PATEL J: Both
parties in this matter are Christian church organisations with specific
missionary objectives. Regrettably, as often happens in difficult times, their
spiritual vision has been blurred by the material struggle for property. The
specific object of their contestation in this case is Stand 7525, Mkoba, Gweru,
which the defendant presently occupies and from which the plaintiff seeks the
defendant's eviction.
At
the trial of this matter, at the close of the plaintiff's case, the defendant
sought absolution from the instance on the sole ground that the plaintiff
lacked the requisite locus standi to
sue in this matter. The defendant contends that the plaintiff has no valid
constitution and is therefore not a common law universitas. Additionally, it is contended that even if a valid
constitution does exist, it does not endow the plaintiff with legal capacity to
sue in its own name.
The
principal witness for the plaintiff, Zakeo Moyo, produced in evidence a
document [Exhibit 1] which he stated was the amended constitution of the
plaintiff. This document was purportedly signed by Apostle Peter Moyo, the
deceased founder of the plaintiff's church. However, it is fairly clear from
other documentary evidence before the Court as well as the testimony of the
plaintiff's second witness, Tapiwa Mutonhodza, that the signature on the
document is that of Zakeo Moyo and not of Peter Moyo. The former has obviously
signed the document on behalf of his deceased brother. In any event, at a later
stage in the trial, Mutonhodza produced another document [Exhibit 10] which he
testified was the original constitution of the plaintiff. Regrettably, this
document is incomplete with a few pages missing in fine.
Having regard to all the relevant evidence,
I am satisfied that Exhibit 10 is the original constitution of the plaintiff
and that Exhibit 1 is the amended version thereof, albeit with a signature that
clearly does not belong to the deceased Peter Moyo. The provisions contained in
the two versions are virtually identical. In my view, both versions should be
read together to ascertain the legal standing of the plaintiff and, in the
event of any inconsistency, the original version should prevail.
Under
the common law, the locus standi of a
voluntary association derives from the provisions of its charter or
constitution, either in express terms or by way of implication. For the power
to sue to be implied, it must be incidental to the express powers as being
absolutely requisite for the due carrying out of the express objects of the
association. See Bantu Callies Football Club
v Mothlamme & Others 1978 (4) SA
486 (T). The two principal characteristics of the capacity of a universitas to sue are perpetual
succession, viz. continued existence or identity of the association despite
changes in its membership, and the capacity to acquire rights and incur
obligations independently of its members, in particular, the capacity to own
property. See Ward S 19 Council v Premier, Western Cape
Province & Others 1998 (3) SA 1056.
Turning
to the constitution of the plaintiff, articles I, V and VII, as read together,
show that the membership of the plaintiff is open to all persons who meet the
prescribed spiritual qualifications and that the composition of its executive
body, the Board of Directors, is subject to change under specified circumstances.
These elements clearly demonstrate the separate existence or identity of the
plaintiff notwithstanding changes in its leadership or general membership.
The
objects of the plaintiff are set out in article II and include, inter alia, the erection and maintenance
of immovable property and the collection of funds, gifts and subscriptions, as
well as the acquisition and disposal of real property and chattels. In this
respect, article V empowers the Board of Directors to manage and control
investments and to build and repair property. In addition, article II
specifically enables the plaintiff to exercise all powers that are necessary or
convenient to give effect to any of the purposes for which the church is
organised.
One
further aspect that calls for consideration is the argument put forward on
behalf of the defendant relating to the essentially Christian character of the
plaintiff. The argument is to the effect that it is not in the nature of
Christian communities to approach secular courts for the resolution of their
disputes. It derives from canonical scripture, in particular, the Bible in
Romans 6:
"Dare
any of you, having a matter against another, go to law before the unjust, and
not before the saints? Do you not know that the saints shall judge the world?"
While
I cannot profess to be versed in doctrinal matters, I would venture to
postulate that the biblical injunction against recourse to temporal, as opposed
to spiritual, authority must be understood in its peculiar historical and
political context. Moreover, notwithstanding the undeniable significance of
Christian doctrine in the conduct and regulation of church affairs, it cannot
in our present time and circumstance be invoked in the realm of human affairs
to preclude the administration and application of the general law through the
secular courts. This is so particularly where the issues that call for
resolution, as in the present case, centre on proprietary interests and their
assertion in the material world.
Having regard to all of the foregoing, it
seems clear that the plaintiff meets the requisite criteria for a duly
constituted universitas, viz. a body endowed with perpetual
succession and the capacity to acquire and own moveable and immovable property.
It is also endowed with the capacity to do everything necessary to effectuate
its objectives, including by implication the power to advance and protect its
property rights. In this regard, the power to sue must perforce be implied as
being necessarily incidental to its express powers for the due carrying out of
its express objects.
It
follows that the plaintiff is an association properly vested with locus standi in judicio. The defendant's
application for absolution from the instance therefore fails and must be
dismissed. It is ordered that the matter proceed to the defendant's case.
Dzimba, Jaravaza & Associates,
plaintiff's legal practitioners
Donsa-Nkomo &
Mutangi Legal Practice, defendant's legal
practitioners
