2013. When the 5th defendant school was built a resolution was made that the church be named St Engenas Zionist Christian Church. Problems arose with the management of the school. The leader of the church automatically becomes the one who runs the affairs of the 5th defendant school.</p> <p>The witness produced a number of exhibits namely Exhibits 1, 2, 3, 4 and 5. When the witness spoke of the Constitution he was referring to a Constitution bearing a church date stamps of 10 March 2016 and 10 February 2016. There are two Constitutions with one that appears to be referred to during the course of the trial as the original Constitution. This Constitution is titled “Constitution of the St Engenas Zion Christian Church. Attached to this Constitution is a document which is in the following terms:-</p> <p>“<em>This Minister of Zimbabwe Mr J.C.C. Mawewe was baptised in 1927 on the 5th June and this church was founded in 1924 by the late Bishop Engenas Barnabas Lekganyane who died in 1948 having nominated his son Joseph Engenas Lekganyane to succeed him as Spiritual Leader and Bishop of the church. </em></p> <p><em>This Zimbabwe Minister Mr J.C.C. Mawewe decided (sic) to build F.2. in Zimbabwe so he applied to the Government. </em></p> <p><em>This Zimbabwe Minister, his full names are Joni Jakopo Chikato Mawewe, R.C. No. X 10338 was approved by Ndanga T.L.A. to build a Mission under Sadunhu Musuka of Chief Ndanga.</em></p> <p><em>The Mission will be starting with Form One to Form Two.</em></p> <p><em>The Bible School, is to be taught at that Mission and this Mission is for everybody</em>.”</p> <p>It is to be noted that on this document wherever Zimbabwe appears it is inserted in pen and substituted for Rhodesia. Except for the insertions of Zimbabwe in long hand the rest of the document is in typed form. The document bears no signature neither does it reflect who penned it. Of note is a date stamp inscribed “St Engenas Z.C.C. Minister J.J.C. Mawere” with a Ndanga, Masvingo address. The original Constitution reflects that the church was founded in 1924 by Bishop Lekganyane who was succeeded by Bishop Joseph Engenas Lekganyane in 1949. The other Constitution is the Zimbabwean version with the church now called St Engenas Christian Church (Z.C.C.) Zivavose.</p> <p>In 1982 a resolution was made to name the church St. Engenas Zionist Christian Church. When plaintiff’s turn came he was made the Bishop of the church by church members and family members, and worked well with family members.</p> <p>Problems arose in the management of the school (5th defendant). Plaintiff testified that he was supposed to receive 10% levy from the school funds as the responsible authority.</p> <p>It is common cause that the Zimbabwean version of the church Constitution emanates or borrows strongly from the church in South Africa. If one considers the original Constitution and the Zimbabwean version the two bear a strong resemblance in their preambles and historical background. Some of the clauses are similar. The original Constitution is however much longer with 60 clauses while the Zimbabwean version only has 28 clauses.</p> <p>The 1st, 3rd, 4th and 5th defendants started blocking the school entrance and pupils could not access the school buildings.  Although these defendants bear a different surnames from that of the witness they are his cousins and the surnames Chikato and Mawewe are used interchangeably amongst the feuding family members.</p> <p>Even the witness’ father J.C.C. Mawewe bore Chikato as one of his middle names.</p> <p>There were disagreements over the running of the school which is owned by the church. In 2014 the witness’ registered the Zimbabwean Church Constitution as referred to earlier. The church had been operating without being registered or having a Bishop’s licence. The church was only registered in response to a Government requirement for the registration of churches.</p> <p>In cross examination the witness was asked about the differences in the two Constitutions among others relating to the title of Bishop.</p> <p>The other witness called for the plaintiff is Costa Chimuka an Executive Chairperson of plaintiff. According to him the disputes arose because the Chikato family members want to personalise the church property. He was quick to testify that he knows of no link between plaintiff and St Engenas Zion Christian Church of South Africa. He insisted that plaintiff was founded in Zimbabwe in 1972.</p> <p>The defendants once locked the headmaster’s office leading to a police report. A query was sent to the Ministry of Education to clarify who the owner of Zivavose School (5th defendant) is and the response was that it is plaintiff. He was clear that the defendant cannot belong to St Engenas Zion Christian Church of South Africa as it was built in Zimbabwe by Zimbabweans.</p> <p>The witness appeared to be more forceful and adamant than the first witness that there was no connection between the South African Church and the Zimbabwean one.</p> <p>This assertion however does not quite resonate with the fact that plaintiff’s bundle of documents contains the South African version of the Constitution. Further the document attached to that Constitution is plaintiff’s basis of proving that Fana Phanuel Chikato derived his Bishopship from a lineage dating back to his father. Like most witnesses he was rather self-serving and seemed not to budge from his original stance.</p> <p>The defendants called Modina Mawewe, 4th defendant, 5th defendant and Cornelius Mazorodze Mapuranga. Modina Mawewe’s evidence was to the following effect – The Ndanga Branch of the St Engenas Zion Christian Church was started by four men of the Chikato family namely Jacob Phillip, Togera and Runochinja. These four men went to South Africa and joined the Zion Church. Upon their return to Zimbabwe they continued practising the South African principles of the church. The four men built 5th defendant along with other believers. The building of the school started before 1980 during the liberation struggle but was only then built up to slab level. The witness a 95 year old woman testified that she could not remember when the school opened. 5th defendant was built in the name of the church. She opined that the school belonged to the South African version of the church and that the church leader in South Africa allowed them to build the church. She testified that the South African leader would guide on issues of new leaders of the church. Her husband was a brother to the other four brothers who went to South Africa and returned to Zimbabwe after joining the church in South Africa.  She was of the view that 5th defendant belongs to the South African church but is known as the Ndanga Branch. It is to be noted that J.J.C. Mawewe’s name was only mentioned by her in cross examination. The role she ascribes to him is that he became leader of the church after being ordained by the four brothers referred to earlier. The witness testified that the moulding of bricks was done by the community. She testified that from 1972 the South African church leaders would visit Zimbabwe on a number of occasions and for a few years thereafter.</p> <p>After J.J.C. Mawewe’s death they did not visit the church to date. 1ST, 3RD and 4th defendants are the children of the four men who built the school. Her view was the 6th defendant belongs to the Chikato family as they constructed it. In response to a follow up question in re-examination she opined that the owner of the school is the church in South Africa.</p> <p>The witness though of an advanced age gave her evidence without hesitation and appeared quite alert. She is not necessarily expected to understand the concept of ownership.  Her testimony reflected that although the South African church leaders were involved by visiting the local church after J.J.C. Mawewe’s death they never returned.</p> <p>4th defendant testified as follows:-</p> <p>She began her testimony by pronouncing that she is opposed to the allegation that 5th defendant belongs to plaintiff. She gave the history of the beginnings of the church in South Africa. She appeared knowledgeable about the early history of the South African church. The witness referred to some events which took place when she was very young. She testified that the plaintiff church’s Bishop was never coronated. Her evidence  though rich on the South African background and roots of the church did not assist much on the question to be decided that is who is the owner of the 5th defendant.</p> <p>3rd defendant introduced himself as a Pastor of the St Engenas Church. He testified that he was born in the church and is Phillip’s son. There was a dispute with Fana Phanuel Chikato who formed his own church in 2014. He and others remained worshipping at Ndanga branch up to date.</p> <p>The building of 5th defendant was a result of the community moulding bricks and advise from Mr Mandava a Masvingo businessman. According to him, 5th defendant is owned by the Ndanga branch of the St Engenas Zion Christian Church. In cross examination when he was question as to the proof that St Engenas Zion Christian Church as opposed to plaintiff owned the 5th defendant he referred to the Constitution. He was unable to point out the particular clause in the Constitution as he said he was not learned.</p> <p>The witness appeared to be the leader of the opposing branch to that headed by Fana Phanuel Chikato. He testified that he was ordained a Pastor by the branch members.</p> <p>Cornelius Mazorodze Mapuranga the Zaka RDC Chairman and Councillor testified next. He was quite verbose and started off by referring to a “bokoshindi” among the parties over the school. The word generally refers to a dispute but of a rather violent type. He testified that in 1981 he was approached by the four brothers to assist by writing a letter seeking authority to construct a school. The school was built by the family. When he was approached by the brothers they had a South African Constitution and the leader was J.J.C. Mawewe. When asked who was the owner of the school his answer was that the one who courts the woman is the one who marries the woman not the mediator. As mentioned earlier the witness was quite verbose but was able at the end of the day mention who approached him for a recommendation for the building of the school, what Constitution they had and who assisted in the building of the school. At the end he could not point out who was the owner of 5th defendant.</p> <p>I have gone into some detail on the testimonies of the witnesses, because of the nature of the dispute, a dispute involving the Church and a church owned school and members of the same family. Because of the above there was a lot of emotional involvement in the witnesses’ testimonies.</p> <p>Apparently at the very root of the dispute is the administration of funds at the school. The family members are fighting over who administers the school, its funds and the various posts at the institution. Who owns the school becomes of paramount importance as the owner will be able to control, direct and administer the school.</p> <p>That the plaintiff has its roots in South Africa cannot be doubted. The very Constitution of plaintiff in its preface celebrates this history by tracing the founding of the church in 1924 and tracing it to J.J.C. Mawewe clearly a towering figure in the history leading up to the plaintiff’s establishment. Witnesses may have differed on whether it was J.J.C. Mawewe who went to South Africa alone and returned to form plaintiff or if it was the four brothers who went to South Africa and returned to form the church. It however becomes clear that J.J.C. Mawewe was the leader of the church when it was established in Zimbabwe.</p> <p>The evidence of Fana Phanuel Chikato that there was a Constitution as far back as 1982 which he registered in 2014 because of Government calls for the registration of churches was feebly opposed. If   J.J.C. Mawewe was the Chief Minister of the Zimbabwean established church and had a Constitution was drafted as far back as 1982 then there appears to be continuity in the leadership and principles of the church.</p> <p>The South African Constitution of the St Engenas Zion Christian Church has a document attached to it establishing J.C.C. Mawewe’s baptism and other credentials. The said document reflects that J.J.C. Mawewe is to build a school under Chief Ndanga. A reading of this document alongside the 2014 Church Constitution establishes that among the objectives of the church are to:</p> <p>“<em>2(c)    to purchase, construct school (sic) hire or acquire by way of donation or otherwise moveable or property and equipment buildings suitable for religion, educational, social and other purposes whatsoever, and to sell, let mortgage, transfer, donate or otherwise dispose of moveable and immovable property</em>.”</p> <p>Though not so elegantly expressed the above objectives include the construction of a school.</p> <p>The evidence reflects that the family members and other parties assisted in the establishment and construction of 5th defendant.</p> <p>Defendants’ witnesses were at pains to establish another branch of the church as opposed to plaintiff. There was no Constitution produced for this particular branch. 4th defendant even refers to himself as a Pastor of this particular church. As said earlier the South African connection of the St Engenas Zion Christian Church to the parties, excluding the 6th defendant is without doubt.</p> <p>The establish ownership of the South African version of the church of the 6th defendant has not been proved. The St Engenas Zion Christian Church Constitution (elsewhere referred to as the South African or original church) makes no reference to Zimbabwe (or Rhodesia as it was then). Its headquarters are given as Zion City, Moria, Pietersburg. There is no clause in the said Constitution for an establishment of other congregations outside South Africa.</p> <p>The evidence adduced reflects that at the most since the death of J.C.C. Mawewe there has not been any visits by the South African leadership of the church. 3rd defendant tried to insinuate that his branch also visits the South African church. If they do it however does not prove that they are the owners of the school. Nostalgic visits to shrines at St Moria can hardly qualify the South African version of the church as the owners of 5th defendant.</p> <p>In support of the contention that plaintiff owns 5th defendant is the letter by the Ministry of Primary and Secondary Education dated 9 February 2018 and the ED 16 Form authored by the Secretary for Education and Culture date stamped 4 May 2016.</p> <p>Following the words of Lord Denning in <em>Miller</em> v <em>Minister of Pensions</em> 1947 Z ALL ER 372 at 374 the standard of proof is as follows:-</p> <p>“<em>It must carry a reasonable degree of probability but not so high as required in criminal cases. If the evidence is such that the tribunal can say ‘we think it more probable than not, the burden is discharged, but if the probabilities are equal it is not.</em>’”</p> <p> </p> <p>In this matter for the reasons given above I am of the view that plaintiff’s evidence is such that it is more probable than not.</p> <p>I find therefore that plaintiff deserves the relief he seeks.</p> <p>I note however that disputes involving religious organisations should necessarily be minimised before our courts. In the <em>United Church of Christ</em> v <em>The Revival United Church of Christ</em> <em>International </em>HH 72-19 CHIRAWU-MUGOMBA J made the following remarks which are also relevant to the instant case:</p> <p>“<em>In recent times, the courts have been inundated with disputes involving churches or religious organisations. </em>In <em>Christian Faith Tabernacle</em> v <em>Sparrows West Ministries HH 69/09 PATEL J (as he then was) poignantly observed as follows:-</em></p> <p> </p> <p><em>“Both parties in this matter are Christian Church Organisations with specific missionary objectives. Regrettably as often happens in different times, their spiritual vision has been blurred by the material struggle for property ”-------- </em></p> <p> </p> <p>Plaintiff seeks costs on an attorney and client scale. There was no sufficient motivation justifying such a course. In fact the plaintiffs did not effectively pursue the prayer.</p> <p>To that end I find that costs on the ordinary scale fit the circumstances of this case.</p> <p>To that end I make the following order –</p> <ol> <li>The plaintiff is declared as the sole and only responsible authority to run and administer the affairs of the 5th defendant.</li> <li>1st to 5th defendants to pay plaintiff’s costs on the ordinary scale.</li> </ol> <p> </p> <p><em>Zuze Law Chambers</em>, plaintiff’s legal practitioners</p> <p><em>Alex F &amp; Associates</em>, 1st, 3rd and 4th defendants’ legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2021/11/2021-zwmsvhc-11.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=26255">2021-zwmsvhc-11.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2021/11/2021-zwmsvhc-11.pdf" type="application/pdf; length=455646">2021-zwmsvhc-11.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/church">CHURCH</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/dispute">Dispute</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/property">Property</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/property-and-real-rights">PROPERTY AND REAL RIGHTS</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/ownership-0">Ownership</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/acquisition-ownership">acquisition of ownership</a></li></ul></span> Sat, 27 Feb 2021 18:31:50 +0000 Sandra 9967 at https://old.zimlii.org African Aposytolic Church (Vaapostora VeAfrica) & 5 Others v Mwazha & Anor (HH 412-20, HC 2739/20) [2020] ZWHHC 412 (09 June 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/412 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>AFRICAN APOSTOLIC CHURCH</p> <p>(Vaapostora VeAfrica)</p> <p>and</p> <p>RICHARD JURU</p> <p>and</p> <p>NORMAN SIYAMUZHOMBWE</p> <p>and</p> <p>ALFRED KUSHAMISA MWAZHA</p> <p>and</p> <p>JAMES MWAZHA</p> <p>and</p> <p>ELSON TAFA</p> <p>versus</p> <p>NYASHA MWAZHA</p> <p>and</p> <p>SHINGI MALCOM CHAPFUNGA</p> <p> </p> <p> </p> <p>HIGH OF ZIMBABWE</p> <p>ZHOU J</p> <p>HARARE, 9 June 2020</p> <p> </p> <p> </p> <p><strong>Urgent chamber application</strong></p> <p> </p> <p> </p> <p>Ms <em>F. Chimwawadzimba</em>, for the applicant</p> <p><em>A. Gurira</em>, for respondent</p> <p> </p> <p>            ZHOU J: This is an application for a <em>mandament van spolie</em> in respect of premises referred to in the papers as No. 8 Jefferson Road, Hatfield, Harare. The first applicant is a religious organization, a <em>universitas</em> at law. Its capacity to sue and be sued in its own name is not in dispute. It also has a written constitution a copy of which is attached to the applicant’s founding papers. The other applicants hold leadership positions in the first applicant. The two respondents are relatives of the founder and current leader of the church who is referred to in the papers as Archbishop Ernest Paul Mwazha.</p> <p>            The facts, which are common cause or are not in dispute, are as follows. According to the constitution of the first applicant its headquarters are at No.8. Jefferson Road, Hatfield, Harare. On 27 May 2020 the second to sixth applicants attempted to enter the said headquarters. They were denied access by the respondents. The founder and leader of the first applicant resides at that property. Having been denied access to the property, the applicants approached this court seeking the relief which is stated in the draft provisional order.</p> <p>            In addition to challenging the application on the merits the respondents have objected <em>in limine </em>to consideration of the merits on two grounds, namely (1) that the application is not urgent, and (2) that the deponent to the founding affidavit, Richard Juru, is not authorized to represent the first applicant.</p> <p>            A matter is urgent if it cannot wait to be dealt with as an ordinary court application. Relief for a <em>mandament van spolie</em> is by its nature urgent, in that it seeks to quickly restore the <em>status quo ante </em>which has been upset by the unlawful conduct of the alleged despoiler. But the court can still inquire into other aspects in considering whether to entertain an application of this nature on an urgent basis. This is because the hearing of an application on an urgent basis is special treatment given to a litigant who has to jump the queue of other matters waiting to be heard. It is for this reason that the court expects a litigant who seeks relief on an urgent basis to show that they acted expeditiously when the need to act arose. In this case the application was filed seven or so days after the need to act arose. There can be no delay to talk about in this case which would warrant calling upon the applicant to explain. Having regard to the circumstances of the case, the applicants clearly did not wait for the arrival of the day of reckoning to act. They instituted the application to assert their rights expeditiously.</p> <p>            On the question of the authority to institute the proceedings, the respondents allege that the proceedings were not authorized by the Board Trustees of the first applicant. That Board is not mentioned at all in the constitution as the authority that its responsible for the leadership of the first applicants. The officers of the first applicant are detailed in Article 9 of the constitution.</p> <p>            The deponent, who is also the General Secretary of the first applicant has attached a resolution which on the face of it purports to authorize him to depose to the affidavit. In any event, this objection, if indeed, it was valid, would have pertained only to the first applicant but not to the other applicants. It does not affect the validity of the proceedings.</p> <p>            For the above reasons, both objections <em>in limine</em> are dismissed.</p> <p>            On the merits, an applicant who seeks the <em>mandament van spolie</em> must allege and prove that he or she or it was in peaceful and undisturbed possession of the property in dispute, and (b) that the respondents wrongfully deprived him or her or it of that possession. The first applicant lays claim to its occupation of the property on the basis of it being its headquarters.</p> <p>            The rest of the applicants allege that by reasons of their offices they enjoyed access to the property. The respondents dispute the assertion that the applicants were in peaceful and undisturbed possession or occupation of the property. According to the respondents the property is owned by the Archbishop of the Church who uses it as his private residence. Ownership of the property is not a relevant consideration in an application for a <em>mandament van spolie</em>. Neither is the fact that the leader of the church also resides at the property exclusive of the applicants’ rights of possession. As a juridical persona the first applicant can only have juridical possession of the property which it exercise through its human representatives. The second to sixth applicants are some of its human representatives as is, indeed, the leader of the church. The suggestion that the property is not the headquarters of the church is unsustainable in the face of the clear wording of the first applicant’s constitution. At this stage the court’s concern is whether the facts alleged are established by <em>prima facie</em> evidence. That evidence is there in article 2 of the constitution. For the purpose of the mandament it is sufficient that the applicant had the right of possession as opposed to the right to possession.</p> <p>            The deprivation of such possession is common cause. The respondents admit that without a court order they prevented the applicants from accessing the property. The act of self-help which the spoliation order is meant to address is therefore established. The respondents have not tendered any defence which is recognized at law to successfully challenge the application for the spoliation order.</p> <p>            In the result, the provisional order is granted in terms of the draft thereof as amended.</p> <p> </p> <p> </p> <p><em>Mupindu Legal Practitioners</em>, applicant’s legal practitioners</p> <p><em>Gurira and Associates</em>, respondent’s legal practitioners                                                                                                                                                                                                                                                              </p> <p>           </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/412/2020-zwhhc-412.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=19836">2020-zwhhc-412.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/412/2020-zwhhc-412.pdf" type="application/pdf; length=314384">2020-zwhhc-412.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/church">CHURCH</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/dispute">Dispute</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/property">Property</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/s">S</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/spoliation">SPOLIATION</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/order-spoliation">Order (SPOLIATION)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/possession-protected-spoliatory-remedies">Possession protected by spoliatory remedies</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/what-spoliation">What is (SPOLIATION)</a></li></ul></span> Mon, 29 Jun 2020 10:54:52 +0000 Sandra 9727 at https://old.zimlii.org Chirumbwa & 8 Ors v Bethelehem Apostolic Church & Anor (SC 9-20, Civil Appeal No. SC 334/18) [2020] ZWSC 9 (22 October 2019); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2019/9-0 <div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2019/9/2020-zwsc-9.pdf" type="application/pdf; length=529232">2020-zwsc-9.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/church">CHURCH</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/dispute">Dispute</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/property">Property</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/s">S</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/spoliation">SPOLIATION</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/order-spoliation">Order (SPOLIATION)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/possession-protected-spoliatory-remedies">Possession protected by spoliatory remedies</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/what-spoliation">What is (SPOLIATION)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2013/43">ECONET Wireless v TRUSTCO Mobile Ltd &amp; Another (Civil Appeal No SC 171/11) [2013] ZWSC 43 (25 September 2013);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2013/1">Friendship v Cargo Carriers Limited &amp; Another (259/12) [2013] ZWSC 1 (09 January 2013);</a></div></div></div> Wed, 17 Jun 2020 13:52:28 +0000 Sandra 9681 at https://old.zimlii.org Apostolic Ejuwell Jekenisheni Church v The International Apostolic Jekenisheni Church & 6 Others (HMT 14-20, HC 146/19) [2020] ZWMTHC 14 (14 February 2020); https://old.zimlii.org/zw/judgment/mutare-high-court/2020/14 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>APOSTOLIC EJUWELL JEKENISHENI CHURCH                                            </p> <p>versus</p> <p>THE INTERNATIONAL APOSTOLIC EJUWELL JEKENISHENI CHURCH</p> <p>and</p> <p>BISHOP SHATIRWA MAFUKIDZE</p> <p>and</p> <p>BAYISO CHAKANYUKA</p> <p>and</p> <p>MUNETSI NGWENYA</p> <p>and</p> <p>ANDREW MASHAMAIRE</p> <p>and</p> <p>CHIEF ZIMUNYA</p> <p>and</p> <p>MUTARE RURAL DISTRICT COUNCIL</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUZENDA J</p> <p>MUTARE, 6 and 14 February 2020</p> <p> </p> <p> </p> <p><strong>Civil Trial</strong></p> <p> </p> <p> </p> <p><em>C Ndlovu</em>, for the Plaintiff</p> <p><em>T Zisengwe</em>, for the 1st-5th Defendant      </p> <p>No appearance for the 6th Defendant</p> <p>No appearance for the 7th Defendant</p> <p> </p> <p> </p> <p> </p> <p>MUZENDA J: On 22 May 2019, the plaintiff issued Summons against the seven (7) defendants claiming the following:</p> <ul> <li>that the plaintiff be declared the legitimate legal and <em>bona fide</em> holder of a lease of a piece of land measuring seventeen (17) hectares at Garai Village, Mabiya, Chief Zimunya under Mutare Rural District Council;</li> <li>that plaintiff and its members regard and hold the said land as its sacred religious shrine;</li> <li>that 1st defendant and its members have no right or claim to the Mabiya Shrine;</li> <li>that the 2nd- 5th defendants pay the costs of this action.</li> </ul> <p>On 4 June 2019, 1st-5th defendants filed their appearance to defend the matter.</p> <p> </p> <p>BACKGROUND</p> <p>In the plaintiff’s declaration, plaintiff is an Apostolic Ejuwell Jekenisheni Church, a religious and Christian Church. 1st defendant is The International Apostolic Ejuwell Jekenisheni Church, plaintiff describes 1st defendant as an off-shoot of the plaintiff. 2nd to 5th defendants are the church leaders of 1st defendant. 6th and 7th defendants were cited in their official capacities. Sometime in 2013 Bishop Elijah Dzingai Nyikambaranda formed 1st defendant constituted by 2nd-5th defendants as its co-leaders. 1st-5th defendants registered its own constitution and from the date of 1st defendant’s formation in 2013, plaintiff and 1st defendant existed as two distinct entities.</p> <p>Plaintiff contends that it holds a lease with 6th defendant for a 17 hectare piece of land situated in the communal area of Chief Zimunya under Village Garai where Mabiya is situated. Plaintiff regards that place as its shrine and sacred for its religious ceremonies since 1985. After the formation of 1st defendant, 2nd-5th defendant and 1st defendant congregation incidentally also regards the same 17 hectare shrine as sacred and clash with the congregants of plaintiff during festivities. Parties ended up in court, involved the police and had had clashes pertaining to the use of the shrine.</p> <p>The 1st-5th defendants filed their plea and in addition filed a counter claim. In their plea the 1st-5th defendants deny that 1st defendant is an off-shoot of plaintiff to 1st-5th defendants, it is plaintiff who is a renegade and 1st defendant is the mother church. To 1st defendant, it’s the plaintiff who broke away from 1st defendant in 2018. 1st-5th defendants deny that Bishop Elijah D. Nyikambaranda did not form 1st defendant as a break-away church but that the original church only changed its name and constitution to add the word “<em>International</em>.” Otherwise 1st defendant retained the same membership of the original church, as such 1st defendant is the appropriate lessee of the 17 hectares piece of land at Garai Village which is its shrine.</p> <p>The plaintiff should be the organisational church body which must be barred from interfering of the shrine, not 1st defendant. The 1st defendant adds in its pleadings that it is the one which had been paying lease rentals to the 6th defendant. 1st defendant admits that parties have been both to this court as well as to the Magistrate’s Court relating to the dispute over the use of the shrine during the church’s festivities. 1st defendant also concedes that there have been wrangles and hostility amongst members of plaintiff and 1st defendant. It prays for a declaratory order identical to the relief being sought by the plaintiff, and that 1st defendant be declared the appropriate user of the sacred place at Garai Village.</p> <p>On 7 November 2019, the minutes of the joint pre-trial conference identified two issues for trial:</p> <ul> <li>between plaintiff and 1st defendant, which one is the main church or the splinter group?</li> <li>between plaintiff and 1st defendant, which one is the holder of rights of Mabiya Shrine.</li> </ul> <p> </p> <p>These two issues constitute issues for trial and for this court to decide.</p> <p>PLAINTIFF’S CASE</p> <p>Plaintiff opened its case by calling Mr Gwinyai Gabriel Banganwa of House No. 983 Chikanganwa, Mutare. He was born in plaintiff church. Plaintiff and 1st defendant’s congregants used to belong to one religious organisation called Jekenisheni Church stretching from 1932 until 2013 when High Priest Zabron Chitakatira had died. According to the church’s norm, after the death of a leader, they have to have time to search for a new leader of the church. The witness used to be a Secretary for Mutare Centre. After the death of a leader members have to have a mourning period of a year before they choose a new leader. According to Mr Banganwa’s evidence, in 2013 one Dzingai Elijah Tom Nyikambaranda returned from Botswana where he had been staying since 1957 and upon his return he went to the church and announced his intention to transform plaintiff church. His return and ordination as an Arch-bishop resulted in a dispute, dividing the congregants into two warring factions. In 2015 in July during a passover Nyikambaranda was ordained by ACCZ from Harare and in terms of the 1st defendant’s constitutional provisions he was ordained as the leader of 1st defendant with a position of an Arch-bishop.</p> <p>After ordination of Arch-bishop Nyikambaranda, part of the congregants refused to recognise him as a leader allegedly because of the Arch-bishop’s autocratic leadership. The group approached Chief Zimunya, 7th defendant, and lodged a complaint. The faction had previously consulted the local traditional leadership but could not get assistance. The witness stated that contrary to the plaintiff’s constitution, the post of Arch-bishop was new to them, the regalia had been altered, the insignia/badge given to Arch-bishop was alien to plaintiff and the very process of having ACCZ coming to ordain a church leader was foreign to plaintiff. Plaintiff’s name came into being in 2009 when a new constitution was introduced and the church abandoned Jekenisheni Church name. He disagreed that plaintiff church consented to the new name by 1st defendant’s title. As a result of the formation of 1st defendant some of the leadership crossed the bridge and joined 1st defendant where they were given leadership posts.</p> <p>Plaintiff, according to the witness is the legitimate beneficiary of Mabiya Shrine. According to legend, High Priest Luke Mutendamambo the founder was led by the Holy Spirit to this hill in Garai Village under Chief Zimunya ad was shown in a vision that the place was holy, even members of the other church denominations acknowledge the sanctity of the place. This is the place which had triggered the dispute as to who should use it during Passover annually held in July. They have to go and worship until Jesus comes as the witness said in court. The shrine is compared to Jerusalem in Israel and the members of the church believe that they get their salvation and healing at Mabiya Shrine. Without Mabiya Shrine one cannot state that he is a member of Jekenisheni Church. The witness appeared in court to be well indoctrinated and added that even the teachings of the church centralises Mabiya Shrine.</p> <p>Mabiya Centre was previously leased to Jekenisheni Church measuring 4000m2. The place was identified after the church leaders had visited the village head, headman and chief. Later the church was given a lease agreement by the local authority now called Mutare Rural District Council. Given the growth of the church, the area was extended to cover an expanse of 17 hectares. The witness produced receipts in court which are marked exh 3. The lease agreement as well as the plaintiff’s constitution were produced as exh 2 and 1 respectively. The witness denied the contention by the 1st defendant that plaintiff is the one which broke away from the 1st defendant.</p> <p>During cross examination by Mr <em>Zisengwe</em>, for the 1st defendant, Mr Banganwa admitted that in 2015 members belonging to plaintiff and 1st defendant were present when Arch-bishop Nyikambaranda was ordained, however the factional group did not recognise him as a leader to them, he was an ordinary person, to them their leader was Phillip Changonona. He was also asked as to how leaders were chosen and he indicated that upon the death of a leader, his deputy succeeds. He repeated that when Nyikambaranda was ordained, he was the leader of 1st defendant and as far as the witness is concerned, plaintiff and 1st defendant are two distinct church entities, he also added that that was the reason 1st defendant was holding service at a different centre when Arch-bishop Nyikambaranda summoned the leadership of plaintiff who were assembled at Mabiya Shrine to go and explain to the Arch-bishop the meaning of the two gatherings.</p> <p>The 2nd witness called by plaintiff was Chief Zimunya, (Kibben Bvirindi). He is a member of Seventh Day Adventist Church, he knows both plaintiff and 1st defendant. He also knows the sacrilege of Mabiya Shrine and that plaintiff worships there. The chief allocated Mabiya place to Jekenisheni as a worship centre. When the dispute between plaintiff and 1st defendant erupted, he was accompanied by police and local legislator to go there and ordered that none of the two should use the shrine until the dispute between them had been resolved. He later on summoned Arch-bishop Nyikambaranda to his court and instructed the church leader to resolve the impasse. Arch-bishop Nyikambaranda later on reported back to chief his unwillingness to change his council, he bade farewell to the chief and indicated to the witness that he was going to establish his own centres at Chaseyama in Chakohwa in Chipinge<br /> District, one in Mutasa and the other one in Masvingo. When the Arch-bishop died he opted to be interred at Mutasa Centre.</p> <p>He also told the court that when the founder of Jekenisheni Church died his sons formed their own churches whilst originating from Mabiya Shrine. They left the shrine and established themselves in Chipinge, the other son went as far as Mozambique and established his centre in Manica province. The chief added that plaintiff and 1st defendant operate in his jurisdiction and his desire is to see peace between them if 1st defendant wishes. Its leaders are free to approach the chief and be allocated a place for worship. According to him, plaintiff is the legitimate user of the shrine, to him 1st defendant must relinquish Mabiya and find a different centre as in 2019 they held their Passover a Chaseyama.</p> <p>Under cross-examination by defendant’s counsel, the chief told the court that the reason he summoned Arch-bishop Nyikambaranda to his court was that the Arch-bishop was the one who had caused the violence at Mabiya Centre. Arch-bishop Nyikambaranda to the witness was the leader of 1st defendant and not leader of plaintiff.</p> <p>Plaintiff then called Peter Sigauke as its witness. He resides at 3318 Domboramwari Epworth, Harare, he is now on pension. He is aged 66 years and was born in Jekenisheni Church. He was present when the plaintiff and 1st defendant separated. He was the one who spearheaded the separation and was the chairman of the splinter group. He participated in the organisation and registration of 1st defendant with the ACCZ and arranged for the drafting of 1st defendant’s constitution in consultation with the ACCZ. After registration of 1st defendant Arch-bishop Nyikambaranda was ordained in 2015 as the leader of 1st defendant. He later on decided to leave 1st defendant because 1st defendant’s principles had drastically deviated from those of the founding father and he went back to his roots at plaintiff.</p> <p>All the three witnesses for the plaintiff impressed the court as credible witnesses who gave their evidence very well, more particularly the chief. Before he gave evidence the court was advised by both counsel to take note that the chief had been seen talking to some people belonging to plaintiff church but no details of the discussion was revealed. The court noted the observation but looking at the nature of his evidence, the court detects no bias or otherwise on the part of the chief. I will treat his evidence as untainted and basically administrative in a way. He knows the original church and the leaders who approached him for a place to worship (by this the court infers to his predecessors) and when he became chief it was plaintiff who was worshipping at the Mabiya Shrine.</p> <p>The defence opened its case by calling Bishop Shatirwa Mafukidze aged 82 years. He succeeded Arch-bishop Nyikambaranda after the latter’s death. According to him the plaintiff and 1st defendant parted when Arch-bishop Nyikambaranda called for a meeting and plaintiff’s group did not attend 1st defendant also worships at Mabiya Shrine on 17 July of each year. He told the court that there are however other centres belonging to 1st defendant. The witness alluded to the lease agreement produced by plaintiff as 1st defendant’s as well. Although Arch-bishop Nyikambaranda was ordained the church remained united.</p> <p>During cross-examination by Mr <em>Ndlovu</em> for the plaintiff, the witness clarified that these people who did not heed the call by Arch-bishop Nyikambaranda did not congregate with him. He admitted that 1st defendant has its own constitution, an Arch-bishop, a badge and could have its leader ordained by people outside the church. He refused to leave Mabiya Shrine.</p> <p>The defendants then called Munetsi Ngwenya as its witness. In 1932 the Holy Spirit visited both Luke Mutendamambo and John Marange instructing them to form an apostolic church. According to the witness the dispute between plaintiff and 1st defendant commenced in 2018 on 2 March. Arch-bishop Nyikambaranda called for a convention at Chinenga but members of plaintiff rebuffed the meeting. The leader of the church sent four people to go and find out why the members had absconded. The four emissaries found plaintiff’s members assembled at Mabiya holding their own convention. The witness told the court that Nyikambaranda was nominated leader among the four apostles chosen by the Holy Spirit long back in 1951 and was destined to succeed Zabron Chitakatira also blessed Nyikambaranda when the former was ill so after the death of Zabron it was logical that Nyikambaranda had to take over.</p> <p>The witness stated further that 1st defendant’s shrine is Mabiya. From 1970 the original church was Jekenisheni up to 2006. Mr Mutanga was the leader, he also reiterated that the lease agreement produced by the plaintiff is the lease given to the church by Mutare Rural District Council. To the witness there is no distinction between plaintiff and 1st defendant. The reason the name of the church was changed was to protect it from being claimed by the sons of the founding father. All the people agreed to the choice of Nyikambaranda as the new leader and all agreed to change the constitution and adopt the word “<em>International</em>” to be suffixed to the existing name of the church. He pointed out that the people who broke away belong to the plaintiff.</p> <p>During cross examination he denied participating in the registration and formation of 1st defendant contrary to what is indicated in 1st defendant’s summary of evidence. To him the plaintiff is still the same as in 1st defendant formation but had gone through transformation. He also blamed the chief as causing problems between plaintiff and 1st defendant.</p> <p>The 1st defendant then called Andrew Mashamaire. He resides at 2020, Phase 12 Eastview, Harare. According to him the dispute between plaintiff and 1st defendant started when Arch-bishop and his council was summoned by the chief. To the witness there is no distinction between plaintiff and 1st defendant to talk about, they are one no matter what names are being used. Arch-bishop Nyikambaranda succeeded Zabron Chitakatira according to the church’s succession policy. The suffix “<em>International</em>” or prefix to 1st defendant was proposed by ACCZ to distinguish 1st defendant from previously registered churches with the name “<em>Jekenisheni</em>” he added. However besides the addition of “International” nothing changed, 1st defendant is the same as plaintiff. According to this witness the plaintiff is the breakaway church. 1st defendant is still paying rentals to the local authority and uses Mabiya Shrine as its centre, he concluded.</p> <p>The defence witnesses relied much on the history of the church and deliberately avoided the issues in dispute as spelt out in the joint pre-trial conference minute. Maybe that was due to the questions led by their legal practitioners when they were leading their evidence. However the witnesses were evasive and argumentative when they were giving evidence, they avoided critical evidence, more particularly the effect of registration of 1st defendant relating to its identity <em>vis-à-vis</em> plaintiff. Whether by registering a new name and creating a new constitution they were still within the old traditional norm maintained previously by the leadership of plaintiff and its predecessors? The witnesses for 1st defendant chose to underscore those nagging questions and pretended as if the introduction of 1st defendant was a non-event.</p> <p> </p> <p>APOSTOLIC EJUWELL JEKENISHENI CHURCH’S CONSTITUTION</p> <p>            Plaintiff’s Constitution provides that the church’s headquarters shall be at Mabiya in Zimunya Communal Lands in Mutare District and the headquarters is called “<em>The Regiment</em>.” Clause 6 of the constitution spells out the five (5) major gatherings per year and prominent among those days is 17 July, the Anniversary and Holy Communion Celebration day, after that day the Passover is then spread to different centres and to those centres outside Zimbabwe. Clause 7 of the constitution is also important to mention dealing with the holding of an Annual Conference, this is where an Annual General Meeting for all members of the church shall be held to review the operations and laws of the church, amend and recommend any changes to the constitution.</p> <p>            The leader of the church is called church leader, below him is his deputy followed by the Twelve Disciples, below them are Priests and Levities, the least on the hierarchy is the General Membership. Clause 12 (b) of the constitution provides that the church leadership goes by order of hierarchy and seniority as approved by the Holy Spirit.</p> <p> </p> <p>INTERNATIONAL APOSTOLIC EJUWELL JEKENISHENI CHURCH’S CONSTITUTION </p> <p>Clause 1 of the 1st defendant’s constitution defines the name of the church, it has its Headquarters at Mabiya as well. The aims and objectives, provisions relating to Membership, creed, funds and succession are similar word by word to plaintiff’s clauses. However 1st defendant’s constitution introduces new clauses in clause 13 “<em>Roles of women</em>”, clause 14 “<em>Roles of the Youth</em>”, clause 15 “<em>Marriage</em>” clauses 16 and 17 on “<em>Expansion and Growth</em>” and on “<em>Amendments</em>” briefly spell out the factors for growth and that the constitution is open to amendments.</p> <p>            It is important to note that 1st defendant’s constitution in clauses 13-15 creates totally new provisions as compared to the plaintiff’s constitution. The clause dealing with church leadership hierarchy is not included at all. The following issues are common cause to this matter:</p> <ol> <li>Plaintiff and 1st defendant have different constitutions and the earlier formed church is the plaintiff formed in 1932 and the 1st defendant whose constitution was introduced in 2013.</li> <li>Currently the two; plaintiff and 1st defendant have distinct leadership, plaintiff is led by Bishop Changonona and 1st defendant is led by Bishop Mafukidze.</li> <li>The dispute started in 2013 when Tom Dzingai Elijah Nyikambaranda returned from Botswana after the death of Bishop Zabron Chitakatira.</li> <li>Both church entities regard Mabiya as their shrine and refer to it in their constitutions as the headquarters of the church.</li> <li>Both parties have irreconcilable differences relating to the way the church must be managed.</li> <li>The lease agreement relating to Mabiya Shrine registered with the Mutare Rural District Council was initially applied for and registered in the predecessor of plaintiff, Jekenisheni Church up to now the registered name had not yet changed.</li> <li>The receipts produced by the 1st defendant for payment of lease rentals to the local authority relates to year 2018 only.</li> </ol> <p> </p> <p>There are two issues outlined by the parties for this court to decide:</p> <ul> <li>between plaintiff and 1st defendant which is the splinter group from the main church.</li> <li>who between plaintiff and 1st defendant is the legitimate holder or rights and custodian of Mabiya Shrine?</li> </ul> <p> </p> <p>BETWEEN PLAINTIFF AND 1ST DEFENDANT WHICH IS THE SPLINTER GROUP FROM THE MAIN CHURCH?</p> <p>Jekenisheni Church was formed long back in 1932 by Luke Pferedzai Mutendamambo and using that name the leadership approached traditional leaders as well as the local authority to secure a lease for Mabiya Shrine. The lease, exh 1 is still in the name of Jekenisheni, that aspect is uncontroverted. In 2009 the name of Jekenisheni was introduced is not disputed by the 1st defendant. In 2013 the 1st defendant was introduced born out of the constitution whose provisions have already been alluded to hereinabove. However of great importance to this matter 1st defendant brought in a new design to the uniform as compared to the one worn by congregants of the plaintiff church there was now a new title to the leader of the church by the name of Arch-bishop, he now wore an emblem or badge and as already highlighted in the constitution of 1st defendant there were clauses addressing women, youth and marriages, these aspects were totally alien to the plaintiff.</p> <p>To quote the evidence of defendant’s witnesses, Archbishop Nyikambaranda had come to transform the original church, so he was a transformational leader. Unfortunately there is no evidence led by 1st defendant to the effect plaintiff’s constitution was repealed and replaced by 1st defendant, plaintiff still uses that constitution as its supreme law. There is no evidence led by 1st defendant in form of recorded minutes recorded during an Annual Meeting where the plaintiff’s constitution was amended or repealed. There is virtually no connection between plaintiff’s constitution <em>vis-à-vis</em> 1st defendant’s.</p> <p>In the matter of <em>Province of Central Africa vs The Diocesan Trustees of the Diocese of Harare</em>. His Lordship malaba dcj (as he then was) defined the word “<em>CHURCH</em>,”</p> <p>“By a definition a church is a voluntary and unincorporated association of individuals united on the basis of an agreement to be bound in their relationship to each other by certain religious tenets and principles of worship government and discipline. The existence of a constitution is a testimony to the fact that those who are members of the church agree to be bound and guided in their behaviour as individuals or office bearers on ecclesiastical matters by the provisions of the constitution made under its authority. It is the words and actions of the individual as members and office bearers that indicate whether there is conformity with the articles of faith.” (My own emphasis).</p> <p> </p> <p>Earlier on, on p.17 of the cyclostyled judgment, the then Learned Deputy Chief Justice stated that:</p> <p>“The belief of a Christian Church must be founded in general upon Holy scriptures. What differentiates one church from another is the accepted and crystallised definition of what they hold those scriptures to contain-in other words their creed- If an association of Christians adopt one creed as the basis of their association no one can cut and carve it without altering the foundation upon which that body has been associated.”</p> <p> </p> <p>            On the same page of the same judgment, His Lordship added:</p> <p>“Great light is in fact thrown on what are the essential doctrines of a church by reference to the declarations made by those who founded it as to what their view was fundamental.”</p> <p> </p> <p>The plaintiff took over from Jekenisheni Church founded by Luke Mutendamambo and virtually maintained the founded values through and through up to this date. Nothing materially changed except leadership of the church, when such a leader dies. The introductions of the constitution in 2009 was done by consent, that is why there was never a dispute in the plaintiff church. Indeed in 2013 Arch-Bishop Nyikambaranda introduced a new constitution which clearly defined the realm and spectrum of its congregants. As already mentioned above, 1st defendant’s constitution borrowed some clauses from plaintiff’s and 1st defendant went on to add some new clauses relating to youth, women and marriages. It is not in dispute that 1st defendant has its own constitution distinct from plaintiff.</p> <p>In the <em>Province of Central Africa v The Diocesan Trustees for the Diocese of Harare</em> <em>supra</em> it was held that:</p> <p>“A person who is responsible for the creation of a schism cannot be heard to say he or she has not withdrawn membership from the former church.”</p> <p> </p> <p>I am convinced on a balance of probabilities that the conduct of the 1st defendant, the badge, the constitution it introduced as well as the new title, for its leader pointed to one conclusion, Arch-bishop Nyikambaranda, formed a breakaway church which he named International Apostolic Ejuwel Jekenisheni Church, distinct from the mother church, which is the plaintiff. The new constitution constitutes an agreement between its members that the faith by which all those people who choose to take up membership of the church and the standards in accordance with which they undertake to act as revealed to them by the church leaders. Plaintiff is the root, 1st defendant is an off-shoot, albeit with the church doctrine well founded upon that of the plaintiff. 1st defendant’s Arch-bishop Nyikambaranda seceded from plaintiff, consecrated and enthroned by ACCZ as Archbishop of 1st defendant. I cannot accept the 1st defendant’s argument that plaintiff and 1st defendant are one nor can it be said that there are factions in the church, the truth proved before me is that 1st defendant was formed as a new church by Arch-bishop Nyikambaranda and enjoys total autonomy from the plaintiff.</p> <p> </p> <p>WHO BETWEEN PLAINTIFF AND 1ST DEFENDANT IS THE LEGITIMATE HOLDER OF RIGHTS AND CUSTODIAN OF MABIYA SHRINE</p> <p> </p> <p>Having ruled that the 1st defendant seceded from plaintiff, this second issue smoothly, flows from the above. Plaintiff contended in its summons that when its congregants meet annually at Mabiya Shrine 1st defendants congregants also converge at the shrine and conduct their church business simultaneously with the functions of the plaintiff church. Obviously the use of the shrine by the parties at the same time had created friction and turmoil which ended in legal battles in the courts. It is true that the doctrine of the two churches is identical but the leadership is totally polarised. What is clear on paper and from evidence adduced in court by both parties is that both claim a right to be at the shrine and 1st defendant demands that plaintiff should come on its knees to beg to rejoin the 1st defendant. On the other hand the plaintiff submitted that since the 1st defendant broke away from the plaintiff, 1st defendant has no right to continue using Mabiya’s Shrine.</p> <p>Both parties produced receipts which were proof of payments for the lease. One of 1st defendant’s receipts shows that the receipt was paid and receipted in a third party’s name. 1st defendant stated that the one who paid that receipt was the payer using ecocash. However the 1st defendant did not produce receipts for 2019 and it explained that this was due to the wrangles which were going on between plaintiff and 1st defendant. Plaintiff produced 2019 receipts. The receipts produced by the parties do not help either side, in 2018 1st defendant could have paid the rentals for its leader claimed autonomy over the church. What is not clear from the evidence is, whether plaintiff also paid rentals during the same period of 2018. However even if the 1st defendant paid the rentals, they did not change the name of lessee on the Rural District Council’s papers, the name Jekenisheni still remains on the lease document. I have since ruled that it is the first defendant and its leadership which broke away from the mother church, the plaintiff. In the matter of <em>Province of Central Africa</em> case supra the Supreme Court concluded that:</p> <p>“Those, however, who, as members of the congregation of the former Hervomde Church of Rustenburg, however small their number might be, have not joined the union still remain the Hervomde congregation of Rustenburg and are as such entitled to all the property and things belonging to or standing registered in the name of Hervomde Church of the Congregation of Rustenburg.”</p> <p> </p> <p>In <em>Zambezi Conference of Seventh Day Adventists v General Conference of Seventh Day Adventists and Another</em> mcnally ja held</p> <p>“These individual members who seceded from the church, even if they be a majority of the member of a particular congregation, have seceded as individuals. They cannot have a claim to property of the Seventh Day Adventist. They have formed a <em>universitas</em>, a new association of individuals. They cannot have a claim to property of the Seventh Day Adventist. It may be that, as individuals they subscribed towards the funds of the church but they did so as members. Having now founded a new <em>universitas</em> they cannot in law claim ownership of church property.”</p> <p> </p> <p>            Chief Zimunya unconditionally stated in his testimony that plaintiff is the rightful church to use the Mabiya Shrine, the 1st defendant is at liberty to approach the traditional leadership and be allocated a place for its prayers and annual functions. 1st defendant is a new <em>universitas</em> and it is independent from plaintiff, it follows that there is no legal basis why the 1st defendant should go and interfere with plaintiff at Mabiya Shrine. Sons of the founder of Jekenisheni, fully conscious of the sanctity of Mabiya Shrine, broke away from Jekenisheni Church and formed their own <em>universitas</em> and established at other centres. 1st defendant ought to follow suit of such a noble move and leave the mother church with its own centre. The plaintiff has managed to prove its case on a balance of probabilities and it ought to succeed.</p> <p> </p> <p>THE PRAYER</p> <p>The court asked Mr <em>C Ndlovu</em> for the plaintiff to look at paragraph (b) of its prayer which reads:</p> <p>“That the plaintiff and its members regard and hold the said land as its sacred religious shrine.”</p> <p> </p> <p>Plaintiff’s central reason for bringing the action to court was because of Mabiya Shrine which it regards as sacred and it is seeking a relief that the court should bar 1st defendant from interfering with its prayer sessions there. Why would a court declare a place sacred, in my view that is beyond this court’s power? Only members of the plaintiff know which place is sacred or not in accordance with that church’s own religious beliefs. Mr <em>Ndlovu </em>conceded and prayed that paragraph (b) of the relief be expunged from the prayer. It is a proper concession.</p> <p>Accordingly the following order is granted:</p> <ol> <li>The plaintiff is the legitimate, legal and <em>bona fide</em> holder of a lease of a piece of land measuring seventeen (17) hectares at Garai Village, Mabiya, Chief Zimunya under Mutare Rural District Council.</li> <li>That 1st defendant and its members have no right or claim to the Mabiya Shrine.</li> <li>That defendants jointly and severally pay the costs of this action.</li> </ol> <p><em>Gonese &amp; Ndlovu</em>, plaintiff’s legal practitioners</p> <p><em>Muchineripi &amp; Associates</em>, defendant’s legal practitioners</p> <p>SC 48/2</p> <p>See Free Church of England v Lord Overtoun [1904] AC 515 at 577</p> <p>On page 37</p> <p>At p.37</p> <p>2001 (1) ZLR 160</p> <p>At p. 162 D-F</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/mutare-high-court/2020/14/2020-zwmthc-14.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=46227">2020-zwmthc-14.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/mutare-high-court/2020/14/2020-zwmthc-14.pdf" type="application/pdf; length=287355">2020-zwmthc-14.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/church">CHURCH</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/dispute">Dispute</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/property">Property</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/immovable-property">IMMOVABLE PROPERTY</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/personal-right-respect-immovable-property">Personal right in respect of immovable property</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/rights-and-immovable-property">Rights in and to immovable property</a></li></ul></span> Thu, 26 Mar 2020 11:01:47 +0000 Sandra 9594 at https://old.zimlii.org Sibanda & 2 Others v The Apostolic Faith Mission of Portland Oregon (Southern African Headquarters) Inc (SC 49/18, Civil Appeal No. SC 272/15) [2018] ZWSC 49 (27 July 2018); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2018/49 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>REPORTABLE</strong><strong>        (37)</strong></p> <p> </p> <ol> <li> </li> </ol> <p><strong>v</strong></p> <p><strong>THE     APOSTOLIC     FAITH     MISSION     OF     PORTLAND     OREGON      (SOUTHERN     AFRICAN     HEADQUARTERS)     INC.</strong></p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>BEFORE: GOWORA JA, HLATSHWAYO JA &amp; UCHENA AJA</strong></p> <p><strong>HARARE, 20 NOVEMBER, 2015 &amp; JULY 27, 2018</strong></p> <p> </p> <p> </p> <p><em>F. Girach, </em>for the appellants</p> <p><em>T. Mpofu </em>with<em> N. Chamisa, </em>for the respondent</p> <p> </p> <p> </p> <p><em>                        </em><strong>HLATSHWAYO JA: </strong>          This is an appeal against the whole judgment of the High Court of Zimbabwe dated 20 May 2015.</p> <p>The order sought to be impugned reads as follows:</p> <p>“IT IS DECLARED THAT,</p> <ol> <li>1st, 2nd, 3rd and 4th Respondent are no longer members of Applicant and have lost all rights to fellowship under applicant or to make use of any of its properties or amenities as well as its name.</li> <li> </li> <li> </li> </ol> <ol> <li>LAND AND BUILDINGS</li> </ol> <ol> <li>Bulawayo: church at Stand 61000, Size Road, and adjacent stands for youth and women, Western Commonage No 6 Pelandaba;</li> <li>Stand 36E, 37E, 38E,39E,40E, 54E, 55E Bekezela Street, Pelandaba;</li> <li>House at No 16 Amantje Road, Four Winds, Bulawayo;</li> <li>Greengables Farm, the remaining extent of subsdivision B of Dunstaal, Khami;</li> <li>Plot 11 and 12, Shamrock Road, Gweru;</li> <li>Lower Gweru at Gwabada Farm and Ekukhanyeni Weaving Centre;</li> <li>Kwekwe: Stand no 383 Mbizo Township Church and residence, Amaveni tiownship church;</li> <li>Kadoma: Stand no 4 Bwanali Street, Rimuka Township church and mission residence;</li> <li>Chegutu: Stand 2134 Heroes Township Church and Mission residence at 550 Pfupajena Township;</li> <li>Masvingo stand 14 Mucheke Township, Masvingo;</li> <li>Mutare: Stand No 7 Machekaire Street, Dangamvura Township, Mutare;</li> <li>Buhera Murambinda Township Church stand;</li> <li>Nyanga: Church at Bonde Kraal;</li> <li>Mount Selinda: Chako Township Church Stand;</li> <li>Chinhoyi Stand 1159 Hunyani township Church and residence</li> <li>Mahororo Business Centre Church Hurungwe;</li> <li>Beitbridge Stand 2384 Dulibadzimu and residence at No 9;</li> <li>Victoria Falls: Stand 2647 Victoria Falls;</li> <li>Kariba: stand 1727 Nyamhunga Township;</li> <li>Chiredzi:51 Makaza Triangle, No 6 Nzimbe Township Trangle;</li> <li>Mwenezi: Sarahuru Township Church;</li> <li>Mutoko: Mutoko Business Centre, Church Stand;</li> <li>Pilgrims’ Progress restaurant Kadoma;</li> <li>Pilgrims’ Progress restaurant Gweru;</li> <li>Bindura: 19/34 Musvosve Street Stand at Chipadze Township and Trojan Mine;</li> <li>All motor vehicles and church assets under their control;</li> <li>Chipinda Church Stand; and</li> <li>Hwange: No 2 Glencoe Road, Railton, Hwange.</li> </ol> <p> </p> <ol> <li> </li> </ol> <p> </p> <p> </p> <p> </p> <p>The background to this matter is clearly set out in the judgment of the court <em>a quo</em> and may be summarized as follows:</p> <p> </p> <p>The Apostolic Faith Mission of Portland, Oregon, is a church corporation of the State of Oregon, USA, which church was established in 1906 with its headquarters in Portland, Oregon, and is hereinafter referred to as the “mother or parent church”. It is headed by a Superintendent General. One of the mother/parent church’s premier goals is to disseminate biblical truth and evangelise the world.  In advancing this goal, the Apostolic Faith Mission of Portland Oregon (Southern African Headquarters) was established in 1955 (hereinafter referred to as the “local church”).  The Apostolic Faith Mission of Portland Oregon (Southern African Headquarters) is the respondent <em>in casu</em>.</p> <p> </p> <p>The mother church has other branches in a plethora of Southern Africa countries, <em>inter alia</em>, South Africa, Malawi and Angola. The local church is governed by a Constitution like any of the other branches of the mother church in Southern Africa. The first constitution of the respondent was promulgated in 1968 and then amended in 1985 and 1996. In terms of Article 1 of the respondent’s amended constitution, the respondent was established as a branch of the mother/parent church. The appellants sought to further amend the constitution in 2012 which purported amendment, however, was not endorsed by the mother church.  </p> <p> </p> <p>The first appellant was appointed Overseer of the respondent in 1985. It was during the stewardship of the first appellant that an issue arose concerning the existence of two choirs in the respondent’s church.  The pith of the dispute related to whether there was need for the choir to wear a uniform and dress in a particular manner. The mother church was informed of the dispute and it directed that both choirs be disbanded. The first appellant did not act in accordance with this direction from the mother church.  Rather, the first appellant wrote to the mother church indicating that he would consider withdrawing from the Board and from being an overseer if the issue of uniforms was not dealt with to his satisfaction.</p> <p> </p> <p>The director responsible for Africa, one Reverend Baltzell, visited the respondent with the intention of retiring the first appellant and appointing a replacement. Alive to this fact, the first appellant instituted legal action.  Subsequently, Darrel D. Lee, the Superintendent General, wrote to the first appellant communicating his removal from the position of Southern Africa Overseer with effect from 21 April, 2005, leaving him as an ordinary member of the church.</p> <p> </p> <p>Aggrieved by his removal, the first appellant instituted legal action which saw him obtaining a provisional order in terms of which he would remain overseer of the respondent. This provisional order was, however, subsequently discharged. The first appellant appealed against this judgment. The appeal, however, lapsed and was deemed dismissed.  On 7 February 2008, following an application made by the first appellant, the respondent’s removal was invalidated, unopposed, under case HC/1170/05 and the subsequent application for rescission was dismissed.</p> <p> </p> <p>The application <em>a quo</em> was however not premised on the previous removal of the first appellant.  The material events that led to the appealed judgment are set out hereunder, as outlined <em>a quo</em>:</p> <p>“In November 2011 the head of the parent church visited the country and the (first appellant) barred him from accessing the church branches and buildings for conducting services. This matter spilled into the courts again with the parties subsequently agreeing to resolve their differences outside the court.  In the same month, the first (appellant) issued summons for the eviction of pastors he did not agree with, from church premises. He appointed new pastors and replaced those he perceived to be siding with the parent church. This development culminated in further tensions in the church.  On 25 January 2012, the first (appellant) was suspended from membership of the church by the parent church.  The reason for this was that he had breached the cannons of the church and violated spiritual doctrines by continuing to litigate against the faithful and that he had failed to submit to the authority of the church in breach of the church’s constitution.  Further, that his conduct had led to the creation of disharmony within the church and that he had appropriated the church’s assets to his own use.  The other complaint was that he was effecting amendments to the constitution without authority”.</p> <p>  </p> <p> </p> <p>The letter of 25 January 2012 suspended the first appellant “immediately from all activities associated with the church” and stated further that “during the suspension and pending the finalization of investigations and any subsequent disciplinary hearing that might be conducted against you, you shall not set your feet (<em>sic</em>) at any of the church’s premises. You shall also not conduct any church service. You shall also be expected not to interfere with church members wherever located in Southern Africa ...” Against these charges, the first appellant instructed his legal practitioners to write to the head of the parent church. The contents of this letter dated 3 February 2012 read as follows:</p> <p>“Dear Sir</p> <p>RE APOSTOLIC FAITH MISSION OF PORTLAND AND OREGON UNITED STATES OF AMERICA VS REVEREND RICHARD SIBANDA AND APOSTOLIC FAITH MISSION OF PORTLAND PREGON (SOUTHERN AFRICAN HEADQUARTERS) AND THE BOARD OF TRUSTEES – CONSTITUTIONAL AMENDMENT</p> <p>We refer to the above matter and advise as you may well know that we are lawyers for the Apostolic Faith Mission of Portland Oregon (Southern African Headquarters) Inc. And the Board of Trustees of same and of course Reverend Sibanda the Overseer of the Southern African Headquarters.;</p> <ol> <li>The Southern African Headquarters is a legal person governed by its own constitution and we advise that the constitution was formed by the Board of Directors of Southern Africa duly convened and called for that purpose.</li> <li>The same constitution is subject to amendment by the same Board of Directors duly convened for that particular purpose.</li> <li>The historical relationship between Southern Africa and America was born out of historical issues of the refusal by the Colonial Government to accord indigenous people the right to preach the Gospel without external white missionaries. For the record, America and Southern Africa have a spiritual relationship; a look at the previous constitutions and your reference to the history of the church in Southern Africa will vindicate this position.</li> <li>In our view, a look at the Amendments is not only reasonable but logical and was inevitable and on p8 are the proposed trustees chosen by the people of Southern Africa. The choice is yours, to either understand the amendments and try to build on a great relationship with Southern Africa under an affiliate status or choose to listen to people who appear to be feeding you with false information. For your information the whole Board of Directors and the Board of Elders and the Brothers and Sisters in the faith in the greater Southern Africa are prepared to proceed with the amendments of the constitution.</li> <li>For the record, our clients collectively have decided that they will not accept the leadership from America. The Board of Directors, Elders and Church members have enough sense and intelligence to choose their own leadership. Finally the same God you serve is the same God they serve and He will give them guidance on succession issues.</li> </ol> <p> </p> <p>May we have your response, if any, within seven days?”</p> <p> </p> <p> </p> <p>The episodes that followed after this letter are that the first appellant was called to a disciplinary hearing to respond to the charges preferred against him. The charges were, <em>inter alia,</em> that the first appellant had violated Articles VI and VII of the Respondent’s Constitution by deliberately refusing to submit to the authority of the parent/mother church and that the first appellant had violated the Constitution as read with doctrinal rules of the Apostolic Faith Church of Portland, Oregon (Southern Africa Headquarters) in that in or around December 2011, first appellant had elected to settle his personal disputes with church brethren in the High Court of Zimbabwe rather than as dictated by the Bible.</p> <p> </p> <p>The first appellant did not attend the disciplinary hearing to determine charges laid against him set for 22 March 2012. The hearing nevertheless went ahead and it was resolved that the first appellant’s suspension be “confirmed”.  Rev Onias Z. Gumbo was then appointed as Overseer in the place of the first appellant.  Undeterred by the suspension, the first appellant maintains that he is still the Overseer of the respondent. On 22 March 2014 the appellants issued summons against the superintendent of the parent church challenging the first appellant’s suspension and seeking nullification of Reverend Gumbo’s appointment and an order interdicting him from interfering with the church operations.  The parent church counterclaimed seeking a declaration of the lawfulness of the suspension and the interdiction of the appellants from acting as overseer and board of directors of the local church.  This action does not seem to have been pursued to finality, for reasons that are not clear from the record.  Instead, the respondent filed an application for a declaratory order in the court <em>a quo </em>essentially seeking the same relief as in the counterclaim. The terms of the order prayed for, which order was granted by the court <em>a quo</em>, have already been quoted above<em>.</em></p> <p> </p> <p>Aggrieved by that order, the appellants noted this appeal on the following grounds of appeal:</p> <p>“1.       The High Court erred in finding that the respondent, being a <em>universitas </em>with power to sue and be sued in its own name, could not secede from the Apostolic Faith Mission of Portland Oregon.</p> <ol> <li>The High Court further erred in finding that the respondent had an interest in suing its overseer and its board of trustees, the Appellants, when the letter of the 3rd of February 2012 was written on behalf of the respondent, its leadership and its members.</li> <li>The High Court further misdirected itself in finding that the letter of the 3rd of February 2012 amounted to a resignation by the (appellants) from the (respondent) or a denunciation of the doctrine of the church.</li> <li>The High Court misdirected itself in finding that the (appellants) had shown conduct as to amount to sensation (<em>sic</em>) (secession?) when there was no evidence to that effect.</li> <li>The High Court misdirected itself in finding as it did that the (appellants) had adopted a new constitution for the applicant when in fact they had not proceeded with the proposed amendments.</li> <li>The High Court further erred in failing to find that the (respondent) church, through the overseer, the 1st (appellant), had the authority to appoint its own leadership, that is the board of trustees and therefore the communication that the applicant’s leadership would be appointed locally could not amount to denunciation of the American church.”</li> </ol> <p> </p> <p> </p> <p> </p> <p>At the hearing of this matter additional grounds of appeal were moved and granted through an amendment as follows:</p> <ol> <li>The learned judge in the court <em>a quo</em> erred in not finding that the respondent did not have the requisite capacity to bring the action in this matter and/or that it required the support of the church in Oregon, USA.</li> <li>The learned judge in the court <em>a quo</em> erred in not finding that the application was, in any event, fatally defective as the deponent to the founding papers was barred from representing respondent.</li> <li>The learned judge of the court <em>a quo</em> erred in finding that the first appellant ceased to be District Superintendent and ought to have found therefore that the application was a nullity.</li> </ol> <p>The appellants then prayed for the setting aside of the judgment of the High Court and its substitution with an order dismissing the declaratory application with costs.</p> <p> </p> <p>The laxity and inattentiveness in drafting the notice of appeal by the appellants’ counsel has necessitated the insertion in brackets of the proper parties before this Court.  The appellants in their grounds of appeal cite the parties as if they are still before the High Court. The appeal should relate to “Appellants” and “Respondent” and not “Applicant” and “Respondents.”  This lack of attentiveness by legal practitioners is the kind of carelessness that should never manifest at this level of litigation.</p> <p> </p> <p>This Court therefore is seized with an appeal seeking to overturn a declaratory order granted a <em>quo</em>. From a close reading of the grounds of appeal, two questions call for determination and these are:</p> <ol> <li>Whether the respondent had the requisite <em>locus standi</em> to sue?</li> <li>Whether the appellants had ceased to be members of the respondent?</li> </ol> <p>The just mentioned questions shall be dealt with hereunder.</p> <p> </p> <p><em>Whether the respondent had the requisite locus standi to sue?</em></p> <p>The appellants contend that the respondent did not have the requisite <em>locus standi</em> to bring the application before the court <em>a quo</em>. The appellants point to Article VII of the respondent’s Constitution as the basis of the argument against respondent’s <em>locus standi</em> in the court <em>a quo</em>. Article VII of the respondent’s Constitution reads as follows:</p> <p>“The Government of the religious organisation shall be vested in the Board of Directors consisting of not less than three (3) or more than seven (7) members…”</p> <p> </p> <p> </p> <p>The appellants’ interpretation of Article VII of the respondent’s constitution is that it is only the Board of Directors that has <em>locus standi </em>to institute legal proceedings. The appellants further note that there is no provision in the respondent’s constitution that gives the local chapter/local church any direct right to institute legal proceedings. To buttress this argument, the appellants take the point that the degree of control exercised by the mother church over the local church shows that the proper applicant in the court a <em>quo</em> ought to have been the parent church.</p> <p> </p> <p>It is common cause that the respondent is an organisation clothed with legal personality. As a legal <em>persona</em>, the respondent has rights, duties and capacities independent of its own members. The respondent therefore has a right to sue and be sued in its own name. This right however cannot be exercised in instances where the respondent has no substantial interest in the matter. In other words, the respondent as a legal person need to have <em>locus standi</em> in order to be afforded audience in a court of law. It is trite that <em>locus standi</em> is the capacity of a party to bring a matter before a court of law. The law is clear on the point that to establish <em>locus standi</em>, a party must show a direct and substantial interest in the matter. See <em>United Watch &amp; Diamond Company (Pty) Ltd &amp; Ors v Disa Hotels Ltd &amp; Anor</em> 1972 (4) SA 409 (c) at 415 A-C and <em>Matambanadzo v Goven</em> SC 23-04.</p> <p> </p> <p><em>In</em> <em>casu</em>, it is common cause that the respondent is a branch of the parent church.  However, the respondent is endowed with powers to sue and be sued in its own name. It is further common cause that the respondent is under the leadership appointed by the parent church. The constitution of the respondent is approved by the mother church. The first appellant has been in control of the respondent’s assets on the basis of being an overseer appointed by the mother church. The main allegation a <em>quo</em> was that the appellants were no longer members of the respondent and hence should cease to control the assets of the respondent.</p> <p> </p> <p>The respondent as a branch of the mother church had an unfettered direct interest in the matter in that the first appellant purported to act on the respondent’s behalf when he was on suspension.  The first appellant had been divested of the power to act on behalf of the respondent. It is common cause that the first appellant was on suspension when he caused the letter of 3 February 2012 to be drafted. He purported to communicate to the mother church an incorrect position that the respondent was also the author of the letter in question. The respondent who had not authored the letter in question surely has a direct interest in a matter where its previous leader purports to act on its behalf without its authority.  Therefore, the respondent’s <em>locus standi </em>in the court a <em>quo </em>cannot be gainsaid.</p> <p> </p> <p>In too many church or voluntary association-related disputes, the parties attempt to abuse the issue of <em>locus standi</em> in order to outwit each other and avoid the merits of the matter being adjudicated upon or even to completely frustrate any legal resolution of the matter.  It is high time that the court, as it has done <em>in</em> <em>casu</em>, takes a robust approach and leans in favour of finding that <em>locus standi</em> exists and proceeds to judicially determine the issues.  A party who is suspended from an organisation must in the first place legally confront such suspension instead of resorting to the devious ruse of challenging the <em>locus standi</em> of such organisation or any person appointed in their stead, in order to escape judicial scrutiny of their conduct.</p> <p> </p> <p><em>Whether the appellants had ceased to be members of the respondent?</em></p> <p> The appellants contend that the letter of 3 February 2012 written by their legal practitioners to the mother church did not communicate their resignation from the mother church. Against this contention is a specific finding made by the court <em>a quo </em>that the first appellant had resigned from the respondent’s church. The contents of the letter have been quoted above.</p> <p> </p> <p>It must be noted that the letter was written on 3 February 2012, days after the suspension of the first appellant from the respondent’s church.  The first appellant had been suspended from the respondent’s church on 25 January 2012.  The terms of the suspension were <em>inter alia</em> that the first appellant was suspended immediately from all activities associated with the respondent church. It therefore follows that any activity that the first appellant purportedly did on behalf of the church after his suspension was null and void.  As long as the suspension was still in force, any purported act by the first appellant on behalf of the respondent was of no effect.</p> <p> </p> <p>The letter in question was written by the law firm, Cheda and Partners, on the instructions of the first appellant who had been suspended from the respondent church. The author of the letter at law is undoubtedly the first appellant.  It is worth observing that the legal practitioners who wrote the letter in question state that they are lawyers for the respondent, the first appellant and the Board of Trustees of the respondent.  In this letter, the first appellant sought to act on behalf of the respondent as noted from the cited parties. The contents of the letter therefore <em>prima facie</em> reflects that the first appellant was representing the respondent. This could not be possible as the first appellant had been suspended by the respondent.</p> <p> </p> <p>Be that as it may, the pertinent question that this Court is seized with is whether the letter communicates a resignation by the appellants from the respondent’ church. In the event that this Court is to find that it communicates a resignation, does it then follow that the appellants are no longer members of the respondent despite the absence of dismissal of the appellants by the respondent.</p> <p> </p> <p>It is also worth noting the letter in question contains very strong doctrinal issues.  Is it a form of schism, a declaration of independence from the parent church? In the case of <em>Independent African Church v Maheya</em> 1998(1) ZLR 552(H), DEVITTIE J reflects on the historical schisms generated by the passion of church conflicts, thus:</p> <p>Even at birth, the Christian Church experienced a great schism…It came about when a convert of the early church, Paul, adapted Ch ristianity to meet the needs of all mankind and freed it from the local and national parameters…</p> <p>Another schism which took place in early times was the Reformation.  The growth of national consciousness in medieval times in part motivated the great conflict the Catholic Church and Protestantism.  The spirit of nationalism could not accommodate the claims of the papacy, a non-national authority, to moral dictatorship.  This schism has raged for centuries and continues to this day…</p> <p>In like vein, the spirit of freedom radiated by the advent of democratic government in Zimbabwe in 1980 precipitated a rapid growth of independent churches in Zimbabwe. I use the word “independent” to denote churches with no association or affiliation to the established churches.”p.553</p> <p>           </p> <p> </p> <p>However, before the ink was dry on the above judgment, the schism had spread to local branches of established churches and the relationship between the parent churches and their local branches is currently undergoing serious strains as the present case clearly demonstrates.  The relationship between the metropole-based parent churches and their peripheral local branches that was forged under brutal colonial conquest and tenuously survived the bitter struggles of independence must now respond to the democratic dispensation demands and not wish away the tensions as mere ruses of charlatans and greedy leaders of the poor peripheral congregations.</p> <p> </p> <p>But how are the church property disputes to be resolved.  The <em>Maheya</em> case provides some useful indications.  Quoting several USA Supreme court cases, the learned judge in that case teases out a number of useful principles.  From the case of <em>Watson v Jones</em> 80 US (13 Wall) 679 (1871), the following principles emerge:</p> <p>“The Federal Courts are competent to enforce express terms contained in trust instruments governing the use of ownership of property.<em>However, courts may not resolve or inquire into matters of religious doctrine in order to determine entitlement to property</em>.” (emphasis added)</p> <p> </p> <p> </p> <p> </p> <p>                        In the case of <em>Presbyterian Church in the United States v Mary Elizabeth Hulle Memorial Presbyterian Church</em> 393 US 440 (1969), the Supreme Court held:</p> <p>“…there are <em>neutral principles of law</em>, developed for use in all property disputes, which can be applied without `establishing’ churches to which property is awarded.  But First Amendment values are plainly jeopardised when church property litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice.” (emphasis added)</p> <p> </p> <p> </p> <p> </p> <p>In <em>Jones v Woolf</em> 443 US 595 (1979), the “neutral principles” approach was supported by the Supreme Court, thus: </p> <p>“This method relies exclusively on objective, well established concepts of trust and property law and formulae familiar to lawyers and judges.  It thereby promises to free civil courts completely from the entanglement of religious doctrine, policy and practice.”</p> <p> </p> <p> </p> <p> </p> <p>Thus, the principles developed in the USA for resolution of church property disputes which may be applied with much benefit in our jurisdiction may be summarized as follows:</p> <ol> <li>Civil Courts will enforce express terms governing the use and ownership of property contained in church documents, such as constitutions, trust instruments, canons, etc.</li> <li>Civil Courts may not resolve or inquire into matters of religious doctrine in order to determine entitlement to property.</li> <li>Civil Courts may apply <em>neutral principles of law</em>, which are objective, well established concepts of trust and property law and formulae familiar to lawyers and judges and avoid entanglement in religious doctrinal issues, policy and practice whether pertaining to the ritual of liturgy of worship or the tenets of faith.</li> </ol> <p> </p> <p>Applying the above principles to the facts of this matter:</p> <ul> <li>In resolving church property disputes, it is improper to get entangled in the doctrinal issues as the court <em>a quo</em>, in my view, unfortunately did.The question of choir uniforms and how they are to be worn, whether the appellants exhibited behaviour amounting to schism or denounced the founding principles of respondent or their propensity to seek legal redress in disputes with congregants contrary to Biblical teachings are all doctrinal issues that cannot be the bases of resolving the property dispute. The exceptional circumstances in the case of <em>Church of the Province of Central Africa Ltd &amp; Anor v Diocesan Trustees for the Diocese of Harare</em> SC 48/12 (hereinafter the “CPCA case”) are distinguishable from the current one.In the <em>CPCA</em> case, <em>supra, </em>people who had been members of the board of trustees for the church but <em>withdrew their membership from the church and formed a new church organization</em> were held to have resigned from their offices thereby losing the right to control the original church’s property such as buildings, houses, schools, motor vehicles and funds in banks. In this regard, MALABA JA (as he then was) had this to say in the <em>CPCA</em> case:</li> </ul> <p>“The court does not discuss the truth or reasonableness of any of the doctrines of the religious group.It does not decide whether any of the doctrines are or are not based on a just interpretation of the language of the Holy Scriptures.While the court does not take notice of religious opinions with a view to deciding whether they are right or wrong, it might notice them as facts pointing to whether a person has withdrawn his or her membership from the church and should possess and control church property.”</p> <p> </p> <ul> <li>This Court accepts as a correct statement of law made in <em>Independent African Church v Maheya</em> 1998(1) ZLR 552(H) at p 556E and relied upon in the <em>CPCA</em> case <em>supra</em> that disputes over ownership or possession and control of church property should be resolved, in the first instance, on the basis of the interpretation and application of the law of voluntary associations.Therefore, the constitution of a voluntary association and rules governing it can be relied upon in solving property disputes.This is in line with the first principle noted above that civil courts will enforce express terms governing the use and ownership of property contained in church documents, such as constitutions, trust instruments, canons, etc.</li> <li>Finally, the court may have resort to <em>neutral principles of law</em>, which are objective, well established concepts of trust and property law.In the present case, the question to answer is whether the first appellant, having been suspended from the respondent, and while that suspension subsists, can retain control of the property and assets of respondent?This issue can be resolved without the court entangling itself in doctrinal issues of whether questioning the relationship between the parent and local churches, the way the 1st appellant did, amounts to secession or schism or at what stage suggesting constitutional arrangements becomes rebellion against fundamental tenets of the faith and ceases to be a normal, albeit vigorous, democratic discourse? When can a church member be held to have so denounced the fundamental principles that lie at the heart of a church that he or she divests himself or herself from being a member of the respective church and becomes disentitled from access to its properties?The best answer is that it is a matter of opinion, a matter of degree and an issue of doctrinal intricacies that courts are ordinarily unfamiliar with. It was, therefore, a misdirection for the court below to base its decision on these doctrinal imponderables.</li> </ul> <p> </p> <p>In <em>Jakazi &amp; Anor v Anglican Church of the Province of Central Africa</em> SC 10/13, this Court dealt with the issue of resignation as an objective fact. In communicating resignation, a party gives notice. The giving of notice is a unilateral act which needs no acceptance. Whether or not a party resigned is a question of fact. The sentiments of this court in the <em>CPCA</em> case are instructive with regard to resignation of church members:</p> <p>“Where the evidence shows that the individual exercised his/her right to terminate the relationship with the Church the resignation takes effect immediately the conduct is committed. This is so unless there is a special provision by virtue of which it takes effect upon acceptance by the person who is given the right to receive written notice and decide whether to accept the resignation or not. The law is clear.Whether it is under article 4 or 13 resignation is a unilateral act. Its validity does not depend upon acceptance by the person to whom it is directed.Acceptance determines when the resignation takes effect. In the final analysis it is for the court and not the individual concerned to decide whether his conduct amounts to resignation or not.”</p> <p> </p> <p> </p> <p> </p> <p>It must be emphasized that the ideal position is for voluntary associations to discipline their own members, either by dismissing or suspending them in terms of their set procedures.  In this case, the respondent conducted a disciplinary hearing against the first appellant for charges preferred against him. The disciplinary hearing proceeded in the absence of the first appellant despite his being properly served. At this disciplinary hearing, the decision to suspend the first appellant was “confirmed”.  What is baffling in this case is that the respondent or the mother church, despite having powers to dismiss the appellants, resolved to simply “confirm” or uphold the suspension of the first appellant. A declaration that the appellants are no longer members of the respondent was only sought in the court a <em>quo</em>.  Now, if the church itself, seized with the alleged doctrinal infractions of the first appellant at a disciplinary hearing, opts not to dismiss the appellant but rather to merely uphold the suspension, on what basis would a civil court of law, unschooled in the intricacies of doctrinal niceties, be expected to pronounce the first appellant no longer fit to maintain membership of the church?</p> <p> </p> <p>It is for the church to dismiss the appellants and not for this court to do so in its stead. The respondent is enjoined to take steps to terminate its relationship with a member who denounces its authority, and the civil court will give due deference to that decision in the absence of arbitrariness, bias or unreasonableness.  What was placed before the court was in fact a process upholding the first appellant’s suspension. Nothing shows that appellants were dismissed and therefore ceased to be members of the respondent. Suspension cannot by any stretch of imagination be a method of terminating a relationship between parties. The first appellant therefore remains suspended and not dismissed from the respondent.</p> <p> </p> <p>There is no record of the second, third and fourth appellants being charged with any misconduct let alone being suspended or dismissed from the respondent’s church. There is therefore no basis in my view to declare that the second, third and fourth appellants ceased to be members of the respondent. The court <em>a quo</em> erred in doing so.</p> <p> </p> <p>All in all, therefore, there is sufficient ground to allow the appeal, with each party bearing its own costs. That part of the order of the court <em>a quo </em>declaring the 1st, 2nd,3rd and 4th appellants as having ceased to the members of the respondent is not supportable, has to be set aside and replaced with an order declaring the 1st appellant and all those claiming through him to be barred from controlling or accessing respondent’s properties or amenities on account of 1st appellant’s extant suspension. All specific references to the 2nd, 3rd and 4th appellants in the order of the court <em>a quo</em> are also improper and have to be removed. Given this partial success by the appellants, it is proper that each party shall bear its own costs.</p> <p> </p> <p>Accordingly, it is hereby ordered that:</p> <ol> <li>The appeal is allowed with each party bearing its own costs.</li> <li>The judgment of the High Court in case No. HC 1451/13 be and is hereby set aside and substituted as follows:-</li> </ol> <p>“IT IS DECLARED, WITH EACH PARTY BEARING ITS OWN COSTS, THAT:</p> <ul> <li>The 1st respondent having been suspended on 25 January 2012 by theparent church, and while that suspension remains extant, has no right to personally, or by anyone claiming through him, make use of any of the applicant’s properties or amenities as well as its name.</li> <li>The 1st respondent, or anyone claiming through him, shall immediately stop and shall at all times desist from making use of applicant’s name or any such name which may reasonably be confused with applicant’s name and which may give the impression that they have any continuing association with applicant.</li> <li>The 1st respondent, or anyone claiming through him, shall immediately relinquish possession and use of all of applicant’s properties both movable and immovable whether held by them directly or by those claiming the right of use or occupation through them which are set out in ‘c1’ below and shall concede such use and possession to the applicant.</li> </ul> <ol> <li>LAND AND BUILDINGS</li> </ol> <ul> <li>Bulawayo: church at Stand 61000, Size Road, and adjacent stands for youth and women, Western Commonage No 6 Pelandaba;</li> <li>Stand 36E, 37E, 38E,39E,40E, 54E, 55E Bekezela Street, Pelandaba;</li> <li>House at No 16 Amantje Road, Four Winds, Bulawayo;</li> <li>Greengables Farm, the remaining extent of subsdivision B of Dunstaal, Khami;</li> <li>Plot 11 and 12, Shamrock Road, Gweru;</li> <li>Lower Gweru at Gwabada Farm and Ekukhanyeni Weaving Centre;</li> <li>Kwekwe: Stand no 383 Mbizo Township Church and residence, Amaveni Township church;</li> <li>Kadoma: Stand no 4 Bwanali Street, Rimuka Township church and mission residence;</li> <li>Chegutu: Stand 2134 Heroes Township Church and Mission residence at 550 Pfupajena Township;</li> <li>Masvingo stand 14 Mucheke Township, Masvingo;</li> <li>Mutare: Stand No 7 Machekaire Street, Dangamvura Township, Mutare;</li> <li>Buhera Murambinda Township Church stand;</li> <li>Nyanga: Church at Bonde Kraal;</li> <li>Mount Selinda: Chako Township Church Stand;</li> <li>Chinhoyi Stand 1159 Hunyani township Church and residence</li> <li>Mahororo Business centre church Hurungwe;</li> <li>Beitbridge Stand 2384 Dulibadzimu and residence at No 9;</li> <li>Victoria Falls: Stand 2647 Victoria Falls;</li> <li>Kariba: stand 1727 Nyamhunga Township;</li> <li>Chiredzi:51 Makaza Triangle, No 6 Nzimbe Township Trangle;</li> <li>Mwenezi: Sarahuru Township Church;</li> <li>Mutoko: Mutoko Business Centre, Church Stand;</li> <li>Pilgrims’ Progress restaurant Kadoma;</li> <li>Pilgrims’ Progress restaurant Gweru;</li> <li>Bindura: 19/34 Musvosve Street Stand at Chipadze Township and Trojan Mine;</li> <li>All motor vehicles and church assets under their control;</li> <li>Chipinda Church Stand, and</li> <li>Hwange: No 2 Glencoe Road, Railton, Hwange.</li> </ul> <p><strong>GOWORA JA:</strong>                      I agree</p> <p><strong>UCHENA JA:</strong>                        I agree</p> <p><em>Majoko &amp; Majoko</em> c/o <em>G. N. Mlotshwa</em> &amp; Co, appellants’ legal practitioners</p> <p><em>Dube-Banda Nzarayapenga &amp; Partners</em>, respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2018/49/2018-zwsc-49.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=54759">2018-zwsc-49.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2018/49/2018-zwsc-49.pdf" type="application/pdf; length=212807">2018-zwsc-49.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/church">CHURCH</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/dispute">Dispute</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/property">Property</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/locus-standi">Locus standi</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2013/10">Bishop Jakazi &amp; Others v Anglican Church of the Province of Central Africa &amp; Others (118/10) [2013] ZWSC 10 (20 February 2013);</a></div></div></div> Thu, 25 Oct 2018 10:00:13 +0000 admin 9122 at https://old.zimlii.org