This is an appeal against the entire judgment of the High Court, dated 4 September 2019, in which the court a quo granted a declaratur and consequential relief sought by the respondents against the appellants and dismissed the application for a declaratur sought by the appellants against the respondents.The order ...
This is an appeal against the entire judgment of the High Court, dated 4 September 2019, in which the court a quo granted a declaratur and consequential relief sought by the respondents against the appellants and dismissed the application for a declaratur sought by the appellants against the respondents.
The order of the court a quo erroneously confirmed the terms of a provisional order of the initial urgent chamber application that had, by consent of the parties, been removed from the roll of urgent chamber matters, on 8 October 2018, and enlisted on the opposed roll. The provisional order was substituted by an “amended draft order” filed together with the respondents answering affidavits and heads of argument on 2 November 2018.
The erroneous order was, with the consent of the parties, corrected by this Court in terms of section 22(1)(a) of the Supreme Court Act [Chapter 7:13] in Civil Appeal No. SC527/2019, which was specially lodged by the respondents for that purpose and heard just before the present appeal.
The corrected order of the court a quo, therefore forms the basis of the present appeal.
THE FACTS
The appeal concerns a church dispute between two formations for the control and leadership of the Apostolic Faith Mission in Zimbabwe (the AFM or the church).
The appealed judgment is a consolidation of two applications that were filed separately by the parties.
The first application, HC9149/18, was filed by the first five respondents (Apostolic Faith Mission in Zimbabwe, Aspher Madziyire, Amon Madawo, Munyaradzi Shumba and Tawanda Nyambirai) against the seven hominal appellants (Cossam Chiangwa, Amon Chinyemba, Nathan Nhira, Shepherd Sebata, Donard Mdoni, Arthur Nhamburo and M. Mashumba) on 4 October 2018; while the second application, HC179/19, was filed by the first five appellants (Cossam Chiangwa, Amon Chinyemba, Nathan Nhira, Shepherd Sebata and Apostolic Faith Mission in Zimbabwe) against the second (Aspher Madziyire), third (Amon Madawo), sixth (Clever Mupakaidzwa), seventh (Briton Tembo) and eighth (Christopher Chembere) respondents on 10 January 2019.
In the first application, the respondents sought the nullification of a meeting held by the appellants on 22 September 2018, and all subsequent acts flowing from it while in the second application the appellants sought recognition as the duly elected office bearers of the church and consequential relief.
The High Court granted the first application and dismissed the second, with costs.
The church is a universitas with a written Constitution and consequent regulations, which inscribe its foundational values, confession of faith, mission and governance structures and reposes the power to sue and be sued in its national office bearers in clauses 1.2, 1.3, 1.4 1.4. 6(f) and 12.4.1, respectively.
The dominant protagonists in the two applications were the second respondent (Aspher Madziyire) and the first appellant (Cossam Chiangwa), respectively, who were elected President and Deputy President of the church at the triennial elections in April 2015. The third (Amon Madawo) and fourth (Munyaradzi Shumba) respondents were elected, at the same elections, as General Secretary and National Administrator.
Between August 2015 and 15 September 2018, the Church, led by the Apostolic Council and Workers Council, conducted a Constitutional Review Process (CRP) through a Constitutional Review Committee (CRC) chaired by the fifth respondent (Tawanda Nyambirai), a co-opted member of the Apostolic Council.
The Constitutional Review Process (CRP) was designed to address acute electoral, financial, and governance shortcomings through the amendment of the Constitution and geared to deliver free, fair and credible church elections; strengthen accountability and transparency; and engender parity and equity in the conditions of service of the clergy and development programs of the church in both rural and urban areas.
The Constitutional Review Process (CRP) culminated in the Extraordinary General Meeting (EGM) of the Workers Council of 10 February 2018, which resolved to hold the triennial Provincial and Workers Council elections, due on 28 April 2018, after “the Workers Council considers, and, if deemed fit, passes, with or without amendment, the proposed amendments to the Constitution of the Apostolic Faith Mission in Zimbabwe in terms of the attached draft” at its scheduled meeting of 28 April 2018.
The meeting of 28 April 2018 was terminated unceremoniously without resolving the proposed resolution.
Tonderai Mathende took the Church, the first (Apostolic Faith Mission in Zimbabwe), second (Aspher Madziyire) and fifth (Tawanda Nyambirai) respondents and the first appellant (Cossam Chiangwa) to court under HC4756/18 and obtained an order compelling the 2015 office bearers to reconvene and conclude the aborted Workers Council meeting of 28 April 2018.
By a letter dated 31 July 2018, the second respondent (Aspher Madziyire) called for a Workers Council Meeting to be held on 15 September 2018 in compliance with the court order issued under HC4756/18....,.
Counsel for the appellants contended that the failure to strictly abide by the requirements of clause 12.6 of the Constitution invalidated the meeting of 15 September 2018 and the outcomes that flowed from it.
Per contra, counsel for the respondents argued, that, that meeting, together with its outcomes, was valid.
In terms of clause 12.9.1 of the Constitution, the quorum required for a valid meeting for the dispatch of a constitutional amendment is a simple majority of the full complement of the Workers Council.
Whether reliance is placed on the 3,475 total membership figure provided by the respondents or 2,056 figure supplied by the appellants, the quorum was achieved by the recorded total number of 2,056 councillors in attendance on 15 September 2018.
Clause 12.6 of the Constitution provides that:
“To amend this Constitution, written notice shall be given to the General Secretary by Provincial Workers Council, the Apostolic Council, at least six months before the next Workers Council meeting. In the said notice, details must be given of the proposed amendment. Such notice shall then be forwarded to all Provincial Workers Councils in preparation for the next Workers Council Meeting. A two-thirds majority of the Workers Council shall decide whether the Constitution should be amended or not.”
The cumulative and conjunctive requirements to pass a valid Constitutional amendment are that:
1. Six months written notice from either the Provincial Workers Council or the Apostolic Council, or both, be given to the General Secretary before the Workers Council meeting at which the amendments are to be considered;
2. The details of the proposed amendments must accompany the notice;
3. The notice, and the detailed amendments, must be sent to all Provincial Workers Councils before that Council meeting;
4. The quorum for passing the amendment is a two-thirds majority of the optimum membership of the Workers Council.
Counsel for the appellants correctly contended, that, clause 12.4.1 and 12.3.1 of the Constitution enjoins the Workers Council and the Apostolic Council and the office bearers, acting of their own accord, to strictly abide by the letter and spirit of the Constitution. He also correctly contended that the courts are enjoined, by case law, such as Dynamos Football Club (Pvt) Ltd & Anor v ZIFA & Ors 2006 (1) ZLR 346 (S) to generally construe the constitutions of universitas, like the church, strictly.
The meeting of 15 September 2015 was, however, convened on a month's and not six months notice.
The notice emanated from the President and General Secretary and not the Workers Council or Apostolic Council. However, the notice, together with the proposed amendments, were dispatched to the Provincial Councils for the next Workers Council meeting, by the General Secretary.
The parties were at variance on whether the resolution of that day was passed by the two-thirds quorum prescribed in clause 12.6.
The second (Aspher Madziyire) and third (Amon Madawo) respondents did not convene that meeting of their own accord. They did so in obedience to a judicial command emanating from the unopposed Mathende application.
They were commanded to convene the Workers Council meeting on 30 days notice to the members of the Workers Council. The 30 days were to be calculated to commence within 7 days of the service of the order on the last of the respondents cited in that order.
The onus to establish, on a balance of probabilities, the date on which the last of the respondents in HC4756/18 was served with the court order was on the appellants.
They did not adduce any evidence to that effect in their papers.
In the absence of that evidence, the argument by counsel for the appellants, that 15 September 2018, fell outside the outer limits of the court order is unsustainable.
It seems to me, that, the failure of the respondents to abide by the constitutional time frame would not affect the constitutional validity of the meeting for the reason that the time limits for convening the meeting of 15 September 2018 were prescribed by a duly constituted court of law.
It is trite that extant court orders must be obeyed.
This principle was affirmed by this Court in Econet Wireless (Pvt) Ltd v Minister of the Public Service, Labour and Social Welfare & Ors SC31-16…, where BHUNU JA aptly remarked that:
“The doctrine of obedience of the law until its lawful invalidation was graphically put across by LORD RADCLIFFE in Smith v East Elloe Rural District Council [1956] AC 736 at 769 when he observed that:
'An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of illegality on its forehead. Unless the necessary procedures are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.'
If it were not so, and every litigant challenging the validity of any law was excused from obeying the law pending determination of its validity, there would be absolute chaos and confusion rendering the application of the rule of law virtually impossible. This is because anyone could challenge the validity of any law just to throw spanners into the works to defeat or evade compliance with the law.”
To the same effect is Hodkinson v Hodkinson (1952) 2 ALL ER 567 (CA) at 569C:
“It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it even extends to cases where the person affected believes it to be irregular or even void.”
That order was extant on the date of the meeting.
It, therefore, conferred the imprimatur of validity to the meeting, notwithstanding that it was not in accordance with the constitutionally stipulated six month notice period and that the notice did not come from the constitutionally mandated source.
It is clear to me, that, the first three requirements prescribed by clause 12.6 were met.
The only issue that has exercised my mind was whether the two-thirds threshold of the optimum membership of the Workers Council was met.
If the full membership was the tally sheet figure of 3,475 supplied by the respondents, then the 2,021 councillors who passed the proposed amendments would have been short by 296 of the 2,317 members required to pass the resolution.
My burden was removed by the finding of the court a quo on this aspect.
It accepted the figure of 2,056 councilors, furnished by the appellants, as the established optimum number of the Workers Council.
That finding was not appealed.
The effect of this finding is that the proposed amendments were passed by 98 per cent of the total Workers Council membership - which figure exceeded the minimum 67 per cent constitutional threshold.
Consequently, the resolution of 15 September 2018 met all the procedural requirements prescribed in Clause 12.6.
