Religious Indoctrination and Extremism

HH111-09 : ELLEN SIMON vs FUNDA SAIMON
Ruled By: KUDYA J

The plaintiff sues for the eviction of the defendant from her plot while the defendant counter-sues for the transfer of title, rights and interest in a portion of the same plot. The plaintiff testified and called the evidence of two other witnesses who were her daughter, Eneresi Simon, and an employee of the Epworth Local Board, Cagewell ...

The plaintiff sues for the eviction of the defendant from her plot while the defendant counter-sues for the transfer of title, rights and interest in a portion of the same plot.

The plaintiff testified and called the evidence of two other witnesses who were her daughter, Eneresi Simon, and an employee of the Epworth Local Board, Cagewell Muzangaza. The defendant gave evidence and called the testimony of two other witnesses who were Pastor Elizabeth Nyakudanga and Tedius Kagande. A total of six (6) documentary exhibits were produced by both parties.

THE PLAINTIFF'S CASE

The plaintiff is an 83 year old woman. She cannot read or write. She has difficulty in walking. According to her summary of evidence, her husband died on 18 February 1982. In their pleadings, both parties accepted that she was appointed an executrix dative on 22 August 2007 and subsequently became the legal holder of the rights, title, and interest in Stand 1125 Makomo Extension, Epworth in Harare.

After the death of her husband she survived on handouts from well-wishers. She became a member of the Ambassadors for Christ Ministries; a church led by, amongst others, Tedius Kagande. Kagande doled out handouts to her, and, purporting to act under the auspices of the church, built for her a more habitable two roomed structure on the Stand in question. He requested her to sign a certain document on which he purportedly wrote out her grandchildren's names and the materials required for the construction of the more habitable structure. She did not know whether he built it from his or church funds. Thereafter, he introduced her to the defendant, who was a teacher by profession, and a member of the same church. The defendant was supposed to look after her. She allowed the defendant to build another two-roomed house for his use on the Stand after she was assured that he would be there for a short while. The defendant has been ensconced on her Stand for the past nine (9) years. He neither pays rentals nor municipal charges.

She was adamant that she did not sell the smaller portion for $16,000= or the bigger one for $23,000=. She disputed executing exhibit 1A and 1B averring that she was illiterate. She denied seeking the subdivision of the Stand in 2000. She averred that it was in 2008 that she went with the defendant to the Epworth Local Board to have the dispute resolved; and not to seek the subdivision of the Stand.

She was cross examined.

She considered Tedius Kagande as a leader of the church in Epworth and did not know Pastor Nyakudanga and Pastor Matyora. She disputed that she advised Kagande, in 1999, that she was selling a portion of her Stand. She denied receiving $16,000= in the presence of Tedius Kagande, the defendant's wife, and her daughter, Eneresi Simon. She disputed that the amount in question was used by Tedius Kagande in the construction of her two rooms. She denied requesting Eneresi Simon to sign exhibit 1A on her behalf before a Commissioner of Oaths. She also denied executing exhibit 1B. She disputed using her daughter to sign legal documents on her behalf.

She related how the defendant sought to evict her from her Stand at the Magistrates' Courts. She did not appear to be aware of exhibit 2, the warrant for the ejectment of the defendant which she obtained on 3 August 2001 in the Magistrates Court; exhibit 3, the affidavit signed on 16 May 2001, in her name, in the hand similar to that of her daughter in exhibit 1A and exhibit 4; her application for a peace order dated 13 December 2001 in which she graphically set out how the defendant was disturbing her peace. She denied attending a funeral in Malawi using the proceeds of the sale of a portion of the Stand. She was given money by her daughter who was her breadwinner. She denied informing Pastor Nyakudanga and Charles Shamuyarira of the sale of a portion of her Stand to the defendant.

Eneresi Simon stated that her mother never sold a portion of the Stand to the defendant. She identified exhibit 1A as the blank document on which she wrote out the plaintiff's name and national identity number. She stated that her mother did not sell a portion of the Stand for $16,000= or $23,000=. She denied signing exhibit 1A before a Commissioner of Oaths.

She stated that her mother's trip to Malawi was funded by her daughter-in-law in Malawi. In 2008, she accompanied her mother and the defendant to the Epworth Local Board offices where they saw Mr. Muzangaza. The plaintiff was against the subdivision of her Stand.

She was cross-examined.

She admitted to signing a blank exhibit 1A but denied signing exhibit 1B. She stated that the defendant sought to evict the plaintiff notwithstanding that exhibits 2 and 3 indicated her mother as the plaintiff. That the defendant sought to evict the plaintiff from the Stand was confirmed by exhibit 6, the summons issued out of the Magistrates' Court by him on 27 June 2002. She denied signing for her mother in exhibit 3 and 4. She disputed that $16,000= was paid in her presence. She averred that her mother, who is of Nyanja origin, could not converse in Shona.

Cagewell Muzangaza is a Building Inspector for the Epworth Local Board. In that capacity he deals, inter alia, with sub-divisions of residential Stands in Epworth. He told the court that the Stand is registered in the plaintiff's name. He stated that temporary structures, which are not based on an approved plan, are on the Stand. He explained that a subdivision of a Stand is initiated by the registered holder who writes to the local authority and fills in a special document to this effect identifying to whom the sub-division is to be registered. The Housing department vets the information and makes its recommendations and forwards these to his department. The witness checks the Stand on his master plan prepared by town planners and approved by the Department of Physical Planning in the Ministry of Local Government to satisfy himself whether it is feasible to subdivide the Stand. He forwards his recommendations to the Urban Development Corporation (UDCORP). He stated that it is only the local authority which approaches UDCORP and not the registered holder, or, for that matter, anyone else.

He stated that in the file of the Stand in his custody is a request purportedly made by the plaintiff in 2000 for a subdivision in favour of the defendant. The application was rejected for two reasons. Firstly, she was not the registered holder; her husband was, and, secondly, there was no subdivision permit for the Stand.

He further revealed that on 20 December 2007 the Urban Development Corporation (UDCORP) wrote an unsolicited letter, exhibit 5, to the local authority. The local authority ignored it because it had not originated from it. He categorically stated that a sale of a portion of a Stand cannot be approved by the local authority prior to sub-division.

He was cross examined.

He disputed the averment that he was interested in the portion that was allegedly disposed to the defendant. He denied that the Urban Development Corporation (UDCORP) wrote its letter in response to that of the local Board. At one time in 2008 the parties came to see him. The defendant wanted sub division but the plaintiff was against it as the matter was pending in Court and alleged that the defendant was forcing her to sub-divide the Stand.

As will more fully appear when I determine the issues referred to trial, I believed the plaintiff and her witnesses. They gave consistent and credible testimony.

THE DEFENDANT'S CASE

The defendant stated that he purchased a portion of the Stand from the plaintiff through the medium of Tedius Kagande. He paid $16,000= to the plaintiff in the presence of his wife, Tedius Kagande and Eneresi Simon in September 1999. They drove into town to Mr. Gode, a Commissioner of Oaths, before whom Eneresi Simon signed for her illiterate mother on exhibit 1A. The plaintiff persuaded him to buy the bigger portion of the Stand by an additional payment of $7,000=. She accepted periodic payments.

The latter agreement was recorded as exhibit 1B and executed for the plaintiff by her daughter, Eneresi Simon.

He commenced construction and started to reside on the Stand on 1 February 2000. Even though the Stand was in her late husband's name, the plaintiff submitted an application for sub-division to the local Board. The application failed because the plaintiff had not constructed the main house on the Stand. The plaintiff was not in a position to do so; so he suggested that he build the main house and have it registered in his name. She took the view that he wanted to evict her and all hell broke loose.

The plaintiff issued summons for his eviction and obtained a default judgment on 19 May 2001, in case number 7926/2001, as shown in exhibit 2. She deposed in an affidavit, exhibit 3, on 16 May 2001, that the defendant was her grown up son who was giving her problems. It was purportedly signed by her; her full names were handwritten above her typed name.

He confirmed the visit to Cagewell Muzangaza in 2008 where the plaintiff refused to have the Stand sub-divided into his name. He produced exhibit 5, a letter written to the local Board by the Urban Development Corporation (UDCORP) on 20 December 2007 for Stand 1171. The typewritten Stand number 1171 was cancelled by pen and the number 1125 inserted. The cancellation was not countersigned. It does not refer to any previous correspondence from the local authority. Its authenticity is questionable. In my view, it does not assist the defendant in his case.

He was cross-examined.

He stated that he borrowed $16,000= from his employers. Tedius Kagande told him of the purchase price and it was confirmed by the plaintiff. Tedius Kagande's young brother authored exhibit 1A. He further averred that the sum of $16,000= was paid in the presence of the young brother after he had drafted exhibit 1A. On 28 October a new agreement on the additional payment for the bigger portion was executed. The typed agreement, exhibit 1B, was typed by Tedius Kagande at his town offices. By then, the plaintiff had commenced building her two roomed structure. He commenced building on the portion sold to him after the execution of exhibit 1B. He paid the installments of $7,000= in two batches of $3,000= and 4,000= in February and April 2000, respectively, to the plaintiff in the presence of Eneresi Simon.

He disputed issuing summons to evict her contrary to exhibit 6, the summons in his name dated 27 June 2002, for the eviction of the plaintiff alleging he had purchased the Stand. He maintained buying the bigger portion of the Stand and denied conniving with Tedius Kagande to defraud the plaintiff of a portion of her Stand.

He called the evidence of Elizabeth Nyakudanga, a pastor of the church attended by the parties in 1999. The pith of her testimony was that the plaintiff informed her that she had sold a portion of the Stand so that she could use the proceeds to build a better house. Her church was not involved in humanitarian work at the time of the sale.

Under cross examination, she alleged that the defendant paid the full amount of $23,000= in 1999. She revealed that the defendant refreshed her memory of the events of 1999 in January 2009.

The last witness to testify for the defendant was Tedius Kagande. He stated that he was asked by the plaintiff to find a buyer and he connected her to the defendant. He took him to the plaintiff and handed $16,000= to Eneresi Simon who was with the plaintiff. On his suggestion exhibit 1A was executed. It was drawn up by his young brother and signed before a Commissioner of Oaths.

He built the cottage of cement blocks for her after listing the required materials. The materials cost half the amount paid by the defendant. He did not charge her for his labour. He did not supply her with free food handouts. She later approached him for the sale of the bigger portion and he referred her to the defendant. He was not involved in the latter agreement.

Under cross examination, he revealed that the defendant raised the purchase price without viewing the Stand. The price was fixed by the plaintiff and her daughter. His brother was not at the plaintiffs where the money was paid but was in town. The first agreement was signed at his town offices and taken to a commissioner for affirmation only. He denied cheating the plaintiff.

For the reasons that will become apparent when I determine the issues referred to trial, I found the defendant and his witnesses incredible witnesses.

THE ISSUES

At the pre-trial conference that was held on 1 July 2009, the matter was referred to trial on the issues set out in the defendant's minute of 20 May 2009. The issues for determination are as follows:

1. Whether the plaintiff sold to the defendant a subdivision of Stand 1125 Makomo, Epworth.

2. Whether the plaintiff should cede or assign her rights, interests and title to the subdivision to the defendant.

3. Whether the plaintiff is entitled to evict the defendant from the property.

RESOLUTION OF THE ISSUES

1. Whether the plaintiff sold to the defendant a subdivision of Stand 1125 Makomo, Epworth

The onus to show that an agreement of sale was executed lies on he who avers that such an agreement was concluded. In the present matter the incidence of proof falls on the defendant.

He relied on exhibit 1A and 1B.

Exhibit 1A is a pro forma of an affidavit that is sold at Kingstons Booksellers and Stationers. It was common cause that the name of the deponent and her national identity number and address were handwritten by Eneresi Simon. Eneresi stated that she was the one who wrote out the plaintiff's name, national identity card, address and signature in exhibit 1A.

The plaintiff purportedly swore that she had sold a subdivision of Stand 1125 Makomo to the defendant who had paid the full amount of $16,000=. She further indicated that she was granting him change of ownership. The affidavit was purportedly executed on 23 September 1999 before R. Gode, a Commissioner of Oaths.

The defendant did not disclose where exhibit 1A was drawn. He stated that it was signed before the Commissioner of Oaths by Eneresi Simon in the presence of the plaintiff because the plaintiff could not read or write.

The defendant's witness, Tedius Kagande, disclosed that the affidavit was purchased at Kingstons when the parties were on their way to his town offices. Kagande further indicated that the contents of the affidavit were written by his young brother at his town offices and signed by Eneresi Simon before the parties proceeded to a commissioner of oaths. The commissioner of oaths simply confirmed with the plaintiff the contents of the affidavit.

The version of the plaintiff and her daughter differed from that adduced by the defendant. The plaintiff stated that Tedius Kagande brought the affidavit, in the absence of her daughter, and requested her to fill in her personal details and signature ostensibly as a record of the building materials he would purchase for her. The daughter confirmed that when she visited her mother, as she was wont to do at the end of each month, she wrote out her mother's details and signed the affidavit for her. Both mother and daughter were adamant that Eneresi Simon signed a blank document and denied the present contents in the affidavit.

The versions of the defendant and Tedius Kagande were contradictory on whether Eneresi Simon signed the document before a commissioner of oaths or prior to the visit.

A commissioner of oaths worthy his salt would have requested the plaintiff to append her mark and thumb print on the document. He would have known that it was improper for Eneresi Simon to sign as the plaintiff without indicating that she was signing as her duly authorised agent.

The defendant did not disclose why and how Tedius Kagande's young brother became involved in the matter.

It does not appear that the plaintiff was ever given a copy of the affidavit in question.

Neither Tedius Kagande's young brother nor the Commissioner of Oaths was called to confirm the versions of the defendant and Tedius Kagande.

The two defence witnesses also contradicted each other on when the money was paid. Tedius Kagande averred that it was paid at the plaintiff's home. The defendant prevaricated. In his evidence in chief he averred that it was paid at the plaintiff's home while under cross examination he alleged that it was paid after the affidavit had been compiled.

While the defendant stated that Tedius Kagande's young brother was present at the plaintiff's home when the money was paid, Tedius Kagande stated that his young brother was never at the plaintiff's home. Notwithstanding that, Kagande was of the view that the purchase price of $16,000 was too high in comparison with similar Stands in Glen View at the time. The defendant borrowed the money and paid it before he had visited the site. He did not negotiate for a lower price.

The contradictions in the defendant and Tedius Kagande's testimonies and the other shortcomings that I have highlighted show that exhibit1A is a questionable document. I am not satisfied that the defendant has discharged the onus on him to show, on a balance of probabilities, that it was executed by the plaintiff.

Exhibit 1B was purportedly executed on 28 October 1999.

The plaintiff purportedly sold her rights in the portion of the Stand where the main house was to be built for an additional payment of $7,000=. The amounts were to be paid on 30 February and 30 April 2000 in the sum of $4,000= and $3,000= respectively.

Again, the document indicates that the plaintiff signed the document. The defendant averred that it was signed by Eneresi Simon for her mother. The signature in exhibit 1B appears to be similar to the one in exhibit 1A and exhibit 3. The latter was an affidavit filed by the plaintiff for default judgment against the defendant but is different from the one in exhibit 4, an ex parte application for a peace order that she filed on 13 December 2001.

The defendant alleged that exhibit 1B was typed by Tedius Kagande. In his testimony, Tedius Kagande expressed ignorance about it. Unlike the defendant, Kagande alleged that he facilitated the purchase of the larger portion of Stand 1125. The defendant alleged that he paid the $7,000= on the due dates. He did not produce any proof of payment. The agreement records 30 February as a date for the payment of the first installment. Such a date does not exist. The application failed because the plaintiff was not then the registered holder of rights in the property, as averred by Cagewell Muzangaza and not because of the absence of a main house on the Stand, as alleged by the defendant.

The contradictions outlined above call into question the authenticity of exhibit 1B, especially in the face of the denials by the plaintiff and her daughter that they were involved in its creation and execution.

Counsel for the defendant submitted that the agreements were authentic. He predicated his submission on the basis that the plaintiff permitted the defendant to build a cottage on the Stand and allowed him to reside thereat without paying rentals.

The plaintiff stated that she fell under the influence of Tedius Kagande, whom she trusted as an elder in her church and as a philanthropist who helped her with food handouts and built a two-roomed cottage for her.

I found that her age and low intellect adequately explained her naivety, which Tedius Kagande and the defendant exploited to the latter's advantage.

HH427-15 : THE PROSECUTOR GENERAL vs PHIBEON BUSANGABANYE and MAGISTRATE N MUPEIWA N.O.
Ruled By: MATHONSI J

This is a matter rising out of the trial of one Anderson Tagara at the Magistrates Court Harare on a charge of fraud as an accessory after the fact in contravention of section 206 as read with section 136 of the Criminal Law Code [Chapter 9:23]. At the conclusion of that trial, Anderson Tagara was found guilty ...

Appealed
SSC78-14 : ROBERT GUMBURA vs THE STATE
Ruled By: PATEL JA

The appellant is the pastor of his own church based in Marlborough, Harare. He was convicted by the Harare Magistrates Court on 3 February 2014 of four counts of rape and one count of contravening section 26 of the Censorship and Entertainment Control Act [Chapter 10:04] i.e. possession of pornographic material.

He was sentenced to a term of 50 years imprisonment with 10 years suspended on condition of good behaviour. He has since appealed to the High Court against his conviction and sentence.

That appeal is pending.

The appellant also applied to the High Court, as a court of first instance, for bail pending appeal. His application was dismissed. He now appeals against that decision in terms of section 121 of the Criminal Procedure and Evidence Act [Chapter 9:07].

The court a quo found that the evidence of the complainants, in relation to three of the four counts of rape, was credible in material respects. The court also found that the complainants' reports of the alleged rapes were voluntarily made and that, although the delays in making those reports were lengthy, the reasons given for those delays were plausible. Moreover, the sentences imposed by the magistrate, in respect of the rape counts, were appropriate.

As regards the censorship offence, the court a quo found that the evidence adduced as to the possession of obscene material was sound and that the appellant had no lawful excuse for his possession of that material. However, the sentence imposed for that offence was probably defective as the magistrate had advanced no reasons for sentence on that count.

In the event, the court a quo held that the appellant generally had no prospects of success on appeal and dismissed his application for bail. The court also held that there had been no violation of his constitutional rights to liberty and a fair trial.

The principal ground of appeal herein is that the Magistrates Court did not properly analyse the evidence before it and that, therefore, the case, on appeal, was arguable. Moreover, this cursory analysis of the evidence violated the appellant's constitutional rights.

Additionally, the High Court erred in disregarding the effect of the magistrate's mistaken references to cases dealing with mentally defective victims of rape. The High Court also erred in finding plausible explanations for the inordinate delays in reporting the alleged offences. Again, the reports were made in circumstances showing a likelihood of their having been made in response to leading, inducing, or intimidating questions.

Having regard to all of the foregoing, the central issue for determination in this matter is whether the court a quo erred or misdirected itself in finding that there were no prospects of success on appeal from the decision of the Magistrates Court.

The test to be applied in this regard is relatively uncomplicated: Is the appeal “reasonably arguable and not manifestly doomed to failure?” See State v Hudson 1996 (1) SACR 431 (W).

The main point taken by counsel for the appellant is that the learned magistrate did not evaluate the evidence and assess the credibility of witnesses on the rape charges (Counts 3, 7, 8 and 9). He thereby erred in accepting the evidence of a single witness without adequate analysis in respect of each Count.

Count 3 relates to Precious Kapfumvuti (Precious).

Her evidence was that she was raped on several occasions during the period stretching from 2007 to 2013, having succumbed to the appellant's exercise of authority rather than physical force.

It is submitted, for the appellant, that, her assertion of having been subjected to indoctrination cannot be sustained. She understood the nature of the sexual acts that she engaged in and the appellant's influence could not have deprived her of the capacity to give her informed consent. Moreover, her explanation for having reported the alleged rapes at a late stage is totally unreasonable. She could have reported the matter to various people over the years and after she left the appellant's premises in 2013. It is further submitted that her misrepresentation of certain biblical passages that she relied upon while giving evidence in court rendered her veracity questionable.

In short, she willingly subjected herself, sexually, to the appellant as an integral part of worshipping him and then later changed her position after talking to others.

Counsel for the respondent submits that the appellant stood in the position of being a guardian over Precious Kapfumvuti. She received counselling and religious teachings from him, including the notion that a master could do as he willed with his servant. The subjective effect was that she believed what she was told by the appellant about his authority and that differences between them should not be taken to court for fear of her being placed in the hands of Satan. It is further pointed out that she did report her first rape to a fellow congregant but no assistance was forthcoming. Thereafter, she was always accompanied or guarded either by the appellant's principal wife or by his brothers. She therefore remained silent out of fear and eventually escaped after realizing that what the appellant was doing to her was wrong.

Count 7 pertains to Winnie Sakahuhwa (Winnie).

Counsel for the appellant submits that she was aware of the appellant's reputation before she went to stay with him in December 2011. Nevertheless, she allowed herself to be sexually intimate with him. In effect, she consented to sexual intercourse because of his authority and understood sex with him as being necessary to create a bond between them. Moreover, her account of one of their sexual encounters is physically improbable in terms of their respective bodily positions. She admits to having denied any sexual assault when queried by at least three other people and did not even confide in her mother after police investigations had commenced. Additionally, her mother's evidence does not corroborate that of Winnie Sakahuhwa and the former could not explain why the latter did not confide in her. Again, Winnie did not make any report to the representatives of Child Line who attended her school for counselling.

For the State, it is submitted that Winnie Sakahuhwa was warned by the appellant not to make any report because she would then be placed in the hands of Satan. She genuinely believed his teachings. She did not tell her mother anything about her sexual assaults because her mother suffered from hypertension and she did not want her to be over-stressed. Furthermore, she did not report her predicament to anyone else because the appellant claimed that the police belonged to him. She only reported the matter to the police after learning of his arrest and realising that he was not invincible.

Counts 8 and 9 relate to Hazvinei Samanyanga (Hazvinei).

As is correctly pointed out by counsel for the appellant, the court a quo entertained considerable doubt as to the propriety of the appellant's conviction on Count 9.

The learned judge found that it was possible that she may have been raped on the first occasion (Count 8) as her evidence was credible on that score. However, she appears to have acquiesced to sexual intercourse on the subsequent occasions (Count 9), having voluntarily returned to the appellant's residence during weekends.

Moreover, she spent several months in South Africa before reporting the matter to the police when they contacted her in connection with Precious Kapfumvuti.

These are matters that were not adequately interrogated by the Magistrates Court.

Counsel for the respondent submits that Hazvinei Samanyanga's evidence, on Count 8, shows that she was forcibly raped on the first occasion and that the appellant was correctly convicted on that Count. He concedes, however, that her conduct in respect of Count 9 was inconsistent with the absence of consent, particularly as she continually returned to the appellant's residence of her own accord.

Count 10 pertains to the appellant's unlawful possession of two obscene DVDs.

There is no doubt that the appellant was properly convicted on this Count.

At the hearing of this appeal, counsel for the appellant quite correctly abandoned the technical point raised in his heads of argument as to the propriety of inspecting the material in question after the appellant was arrested.

As regards the concurrent sentence of four (4) months imprisonment imposed by the learned magistrate, the court a quo highlighted the obvious misdirection of the magistrate in failing to provide any reasons for sentence.

In any event, as was accepted by counsel for the appellant, this misdirection has been rendered academic and irrelevant by the fact that the appellant has already served four (4) months in prison following his conviction on 31 January 2014.

As regards the credibility of witnesses, the general rule is that an Appellate Court should ordinarily be loathe to disturb findings which depend on credibility.

However, as was observed in Santam BPK v Biddulph (2004) 2 ALL SA 23 (SCA), a court of appeal will interfere where such findings are plainly wrong.

Thus, the advantages which a trial court enjoys should not be over-emphasised. Moreover, findings of credibility must be considered in the light of proven facts and probabilities.

In the instant case, the learned magistrate convicted the appellant on four out of the total nine counts of rape. He rejected the testimony of three complainants and acquitted the appellant in respect of the five counts pertaining to them.

With respect to the three complainants presently under consideration, his assessment of their credibility is not as detailed as might have been expected.

Nevertheless, I am not persuaded that any of his critical findings of credibility can be said to be manifestly wrong in light of the proven facts and probabilities of this case.

I am inclined to agree with the State that he correctly analysed the subjective effect of the appellant's behaviour and teachings on the complainants.

Admittedly, in so doing, he erroneously cited case authorities revolving around victims of rape who are mentally disordered or incapacitated and their capacity to consent to overtures and acts of sexual intercourse. However, as was correctly noted by the court a quo, the magistrate's reference to these cases was designed to show that the complainants were not freely consenting individuals.

His misquotation did not go to the root of the convictions and does not, in my view, constitute a fatal misdirection.

In the court a quo, the learned judge elaborated “the subjective nature of religious dogma” in more cogent terms.

To paraphrase and summarise his findings, the complainants were subjected to frequent indoctrination in the notions of total separation and submission to authority. They were not allowed to fraternise with their relatives and were conditioned to believe that matters of church should not be discussed with outsiders. The appellant displayed a pattern of predatory behaviour, characterised by rampant sexual perversion, manipulating and luring the complainants to accept and endure his deceptively benign patriarchal authority.

As was eloquently observed by Justice DOUGLAS in United States v Ballard 322 US 78 (1944), quoted by both of the courts below, religious doctrines and beliefs cannot be subjected to the rigours of legal proof.

I would take this sentiment further to opine, in the circumstances presented by this case, that the quasi-mystical force of religious dogma might overwhelm its conscripts and devotees to the point where it operates to vitiate and negate any meaningful consent to sexual abuse and exploitation by their spiritual masters.

Taking a broad conspectus of the facts and probabilities in casu, it appears to me that the complainants, having been enmeshed within the overpowering cocoon woven by the appellant, unwittingly succumbed to his sexual advances and predations. Thereafter, constrained by fear and misconception, they remained taciturn for several years and only reported their respective ordeals after appreciating the full nature of their sexual bondage.

To sum up, it must be accepted that there are certain deficiencies in the State case.

Nevertheless, I take the view that none of the grounds of appeal raised in this case is entirely sustainable.

Apart from the conviction on the second charge pertaining to Hazvinei Samanyanga (Count 9) and the sentence imposed in respect of the possession of obscene materials (Count 10), I am satisfied that the appellant has no prospects of success on appeal and that his appeal is doomed to failure.

In that event, he will remain subject to a prison term totalling 40 years, with a period to be determined suspended on condition of good behaviour.

The above conclusion does not necessarily end the matter.

An issue that was raised in the court a quo, but not addressed in its judgment, is the possibility of the appellant absconding in the event of being granted bail. I think it appropriate to deal with this aspect for the sake of completeness.

Counsel for the appellant submits that the appellant is unlikely to abscond because he has huge family responsibilities. Moreover, he is prepared to offer his main residence as security for bail.

Counsel for the respondent counters that the appellant will be induced to abscond by the presence of another charge of rape that is pending against him and because of the 40 years sentence imposed in respect of Counts 3, 7, 8 and 10.

I note that the pending charge arises from the same period but was deferred because the complainant in that matter had fallen pregnant. In any event, the appellant has denied that charge.

As was highlighted in Manyange v The State HH01-03, there is a clear distinction between the principles governing the grant of bail pending trial and those relating to bail pending appeal.

In the former situation, the presumption of innocence, which resides within the constitutionally guaranteed right to liberty, operates in favour of granting bail unless there are positive reasons for refusal.

In the latter situation, on the other hand, the presumption of innocence is inoperative because the accused is a convicted and sentenced offender. The accused must go further than showing that he has prospects of success on appeal. He must establish that there are positive grounds for granting bail and that the grant will not endanger the interests of justice.

In this regard, the public perception is an integral factor to be taken into account. Where the grant of bail would result in a public outcry, the courts should be slow to grant bail in order to safeguard the integrity of the justice delivery system: see Gardner v The State HH60-08.

The possibility of public outrage is something that I am not in a position to assess without any compelling evidence in that regard.

What is more significant in casu is that the appellant has not proffered any positive grounds for allowing him to proceed on bail.

The existence of a huge familial entourage, comprising 11 wives and 32 children, is a condition of his own making and does not really advance his claim to bail.

Moreover, he has failed to satisfactorily demonstrate his prospects of success on appeal.

Apart from this, there is nothing else to commend his right to liberty.

In my view, the prospect of a protracted prison term, coupled with his fresh experience of post-trial incarceration, affords abundant incentive for him to abscond.

In all the circumstances, I am amply satisfied that the appellant is not a good candidate for bail.

For all of the foregoing reasons, the appeal must fail and it is accordingly dismissed.

HHMT18-18 : THE STATE vs JUDITH MUPELEFURAHA MULUMBA
Ruled By: MWAYERA J and ASSESSORS: MAWONEKE and MUDZINGE

In this case, precious human life was lost in circumstances where religious extremism was at play.

Under the umbrella of exorcising demons, a nine year old was strangled to death.

It is alleged, by the State, that on 14 June 2013, and at Tongogara Refugee Camp, Chipinge, Judith Mupelefuraha Mulumba unlawfully caused the death of Kubota Mupelefuraha Mulumba, or, realising that there was a real risk or possibility that the conduct might cause death and continued to engage in that conduct despite the risk or possibility resulting in injuries from which Kubota Mupelefuraha Mulumba died.

The accused pleaded not guilty to the charge.

From the summary of the State case and Statement of Agreed Facts, tendered as exhibit 1 by consent, it is common cause the deceased and the accused were related as they were sisters. It is also common cause that on the fateful day the accused, who was at a church gathering with the deceased, after the church service, started to “pray” for the deceased. The accused, in a horrendous manner, mounted on the deceased and inserted her fingers into the deceased's mouth. She choked the deceased while, at the same time, shaking the deceased's head vigorously. The accused believed she was praying to exorcise demons.

The witnesses in attendance also tried to stop the accused but failed. The deceased was choked to death and the remains were taken for postmortem.

The post-mortem report compiled by Dr Mutetwa was produced as exhibit 3 by consent and cause of death was established as cervical neck dislocation and asphyxiation.

The unprovoked horrendous assault of the deceased is spine-chilling. We were not surprised when the State and defence counsels came up with a Statement of Agreed Facts and sought the court to proceed with the accused in terms of section 29 of the Mental Health Act [Chapter 15:12].

The respective counsel presented the Affidavit of Evidence of Dr Walter Mangezi, a duly registered medical practitioner, specialist psychiatrist. The doctor formulated an opinion that the accused was mentally disordered at the time of commission of the crime in 2013. At the time of commission of the offence the accused was a mental patient whose mental disorder manifested by being talkative, excessively reading the Bible in a manner out of character, and also being physically aggressive.

This culminated in the gruesome assault on the deceased under excessive stance to exorcise demons from a 9 year old. This behaviour, which is out of the ordinary and normal occurred when the deceased was mentally disordered.

The offence of murder requires establishment of both the actus reas and mens rea.

In this case, given the obvious mental disorder confirmed by Dr Mangezi the accused person cannot be said to have had the requisite intention to carry out the offence of murder. The psychiatrist, Dr Walter Mangezi, outlined that the accused responded well to the medicine for mental disorder administered on her since 2013.

The accused was subsequently released on bail in March 2014 and was viewed as being fit and of sound mind to stand trial.

The accused, when she appeared in court before us impressed the court as an individual appreciating the proceedings.

She tendered a plea of not guilty to the charge, and given the history of mental instability, we acceded to the request by the respective State and defence counsels to retain a special verdict of not guilty because of insanity.

We were further addressed on the post special verdict fate of the accused. It was clear, as reflected in the Statement of Agreed Facts, that the accused was released on bail in 2014. She has been religiously taking the medication and has started her own family. She has a husband and two children. Further, she stays in a refugee camp, Tongogara, where the authorities there are aware of the condition and medicines are readily available.

This background information clearly portrays that the accused is no longer a danger to herself and to the members of the community. She does not, in our considered view, require further institutionalisation as a protective measure for herself and the society at large. See S v Pretty Matangi HH23-13 and also S v Sinaiso Donald Khumalo HB61-06.

In the premises, we accordingly order that:

1. A special verdict of not guilty because of insanity be and is hereby retained.

2. The accused is released to go and stay with her family at her official residence at Tongogara Refugee Camp.

Appealed
SSC25-21 : ROBERT GUMBURA vs THE STATE
Ruled By: BHUNU JA

The applicant approaches this Court in terms of section 123(1)(a)(i) of the Criminal Procedure and Evidence Act [Chapter 9:07] with an application for bail pending appeal....,.The applicant is the owner and pastor of a Christian church. He is a convict serving a 20-year term of imprisonment. He was convicted in ...

View Appeal
HHH03-21 : ROBERT GUMBURA vs THE STATE
Ruled By: CHITAPI J

The applicant was convicted by the Regional Magistrate sitting at Harare on 4 October 2017 on four counts of rape. Consequent on the conviction, the applicant was sentenced to fifty years imprisonment. Ten years of that sentence was suspended for five years on conditions of future good behavior. The effective ...

View Appeal
HHH231-14 : ROBERT GUMBURA vs THE STATE
Ruled By: MUSAKWA J

In this unusual case, a man of cloth was arraigned on nine counts of contravening section 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and one count of contravening section 29(1)(B) of the Censorship and Entertainments Control Act [Chapter 10:04].

In respect of the latter charge, I am not sure how the prosecutor missed it, as the correct citation is section 26(1)(b) of the Censorship and Entertainments Control Act [Chapter 10:04].

The applicant was convicted on five of the counts of rape as well as the count under the Censorship and Entertainment Control Act.

In respect of the rape charges, the applicant was sentenced to 15 years imprisonment, counts 3 and 7 and ten years each in counts 8 and 9. Of the total of 50 years imprisonment 10 years were suspended for five years on condition of future good behaviour.

In respect of the charge under the Censorship and Entertainments Control Act, he was sentenced to 4 months imprisonment which was ordered to run concurrently with the sentence in Count 3.

Having noted an appeal against conviction and sentence, the applicant sought bail pending appeal.

His application before the trial court was dismissed for want of jurisdiction.

I did commence by remarking that this is an unusual case. This is on account of how the offences were committed and the fact that pastors and priests are the least expected to commit such dastardly acts.

The charges were framed as follows:

“Count Three - Rape as defined in section 65 of the Criminal Law (Codification and Reform) Act [Cap 9:23]

In that on the date unknown to the prosecutor, but during the period extending from the year 2007 to 30 September 2013, and at Number 6 Helena Close, Marlborough, Harare, Robert Martin Gumbura, a male person, unlawfully had sexual intercourse with Precious Dadirai Kapfumvuti, a female person, on diverse occasions without her consent knowing that she had not consented to it or realising that there was a real risk or possibility that she might not have consented to it, in contravention of the Act.

Count Seven - Rape as defined in section 65 of the Criminal Law (Codification and Reform) Act [Cap 9:23]

In that on the date unknown to the prosecutor, but during the month (sic) of January 2013 and February 2013, and at Number 6 Helena Close, Marlborough, Harare, Robert Martin Gumbura, a male person, unlawfully had sexual intercourse with Precious Winnie Sakahuhwa, a female person, three times, without her consent, knowing that she had not consented to it or realising that there was a real risk or possibility that she might not have consented to it, in contravention of the Act.

Count Eight - Rape as defined in section 65 of the Criminal Law (Codification and Reform) Act [Cap 9:23]

In that on 14 May 2006, and at House Number 64 Queen Elizabeth Road, Greendale, Harare, Robert Martin Gumbura, a male person, unlawfully had sexual intercourse with Hazvinei Ruvimbo Samanyanga, a female person, several times, without her consent knowing that she had not consented to it or realizing that there was a real risk or possibility that she might not have consented to it, in contravention of the Act.

Count Nine - Rape as defined in section 65 of the Criminal Law (Codification and Reform) Act [Cap 9:23]

In that during the period extending from December 2006 to 9 March 2013, and at House Number 6 Helena Close, Marlborough, Harare, Robert Martin Gumbura, a male person, unlawfully had sexual intercourse with Hazvinei Ruvimbo Samayanga, a female person, on diverse occasions, without her consent, knowing that she had not consented to it or realising that there was a real risk or possibility that she might not have consented to it, in contravention of the Act.

Count Ten - Contravening section 29(1)(B) of the Censorship and Entertainment Control Act [Cap 10:04]

In that on 14 November 2013, and at House Number 6 Helena Close, Marlborough, Harare, Robert Martin Gumbura unlawfully or without lawful excuse had in his possession two DVDs title Black Street Hookers 37 and Dread Weku Mufombi Zimbabwe which contained videos of naked women having sexual intercourse and are indecent, undesirable and obscene, or prohibited in contravention of the said Act.”

The Facts

The facts of the case can be summarised as follows:

The applicant is a pastor and founder of a church, self-titled Robert Martin Gumbura (RMG) Independent End Time Message. Two of the complainants had either lost one or both of their parents. The third complainant joined the applicant's church and moved in to stay with devout “brothers and sisters” of the church - it being against church doctrine to stay with heathens.

The first two complainants were to move to the applicant's residence as he had taken responsibility to take care of them.

In due course, the complainants would reside at several of the applicant's residences in Harare, Kadoma or Chinhoyi.

In due course, the applicant would make amorous advances to the complainants, either by hugging, kissing, or proposing marriage.

In respect of one complainant, she was first made to undergo an HIV test. In respect of the third complainant, the applicant would peep at her whilst she bathed. Photographs would be taken of her whilst she was naked. Eventually, all complainants were subjected to sexual intercourse against their will.

In some instances, pornographic videos would be played prior to the sexual acts.

In some instances, there was group sex where other women were involved.

Following the applicant's arrest, and in the course of investigations, police officers recovered digital video discs which contained sermons delivered by the applicant. In some of the sermons, the applicant would curse congregants and remind them of those who had died following his curses.

On 14 November 2013, detectives conducted a search at the applicant's residence. In the process, they recovered digital video discs described in the charge sheet. These were in the applicant's briefcase.

The Defence

The applicant's defence was that he is a victim of church politics. He claimed that he was being blackmailed by his rivals, and, in particular, by Pastor Chitsinde of Spoken Word Ministries who used to worship with him. The charges were contrived as the complainants now attend Spoken Word Ministries.

The applicant claimed that he broke away from Spoken Word Ministries in 1980 and has not been on talking terms with Pastor Chitsinde.

His religious doctrine embraces polygamy whereas his rivals preach monogamy. Thus, his rivals want to gain congregants by casting aspersions about him practising satanism.

He has eleven wives, hence his use of sexual enhancement drugs.

In respect of Precious, he denied having an affair with her. He claimed that the complainant used to reside at his Kadoma house as “sort of a maid.” Precious was lured by Innocent Nehohwa, whom the applicant used to fellowship with. Innocent now fellowships with Chitsinde and is being used to lure women to Chitsinde's church.

In respect of Winnie, the applicant denied ever abusing her. He was in a relationship with Winnie's sister, Linda, for eight years. Linda subsequently eloped to another man and they went to Canada. Linda now attends Chitsinde's church and Chitsinde is using the complainant to bring about his downfall.

On Hazvinei, it was claimed that she was one of his wives whom he stayed with for six years. He sponsored her course for Laboratory Technician at Chitungwiza Hospital. Hazvinei later eloped to a church member. Frustrated with her conduct, the applicant preached, in church, that “he had done with Hazvinei what every other man and woman could do.”

In respect of the pornographic discs, it was claimed they were not recovered from his briefcase but from a storeroom in the clerk's office.

The discs were awaiting destruction at the convention in December 2013 as “most congregants would have repented and surrendered some to his church.”

The plea to the last charge was further elaborated upon.

The discs were recovered from a storeroom adjacent to the applicant's clerk's office. They were among other things which were waiting to be burnt at the December convention. The discs belonged to congregants who would have repented, and, as such, the material was stored in a storeroom by the congregants until a time when an annual convention is conducted in December 2013.

The Evidence

Tedious as it may be, it is necessary to recount some aspects of the evidence in some detail.

Precious Kapfumvuti, an orphan, used to attend Independent End Time Message church. Her mother used to receive help from the applicant. Following the mother's death, in 2007, the applicant offered to take care of the complainant and she accepted the magnanimous hand. She was chauffeured to the applicant's Marlborough residence by a driver.

Thereafter, she was informed she would no longer communicate with her relatives.

On 17 August 2007, the complainant was told to go to New Start Centre. She was accompanied by the applicant's secretary, Queen Mbunga and, one Rutendo. Having been tested for HIV the applicant asked her for the results.

As they used to take turns to clean the applicant's bedroom, she was summoned by the applicant. After she entered the bedroom, the applicant locked it. The complainant was asked how she was coping with the bereavement. The applicant proposed to marry her and she declined. She was told to undress and lie on the bed. When she declined, she was forcibly thrown on the bed.

Against her will she was then raped and deflowered.

As she bled, the applicant offered her some toilet paper with which she wiped herself. The complainant was then released.

She said she informed Tendai Ganyani and was told that is what happened to girls who went to reside at the place.

The complainant stated that the applicant used to quote verses from the Bible to justify his deeds. Reference was made to Exodus 21, Proverbs 3, and Corinthians 6 and 10.

The applicant would routinely call the complainant where she would be subjected to sexual intercourse against her will. Sometimes there was group sex involving four other women.

At some stage, she was sent to stay at the applicant's house in Kadoma. She had company in the form of Hazvinei Samanyanga, one of the complainants.

The complainant claimed her late parents left behind a farm and a flat. It is not clear how the farm was being managed and if she derived any benefit from it. But, as for the flat, it was being leased for US$150. The rentals would be transmitted through the mobile platform, EcoCash. She stated that every time she went to withdraw the money from an EcoCash agent, at Greencroft Shopping Centre, she would be escorted by Queen Mbunga. She said she would first seek the applicant's permission.

The complainant stayed in Kadoma for seven months, starting from February 2013. She had been accompanied to Kadoma by a Pastor Bonda from the church.

The applicant used to threaten congregants with “placing them in the hands of Satan.”

After Hazvinei Samanyanga left for South Africa, the complainant was linked up with Simangele Nehohwa. This was after she sought assistance. Apparently, Hazvinei got married when she went to South Africa. She briefed her husband about Precious Kapfumvuti's ordeal. Hazvinei's husband then communicated with Simangele's husband, Innocent. The Nehohwas had quit Independent End Time Message church in 2000 after a fallout with the applicant on moral issues.

Precious' escape was executed in the afternoon of 12 October 2013.

Having been driven in one of the applicant's vehicles to attend church service at Ellis Robins School, Precious was sprung up by Simangele Nehohwa who was accompanied by some other women.

A medical examination of Precious was conducted between 8 and 30 days after the previous sexual act. Her emotional state was noted as stressed. She had no injuries. There were healed hymenal tears at 3, 5 and 7 o'clock.

Winnie Sakahuhwa joined Independent End Time Message church in 2009. At the time of trial she was just 17 years old.

Her father died in 2010. She first stayed with a church member, arising from arrangements made by her sister and her husband who were residing in Botswana. Apparently, her sister was said to have previously had an affair with the applicant. When the sister and husband emigrated, Winnie moved to the applicant's residence in December 2011. This was again arranged by the sister and her husband.

Apparently, Masasa she was staying with had to leave Zimbabwe under unclear circumstances.

When she moved to the applicant's residence, the applicant instructed her to write a testimony on his preaching on polygamy and the doctrine of total separation. She had not preferred to live with her mother because of the preaching on total separation.

On the writing of the testimony, she had conferred with others and was advised to claim that she was HIV positive and that she had slept with several young men. This was an attempt to ward off the applicant's predatory inclinations.

The first encounter with the applicant was at the garage. She was lured into a dark room. The applicant kissed her against her will. She was pressed against the wall. The applicant told her he had slept with other “sisters” and this ensured good marriages. She said she was lifted and the applicant then raped her whilst propped against the wall.

She was told not to reveal to anyone, and, if she did so, she would be cursed.

On the second occasion, she was called to a cottage within the complex dubbed “Chisipite”. After being forced to lie down, she was then raped. This was now in January 2012.

The third occasion was in February 2012 when she went to seek permission to collect her 'O' Level results. She was shown text messages from one of the applicant's wives in which she was inviting to be intimate with him. She was also shown a video of the applicant having group sex.

She was then raped.

The applicant would insert his penis in her vagina, withdraw and insert again several times.

As to why she did not report the matter, she said she was told not to tell anyone or else she would be placed in the hands of Satan.

Pressed on why she did not tell her mother, she said she did not want her to be stressed as she was hypertensive. The complainant said she only told her brother in-law that the applicant wanted to sleep with her.

As to why she did not report the actual rape, she said this was on account of what the applicant had cautioned.

She later reported to her brother-in-law who is in Canada after reading about the applicant's arrest. She said she could not report to her sister as she had also been in a relationship with the applicant.

Winnie was later collected by her mother. She said she reported the matter to her mother after the applicant's arrest in February 2013.

The medical examination of this witness was conducted thirty days after the last sexual act. There were hymenal tears at 3, 4, and 9 o'clock. Her emotional state was noted as withdrawn.

Winnie's mother testified that her son in-law, McNeil Magunde, offered to take care of Winnie after the death of her father. After the son in-law and Winnie's sister left for Canada, Winnie went to stay with a church member in Buhera. This church member, Emmanuel Musasa, had been introduced by McNeil Magunde.

Winnie was not permitted to visit relatives during holidays.

Winnie then moved in to stay at the applicant's residence in 2011. Winnie's mother is the one who accompanied her to the applicant's residence.

Precious Kapfumvuti also went that day.

The mother also met the applicant.

It emerged that Winnie's sister, Linda, went to stay with the applicant between 2000 and 2008 after she completed 'A' Level. The mother did not approve. In February 2013, the mother received a call from Winnie who wanted to move out of the applicant's residence. She did not ask the reason although Winnie made several calls.

When she eventually collected her, no report was made to her.

On 22 November 2012, she received a call from Superintendent Moyo who told her to bring Winnie. She proceeded to Winnie's school where she sought permission to take her to Harare.

Hazvinei Samanyanga testified that she started attending the applicant's church in 1998 whilst doing Form Two in Shurugwi. She finished school in 2000.

In accordance with church doctrine, she was not supposed to stay with parents.

She left home and went to other church mates in Gweru. In 2001, she and others embarked on a journey to visit the applicant's farm in Chinhoyi. They passed via the applicant's home in Kadoma where they met one of the applicant's wives. Hazvinei was told, by the applicant, to remain behind as she was now going to reside at the Kadoma house. There were the applicant's children at the house. Hazvinei requested to return home but the applicant objected.

She was told that civilisation and education were for the devil.

In due course, the applicant would hug the witness, and, in the process, touch her breasts and buttocks. When she questioned this, she was told to trust the applicant. She was also told that if she wanted to continue with studies she had to be intimate with the applicant. She was told bad luck would befall her if she left the church.

In 2003, whilst alone with the applicant, the applicant made advances which she spurned. He pushed her against the wall and she pushed him away. She said she used to cry on account of what she was being subjected to. The applicant would lift her dress. He would sometimes open the bathroom door whilst she was naked.

In 2004, Hazvinei moved to Chinhoyi.

In 2005, she wrote a letter of complaint to the applicant. Nonetheless, the applicant persisted with his demands.

In 2006, she was told she could apply for a course at Seke Teachers College. She travelled to Harare for purposes of attending the interview. She failed to link up with Tawanda Nehohwa who was supposed to assist her. She contacted Queen Mbunga who collected her and took her to the applicant's house in Greendale.

There, she met the applicant.

As she was bathing, the applicant got in. When she protested, she was told she had come to the lion's den. The applicant photographed her. She was told that if she did not have sexual intercourse with the applicant she would not attend the interview.

After bathing, she went into a room where she wanted to use lotion. The applicant got in and locked the door; she was forcibly undressed and raped. She said she kept the panties which she wore on that day as she had been deflowered.

The panties were produced as an exhibit.

Hazvinei was later accompanied to meet Tawanda Nehohwa by the applicant and Queen. Prior to leaving, other girls at the house had laughed at her. She attended the interview and stayed at Tawanda's residence for two weeks. She then commenced studies at Seke Teachers College.

She would visit the applicant's residence during weekends and would be raped. By then, the applicant had moved to Marlborough.

She had been told that church disputes should not be related to non-believers.

This witness would be shown pornographic videos and photographs. She would also be photographed. After completion of her course, she went to work in Chinhoyi. She would attend church in Harare. Every Sunday she would be given US$10 and she would be raped.

She continued to work in Chinhoyi until 2011.

She was subsequently told, by the applicant, to quit her job and she did so without notice. She then moved to Marlborough where she stayed between July 2011 and 3 January 2013. Thereafter, she went to Kadoma. From there, she would attend church in Harare. After church, they would collect money for groceries.

On 9 March 2013, she was again raped.

In May 2013, she ran away after telling Precious Kapfumvuti that she was visiting her sick mother in Bulawayo.

When she got to Bulawayo, where she stayed for two weeks, she got a passport and went to South Africa.

Whilst in South Africa, Hazvinei communicated with Precious Kapfumvuti who expressed a wish to escape. Hazvinei briefed her husband, who, in turn, liaised with Innocent Nehohwa.

Under cross-examination, this witness stated that she used to surrender her entire salary to the church.

She further stated that she had stayed in South Africa for five months before she reported the matter. When she was contacted by Superintendent Moyo, in connection with Precious Kapfumvuti, she then took the opportunity to report the rapes.

She further stated that she first wanted to secure her permit before she could report the matter.

She further conceded that since 2006 she had been in love with the man who eventually married her. She was barred from communicating with him. When they linked up in South Africa, they discussed marriage. In June 2013, she disclosed to her husband that she had been raped. They married in September 2013.

The witness also said she had been rebuked in church by the applicant.

Concerning her salary, she stated that she would place it, together with the withdrawal slip, in a sealed envelope and hand to the applicant. When the applicant was not present, she would place it in the box for offerings.

Godwin Simplicious Chitsinde testified that he met the applicant in 1978 before both of them became pastors.

Later, he was to baptise the applicant whilst undergoing pastoral training. The applicant's brother was a pastor. This witness had a fallout with the applicant and others within the church. This was due to the fact that he fathered a child before he wedded. As a result, he was disciplined and became an ordinary minister. He subsequently became a pastor within the same church in 1991.

At that time, the applicant was ministering in Gweru.

The witness first received complaints about the applicant's conduct in 1988. In 1995 he received further complaints and spoke to the applicant. In 1997 he held discussions with the applicant and his wife. Superintendent Moyo was assigned investigations in November 2013.

Winnie Sakahuwa, who was attending school at Guinea Fowl, contacted following receipt of an e-mail from a relative who was in Canada. The applicant was already in custody.

In view of the details disclosed in the evidence of witnesses it was deemed necessary to conduct searches at the applicant's house. The applicant was advised and he led police officers to his residence. The applicant was said to have been very co-operative and jovial. They searched the applicant's office. Then, in the secretary's office, they recovered envelopes containing confessions by congregants. Having been led to the applicant's bedroom, they found a briefcase with a combination lock which was on the bed. Inside the briefcase were sexual enhancement drugs and two unused condoms. The drugs were of various varieties and the officers queried the applicant if they were prescribed by a doctor. The applicant explained that the drugs were for his personal consumption. Further searches yielded two pornographic videos from the inner pocket of the briefcase. The applicant explained that the videos were for his entertainment.

The witness made reference to the earlier recovery by other officers of a thousand videos which contained, among other things, sermons delivered by the applicant. There was, amongst these videos, footage of the 2012 Christmas party. In his closing speech, the applicant was heard rebuking members of the church. Then there was another video in which the applicant was making curses.

The Law

The starting point is section 50(5) of the Constitution of Zimbabwe Amendment (No.20) Act, 2013 which provides that -

“Any person who is detained, including a sentenced prisoner, has the right —

(a)…,.;

(b…,.;

(c)…,.; —

(i)…,.;

(ii)…,.;

(iii)…,.;

(iv)…,.;

(v)…,.;

(vi)…,.;

(d)…,.;

(e) To challenge the lawfulness of their detention in person before a court, and, if the detention is unlawful, to be released promptly.”

Counsel for the applicant also cited sections 46 and 49 of the Constitution.

In this respect, section 49(1) of the Constitution provides that -

“Every person has the right to personal liberty, which includes the right —

(a)…,.; and

(b) Not to be deprived of their liberty arbitrarily or without just cause.”

Counsel for the applicant further submitted that when a court applies the common law or interprets statutes, it must be guided by Chapter 4 of the Constitution which deals with fundamental rights. Thus, where a decision fails to measure up to the fundamental provisions of the Constitution, its decision must be set aside. He cited the South African decision of Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs & Ors 2004 (4) S 420 (AD).

Since the applicant has been convicted and sentenced following a trial, there is no question of him having been deprived of his liberty arbitrarily or without just cause.

There being no elaboration on the principles applicable in an application for bail pending appeal in the Constitution or the Criminal Procedure and Evidence Act [Chapter 9:07] recourse is to be had to precedents.

The overall consideration is whether there are prospects of success on appeal.

In making such determination, the court has discretion where it balances the interests of the administration of justice against the need to uphold individual liberty.

Where a person seeks bail pending appeal, there is no longer a presumption of innocence as they would have been found guilty. In this respect, see the cases of S v Manyange 2003 (1) ZLR 21 (H); S v Williams 1980 ZLR 466; S v Tengende & Ors 1981 ZLR 445 (S); S v Labushagne 2003 (1) ZLR 644 (S); S v Benatar 1985 (2) ZLR 205 (H); and S v Kilpin 1978 RLR 282 (AD).

The Notice of Appeal articulates several grounds on which the trial court's decision is attacked for having erred.

In support of these grounds, counsel for the applicant submitted that there are several instances the decision of the trial court does not measure up with the fundamental provisions of the Constitution. He also attacked the trial court's decision for applying the wrong principles in its determination of the state of mind of the complainants.

In respect of the wrong principle being applied, counsel for the applicant referred to the trial court's reliance on decisions dealing with the approach to be adopted in relation of the testimony of a victim of rape who is suffering from some defect of the mind whereby her consent is thus vitiated.

On that score, he submitted, that, whereas the court ruled that the complainants did not appreciate the sexual acts, the complainants themselves testified that they knew what was happening save that they did not consent.

The trial court made, in my view, superfluous reference to R v K 1958 (3) 420 in which STEYN AR…, cited FAWKES R in R v Kalil Katib 1904 ORC 1 tebl 2 thus:

“…, that the crime of rape is committed when, by violating a woman when she is in a state of insensiblity and has no power over her will, whether such state is caused by the man or not, the accused, knowing at the time, that she is in that state.”

The trial court further cited the remarks of HOEXTER R quoted in R v K 1958 (3) 420…, in which he said:

“If, therefore, a man has unlawful intercourse with a woman who is so devoid of reason that she cannot exercise any judgment at all on the question whether she will consent to or dissent from such intercourse, that man is, in law, guilty.”

A reading of the trial court's reasoning does not show that it ruled that the complainants in the matter were under some disability of the mind. It seems the court sought to justify that the complainants were not free. In this respect, the trial court went on to state that:

“The witnesses who were called by the State were saying that they were accepting the teaching; so, as a result, they were not in full control of the situation which obtained. The indication is simply that when dealing with cases involving religion, one has to go a mile further and examine the effects of the teachings.

In our own Supreme Court, in the matter Re (sic) Chikweche 1995 (1) ZLR 235, and, in particular, p241, the then Chief Justice GUBBAY quoted with approval the pronouncements of Justice DOUGLAS in the matter United States v Ballard 322 US 78 (1944) p86 to 87;

'Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. Religious experiences, which are as real as life to some, may be incomprehensible to others. Yet, the fact that they be beyond the ken of mortals does not mean that they can be made suspect before the law.'”

The above excerpt was used to justify the subjective nature of religious dogma.

Quite a lot can be gleaned from the practices of the applicant. The complainants voluntarily joined his church. Thereafter, they were subjected to some indoctrination of total separation and submission to authority (as in the form of the applicant).

That they could not fraternalise with their relatives is evident - one of the witnesses could not even be allowed to attend her sister's funeral.

Therefore, some kind of conditioning of the complainants was initiated. That is why they believed that church matters were not to be discussed with outsiders.

One can also detect a pattern of predatory behaviour on the part of the applicant.

The complainants appear to have been lured and lulled to accept the applicant's benignity. The complainants were young and therefore innocent. Two of them were told to undergo HIV testing and were then raped after the applicant got to know their status. They had also been made to write testimonies, something akin to confessions about their personal lives.

This must have been done with a motive to gain an intimate knowledge of them before they were manipulated.

The trial court did believe the complainants, and, indeed, one cannot think they made up such sordid accounts just to lend support to religious war being waged by Pastor Chitsinde. If there is any doubt about the veracity of the complainants' claims one has to have regard to some similarities in some of the sexual attacks. These are exemplified by the playing of pornographic videos to spice up the acts and the indulgence in group sex.

What appears to put the nail in the coffin is corroboration from an unlikely source. It is like the applicant falling on his own sword. These are the pornographic video discs that were found in the applicant's brief case as well as the sex enhancement drugs.

These lend weight to the rampant sexual perversion exhibited by the applicant.

There is no trace of any perverse conduct of planting these sexual paraphernalia by police officers involved in the investigations.

Instead of tripping on the authorities it cited, the trial court's first port of call should have been section 69(1) of the Criminal Law (Codification and Reform) Act (the Code) which states that;

“Without limiting Part XII of Chapter XIV, a person shall be deemed not to have consented to sexual intercourse or any other act that forms the subject of a charge of rape, aggravated indecent assault, or indecent assault, where the person charged with the crime -

(a) Uses violence or threats of violence or intimidation or unlawful pressure to induce the other person to submit; or

…,.”

There certainly was unlawful pressure and some form of violence used against the complainants to induce submission.

In essence, the evidence in this case amounts to single witness testimony. As was held by GUBBAY CJ in S v Banana 2000 (1) ZLR 607 (SC) at 614-615;

'It is, of course, permissible in terms of section 269 of the Criminal Procedure and Evidence Act [Chapter 9:07] for a court to convict a person on the single evidence of a competent and credible witness. The test formulated by DE VILLIERS JP in R v Mokoena 1932 OPD 79, at 80, was that the evidence of such a single witness must be found to be 'clear and satisfactory in every material respect.'”

In attacking the trial court's reliance on authorities dealing with complainants under some form of mental disability, counsel for the applicant submitted that the correct approach is that adopted in S v Banana 2000 (1) ZLR 607 (SC).

This was in respect of the need to make timeous report of the complaint.

On this aspect, GUBBAY CJ, at 616, had this to say;

“Evidence that a complainant in an alleged sexual offence made a complaint soon after its occurrence, and the terms of that complaint, are admissible to show the consistency of the complainant's evidence and the absence of consent. The complaint serves to rebut any suspicion that the complainant has fabricated the allegation.”

I have already observed that there was some corroboration of the witnesses.

Corroboration is not strictly a requirement, but, where it exists, it cannot be ignored: see also the remarks of GUBBAY CJ in S v Banana 2000 (1) ZLR 607 (SC)…, where he said;

“Where the evidence of the single witness is corroborated in any way which tends to indicate that the whole story was not concocted, the caution enjoined may be overcome and acceptance facilitated. But corroboration is not essential. Any other feature which increases the confidence of the court in the reliability of the single witness may also overcome the caution.”

The requirements for admissibility of a complaint are:

1. It must have been made voluntarily and not as a result of questions of a leading and inducing or intimidating nature: see R v Petros 1967 RLR 35 (G)…,.

2. It must have been made without undue delay and at the earliest opportunity, in all the circumstances, to the first person to whom the complainant could reasonably be expected to make it: see R v C 1955 (4) SA 40 (N) at 40G-H; S v Makanyanga (supra) at 242G-243C.

In the present case, the reasons for late reporting of the matters appears plausible.

This is especially so in the cases of Winnie and Precious. The two appear to have been in some kind of bondage. They did not appear to have been free to travel as they liked. It is either they would be escorted by a driver or by Queen Mbunga. Although escape from the Marlborough premises was possible it was not easy as observed by the trial court.

Again, the effect of indoctrination appears to have held sway against any reportage.

The bulk of the observations I have made are not apparent from the trial court's judgment. This may well be a question of approach to writing a judgment as opposed to total misdirection.

However, the aspect of corroboration appears implicit in the trial court's reasons.

In short, one can sum up a pattern that emerged in respect of these witnesses. There was separation leading to isolation, conditioning or indoctrination, molestation, and subjugation. The subjugation was in the form of threats of placing them in the hands of Satan. Although the applicant tried to demonstrate what he meant by making those curses, it is clear that those biblical verses were never interpreted to the congregants. Therefore, the complainants could have genuinely believed the effect of the curses.

In matters religious and the metaphysical even the enlightened ones have been found to be gullible.

It is improbable that Precious and Winnie concocted all the sordid details of what they endured on behalf of a third party.

I would therefore hold that there are no prospects of success on appeal against conviction - especially the counts involving Precious and Winnie.

There may be doubt regarding the conviction relating to Hazvinei.

This is because the circumstances pertaining to this witness are different from those relating to Precious and Winnie. There is a possibility, that, on the first occasion, Hazvinei may have been raped. Her evidence on that score appears to be credible. However, she appears to have acquiesced on the subsequent occasions. This is particularly so if it is considered that initially she was not residing with the applicant. She would visit the applicant's residence during weekends during which she was then raped.

This appears to be unconvincing.

After these acts, regard should also be had to the fact that she stayed in Bulawayo for two weeks before she went to South Africa. She then spent several months in South Africa before she fortuitously reported the matter when police contacted her in connection with Precious' matter.

All these, and a host of other pertinent issues, were not interrogated by the trial court.

The trial court's assessment of the evidence, on unlawful possession of obscene or indecent material, seems unassailable. The trial court also correctly applied the law.

The provision in question states that -

“(1) No person shall, without lawful excuse, have in his possession any—

(a) Publication, picture, statue, or record that is indecent or obscene or prohibited; or

(b) Recorded video or film material on which is recorded a film that is indecent or obscene or prohibited.

(1a) Any person who contravenes subsection (1) shall be guilty of an offence and liable to a fine not exceeding level six or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.”

Possession of a thing entails physical control of that thing and an intention to exercise control for oneself or another. In this respect see S v Masson 1982 (1) ZLR 216 (SC) and S v Ndiweni 1983 (2) ZLR 49 (H).

The evidence overwhelmingly shows that the applicant had the indecent material in his brief case which had a combination lock as opposed to the material being in the store-room as he claimed. Even if it were to be grudgingly accepted that the material was in the storeroom, the applicant was aware of its existence, as he said it awaited destruction at a convention. This material was under his roof.

What lawful excuse did he give for its possession?

In R v Mackay 1964 R & N 51 the phrase lawful excuse was considered in the context of the appellant having been found in possession of a publication that was prohibited. It was held that lawful excuse is a reason for not complying with the law.

It therefore means that the applicant must have advanced a reason for possession which is in accordance with the law.

It cannot be a lawful excuse that the applicant possessed the indecent material because he wanted to have it destroyed at some future date. By reason of his leadership of the church, he arrogated himself the authority to collect and destroy the obscene material.

In any event, the circumstances of his possession of the material do not lend weight to that explanation.

The indecent material must have been meant for corrupting the witnesses or self-indulgence within his harem.

No submissions were made in respect of sentence on the rape Counts.

Nonetheless, in the event that the conviction relating to Hazvinei is overturned it follows that the resultant sentence will also be quashed. That notwithstanding, if the convictions relating to Precious and Winnie are upheld, the sentences imposed may be found to be appropriate.

I therefore see no prospects of success on appeal in respect of those Counts.

The applicant's moral blameworthiness is high and merits severe punishment. This may well have been a case that deserved to be referred to the High Court for sentence for purposes of precedence.

The sentence imposed on the count for unlawful possession of indecent or obscene material is tainted with irregularity as no reasons were advanced by the trial court. It will obviously be interfered with. The redeeming feature of this sentence is that it was ordered to run concurrently with the sentence in the third Count.

In the result, the application for bail pending appeal is hereby dismissed.

SC105-21 : WALTER MAGAYA vs ZIMBABWE GENDER COMMISSION
Ruled By: GOWORA JA, PATEL JA and UCHENA JA

The appellant is a clergyman of the Prophetic Healing and Deliverance Ministries, commonly known as the PHD Ministries.

The respondent is the Zimbabwe Gender Commission (“the Commission”), an independent commission provided for in accordance with section 245 of the Constitution and established as a body corporate in terms of section 2 of the Zimbabwe Gender Commission Act [Chapter 10:31] (the “Act”).

Its functions are set out in section 246 of the Constitution as being:

“(a) To monitor issues concerning gender equality to ensure gender equality as provided in this Constitution;

(b) To investigate possible violations of rights relating to gender;

(c) To receive and consider complaints from the public and to take such action in regard to the complaints as it considers appropriate;

(d) To conduct research into issues relating to gender and social justice, and to recommend changes to laws and practices which lead to discrimination based on gender;

(e) To advise public and private institutions on steps to be taken to ensure gender equality;

(f) To recommend affirmative action programmes to achieve gender equality;

(g) To recommend prosecution for criminal violations of rights relating to gender;

(h) To secure appropriate redress where rights relating to gender have been violated; and

(i) To do everything necessary to promote gender equality.”

On 23 August 2019, the Zimbabwe Gender Commission (Commission) issued General Notice 1444 of 2019 which it published in the Government Gazette. The General Notice authorized the respondent to conduct an investigation into complaints of sexual abuse, generally, made against the appellant.

In response, on 3 September 2019, the appellant filed an application with the High Court for a review of the decision by the respondent to launch the investigation pursuant to the General Notice.

He followed this up with an urgent chamber application in which he sought, by way of interim relief, an interdict against the conduct of the investigation by the respondent.

On 22 October 2019, the High Court dismissed the urgent chamber application with costs. This appeal is against that judgment.

PROCEEDINGS IN THE COURT A QUO

In seeking relief before the High Court, the appellant attached a draft order in which he sought the following:

“TERMS OF THE FINAL ORDER SOUGHT

That you show cause to this Honourable Court, if any, why a final order should not be made in the following terms;

1. General Notice No.1444 of 2019 published in the Gazette of 23 August 2019 be hereby declared null and void and of no force and effect.

2. That the intended investigations of the applicant, for sexual abuse by the Respondent, in terms of General Notice No.1444 of 2019, published in the Gazette of 23 August 2019, be and are hereby permanently stayed.

3. Costs will be costs in the cause.

TERMS OF THE INTERIM RELIEF GRANTED

1. Pending the determination of this matter on the return day, the intended investigations of the Applicant, for sexual abuse by the Respondent, in terms of General Notice No. 1444 of 2019, published in the Gazette of 23 August 2019, be and are hereby stayed.”

In his application for an interdict, the appellant averred that he had sought the review of the decision to cause an investigation against him on allegations of sexual abuse arising from complaints laid against him.

He contended, that, in the review, he sought to challenge the jurisdiction of the Zimbabwe Gender Commission (Commission) in respect of the General Notice as well as the intended investigation into the alleged complaints of sexual abuse.

He averred, that, the contemplated investigations were imminent, and that, by his reckoning, were due to commence, at the earliest, by 12 September 2019, by which date his application for review would not have been determined, and, that, the mere pendency of the application would not stop the Zimbabwe Gender Commission (Commission) from proceeding with the investigation of the alleged complaints of sexual abuse.

He contended, that, he had good prospects of succeeding on the review and that his rights from the review process would be rendered nugatory if the investigations were not halted pending the review.

His stance was that neither the Constitution nor the Zimbabwe Gender Commission Act [Chapter 10:31] afforded the Zimbabwe Gender Commission (Commission) the authority to conduct the contemplated investigation. To that extent, any investigation by the Commission constituted an illegality.

He contended further, that, what the Commission intended from the published notice was outside its statutory mandate, and, as a result, the appellant was entitled to the protection of the law which he was seeking from the court. Thus, it was only right that the court issue an interdict against the Zimbabwe Gender Commission (Commission).

Over and above the averments referred to in the aforegoing, the appellant contended, that, even if the Zimbabwe Gender Commission (Commission) had the authority to conduct an investigation, the methodology it had employed violated his constitutional rights and legal principles and rules governing evidence such as that which the Commission wished to gather. The methods adopted would lead to a compromised result which would cause him to suffer irreversible harm.

He averred that the balance of convenience was in his favour, and that, if he was not granted the relief sought, he would suffer unconscionable irreparable harm in that he would 'be put out of pocket and suffer permanent impairment of his personal dignity which no other process could remedy.' He did not have any other remedy that he could employ to stop the process which he considered illegal.

He opined, that, the Zimbabwe Gender Commission (Commission), on the other hand, would not suffer any prejudice if its intended investigation were halted.

The Zimbabwe Gender Commission (Commission) opposed the application.

It maintained, that, it had investigative functions in terms of the Constitution and its enabling Act. It contended, that, under the provisions of section 5 of the Zimbabwe Gender Commission Act [Chapter 10:31], an investigation is preceded by the promulgation of a notice in the Government Gazette and the publishing of such notice in one or more national newspapers informing the public of its intention to investigate a systemic barrier as provided in the Zimbabwe Gender Commission Act.

The Zimbabwe Gender Commission (Commission) contended, that, the notice it issued was lawful and provided for by law.

It averred, that, it had received numerous complaints of alleged sexual abuse from numerous quarters against the appellant which necessitated the issuance of the notice to facilitate the conduct of investigations into the said complaints.

It denied suggestions by the appellant that it had neither the mandate nor the authority to proceed as intended.

In so far as the prospects of success were concerned, the Zimbabwe Gender Commission argued that there were none.

It pointed to the averment by the appellant, that, there were numerous complaints against him, some of which were the subject of police investigations. The Commission averred, that, an investigation under section 5 of the Zimbabwe Gender Commission Act can only be possible where complainants and witnesses have come forward with allegations pointing to the possibility of the existence of alleged violations.

DETERMINATION BY THE COURT A QUO

The court a quo decided the application on the sole issue of whether or not the applicant's rights were likely to be violated. It said the following:

“I do not see how the applicant's rights may be violated by the investigation. He has a right to legal representation. The investigation itself is not of a criminal nature, in the sense that the respondent is not endowed with any power to impose any sanction consequent to an investigation.”

The court a quo concluded, that, the Zimbabwe Gender Commission (Commission), had, under section 7 of the Zimbabwe Gender Commission Act, the power to conduct an investigation, and, where the investigation reveals systemic barriers prejudicial to gender equality, etc, after informing the Minister, make a report to Parliament on its findings.

The court a quo found, that, there was no immediate impact on the appellant from the investigation as contemplated by the Zimbabwe Gender Commission.

THE APPEAL

The grounds of appeal are framed as follows:

“1. The court a quo misdirected itself in totally misconstruing the application before it as one for the setting aside of investigations and so erred when consideration is given to the fact that the application was actually meant to interdict the holding of unlawful investigations.

2. The court further erred in concluding, that, protection against harm to fama cannot, at law, be sought through urgent interdictory relief and so erred in arriving at a finding which is contrary to established and well-regarded authority.

3. Having found that respondent had instituted an investigation in terms of section 5 of the Gender Commission Act [Chapter 10:31] and having concluded that the issues it sought to investigate were outside the remit of the powers contained in that provision, the court a quo erred in not concluding that appellant had prospects of success in the review application and was consequently due the remedy of an interdict.

4. A fortiori, the court a quo erred in failing to appreciate that the principle of legality requires that when challenged, the exercise of public power must be justified on the basis upon which it has been specifically exercised, and that, for that reason, the notice impugned not having been properly given in terms of section 5 of the Act could not be held valid on the basis of constitutional provisions.

5. Having come to the conclusion that the process which had been instituted by the respondent was pointless and abortive, the court a quo erred in not concluding that appellant's rights were imperilled by having to be required to go through a sham and that he was consequently entitled to protection since the balance of convenience was in his favour.”

ARGUMENTS ON APPEAL

Counsel for the appellant commenced his argument by challenging the jurisdiction of the Zimbabwe Gender Commission (Commission) to conduct the investigation as set out in the General Notice.

He submitted that the General Notice had not been issued in terms of the Zimbabwe Gender Commission Act [Chapter 10:31].

He added, that, the court a quo had itself queried the necessity by the Commission to publish the General Notice, which it said was inconsistent with the Zimbabwe Gender Commission Act, and suggested that the court a quo had implied that section 5 of the Zimbabwe Gender Commission Act was inappropriately relied upon by the Commission.

Counsel for the appellant argued, that, before the court a quo, the appellant was called upon to establish a prima facie case.

He stated that the Zimbabwe Gender Commission (Commission) did not have jurisdiction to issue the General Notice.

He highlighted to this court, that, once the judge a quo made a finding that the investigation sought to be conducted by the respondent was not a section 5 process, it automatically followed that the court ought to have granted the relief sought by the appellant.

The court engaged counsel for the appellant to shed light on what he understood a General Notice to be.

To his credit, counsel accepted that a General Notice is in the nature of a statutory instrument and has the force of law.

The court also enquired from counsel whether it was possible, at law, for a court to grant an interdict the effect of which was to suspend the operation of a law that has legal force and effect.

In addition, the court directed counsel for the appellant, premised on the relief sought in the court a quo wherein the final order sought was the permanent stay of the investigations, and enquired of him whether the application for review was not a superfluous process given that the final order sought by the appellant was a permanent stay of the investigations.

Once granted by the court, in terms of the final order prayed for, the order would render the review application inconsequential.

Counsel for the appellant contended otherwise.

Per contra, counsel for the respondent submitted, that, owing to the exchange between counsel for the appellant and the court, the issue which arose for determination was whether or not a law can be set aside through an application for an interdict.

Counsel for the respondent contended, that, in view of the promulgation of the General Notice as a law, anything done pursuant thereto must be presumed to be valid.

She argued further, that, a court cannot interdict lawful conduct.

For this contention, she sought reliance on ZIMRA v Packers International SC28-16 and Mayor Logistics v ZIMRA CC07-14, which, according to her submissions, both underscored the principle that a challenge to law cannot be made in terms of an interdict.

She proceeded to argue that the Zimbabwe Gender Commission (Commission) had acted within the ambit of its powers as prescribed in terms of section 5 of the Zimbabwe Gender Commission Act in that systemic barrier to gender equality can emanate from the conduct of one person. In this regard, she argued, the appellant, being an influential leader of a great movement, it is that stature and influence that he seeks to protect.

Counsel went on to argue, that, the Constitution, in section 246, gave the Commission the mandate to carry out such investigations. She conceded, that, the functions stated in section 246 of the Constitution are not restated in the Zimbabwe Gender Commission Act but that this did not take away the Commission's authority to act in the manner that it did because the purpose of the Zimbabwe Gender Commission Act is not to restate what is in the Constitution but to augment the contents thereof.

Counsel for the respondent submitted, that, section 246 paragraphs (b) and (c) of the Constitution set out the investigative functions of the Zimbabwe Gender Commission (Commission). She also referred the court to section 2 of the Zimbabwe Gender Commission Act which defines “systemic barriers” and added that a reading of section 2 showed that the definition therein was not exhaustive, and, for that reason, the Commission took the view that organised worship is a sphere of activity as contemplated in the Zimbabwe Gender Commission Act.

In any event, counsel for the respondent argued, the Commission had decided not to proceed with the investigations and decided to await the outcome of the review application.

In response, counsel for the appellant indicated to the court, that, the authorities cited by counsel for the Commission were irrelevant and distinguishable to the present matter.

He argued, that, the General Notice was inconsistent with the Zimbabwe Gender Commission Act and this should have automatically translated to a prima facie case for the appellant enabling him to obtain relief from the court a quo.

He submitted, that, section 5 of the Zimbabwe Gender Commission Act does not allow the Commission to exercise the powers it purported to have exercised in terms of the General Notice.

He argued, that, there was no systemic barrier involved in casu that prejudiced gender equality or gender equity.

Also, the Commission was said to have failed to indicate the section of society that was to be investigated as envisaged by section 2(1) of the Zimbabwe Gender Commission Act.

In closing his submissions, counsel for the appellant stated, that, the methodology employed by the Commission was inappropriate and not in conformity with relevant provisions of the Zimbabwe Gender Commission Act.

Having said that, he prayed that the appeal be allowed and the decision of the court a quo be set aside.

ISSUE FOR DETERMINATION

The facts of the matter are not in dispute and the appeal falls for determination on the basis of the ratio decidendi of the court a quo.

Although the appellant raised numerous grounds of appeal, there is only one issue that arises for determination and is capable of disposing of this whole appeal.

The only issue is whether or not the court a quo was wrong in refusing the application for an interdict.

STATUS OF THE GENERAL NOTICE

The Zimbabwe Gender Commission (Commission) is imbued with an investigative mandate, both in terms of the Constitution and the enabling Act. It issued a General Notice, and the appellant seeks to challenge the decision to publish the Notice through the review that he has filed.

What is a General Notice?

A General Notice is a public notice published in the Government Gazette. A General Notice is in the same category as a statutory instrument. It is subsidiary legislation. It, therefore, has the force and effect of law.

It can also be viewed as a document that has legislative character, and, like any other law, it has legal force and effect.

It is an essential element of due process, and, therefore, once it is issued it must be complied with unless set aside. As a consequence, until and unless it has been set aside, anything done under or pursuant to such General Notice is lawful.

It is not necessary in this appeal to determine whether or not the Zimbabwe Gender Commission (Commission) exceeded its powers in issuing the General Notice. Whether or not the Notice is in accordance with the powers bestowed on the Commission is for the court hearing the application for review to decide.

HH10-18 : UPENYU MASHANGWA and BLESSING MASHANGWA vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and UNITED FAMILY INTERNATIONAL CHURCH
Ruled By: MANGOTA J

The plaintiffs are husband and wife. They are members of the third defendant.

The first and second defendants are also husband and wife respectively. They are leaders of the third defendant.

The third defendant operates under the name United Family International Church.

The first and second defendants, as leaders of the third defendant, are allegedly endowed with the spiritual gift of being able to foretell a person's past, present, and future circumstances.

They are, in the parlance of the third defendant's teachings, referred to as prophets.

The plaintiffs filed six claims against all the three defendants. These entered appearance to defend.

They, in terms of Rule 140 of the High Court Rules 1971 addressed a letter to the plaintiffs. The letter is dated 9 August 2017.

The letter complained about the manner in which the plaintiffs pleaded their claims. Its contents alleged that:

(i) The claim was either vague and embarrassing; or

(ii) The claim did not disclose a cause of action; or

(iii) The claim did not clarify if the plaintiffs were suing in contract or in delict; or

(iv) The plaintiffs did not know how to plead defamation under the actio injuriarum; or

(v) The plaintiffs failed to appreciate that mental anguish was not a head for damages claimable for defamation; or

(vi) The plaintiffs did not state, in regard to the sixth claim, if they were pleading defamation or injuria.

The letter placed the plaintiffs on notice to remedy the alleged defects which the defendants complained of failing which the latter would except to the claims.

The plaintiffs received the letter on 10 August 2017. They did nothing about the complaint.

The defendants filed the exception on 30 August 2017. This is, therefore, the subject of these proceedings.

The record does not show the date on which the defendants served the plaintiffs with the exception. Nor does it show the date that they served their heads of argument upon the plaintiffs.

What is evident, however, is that both parties filed their Heads.

The defendants Heads were filed on 20 September 2017. The plaintiffs filed theirs on 4 October 2017.

The filing of Heads by the parties set the stage for the exception to be heard and determined.

The defendants summarised their case in paragraphs (3) and (4) of their Heads. They submitted that the plaintiffs summons and declaration were excipiable in two respects. These were that:

(a) They did not disclose any cause of action against any of the three defendants; and

(b) They are vague and embarrassing to the extent that the vagueness and embarrassment go to the root of the cause of action.

Critical to the resolution of this matter is whether or not one or more, or all, of the claims do not, as the defendants alleged, disclose a cause of action.

Where they do not, the defendants position remains unassailable. Where they do, the defendants complaint remains unwarranted.

The phrase 'cause of action' was aptly defined in Peebles v Dairiboard Zimbabwe (Pvt) Ltd 1999 (1) ZLR 41 which the defendants cited in their Heads. The case authority says of the phrase:

“Simply, a factual situation the existence of which entitles one person to obtain from the court a remedy against another person.”

The question which begs the answer is: does that factual situation exist in each of the plaintiffs six claims?

The plaintiffs said it does.

They also submitted, and in my view correctly so, that all their claims were grounded in delict and not in contract.

An analysis of each of the six claims is relevant. It is from the intended analysis that the existence or otherwise of the cause of action is established.

The plaintiffs case was/is that their claims (1) to (4) rested on the delict of fraud.

Professor G. FELTOE defines fraud in his “A Guide to The Zimbabwean Law of Delict” 3rd Ed…,. The learned author states that the delict of fraud falls under deceptive practices. He says fraud is committed when the defendant, with intent to defraud, makes a statement to the plaintiff knowing or suspecting that the statement is false and intending that the plaintiff will act upon it to his prejudice. He stresses that, if the plaintiff suffers loss as a result of such fraudulent deception, he is entitled to claim damages.

With fraud, therefore, the false statement is made to the plaintiff who acts upon it.

The definition which Professor FELTOE gave for the delictual action of fraud is, with minor variations, substantially the same as fraud as defined in the law of contract.

INNOCENT MAJA defines fraud from the perspective of the law of contract. The learned author states in his book “The Law of Contract in Zimbabwe”…, that:

“For an innocent party to claim delictual damages successfully, she/he must establish that:

(a) There was a wrongful or unlawful conduct (by either commission or omission) by the wrongdoer:

(b) The conduct led to the harm of a person, property, or finances; and

(c) The wrongdoer caused patrimonial loss either intentionally or negligently.”

The plaintiff's statement, as regards each of the four claims, is that they are claiming delictual damages from the defendants.

They submitted that the damages are based on the misrepresentations which the defendants made to them and other members of the third defendant. The misrepresentations, they argued, induced them to act as they did to their actual prejudice. The defendants, they said, by word or conduct, created false impressions in their minds and the impressions induced them to act in the way which they did much to their serious loss. They argue that the defendants made the false statements with the specific intention to defraud them.

The argument of the defendants is that the statements were not made to the plaintiffs alone. They were made to all members of the third defendant, and during church service.

The plaintiffs declaration shows that whilst the statements were made to all members of the third defendant, the plaintiffs acted upon them. These, it is evident, enjoyed a special privileged position in the third defendant. A reading of each claim shows the following:

Claim 1:

The first and second defendants knew, before the date the statement was made, that the plaintiffs had an existing ZB Bank loan to the tune of $500,000. The plaintiffs had informed them of that matter privately. The statement, which was to the effect that anyone with a bank debt or loan would be cancelled as it was the season of miraculous cancellation of debts did induce the plaintiffs, more than any other congregant, to believe the defendants. They did, and, in the process, they lost their Marlborough house as a result of the same.

Claim 2:

The defendants statement, which was to the effect, that, one Tichaona Mawere was a great lawyer who would never lose a case, was taken seriously by the plaintiffs. Out of their trust in the defendants, they handed their case to Mr Mawere for his attention. When he produced no results, they consulted the defendants on the same. These assured them that everything was above board.

Claim 3:

The first and second defendants would call the plaintiffs onto the stage, presumably during church service, and announce to the congregants that the plaintiffs were a successful example of their Ministry. Such statements encouraged the plaintiffs to pour more and more contributions, in the form of money, into the third defendant's pocket.

Claim 4:

The defendants paraded the plaintiffs on stage, presumably during church service, and showed them as the chosen people whom God showered with blessings to a point where they were regarded as successful business people.

It is evident, from the foregoing, that, the plaintiffs and the defendants enjoyed very good social, and possibly, spiritual ties. That fact alone explains why the plaintiffs took the word of the defendants more seriously than any other member of the third defendant did.

That the defendants made the statements, in words or deed, in all the four claims, requires little, if any, debate.

The statements, the plaintiffs argue, were false.

They were made with the intention that they act upon them. They so acted upon them to their actual prejudice in regard to each claim. They stated, and correctly so, that, if they had known the true facts, they would not have acted in the manner which they did.

The plaintiff's case in regard to the four claims is water-tight. There is nothing which is vague and/or embarrassing in each of those claims. Their cause of action for each is clear, cogent, and to the point. The claims fall neatly into the delict of fraud. They are neither frivolous nor vexatious.

The defendants urged the court not to concern itself with the claims of the plaintiffs. They submitted that the claims arose from proceedings which took place within the third defendant. They said the proceedings related to matters of faith in which the court had no business.

They, in the mentioned regard, referred the court to the dictum of DOUGLAS J who made some remarks on a matter which was similar to the present one. The learned judge stated in United States v Ballard 322 US 78 (1944) that religious doctrines and beliefs could not be subjected to the rigours of legal proof.

The defendants took their arguments to the jurisdiction of this court.

They referred me to what DEVITTE J stated in Independent African Church v Maheya HH79-90 wherein he remarked as follows:

“…, in the case of a congregational schism, where the resolution of a church property dispute involves matters of church doctrine and practices, the courts should not become immersed in a consideration of the merits of doctrinal matters. They ought, instead, to use a term applied by the American courts to apply 'neutral principles of law.'”

The plaintiffs argued to the contrary.

They stated that the court can, indeed, inquire into matters ecclesiastical. They, in the mentioned regard, placed reliance on Church of the Province of Central Africa v Diocesan Trustees of the Diocese of Harare SC48-12 which they said rejected the position which this court took in Independent African Church v Maheya HH79-90.

They insisted that the current case does not require the court to inquire into matters ecclesiastical. They said it requires the court to inquire into the defendants lies.

They placed further reliance on Robert Martin Gumbura v The State SC78-14 wherein PATEL JA, dismissing Gumbura's appeal for bail pending appeal, stated as follows:

“In the circumstances presented by this case, the quasi-mystical force of religious dogma might overwhelm its conscripts and devotees to a point where it operates to vitiate and negate any meaningful consent to sexual abuse and exploitation by their spiritual masters.

Taking a broad conspectus of the facts and probabilities in casu, it appears to me that the complainants having been enmeshed within the overpowering cocoon woven by the appellant, unwillingly succumbed to his sexual advances and predations. Thereafter, constrained by fear and misconception, they remained taciturn for several years and only reported their respective ordeals after appreciating the full nature of their sexual bondage.”…,.

The background to the above citation is that Gumbura, like the first two defendants, was a leader of his church. He was tried and convicted of rape by a magistrate. He appealed to this court against conviction and sentence. He unsuccessfully applied to the magistrate for bail pending appeal. He appealed to this court and also failed. He appealed to the Supreme Court against the decision of this court which refused to grant him bail pending appeal. He submitted, as a ground of appeal, that the complainants took an inordinate delay to complain against what he was alleged to have done to them. He said the complainants delay in reporting the rape showed that his prospects of success on appeal were very strong.

The learned judge of appeal rejected his argument.

He remained of the view, that, Mr Gumbura had to prosecute his appeal while he is in prison. He, therefore, dismissed the appeal.

Two important matters come out of the above cited case:

(i) The first is that every person is fallible. No one is, therefore, immune to making mistakes. That is so notwithstanding the person's standing, social, spiritual or otherwise, in society.

(ii) The second is that, where one commits a crime or a wrong (i.e delict) the person cannot escape the long arm of the law. He will either be prosecuted or sued, depending on what he is alleged to have done. That depends on the definition which society places on his conduct. That will, once again, occur irrespective of his status, social, spiritual or otherwise, in society.

Applying the above-observed matters to the current case, therefore, the defendants cannot be allowed to hide behind the proposition that their situation relates to ecclesiastical matters which the court has no jurisdiction to determine.

A fortiori when Independent African Church v Maheya HH79-90, upon which they placed reliance, was over-ruled by the Supreme Court.

Where they are alleged, as in casu, to have acted fraudulently to the prejudice of some of their congregants, the latter have every right to sue them.

The plea which they advance will not, therefore, assist them.

The last two claims of the plaintiffs (i.e. 5 and 6) were not elegantly drafted.

The plaintiffs position in regard to the fifth claim is that the defendants issued malicious statements which affected the business of the plaintiffs. They describe the statement as being defamatory of them.

The defendants stated, that, the claim does not plead the particulars of the alleged defamatory publication with sufficient particularity. They submitted that it does not identify the “sting thereof.” They averred that they did not plead that the alleged material, whatever it is and howsoever allegedly published, is per se defamatory.

The statement which is the subject of the defendants complaint reads:

“25. The defendants caused damages through defamation of character by publishing false articles against the plaintiffs and their business activities; articles claiming that plaintiffs perfumes cause cancer.”…,.

The plaintiffs should have couched their claim in a clearer manner than they did.

The claim, in my view, falls under injurious falsehood more than it does fall under the delict of defamation of character.

The allegedly false statement about the plaintiffs was made to third parties who acted upon it with the result that the plaintiffs suffered financial loss.

The delict is committed when the defendant intentionally publishes, to a third party, a statement concerning the plaintiff or his business which the defendant knows or suspects is false intending that the third party will act upon it and that the plaintiff will be caused financial loss: see FELTOE's, A Guide To The Zimbabwean Law of Delict…,.

The last claim (i.e. 6) falls under the delict of injuria.

This is committed when a person, without justification, intentionally affronts another's dignity or invades the other's privacy.

The plaintiffs alleged that the defendants exposed the plaintiffs private lives on the defendants Facebook online page, The Truth About Prophet Makandiwa. They submitted that they had given the information about them to the defendants in private.

It is evident, from the foregoing, that, whilst the headings which related to the two claims were erroneously stated, the substance of each claim discloses a clearly defined cause of action.

A request for further particulars by the defendants would have assisted the plaintiffs to realize that the heading of each claim was stated in error. They would, therefore, have effected the necessary amendments to the same, and, in the process, allowed the defendants to know what the plaintiffs case in regard to each of those claims was.

The defendants have not pleaded to the plaintiffs claims.

The plaintiffs stated, that, where necessary, they would move the court to permit them to amend those of their claims which remained unclear to the defendants.

The law allows them to effect the amendments in respect of claims (5) and (6): see Addler v Elliot 1988 (2) ZLR 283 (SC)…, and Green v Lutz 1996 RLR 633…,.

The amendments, I am satisfied, will not prejudice the defendants in anyway.

All the three defendants were properly sued.

The first two's suit lies in the statements which they made. The suit of the third defendant hinges on the fact that it connected the plaintiffs to the defendants. The bond which the plaintiffs created with the first two defendants emanates from the fact that the plaintiffs became members of the third defendant in which the first and second defendants were/are leaders. The last two claims also follow from the parties initial relationship.

In the premise, it is ordered that:

1. The defendants exception, in regard to all the six claims, be and is hereby dismissed with costs.

2. Leave be and is hereby granted to the plaintiffs to amend their declaration and prayer in regard to claims (5) and (6) within ten (10) days of their receipt of this judgment.

3. Thereafter, the matter shall proceed in terms of the High Court Rules 1971.

Appealed
SC95-21 : UPENYU MASHANGWA and BLESSING MASHANGWA vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and UNITED FAMILY INTERNATIONAL CHURCH
Ruled By: GWAUNZA DCJ, MAKONI JA and BERE JA

This is an appeal against the whole consolidated judgment of the High Court dismissing the appellants application in HC4197/18 and granting the respondents application in HC1774/18.FACTUAL BACKGROUNDThe appellants are husband and wife and were, at one point, members of the United Family International Church (“UFIC”), the third respondent in casu.The ...

This is an appeal against the whole consolidated judgment of the High Court dismissing the appellants application in HC4197/18 and granting the respondents application in HC1774/18.

FACTUAL BACKGROUND

The appellants are husband and wife and were, at one point, members of the United Family International Church (“UFIC”), the third respondent in casu.

The first and second respondents are also husband and wife and are the leaders (prophet and prophetess, respectively) of the United Family International Church (UFIC).

In the court below, the appellants instituted an action against the respondents, under HC7214/18 claiming a total sum of US$6,535,000 to be paid jointly and severally, the one paying the others to be absolved, broken down as follows:

“(a) Damages for US$700,000 being the value of property number 14 Edinburgh, Marlborough, Harare.

(b) A refund of the sum of US$1,698,000 for misrepresentation.

(c) US$37,000 being refund for fees paid to Tichaona Mawere.

(d) An amount of US$1,100,000 being a refund paid to the defendants.

(e) An amount of US$2,000,000 being damages for fraud and misrepresentation.

(f) An amount of US$500,000 being damages for mental anguish.

(g) US$500,000 being damages for defamation of character. (sic)

(h) Payment of interest on the sums in (a) to (g) above at the prescribed rate from the date of demand to the date of full and final payment.

(i) Payment of costs of suit on a legal practitioner and client scale.”

The claims were particularised in the declaration as summarised hereunder:

CLAIM ONE

In 2012, and during church proceedings, the first and second respondents fraudulently misrepresented to the appellants “that anyone with a bank debt or loan was to be cancelled as it was a season of miraculous cancellation of debts.” (sic)

It is alleged, that, this followed after the respondents had been 'privately' informed that the appellants had an existing ZB Bank loan in the sum of US$500,000.

As a result of this misrepresentation, the appellants were induced not to pay back the loan, and, as a consequence, the Bank executed on their immovable property thus causing them to lose a property worth US$700,000.

CLAIM TWO

In the same year, the respondents misrepresented in church, that, one Tichaona Mawere (Mawere) “was a great lawyer and that he would not lose a case” when in fact he was not a registered legal practitioner.

Acting on the misrepresentation, the appellants instructed the said Tichaona Mawere (Mawere) to handle their matter for a claim of US$1,698,000 and expended fees in the sum of US$37,000. Mawere produced fake court orders resulting in them making a loss to the tune of US$1,735,000.

CLAIM THREE

That, in the period ranging from 2014 to 2016, the appellants were called on stage in church. The respondents would announce that the appellants “were a successful example in the Ministry.”

Acting on these “misrepresentations” the appellants made various direct contributions amounting to US$1,100,000 to the respondents. The respondents would represent “that, in so contributing, the plaintiffs (the appellants) would reap what was commensurate with their contributions.”

CLAIM FOUR

The appellants were again paraded in church on stage “as a chosen people by God to have succeeded in business.”

As a result of that further “misrepresentation” the appellants marketed the respondents prophecies for the advancement of the respondents interests and “their prophesies as the success story of the prophesies.” In the process, the appellants were prejudiced to the tune of US$2,000,000.

CLAIM FIVE

Before the amendment, which I shall deal with later, the claim was that “the defendants (the respondents) caused damages through defamation (sic) by publishing false articles against the plaintiffs and their business activities; articles claiming that the plaintiffs perfumes cause cancer.”

CLAIM SIX

The appellant's claimed that “the defendants caused mental anguish to the plaintiffs, emotional embarrassment and torture by exposing the plaintiffs private lives on the defendants Facebook online page 'The Truth About Prophet Makandiwa.'”

It was further averred, that, the information had been given to the respondents “in private” and the statements were meant to destroy their reputation.

Upon being served with the summons, the respondents entered an appearance to defend.

They further addressed a letter to the appellants, in terms of Rule 140 of the High Court Rules 1971 (the Rules), to the effect that the claims in question were vague and embarrassing and that they did not disclose a cause of action.

It was averred that it was not clear whether the appellants were suing in terms of Contract or under the Law of Delict, and, as regards claims five and six, whether the claims were made under defamation or injuria.

The appellants did not respond to this letter.

Consequently, the respondents filed an exception to the appellants summons and declaration.

The exception was dismissed on 12 January 2018 by MANGOTA J who ordered that the appellants amend their declaration in respect of claims five and six, that the respondents file their plea, and that the matter proceeds in terms of the Rules.

As directed, the appellants amended their declaration in respect of claims three, five, and six.

CLAIM THREE

It was amended by the addition of paragraph 20.1.

It was claimed, that, upon being confronted by the appellants, the respondents undertook to repay the appellants all the money they had contributed upon proof of such payment. Despite being furnished with the proof, the respondents have refused or neglected to pay in accordance with their undertaking.

CLAIM FIVE

It was amended by deleting the original claim and substituting it as summarised below:

The appellants were in the business of manufacturing and selling perfumes. On or around 16 August 2016, and after the fallout between the appellants and the respondents, the respondents caused to be published an article in the Herald Newspaper in which they said:

“You just need one person who can move around telling people that your perfumes can cause cancer and the news begins to spread; your company will begin to go down.” (sic)

“The statement was false and the respondents intended to spread a rumour and thereby injure the appellants in their trade. In view of the close relationship between the parties before the fallout, the words of the respondents caused a rumour to spread that the appellants perfumes cause cancer. As a result of the statement, and the subsequent rumours, the public desisted from purchasing appellants perfumes. Consequently, the appellants, through their company, ceased to manufacture the perfumes. The appellants suffered damages due to the respondents wrongful conduct in the sum of USD$500,000.”

CLAIM SIX

The original claim was deleted and substituted with a claim summarized as follows:

On or about 2 February 2017, the respondents caused to be published on their Facebook page titled “The truth about Emmanuel Makandiwa” private and intimate details of the appellants which they had received in confidence. The publication of the details was wrongful and was done with an intention to injure the appellants standing in society, and was done in the wake of the fallout between the parties. Appellants suffered damages, as a result of the unlawful intrusion into their private lives, in the sum of USD$500,000.

Following the dismissal of the exception, and, on 23 February 2018, the respondents filed an application for the dismissal of the appellants claims in toto in terms of Order 11 Rule 75 of the High Court Rules, under HC1774/18.

The respondents, having failed to prosecute their application under HC1774/18 timeously, the appellants filed a chamber application for dismissal of the same for want of prosecution in terms of Rule 236(3)(b) of the High Court Rules, on 8 May 2018, under HC4197/18.

Since both matters were set down for hearing at almost the same time, and, before different judges, a request was made for their consolidation and it was granted.

DETERMINATION BY THE COURT A QUO

The court' s approach was to determine the application in terms of Rule 236(3)(b) of the High Court Rules under HC4197/18 first.

It opined, that, if it granted the relief being sought by the appellants that would be the end of both matters. If it dismissed the application, then, it would proceed to hear the respondents application in terms of Rule 75 of the High Court Rules, under HC1774/18, which it coined the main matter.

Regarding the application for dismissal for want of prosecution, the court found that the reasons proffered for the delay in prosecuting the matter were reasonable. It also stated that it had a discretion to discharge the application or make any other order as it deemed fit in the circumstances.

In the result, the application for dismissal for want of prosecution was dismissed and the court ordered that the main matter be heard on the merits.

Pertaining to the issue of the dismissal of the appellants claims, in terms of Rule 75 of the High Court Rules, the court a quo dealt with each of the appellants claims in turn.

It found, that, the appellants claims were frivolous and vexatious and warranted summary dismissal.

Aggrieved by the decision of the court a quo, the appellants noted an appeal to this Court. This is the appeal that this Court is seized with.

GROUNDS OF APPEAL

“1. The court a quo erred and misdirected itself in that having found that respondents had, by their admission, failed to prosecute their cause within the prescribed period, it ought to have dismissed for want of prosecution; no special circumstances existing to exercise a discretion in their favour.

2. The court a quo grossly erred and misdirected itself in that a prior judgment of the High Court, in HH10-18, having established that a valid and substantiated cause of action based on fraud existed between the parties, it could not render otherwise.

3. A fortiori the court a quo effectively reviewed and contradicted an extant earlier judgment of a judge of parallel jurisdiction on the same cause, between the same parties, contrary to the principles of res judicata and issue estoppel.

4. The court a quo further erred and misdirected itself in finding, contrary to law, that, fraud and fraudulent misrepresentation did not constitute a valid cause of action at law; subsequently, the court a quo erred in failing to find that the question of whether fraud and its constituent elements had been proven was an evidentiary issue reserved for trial.

5. The court further grossly erred and misdirected itself in determining the matter regardless of conflicting material averments which could not be resolved on affidavit a fortiori, it could not find as a matter of fact that the claims by the appellants were frivolous and vexatious, absent evidence and its testing in contested action proceedings.

ISSUES

Although the appellants raised five grounds in their notice of appeal, the matter, in my view, stands to be disposed on three issues viz;

1. Whether or not the court a quo erred in failing to dismiss the respondents application for want of prosecution.

2. Whether or not the court a quo reviewed and contradicted an extant earlier judgment of a judge of parallel jurisdiction thereby violating the principles of res judicata and estoppel.

3. Whether or not the court a quo erred and misdirected itself in determining the matter regardless of the existence of alleged conflicting material averments which could not be resolved on affidavit.

APPLICATION OF THE LAW TO THE FACTS

1. Whether or not the court a quo erred in failing to dismiss the respondents application for want of prosecution

In their first ground of appeal, the appellants take issue with the fact that the court a quo erred and misdirected itself in that having found that the respondents had, by their admission, failed to prosecute their cause within the prescribed period, it ought to have dismissed it for want of prosecution, as no special circumstances existed for it to exercise its discretion in their favour.

The law on applications for dismissal for want of prosecution is settled.

In Guardforce Investments (Private) Limited v Ndlovu & Others SC24-16 the court said:

“The respondent applied to have the appellant's case dismissed for want of prosecution in terms of Rule 236(3) of the High Court Rules, which provides as follows:

'236 Set down of Applications

(3) Where the respondent has filed a notice of opposition and opposing affidavit, and, within one month thereafter, the applicant has neither filed an answering affidavit nor set matter down for hearing, the respondent, on notice to the applicant, may either –

(i) Set the matter down for hearing in terms of Rule 223; or

(ii) Make a chamber application to dismiss the matter for want of prosecution; and the judge may order the matter to be dismissed with costs or make such other order on such terms as he thinks fit.'

The discretion to dismiss a matter for want of prosecution is a judicial discretion, to be exercised taking the following factors into consideration –

(a) The length of the delay and the explanation thereof;

(b) The prospects of success on the merits;

(c) The balance of convenience and the possible prejudice to the applicant caused by the other party's failure to prosecute its case on time.”

For the appellants to establish that the court a quo misdirected itself in the manner alleged, they have to satisfy this Court that they met all the requirements as set out in Guardforce Investments (Private) Limited v Ndlovu & Others SC24-16.

In casu, the appellants did not satisfy these requirements.

They did not relate at all to the prospects of success they had in the main matter. They did not show that they suffered prejudice due to the respondents non-timeous action.

The grant or refusal of an application for dismissal for want of prosecution is an exercise of discretion. Rule 236(3) of the High Court Rules clearly bestowed discretion on the court a quo on whether to grant or dismiss the application.

In casu, the court a quo exercised its discretion not to dismiss the main matter because the respondents had filed their answering affidavit, heads of argument, and applied for set down of the matter following service of the application for dismissal upon them.

In this light, the court a quo found that despite the delay in filing their answering affidavit and heads of argument, there was no utter disregard of the rules of the court. It further found, that, the explanation given by the respondents, in the circumstances, was reasonable, and, that Rule 236 of the High Court Rules, was not mandatory.

It gave the court a discretion which must be exercised in the interest of justice and finality to litigation.

For this Court to vacate the court a quo's exercise of discretion, certain requirements have to be met.

The laid down test has to be pleaded and met.

It has to be shown that the court a quo, in its exercise of discretion, was motivated by ulterior motives and not the dispensation of justice. It has to be shown, that, the exercise of discretion in the manner the court a quo did was actuated by malice, bias, improper motives, and any other considerations extraneous to the court's conduct prescribed by the law: see Barros & Anor v Chimphonda 1999 (1) ZLR 58 (SC); Barclays Bank of Zimbabwe Limited v Mahachi SC62-04; Robinson v Minister of Lands and Anor 1994 (2) ZLR 171 (S)…,.

In my view, the appellants have not met the test.

They have not shown that the exercise of the court's discretion was motivated by ulterior motives. They have further not proved that there was malice and any other extraneous consideration that influenced the court a quo to exercise its discretion in the manner it did.

There being no proper basis laid out for interfering with the decision of the court a quo, this ground of appeal has no merit and ought to be dismissed.

2. Whether or not the court a quo reviewed and contradicted an extant earlier judgment of a judge of parallel jurisdiction thereby violating the principles of res judicata and estoppel

This issue deals with grounds two and three. Put differently, the issue is whether the determination of an exception to the summons and declaration, taken in terms of Order 21 Rule 137(1)(b) of the High Court Rules, bars a litigant from seeking a dismissal of the same action for being frivolous and vexatious under Order 11 Rule 75 of the High Court Rules.

The thrust of the appellants argument is that MANGOTA J's finding that they had a substantiated cause of action, based on fraud, precluded TAGU J from making a finding that the claims were frivolous and vexatious.

It was submitted that TAGU J was bound by the principles of res judicata and estoppel to abide by the extant order of MANGOTA J.

The referred question can be determined by ascertaining the law governing exceptions and dismissal of actions and the nature of the cases before the respective judges.

EXCEPTIONS TO PLEADINGS

Rules 137 and 141 of the High Court Rules regulate the procedure to be followed in raising exceptions and the court's powers thereto respectively.

In terms of Rule 137(1)(b) of the High Court Rules, a party can except to the whole pleadings or the specific offending parts. Rule 141(a)(ii) of the High Court Rules empowers the court to make an order striking out or allowing the amendment of the matter contained in a pleading.

In HERBSTEIN & Van WINSEN's The Civil Practice of the High Courts of South Africa, the purpose of an exception procedure was elucidated as follows:

“The taking of an exception is a procedure which is interposed before the delivery of a plea on the merits by a defendant or before the delivery of a replication or joinder of issue by a plaintiff. It is designed to dispose of pleadings which are so vague and embarrassing that an intelligible cause of action or defence cannot be ascertained or to determine such issues between the parties as can be adjudicated upon without the leading of evidence.”…,.

What constitutes a vague and embarrassing pleading was considered in Trope & Ors v The South African Reserve Bank 1992 (3) SA 208…, where the court quoted with approval the lower court's statement that:

“And, if the pleadings lack sufficient clarity to enable the defendant to determine those facts and hence the case he has to meet, the pleadings are vague and embarrassing.”

The test applicable in deciding exceptions based on vagueness and embarrassment arising out of lack of particularity are as summarised by Erasmus Superior Court Practice…, as follows;

“(a) In each case, the court is obliged to first of all consider whether the pleading does lack particularity to an extent amounting to vagueness. Where a statement is vague, it is either meaningless or capable of more than one meaning. To put it simpler, the reader must be unable to distil from the statement a clear single meaning.

(b) If there is vagueness in this sense, the court is then obliged to undertake a quantitative analysis of such embarrassment as the excipient can show is caused to him or her by the vagueness complained of.

(c) In each case, an ad hoc ruling must be made as to whether the embarrassment is so serious as to cause prejudice to the excipient if he or she is compelled to plead to the pleading in the form to which he or she objects. A point may be of the utmost importance to the case, and the omission thereof may give rise to vagueness and embarrassment, but, the same point may, in another case, be only a matter of detail.

(d) The ultimate test as to whether or not the exception should be upheld is whether the excipient is prejudiced.”

See also Sammys Group (Pvt) Ltd v Bourchier Meyburgh N.O. & Ors SC45-15.

From the cited authorities, it can be noted that an exception relates to the formulation of a claim.

A claim must be articulated with sufficient particularity such that it discloses an intelligible cause of action failing which it may be termed vague and embarrassing.

However, the court may set aside the pleadings, and, upon request, grant the plaintiff leave to file an amended pleading within a certain period.

Dismissal at this stage is a drastic remedy, thus, the courts have inclined towards the grant, where an exception is upheld, of leave to the plaintiff to amend the offending pleadings.

THE NATURE OF THE CASE BEFORE MANGOTA J

The court was called upon to determine whether the claims before it were vague and embarrassing to the extent that a party could not easily understand and plead to them without difficulty owing to an unclear cause of action.

In the exception, claims 1, 2, 4, 5 and 6 were alleged to be vague and embarrassing. It is only claim 3 which was said to be not only frivolous and vexatious but vague and embarrassing as it did not disclose a cognizable cause of action.

However, in their heads of argument, the respondents argued that the summons and declaration were expiciable on the basis that they did not disclose any cause of action against them and that they were vague and embarrassing to the extent that the vagueness and embarrassment went to the root of the cause of action.

A reading of the court's judgment shows, that, the court was alive to the case before it which was an exception to the summons and declaration for being vague and embarrassing. To that end, it determined the following question:

“…, whether or not one or more, or all, of the claims do not, as the defendants alleged, disclose a cause of action.”

Thereafter, the court analyzed whether each of the appellant's claims established a cause of action against the respondent.

However, in finding that four of the appellants claims showed clear and cogent causes of action and fell under the delict of fraud, the court remarked that the claims were “neither frivolous nor vexatious.”

A close look into the court's judgment shows that the phrase 'frivolous or vexatious' was employed concerning whether or not the claims subject to the exception disclosed a cause of action and whether or not they were clear and not vague and embarrassing.

It would appear that the phrase was loosely used if regard is had to the issue the court determined and the resultant disposition of the court (an amendment of the vague and embarrassing claims envisaged by Rule 141 of the High Court Rules).

DISMISSAL OF ACTION FOR BEING FRIVOLOUS AND VEXATIOUS

Order 11 Rule 75 of the High Court Rules allows a defendant, who has filed a plea, to seek dismissal of an action that is frivolous and vexatious. It states:

“ORDER 11 DISMISSAL OF ACTION

75. Application for Dismissal of Action

(1) Where a defendant has filed his plea, he may make a court application for the dismissal of the action on the ground that it is frivolous or vexatious.

(2) A court application in terms of subrule (1) shall be supported by affidavit made by the defendant or a person who can swear positively to the facts or averments set out therein, stating that in his belief the action is frivolous or vexatious and setting out the grounds for his belief.

(3) A deponent may attach to his affidavit filed in terms of subrule (2) documents which verify his belief that the action is frivolous or vexatious.”

In Rogers v Rogers and Anor 2008 (1) ZLR 330 (S)…, the court, dealing with an appeal against a decision dismissing a claim and granting absolution from the instance in terms of Order 11 Rule 79(2) on the ground that it was frivolous, accepted the following definition of frivolous:

“In S v Cooper & Ors 1977 (3) SA 475 at 476D BOSHOFF J said that the word 'frivolous' in its ordinary and natural meaning connotes an action characterized by lack of seriousness, as in the case of one which is manifestly insufficient.

An action is in a legal sense 'frivolous or vexatious' when it is obviously unsustainable, manifestly groundless, or utterly hopeless and without foundation: see also Western Assurance Co. v Caldwell's Trustee 1918 AD 262 at p271; Corderoy v Union Government 1918 AD 512 at p517; Wood NO v Edwards 1968 (2) RLR 212 at 213A-F; Fisheries Development Corporation v Jorgensen & Anor 1979 (3) SA 1331 at 1339E-F; Martin v Attorney General & Anor 1993 (1) ZLR 153 (S).

It appears to me, that, a plaintiff who commences action in a court of law when he or she has no reasonable grounds to do so has no cause of action. An action without a good cause is baseless and obviously unsustainable.”

Dismissal under Rule 75 of the High Court Rules is therefore a drastic remedy intended to resolve actions that are baseless and unsustainable.

THE NATURE OF THE CASE BEFORE TAGU J

The court per TAGU J, inter alia, determined the respondents application for dismissal of the appellants claims in terms of Rule 75 of the High Court Rules on the basis that they were frivolous and vexatious.

This was after the appellants had amended their claims pursuant to MANGOTA J's order and the respondents had filed their plea.

Notwithstanding the amendment, the respondents argued that the proceedings were not seriously brought with bona fide intent of obtaining relief as the appellants causes of action were founded on falsehoods.

As alluded to, Rule 75 of the High Court Rules allows the course of action taken by the respondents.

Thus, the appellants must have averred material facts in the declaration, proof of which would constitute the essential elements of the alleged causes of action entitling them to the judgment of the court: see Rogers v Rogers and Anor 2008 (1) ZLR 330 (S).

In casu, the appellants claims 1-4 alleged that the respondents made material misrepresentations which caused them financial prejudice; claim 5 related to alleged defamatory statements by the respondents; and claim 6 to mental anguish, emotional embarrassment, and torture due to the respondents exposing their private lives on social media platforms.

The essential elements of the alleged causes of action must have been provided.

Therefore, Rule 75 of the High Court Rules goes beyond the formulation of a claim. It looks into the legal validity of a claim.

Unlike an exception, an inquiry into whether a claim is frivolous and vexatious goes beyond the wording of a claim, it looks into whether the claim has any legal basis or merit. Where it is unsustainable, manifestly groundless, or utterly hopeless and without foundation it is frivolous and may be dismissed.

ANALYSIS

There is no provision in the rules of the High Court that bars a litigant who excepts to a summons and declaration for being vague and embarrassing, under Rule 137 of the High Court Rules, from seeking the dismissal of the matter under Rule 75 of the High Court Rules on the basis that it is frivolous and vexatious.

The Rules relate to different procedural concepts, are invoked at different legal stages, and afford a party distinct legal relief.

The respondents properly invoked each of the Rules, thus, the court per TAGU J cannot be faulted for determining the peculiar application before it which was distinct from the one MANGOTA J dealt with.

Therefore, res judicata does not arise as the issues dealt with by MANGOTA J and TAGU J were different.

THE PROPRIETY OR OTHERWISE OF MANGOTA J's ORDER

I pause momentarily and digress to note, that, there is case law to the effect that it is a misdirection for a court to dismiss an exception taken and simultaneously allow a party to amend their pleadings.

In Chimakure & Anor v Mutambara & Anor SC91-20, the court held that:

“[23] For the sake of convenience, I will begin with the nature of the relief ordered by the court a quo. The court dismissed the exception. It found that the pleadings were not excipiable. Once the court found that the exception was not well taken it could not exercise the discretion of affording the respondents an opportunity to file further particulars. Such indulgence could only follow upon a finding that the exception was well taken. To that extent, it is my view that the court was guilty of a misdirection.”…,.

In Group Five Building Ltd v Government of the Republic of South Africa (Minister of Public Works and Land Affairs) 1993 (2) SA 593A…, the court remarked:

“As far as I am aware, in cases where an exception has successfully been taken to a plaintiff's initial pleading, whether it be a declaration or the further particulars of a combined summons, on the ground that it discloses no cause of action, the invariable practice of our courts has been to order that the pleading be set aside and that the plaintiff be given leave, if so advised, to file an amended pleading within a certain period of time.”…,.

In light of this, this court finds that it was a misdirection for MANGOTA J to dismiss the respondents exception on all claims and grant the appellants leave to amend claims 5 and 6.

In conclusion, TAGU J properly dealt with the claim for dismissal before him.

This is for the reason, that, there is nothing in the Rules to suggest that once the determination of an exception filed under Rule 137 of the High Court Rules has been made, a party cannot move for the dismissal of an action under Rule 75 of the High Court Rules.

The appellants grounds two and three have no merit and ought to be dismissed.

Regarding grounds four and five, the court, at the outset during the hearing, enquired of counsel for the appellants whether these grounds had been abandoned as they had not been motivated in the Heads of Argument.

In response, counsel for the appellants advised, that, none of the grounds were being abandoned.

On being asked to direct the court to where these grounds were motivated, he directed the court to paragraph 15 of the appellants Heads of Argument. This is what paragraph 15 states;

“Even if the court per TAGU J could revisit the question, it still did so wrongly and wrongfully. That there is a valid cause of action is beyond doubt. The law allows refunds and reimbursements for unlawfully paid funds. As a result, there cannot be argument that no cause of action can arise.”

The argument advanced in this paragraph completely misses the respondents position.

It is not that there is no cause of action. It is that the appellants pleaded falsehoods and that they could never succeed at trial on the facts as pleaded. Their action was therefore frivolous and vexatious.

The paragraph also misconstrues the finding of the court a quo.

Nowhere in the judgment a quo is it stated that a misrepresentation did not constitute a valid cause of action.

The court a quo examined each claim separately and gave reasons as to why it found each claim to be frivolous and vexatious. The crisp finding of the court a quo, in respect of each claim, was that on the facts as pleaded by the appellants, no competent cause could be sustained.

By way of illustration, in Claim One, the appellants alleged that the respondents alleged that they stopped paying the loan that they had obtained from ZB Bank on the basis of a prophecy made by the respondents to the effect that it was “a season of miraculous cancellation of debts.”

It could not, on the facts as pleaded by the appellants, be established through a deeds search at the Registrar of Deeds office that the appellants owed ZB Bank Limited USD500,000 and that the property they allegedly lost was bonded in favour of ZB Bank for that amount.

It could not be supported, factually, through a search carried out in the Civil Registry of the High Court that ZB Bank sued the appellants for USD500,000 between 2012 and 2017 as alleged, and that the property in question was attached or sold in execution as alleged or at all at the instance of ZB Bank Limited.

The reality on the ground, which the appellants never controverted, was that the property was at all material times owned by Carmeco Investments (Private) Limited (Carmeco) a separate persona from the appellants in terms of Deed of Transfer No.10763/2002 dated 24 September 2002.

In that regard, the law relating to companies applies with full force and effect.

The appellants cannot claim to have been prejudiced in respect of what they did not own.

In any event, as early as 29 February 2012 Carmeco Investments (Private) Limited had sold the property for USD800,000 to Nemajo Family Trust as represented by Steward Nyamushaya. The purchase price thereof was paid in full through the appellants agents, McDowells International (Private) Limited.

At no time did it appear from the deeds search that Carmeco Investments (Private) Limited, which owned the property, mortgaged number 14 Edinburgh Road, Marlborough to ZB Bank Limited for the sum of USD500,000 during the period 2012 to 2017.

The above illustration clearly demonstrates that the appellants pleaded falsehoods.

In their notice of opposition to the application, the appellants did not controvert these facts.

They contended, that, they did not have to reply to the evidence submitted by the respondents as it was a matter of evidence to be related to at trial.

They overlooked the fact, that, in terms of Rule 75(2) and (3) of the High Court Rules a party making an application in terms of subrule (1) is required to do two things:

(i) Firstly, he or she shall file an affidavit in which he sets out his belief that the action is frivolous and vexatious and the grounds for his belief.

(ii) Secondly, he or she may attach documents which verify his or her belief that the matter is frivolous and vexatious.

Once that information has been placed before the court, it should be incumbent upon the other party to controvert it.

In casu, the appellants did not do so. Rather, they directed their energy to a vitriolic attack on the respondents instead of addressing the requirements of Rule 75 of the High Court Rules.

Having misconstrued the court a quo's finding, grounds of appeal four and five must fail.

Everything considered, I find no fault with the reasoning of the court a quo. No proper basis has been placed before this court to interfere with the court a quo's exercise of its discretion.

The respondents prayed for costs on a punitive scale, mainly on the basis that the lis a quo was an un-mitigated attack upon their good names. It was shown to be false. The respondents pockets have not been spared in the bid to protect themselves from a sustained assault upon their good names.

I see no reason why costs on a legal practitioner-client scale should not be granted.

Accordingly, I make the following order;

1. The appeal be and is hereby dismissed.

2. The appellants to pay the respondents costs on a legal practitioner client scale, jointly and severally, the one paying the other to be absolved.

View Appeal
HH40-19 : UPENYU MASHANGWA and ANOR HC4197/18 and EMMANUEL MAKANDIWA and OTHERS HC1774/18 vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and ANOR and UPENYU MASHANGWA and ANOR
Ruled By: TAGU J

The two matters were consolidated to avoid conflicting judgments as the two matters involving the same parties, and same issues, were ready for arguments at almost the same time before different judges.

At the hearing of the two matters, counsels for the parties did not make oral submissions but agreed that the two matters be decided on the papers filed of record.

The following is the background to the two matters.

Upenyu and Blessing Mashangwa (the Mashangwas) are husband and wife respectively. They are members of the United Family International Church (UFIC).

Emmanuel and Ruth Makandiwa (the Makandiwas) are also husband and wife respectively. The Makandiwas are leaders (prophet and prophetess respectively) of United Family International Church (UFIC).

In case HC7214/18 the Mashangwas filed summons in this Honourable Court containing six claims against the Makandiwas and the United Family International Church for a total sum of US$6,535,000 to be paid jointly and severally, the one paying the other to be absolved.

In their declaration, the Mashangwas claimed that:

(1) In the year 2012, at Harare, and in church, the Makandiwas fraudulently and misrepresented to the Mashangwas that anyone with a bank debt or loan was to be cancelled as it was the season of miraculous cancellation of debts after the Makandiwas were informed, privately, that the Mashangwas had an existing ZB Bank loan to the tune of US$500,000.

As a result of the misrepresentation, the Mashangwas were induced not to pay the ZB Bank loan, and, in the result, the Bank executed on the Mashangwas property being 14 Edinburgh Road, Harare for $500,000 thereby losing their house valued at $700,000.

(2) In the same year, the Makandiwas misrepresented, in church, that one Tichaona Mawere was a great lawyer who would not lose a case, when, in fact, Mr Tichaona Mawere was an unregistered legal practitioner.

Acting on the misrepresentation, the Mashangwas handed over their McDowell file to the said Tichaona Mawere for a claim of US$1,698,000 and expended in fees an amount of US$37,000. Tichaona Mawere then produced fake court orders and the Mashangwas lost a total sum of US$1,735,000.

(3) In the years ranging from 2014 to 2016, the Mashangwas were called on stage, in church, by the Makandiwas and were announced as a successful example in their Ministry (UFIC).

Acting on this misrepresentation, the Mashangwas made various direct contributions to the Makandiwas and the church money amounting to US$1,100,000.

(4) The Mashangwas were also paraded in church, on the stage, by the Makandiwas, as the chosen people by God to have succeeded in business.

As a result of the misrepresentation, the Mashangwas marketed the Makandiwas prophecies to the tune of US$2,000,000.

(5) and (6) In claims (5) and (6), they alleged that the Makandiwas defamed them thereby destroying their reputation and causing monetary loss to the tune of USD500,000.

Having been served with the summons, the Makandiwas entered appearance to defend the claims.

They proceeded to address a letter, in terms of Rule 140 of the High Court Rules 1971, to the Mashangwas pointing out that the claims were vague and embarrassing and that they did not disclose a cause of action, and asked whether they were suing in contract or delict; and, as regards claim (5) and (6) asked whether the claims were in defamation or injuria.

The Mashangwas did not respond to the letter, causing the Makandiwas to file an exception on 30 August 2017 to the Mashangwas pleadings in terms of Order 21 Rule 137(1)(b) in case HC7214/18.

The exception was heard on 6 November 2017 by MANGOTA J in respect of all the six claims but was dismissed on 12 January 2018 and the Mashangwas were ordered to amend their declaration in respect of claims (5) and (6), and, the Makandiwas to plead, and thereafter, the matter was to proceed in terms of the High Court Rules 1971.

However, after the dismissal of their exception, the Makandiwas filed another court application on 23 February 2018 for the dismissal of the Mashangwas claims in terms of Order 11 Rule 75(1) of the High Court Rules 1971 in HC1774/18.

The Mashangwas, having felt that the Makandiwas had neglected or failed to timeously prosecute the court application which they instituted under case HC1774/18, filed a chamber application for dismissal on 8 May 2018 under HC4197/18.

Both applications were ready for hearing at almost the same time, before different judges, hence the consolidation of the two applications.

ISSUES FOR DETERMINATION

This court is therefore being asked to decide two issues simultaneously:

(i) The first issue is whether the Makandiwas application should be dismissed for want of prosecution as prayed for by the Mashangwas in HC4197/18.

In the event of this court granting the relief asked by the Mashangwas, this would be the end of the matters and this court will not deal with the Makandiwas application.

(ii) However, in the event that this court dismisses the Mashangwas application for dismissal, the court will proceed to deal with the second issue pertaining to the Makandiwas application for dismissal of the Mashangwas claims in the main case under HC7214/17....,.

SHOULD MAIN MATTER BE DISMISSED IN TERMS OF ORDER 11 RULE 75(1) OF THE HIGH COURT RULES

After the dismissal of their exception in HC7214/17 the Makandiwas pleaded to the main case and filed this application for summary dismissal of the principal case as being frivolous and vexatious in terms of Order 11 Rule 75(1) of the High Court Rules 1971 (the Rules).

The principal case contained the six claims brought against them by the Mashangwas as outlined above. I shall endeavor to deal with each of the claims where possible.

Suffice to state, at this stage, that Rule 75 of the High Court Rules provides that:

“75 Application for Dismissal of Action

(1) Where a defendant has filed his plea, he may make a court application for the dismissal of the action on the ground that it is frivolous or vexatious.

(2) A court application in terms of subrule (1) shall be supported by affidavit made by the defendant or a person who can swear positively to the facts or averments set out therein, stating that in his belief the action is frivolous or vexatious and setting out the grounds for his belief.

(3) A deponent may attach to his affidavit, filed in terms of subrule (2), documents which verify his belief that the action is frivolous or vexatious.”

In their supporting affidavits, the Makandiwas prayed that the principal case must accordingly be summarily dismissed pursuant to Rule 75(1) of the High Court Rules, and contended, among other things, that the action in the principal case is not only both frivolous and vexatious, but also a self–evident gross and contemptuous abuse of the process of this court on the bases that -

“1. The plaintiffs have deliberately pleaded and founded their purported causes of action on deliberate and easily demonstrable falsehoods;

2. Each of the six (6) claims suffers from predictable failure and so groundless that no reasonable person could ever hope to obtain relief therefrom;

3. The principle case has not been brought with the bona fide intention of obtaining relief;

4. The proceedings have been brought with the sole and mala fide intention of annoying and harassing us. It as such amounts to the unmitigated abuse and contempt of this court and the process thereof; and

5. The principal case is inconsistent with reason and common sense, and, as such, unworthy of serious consideration.”

The respondents (the Mashangwas) opposed the application. They took seven points in limine. The points were:

(1) Matter passed in rem judicatam;

(2) Estopel;

(3) Disputes of fact;

(4) Unlawful reversal of order of proceedings;

(5) Attempt to avoid the consequences of a valid acknowledgement;

(6) Mala fides and abuse of court process; and

(7) Provisions of the Rules not available to applicants.

On the merits, they contended, among other things, that, Mr Makandiwa is a common fraudster, a false prophet who has no relationship with God, is a liar who lied about a lawyer called Tichaona Mawere, and many other ills....,.

AD MERITS

The Makandiwas filed this application in terms of Rule 75(1) of the High Court Rules 1971 for the summary dismissal of frivolous and vexatious action proceedings instituted by the Mashangwas in an action pending before this court under case number HC7214/17.

The respondents made six claims.

Their cause of action in claims 1-4 is said to fall into the delict of fraud. The fifth claim is said to relate to the delict of injurious falsehoods. The sixth claim has been held to fall under the delict of injuria.

A common thread runs through these claims.

They plead that they were members of the third applicant (United Family International Church), a Christian Church founded by the first and second applicants (Emmanuel Makandiwa and Ruth Makandiwa). They further allege that they either received prophesies or representations in church or that certain injurious publications were made of and concerning them or their business. Hence, they claimed various sums all aggregating to a staggering six and a half million United States Dollars.

The applicants pleaded to each of the six claims. They denied the allegations.

Their pleas were filed in contemplation of the present application for dismissal.

The applicants placed before the court a detailed verifying affidavit that traversed and attached incontrovertible evidence which they said exposed the falsity of the facts pleaded by the plaintiffs in their declaration.

The applicants, thereafter, filed the present application for the dismissal of the suit as frivolous and vexatious.

The application is strongly opposed by the respondents.

THE LAW

Rule 75 of the High Court Rules allows a defendant, who has pleaded, to apply for the summary dismissal of the action on the grounds that it is vexatious.

The defendants must, on notice of motion, positively swear to the facts and verify their belief that the action is vexatious and deserving of summary dismissal.

The purpose of this procedure is the same as that of the procedure for summary judgment or provisional sentence.

The court, if satisfied, has the inherent jurisdiction to disallow and dismiss proceedings that are frivolous or vexatious: see Ushewokunze Housing Co-oporative Society Limited v Crest Breeders International (Private) Limited HH529-16; Rogers v Rogers & Another 2008 (1) ZLR 330…,.; and S v Coopers & Others 1977 (3) SA 475…,.

The test to be applied can be explained in no better words than those of MAKARAU JP…, in Stationery Box (Pvt) Ltd v Natcon (Pvt) Ltd & Anor HH64-10 as follows:

“The test to be applied in summary judgment applications is clear and settled. The onus resting on a defendant resisting summary judgment has been described as amongst the lightest that the rules of procedure cast on the litigants. He does not have to prove his defence. He must merely allege facts, which, if he can succeed in establishing them at the trial, would entitle him to succeed in his defence.

The defence so set up must, however, be plausible and bona fide.

Obviously implied in this test, but oft overlooked by legal practitioners, is that the defendant must raise a defence. The facts alleged must lead to and establish a defence that meets the claim squarely. If the facts that he alleges, fascinating as they may be and which he may very well be able to prove at the trial of the matter, do not amount to a defence at law, the defendant would not have discharged the onus on him and summary judgement must be granted.

To defend a claim arising out of a contract of sale, the purchaser must attack either the existence of the agreement itself or the fact that the goods sold were not delivered to him. If other defences are raised, they must be raised explicitly. It is not the function of the court to put words into the defendant's mouth and thereby establish a possible defence on his behalf when the defendant fails to do so in his opposing affidavit.”

In the present case, the respondents ultimately denied any liability to the plaintiffs.

This application, therefore, turns on the law of summary dismissal of cases on the basis that they are frivolous and vexatious.

Order 11 Rule 75(1) of the High Court Rules, which provides for this procedure, states that the defendant may make an application for the summary dismissal of the case, after filing of his plea, on the grounds that it is frivolous and vexatious.

My sole duty is to determine whether or not the claims are frivolous and vexatious.

CLAIM ONE

In claim one, the Mashangwas alleged that in the year 2012, and in church, the Makandiwas fraudulently and misrepresented that anyone with a Bank debt or loan was to be cancelled as it was a season of miraculous cancellation of debts.

The essence of this claim is that the applicants, having been informed, privately, that the respondents were indebted to ZB Bank Limited in the sum of $USD500,000 made representations well knowing same to be false.

The respondents were induced to believe the applicants more than anyone else in the church and defaulted on the payment of their loan resulting in their house being executed.

This misrepresentation has been denied on the basis, that, the said property had been sold by the respondents as early as February 2012 for USD800,000 to the Nemanji Family Trust represented by one Steward Nyamushaya. Hence, the claim was based on falsehoods meant to annoy, vex, and harass the applicants and without any bona fide intention of obtaining relief.

Even if it is true that such a representation was made in church, it is inconsistent with common sense and reason that God would unconditionally cancel all the debts of every nature and description and that congregates should immediately stop paying any loans that they had even before the same had been cancelled; that congregates should accordingly not engage their creditors; and that congregates should ignore demands, court processes, judgments, notices of attachment and advertisements of sales in execution and must not take any steps to safeguard their positions.

The respondents, from the papers, are business people of undoubted and unparalleled acumen. They knew very well that the debts, if any, they had incurred, they had done so in terms of positive law and not ecclesiastical law.

Even in the Holy Bible, King James Version, in Genesis 3 v 19, God advised Adam in the following words:

“In the sweat of thy face shalt thou eat bread, till thou return unto the ground; for out of it was thou taken…,.”

“By the sweat of your face you shall eat bread, till you return to the ground, for out of it you were taken; for you are dust, and to dust you shall return.”: see The Gideons International version…,.

In the vernacular language: 'uchadya cheziya kusvikira murufu': this is loosely translated to mean there is nothing for free and every man shall work hard to achieve what he wanted until death, and that God would give them power and wisdom to achieve their goals and not just expect miracles to happen on their own.

If Makandiwa talked of season of miraculous cancellations of debts, he did not literally mean those with debts should go home and just sit waiting for debts to be miraculously wiped without them doing something about them.

The law on misrepresentations in delict is settled: see Murray v McLean N.O. 1970 (1) SA 133 (R).

I therefore find the first claim to be frivolous and vexatious and must be summarily dismissed with the contempt it deserves in terms of Order 11 Rule 75(1) of the High Court Rules.

CLAIM TWO

The allegations in Claim Two are that the applicants made representations, in church, that a certain Tichaona Mawere was a great lawyer and that he would not lose any case.

This representation was denied by the applicants.

The applicants alleged, that, the prophecy given concerned the Mawere's exclusively to their family problems. It particularly related to their legal skills at home in resolving their family disputes. The applicant said so while counselling the Maweres not to do so. Never was anyone told to engage Tichaona Mawere who was a great lawyer. The applicants alleged they could not have said so given the fact that the respondents had engaged one Tichaona Govere of Govere Law Chambers to act for them on 20 March 2013, on a contingent basis, to prosecute the case against McDowells in judgment number HH288-13 which was argued before TAKUVA J on 23 July 2013, whose judgment was delivered on 2 September 2013.

If at all something to that effect was said, the respondents are not saying they were directly told to engage Tichaona Mawere.

The claim was contrived and perjured.

In my view, if indeed the applicants said Tichaona Mawere was a great lawyer, or words to that effect, they did not specifically tell the Mashangwas to hire him. They just misconstrued the prophecy or sermon to their own prejudice.

It is equally frivolous and vexatious that no relief could be obtained from it. The claim deserves to be summarily dismissed.

CLAIM THREE

Claim Three is based on the fact, that, from the year 2014 to 2016, the Mashangwas were called on stage, in church, and were announced as a successful example in their Ministry, United Family International Church (UFIC), and, as a result, they made direct contributions to the church amounting to $1,100,000.

The gravamen of this claim is that the respondents lost the sum of USD$1,100,000 as a result of the representation made by the applicants: in short, they are saying if the applicants had not paraded them in church as a successful example in the Ministry they would not have made contributions to the church.

Contributions are generally known as tithes and offerings.

Tithes and offerings are biblical concepts recorded as early as the Book of Genesis. Tithes and offerings are acts of worship that edifies the relationship between the person who gives the offering and God. They are predicated on the believer's faith and are not enforced. They are free will offerings given in all the Christian Churches. Tithes and offerings constitute 10% of the giver or offeror's income, though, in practice, not all believers give the exact 10%. Only in certain churches is the 10% enforced by forcing the followers to declare their incomes from which the 10% is calculated.

If the respondents allegation is true, which may be so given that they are business people, then, their income during the period in question exceeded USD$11,000,000, and, if they believed the representation made by the applicants, that they are a successful example in the Ministry, they willingly parted with an amount of USD1,100,000.

However, what makes the claim frivolous and vexatious, in my view, is the fact that if ever the respondents parted with such kind of money inside the third applicant, United Family International Church (UFIC), those were free will offerings not recoverable from anyone - unless the respondents wish to try the impossible and get that from God, the receiver of the offerings.

How they hope to get a court to interpret scripture and say one reading is preferable to another in the Holy Bible remains a mystery.

In casu, the respondents admitted, in their pleadings, that the tithes they gave cannot be returned.

Having made that admission in pleadings, the admission thereof had fatal consequences to their case. The admissions are conclusive proof of the admitted fact and the respondents are, at law, precluded from controverting it.

This is our law.

See DD Transport (Pvt) Ltd v Abbort 1988 (2) ZLR 92 (SC); Moresby–White v Moresby White 1972 (3) SA 222 (RA).

This claim, like the others above, is frivolous and vexatious and is summarily dismissed.

CLAIM FOUR

Claim Four, with the greatest of respect, does not make sense; its vague and embarrassing.

The gravamen of the claim is that the respondents were paraded on stage, in church, and shown to the other congregates as the chosen people by God to have succeeded in their business. As a result, they then marketed the first applicant's prophecies (Emmanuel Makandiwa) for the advancement of the applicants interests and prophesies, when, in truth and fact, this was sheer misrepresentation and they lost USD2,000,000.

What the respondents are saying is that when they were paraded in church as the chosen people by God, in actual fact, they were not chosen people by God. That, when they were said to be successful in their own business (remember they were in fact business people) they were really not successful people. That, because of the praise made by the applicants, they went on their own way to market the applicants prophesies using their own funds without being ordered to do so by the applicants. They did so because they genuinely believed that they were the chosen people by God. They, in my view, decided to show off and lost USD2,000,000.

At law, they did not plead any cognizable or known cause of action.

This is bad in law, and is frivolous and vexatious to then claim the sum of USD2,000,000 from the applicants. If at all, this may fall under volenti non fit injuria (he who voluntarily exercises his will suffers no injury).

The claim is therefore frivolous and vexatious and must be summarily dismissed.

CLAIM FIVE AS AMENDED

The crux of this claim is that the applicants allegedly published defamatory material against the respondents company that sells perfumes to the extent that the company was forced to close.

The defamation, if at all it was made, it was made against the company and not the respondents.

However, the claim was denied by the applicants.

The law is trite and settled, that, a company is, at law, a separate persona that can sue for the wrongs committed against it or be sued for the wrongs it commits. This is principle and cannot be deviated from.

The principle is that the award made thereto is the company's assets and benefits and not the shareholders or directors.

The respondents are directors and/or shareholders of the company in question.

In Zimbabwe Electricity Supply Authority v Modus Publications (Pvt) Ltd 1996 (2) ZLR 256 (HC) the court said:

“Dealing with the first ground, it is settled law that a trading corporation, being in law a person distinct from its members, and having therefore a reputation of its own to maintain, can sue for a defamatory statement which affects it in its trade, business, or property whether or not actual damage is proved: see McKERRON The Law of Delict 7ed at p181; Boka Enterprises (Pvt) Ltd v Manatse & Anor 1989 (2) ZLR 117 (H).”

In this claim, the fact that the respondents are the alter ego cannot take their matter any further.

It is therefore frivolous and vexatious, as well as abusive, for the people that run the company to sue for wrongs allegedly committed against the company in their names, without even joining the company to the proceedings, other than to harass and annoy the applicants.

The claim is equally and summarily dismissed in terms of Rule 75(1) of the Rules of this Honourable Court.

CLAIM SIX AS AMENDED

Lastly, the crux of this claim is an allegation by the respondents to the effect that the applicants violated their privacy when they published information communicated to them in private on their Facebook page “The Truth About Makandiwa.”

The respondents claim a staggering USD500,000.

What has not been controverted by the respondents is the fact, that, the Facebook page in question does not belong to the applicants nor does it represent the applicants views.

In fact, the Facebook page contains some information that denigrates the first applicant (Emmanuel Makandiwa).

This fact, from the papers, is deemed admitted by the respondents: see Rule 104 of the High Court Rules 1971.

Further, the date, nature, and extent of the material given to the first applicant in private and confidence has not been pleaded but is said to be certain information of a private nature, which the respondents said they would say at the trial, rendered such pleadings defective, and, under any circumstances did not find any cause of action.

This is in variance with the law as stated in the case of International Tobacco Co. of SA Ltd v Wollheim 1953 (2) SA 603 (A)…, where the court said:

“It appears to be clear that the plaintiff, in his declaration, must set out the words alleged to have been used and may not content himself with giving their effect. It is for the court to decide what their effect is.”

The sixth claim is, on the pleadings, so patently groundless that the respondents cannot ever hope to succeed in obtaining relief on hence should be summarily dismissed as being frivolous and vexatious.

In the result, I make the following orders:

IT IS ORDERED THAT:

1....,.

2. The Court Application filed by the Applicants in HC1774/18 be and is hereby granted.

3. Each of the respondents six (6) claims as the plaintiffs against the respondents as defendants in case number HC7214/17 is declared frivolous and vexatious.

4. Each of the six (6) claims aforesaid be and is hereby summarily dismissed with costs at the legal practitioner-client scale.

Back Main menu

Law Portal
Zimbabwe

Religious Indoctrination and Extremism

HH111-09 : ELLEN SIMON vs FUNDA SAIMON
Ruled By: KUDYA J

HH427-15 : THE PROSECUTOR GENERAL vs PHIBEON BUSANGABANYE and MAGISTRATE N MUPEIWA N.O.
Ruled By: MATHONSI J

Appealed
SSC78-14 : ROBERT GUMBURA vs THE STATE
Ruled By: PATEL JA

HHMT18-18 : THE STATE vs JUDITH MUPELEFURAHA MULUMBA
Ruled By: MWAYERA J and ASSESSORS: MAWONEKE and MUDZINGE

Appealed
SSC25-21 : ROBERT GUMBURA vs THE STATE
Ruled By: BHUNU JA

View Appeal
HHH03-21 : ROBERT GUMBURA vs THE STATE
Ruled By: CHITAPI J

View Appeal
HHH231-14 : ROBERT GUMBURA vs THE STATE
Ruled By: MUSAKWA J

SC105-21 : WALTER MAGAYA vs ZIMBABWE GENDER COMMISSION
Ruled By: GOWORA JA, PATEL JA and UCHENA JA

HH10-18 : UPENYU MASHANGWA and BLESSING MASHANGWA vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and UNITED FAMILY INTERNATIONAL CHURCH
Ruled By: MANGOTA J

Appealed
SC95-21 : UPENYU MASHANGWA and BLESSING MASHANGWA vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and UNITED FAMILY INTERNATIONAL CHURCH
Ruled By: GWAUNZA DCJ, MAKONI JA and BERE JA

View Appeal
HH40-19 : UPENYU MASHANGWA and ANOR HC4197/18 and EMMANUEL MAKANDIWA and OTHERS HC1774/18 vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and ANOR and UPENYU MASHANGWA and ANOR
Ruled By: TAGU J

Categories

Law Portal Zimbabwe

Religious Indoctrination and Extremism

HH111-09 : ELLEN SIMON vs FUNDA SAIMON Ruled By: KUDYA J

HH427-15 : THE PROSECUTOR GENERAL vs PHIBEON BUSANGABANYE and MAGISTRATE N MUPEIWA N.O. Ruled By: MATHONSI J

Appealed SSC78-14 : ROBERT GUMBURA vs THE STATE Ruled By: PATEL JA

HHMT18-18 : THE STATE vs JUDITH MUPELEFURAHA MULUMBA Ruled By: MWAYERA J and ASSESSORS: MAWONEKE and MUDZINGE

Appealed SSC25-21 : ROBERT GUMBURA vs THE STATE Ruled By: BHUNU JA

View Appeal HHH03-21 : ROBERT GUMBURA vs THE STATE Ruled By: CHITAPI J

View Appeal HHH231-14 : ROBERT GUMBURA vs THE STATE Ruled By: MUSAKWA J

SC105-21 : WALTER MAGAYA vs ZIMBABWE GENDER COMMISSION Ruled By: GOWORA JA, PATEL JA and UCHENA JA

HH10-18 : UPENYU MASHANGWA and BLESSING MASHANGWA vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and UNITED FAMILY INTERNATIONAL CHURCH Ruled By: MANGOTA J

Appealed SC95-21 : UPENYU MASHANGWA and BLESSING MASHANGWA vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and UNITED FAMILY INTERNATIONAL CHURCH Ruled By: GWAUNZA DCJ, MAKONI JA and BERE JA

View Appeal HH40-19 : UPENYU MASHANGWA and ANOR HC4197/18 and EMMANUEL MAKANDIWA and OTHERS HC1774/18 vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and ANOR and UPENYU MASHANGWA and ANOR Ruled By: TAGU J

Categories

Your Donation.

Law Portal
Zimbabwe

HH111-09 : ELLEN SIMON vs FUNDA SAIMON
Ruled By: KUDYA J

HH427-15 : THE PROSECUTOR GENERAL vs PHIBEON BUSANGABANYE and MAGISTRATE N MUPEIWA N.O.
Ruled By: MATHONSI J

Appealed
SSC78-14 : ROBERT GUMBURA vs THE STATE
Ruled By: PATEL JA

HHMT18-18 : THE STATE vs JUDITH MUPELEFURAHA MULUMBA
Ruled By: MWAYERA J and ASSESSORS: MAWONEKE and MUDZINGE

Appealed
SSC25-21 : ROBERT GUMBURA vs THE STATE
Ruled By: BHUNU JA

View Appeal
HHH03-21 : ROBERT GUMBURA vs THE STATE
Ruled By: CHITAPI J

View Appeal
HHH231-14 : ROBERT GUMBURA vs THE STATE
Ruled By: MUSAKWA J

SC105-21 : WALTER MAGAYA vs ZIMBABWE GENDER COMMISSION
Ruled By: GOWORA JA, PATEL JA and UCHENA JA

HH10-18 : UPENYU MASHANGWA and BLESSING MASHANGWA vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and UNITED FAMILY INTERNATIONAL CHURCH
Ruled By: MANGOTA J

Appealed
SC95-21 : UPENYU MASHANGWA and BLESSING MASHANGWA vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and UNITED FAMILY INTERNATIONAL CHURCH
Ruled By: GWAUNZA DCJ, MAKONI JA and BERE JA

View Appeal
HH40-19 : UPENYU MASHANGWA and ANOR HC4197/18 and EMMANUEL MAKANDIWA and OTHERS HC1774/18 vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and ANOR and UPENYU MASHANGWA and ANOR
Ruled By: TAGU J