DUBE
J:
The
battle for the control of the Apostolic Faith Mission of Portland
(Southern African Headquarters) Inc. rages on. The parties have for
years been embroiled over control of the applicant. A grim schism has
occurred in the church. With no resolution in sight, the dispute has
spattered into the courts.
The
brief background to this dispute goes thus. The Apostolic Faith
Mission of Portland, Oregon a church corporation of the State of
Oregon, USA, was established in 1906 and is headquartered in
Portland, Oregon. It is headed by the Superintended General. This
church organisation shall hereinafter be referred to as the Parent
Church. Its main objective is to advance the word of God. In
furtherance of this objective, the Apostolic Faith Mission of
Portland, Oregon (Southern African Headquarters) Inc. was established
in 1955. It appears that the Southern African Chapter Headquarters is
located at the same premises as the church in Mpopoma, Bulawayo, and
is run by the Overseer. It is a duly established Christian church
organisation propounding the doctrine of Jesus Christ. Zimbabwe.
Article 7 of its Constitution provides for its governance. The
government of this religious organisation is vested in the Board of
Directors chaired by a District Superintendent. He is chosen by the
Headquarters in Portland, Oregon. He is otherwise known as the
Overseer. It is common cause that that the Southern African Chapter
was at some stage led by the late Rev Freedom Sengwayo. The Board of
Directors is nominated by the Southern Africa District Superintendent
after consultation with and approval by the Superintendent General at
International Headquarters in Oregon. The Parent Church has branches
in several Southern African countries including Zimbabwe, South
Africa, Botswana, Mozambique, Malawi, Namibia, Lesotho, Swaziland,
Angola and Madagascar. The branches have their own constitutions
designating them as branches of the Parent Church. These countries
fall under the Southern African Chapter.
In
this application, the applicant is the Apostolic Faith Mission of
Portland Oregon; (Southern Africa) Inc. It will be interchangeably
referred to as the applicant, Local Chapter, Southern African Chapter
or Local Church. The first respondent is Reverend Richard John
Sibanda. The Parent Church appointed him Overseer for the Southern
African Chapter in June 1985. It appears that he is also the pastor
of the local church in Bulawayo. The second to fourth respondents
were joined to the application subsequent to the filing of this
application. They are board members of the Southern African Chapter
and members of the local church.
The
present dispute is centred on church administration, doctrine and
practice. The dispute has its genesis in the existence of two choirs
in the local church brought about by differences over whether the
church choir should wear a uniform and dress in a particular manner.
Members of the church wrote to the Parent Church over the issue. In
an attempt to address the dispute, the Parent Church directed that
the choirs be disbanded and be merged into one, in the spirit of
unity. This directive did not find favour with the respondents. On 5
May 2004, the first respondent wrote to the main church over this
resolution. The letter read in part as follows:
“During
our recent board meeting with Bro Dwight Baltzell here in Zimbabwe,
we warned him about the delicacy of the whole matter and the possible
danger of enforcing change without harmonious and mutual agreement.
He however, indicated that as soon as he got home, (USA) he would
write us a letter which would be circulated to all branch churches,
informing the choir members to do away with uniforms. If that ever
happens, it would cause serious unrest in people's minds and a
possible split in the congregation. As the hour of rapture draws
nearer and nearer, I do not wish to see the work undergoing another
period of perilous confusion. It would rather be better for me to
withdraw from the board and frown being overseer of the work in this
part of the world. By the grace of God we feel very strongly that the
best thing to do is to handle this highly sensitive issue with great
care in order to avoid any further problems, confusion, possible
splits and worst of all possible spiritual death among the
brethren...”
In
this letter, the first respondent expressed his intention to resign
from the board and from being overseer if the dispute was not
resolved to his liking. The first respondent did not implement the
changes as directed. It was suggested that he retire from his
position. When Rev Baltzell visited with the intention of putting in
place a retirement plan, members of the church were mobilised against
him and the first respondent instituted legal action. On 25 May 2005,
Darrel D Lee, the Superintendent General, dismissed the first
respondent from the post of Southern African Overseer with effect
from April 21, 2005. The reasons for this outcome were cited as
disobedience, taking the leadership of the organisation to court
contrary to biblical instructions and inciting violence at church
meetings and services by the respondent. He was to remain an ordinary
member of the church. He was ordered not to interfere with the
conduct and management of all church affairs. He was also to vacate
the church house he occupied and surrender the official church
vehicles.
Following
this development, the first respondent obtained provisional relief in
terms of which he would remain overseer of the applicant under
HH48\05. The provisional order was discharged on 12 October 2006. On
7 February 2008, the first respondent brought yet another application
similar to the one discharged. He was granted an order in terms of
which his removal from office was invalidated, unopposed. An
application for rescission of the order brought by the applicant was
refused. That decision was appealed against and the appeal lapsed and
was deemed dismissed. The battle did not end here.
In
November 2011 the head of the church visited the country and the
respondent barred him from accessing the church branches and
buildings and from conducting worship services. The matter spilled
into the courts again with the parties agreeing to resolve their
differences outside the court. In the same month the first respondent
issued summons for eviction of pastors he did not agree with, from
church premises. He appointed new pastors and replaced those pastors
whom he perceived to be siding with the Parent Church. This
development culminated in further tension in the church. On 25
January 2012, the first respondent 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 for his personal use. The other complaint was that
he was effecting amendments to the Constitution without authority.
The respondents' response was to cause their legal practitioners to
write to Rev Darrel D. Lee, the Superintendent General of the Parent
church based in America on 3 February 2012. The letter was written on
behalf of the first respondent, the Board of Trustees, the applicant,
Board of Directors, the church elders and church members. Attached to
the letter was a copy of amendments to the church Constitution. The
letter written by legal practitioners for the respondents, Cheda and
Partners, reads as follows;
“Dear
Sir
RE
APOSTOLIC FAITH MISSION OF PORTLAND OREGON UNITED STATES OF AMERICA
VS REVEREND RICHARD SIBANDA AND APOSTOLIC FAITH MISSION OF PORTLAND
OREGON (SOUTHERN AFRICAN HEADQUARTERS) AND THE BOARD OF TRUSTEES
–CONSTITUTIONAL AMENDMENT
We
refer to the above matter and advice 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 Africa.;
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?”
No
response came to this letter. The letter reveals that it was written
on the instructions of the first respondent, the newly formed Board
of Trustees, Board of Directors, the applicant, elders and church
members. The representation given is that it was the whole church
that was steering the withdrawal or denunciation. The events that
followed after the letter are as follows. The first respondent did
not attend a disciplinary hearing to determine charges laid against
him set for 22 March 2012 resulting in his suspension from membership
of the church being upheld. Rev Oniyas Z. Gumbo was appointed as
Overseer in his stead. The first respondent maintains that he is
still the Overseer of the applicant. The situation on the ground is
that both Rev Gumbo and Sibanda claim to be Overseers of the
applicant. On 22 March 2014 the respondents issued summons against
Darrel Lee, the Superintendent General seeking to nullify the first
respondent's suspension, nullification of Rev Gumbo's appointment
and an order interdicting him from interference outside the
applicant's Constitution with the operations of the applicant.
The
respondents have not moved away from the applicant's church or
formed a separate church. The first respondent claims to be still the
Overseer when the Parent Church has appointed someone else in his
place. There does not seem to be much of a relationship between the
respondents and the Parent Church except for the litigation between
the parties. The parties are engaged in fierce confrontation. The
respondents have refused to submit to the authority of the Parent
Church. A great schism has occurred.
In
this application, the applicant seeks a declaration to the effect
that the respondents are no longer members of the applicant and have
lost rights to fellowship under the applicant or to make use of
applicant's properties or amenities as well as its name. Secondly
that the respondents should immediately stop and desist from making
use of the applicant's name or any name which may be confused with
the applicant's. Thirdly, that the respondents shall relinquish
possession and use of the applicant's property.
The
applicant maintains that the respondents have severed ties with the
church by repudiating their positions in applicant and have seceded
from the church. That the first respondent should not carry out
ministerial work without valid credentials. The applicant contends
that the letter of 3 February 2012 shows that the respondents will
not accept leadership from America and that they will choose their
own leadership. The applicant submitted that the applicant considers
this as a denunciation of the authority of the Parent Church. That
the respondents have severed ties with the applicant. The court was
called upon to consider the effect of the declaration that the
respondent no longer owes allegiance to the main church and whether
the respondent has seceded from the church.
The
respondents, apart from opposing the merits of this application,
raised points in
limine relating
to the matter being lis
pendens
in Bulawayo, the existence of disputes of fact, the authority of Mr
Gumbo to depose to the founding affidavit. These points were later
abandoned after the parties agreed that the sole issue to be
determined by the court was whether the respondents still have any
relationship with the applicant .The parties agreed that if it is
found that there is no longer any relationship with the church, the
respondents cannot make use of the applicant's assets and that's
the end of the matter.
Adv.
Magwaliba
urged the court, in resolving this dispute, to have regard to the
Constitution of the applicant church and the parties before it. He
challenged the locus
standi
of the applicant to bring these proceedings. The respondent submitted
as follows. The parties are the local AFM Church and the American or
Parent church. The party before the court relying on the letter is
the local church. The Parent Church is not before the court. That the
party claiming that there was secession is not before the court but
in proceedings pending in Bulawayo. The respondents submitted that
there is recognition that the applicant is a legal
persona
which has never been part of the Parent Church except for
affiliation. The application must fail because the Parent Church is
not before the court and is not seeking any relief. That the party in
respect of whom the alleged secession took place must be the party
seeking relief. The respondents maintained that the applicant would
have been able to take legal action for the relief sought if Rev
Sibanda had parted ways with the local church. The respondents refute
that they have seceded from the church and further that there is any
letter relied on in terms of which the respondents seceded from the
local church. The respondents also refute that para 5 of the letter
in issue reflects that the respondents were not accepting leadership
from America. They contend that the letter written by their legal
practitioners is not a letter of resignation or secession but just a
letter written by legal representatives of the local church. They
contend further that it was a letter of protest in which they simply
expressed an intention to resign. The respondents submitted that the
first respondent has always conducted himself in accordance with the
church Constitution. The respondents refute allegations that the
first respondent amended the Constitution but contend that they sent
a notice of the church Constitution amendment to the Parent Church as
a mere proposal. The respondents maintained that the first respondent
still continues to discharge his functions as an overseer in
accordance with the church Constitution. The respondents maintain
that they did not secede from the church and have not parted ways
with the applicant.
The
first issue raised relates to the locus
standi
of the applicant to bring this application. The applicant is
prosecuting this application for and on its own behalf. The Parent
Church is not part of these proceedings. The applicant claims that by
denouncing the Parent Church, the respondents effectively denounced
the applicant which is part and parcel of the Parent Church and hence
it is entitled to bring these proceedings. Herbstein and Van Winsen
in The
Practice of the High Courts of South Africa 5thed
on p 186 says the following of locus
standi:
“In
some cases, it has been held that the applicant must have a direct
and substantial interest in the relief claimed, other cases have
explained that a 'direct and substantial interest' means a legal
interest. Traditionally South African Courts adopted a restrictive
attitude to this issue, requiring a person who approached the court
for relief to have an interest in the sense of being personally
adversely affected by the wrong alleged”.
Locus
standi
may be defined as a party's ability to demonstrate to the court
sufficient interest and connection to the action challenged or
brought to support that party's participation in the case. It is
not in every case that an applicant whose locus
standi
has been challenged is required to prove a direct substantial
interest in the matter. An applicant who proves that he or it stands
to be adversely affected by the wrong alleged or complained against
has locus
standi in judicio
with regards to that matter.
Article
1 of the Constitution of the applicant church states that the
applicant “shall
be a branch of the Apostolic Faith Mission of Portland, Oregon USA, a
worldwide organisation.”
Article
5 of the same Constitution provides as follows:
“The
doctrines and rules of the Apostolic Faith Mission of Portland Oregon
(Southern African Headquarters) Inc, shall be the same as the parent
church in Portland, Oregon,…''.
The
Constitution of the applicant reveals that the applicant is a branch
of the Parent church and is affiliated to it. Being a branch of the
Parent Church, it essentially is a part of it. It has the same
doctrines and rules as the Parent Church. The applicant owes
canonical obedience to the Parent Church. The local church is an
integral part of the Parent Church. The applicant and the Parent
church are part of a whole. Being a branch of the Parent Church, any
denunciation of the Parent Church is necessarily a denunciation of
the applicant church. An act of rebellion against the Parent Church
is an act of rebellion against the its branch. Any person or splinter
group which denounces a Parent Church with this sort of set up cannot
remain a legitimate member of its church branch.
This
dispute centres on the doctrines and rules of the Parent Church. The
respondents are at loggerheads arising mainly from the existence of
two choirs in the applicant, use of a uniform by the choir, the
taking of legal disputes to court and litigating against faithful
members of the church contrary to scripture and submission to the
Parent Church. These are doctrinal disputes. The applicant's
argument is that if the respondents do not agree with the canons or
doctrines of the Parent Church resulting in them instructing their
legal practitioners to pen the letter in issue, they cannot continue
to be members of and lead a branch or chapter of the Parent Church
which follows the same doctrines they challenge or disagree with. Two
people claim to be overseers of the applicant. There is need for
clarity on this point. Members of the applicant's congregation are
bound to be adversely affected by this scenario. It
is this court's considered view that the applicant is entitled to
ask the court to decide the issue of secession of the respondents
from the Parent Church as its determination will resolve the issue
regarding the status of the respondents in both the applicant and the
Parent Church. The applicant has a separate legal existence with
capacity to sue and be sued. It can bring these proceedings. The
applicant has a legal and substantial interest, though not direct in
the matter. I am satisfied that the applicant is adversely affected
by the wrong alleged. It is on this basis that the applicant is
entitled to bring these proceedings.
As
already found, the differences of the respondents with the Parent
Church stem from doctrinal differences. The applicant maintains that
the respondents have violated scriptural doctrine by litigating and
for that matter in secular courts. I must observe that the applicant
appears to have fallen foul of the same misdemeanour complained
against it. It has also sought redress in the same 'secular
courts'. Nonetheless, in Corinthians
6: 1-9
the scripture says the following of church disputes:
“Dare
any of you, having a matter against another, go to law before the
unjust, not before the saints? Do ye not know that the saints shall
judge the world? And if the world shall be judged by you, are ye
unworthy to judge the smallest matters... Is it so that there is not
a wise man among you? No, not one that shall be able to judge between
his brethren. But brother goeth to law with brother and before the
unbelievers. Now therefore there is utterly a fault among you,
because ye go to law with another...”
It
is this court's view that this court is at liberty to deal with
church disputes for as long as its jurisdiction is not ousted. Other
courts have given their views over the issue. In Independent
African Church v
Maheya 1998
(1) ZLR 552 (HC), Devittie J discusses the necessity for the
development of separate church principles for the resolution of
church feuds. He follows the approach adopted in settling disputes
involving secession in the Presbyterian Church in America following
the proliferation of independent churches after the American War of
Independence in America. The judge once again, in The
Independent Church v
Maheya
2000
(1) ZLR 39 (HC), a case dealing with a claim for eviction of a spouse
of a late Bishop of a church from church property once again asks
whether there ought to be a separate
corpus
of principles to govern the resolution of church property disputes in
Zimbabwe. He says that this arrangement would benefit the Zimbabwean
Christian community. He discusses the Watson
v
Jones 80
US (13 Wall) 679 (1871),
a
case concerning a split into pro-slavery and anti-slavery factions in
the Presbyterian Church of the United States. The facts of this case
involve a minority group that claimed title to church property based
on the fact that its views were more consistent with the teaching of
the Presbyterian Church at the time of the Church's founding. The
court in that case held that in adjudications of church property
disputes, the courts cannot rule on the truth or falsity of a
religious teaching. The court in that case laid down the following
principles:
“(a)
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 enquire into matters of religious
doctrine in order to determine entitlement to property.
(b)
Where
a dispute arises between factions of an independent congregation,
`the right of such bodies to the use of the property must be
determined by the ordinary principles which govern the association'.
If the church had always governed itself by majority rule, for
example, the majority faction would prevail.
(c)
Where
the dispute is between a subordinate and superior bodies of a single
hierarchical church organisation, and whenever the questions of
discipline are of faith or ecclesiastical rule, custom or law which
have been decided by the highest of these church judicatories to
which the matter has been carried, the legal tribunals must accept
such decisions as final, and as binding on them in their application
to the case before them.”
Following
on this case the judge finds that courts may not enquire into matters
of religious doctrine. Devittie J in the Maheya
case
formulates the view that in resolving disputes involving churches,
the law applicable thereto ought to be fashioned to meet the needs of
Zimbabwean churches because religious associations have features
which distinguish them from other associations. He calls for the need
to articulate a separate body of church principles to govern church
disputes for the peaceful resolution of these disputes. In The
Church of the Province of Central Africa Church, MALABA
JA seemed to be agreeing with the approach to be adopted towards
doctrinal issues when he says the following:
“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. Whilst the court does not take
notice of religious opinions with the 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”.
I
agree with these sentiments. What I view to be apposite is that when
courts entertain church disputes they not go into the appropriateness
or otherwise of the doctrines of the church. Identification of the
doctrines will however help determine if the doctrines have been
violated and further if a person or splinter group has withdrawn his
or its membership from the church. Courts are encouraged to should
shy away from interfering with church doctrines. It should not appear
as if the courts are interfering with the independence of the church.
A religiously neutral approach is called for.
The
respondent has alleged that there are material disputes of fact that
justify the calling of oral evidence. They allege that there is a
dispute over who controls the majority faction and that this dispute
cannot be determined in the absence of evidence being led on that
subject. They argue that the applicant should have come by way of
action. The allegation of the existence of disputes of fact is a red
herring. The applicant has simply alleged that the respondents
resigned, seceded or withdrew from the Parent Church. Further, that
there is a schism in the church and that the respondents have parted
ways with the Parent Church. There is no issue regarding which the
majority faction is. The applicant is simply saying they resigned and
this assertion is based on a letter which is on record which the
court must decode. This point fails.
I
now turn to the merits of this application.
Prior
to this letter, the relationship between the first respondent and the
Parent Church had been acrimonious. The long-standing dispute started
with the uniform saga. It was followed by first respondent's
dismissal in 2005, the long feud involving litigation over the first
respondent's dismissal as overseer and litigation against other
pastors and leadership from America being denied access to church
premises. The letter of 2nd
February and further litigation indisputably heightened the schism
already prevalent in the church.
Three
words stand out as describing the respondents' conduct in
applicant's case. They are that they 'Seceded', 'resigned'
and caused a 'schism' in the church. The verb “secede” is
borrowed from the Latin word “sece-dere” meaning an act of
withdrawal. ''Secede'' is defined in The
Free Dictionary as
“a
formal withdrawal of membership, as from a political alliance,
church,
organisation, ect''. Thesaurus
defines it as follows,
'to
withdraw, leave, resign, separate,
retire,
quit, pull-out, break with split from disaffiliate, apostatize'.
The
word 'secede' means the same as to withdraw or resign. A party is
said to have seceded from a church or other organisation when it has
severed ties, withdrawn, quit or resigned from it.
In
Bishop
Jakazi and Anor v
Anglican Church of the Province of Central Africa SC10/13
the court stated that resignation is a unilateral act which takes
effect upon being communicated. See
Riva v
NSSA
2002 (1)
ZLR 412 (H) at 414 A-B where the court said,
“It
is common cause between parties that the giving of notice is a
unilateral act; it requires no acceptance thereof or concurrence
therein by the party receiving the notice, nor is such party entitled
to refuse to accept such notice and to decline to act upon it. It
seems to me to follow that notice once given is final and cannot be
withdrawn except obviously with consent…..”
See
also Muzengi
v Standard Chartered Bank of Zimbabwe Ltd & Anor2002
(1) ZLR 334 (S).
The
Supreme Court in Church
of the Province of Central Africa v
Diocesan Trustees for the Diocese of Harare SC48/12
held that resignation is a question of fact and can be by conduct.
The court further held that where evidence shows that a person
exercised his right to terminate the relationship with the church,
the resignation takes effect immediately the conduct is committed and
that acceptance of a resignation does not depend upon acceptance by
the person to whom it is directed. The court also held that the
taking of any action inconsistent with the creed of the church
amounted to repudiation by the party so taking the action of their
position in church. Further that a departure from the doctrinal basis
upon which the church is founded amounts to repudiation.
Where
a withdrawal is effected by means of a resignation, the resignation
should be formal and ought to have been communicated. Once the
resignation has been communicated it becomes binding on the giver
unless it is withdrawn with the consent of the other party. There is
no requirement that it be accepted or be responded to.
In
the Church
of the Province of Central Africa case, (supra),
the court defined the word 'schism' and relied on the meaning in
The
Concise Oxford Dictionary (1990)
which defines it as,'' the separation of a church into two
churches or the secession of a group owing to doctrinal, disciplinary
differences''. The court in that case held that a person who has
created a schism cannot be heard to say he has not withdrawn from the
church.
Where
a splinter group has risen in a church because of differences in
doctrine resulting in a split, and one group wishes to break away
from the Parent Church, that conduct amounts to a schism. A splinter
group which denounces the doctrines of the church cannot insist that
it has not withdrawn from it and still remains part of it.
The
letter is written to the Parent Church. It includes the applicant as
well as all church members as parties to the letter. The letter was
written by the respondent's legal practitioners, on clients'
instructions and on their behalf. The respondents have not denied
giving those instructions to their legal practitioners. The
respondents' contention that it is their legal practitioners who
wrote the letter and not the respondents themselves and hence it is
not binding on them is preposterous. Who better than the respondent's
own legal practitioners to have communicated the resignation? It is
their letter and the respondents own the contents therein. Where a
legal practitioner tenders a resignation on behalf of his client and
he communicates it, that resignation is binding on the client and
becomes that of the client unless it has been shown that the legal
practitioner acted without instructions. The resignation once made
was communicated to the Parent Church. The respondents resigned
unilaterally and the resignation took effect upon its communication
and did not depend upon acceptance by the applicant or the Parent
Church. The resignation took effect as soon as the letter was
received by Darrel D. Lee. The letter constitutes a resignation
letter and once that resignation was communicated, the respondents
ceased to be members of the Parent Church from that moment
henceforth.
The
contents of this letter amount to a resignation. The respondents
denounce leadership from America. They state that they will not
accept leadership from America and will choose their own leadership.
God will give them guidance on succession issues. The letter evinces
a clear and unambiguous intention to part with the Parent Church. The
letter has the effect of denunciating and resigning from the Parent
Church. The respondent's act of renunciation had the effect of
cutting the umbilical code with the applicant. The respondents made a
conscious decision to sever ties with the Parent Church and
effectively withdrew their membership of the applicant church. The
act of denouncing leadership of the Parent Church or any affiliation
with it amounts to repudiation by the respondents of their position
in the church as a whole and that is inclusive of branches of the
church. Once the respondents decided that they no longer subscribed
to the church's authority, they severed ties with both the Parent
Church and any other church or branch of it that observed and
followed the same doctrines. The applicant is part of the world wide
church. The respondents cannot claim to remain part of an
organisation whose leadership they repudiated. By resigning from the
church, the respondents stripped themselves of membership of the
church.
The
fact that the respondents have decided to part ways with the Parent
Church is confirmed by their conduct. This position was well
enunciated in Sick
and Funeral Society of St John's Sunday School v
Golcar
(1973) 1 CH 51 @ 62 C-E where the court remarked as follows
regarding resignation by conduct;
“It
must be accepted that there can be resignation by conduct in addition
to resignation by words.”
I
am not persuaded by the respondent's defence that the letter was
merely a protest. The wording and tone of the letter as well as the
conduct of the respondents shows that the respondents had made a
decision to part ways with the Parent Church and were determined to
do so. The conduct of the respondents in amending the Constitution
amounts to an act of pure defiance and such conduct is supportive of
the assertion that they resigned from the church.
The
respondents sought to change the Constitution without the authority
and approval of the Parent Church. Article 5 of the Constitution of
the church makes it clear that applicant shall not change any rule or
doctrine without the recommendation or approval of the Parent Church.
The respondents became an authority unto themselves. They did not
care whether the Parent Church approved the changes to the
Constitution or not. The respondents refute that they amended the
Constitution, and argue instead that the amendments were merely
proposals of the amendments sought to be made. The letter gives the
Parent Church a choice “to either understand the amendments or try
to build on a great relationship with Southern Africa under an
affiliate status' or listen to false information. The respondents
express a preparedness to proceed with the amendments of the
Constitution. It does not appear as if the Parent Church had any
discretion in the matter. The copy of the amended Constitution was
for their information only. The amendments were not proposals because
the respondents were going to proceed with the amendments anyway. It
was either the Parent Church tried to understand the amendments and
try to build on a great relationship with Southern Africa under an
affiliate status or listen to false information. The attached board
resolution shows that respondents sat and resolved to amend the
Constitution immediately, failing which a formal court application
would be made to effect the changes. They were seriously pursuing
their withdrawal from the church. The respondents sought to change
the Constitution of the church without approval of the Parent Church.
An
analysis of the amendments shows that the respondents intended to
sever ties with the Parent Church and had decided to break from the
Parent Church and put in place their own systems. Some of the board
members were not advised of the meeting which came up with the
amendments.
The
applicant is in terms of their Article 1, now affiliated to the
Parent Church only and is no more a branch contrary to Article 1 of
the Constitution of the applicant. The respondents seek through the
amendments to make the first respondent the ultimate authority. The
overseer is responsible for nominating the board of trustees,
previously known as the board of directors. There is no provision for
approval of the Parent Church. They chose a new set of trustees in
terms of the amended Constitution to govern the applicant. In their
letter of resignation, they already make the new Board Trustees being
part of the letter of resignation. This shows that the amendments and
changes were already effective and the respondents considered
themselves as having parted ways with the applicant. The content of
the amended Constitution confirms the respondent's decision to
sever ties with the Parent Church. This shows that the amendments
were not proposals but had already actually been effected.
The
respondents tried to wrestle control of the local church from the
Parent Church through the constitutional amendments. The first
respondent wanted to make himself the ultimate authority in Southern
Africa. The first respondent led this revolt notwithstanding that he
was on suspension from membership of the church. The first respondent
was appointed into the position of overseer by the Parent Church.
Once he repudiated the authority of the Parent Church, he repudiated
his own position as overseer with the applicant. The respondents
resigned from the Parent Church, they cannot not remain part of a
branch led and guided by the Parent Church, the applicant. By
resigning from the Parent Church, the respondents in effect seceded
and withdrew from the applicant as well. No relationship exists
between the Parent Church applicant and the respondents.
The
respondents severed ties with the Parent Church. Once the respondents
resigned from the Parent Church, on the basis of differences in
doctrines, they effectively resigned from the applicant church. The
same doctrines applicable in the local church are the same as those
of the Parent Church. It is not realistic that the respondents would
secede from the Parent Church and remain in the local church and
still remain under the control of the Parent Church. The departure
from the doctrinal basis of the church amounts to repudiation. The
respondents have caused such a schism to the extent that it is
impossible to say that they remain part of the church.
The
respondents no longer subscribe to the doctrines and canons of the
Parent Church. They have no right to continue to use the applicant's
name. The respondents conceded that should the court find that the
respondents seceded from the church, they are not entitled to use and
control of applicant's property. That concession was well made. The
respondents undertook to cut ties with the church leadership and yet
purport to be still part of the church leading the applicant, a
branch of the parent church and controlling church assets and
buildings. In The
Church of the Province of Central Africa @ p 35
the Supreme Court relied on the principle laid down in Ethiopian
Church Trustees v
Sonjica1926
EDL 107 at pp 115-116 that after a withdrawal of membership from a
church organisation, the property of the church must fall under the
control and use of those who adhere to the fundamental principles of
the church. The court held that a person, who leaves the church,
leaves behind church property. The court remarked as follows;
“The
property could not be applied to purposes which are alien to the
purposes of the Trust and for the benefit of persons who have no
title to call themselves members and office bearers of the church.”
See
also Chong v
Lee
(1981)
BCLR 13.
The
court went on to remark at p 36 that:
“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 hermit has long been
established as a statutory 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 those who
remain members of the congregation are in the minority.”
The
court concluded that the property which was subject of the dispute
belongs to the church and it has a right to vindication of the
property against possessors who have no rights over it and that such
persons had no right to continue possessing the congregation
buildings when they had departed from the fundamental principles and
standards on which the church is founded.
Any
branch or chapter of the Apostolic Faith Mission of Oregon wherever
found forms an integral part of the Church as a whole. Its property
belongs to the denomination. Should any member resign or be deemed to
have parted ways with the church, he ceases to be a member of the
church as a whole. He leaves behind the property of the church. He
cannot use the property unsanctioned by the church. Once the
respondents severed ties with the Parent Church they ceased to have
any right of access over the property. The respondents lost the right
to use the applicant's name, possession and use of the church's
property. The property remains for the loyal members of the church.
The applicant is entitled to the order sought.
The
application is allowed. In the result is ordered as follows;
IT
IS DECLARED THAT,
1.
1st
2nd,
3rdand
4th
Respondents are no longer members of Applicant and have lost all
rights to fellowship under Applicant or make use of any of its
properties or amenities as well as its name.
2.
1st,
2nd
, 3rdand
4th
Respondents 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 “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.
Stan 36E, 37E, 38E, 39E, 40E, 54E ,55E Bekezela Street, Pelandaba;
3.
House at No 16 Amatje Road, Four Winds, Bulawayo;
4.
Greengables Farm, the remaining extent of subdivision B of Dunstaal,
Khami;
5.
Plot 11 and 12, Shamrock Road, Gweru;
6.
Lower Gweru at Gwabada Farm and Ekukanyei 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 stand 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 Triangle;
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 vehicle and church assets under their control;
27.
Chipinda Church stand; and
28.
Hwange: No 2 Glencoe Road, Railton, Hwange.
4.
1st,
2nd,
3rd
and 4th
Respondents are to bear the costs of this application.
Muza
and Nyapadi,
applicant's legal practitioners
Cheda
& Partners,
respondent's legal practitioners
