After
hearing arguments in this matter, I granted an order confirming the
provisional order issued by this court on 17 February 2015 and said
the reasons for doing so would follow. These are they.
The
first applicant is a common law universitas constituted in terms of a
Constitution for the purpose, inter
alia,
of fellowship among its members. The second applicant is its
Overseer. The first respondent was, at the material time, the
appointed co-ordinator of the first applicant who was acting on its
behalf when the first applicant made an application to the second
respondent, the local authority owning vacant land, for a vacant
Stand for purposes of constructing a church.
Apparently
the church did not have premises of its own, did not have an address,
and used the first respondent's residential address, being Z29
Mzilikazi Township, Bulawayo as its address.
The
spirit that filled the first applicant church to take the initiative
in the furtherance of its objectives is commendable indeed and the
local authority must be congratulated for responding swiftly to the
clarion call, so to speak. By letter dated 1 September 2014, the
local authority acceded to the application and allocated the first
applicant Stand 18732 Thorngrove, Bulawayo as a church Stand on
certain terms and conditions set out therein. The first applicant
accepted the offer by paying the requisite $115= for preparation of
the lease agreement and facilitated the flighting of a newspaper
advertisement of the proposed lease of the Stand in the local
newspaper.
It
is then that greed and the pursuit of self-interest set in and got
the better of the first respondent, the co-ordinator of the
applicant. When the lease agreement was generated by the second
respondent, she intercepted it, and, purporting to now represent
another church, Zambuko Apostolic Faith, whose head office is her
residential address, No. Z29 Mzilikazi, Bulawayo and has one of its
objectives, the object to bury the dead, the first respondent wrote a
letter to the second respondent which reads:
“REF:
ER 8-301
Please
may the Bulawayo City Council be advised that in connection with the
church Stand application, Ref ER 8-301, only the undermentioned first
three individuals are responsible for the Stand application and
payment between the church and the City of Bulawayo and that the City
of Bulawayo should not tolerate any other individuals as they emanate
from Harare. Please check in your files that through the
Co-ordinator, Eunice Mlauzi, made (sic)
the Stand application for their congregants as you the City of
Bulawayo have rightfully responded to the Stand application using the
proper address of communication.”
The
letter is signed by the first respondent and two other individuals
and represents the highest level of turpitude and indeed falsehood
especially as it is the first applicant which made the application
and paid the lease agreement fee. The first respondent gleefully
latched onto the use of her address in the application and the fact
that as the then Co-ordinator of the first applicant it is herself
who had submitted the application in an effort to sustain her weird
argument that the Stand was allocated to herself or her new church.
That way she signed the lease agreement with the municipality on 24
November 2014 along with her two lackeys purporting to represent
“Zambuko Apostolic Church” when her new organization has been
christened “Zambuko Apostolic Faith.”
When
the applicants discovered the scheme, they launched an urgent
application and obtained from this court a provisional order
interdicting the first respondent from purporting to act on their
behalf and directing her to surrender the original agreement with the
second respondent.
It
is the confirmation of that provisional order which is opposed by the
first respondent.
In
her opposing affidavit, the first respondent states that she now
leads “a splinter Zimbabwe Apostolic Church.” While admitting
that she was indeed the Co-ordinator of the first applicant, she
maintains that owing to differences “we split and went away on
(sic)
with other members of the Zambuko Apostolic Faith Church.” The
first respondent denies any fraudulent misrepresentation or any
unlawful conduct on her part. To her, the first applicant should
apply for another Stand as the one in dispute belongs to her and her
faction.
This
matter resolves itself on the basis of those facts which are either
common cause or cannot possibly be disputed. They are that the
application for allocation of a church Stand was made by the fist
applicant. It being an association it could only do so through its
officers, in this case the Co-ordinator, who authored the application
letter on its behalf. The second respondent allocated the Stand to
the first applicant and accepted its payment for the lease agreement.
It did not allocate it to the first respondent or her splinter
church. In fact, when she wrote the letter I have cited above, the
first respondent was engaging in an exercise in self-aggrandisement;
sacrificing the common good in favour of personal gain. In that
ill-fated misadventure she misled the second respondent into
believing that she was the applicant or that she still represented
the applicant for land.
Even
if indeed there has been a split which has resulted in the first
respondent going away to form another church that cannot help her at
all. The first respondent and her fellow congregants, who may be only
three in number, have left the first applicant church- by their own
admission. Therefore, a secession has occurred, and, as such, the
first respondent cannot lay a claim on the property of the original
church.
That
is a point that has already been authoritatively settled by the
Supreme Court in The
Church of the Province of Central Africa v The Diocesan Trustees for
the Diocese of Harare
2012 (2) ZLR 392 (S)…, where MALABA DCJ remarked:
“The
principle is that, in the absence of express provision in the
Constitution of a voluntary association, such as a church, property
held in trust must be applied for the benefit of those who adhere to
the fundamental principles of the association. Related to this is the
principle that a member of a voluntary association who leaves the
organization whilst others remain must leave the property with those
who have not resigned membership. When one leaves a club one does not
take its property with him or her. It has long been established as a
salutary principle of law in this area of property ownership that
when one or more people secede from an existing church they have no
right to claim church property - even if those who remain members of
the congregation are in the minority.” See
also
Guta Ramwari v Waduka and Others
HH470-14.
In
my view the matter is resolved.
The
first respondent and her group having left the first applicant
church, they cannot claim the Stand which was allocated to the
original church. It matters not that the first respondent
participated in securing the Stand. She did so for the church in her
capacity as its Co-ordinator. It was not in her personal capacity….,.
In
the result, it is ordered that:
1.
The provisional order issued on 17 February 2015 is hereby confirmed.
2.
It be and is hereby declared that the lease agreement concluded by
first and second respondents is null and void.
3.
The second respondent is hereby directed to conclude a lease
agreement with the first applicant for Stand 18732 Thorngrove,
Bulawayo within 24 hours of the granting of this order.
4.
The costs of this application shall be borne by the first respondent
on the scale of legal practitioner and client.
