BACKGROUND
The
applicants are employed by the Ministry of Primary and Secondary
Education as full-time civil servants. The applicants were deputy
headmasters at St. David's Bonda High School and St. Mathias Tsonzo
High School respectively. Both schools were established and are
administered by the Anglican Church of the Province of Central Africa
(“the Anglican Church”) through the first respondent. The second
respondent employs all civil servants; whilst the third respondent is
responsible for the deployment of civil servants in the education
sector through relevant regional administrative offices. The third
respondent is tasked with the responsibility of supervising all civil
servants employed in the education sector. The applicants report to
the third respondent.
The
“ACTS OF THE DIOCESE”, which are the Constitution of the first
respondent, provide, under
clause
12.15, as follows:
“12.15
GENERAL
(d)
Heads
and their deputies should be Anglicans so that the spirit of
Anglicanism is maintained.
Other
members of staff should be Anglicans or as recommended by the Boards
and Ministry of Education.”…,.
There
was no evidence of an express agreement entered into between the
first respondent and the third respondent in terms of which the
Government bound itself to deploy to schools owned by the former,
headmasters and deputy headmasters who adhered to the doctrine of
Anglicanism. It was common cause, however, that the understanding
between the parties was that the policy position of the first
respondent, as stated in clause 12.15 of its Constitution, be
respected.
At
the time they were posted to the first respondent's schools, the
applicants were practising Anglicans. They knew and accepted that
they had been posted to the respective schools as deputy headmasters
ahead of other possible candidates because they met the requirement
that all headmasters and their deputies at Anglican Church schools
had to be Anglicans. Both applicants were classroom practitioners.
The first applicant taught Divinity, Bible Knowledge, Guidance and
Counselling, whilst the second applicant taught English Literature,
Guidance and Counselling. Both applicants were ordained priests - an
attribute that had been taken into account when they were posted to
the first respondent's schools.
The
Acts of the Anglican Diocese of Manicaland (“Acts of the Diocese”)
are explicit that the aim of the schools under the auspices of the
first respondent are “to fulfil Anglican church ethos”. They also
state that “school heads, teachers and students are expected to
attend church services and other Christian educational activities
organised by the church.”
“Acts”
are decisions of the Synod which are intended to have mandatory
effect as part of the Ecclesiastical Law of the Diocese.
During
the period from 23 September 2007 to 21 February 2013 disputes arose
in the Anglican Diocese of Manicaland as a result of which some
members left the Anglican Church. The applicants elected to join the
newly formed Evangelical Anglican Church International and left the
Anglican Church of the Province of Central Africa. In other words,
the applicants left the Anglican Church which owned the schools where
they were stationed as deputy headmasters. After leaving the Anglican
Church, the applicants took up positions as pastors in the new
church. They were now conducting non-Anglican church services at the
schools thereby raising conflict of interest with the host Anglican
church.
Some
time in 2013, the first respondent asked the applicants to stop
performing prayers within the schools as well as conducting church
services. The applicants were also ordered to remove their priestly
collars. They complied with these orders. The purpose of the orders
was to discourage the applicants from using their powerful position
of deputy headmaster to influence students and other members of the
school community to the benefit of their new church.
The
first respondent requested the third respondent to transfer the
applicants from its schools. The request was granted. The papers show
that the applicants were replaced in the position of deputy
headmaster at the two schools by Mrs Nyamapfeni and Mrs Pswarayi
respectively.
The
applicants took the view that the actions of the first respondent
were unconstitutional and launched an application for an order to the
effect that:
“1.
It is declared that the first respondent's conduct of seeking the
transfer and eviction of the first applicant from St. David's Girls
High Bonda and the second applicant from St. Mathias Tsonzo by virtue
of them not being members of the Anglican Church is unconstitutional,
null and void since it infringes the applicants' right to equality
and non-discrimination, freedom of assembly and association, and
freedom of conscience.
2.
It is hereby declared that the Agreement entered (into) between the
respondents to the effect that headmasters and deputy headmasters in
the first respondent's schools must be Anglicans is
unconstitutional, null and void.
3.
It is declared that the removal of the applicants from the
post/office of the deputy headmaster by the first respondent and
appointment of a Mrs Nyamapfeni and Mrs Pswarayi, respectively, as
replacements for the respective applicants is unconstitutional, null
and void since it usurps the second and third respondents' powers
as enshrined in the Constitution of Zimbabwe.
4.
The first respondent be and is hereby ordered to pay the costs of the
application.”
The
second and third respondents have not opposed the applications.
Each
applicant brought the application
on
the allegation that his right to freedom from unfair discrimination
(section 56(3)), right to religion (section 60(1)), and right to
freedom of assembly and association (section 58(1)) has been
infringed by the respondents.
The
facts show that there was no infringement by the respondents of any
of these rights of the applicants. The
Court holds that the applications were without merit. The reasons now
follow.
The
applicants had no basis for the allegation that they were
discriminated against by the implementation of the requirement of
clause 12.15(d) of the Acts of the Diocese to the effect that
headmasters and deputy headmasters of the first respondent's
schools be adherents of the Anglican religion. They benefitted from
the observance of the requirement by the representatives of the
second and third respondents when they were appointed deputy
headmasters of the respective schools. The request by the first
respondent, to the third respondent, that the applicants be
transferred from its schools, which request was granted, was a direct
consequence of the exercise by the applicants of their right to
freely choose a religion of their own to practise and propagate.
As
a result of the exercise of the right to change religion, the
applicants disabled themselves from discharging some of the duties of
the office of deputy headmaster. They were no longer able to perform
the duties in respect of affairs in matters of the Anglican religion.
The Acts of the Diocese required the applicants, in their capacities
as deputy headmasters of the schools, to play leading roles in church
affairs, attend church services, and project an Anglican Christian
ethos in the schools. They were required to be role models to their
subordinates in the community in their lifestyles. It was their duty
to conduct themselves in a manner that promoted and upheld Anglican
Christian principles and values. The applicants deprived themselves
of the right to remain deputy headmasters at the schools. Their
inability to perform important duties as deputy headmasters of the
first respondent's schools prejudiced the interests of the
community that established the schools.
The
applicants confessed, in the founding affidavits, that they stopped
carrying out the duties of propagating the Anglican religious ethos
at the schools when it was their duty to do so as deputy headmasters
and priests.
The
roles played by the first and third respondents in the transfer of
the applicants from the schools were part of the consequences of the
exercise by the applicants of their right to choose a religion of
their own. An exercise of a right may bring about undesired
consequences. These include reactions by others whose interests are
adversely affected by the exercise of one's right. The applicants
cannot seek protection from consequences of their own voluntary acts.
As a reaction to the situation of the inability by the applicants to
manage affairs in matters of the Anglican religion which formed an
integral part of the duties of the office of deputy headmaster, the
transfer of the applicants from the schools was a means of protecting
the interests of the religious community that established the
schools.
A
person who occupies a position in the administration of a private
school established and managed by a religious community on the
condition that he or she is an adherent to the religion for which the
denomination stands, but later changes religion in the exercise of
the right to freedom of conscience thereby disabling himself or
herself from continuing in occupation of the office, entitles the
authority with the power to do so to remove him or her from the
office.
The
church, as an organised religious community of people with
substantially similar views on matters of faith, has a right to
protect its interests in schools established for the purpose of
promoting its religion. Where the individual and collective aspects
of section 60 of the Constitution conflict, it will generally be
appropriate to consider that the collective rather than the
individual interests prevail – so long as the former do not become
oppressive or tyrannical.
The
allegation that the requirement in clause 12.15(d)
of the Acts of the Diocese, that headmasters and deputy headmasters
of the first respondent's schools be Anglicans, is an infringement
of section 60(1) of the Constitution was made without having taken
into account and considered all relevant factors.
Section
60(1) of the Constitution gives every person the right to freedom of
religion and freedom to practice
and propagate one's religion whether in public or in private and
whether alone or together with others. The schools to which the
qualification for employment of headmasters and deputy headmasters
relates are religious schools. They are not public schools. In
addition to the ordinary academic programme, a religious element,
which determines the nature and character of the institution, is
present in these schools. To carry out the purposes of the schools,
full effect must be given to this aspect of their nature.
The
schools were established by the first respondent in the exercise of
the right enshrined in section 60(4) of the Constitution. Section
60(4) of the Constitution provides:
“60
Freedom of conscience
(1)
to (3)…,.
(4)
Any religious community may establish institutions where religious
instruction may be given, even if the institution receives a subsidy
or other financial assistance from the State.”
The
words “religious community”, in section 60(4) of the
Constitution, must take colour from the word “religion”. The
expression “religious community” must satisfy three conditions –
(1)
It must be a collection of individuals who have a system of belief or
doctrines which they regard as conducive to their spiritual
wellbeing, that is, a common faith;
(2)
Common organisation; and
(3)
Designation by a distinctive name.
There
is no doubt that the first respondent is a religious community.
Only
a religious community has the power to establish an institution for
the purpose prescribed under section 60(4) of the Constitution. The
first respondent exercised the right and established schools where
one of the objectives is to give to the students religious
instruction deemed valuable by their parents who largely share the
Anglican faith. The instructions would obviously not be in conflict
with any public interest.
Section
60(4) of the Constitution does not forbid a religious community that
has established a school from having an influence on the mechanisms
for the appointment of officials to occupy positions that are
critical in ensuring the achievement of the objectives of the
establishment of its institution. It is in respect of an institution
that a religious community has established, in the exercise of
freedom of religion, that it can claim a right to have included in
the conditions of appointment of managerial employees to its
institutions, by the central authority, that the people be adherents
of its religion. The freedom to establish institutions where
religious instruction is given includes the right of the religious
community to take part in the determination of who exercises the
power to manage the affairs in matters of its religion at the
institutions.
Section
60(4) of the Constitution gives a religious community the right to
establish an institution where instructions on its religion are
given. It does not prohibit the religious community from adopting
measures such as are prescribed in clause 12.15(d) of the
Constitution
of the first respondent. The measures were adopted as a means of
ensuring the achievement of the purposes of the schools. That the
schools were established for the purpose of promoting the spirit of
Anglicanism is clear from the contents of the provisions of the Acts
of the Diocese.
It
is provided, under clause 12.15(a) of the Acts of the Diocese, that
although employment in the first respondent's educational
institutions will be on merit, preference will be given to practising
members of the Anglican Church. Clause 12.14 of the Acts of the
Diocese provides that the teacher in an Anglican school plays a role
that projects Anglicanism and contributes to the ethos of the school
through a good, professional, approach aimed at fulfilling the
mission statement.
It
is clear that the objectives of the Anglican schools are furthered by
a number of principles which have been developed by the Anglican
church. To achieve their specific aims, the Anglican schools depend
not so much on the subject matter of the curriculum as on the people
who work there. The occupants of the office of headmaster and deputy
headmaster, being Anglicans, is an integral aspect of the
administration of the schools guaranteeing the propagation and
promotion of Anglicanism. The reason is that the religious or
doctrinal aspects of the schools lie at their very hearts and colour
all their activities and programmes. The role of the headmaster and
deputy headmaster, in this respect, is fundamental to the whole
effort of the schools as much in their spiritual nature as in the
academic. (See Ontario
Human Rights Commission v Etobicoke (Borough of)
[1982] 1 SCR 202…,.).
The
measures taken attest to the exercise by the religious organisation
of the right to determine the policy and rules governing the
administration of the affairs of the schools it would have
established for the purposes of promoting its own religion. The
enjoyment of the right by the religious community concerned is
consistent with the foundational principle of the Constitution that
Zimbabwe is a secular State.
Whilst
the decision to appoint a person as a headmaster or deputy headmaster
of a school is a secular decision, the qualifications for appointment
to a religious school may properly include a requirement that the
person be an adherent of the religion for which the community that
established the institution stands. The management of religious
schools established under the authority of section 60(4) of the
Constitution cannot be governed wholly by secular laws, as the
purpose of their establishment is invariably the provision of secular
education as well as religious instruction. The rule was enacted by
an ecclesiastical body for the management of internal affairs in
matters of religion at its schools. Religious organisations are
obviously formed to uphold and enforce the fundamental principles and
doctrines of the religion chosen by their members.
The
requirement that a person appointed to be headmaster or deputy
headmaster at schools established by the first respondent should be
an Anglican was imposed honestly, in good faith, and for a legitimate
purpose of ensuring that affairs in matters of the Anglican religion
were properly managed. The requirement was clearly related in an
objective sense to the performance of the duties of a deputy
headmaster of a religious school. The requirement of religious
conformance was imposed solely to promote the objects of the schools.
The requirement underlines the fact that it is of primary importance
to the achievement of the objectives of the schools that the
headmaster and deputy headmaster be embodiments of the doctrines and
ethos of the Anglican religion for them to preside over their
teaching to students and their practices as a way of life at the
schools. Having regard to all these principles and the special nature
and objectives of the first respondent's schools, the requirement
that the headmaster and deputy headmaster be Anglican is consistent
with the exercise of the right to freedom of religion. The principle
of religious neutrality does not apply to a private school
established by a religious community for the purpose of propagating
and promoting the collective faith….,.
In
R
v Big M Drug Mart Ltd
(1985) 18 DLR (4ed) 321…, DICKSON CJC
said:
“The
essence of the concept of freedom of religion is the right to
entertain such religious beliefs as a person chooses, the right to
declare religious beliefs openly and without fear of hindrance or
reprisal, and the right to manifest belief by worship and practice or
by teaching and dissemination.”
The
applicants did not deny that they were able to do, and did, all these
things in the exercise of the right to freedom of religion.
Nothing
was done by any of the respondents to prevent the applicants from
practicing
their new faith and performing their duties as pastors in their new
church. Their right of choice of religion and the right to practise
that religion was not impaired at all by any of the respondents. None
of the respondents, in any way, interfered with the applicants'
positions as pastors in their new church nor did they prevent any of
them from taking part in any religious activities of that church.
Just
as the Supreme Court held in Church
of the Province of Central Africa v Diocesan Trustees, Harare Diocese
2012 (2) ZLR 392 (S) that those who secede from a church have no
right to take church property with them, so too it cannot be accepted
that those who secede from a church can take control of schools
established by that church in order to propagate a different
religious ethos.
DISPOSITION
The
applications are dismissed with costs.
