The
background of this matter is that the second applicant has been
rocked by several problems where the authority to run the church has
been fought over by two different camps, one led by the first
applicant and the other led by Reverend Tonny Tshuma. There have been
numerous applications before this court, even as far as the Supreme
Court.
I
am advised that some of the matters are still pending before the
Supreme Court.
It
would appear, by virtue of the order granted in HC2700/14, the
Sheriff then handed the Temple
in Victoria Falls, which is the subject matter of this dispute, to
the first applicant. It would appear though that the other group, led
by Tonny Tshuma, appealed that decision. The first applicant then
obtained leave to execute the judgment in HC2700/14 pending appeal.
Such leave was granted in HC1669/15.
The
relevant clause in the order granted in HC2700/14 is paragraph (3)
which reads as follows:
“The
first and second respondents and their agents are ordered to release
and return the control of the sixth applicant's properties wherever
situate to the applicants and to surrender the sixth applicant's
affairs and activities to the applicants forthwith. The sixth
applicant's properties shall include but not limited to those
listed on the order granted by this court on HC2166/14”.
In
essence, the applicants seek an order for spoliation in that the
respondents took the law into their own hands and forcibly took
occupation of Stand 5563 Mkosana Township in Victoria Falls.
Paragraph
12 of the founding affidavit states thus:-
“The
Chief Registrar and ourselves then entered into a compromise that the
temple
should be locked and no one should access it until the notice of
appeal against the default judgment had been disposed of in terms of
the law.
Paragraph
13
I
and the other applicants in the court order in HC2700/14 again
approached this court with an application for leave to execute
pending appeal in HC1669/15 which was granted by this court. I attach
hereto a copy of the order as annexure “D”.
Paragraph
14
Armed
with that judgment, I then approached the Additional Sheriff,
Victoria Falls so that I and my followers could have access to the
second applicant's Temple
but the Additional Sheriff told me that he is still waiting for an
order from the Chief Registrar who is his boss.”
These
paragraphs show that the execution of the order in HC2700/14 is still
pending with the Sheriff awaiting instructions from his boss, the
Chief Registrar.
In
other words, HC2700/14 has not been brought into effect by the
Sheriff who has not executed the order in HC1669/15.
HC2700/14,
paragraph 3 thereof, orders the return of the church's properties
to the first applicant and four others.
Such
order was interrupted by the filing of a Notice of Appeal. An order
was granted in HC1669/15 for leave to execute the order in HC2700/14
pending the appeal. Paragraph 2 and 3 of that Order read as follows:
2.
The applicants be and are hereby allowed to execute the order in
HC2700/14 pending the purported appeal under SC351/15.
3.
Fourth respondent is ordered to proceed and enforce the terms of the
order under case number HC2700/14, and, if necessary, to secure the
assistance of the Zimbabwe Republic Police to give effect to the
order.
HC2700/14
ordered that the applicant and four others should take control of the
church assets. HC1669/15 allowed the execution of that order pending
appeal. It, in fact, went further and ordered the Sheriff to give
effect to that order and enlist the services of the police where
needed.
In
my view, the applicants are seeking a solution that has already been
provided by this court in HC2700/14. This application, in my view, is
a duplication of proceedings for the following reasons:
1.
HC2700/14 has already given the control of the Church assets to the
applicants together with four others.
2.
HC1669/15 has given the applicants in HC2700/14 leave to execute the
judgment pending appeal.
It
has gone further than that; it has ordered the Sheriff to give full
effect of the Order in HC2700/14 and to enlist the services of the
police where necessary.
The
Sheriff has, however, not honoured the Order in HC1669/15 as it would
appear that he has not given the control of the Church assets to the
applicants as per HC2700/14. The applicants, in my view, are barking
up
the wrong tree. Instead of the applicants approaching the Sheriff so
that he gives full effect of HC2700/14, so that they are given
control of Stand 5563, Victoria Falls, they, instead, want to exert
control over an asset they have not yet taken control of in terms of
HC2700/14. The applicants are bungling in my view, and, as a result,
are unnecessarily burdening the court seeking remedies which they
already have.
The
applicants do not state, in the founding affidavit, that they have
approached the Sheriff after the unlawful invasion, to assert their
rights of control, in terms of HC2700/14, so that the Sheriff hands
over the control of that asset to them. As it is, clearly, the
applicants have not yet assumed control of the property being the
subject matter of this application. Instead of seeking to enforce
HC2700/14 as read with HC1669/15, that is, getting the Sheriff to
give them full control of Stand 5563, Victoria Falls, before taking
control, they want to assert same through this application.
It
is for these reasons that I am of the view that this application is
unnecessary as the applicants should first of all execute HC2700/14
as read with HC1669/15 before they can talk of being despoiled by
anyone. The first applicant should lawfully be handed over the
property by the Sheriff before asserting his rights to the control of
same….,.
It
is my considered view that this multiplicity of actions, without
following the Orders given to fruition is inappropriate and should
not be allowed. The applicants should give full effect of HC2700/14
as read with HC1669/15, by getting the Sheriff to comply with clause
2 and 3 of HC1669/15 as read with clause 3 of the Order in
HC2700/14…,.
If
the Sheriff does not obey court orders then the applicants are within
their rights to act against him.
It
is for these reasons that I find that the application is without
merit and I accordingly dismiss it with costs.
