HLATSHWAYO
JA: This
is an appeal against the whole judgment of the High Court of Zimbabwe
dated 20 May 2015.
The
order sought to be impugned reads as follows:
“IT
IS DECLARED THAT,
1.
1st, 2nd,
3rd
and 4th
Respondent are no longer members of Applicant and have lost all
rights to fellowship under applicant or to make use of any of its
properties or amenities as well as its name.
2.
1st,
2nd,
3rdand
4th respondent shall immediately stop and shall at all times desist
from making use of applicant's name or any such name which may
reasonably be confused with applicant's name and which may give the
impression that they have any association with applicant.
3.
1st,
2nd,
3rd
and 4th
respondents shall immediately relinquish possession and use of all of
applicant's properties both movable and immovable whether held by
them directly or by those claiming the right of any use of occupation
through them and which are set out in paragraph “3.1” below and
shall concede such use and possession to applicant.
1.
LAND AND BUILDINGS
1.
Bulawayo: church at Stand 61000, Size Road, and adjacent stands for
youth and women, Western Commonage No 6 Pelandaba;
2.
Stand 36E, 37E, 38E,39E,40E, 54E, 55E Bekezela Street, Pelandaba;
3.
House at No 16 Amantje Road, Four Winds, Bulawayo;
4.
Greengables Farm, the remaining extent of subsdivision B of Dunstaal,
Khami;
5.
Plot 11 and 12, Shamrock Road, Gweru;
6.
Lower Gweru at Gwabada Farm and Ekukhanyeni Weaving Centre;
7.
Kwekwe: Stand no 383 Mbizo Township Church and residence, Amaveni
tiownship church;
8.
Kadoma: Stand no 4 Bwanali Street, Rimuka Township church and mission
residence;
9.
Chegutu: Stand 2134 Heroes Township Church and Mission residence at
550 Pfupajena Township;
10.
Masvingo stand 14 Mucheke Township, Masvingo;
11.
Mutare: Stand No 7 Machekaire Street, Dangamvura Township, Mutare;
12.
Buhera Murambinda Township Church stand;
13.
Nyanga: Church at Bonde Kraal;
14.
Mount Selinda: Chako Township Church Stand;
15.
Chinhoyi Stand 1159 Hunyani township Church and residence
16.
Mahororo Business Centre Church Hurungwe;
17.
Beitbridge Stand 2384 Dulibadzimu and residence at No 9;
18.
Victoria Falls: Stand 2647 Victoria Falls;
19.
Kariba: stand 1727 Nyamhunga Township;
20.
Chiredzi:51 Makaza Triangle, No 6 Nzimbe Township Trangle;
21.
Mwenezi: Sarahuru Township Church;
22.
Mutoko: Mutoko Business Centre, Church Stand;
23.
Pilgrims' Progress restaurant Kadoma;
24.
Pilgrims' Progress restaurant Gweru;
25.
Bindura: 19/34 Musvosve Street Stand at Chipadze Township and Trojan
Mine;
26.
All motor vehicles and church assets under their control;
27.
Chipinda Church Stand; and
28.
Hwange: No 2 Glencoe Road, Railton, Hwange.
4.
1st,
2nd,
3rd
and 4thRespondents
are to bear the costs of this application.”
The
background to this matter is clearly set out in the judgment of the
court a
quo
and may be summarized as follows:
The
Apostolic Faith Mission of Portland, Oregon, is a church corporation
of the State of Oregon, USA, which church was established in 1906
with its headquarters in Portland, Oregon, and is hereinafter
referred to as the “mother or parent church”. It is headed by a
Superintendent General. One of the mother/parent church's premier
goals is to disseminate biblical truth and evangelise the world. In
advancing this goal, the Apostolic Faith Mission of Portland Oregon
(Southern African Headquarters) was established in 1955 (hereinafter
referred to as the “local church”). The Apostolic Faith Mission
of Portland Oregon (Southern African Headquarters) is the respondent
in
casu.
The
mother church has other branches in a plethora of Southern Africa
countries, inter
alia,
South Africa, Malawi and Angola. The local church is governed by a
Constitution like any of the other branches of the mother church in
Southern Africa. The first constitution of the respondent was
promulgated in 1968 and then amended in 1985 and 1996. In terms of
Article 1 of the respondent's amended constitution, the respondent
was established as a branch of the mother/parent church. The
appellants sought to further amend the constitution in 2012 which
purported amendment, however, was not endorsed by the mother church.
The
first appellant was appointed Overseer of the respondent in 1985. It
was during the stewardship of the first appellant that an issue arose
concerning the existence of two choirs in the respondent's church.
The pith of the dispute related to whether there was need for the
choir to wear a uniform and dress in a particular manner. The mother
church was informed of the dispute and it directed that both choirs
be disbanded. The first appellant did not act in accordance with this
direction from the mother church. Rather, the first appellant wrote
to the mother church indicating that he would consider withdrawing
from the Board and from being an overseer if the issue of uniforms
was not dealt with to his satisfaction.
The
director responsible for Africa, one Reverend Baltzell, visited the
respondent with the intention of retiring the first appellant and
appointing a replacement. Alive to this fact, the first appellant
instituted legal action. Subsequently, Darrel D. Lee, the
Superintendent General, wrote to the first appellant communicating
his removal from the position of Southern Africa Overseer with effect
from 21 April, 2005, leaving him as an ordinary member of the church.
Aggrieved
by his removal, the first appellant instituted legal action which saw
him obtaining a provisional order in terms of which he would remain
overseer of the respondent. This provisional order was, however,
subsequently discharged. The first appellant appealed against this
judgment. The appeal, however, lapsed and was deemed dismissed. On 7
February 2008, following an application made by the first appellant,
the respondent's removal was invalidated, unopposed, under case
HC/1170/05 and the subsequent application for rescission was
dismissed.
The
application a
quo
was however not premised on the previous removal of the first
appellant. The material events that led to the appealed judgment are
set out hereunder, as outlined a
quo:
“In
November 2011 the head of the parent church visited the country and
the (first appellant) barred him from accessing the church branches
and buildings for conducting services. This matter spilled into the
courts again with the parties subsequently agreeing to resolve their
differences outside the court. In the same month, the first
(appellant) issued summons for the eviction of pastors he did not
agree with, from church premises. He appointed new pastors and
replaced those he perceived to be siding with the parent church. This
development culminated in further tensions in the church. On 25
January 2012, the first (appellant) was suspended from membership of
the church by the parent church. The reason for this was that he had
breached the cannons of the church and violated spiritual doctrines
by continuing to litigate against the faithful and that he had failed
to submit to the authority of the church in breach of the church's
Constitution. Further, that his conduct had led to the creation of
disharmony within the church and that he had appropriated the
church's assets to his own use. The other complaint was that he
was effecting amendments to the Constitution without authority”.
The
letter of 25 January 2012 suspended the first appellant “immediately
from all activities associated with the church” and stated further
that “during the suspension and pending the finalization of
investigations and any subsequent disciplinary hearing that might be
conducted against you, you shall not set your feet (sic)
at any of the church's premises. You shall also not conduct any
church service. You shall also be expected not to interfere with
church members wherever located in Southern Africa ...” Against
these charges, the first appellant instructed his legal practitioners
to write to the head of the parent church. The contents of this
letter dated 3 February 2012 read as follows:
“Dear
Sir
RE
APOSTOLIC FAITH MISSION OF PORTLAND AND OREGON UNITED STATES OF
AMERICA VS REVEREND RICHARD SIBANDA AND APOSTOLIC FAITH MISSION OF
PORTLAND PREGON (SOUTHERN AFRICAN HEADQUARTERS) AND THE BOARD OF
TRUSTEES – CONSTITUTIONAL AMENDMENT
We
refer to the above matter and advise as you may well know that we are
lawyers for the Apostolic Faith Mission of Portland Oregon (Southern
African Headquarters) Inc. And the Board of Trustees of same and of
course Reverend Sibanda the Overseer of the Southern African
Headquarters.;
1.
The Southern African Headquarters is a legal person governed by its
own constitution and we advise that the constitution was formed by
the Board of Directors of Southern Africa duly convened and called
for that purpose.
2.
The same constitution is subject to amendment by the same Board of
Directors duly convened for that particular purpose.
3.
The historical relationship between Southern Africa and America was
born out of historical issues of the refusal by the Colonial
Government to accord indigenous people the right to preach the Gospel
without external white missionaries. For the record, America and
Southern Africa have a spiritual relationship; a look at the previous
constitutions and your reference to the history of the church in
Southern Africa will vindicate this position.
4.
In our view, a look at the Amendments is not only reasonable but
logical and was inevitable and on p8 are the proposed trustees chosen
by the people of Southern Africa. The choice is yours, to either
understand the amendments and try to build on a great relationship
with Southern Africa under an affiliate status or choose to listen to
people who appear to be feeding you with false information. For your
information the whole Board of Directors and the Board of Elders and
the Brothers and Sisters in the faith in the greater Southern Africa
are prepared to proceed with the amendments of the constitution.
5.
For the record, our clients collectively have decided that they will
not accept the leadership from America. The Board of Directors,
Elders and Church members have enough sense and intelligence to
choose their own leadership. Finally the same God you serve is the
same God they serve and He will give them guidance on succession
issues.
May
we have your response, if any, within seven days?”
The
episodes that followed after this letter are that the first appellant
was called to a disciplinary hearing to respond to the charges
preferred against him. The charges were, inter
alia,
that the first appellant had violated Articles VI and VII of the
Respondent's Constitution by deliberately refusing to submit to the
authority of the parent/mother church and that the first appellant
had violated the Constitution as read with doctrinal rules of the
Apostolic Faith Church of Portland, Oregon (Southern Africa
Headquarters) in that in or around December 2011, first appellant had
elected to settle his personal disputes with church brethren in the
High Court of Zimbabwe rather than as dictated by the Bible.
The
first appellant did not attend the disciplinary hearing to determine
charges laid against him set for 22 March 2012. The hearing
nevertheless went ahead and it was resolved that the first
appellant's suspension be “confirmed”. Rev Onias Z. Gumbo was
then appointed as Overseer in the place of the first appellant.
Undeterred by the suspension, the first appellant maintains that he
is still the Overseer of the respondent. On 22 March 2014 the
appellants issued summons against the superintendent of the parent
church challenging the first appellant's suspension and seeking
nullification of Reverend Gumbo's appointment and an order
interdicting him from interfering with the church operations. The
parent church counterclaimed seeking a declaration of the lawfulness
of the suspension and the interdiction of the appellants from acting
as overseer and board of directors of the local church. This action
does not seem to have been pursued to finality, for reasons that are
not clear from the record. Instead, the respondent filed an
application for a declaratory order in the court a
quo essentially
seeking the same relief as in the counterclaim. The terms of the
order prayed for, which order was granted by the court a
quo,
have already been quoted above.
Aggrieved
by that order, the appellants noted this appeal on the following
grounds of appeal:
“1.
The High Court erred in finding that the respondent, being a
universitas
with
power to sue and be sued in its own name, could not secede from the
Apostolic Faith Mission of Portland Oregon.
2.
The High Court further erred in finding that the respondent had an
interest in suing its overseer and its board of trustees, the
Appellants, when the letter of the 3rd
of February 2012 was written on behalf of the respondent, its
leadership and its members.
3.
The High Court further misdirected itself in finding that the letter
of the 3rd
of February 2012 amounted to a resignation by the (appellants) from
the (respondent) or a denunciation of the doctrine of the church.
4.
The High Court misdirected itself in finding that the (appellants)
had shown conduct as to amount to sensation (sic)
(secession?) when there was no evidence to that effect.
5.
The High Court misdirected itself in finding as it did that the
(appellants) had adopted a new constitution for the applicant when in
fact they had not proceeded with the proposed amendments.
6.
The High Court further erred in failing to find that the (respondent)
church, through the overseer, the 1st
(appellant), had the authority to appoint its own leadership, that is
the board of trustees and therefore the communication that the
applicant's leadership would be appointed locally could not amount
to denunciation of the American church.”
At
the hearing of this matter additional grounds of appeal were moved
and granted through an amendment as follows:
1.
The learned judge in the court a
quo
erred in not finding that the respondent did not have the requisite
capacity to bring the action in this matter and/or that it required
the support of the church in Oregon, USA.
2.
The learned judge in the court a
quo
erred in not finding that the application was, in any event, fatally
defective as the deponent to the founding papers was barred from
representing respondent.
3.
The learned judge of the court a
quo
erred in finding that the first appellant ceased to be District
Superintendent and ought to have found therefore that the application
was a nullity.
The
appellants then prayed for the setting aside of the judgment of the
High Court and its substitution with an order dismissing the
declaratory application with costs.
The
laxity and inattentiveness in drafting the notice of appeal by the
appellants' counsel has necessitated the insertion in brackets of
the proper parties before this Court. The appellants in their grounds
of appeal cite the parties as if they are still before the High
Court. The appeal should relate to “Appellants” and “Respondent”
and not “Applicant” and “Respondents.” This lack of
attentiveness by legal practitioners is the kind of carelessness that
should never manifest at this level of litigation.
This
Court therefore is seized with an appeal seeking to overturn a
declaratory order granted a quo.
From a close reading of the grounds of appeal, two questions call for
determination and these are:
1.
Whether the respondent had the requisite locus
standi
to sue?
2.
Whether the appellants had ceased to be members of the respondent?
The
just mentioned questions shall be dealt with hereunder.
Whether
the respondent had the requisite locus standi to sue?
The
appellants contend that the respondent did not have the requisite
locus
standi
to bring the application before the court a
quo.
The appellants point to Article VII of the respondent's
Constitution as the basis of the argument against respondent's
locus
standi
in the court a
quo.
Article VII of the respondent's Constitution reads as follows:
“The
Government of the religious organisation shall be vested in the Board
of Directors consisting of not less than three (3) or more than seven
(7) members…”
The
appellants' interpretation of Article VII of the respondent's
constitution is that it is only the Board of Directors that has locus
standi to
institute legal proceedings. The appellants further note that there
is no provision in the respondent's constitution that gives the
local chapter/local church any direct right to institute legal
proceedings. To buttress this argument, the appellants take the point
that the degree of control exercised by the mother church over the
local church shows that the proper applicant in the court a quo
ought to have been the parent church.
It
is common cause that the respondent is an organisation clothed with
legal personality. As a legal persona,
the respondent has rights, duties and capacities independent of its
own members. The respondent therefore has a right to sue and be sued
in its own name. This right however cannot be exercised in instances
where the respondent has no substantial interest in the matter. In
other words, the respondent as a legal person need to have locus
standi
in order to be afforded audience in a court of law. It is trite that
locus
standi
is the capacity of a party to bring a matter before a court of law.
The law is clear on the point that to establish locus
standi,
a party must show a direct and substantial interest in the matter.
See United
Watch & Diamond Company (Pty) Ltd & Ors v Disa Hotels Ltd &
Anor
1972 (4) SA 409 (c) at 415 A-C and Matambanadzo
v Goven
SC 23-04.
In
casu,
it is common cause that the respondent is a branch of the parent
church. However, the respondent is endowed with powers to sue and be
sued in its own name. It is further common cause that the respondent
is under the leadership appointed by the parent church. The
constitution of the respondent is approved by the mother church. The
first appellant has been in control of the respondent's assets on
the basis of being an overseer appointed by the mother church. The
main allegation a quo
was that the appellants were no longer members of the respondent and
hence should cease to control the assets of the respondent.
The
respondent as a branch of the mother church had an unfettered direct
interest in the matter in that the first appellant purported to act
on the respondent's behalf when he was on suspension. The first
appellant had been divested of the power to act on behalf of the
respondent. It is common cause that the first appellant was on
suspension when he caused the letter of 3 February 2012 to be
drafted. He purported to communicate to the mother church an
incorrect position that the respondent was also the author of the
letter in question. The respondent who had not authored the letter in
question surely has a direct interest in a matter where its previous
leader purports to act on its behalf without its authority.
Therefore, the respondent's locus
standi in
the court a quo
cannot
be gainsaid.
In
too many church or voluntary association-related disputes, the
parties attempt to abuse the issue of locus
standi
in order to outwit each other and avoid the merits of the matter
being adjudicated upon or even to completely frustrate any legal
resolution of the matter. It is high time that the court, as it has
done in
casu,
takes a robust approach and leans in favour of finding that locus
standi
exists and proceeds to judicially determine the issues. A party who
is suspended from an organisation must in the first place legally
confront such suspension instead of resorting to the devious ruse of
challenging the locus
standi
of such organisation or any person appointed in their stead, in order
to escape judicial scrutiny of their conduct.
Whether
the appellants had ceased to be members of the respondent?
The
appellants contend that the letter of 3 February 2012 written by
their legal practitioners to the mother church did not communicate
their resignation from the mother church. Against this contention is
a specific finding made by the court a
quo that
the first appellant had resigned from the respondent's church. The
contents of the letter have been quoted above.
It
must be noted that the letter was written on 3 February 2012, days
after the suspension of the first appellant from the respondent's
church. The first appellant had been suspended from the respondent's
church on 25 January 2012. The terms of the suspension were inter
alia
that the first appellant was suspended immediately from all
activities associated with the respondent church. It therefore
follows that any activity that the first appellant purportedly did on
behalf of the church after his suspension was null and void. As long
as the suspension was still in force, any purported act by the first
appellant on behalf of the respondent was of no effect.
The
letter in question was written by the law firm, Cheda and Partners,
on the instructions of the first appellant who had been suspended
from the respondent church. The author of the letter at law is
undoubtedly the first appellant. It is worth observing that the legal
practitioners who wrote the letter in question state that they are
lawyers for the respondent, the first appellant and the Board of
Trustees of the respondent. In this letter, the first appellant
sought to act on behalf of the respondent as noted from the cited
parties. The contents of the letter therefore prima
facie
reflects that the first appellant was representing the respondent.
This could not be possible as the first appellant had been suspended
by the respondent.
Be
that as it may, the pertinent question that this Court is seized with
is whether the letter communicates a resignation by the appellants
from the respondent' church. In the event that this Court is to
find that it communicates a resignation, does it then follow that the
appellants are no longer members of the respondent despite the
absence of dismissal of the appellants by the respondent.
It
is also worth noting the letter in question contains very strong
doctrinal issues. Is it a form of schism, a declaration of
independence from the parent church? In the case of Independent
African Church v Maheya
1998(1) ZLR 552(H), DEVITTIE J reflects on the historical schisms
generated by the passion of church conflicts, thus:
“Even
at birth, the Christian Church experienced a great schism… It came
about when a convert of the early church, Paul, adapted Christianity
to meet the needs of all mankind and freed it from the local and
national parameters…
Another
schism which took place in early times was the Reformation. The
growth of national consciousness in medieval times in part motivated
the great conflict the Catholic Church and Protestantism. The spirit
of nationalism could not accommodate the claims of the papacy, a
non-national authority, to moral dictatorship. This schism has raged
for centuries and continues to this day…
In
like vein, the spirit of freedom radiated by the advent of democratic
Government in Zimbabwe in 1980 precipitated a rapid growth of
independent churches in Zimbabwe. I use the word 'independent' to
denote churches with no association or affiliation to the established
churches.” p.553
However,
before the ink was dry on the above judgment, the schism had spread
to local branches of established churches and the relationship
between the parent churches and their local branches is currently
undergoing serious strains as the present case clearly demonstrates.
The relationship between the metropole-based parent churches and
their peripheral local branches that was forged under brutal colonial
conquest and tenuously survived the bitter struggles of independence
must now respond to the democratic dispensation demands and not wish
away the tensions as mere ruses of charlatans and greedy leaders of
the poor peripheral congregations.
But
how are the church property disputes to be resolved. The Maheya
case provides some useful indications. Quoting several USA Supreme
court cases, the learned judge in that case teases out a number of
useful principles. From the case of Watson
v Jones
80 US (13 Wall) 679 (1871), the following principles emerge:
“The
Federal Courts are competent to enforce express terms contained in
trust instruments governing the use of ownership of property.
However,
courts may not resolve or inquire into matters of religious doctrine
in order to determine entitlement to property.”
(emphasis added)
In
the case of Presbyterian
Church in the United States v Mary Elizabeth Hulle Memorial
Presbyterian Church
393 US 440 (1969), the Supreme Court held:
“…there
are neutral
principles of law,
developed for use in all property disputes, which can be applied
without `establishing' churches to which property is awarded. But
First Amendment values are plainly jeopardised when church property
litigation is made to turn on the resolution by civil courts of
controversies over religious doctrine and practice.” (emphasis
added)
In
Jones
v Woolf
443 US 595 (1979), the “neutral principles” approach was
supported by the Supreme Court, thus:
“This
method relies exclusively on objective, well established concepts of
trust and property law and formulae familiar to lawyers and judges.
It thereby promises to free civil courts completely from the
entanglement of religious doctrine, policy and practice.”
Thus,
the principles developed in the USA for resolution of church property
disputes which may be applied with much benefit in our jurisdiction
may be summarized as follows:
1.
Civil Courts will enforce express terms governing the use and
ownership of property contained in church documents, such as
constitutions, trust instruments, canons, etc.
2.
Civil Courts may not resolve or inquire into matters of religious
doctrine in order to determine entitlement to property.
3.
Civil Courts may apply neutral
principles of law,
which are objective, well established concepts of trust and property
law and formulae familiar to lawyers and judges and avoid
entanglement in religious doctrinal issues, policy and practice
whether pertaining to the ritual of liturgy of worship or the tenets
of faith.
Applying
the above principles to the facts of this matter:
(a)
In resolving church property disputes, it is improper to get
entangled in the doctrinal issues as the court a
quo,
in my view, unfortunately did. The question of choir uniforms and how
they are to be worn, whether the appellants exhibited behaviour
amounting to schism or denounced the founding principles of
respondent or their propensity to seek legal redress in disputes with
congregants contrary to Biblical teachings are all doctrinal issues
that cannot be the bases of resolving the property dispute. The
exceptional circumstances in the case of Church
of the Province of Central Africa Ltd & Anor v Diocesan Trustees
for the Diocese of Harare
SC 48/12 (hereinafter the “CPCA case”) are distinguishable from
the current one. In the CPCA
case, supra,
people
who had been members of the board of trustees for the church but
withdrew
their membership from the church and formed a new church organization
were held to have resigned from their offices thereby losing the
right to control the original church's property such as buildings,
houses, schools, motor vehicles and funds in banks. In this regard,
MALABA JA (as he then was) had this to say in the CPCA
case:
“The
court does not discuss the truth or reasonableness of any of the
doctrines of the religious group. It does not decide whether any of
the doctrines are or are not based on a just interpretation of the
language of the Holy Scriptures. While the court does not take notice
of religious opinions with a view to deciding whether they are right
or wrong, it might notice them as facts pointing to whether a person
has withdrawn his or her membership from the church and should
possess and control church property.”
(b)
This Court accepts as a correct statement of law made in Independent
African Church v Maheya
1998 (1) ZLR 552 (H) at p 556E and relied upon in the CPCA
case supra
that disputes over ownership or possession and control of church
property should be resolved, in the first instance, on the basis of
the interpretation and application of the law of voluntary
associations. Therefore, the constitution of a voluntary association
and rules governing it can be relied upon in solving property
disputes. This is in line with the first principle noted above that
civil courts will enforce express terms governing the use and
ownership of property contained in church documents, such as
constitutions, trust instruments, canons, etc.
(c)
Finally, the court may have resort to neutral
principles of law,
which are objective, well established concepts of trust and property
law.
In
the present case, the question to answer is whether the first
appellant, having been suspended from the respondent, and while that
suspension subsists, can retain control of the property and assets of
respondent? This issue can be resolved without the court entangling
itself in doctrinal issues of whether questioning the relationship
between the parent and local churches, the way the 1st
appellant did, amounts to secession or schism or at what stage
suggesting constitutional arrangements becomes rebellion against
fundamental tenets of the faith and ceases to be a normal, albeit
vigorous, democratic discourse? When can a church member be held to
have so denounced the fundamental principles that lie at the heart of
a church that he or she divests himself or herself from being a
member of the respective church and becomes disentitled from access
to its properties? The best answer is that it is a matter of
opinion, a matter of degree and an issue of doctrinal intricacies
that courts are ordinarily unfamiliar with. It was, therefore, a
misdirection for the court below to base its decision on these
doctrinal imponderables.
In
Jakazi
& Anor v Anglican Church of the Province of Central Africa
SC10/13, this Court dealt with the issue of resignation as an
objective fact. In communicating resignation, a party gives notice.
The giving of notice is a unilateral act which needs no acceptance.
Whether or not a party resigned is a question of fact. The sentiments
of this court in the CPCA
case are instructive with regard to resignation of church members:
“Where
the evidence shows that the individual exercised his/her right to
terminate the relationship with the Church the resignation takes
effect immediately the conduct is committed. This is so unless there
is a special provision by virtue of which it takes effect upon
acceptance by the person who is given the right to receive written
notice and decide whether to accept the resignation or not. The law
is clear. Whether it is under article 4 or 13 resignation is a
unilateral act. Its validity does not depend upon acceptance by the
person to whom it is directed. Acceptance determines when the
resignation takes effect. In the final analysis it is for the court
and not the individual concerned to decide whether his conduct
amounts to resignation or not.”
It
must be emphasized that the ideal position is for voluntary
associations to discipline their own members, either by dismissing or
suspending them in terms of their set procedures. In this case, the
respondent conducted a disciplinary hearing against the first
appellant for charges preferred against him. The disciplinary hearing
proceeded in the absence of the first appellant despite his being
properly served. At this disciplinary hearing, the decision to
suspend the first appellant was “confirmed”. What is baffling in
this case is that the respondent or the mother church, despite having
powers to dismiss the appellants, resolved to simply “confirm” or
uphold the suspension of the first appellant. A declaration that the
appellants are no longer members of the respondent was only sought in
the court a quo.
Now, if the church itself, seized with the alleged doctrinal
infractions of the first appellant at a disciplinary hearing, opts
not to dismiss the appellant but rather to merely uphold the
suspension, on what basis would a civil court of law, unschooled in
the intricacies of doctrinal niceties, be expected to pronounce the
first appellant no longer fit to maintain membership of the church?
It
is for the church to dismiss the appellants and not for this court to
do so in its stead. The respondent is enjoined to take steps to
terminate its relationship with a member who denounces its authority,
and the civil court will give due deference to that decision in the
absence of arbitrariness, bias or unreasonableness. What was placed
before the court was in fact a process upholding the first
appellant's suspension. Nothing shows that appellants were
dismissed and therefore ceased to be members of the respondent.
Suspension cannot by any stretch of imagination be a method of
terminating a relationship between parties. The first appellant
therefore remains suspended and not dismissed from the respondent.
There
is no record of the second, third and fourth appellants being charged
with any misconduct let alone being suspended or dismissed from the
respondent's church. There is therefore no basis in my view to
declare that the second, third and fourth appellants ceased to be
members of the respondent. The court a
quo
erred in doing so.
All
in all, therefore, there is sufficient ground to allow the appeal,
with each party bearing its own costs. That part of the order of the
court a
quo declaring
the 1st,
2nd,3rd
and 4th appellants as having ceased to the members of the respondent
is not supportable, has to be set aside and replaced with an order
declaring the 1st
appellant and all those claiming through him to be barred from
controlling or accessing respondent's properties or amenities on
account of 1st
appellant's extant suspension. All specific references to the 2nd,
3rd
and 4th
appellants in the order of the court a
quo
are also improper and have to be removed. Given this partial success
by the appellants, it is proper that each party shall bear its own
costs.
Accordingly,
it is hereby ordered that:
1.
The appeal is allowed with each party bearing its own costs.
2.
The judgment of the High Court in case No. HC 1451/13 be and is
hereby set aside and substituted as follows:-
“IT
IS DECLARED, WITH EACH PARTY BEARING ITS OWN COSTS, THAT:
(a)
The 1st
respondent having been suspended on 25 January 2012 by the parent
church, and while that suspension remains extant, has no right to
personally, or by anyone claiming through him, make use of any of the
applicant's properties or amenities as well as its name.
(b)
The 1st
respondent, or anyone claiming through him, shall immediately stop
and shall at all times desist from making use of applicant's name
or any such name which may reasonably be confused with applicant's
name and which may give the impression that they have any continuing
association with applicant.
(c)
The 1st
respondent, or anyone claiming through him, shall immediately
relinquish possession and use of all of applicant's properties both
movable and immovable whether held by them directly or by those
claiming the right of use or occupation through them which are set
out in 'c1' below and shall concede such use and possession to
the applicant.
1.
LAND AND BUILDINGS
1.
Bulawayo: church at Stand 61000, Size Road, and adjacent stands for
youth and women, Western Commonage No 6 Pelandaba;
2.
Stand 36E, 37E, 38E,39E,40E, 54E, 55E Bekezela Street, Pelandaba;
3.
House at No 16 Amantje Road, Four Winds, Bulawayo;
4.
Greengables Farm, the remaining extent of subsdivision B of Dunstaal,
Khami;
5.
Plot 11 and 12, Shamrock Road, Gweru;
6.
Lower Gweru at Gwabada Farm and Ekukhanyeni Weaving Centre;
7.
Kwekwe: Stand no 383 Mbizo Township Church and residence, Amaveni
Township church;
8.
Kadoma: Stand no 4 Bwanali Street, Rimuka Township church and mission
residence;
9.
Chegutu: Stand 2134 Heroes Township Church and Mission residence at
550 Pfupajena Township;
10.
Masvingo stand 14 Mucheke Township, Masvingo;
11.
Mutare: Stand No 7 Machekaire Street, Dangamvura Township, Mutare;
12.
Buhera Murambinda Township Church stand;
13.
Nyanga: Church at Bonde Kraal;
14.
Mount Selinda: Chako Township Church Stand;
15.
Chinhoyi Stand 1159 Hunyani township Church and residence;
16.
Mahororo Business centre church Hurungwe;
17.
Beitbridge Stand 2384 Dulibadzimu and residence at No 9;
18.
Victoria Falls: Stand 2647 Victoria Falls;
19.
Kariba: stand 1727 Nyamhunga Township;
20.
Chiredzi:51 Makaza Triangle, No 6 Nzimbe Township Trangle;
21.
Mwenezi: Sarahuru Township Church;
22.
Mutoko: Mutoko Business Centre, Church Stand;
23.
Pilgrims' Progress restaurant Kadoma;
24.
Pilgrims' Progress restaurant Gweru;
25.
Bindura: 19/34 Musvosve Street Stand at Chipadze Township and Trojan
Mine;
26.
All motor vehicles and church assets under their control;
27.
Chipinda Church Stand, and
28.
Hwange: No 2 Glencoe Road, Railton, Hwange.
GOWORA
JA: I
agree
UCHENA
JA: I
agree
Majoko
& Majoko
c/o G.
N. Mlotshwa
& Co, appellants' legal practitioners
Dube-Banda
Nzarayapenga & Partners,
respondent's legal practitioners
