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        HB 81-15

                                                                                                                                          HC 596-15

GUTA RA MWARI

versus

MOSES MANZINI

and

JEKONIA NKATHA

and

DENNIS NDIWENI

and

DONALD SIBANDA

and

ELIPHAS NKATHA

and

MATHAMBO

and

GUTA RA MWARI

IN THE HIGH COURT OF ZIMBABWE

KAMOCHA J

BULAWAYO 3 MARCH & 2 APRIL 2015

Urgent Chamber Application

N. Nyathi, for applicant

Z. Ncube for respondents

            KAMOCHA J:          The applicant in this matter brought this application under a certificate of urgency seeking an order whose interim relief is as follows:-

            “Interim Relief granted

            Pending the finalization of this matter, applicant is hereby granted the following relief:-

1. That the 1^st, 2^nd, 3^rd, 4^th, 5^th, 6^th and 7^th respondents, its (sic) assignees, members, agents or personnel be and are hereby prohibited from attending at, setting foot or interfering with applicant’s church services or normal business activities at the following branches of the applicant:

1. 56008 Old Lobengula Bulawayo
2. 9275 Pumula East, Bulawayo
3. 596 Cowdray Park, Bulawayo
4. 2534 Nkulumane 5, Bulawayo
5. 65470 Tshabalala, Bulawayo
6. 6815 Emganwini, Bulawayo
7. 42075 Makokoba, Bulawayo
8. 16722 Nkulumane 12, Bulawayo
9. 24570 Pumula South, Bulawayo
10. 4102 Emakhandeni, Bulawayo
11. 8674 Luveve, Bulawayo
12. 6739 Nketa, Bulawayo
13. 73571 Lobengula West, Bulawayo
14. 8583 Glen Norah B, Harare
15. 14222 Jongwe Street, Mucheke, Masvingo
16. 115 Mafuta, Rimuka, Kadoma
17. 633 Belmont, Nkayi
18. 1063 Emathendele, Plumtree
19. 6562 Mkhosana Township, Victoria Falls
20. 2605 Dulibadzimu, Beitbridge
21. Tsholotsho Business Centre
22. Mawabeni Business Centre
23. Inyathi business Centre
24. Ntabazinduna Business Centre
25. St Lukes Business Centre, Lupane
26. Siganda Business Centre
27. Stand 111 Nharira
28. 4139 Ultra, Gwanda
29. Mathendele Business Centre, Nswazi
30. Godlwayo Communal Area
31. Buvuma Branch, Gwanda South (Chief Marupi)
32. Ntepe Branch, Gwanda South (Chief Nhlamba)
33. Magwe Branch, Gwanda South (Chief Mathe)
34. Maheche, Matobo Communal Area
35. Hobodo, Mangwe Communal Area
36. Ngwizi Branch, Mangwe Communal Area
37. Makorokoro, Mangwe Communal Area
38. Sanzukwi Branch, Sanzukwi Communal Area
39. Chenje Branch, Jambezi Communal Area (Chief Shana)
40. Mbizha Branch, Jambezi Communal Area (Chief Shana)
41. Indlovu Branch, Jambezi Communal Area (Chief Mvuthu)
42. Stand 14504 Mbizo Township, Kwekwe

The terms of the final order sought were as follows:-

“Terms of the final order sought

It is ordered that:-

(1)The conduct of all the respondents of interfering with the church service of the applicant on 1 March, 2015 at Godlwayo, Insiza, be and is hereby declared to be unlawful.

(2)Costs of suit on a higher scale.”

These parties have been to court before in the case of Guta Ra Mwari vs Guta Ra Mwari – Religion and 2 Others HC 1300/14 judgment number HB-172-14.  In that case the applicant was granted a final order in the following terms:-

“(1)      the provisional order granted on 6^th June 2014 be and is hereby confirmed.

(2)        the respondents and/or their agents or assignees be and are hereby permanently barred from unlawful impeding, interfering in any manner or fashion with applicant’s peaceful and undisturbed church services at all its branches throughout Zimbabwe, and wherever situate. Emphasis added

(3)        The respondents are ordered to pay costs of suit.”

This final order is still exitant and yet the applicant is again seeking the same relief in this matter except that applicant this time around named 42 branches.  The applicant overlooked the fact that the 42 branches named in this application are part of all branches in Zimbabwe.

For the reasons only best known to the applicant no mention of the above existing court order was made.  In paragraph 26 of the founding affidavit the deponent mentioned that the same parties were involved in some litigation with each other under cases number HC 1300/12 and HC 1213/14.  The deponent however, did not mention that applicant had an existing court order in its favour over the same issue.

            This matter, therefore cannot be urgent.  Neither can the matter be urgent because the applicant, in the final order, is seeking a declaratur that the conduct of all the respondents of interfering with the church service of the applicant on 1 March 2015 at Godlwayo, Insiza, was unlawful.  This application was only filed five days after the event on 6 March 2015.  There is no basis for bringing the application on certificate of urgency.

            The application is clearly not urgent and does not deserve to jump the queue and is ipso facto dismissed with costs.

Phulu & Ncube applicant’s, legal practitioners

Calderwood, Bryce-Hendrie & Partners, respondent’s legal practitioners