Court name
Supreme Court of Zimbabwe
Case number
SC 2 of 2008
Civil Application 17 of 2008

Diocese of Harare v Church of the Province of Central Africa and Another (Civil Application No. 17/08 ) (SC 2 of 2008, Civil Application 17 of 2008) [2008] ZWSC 2 (12 February 2008);

Law report citations
Media neutral citation
[2008] ZWSC 2
















REPORTABLE (2)


Judgment
No. SC 2/08


Civil
Application No. 17/08








DIOCESE
OF HARARE v





(1)
CHURCH OF THE PROVINCE OF CENTRAL AFRICA


(2)
RETIRED BISHOP SEBASTIAN BAKARE








SUPREME COURT OF
ZIMBABWE


HARARE, FEBRUARY 6 &
13, 2008








V Chizodza, for
the applicant





E Matinenga,
for the respondents






Before: CHIDYAUSIKU  CJ, In Chambers






This is an urgent Chamber application in which the applicant seeks
the relief set out in the following amended draft order:






“(1) The Notice of Appeal filed by the respondents in the
matter SC 17/08 be and is hereby declared as being of no force

and effect and is hereby struck out.







(2) The High Court’spviosio







(c) That the second respondent be and is hereby interdicted from
holding himself out as a Bishop of the applicant, and conducting
his
Ministry as such.







(d) That the respondent(s) pay the costs of this application.”











At the commencement of the hearing, I advised the parties that it
was not competent to seek the relief set out in paras (b) and
(c) of
the draft order. Accordingly, the matter proceeded on the basis
that this was an application to determine whether the
appeal against
the judgment of HUNGWE J should be heard or set down on an
urgent basis. The wording of para (a) of
the draft order
leaves a lot to be desired. The relief sought in that paragraph is
not that clear. I have assumed that the
applicant in that paragraph
is applying for the set down of the appeal on an urgent basis.







The facts of this matter are very ably set out in the judgment by
MAKARAU JP in judgment no. HC 345/08. However,
for the
purposes of this application, I set out hereunder the following facts
which are common cause –







The parties to this dispute are members of the Anglican Church that
has now split into two formations. Following the split,
there is a
raging dispute as to which of the formations is legitimate. Access
to and use of the church premises and property
is hotly contested.
The dispute between the parties has given rise to multiple litigation
and court applications. I will only
refer to those applications
that have a bearing on this matter.







On 3 December 2007 the Diocese of Harare made an urgent
Chamber application wherein it sought a provisional order against
the
respondents. The provisional order sought interim relief pending
the granting of final relief, which was set out in the provisional

order. It reads as follows:






TERMS OF FINAL ORDER SOUGHT







That the first and second respondents and their supporters or
followers be and are hereby interdicted from conducting Church
services
on any property controlled by the applicant or from holding
themselves out as being part of the applicant pending finalisation of

case no. HC 6464/07.







That the first and second respondents shall pay the costs of suit.







TERMS OF THE INTERIM ORDER GRANTED







Pending the finalisation of this matter, the applicant is granted the
following interim relief –







That the first and second respondents and their followers be and are
hereby interdicted from conducting Church services in properties

controlled by the applicant, or interfering with the business and
ministry of the applicant.







That the second respondent be and is hereby interdicted from holding
himself out as a Bishop of the applicant, and conducting his
ministry
as such.”











HUNGWE J reserved judgment. Although this matter was herd on
an urgent basis, judgment was handed down almost two months
later.
This is unacceptable. In similar urgent applications MAKARAU JP
and KARWI J handed down judgments within two
days of hearing the
matter. This is how it should be.







In between the hearing of the matter and the handing down of the
judgment, two further applications between the same parties
were
heard and judgment given. Thus, on 18 January 2008 an urgent
Chamber application regarding the use of and access to
the Church
premises was made. The following day, on 19 January 2008,
MAKARAU JP delivered her judgment, the operative
paragraph of
which reads as follows:







“1. Pending determination of (case no.) HC 6544/07
(6464/07),







(a) The fourth respondent (Dr Kunonga) and all those acting
under his authority shall have use of the Church premises at times

previously slotted for such activities prior to 21 September
2007.







(b) The fourth respondent and all those acting under his authority
shall make Church premises available to the applicant (now the
first
respondent) ninety minutes after its activities as detailed in (a)
above.







(c) the above time slots may be varied by the parties at parish level
provided that such variation is reduced to writing and communicated

to the first, second and third respondents.







(d) Both the applicant and all those acting under its authority and
the fourth respondent and those acting under his authority
are not
interfering with the activities of the other exercised in terms of
this order.







(e) Each party shall pay its own costs.”







Soon after the handing down of the judgment of MAKARAU JP a
dispute as to the meaning of that judgment arose and that led
to
another Chamber application by the respondents. This application
was launched on 29 January 2008. KARWI J handed
down
judgment on 31 January 2008, two days after the hearing of the
application. In that judgment KARWI J provided
clarification
of MAKARAU JP’S judgment, in particular in regard to the
times at which the different formations of the
Church should have
access to the church premises. Thus, as of 19 January 2008 the
judgment of MAKARAU JP, as clarified
by KARWI J, regulates
the access to the church premises by the two formations pending the
determination of the dispute between
the two formations in case no.
HC 6464/07.







On 31 January 2008, as I have already stated, HUNGWE J
handed down his judgment. HUNGWE J’s judgment is
to the
effect that the applicant is non-existent and has no locus standi
to bring the matter to court. This judgment in effect determined
the issues raised in the main case between the parties, case

no. HC 6464/07. I am advised the main case, case
no. HC 6464/07, is at pleadings stage. The plea has yet

to be filed. The applicant takes issue with the judgment of
HUNGWE J. The applicant has filed a notice of appeal on the

following grounds:






GROUNDS OF APPEAL







1. The Honourable Judge misdirected himself in finding that the
applicant had no locus standi in judicio to sue for an
interdict.







2. The Honourable Judge erred in finding that there are procedures
set out in the Constitution of the Church of the Province of
Central
Africa for a withdrawal of a Diocese from a Province without evidence
on the same.







3. The Honourable Judge further erred in finding that the
Constitution of the Church of the Province of Central Africa applied

to the withdrawal of a Diocese in a situation where such Diocese is
paramount and self-governing in that it is governed by a Diocesan

Act, and merely fellowships with a Province and the Universal
Anglican communion so much as much to oust the jurisdiction of the

Archbishop of Canterbury and the Church of England over the Diocese
of Harare.







4. The Honourable Judge misdirected himself where (when?) he found
that the applicant did not exist at law.







5. The Honourable Judge erred in finding that the applicant needed
the adoption of an Act made by Synod, in clear circumstances
where
Acts of Synod do not need adoption after the close of Synod.







6. The Honourable court erred in finding that the lawsuit before it
was at the instance of … Bishop Nolbert Kunonga
and a few
of his sympathisers, without evidence that there was no majority vote
at Synod and that Synod did not constitute a quorum
when it made the
Diocesan Act so much as to render the Act null and void.







7. The Honourable Court misdirected itself when it found that there
was (sic) the essential elements for spoliatory relief or an
interdict were not available so much as to render the order sought
incompetent.







Wherefore the appellant prays that the appeal may succeed against the
respondent and for the judgment of (the) court a quo to
be set aside and substituted by the following –







i) The appeal be and is hereby granted.







ii) The provisional order granted in case no. HC 3208/07 be and
is hereby set aside.”











It is common cause that the main dispute between the parties is
awaiting determination in case no. HC 6464/07. That matter
is
proceeding by way of court action and the pleadings are yet to be
completed. The applicant’s complaint in the notice
of appeal
and indeed in the submissions before me is that HUNGWE J
misdirected himself by determining issues that are to be
determined
in case no. HC 6464/07 when the main matter goes to trial.
Those issues, it was argued, should be determined
after a full trial.
The issues should not have been determined in a chamber application
for the issuance of a provisional order
seeking to govern the
relationship between the parties in the interim period while awaiting
completion of the main case, no. HC 6464/07.
It was the
applicant’s contention that the judgment of HUNGWE J will
have the effect of tying the hands of the Judge
who will adjudicate
in case no. HC 6464/07.







While I accept that the applicant’s contention has substance,
it is not relevant to the issue that I have to determine
in this
Chamber application, namely whether the appeal should be set down on
an urgent basis or not. The applicant’s contention
will have
to be determined in the appeal.







The applicant contends that the matter should be set down as a
matter of urgency, while the respondents contend the matter should

not be set down on an urgent basis. Rationality seems to have
abandoned all the parties and nobody is prepared to make even the

most obvious of concessions. The parties could not even agree on
whether the appeal should be set down as soon as possible.







The interim use of the church premises is presently governed by the
judgment of MAKARAU JP which sets out how the parties
are to
access the church premises. As there is an order regulating the
interim use of the church premises, I see no need to set
down the
appeal against the judgment of HUNGWE J on an urgent basis.
The judgment of HUNGWE J has no bearing on the
interim
arrangement over the use of the church premises.







I, however, accept that the dispute between the parties should be
resolved as a matter of urgency. This is common cause.
The
parties are agreed that case no. HC 6464/07 should be completed
as soon as possible, but blame each other for lack of
progress
towards finalisation of the main case. In my view, the appeal
against the judgment of HUNGWE J should be determined
before the
main trial in case no. HC 6464/07. This gives some urgency to
the set down of the appeal. The determination
of the appeal should
not delay the finalising of case no. HC 6464/07.







I have therefore come to the conclusion that this matter should be
set down on the next set down date of this Court, which I
am advised
is some time in mid-March. The Deputy Registrar is so directed.
This order is made on the understanding that a record
of the
proceedings will be prepared within two weeks of the date that this
matter was heard. The undertaking regarding the availability
of the
record was given by the applicant. In the event of an appeal
against the judgment of MAKARAU JP (the applicant indicated
that
such an appeal was likely to be noted), it would be advisable to
consolidate the two appeals to avoid multiple appeals.
The
necessary application for consolidation should be made timeously.







In the result, it is ordered that the Deputy Registrar set down
this matter on the next set down date available in this Court.

Costs will be costs in the cause.



















M V Chizodza-Chineunye, applicant's legal practitioners



Gill, Godlonton & Gerrans, respondents' legal
practitioners