MATHONSI
J: This is a church dispute gone awry in which the respondent was
elected Bishop of the applicant in an election conducted on 21 March
2015 whose process and outcome has been disputed by other members of
the church who say they are the majority. They have, by resolution
passed at an extra-ordinary general conference held on 28 March 2015
resolved inter
alia:
“That
the Evangelical Church of Zimbabwe declares null and void the
unconstitutional elections of the Bishop of The Evangelical Church
of Zimbabwe held by minority members of the Denomination at the
Ministry Centre on Saturday 21 March 2015. Therefore the church does
not recognize Reverend Isaac Soda as its newly elected Bishop.”
In
arriving at that resolution those involved cited the violation of the
applicant's constitution in the process. The applicant is a
universitas
constituted and governed by a constitution and therefore can only
function and be run in accordance with that constitution. It is
alleged that while Article VIII C of the Constitution and church
practices require the co-ordination of the election by a five member
Selection Committee, the election was co-ordinated by only two
members of the committee.
While
ballot papers should be sent out following the approval of the Church
Council which should pass a resolution sanctioning the holding of an
election, this was not done. The wives and friends of the candidates
and one of the candidates are the ones who distributed ballot papers
instead of the church overseers as is the procedure. In breach of
Article VIII C(1)d) of the constitution the selection committee did
not consult the Pastors' Council on the suitability of election
candidates.
In
breach of Article VIII C (1)(g) the Selection Committee shortlisted
only two candidates for the position of Bishop instead of 3 and
disqualified the third candidate. The final nomination forms were not
issued in accordance with the constitution which requires that they
be issued within the period of 30 days preceding the Annual General
Conference. One of the two candidates was not qualified as he is not
a holder of a first Theological degree as required by Article V111
A(v) of the Constitution. The two selection committee members
intimidated voters by threatening unspecified legal action if they
did not proceed with the election.
The
applicant states that the respondent appeared to recognize the power
of the majority members to nullify the election results when he
approached this court by court application filed on 29 April 2015 in
HC 3889/15 in which he seeks the following order;
“IT
IS HEREBY ORDERED THAT
1. The election process for the
election of the Bishop of the 1st
respondent be and is hereby upheld and confirmed.
2. Applicant be and is hereby
declared the Bishop of the 1st
respondent for the next 5 years.
3. 2nd
– 6th
respondents be and are hereby interdicted from interfering with the
business of 1st
respondent.
4. Respondents to pay costs of
suit.”
In
that application, the respondent cited the present applicant as the
first respondent and five other people, the secretary of the church
council, the current Bishop, the treasurer and the chairpersons of
the constitutional committee and the national women fellowship. It
would appear however, that the respondent may have grown impatient
while waiting for the rusty old train of this court to deliver
justice to him because the applicant complains that before the
determination of his application for a declaratur the respondent
caused notice to be sent out through his supporters on 3 May 2015
announcing his intended inauguration on 9 May 2015 at 10am at the
applicant's head office.
It
should be noted however, that 9 May 2015 was set as the date of the
inauguration at a meeting of the church council held on 1 April 2015
which was chaired by the Vice Bishop Reverend A Mateva. If a notice
was sent out on 3 May 2015 as alleged by the applicant and triggered
the filing of this application, it was in fulfillment of a resolution
which was already in place. Be that as it may, the applicant says it
is the announcement made on 3 May 2015, which the respondent denies
making, which prompted it to make this urgent application seeking to
interdict the respondent from staging the inauguration. The full text
of the relief that the applicant seeks is in the following:
“TERMS
OF THE FINAL ORDER SOUGHT
That you show cause to this
Honourable Court why a final order should not be made in the
following terms:
-
The election held on 20-21 March
2015 for the contesting of the position of Bishop of the applicant
be and is hereby declared null and void and of no force or effect.
-
Respondent be and is hereby
declared as not being duly elected Bishop of the applicant in the
elections held on 20-21 March 2015.
-
The respondent to pay costs of
this application on an attorney and client scale only if he opposes
it.
INTERIM RELIEF GRANTED
That pending determination of
this matter, the applicant is granted the following relief:
-
The inauguration of the
respondent as the applicant's Bishop on 9th
May 2015 at applicant's head office be and is hereby stopped from
taking place.
-
The respondent be and is hereby
ordered not to interfere in any unlawful manner in the operations
and business of the applicant.
-
The respondent be and is hereby
ordered not to use (his) supporters to interfere in any unlawful
manner in the operations and business of the applicant.”
It
is the interim relief that the applicant seeks which is the concern
of the present inquiry. However the respondent has taken essentially
two points in
limine
namely that the deponent of the founding affidavit David Chiveso does
not have locus
standi in judicio
to represent the applicant in any legal action and as such is
ill-suited and that the matter is not urgent, it being self-created
urgency which should not be entertained at all.
Regarding
locus
standi,
the point is made that the applicant, as a universitas
governed by a constitution can only act in accordance with that
governing document. Anything done in breach of its constitution is in
essence a nullity and of no legal consequence what so ever. I agree.
Article
VIII A (1) of the applicant's constitution provides:
“(i) The head of the
Evangelical Church shall be an Executive Bishop. The title Bishop
shall be restricted to the term of office.
(ii) The Bishop's term of
office shall be five years which may be extended, for another five
year term if re-elected by the AGC.”
Article
VIII D deals with the duties and functions of the Bishop and provides
at (x) that:
“The Pastors' Council
Chairman shall be Deputy to the Bishop and shall act in place of the
Bishop when the Bishop is out of office.”
In
my view this matter resolves itself on the facts that are common
cause. It is common cause that the outgoing Bishop Makachi's term
has expired hence the need for an election to fill that position. In
any event if it had not expired, he is not the one who has instituted
this application. Instead Chiveso did, purporting to act in terms of
a resolution passed at a meeting of the applicant held on 4 May 2015.
The minutes attached to the application do not specify which
structure of the applicant held that meeting.
The
Deputy Bishop is, by constitutional provision, the Pastors' Council
Chairman and he acts on behalf of the Bishop in the absence of the
latter. It is common cause that the office in question is currently
held by Reverend Amos Mateva, who has deposed to an affidavit denying
convening the meeting on 28 March 2015 which overturned the election
results. He also denied instituting any legal proceedings on behalf
of the church or convening any meeting which resolved to take such
action, while at the same time proudly claiming responsibility for
the inauguration of the respondent on 9 March 2015 even after he had
been served with the present application.
Article
XII B (vi) of the applicant's constitution provides;
“The Administrative Committee
shall have the right to represent the church in all its structures in
all legal matters where such expertise is needed.”
It
is common cause that the chairman of the administrative committee is
Reverend Dewah. He has deposed to an affidavit denying convening the
meeting of 4 May 2015 which appointed Chiveso to represent the
applicant in this matter. He denies that his committee ever resolved
to institute any legal proceedings against the respondent and states
that it is not the church which has made this application. Quite to
the contrary, it is his committee which organised and presided over
the inauguration of the respondent as Bishop of the church.
The
question therefore is whether Chiveso had the requisite authority to
sue using the name of the church in the circumstances.
The
starting point is to state that the relationship between the parties
who are members of an association like a church or a social club is
contractual. They are governed and bound by the rules and regulations
of the association: Constantinides
vs Jockey
Club of South Africa 1954
(3) SA 35(C) 44C. The interests and rights of persons who are members
of any type of unincorporated association are governed exclusively by
contracts, that is, rights between themselves; Civil
Service Employees Association & Anor
vs Public
Service Association & Ors
HH 111/14; Re
Bucks,
Constabulary
Widows and Orphans Fund Friendly Society (NO)[1979]
WLR 936 at 952.
In
Dynamos
Football Club (Pvt) Ltd & Anor
vs Zifa
& Ors
2006 (1) ZLR 346 (S) 355 G; 356 A Malaba JA (as he then was) made the
point that:
“It is important to bear in
mind what the learned judge appears not to have appreciated. It is
the fact that the legal basis of an unincorporated voluntary
association of persons such as a social club is the contract between
and amongst the associates. The law recognises their freedom to
determine the acts by which they intend to be bound, who should
perform them, and when. The duty of a court of law is to determine
whether what is claimed to have been done is in fact what was
prescribed by the members of the club in strict compliance with the
procedure they laid down for validity to attach to those acts.”
Members
of the church prescribed for themselves the rules that govern them in
the form of the constitution. They had the freedom to do so. Those
rules provide that their head is the Bishop and where the Bishop is
unable to act for any reason, it is the Deputy Bishop who acts in his
place and discharges the functions of that office which include
convening meetings. The rules prescribe that the Administrative
Committee chaired by Reverend Dewah should represent the church in
legal matters. It is not open to any aggrieved member or faction of
members to litigate using the name of the church, no matter how many
they are. If they do, what they do in violation of the constitution
is a nullity and of no legal consequence.
Unfortunately
this is exactly what Chiveso has done. It matters not that he has the
backing of the majority members, real or imagined. Such action cannot
possibly be valid because Chiveso does not have the constitutional
mandate to sue on behalf of the church. As it now turns out, those
clothed with authority to sue on behalf of the church have disowned
Chiveso leaving him high and dry.
Allied
to the question of authority to sue is the issue of legal interest.
LICHTENBERG J aptly put it in SA
Optometric Association
v Frames
Distributors (Pty) Ltd
t/a Frames
Unlimited
1985 (3) SA 100 (0) at 103I; 104 F where the learned judge said:
“To justify its participation
in a suit or to bring proceedings for relief, a party must show that
it has a direct and substantial interest in the right which is the
subject-matter of the litigation and in the outcome of the litigation
and not merely a financial interest which is only an indirect
interest in such litigation.”
See
also Henri
Viljeoen (Pty) Ltd
v Awerbuch
Brothers
1953 (2) SA 151 (O); Zimbabwe
Teachers Association & Ors
vs Minister
of Education and Culture
1990 (2) ZLR 48 (H).
In
his heads of argument, Mr Burombo
for
the applicant did not bother to address the issue of locus
standi
settling for the merits of the matter only. Chiveso and his group may
well have an interest in the election of a Bishop, but such interest
is only in their capacities as members of the church or congregants.
They should have litigated in their own names and not in the name of
the church.
Mr
Burombo
submitted at the hearing however that Elder Chiveso was elevated to
the position of Chairman of the Administrative Committee at the
meeting of 28 March 2015 which ex-communicated the then chairman and
the Deputy Bishop. For that reason he has capacity to represent the
church. The difficulty with that submission is that that meeting is
colourless and mysterious indeed. It is not clear which organ of the
church held that meeting and whether it was constitutional.
Mr
Burombo
submitted that it was an Extra Ordinary General Conference convened
in terms of Article 111 A (iv) of the Constitution which provides
that the council may convene Extra-Ordinary General Conferences as
and when deemed fit. Even if that were the case and there was indeed
a council with such power among the members who participated, I agree
with Ms Munatse
that in terms of that Article such a meeting could not invalidate
what was decided by the Annual General Conference. This is because it
was of inferior jurisdiction than the latter. In terms of Article
111A (1):
“The Annual General Conference
(AGC) is the supreme organ of the Evangelical Church of Zimbabwe and
all the functions and powers of this church as a corporate body are
vested and exercised through this organ. Its decisions are final and
binding on the entire membership of the church”
That
should put the matter to bed really. The meeting of 28 March 2015
could not lawfully invalidate what was done by the supreme organ. It
could not ex-communicate the Deputy Bishop and/or the Chairman of the
Administrative Committee recognised by the supreme organ and for
participating at the Annual General Conference. Therefore both Rev
Mateva and Dewah remained in office and should be the ones
representing the church and not Chiveso who clearly has no locus
standi.
I
must however express indignation at the conduct of Mateva who boasts
of having presided over the inauguration of the respondent on 9 May
2015. This matter was set down for 13 May 2015 on 7 May 2015 and due
notice for the hearing was served upon the respondent as well as on
his legal practitioners on 8 May 2015, well before the inauguration.
Obviously Rev Mateva became aware of the application which sought to
stop that activity, so did the respondent.
It
was therefore improper for them to proceed with the inauguration.
They should have refrained from it until after the matter had been
determined. I find it disturbing that the respondent and his
hangerlings elected to disregard the court process calling into
question the inauguration as if nothing had happened. It has been
said repeatedly by the courts that it behoves a party in the position
of the respondent and indeed Rev Mateva to respect the process of the
court and refrain from conduct that would render nugatory the process
of the court: Rukonda
& Ors
vs Minister
of Local Government, Public Works and National Housing N.O. & Ors
HH360/14.
If
this application had been valid I would not have hesitated to nullify
the inauguration of the respondent. For his conduct, he is not
entitled to costs of suit.
In
the result, the application is hereby dismissed with each party to
bear its own costs.
Messrs
Moya & Associates,
applicant's legal practitioners
Messrs
Mapondera & Company,
respondent's legal practitioners
