When
matters religious end up in court with congregants at each other's
throats you know something is badly wrong; for, as someone once said,
religion is the opium of man.
In
this church dispute, the parties are fighting over the control of a
church building situated at Stand 8583 Glen Norah Township, Harare
(“the church”) which is held by the applicant under Deed of
Transfer Number 6411/2006; it having been transferred on 6 September
2006 from the City of Harare.
The
applicant is a voluntary church organisation governed by a
Constitution which has its headquarters at Number 56008 Old
Lobengula, Bulawayo and has other branches around the country
including the Glen Norah Church. It is led by a Supreme Council at an
international level and a National Council at a national level in
terms of Art 12 of its Constitution. There are other subordinate
councils within its structure. The applicant follows the teachings of
its founder, one Taxwell Tayali. It is the applicant, through its
structures, that has been operating from the church. However,
differences of opinion manifested themselves quite a long time ago as
a faction emerged propagating different beliefs and styles of
worship. As tensions mounted, a reciprocal peace order was granted by
the Magistrates Court in Harare on 19 August 2008 in terms of which
the feuding parties were to keep peace; with one group worshipping at
the church in the morning between the hours of 7am and 12 noon. The
other group was to worship in the afternoon between the hours of 1pm
and 5pm.
As
with anything human, the peace order lapsed and was not renewed.
That
is not all, the group of members constituted by the three (3)
respondents and others decided to draw up, and register, another
Constitution on 3 January 2014 departing significantly from the dogma
and other teachings of the applicant's founder, Taxwell Tayali, but
still maintaining the name Guta RaMwari. It is led by an
Administrative Council. It has its headquarters in Tshabalala,
Bulawayo - having moved from the applicant's Lobengula
headquarters. The teachings of the applicant church are captured in
the preamble to the 6th Amendment of the Constitution which reads in
part:-
“Whenever
God the Almighty declares His presence on earth this declaration
afflicts many conceited people who claim to know when, where and how
God should reveal Himself to man; 'I HAVE COME, I AM GOD THE
CREATOR.' This declaration was made on January 31, 1961 through an
ordinary man, Taxwell Tayali, while Mrs Laizah Tayali was praying. He
was assaulted and rejected by some of the Guta RaMwari members after
this divine pronouncement, but God the Almighty chose twelve families
and gave them the Holy Spirit. Those twelve stood firmly against the
rest who had rejected the divine relevation. At His own time, God led
the twelve out and away from all those who had rejected Him and
established Guta RaMwari at Mpopoma South in Bulawayo, Zimbabwe on
July 22, 1962…, Whereas a simple man cannot claim to be God of all
nations and whereas he cannot perform miracles unless God is with
him, there, therefore cannot be any demonstration of significant
works and accurate forecasting of events which are miraculous to
mankind except if God is in that particular person.”
The
teachings of the church whose Constitution was registered on 3
January 2014, to which the three (3) respondents are members, are
contained in its preamble which reads in part:-
“Whereas
God the Creator has appeared in the past to man in different
countries and different places and in different ways, and whereas he
has done all this at his own will, it has now pleased God to reveal
himself to the people in Guta RaMwari all over the world. Guta
RaMwari is a religious organisation established by God for curing
illness and troubles as well as preaching his Word pronounced as
Standing Orders contained in the Holy Literature.
DEDICATION
PREFACE
We,
the members of Guta RaMwari;
(a)
Being the product of God's Promise, testify that Guta RaMwari was
founded by God in 1954 in Zimbabwe, Africa.
(b)
Testify to the existence of God the Holy Spirit in our midst and
commune, worship him directly.
(c)
Believe God's declared purpose of revealing Himself was to free
humanity from physical and spiritual afflictions.
(d)
Believe and testify that God is the Holy Spirit.
(e)
Testify that, as Congregants, we are equal before God and no
individual has oversight powers in Guta RaMwari.
(f)
Affirm to do our best to follow the Guta RaMwari standing orders and
all the Holy Statutes faithfully and religiously.
(g)
Accept that the decision-making powers, authority and control shall
vest in Guta RaMwari whose interest shall be represented by the
Administrative Council, International.
(h)
Accept to be bound by the resolutions adopted by the leadership of
Guta RaMwari in a properly constituted meeting.”…,.
Clearly,
there has been a departure from the belief that God expresses himself
through the chosen one, originally Taxwell Tayali, and the chosen 12
families given the Holy Spirit, and other related beliefs, as the new
church now sharply rejects those beliefs electing instead to worship
God “directly” as equals with no individual having “oversight
powers.” A schism has therefore occurred with the respondents and
their kind standing for different teachings. More importantly, those
that have altered their religious outlook, like the three (3)
respondents have remained firmly at the church resulting in simmering
discontent and conflict.
The
applicant has come to court complaining that the respondents, after
voluntarily terminating their membership and allegiance to the
applicant, have resorted to causing chaos at the church. While their
colleagues in Bulawayo moved away and set up their own church in
Tshabalala, the respondents have forced themselves on the Glen Norah
branch. The applicant complains, bitterly, that on 10 August 2014 the
respondents attended the applicant's church service. While Senior
Evangelist Fabian Jacha was announcing the church roster, the first
respondent interrupted him rejecting the roster. He then instructed
the third respondent to prepare another roaster subscribing to the
doctrine of the breakaway church based in Tshabalala, Bulawayo. The
respondents allegedly threatened violence against those who disagreed
with them. A week later, on 17 August 2014, the third respondent
announced their own roster forcibly as he had not been accorded the
floor being an outsider at the church. He also threatened to announce
a new chairman for the applicant's church on 24 August 2014. This
forced the applicant to file this urgent application on 22 August
2014 seeking the following relief:-
“TERMS
OF FINAL ORDER SOUGHT
That
you show cause to this Honourable Court why a final order should not
be made in the following terms:-
1.
The interim relief sought is confirmed as final pending finalisation
of the Applicant's court action under case number HC5646/14.
2.
The respondents shall pay the costs of suit.
INTERIM
RELIEF GRANTED
Pending
the determination of this application, the applicant is hereby
granted the following relief:
1.
The respondents, their agents or assignees be and are hereby ordered
forthwith to desist from any action intended to disrupt the peaceful
conduct of church services by the applicant church by threat or words
or in any manner whatsoever resulting in the applicant's church
services being unlawfully interfered with at its Glen Norah branch,
Harare located on Stand No.8583 Glen Norah, Harare pending the return
date of this matter.
2.
The respondents, their agents or assignees be and are hereby barred
from interfering in any manner whatsoever with applicant's duty
roaster pertaining to the conduct of its church services at Stand
No.8583 Glen Norah, Harare pending the return date of the matter.
3.
Any duly attested member of the Zimbabwe Republic Police is
authorised to enforce para 1 and 2 above to maintain peace and order
using any such appropriate means as (are) permitted by law.”
The
application has been opposed by the three (3) respondents who,
although not denying being members of the church called Guta RaMwari
governed by a Constitution registered on 3 January 2014, claim an
entitlement to the church building arguing that it is in fact owned
by the new church. As to how this would be so when the property was
acquired and transferred on 6 September 2006, before the new church
was established, we are not told. The respondents also do not dispute
that they belong to the same church which left the applicant's
headquarters in Lobengula, Bulawayo to set up base in Tshabalala
Bulawayo. It is not clear why the same could not be done in Harare.
What is, however, clear, even by the respondents' own admission, is
that there is chaos at the church, caused by differences in religious
beliefs, of people trying to worship together from the same building
at the same time. The second respondent states, at paragraph 11 of
his opposing affidavit, which is verified by the first and third
respondents, that:
“There
are alternative remedies in this matter, the applicant can sue the
respondents for damages (what logic!) and can get them arrested
and/or just wait for the outcome of the pending cases in Harare and
Bulawayo which cases shall determine the real issue between us, i.e.
ownership of the right to the name Guta RaMwari. The parties are
praying together currently owing to the applicant's having imposed
themselves on our membership worshipping time.”…,.
It
is that kind of chaos and confusion which cannot be allowed to
perpetuate in any civilised society.
It
is not possible for two (2) different religious groups, advancing
varying religious teachings, to “pray together.” That would be a
recipe for disaster and a dangerous state of affairs. The situation
on the ground is not only hostile and unstable indeed - it cries out
for intervention….,.
In
essence, what the applicant seeks is a temporary interdict.
In
Ericksen Motors (Welkon) Ltd v Proten Motors, Warrenton and Anor 1973
(3) SA 685 (A)…, (quoted with approval by SANDURA JA in Charuma
Blasting and Earthmoving Services (Pvt) Ltd v Njainjai and Ors 2000
(1) ZLR 85 (S)…,.) HOLMES JA stated the requirements for a
temporary interdict as:-
“The
granting of an interim interdict pending an action is an
extraordinary remedy within the discretion of the court. Where the
right which it is sought to protect is not clear, the court's
approach in the matter of an interim interdict was lucidly laid down
by INNES JA in Setlogolo v Setlogelo 1914 AD 221 at p 227. In
general, the requisites are:
(a)
A right which, though prima facie established, is open to some doubt;
(b)
A well-grounded apprehension of irreparable injury;
(c)
The absence of ordinary remedy.
In
exercising its discretion, the court weighs, inter alia, the
prejudice to the applicant if the interdict is withheld, against the
prejudice to the respondents if it is granted. This is sometimes
called the balance of convenience. The foregoing considerations are
not individually decisive, but are inter-related; for example, the
stronger the applicant's prospects of success the less the need to
rely on prejudice to himself. Conversely, the more the element of
'some doubt,' the greater the need for the other factors to
favour him…,. Viewed in that light, the reference to a right which,
'though prima facie established is open to some doubt', is apt,
flexible and practical, and needs no further elaboration.”
I
have already stated that the papers before me suggest that the
respondents belong to a group that has abandoned the teachings of the
applicant and registered a new Constitution governing its religious
teachings; it is an organisation that came into place only in January
2014 - long after the church being fought over was acquired. Prima
facie, the applicant has a right over the church.
The
evidence before me suggests that the respondents are causing a
commotion at the church, expounding certain alien teachings and
disrupting the smooth running of church services. Therefore, there is
a well-grounded apprehension of irreparable harm for, apart from the
danger of polluting the applicant's congregants, there is
interference with their Constitutional right of worship. There can be
no other remedy available to the applicant than the interdict
sought….,.
I
am of the view that the balance of convenience also favours the
applicant. The respondents' fellow congregants have left the
applicant's institutions intact to set up on their own. Having
abandoned the applicant's teachings, it is convenient for the
respondents' to follow suit instead of trying to transform the
applicant. I am also mindful of the fact that the Supreme Court has
ruled, in the case of The Church of the Province of Central Africa v
The Diocesan Trustees for the Diocese of Harare SC48-12…, that
where a schism has occurred, the party leaving the church cannot lay
a claim to the property of the church. At page 36 of the cyclostyled
judgment, MALABA DCJ stated:-
“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
organisation 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.”
Indeed,
where a number of people group together to establish a Christian
church for purposes of promoting certain defined doctrines of
religious faith, the property which the church acquires is impressed
with a trust to carry out the purpose and a majority of the
congregation, such as the respondents who claim to belong to the
majority of members of Guta RaMwari, cannot divert the property to
uses inconsistent with such defined religious doctrines against the
will of a minority of the congregation: Chong v Lee (1981) BCLR 13…,.
I
am therefore satisfied that the applicant has made out a case for the
relief sought. Accordingly, I grant the provisional order in terms of
the draft.
