MALABA
DCJ: There
are two appeals against judgments of the High Court. The first
decision appealed against is in Case No. HC4327/08 whilst the second
appeal is against the judgment in Case No. HC6544/07. Both decisions
were made by the same judge.
At
the centre of the dispute in each case is the question whether those
people who had been members of the Board of Trustees for the Diocese
of Harare relinquished the right to control the appellant's
property on 21 September 2007. Put differently, but directly, the
question raised by both appeals is; did those people who had been
members of the Board of Trustees for the Diocese of Harare withdraw
their membership from the appellant and ipso
facto
resign their offices thereby losing the right to control its property
such as church buildings, houses, schools, motor vehicles and funds
in banks?
The
appellant shall hereinafter be referred to as “the Church”, or
“the Province” or “the Appellant Church” as the context
permits.
Who
are the parties involved in the dispute over the right of control and
occupation of the property?
The
Appellant Church is a voluntary association of members whose main
objective is to hold the faith of Jesus Christ and act in accordance
with the doctrines in which it is embodied. The Church was formed on
8 May 1955 out of four dioceses of Northern Rhodesia, Nyasaland,
Mashonaland and Matabeleland under the terms and provisions of the
Constitution contained in what is known as the 'Green Book'. The
first two dioceses had previously fallen under the administrative
jurisdiction of the Church of the Province of Cape Town, headed by
the Archbishop of Cape Town. The other two had formed the
administrative area of the Church of the Province of Canterbury,
under the Archbishop of Canterbury. The preamble to the Constitution
of the Church (“the Constitution”) recites that it was
established to cover the dioceses to strengthen it in the work of
“witnessing in Central Africa the redemption wrought for all men in
Christ”. Today “the Church” has as its administrative area the
whole of the four countries of Botswana, Malawi, Zambia and Zimbabwe
under the control of an ecclesiastical authority headed by an
Archbishop.
The
terms and provisions of the Constitution and the Canons under the
authority of which they are made show the following.
The
Church is made up of clerical as well as lay members who are
voluntarily associated together. They all hold the faith of Christ as
taught in the Holy Scriptures, preached by the Apostles and expressed
in the doctrines, sacrament and discipline in the public worship of
God according to the principles set forth in the Book of Common
Prayer. It is by the Constitution, which constitutes an agreement
between members, that the faith by which all those people who choose
to take up membership of the Church and the standards in accordance
with which they undertake to act is revealed. The standards and
principles which govern specific matters of worship, government and
discipline in the Church all relate to and find ultimate
justification in conformity with the faith and the doctrines by which
it is expressed. It goes without saying that membership of the Church
is a public confession of the faith of Christ. It is a declaration of
commitment to act, at all times and places, in accordance with the
doctrines and the mutual rules of the Constitution. That is the
contract in terms of which each person binds himself or herself to
others as a member and office-bearer in the Church. It is by
reference to adherence to the unity of the doctrines and the rules as
the standard of behaviour that any religious group of people can lay
claim to being described or identified as part of the Church.
In
terms of Article 2 of the Constitution, the Church is under the
general authority of the Archbishop who sits in the Provincial Synod.
This is the legislative body of the Church dealing with the making of
rules for the order, good governance, worship and discipline in the
Province. The Provincial Synod is made up of Bishops of the Province,
Clergy and Laity who are communicants. The Archbishop also sits in
the Episcopal Synod. This is a body dealing with matters of faith
such as the preservation of the truth of the Church's doctrine, the
purity of its life and the worthiness of its worship. The Episcopal
Synod is made up of Bishops of the Province only. The Archbishop, who
presides over the two bodies, administers all the functions of the
Church to members in the dioceses through Bishops who are the heads
of the dioceses. A Diocesan Bishop is elected or chosen from among
the male communicants of any diocese who are over 21 years of age. He
is a member of and presides over the proceedings of the Diocesan
Synod. He also administers property rights owned by the Church
through a Board of Trustees which he heads. Under the supervision of
the Archbishop, a Diocesan Bishop is “chief in superintendency”
in matters ecclesiastical within the diocese. Members of the Diocesan
Board of Trustees are appointed by the Diocesan Synod.
The
Archbishop is also a Bishop of a diocese. He is elected to the office
in accordance with the Canons of the Church. In terms of the
Constitution, every member, including Bishops, is bound to obey the
lawful directions and instructions of the Archbishop and give to him
due obedience. The powers exercised by the Archbishop, through the
two organs of the Church, are limited to ecclesiastical matters as
distinguished from temporal affairs. There is obviously a condition
implied that the powers shall be used bona fide for the purposes for
which they are conferred.
It
is declared as one of the fundamental principles of the Church and
therefore binding on individual members that:
“In
conformity with Christian doctrine, the Church of this Province
proclaims the equal value of all men before the righteous Love of
God, and while careful to provide for the special needs of different
peoples committed to its charge, allows no discrimination on grounds
of racial difference only, in the membership and government of the
Church”. (Fundamental Declaration III).
As
at 4 August 2007, the Diocesan Bishop of Harare was the Rt. Reverend
Dr Nolbert Kunonga. He was a member of the Board of nine Trustees
responsible for holding, managing and using Church property in trust
and on behalf of the Province. Article 20 as read with Article 23 of
the Constitution requires that all movable or immovable property of
the Church be held, managed or used by the Trustees in trust for and
on behalf of the Province. That applies even to Diocesan Boards of
Trustees appointed by Diocesan Synods. The management of Church
property held by a Diocesan Board of Trustees is required to be in
accordance with rules made by the Provincial Synod. Under Article 18
of the Constitution the Provincial Synod have the full power and
authority to determine in what manner and upon what conditions such
property shall be used or occupied.
Under
Article 24 no-one is allowed to be admitted to any office in the
Province or be entitled to receive any income, emolument or benefit
from or out of any property held under the authority of the
Provincial Synod unless he or she has signed a declaration of
submission to the Canons or Rules of the Province relating to such
office.
The
respondent is made up of Dr Kunonga who was the Diocesan Bishop of
Harare and those people with whom he constituted the Board of
Trustees for the Diocese of Harare before 21 September 2007. They
claimed that they remained in those positions after that date with
the right to hold Church property.
What
then brought about the situation in which the dispute over the right
of control and occupation of Church property arose?
A
debate which had started in the Church sometime back on the question
whether homosexuality was being tolerated by the ecclesiastical
authorities reached crisis point in Zimbabwe on 4 August 2007. This
was an emotional subject over which different opinions were bound to
be held by different members of the Church who engaged in the debate.
Dr Kunonga and his followers held very strong views on the question
of tolerance of homosexuality.
They
approached the debate on the assumption that homosexuality, as a
practice, was being tolerated by the authorities in the Church.
Whilst not conceding that homosexuality, as a practice, was tolerated
in the Church, the other side argued that all men and women are God's
children. The effect of the argument was that even if some men are
homosexuals they remain human beings entitled to be treated with
dignity as long as they do not practice homosexuality in Church or in
violation of the law of the land. The debate took place in the
context of the Constitution which contains Fundamental Declaration
III and the note to Canon 22. The note to Canon 22 provides that:
“The
Church of this Province believes that marriage, by divine
institution, is a lifelong and exclusive union and partnership
between one man and one woman. Its Law and regulation are based on
this belief.”
Dr
Kunonga and his followers elevated the anti-homosexuality argument to
the level of proposing it as a policy of the Church that there should
be no association by members with homosexuals or anyone who supported
or sympathised with them. According to them it had to be a policy of
the Church that people of such sexual orientation must not even be
allowed to worship God in the Church. Similarly, those who supported
or sympathised with homosexuals had to be denied freedom of worship.
They upgraded the proposition to a fundamental principle of faith to
the extent that they attempted to have the whole Church dissolved on
account of the differences over it. The importance of the principle
they formulated arises from the place they sought to assign to it in
the Church.
At
a meeting of the Diocesan Synod held on 4 August 2007 Dr Kunonga and
his adherents resolved to secede from the Church over the issue of
homosexuality. As a result, at the Provincial Synod meeting held at
Mangochi in Malawi on 5
-10
September 2007, a representative of the Diocesan Bishop of Harare
seconded a motion moved by the Diocesan Bishop of Manicaland to the
effect that the Church of the Province of Central Africa be
dissolved. After debate, the Provincial Synod rejected the motion.
The ground was that although the issue of homosexuality was being
raised, the Diocesan Bishops of Harare and Manicaland wanted the
dissolution of the Province. The effect of the decision was that Dr
Kunonga and his followers were interested in creating their own
centre of ecclesiastical power with Zimbabwe as the Province. It was
not necessary to dissolve the Province to solve the
anti-homosexuality problem.
Having
failed to achieve their objective through the dissolution of the
Province, Dr. Kunonga and his followers fell back on what they
conceived was within their power as the Board of Trustees of the
Diocese of Harare. Dr Kunonga wrote a letter to the outgoing
Archbishop on 21 September 2007. It was a notification of withdrawal
of the Diocese of Harare from the Province with effect from 4 August
2007. It is clear from the letter that the object was the creation
of Zimbabwe as a Province. The letter reads:
“RE:
FORMAL WITHDRAWAL OF THE DIOCESE OF HARARE FROM THE CHURCH OF THE
PROVINCE OF CENTRAL AFRICA.
The
above refers, from the Bishop of the Diocese of Harare, Diocesan
Synod, Standing Committee, Diocesan Trustees and the whole body of
the Church in the Diocese.
By
copy of this letter, the Diocese of Harare would like to formalise
its exclusion from the Church of the Province of Central Africa as
minuted in the records of the Provincial Synod of 2007 September the
8th,
which we trust you hold.
You
will appreciate our relationship with the Province has been indeed a
lifelong one full with genuine authentic Christian sharing. This
Province has been a source from which we have drawn our livelihood in
terms of Christian virtue in as much as it is from us. Our communion
has been guided by nothing else than the moral doctrine of Christ,
which was one, based on the premise that we hold primary, the
fundamental canons of faith which are indeed in the Sacred
Scriptures. It is our fear and reverence of these that made us to
seriously weigh our susceptibility when faced with a threat of
compromise and breach of the said in the face of what our Province
was and is facing now viz HOMOSEXUALITY.
We
take it on good grounds that this has become an issue in our church
in the Province and unlike what the members of Synod and the
Episcopal bench wanted us to believe, this is not a matter of desktop
contemplation, it is to us a matter of faith and conscience. We
refer you to the following as cause for our withdrawal from the
Church of the Province of Central Africa.
OUR
ROOTS IN THE SACRED SCRIPTURES
The
Diocese of Harare has always believed and upheld the Primacy and
Precedence of the Sacred Scriptures over any act of reason or
tradition. The Old Testament is very explicit about its abomination
and ultimate condemnation to the practice. (Gen. 19, Lev. 18:22 and
Deut. 23:17). The New Testament is equally vehement against the sin
of homosexuality. Paul says this is being directly opposed to nature
and hence the plan of God and in fact warrants exclusion from the
Kingdom of God (Rom. 1:18-22, 1 Cor. 6:9-10). We strongly believe
and rightly so that the Church is indeed the shadow of the eternal
Kingdom and must strive to demonstrate congruence in this regard.
For us then it is not an option to exclude from our fold such people
or elements that have embraced out of their own free will, support or
sympathy towards homosexuals. It is mission, it is the mandate upon
which we must launch our mission as the Church. If this Province is
being made part of or accommodative to people of this nature, we as a
Diocese are withdrawing and we are doing this with a very clear
conscience as for us this is matter of life or death in matters of
faith.
No
amount of reason, persuasion, or position for us can supersede the
teaching of God as found in the Sacred Scriptures. For the Diocese of
Harare the rejection of Homosexuality is based on nothing else except
this fundamental doctrine upon which canon, act or utterance by the
Church or anyone representing it must be based. We reject any
compromise or tolerance when it comes to this. As a Diocese we are
saying at the slightest sight of compromise, tolerance or indulgence
from our midst in the Province, we would rather exclude ourselves
than be part of a conscience wrecking process where room to
homosexuality is being granted.
Knowing
very well your own position against homosexuality, it is frightening
to us, the level of advances this scourge has reached and its fast
coming as you are retiring. This had urged us to pull out as a
Diocese.
Consistent,
therefore, with our 61st
Session Diocesan Synod on the 4th
of August 2007, in accordance with the Scriptures and the will of
God, we were mandated by our Synod to disassociate and sever ties,
with any individual, group of people, organization, institution,
diocese, province which sympathizes or compromises with
homosexuality. We, the Diocese of Harare, would like it to be put on
record that with effect from the 4th
of August 2007 and as confirmed by the Provincial Synod, we are
withdrawing from the Church of the Province of Central Africa. We
have no hard feeling about our departure from the Province.”
In
a letter written on its behalf by the Rt. Reverend Albert Chama, Dean
of the Province of Central Africa & Bishop of Northern Zambia, on
16
October
2007, the Church responded. The letter reads:
“RE:
ACCEPTANCE OF THE WITHDRAWAL OF THE BISHOP OF HARARE FROM THE CHURCH
OF THE PROVINCE OF CENTRAL AFRICA
Dear
Bishop Kunonga,
I
am in receipt of your letter dated 21st
September 2007, addressed to the former Archbishop of the Province,
the Most Reverend Dr. BA Malango advising him of the formal
withdrawal of the Diocese of Harare from the Church of the Province
of Central Africa.
I
would first like to advise you that it is constitutionally and
canonically impossible to withdraw the Diocese of Harare from the
Church of the Province of Central Africa because a diocese, in
accordance with the constitution of the Church of the Province of
Central Africa forms an integral part of the said Province. Any act
that purports to withdraw a diocese is unconstitutional and
uncanonical as this action is tantamount to altering the very
structure and essence of the Province. The Constitution and Canons of
the Church of the Province of Central Africa specifically stipulate
that any alteration of the Province would require the approval of the
Provincial Synod after the Synod of each Diocese in the Province has
also approved and confirmed by the Provincial Synod by a two-thirds
majority of those present and has subsequently been endorsed by the
Archbishop of Canterbury as not affecting the terms of Communion
between the Church of this Province, the Church of England, and the
rest of the Anglican Communion.
Consequently
the heading of your letter stating the “Formal Withdrawal of the
Diocese of Harare from the Province of Central Africa” is
unacceptable and misleading. We, however, as the Dean of the Province
of Central Africa accept and acknowledge that you, and some of your
supporters have by notice of your letter severed relationship with
the Province of Central Africa.
Therefore
I declare that the See of Harare is with immediate effect vacant and
in accordance with Canon 14(1)
I
shall be appointing a Vicar General to hold office whilst the
necessary steps are taken for the holding of an elective assembly to
elect the next Bishop for the Diocese of Harare.
Given
your leaving the Church of the Province of Central Africa we direct
that all properties and assets belonging to the Province should be
surrendered immediately to the Vicar General whose name we shall give
you in a few days' time.
It
is most unfortunate that your relationship with the Church of the
Province of Central Africa has come to an end. We commend you to
God's gracious keeping.
Yours
in Christ,”
How
did the parties treat each other thereafter?
One
of the members of the Board of Trustees at the time, Phillip Baki
Mutasa, strongly opposed the decision taken by the Board of Trustees
of the Diocese of Harare to secede from the Church. He was the Vice
Chairman of the Board of Trustees for the Diocese of Harare. He
disassociated himself from the decision to withdraw membership from
the Church. He sued some of the people for defamation damages arising
from false allegations made in a letter dated 20 October 2007. The
allegations were to the effect that he had acted out of self-interest
in challenging Dr Kunonga's right to take possession of Church
property on the ground that he had withdrawn membership from the
Church.
On
28 October 2007, sixty-nine clergy wrote to wardens and laity members
of the Church in the Diocese of Harare making it clear that Dr
Kunonga and themselves had moved out of the Church. They pledged
support for Dr Kunonga. Referring to the letter of 16 October 2007
from the Rt. Reverend Albert Chama they said:
“It
is a myth to us why they want to force us to go back to a scenario
where we will be brushing shoulders with perpetrators of
homosexuality. We refuse to accept that. In fact we are now forced
to make inference that maybe they have been hard hit because they
share the same values. For them what is at stake is confusion and
not order in the Church. They are causing untold anxiety among all
our members and we want you to know that as your clergy we stand for
orderliness in the Church. We urge you to be careful of their false
teachings as Paul warns in 2 Tim. 4:3:5. They are trying hard to use
the rules of a “game” we have abandoned, it does not work. We
have withdrawn from the Province of Central Africa period. Trying to
use the rules of our former province over us is only tantamount to
mischief and lack of integrity. ... We affirm that it is very clear
we are joining another province that maintains the same discipline
over the homosexuals as ourselves and the formalities for that are
being finalised and every stage will be shared with you.”
It
is clear from the sentiments expressed that the intention of Dr
Kunonga and his followers was not just to withdraw the Diocese of
Harare from the Province. Those involved also intended to withdraw,
and regarded themselves as having withdrawn, their individual
membership from the Church. They had decided to join another Church
which was about to be formed.
On
7 November 2007 the Dean of the Province declared the office of the
Diocesan Bishop of Harare vacant with effect from 16 October. He
appointed Bishop Sebastan Bakare to act as Diocesan Bishop of Harare
until the election of a substantive incumbent.
On
20
December
2007, an extraordinary meeting of the Episcopal Synod of the Church
decided, in terms of Canon (6)(6), that Dr Kunonga and his followers
had left the Church. The meeting decided that Dr. Kunonga had, as a
result of his behaviour resigned as a Bishop of the Province. They
revoked his pastoral licence. Notwithstanding these events which were
based on the acceptance as a fact that Dr Kunonga and his followers
had voluntarily left the Church over the issue of homosexuality, they
did not immediately deny that they had done so.
Dr
Kunonga and his followers responded, on 12 January 2008, by forming a
new ministry which they called the Anglican Church of the Province of
Zimbabwe. Dr Kunonga was consecrated and enthroned by one of the
Bishops of the new Church, as their Archbishop. He took up office,
from which he consecrated and enthroned some of his followers as
Diocesan Bishops of the new Church. Those who took part in the
inauguration ceremony were clear in their minds that they had pulled
out of the Appellant Church to form their own. They formed a Province
with five dioceses each headed by a Bishop consecrated and enthroned
by Dr Kunonga. The support for the secession was passionate. There is
no doubt that it was an association based on the agreement of the
individuals involved.
Dr
Kunonga and his followers did not surrender possession of the
property of the Church upon secession. On 12 May 2008, Dr Kunonga was
excommunicated from the Church, together with his supporters. The
parties took the dispute to the High Court. Litigation commenced by
the Church was for orders directing Dr Kunonga and his followers, to
vacate or surrender possession of its property. Dr Kunonga and his
followers instituted proceedings seeking orders declaring that they,
were still members of the Board of Trustees for the Diocese of Harare
entitled to the control of Church property in the diocese.
On
20 November 2007 in case HC6544/2007 the Appellant Church issued
summons against Dr Kunonga and six others who claimed to be members
of the Board of Trustees of the Diocese of Harare. It claimed orders
interdicting them from holding themselves out as its office bearers
and directing them to surrender movable and immovable assets in their
possession. Dr Kunonga and others opposed the claim. They alleged
that the property in their possession was owned by the Diocese of
Harare. They admitted that they had left the Church. The contention
was that they were holding the property on behalf of the Diocese of
Harare.
In
case HC4327/08, the subject of this appeal, Dr Kunonga sought, by
application to the High Court, an order that he and his followers
were the Board of Trustees for the Diocese of Harare. He also made an
application for an order declaring that he was the incumbent Diocesan
Bishop of Harare, and interdicting the Appellant Church from
consecrating and enthroning any other person as such office-bearer.
The
learned judge took the view that the issues raised before him in case
HC4327/08 were the same as those pending before the court in
HC6544/07. He decided to determine all the issues thereby pre-empting
the commencement of the trial in the later case. The learned judge
held that a diocese is an administrative area of a Church. It is not
a legal entity, capable of removal from a Church. He concluded that
the withdrawal of the Diocese of Harare from the Province of which Dr
Kunonga and his followers had given notice in the letter of 21
September 2007, was a nullity.
The
learned judge held that Dr Kunonga and his adherents had not
withdrawn their membership from the Church. He said:
“The
applicants might have expressed their desire to sever ties between
the diocese and the province in very strong terms as noted by the
respondent but nowhere in their letter do they evince a desire to
withdraw as individuals.”
The
learned judge held that Dr Kunonga and supporters were entitled to
the control of the property of the Church. He was of the view that if
they had committed acts of misconduct, disciplinary proceedings
should have been instituted against them as provided by the
Constitution and Canons of the Appellant Church.
He
said:
“Now,
if what the applicants did constituted an offence in terms of the
canons of the Church, then they should have been charged, tried and
punished accordingly. Excommunication is a form of punishment
following a trial. It has not been shown that any such trial took
place. The formation of a new province may be an act in violation of
the canons of the Church and the Church would be within its rights to
punish such an act in terms of its own procedures. The courts will
not interfere, for example, as regards whether or not certain acts
are punishable by excommunication or not, as these issues are within
the ecclesiastical competency of the respondent. However, no such
trials in terms of the canons of the Church have taken place”.
On
the question of their positions as Trustees, the learned judge said:
“The
analysis pertaining to the issue of locus
standi
has already led to the conclusion that the applicants do have locus
standi to
bring this application that they have not been lawfully removed from
their positions as trustees and until they are so removed they
continue to hold those positions and the property of the Church in
trust”.
The
learned judge then gave orders declaring Dr Kunonga and six others to
be the Trustees of the Diocese of Harare. He ordered that “the
property of the Diocese of Harare” whether movable or immovable
owned by the Church within the Diocese be vested in them. The Church
was ordered to give Dr Kunonga and others vacant possession and/or
control of the property. The Deputy Sheriff, with the assistance of
the Police was authorised at the direction of Dr Kunonga and others
to ensure that they took vacant possession or occupation of the
property. The learned judge went on to dismiss with costs the
Church's claim in case no. HC6544/07.
The
appeals against the judgments in the two cases were then lodged with
the Supreme Court.
The
grounds of appeal allege misdirection on the part of the court a
quo
in holding that: Dr Kunonga and his followers did not withdraw their
membership from the Church; Dr Kunonga did not resign the Office of
Diocesan Bishop of Harare; he and the others remained members of the
Board of Trustees for the Diocese of Harare entitling them to the
possession or occupation and control of the property of the Church.
In
so far as the legal status of the diocese of Harare is concerned, the
conclusion by the learned judge that it is not a legal entity that
can be withdrawn from the Province, is undoubtedly correct.
The
holding is in accordance with the principle derived from the ancient
laws and usages of the Catholic Church that dioceses should be
associated in Provinces. The preamble to the Constitution confirms
that the Church was formed on the basis of the principle that a
diocese is an administrative area or legal division of a Province
under the episcopical jurisdiction of a Bishop. The word diocese is
derived from a Greek term meaning administration.
At
p 236 of Collier's
Encyclopaedia Vol. 8
by
W.D. Halsey & L. Shores
(Eds.) the origin and development of the concept of diocese are
traced and articulated in the following words:
“DIOCESE:
A WORD DERIVED FROM THE Greek .... It originally referred to an area
or sphere of administration, financial or other. From about A.D. 300
it meant part of the Roman Empire, comprising several provinces.
Under Constantine (A.D. 306-337), the system was reformed and a
number of dioceses were joined into provinces. With the recognition
of Christianity (A.D. 312-313) the diocese was generally recognized
as the ecclesiastical area of a bishop's jurisdiction and as a
province of an archbishop's administration, whereas earlier the
bishop had been more closely associated with the city, the capital of
the province, where his throne, or cathedra, was situated in the most
ancient or largest church, or 'cathedral'. Under Constantine,
too, certain functions of diocesan administration were handed over to
the bishop, the emancipation of slaves, for example. In the Church,
the
term still denotes the area of a bishop's administration and
authority.
In the Middle Ages, as a result of the tendency seen in the False
Decretals, the boundaries of ecclesiastical dioceses came to be
regarded as sacrosanct, and the ecclesiastical use of the word was
applied to smaller areas of tribal or other significance. The only
significant departure from the traditional boundaries occurred in
France in 1790, when, under the Civil Constitution of the Clergy, the
dioceses of bishops were identified with the departments.”
The
jurisdiction of the Archbishop of the Province covers all members of
the clergy and laity in the whole area of the four countries.
Procedurally, compliant removal of a diocese can only take place when
the diocese is being placed under the jurisdiction of another
Archbishop. Removal can only be achieved at the risk of structural
adjustment of the government of the Province. It has to be with the
agreement of all dioceses in the four countries accompanied by
approval of the Provincial Synod and endorsement by the Archbishop of
Canterbury that the removal does not affect the terms of Communion
between the Church of the Province, the Church of England and the
rest of the Anglican Communion.(Fundamental Declaration VII). Under
Canon 34 the formation of a new diocese or the uniting of any diocese
or the alteration of the boundaries of any diocese can only be done
by the Provincial Synod. If a diocese was a legal person that power
would not exist because external power cannot alter the internal
governance of a corporate body.
The
first question to be determined is whether the learned judge
correctly found as proved that Dr Kunonga and his followers did not
withdraw their membership from the Church on 21 September 2007.
In
the face of the documents and evidence of the words and actions of Dr
Kunonga and his adherents the court is unable to uphold the learned
judge's finding. The reasons for the decision are these.
The
learned judge directed his mind to the letter of 21 September 2007
particularly the absence of an express statement that Dr Kunonga and
his followers had withdrawn their membership from the Church. As a
result he shut his mind to other evidence which had a direct bearing
on the matter. It was his duty to decide the question of withdrawal
of membership upon consideration of all the relevant evidence placed
before him. Had the learned judge carried out his duty he would have
appreciated that the anti-homosexuality stance adopted by Dr Kunonga
and his followers was no longer consistent with their remaining
members of the Church.
The
belief of a Christian Church must be founded in general upon Holy
Scriptures. What differentiates one Church from another is the
accepted and crystallized definition of what they hold those
Scriptures to contain – in other words their creed. If an
association of Christians adopt any one creed as the basis of their
association no one can cut and carve upon it without altering the
foundation upon which that body has been associated. Free
Church of Scotland v Lord Overtoun
[1904] AC 515 at 577.
Dr
Kunonga and his followers reached a stage where they regarded it a
matter of faith that homosexuals and members of the Church who
supported or sympathised with them should not be associated with. To
them these people (if they regarded them as such) had no right to
worship God in the Church. It did not matter whether there was
practice of homosexuality or not. Their faith in Jesus Christ did not
entitle them to membership of the Church.
Needless
to say that the view by Dr Kunonga and his followers of the doctrine
on homosexuality as taught in the Holy Scriptures was different from
that held by the other members of the Church. It was contrary to the
fundamental principle of the “redemption wrought for all men in
Christ” for the purpose of the witnessing of which the Church was
established. It was a distinct principle from the fundamental
principle of “equal value of all men before the righteous Love of
God” proclaimed by the Church.
Great
light is in fact thrown on what are the essential doctrines of a
Church by reference to the declarations made by those who founded it
as to what in their view was fundamental. The principle of “equal
value of all men before the righteous Love of God” requires that
members of the Church be tolerant and accept that God loves all men
equally regardless of their spiritual, physical and moral state. The
acceptance of this fundamental principle is laid upon every minister,
office bearer and member who subscribes to the Constitution. It is a
principle which obliges the Church to keep doors open to all who wish
to come in and worship God provided they adhere to the faith of Jesus
Christ as expressed in the doctrines taught by the Holy Scriptures
and preached by the Apostles.
It
is in that context of openness and tolerance that the Church can talk
of a free offer of redemption and salvation of Jesus Christ. There
would be no point in adhering to the principles of redemption and
salvation of Christ when there is no opportunity given to people to
be redeemed. By advocating the principle of exclusion of homosexuals
and their supporters or sympathisers from public worship of God, Dr
Kunonga and his followers adopted a distinct principle. With it was
opposed to the fundamental principles of the free offer of redemption
and salvation of Christ on the basis of which the Church is founded.
By
definition a Church is a voluntary and unincorporated association of
individuals united on the basis of an agreement to be bound in their
relation to each other by certain religious tenets and principles of
worship, government and discipline. The existence of a Constitution
is testimony to the fact that those who are members of the Church
agree to be bound and guided in their behaviour as individuals or
office – bearers on ecclesiastical matters by the provisions of the
Constitution and the Canons made under its authority. It is the words
and actions of the individuals as members and office bearers that
indicate whether there is conformity with the articles of faith.
When
Dr Kunonga wrote in the letter of 21 September 2007 about the
withdrawal of the Diocese of Harare from the Province, he could not
exclude himself and his followers from the withdrawal. The words and
actions belonged to them as individual members of the association. It
is always up to the individual in a voluntary association to conduct
himself or herself in accordance with the mutual standards of
behaviour he or she freely undertook to observe in terms of the
definite contract he or she would have entered into with others. The
words and actions cannot be imputed to some legal person as would be
the case with a corporate body created by law as a positive and
definite entity.
Just
as a person would have exercised the right to freedom of choice in
becoming a member of a Church he or she has the right to leave it at
his or her free will. The Constitution recognises the right in any
member to leave the association once he or she believes that it no
longer serves the purposes for which he or she joined it. A Church
has no right to compel a person to remain its member. Compulsion
would be contrary to s21 of the Constitution of Zimbabwe which
guarantees to any person the right to associate with others for the
specific purpose of public worship of God in accordance with one's
religious faith or belief. In other words the State recognises the
right of all to follow the dictates of their consciences in the
religious opinion which they hold. No man or woman in this country
has been punished for erroneous opinion concerning rites or modes of
worship of God. The basic idea is that there should be good happiness
amongst those who are united to worship God.
When
looked at in the light of the distinctive principles on homosexuality
which the parties adopted in relation to the requirements of faith
under the Constitution the only reasonable inference to be drawn from
the contents of the letter of 21 September 2007 is that Dr Kunonga
and his followers gave notice of having withdrawn their membership
from the Church.
It
is important to bear in mind when carrying out the analysis of the
evidence that it is not what the court might think of the importance
of the difference between Dr Kunonga and his followers on the one
hand and the others on the other, on the question of homosexuality,
which matters. The court is interested in what the parties thought
about the matter. Equally it is not for the court to say whether the
principles adhered to by either party on the question of
homosexuality are bad or good. 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 who should possess and control Church
property.
It
is the duty of the court to decide the question raised by the appeals
on the basis of whether the distinctive principle adopted by Dr
Kunonga and his followers on homosexuality is consistent with the
fundamental principles on which the Church is founded as contained in
the Constitution and the Canons enacted under its authority.
The
court accepts as a correct statement of law made in Independent
African Church v Maheya
1998 (1) ZLR 552 (H) at p 556E relied upon by the same judge in the
second decision of the case between the same parties reported in 2000
(1) ZLR 39 (H) at p 47B-C. It is that disputes over ownership or
possession and control of Church property should be resolved on the
basis of the interpretation and application of the law of voluntary
associations. That law requires consideration and application of the
terms and provisions of the Constitution of the body concerned as
well as the rules made under its authority.
The
Court does not, however, accept as correct the statement of law in
the two decisions to the effect that in the determination of
questions of ownership or possession of Church property courts should
not consider the “merits of doctrinal matters”. It is said courts
ought to apply what is called “neutral principles of law”. These
principles seem to relate to the interpretation and application of
the law of voluntary associations. To support his view the learned
judge rejects as an incorrect statement of principle by the learned
authors of “Bamford: The
Law of Partnership and Voluntary Association in South Africa”
3ed. where they state at p 849 that:
“In
the case of religious associations it is submitted that a court, in
order to resolve questions of property, is entitled to resolve
questions of ecclesiastical doctrine.”
It
is not clear what the learned judge meant by the words “merits of
doctrinal matters”.
If
one group of people claims that the property belongs to it whilst the
other group also lays claim to the property, they are each of them
treating the question of ownership of the property or of its
possession and control as one of religious belief and obligation.
They are not treating the question as one from which religious duties
are excluded. In the absence of an express provision in the
Constitution of a Church on how a dispute over ownership or
possession and control of Church property should be resolved when
members divide, how can a court decide which of the groups is made up
of secessionists?
The
court is of the view that “neutral principles of law” do not
include the proposition that such factors as allegiance to a
particular leader or which group is in the majority should determine
entitlement to ownership or possession and control of Church property
when members divide, unless there is an express provision in the
Constitution requiring that such factors be decisive of the issue.
Adherence
to the fundamental principles on which the Church is founded must be
the factor on which disputes of ownership or possession and control
of Church property are determined. Almost all Constitutions of
Churches have as their subject - matters the faith, worship,
government and discipline. The Constitution would invariably make
provision for matters of faith as expressed in ecclesiastical
doctrines and embodied in all the rules governing matters of worship,
government and discipline by incorporation. It cannot be correct to
say that whilst the Church considers the Word of God to be embodied
as the primary command in the doctrines which are incorporated in the
Constitution by reference, they should not constitute the standard to
be considered and applied by the court in determining the rights and
obligations of the parties over the property in dispute. When
rejecting the use of the factors of majority and allegiance to a
leader in Free
Church of Scotland case supra
LORD ROBERTSON observed that “since the days of Cyrus it has been
held that justice is done by giving people not what fits them but
what belongs to them”.
In
Free
Church of Scotland supra
their Lordships were of the unanimous view that the question of
adherence to the fundamental principles on the basis of which a
Church is founded is the critical factor to be considered in the
determination of a dispute over church property. They were agreed
that the principle stated by LORD ELDON in Craigdalie
v Aikman
(1813) 1DOW 1 at p 16 is the correct principle to apply. LORD DAVEY
at pp 643-644 quotes LORD ELDON as having said:
“When
this matter was formerly before the House we acted upon this
principle, that if we could find out what were the religious
principles of those who originally attended the chapel we should hold
the building appropriated to the use of persons who adhere to the
same religious principles”.
And
after stating the result of the inquiries directed by the former
judgment LORD ELDON said:
“Supposing
that there is a division of religious opinions in the persons at
present wishing to enjoy this building the question then would be
which of them adhered to the opinions of those who had built the
place of worship and which of them differed from those opinions?
Those who still adhered to those religious principles being more
properly to be considered as the cestuisque
trust of those who held this place of worship in trust than those who
have departed altogether from the religious principles of those who
founded this place, if I may so express it.”
At
pp 612 – 613 the EARL OF HALSBURY LC said of the importance of the
fundamental principles:
“Speaking
generally one would say that the identity of a religious community
described as a Church must consist in the unity of its doctrines. Its
creeds, confessions, formularies, tests and so forth are apparently
intended to ensure the unity of the faith which its adherents
profess, and certainly among all Christian Churches the essential
idea of a creed or confession of faith appears to be the public
acknowledgement of such and such religious views as a bond of union
which binds them together as one Christian Community.”
The
application of the principle of adherence to the fundamental
principles of a Church supports the proposition that those who have
departed from the standards and principles on which the Church is
founded are more likely to leave it. For the purposes of establishing
the fundamental principles of a Church it is not only the accepted
interpretation of Scriptures that counts. An accepted interpretation
of or inference from subordinate standards may just as well be an
article of faith as any other opinion. There is no tenable
distinction for the purpose between one religious principle or
opinion and another. Free
Church of Scotland case
supra at p651.
The
rationale for the rejection of the application of the factor of
majority lies in the concept of a Church as a voluntary association
of individuals united by an agreement on the religious principles by
which their affairs as individuals and association should be
conducted. On the principle of majority it would mean that where one
person remains holding the original principles of the Church there is
no organised association of people. The issue is not that the person
is alone at the time of secession from or division in the Church. It
is that the one person adheres to the fundamental principles which
define the Church. As long as there is no provision in the
Constitution (on the basis of which he or she subscribed the
principles and undertook to be bound by them) as to what should
happen when he or she is in the majority his or her adherence to the
fundamental principles is the decisive factor.
In
this case the exclusionary and distinctive principle to the effect
that it is unlawful to associate with homosexuals and their
supporters or sympathisers was put forward as a fundamental principle
adopted by Dr Kunonga and his followers. It was later to be the
original principle on which the Church of the Province of Zimbabwe
would be founded. It became the creed or doctrine in terms of which
their religious belief was expressed and on the basis of which they
associated in the new Church. Their Church was to be identified by
that doctrine.
The
other factors, which show that Dr Kunonga and his followers no longer
adhered to the fundamental principles of the Church on homosexuality
and left it, but were not considered by the learned judge, are these.
When
Dr Kunonga communicated to the Archbishop, on 21 September 2007, that
they had withdrawn the Diocese of Harare from the Appellant Church he
did not say they were still members of the Church. It is unreasonable
to think that they could have withdrawn the Diocese of Harare from
the Church whilst remaining members. This is particularly so when
regard is had to the fact that the matter over which they differed
with others in the Church touched them personally. The issue of
associating with homosexuals and supporters or sympathizers of them
which they had raised was about personal religion. They had agreed to
associate with others on the terms and conditions contained in the
Constitution. They were in effect saying that they did not want to be
associated with the other members with whom they disagreed because
they tolerated homosexuality. They could only avoid contact by
withdrawing themselves from the Church. It is not unusual for people
to value separation from a Church as a safeguard for doctrines which
they hold intensely and as to which they know that the surrounding
world is indifferent or hostile. Free
Church of Scotland case
supra at p 676.
When
it was brought to their attention, on 16 October 2007, that they had
seceded from the Church, Dr Kunonga and his followers did not recant.
They, instead, declared their resolve not to be intimidated into
consorting with those who tolerated homosexuality. In the letter of
28 October the clergymen make it clear that they had left the Church.
They indicate that they were now in a position of freedom to join a
new Church which was about to be formed. One cannot interpret their
statement that the Dean of the Province was trying to coerce them, by
letter of 16 October, to go back to the Church to mean that they were
still members of the Church. By their own words and conduct they made
it clear to all who did not share their attitude on the subject that
it would be an article of faith of a separate Church that homosexuals
would not be tolerated.
Respect
for human dignity is a fundamental principle of faith. It must have
been clear to Dr Kunonga and his followers that the position they had
taken contradicted the basis of this material particular of the
accepted expression of the doctrine of the Church which requires that
every person be treated with respect and dignity. Once they adopted
that position they separated themselves automatically from the Church
and ceased to form part of it.
After
the decision of the extraordinary meeting of the Episcopal Synod,
dated 20 December 2007, Dr. Kunonga and his followers did not recant
their position. They went on to form their own Church, thereby
creating a schism. According to “The
Concise Oxford Dictionary
(1990)”
a schism is “the separation of a Church into two Churches or the
secession of a group owing to doctrinal, disciplinary differences”.
The
court agrees with Mr de
Bourbon
that the evidence proved that Dr Kunonga and his followers created
the schism. The schism in the circumstances of this case is clear
evidence of withdrawal of membership by Dr Kunonga and his followers
from the Appellant Church. They left the Appelant Church and then
formed the new Church.
A
person who is responsible for the creation of a schism cannot be
heard to say he or she has not withdrawn membership from the former
Church. Even where a Bishop, Priest or Deacon of the Province who is
charged under Canon 24(1) with the offence of schism is found guilty
by the Church Court, the only sentence that can be imposed is
excommunication.
That
other Church, the Anglican Church of the Province of Zimbabwe, could
only have been formed after a secession from the Church by Dr Kunonga
and members of the clergy and laity who supported him.
Evidence
which the learned judge did not consider shows that they separated
from the Church on a question of doctrine in that they considered it
a rule of faith that homosexuals and those who support or sympathise
with them should not be associated with in the public worship of God.
The
argument that Dr Kunonga was acting in a representative or official
capacity when he wrote the letter of 21 September 2007 proves
nothing.
No
law authorized him and others to represent anyone in trying to do the
impossible concerning the withdrawal of the Diocese of Harare from
the Province. Withdrawal of membership from the Church was something
exclusively within their power as individuals. The minutes of the
meeting of 4 August 2007 show that they discussed the question of
withdrawal and agreed, as individuals, to withdraw from the Church.
If they were acting in their official capacities they could only have
been representing the Archbishop and the Province. That would be
impossible because they were fighting these institutions. Individual
withdrawal of membership from the Church was the natural consequence
of the letter of 21 September. Whilst they represented no-one,
Dr Kunonga and his followers did act in common purpose. Dr
Kunonga's appointment as an Archbishop of his own Church clearly
shows that he and his followers considered themselves no longer
members of the Appellant Church. There could not be more than one
Archbishop in a Province.
Common
sense indicates that Dr Kunonga could not have been doing what
members agreed that office-bearers in his position would do for and
on behalf of the Church. There never was agreement by the members
that a Diocesan Bishop could write a letter to the Archbishop
notifying him of a unilateral withdrawal of his diocese from the
Province. Dr Kunonga was obviously advancing the secessionists'
agenda.
A
careful examination of the evidence shows that the learned judge
overlooked admissions by Dr Kunonga and his followers that they
withdrew their membership from the Church.
The
Church made the allegation in case HC 6544/07. They did not deny the
allegation in their plea. They said they left the Province but
remained in the Diocese of Harare. The same allegation was made by
the Church in the opposing affidavit filed in Case HC4327/08. No
answering affidavit was filed denying the allegation. The reason is
that the case in the founding affidavit was that what had been done
in attempting to withdraw the Diocese of Harare from the Province was
lawful. The simple rule of law is that what is not denied in
affidavits must be taken to be admitted. Fawcett
Security Operations (Pvt) Ltd v Director of Customs and Excise &
Ors
1993(2) ZLR 121(S) at 127F.
It
was only in the heads of argument filed on 9 December 2007 in case
HC4327/08 that it was contended that as the attempted withdrawal of
the Diocese of Harare from the Province was a nullity all other acts
done by Dr Kunonga and his followers were null and void. It was
expressly admitted in para. 13 of the heads of argument that Dr
Kunonga and his followers withdrew their membership from the Church.
What was specifically accepted was the allegation made by the Church
in para 44(C) of the opposing affidavit that “Dr Kunonga and his
handful of followers left the Church”.
Not
only did the learned judge overlook the admissions by Dr Kunonga and
his followers on the question of withdrawal of their membership from
the Church, but he made no mention of the argument on the effect of
nullity. It is clear from a reading of the reasons for the judgment
that his decision was not based on the point.
When
Mr Kanengoni advanced the same argument on appeal he unwittingly was
on the side of the Church. He could not rely on the point of the
effect of nullity without admitting that the learned judge was wrong
in holding that the letter of 21 September 2007 did not constitute a
notice of withdrawal of membership by Dr Kunonga and his followers
from the Church.
In
any event the Court is of the view that the principle of the effect
of a nullity based on the obiter dictum of LORD DENNING in Macfoy
v United Africa Co. Ltd
[1961] 3 ALL.E.R. 1169 cannot be used to nullify acts which are
permitted and given effect by a separate law from that which created
the nullity. In this case the act of withdrawal of membership from
the Church was an exercise of the right to freedom of choice whilst
the nullity arose from a breach of the rule on the status of a
diocese in a Province. Nullification of an act by one rule because
it is in breach of its requirements cannot be applied to nullify an
act permitted and given effect by another rule. The principle that
there should be harmony between rules of the same legal order
prevents such an internal contradiction arising in the legal order.
The
second question is whether these facts show that Dr Kunonga resigned
his office as Diocesan Bishop of Harare in the Appellant Church. The
court holds that they do. The reasons for the decision are these.
According
to Article 4 of the Constitution and Canons of the Church a vacancy
in the office of a Bishop of any Diocese of the Province may be
created by death, resignation or removal for any cause of the Bishop.
Canon
13(1) gives a Diocesan Bishop who desires to do so, a right to resign
from the office before the completion of his sixty-fifth year by
giving written notice of the resignation to the Archbishop or to the
Dean of the Province if the Bishop is the Archbishop. The resignation
would take effect upon acceptance of it by the Archbishop or the Dean
of the Province if the Bishop is the Archbishop.
It
was argued in the court a
quo
that since Dr Kunonga did not give notice to the Archbishop of any
resignation as Diocesan Bishop of Harare, he remained in office. The
contention was that there cannot be a resignation of a Diocesan
Bishop other than in terms of Canon 13(1).
The
argument overlooked the effect of Article 4. That means that the
Constitution recognizes that there can be resignations which do not
have to be contained in written notices to the Archbishop or Dean of
the Province if the Bishop is the Archbishop. In other words, it
does not have to be a resignation subject to the acceptance of the
Archbishop. Article 4 applies to a resignation of any Bishop of a
Diocese including a Diocesan Bishop whilst Canon 13(1) applies to a
Diocesan Bishop only. Article 4 is consistent with the principle
that a person will be deemed to have resigned from an office if
evidence of his or her conduct shows that he or she exercised the
right to resign notwithstanding absence of notice to the appropriate
authority of an intention to resign.
There
must be many people who leave offices in voluntary associations
without giving notice.
If
the contention by Dr Kunonga was to be accepted, it would mean a
person could leave office and return to an organization when benefits
arise as long as he or she can claim that he or she had not resigned
office because no written notice was given.
Canon
12(4) gives the Archbishop the power to declare,
with the consent of the majority of Bishops of the Province, the
office of a Diocesan Bishop vacant in the event of him being absent
from his Diocese for more than six months without good cause. The
Bishop concerned would have resigned office within the meaning of
Article 4. It must be accepted that there can be resignation by
conduct in addition to resignation by words. Sick
and Funeral Society of St John's Sunday School v Golcar
[1973] 1 Ch. 51 at 62C-E.
Canon
13(1) is concerned with a person who at the time he desires to resign
is willing to act in accordance with the procedure prescribed
thereunder and recognizes the authority of the Archbishop or Dean of
the Province if he is the Archbishop. The person intends to remain a
member of the Church. A person in the position of Dr Kunonga would
find no moral justification for subjecting his resignation from the
office of Diocesan Bishop to the procedure prescribed by Canon 13(1).
By his own words and conduct he had placed himself in a position in
which he felt no obligation to give due obedience to the Archbishop.
He occupied an equivalent position of authority and reverence in
another Church.
Resignation
of a Bishop is a question of fact dependent on the evidence of the
conduct of the individual. 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 take 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.
The
facts show that Dr Kunonga was no longer a Diocesan Bishop in the
Church. He took part in the formation of the new Church which he
named the Anglican Church of the Province of Zimbabwe. He could not
have accepted the post of Archbishop of the new Church whilst
retaining the position of Bishop of the Appellant Church. He must
have known that there could not be two Archbishops in the Province.
He could not be both Diocesan Bishop of Harare and Archbishop of the
Church of the Province of Zimbabwe which was a separate Church. He
accepted the position in which the decision of the Episcopal Synod
declared him to be in. From that position he was able to accept the
consecration and enthronement as Archbishop of the Anglican Church of
the Province of Zimbabwe. He was also able to use the authority of
the new office to consecrate and enthrone a number of people as
Diocesan Bishops of the new Church.
It
must go without saying that Dr Kunonga was able to act in the manner
he did without attracting disciplinary charges from the Archbishop of
the Appellant Church because he had withdrawn his membership from the
Church and ipso
facto
resigned the office of Diocesan Bishop. It would be unreasonable in a
case such as this which requires proof on a pre-ponderance of
probabilities to expect, the Appellant Church to produce evidence of
greater probative value than it placed before the court a quo in
order to establish that Dr Kunonga resigned from the office of
Diocesan Bishop.
The
holding by the learned judge that the Church ought to have instituted
disciplinary proceedings against Dr Kunonga with a view to passing
the sentence of excommunication ignores a number of factors. The
procedure for the implementation of disciplinary proceedings shows
that they can only be invoked against people who are still members
and office-bearers of the Appellant Church. Once it is accepted, as
it should be, that Dr Kunonga left the Church, and ipso
facto
vacated his office of Bishop of the Province, then it should be
accepted that he was beyond the reach of the procedure referred to by
the learned judge. Canon 24(1) which the learned judge relied on,
states quite clearly that it is applicable to a “Bishop of the
Province”. Dr Kunonga was no longer a Bishop of the Province.
The
purpose of the proceedings would be to discipline the member.
Disciplinary action which is the object of the proceedings provided
for under Canon 24 is completely different from resignation. A person
who has resigned from the office of “Bishop of the Province”
effectively puts himself beyond the reach of the disciplinary
proceedings. A Church cannot institute disciplinary proceedings
against a person who is no longer its member or office bearer. The
court holds that Dr Kunonga resigned as a Bishop of the Province of
Central Africa and could not have been dealt with in terms of the
disciplinary procedure prescribed by Canon 24.
The
final question is whether Dr Kunonga and others remained members of
the Board of Trustees of the Diocese of Harare, entitled to the
control of the property of the Church. The court holds that they did
not. The reasons for the decision are these.
It
is clear from the evidence, that once Dr Kunonga and his followers
left the Appellant Church they disentitled themselves from continuing
as members of the Board of Trustees of the Church. They could only
hold the positions of Trustees for the purposes of delivering
services and protecting the property on behalf of the Province which
is the owner of the property.
Article
20 of the Constitution as read with Articles 21 and 23 establishes
the Trusts upon which property belonging to the Church is held.
Article 21 makes it clear that the duty of Trustees is to hold
movable or immovable property in trust for and on behalf of the
Provincial Synod. Article 23 provides that the Diocesan Trusts'
Board is obliged to exercise over the property only those powers
which are prescribed for it by the Provincial Synod. Under Article 18
the Provincial Synod is the only body with the power to frame such
rules as may be necessary from time to time for the management of
property held in Trust for the Church. It has full power and
authority to determine in what manner and upon what conditions such
property shall be used or occupied.
When
they left the Appellant Church, Dr Kunonga and his followers used the
property and continued to control it without the approval of or
authority from the Provincial Synod. They could no longer have been
acting according to the mandatory tenets of the trust. The conditions
under which they had held the property had changed. They could not
separate the question of control of the property of the Church from
the obligation to uphold and adhere to the fundamental principles on
which the Church is founded and for the purposes of the maintenance
of which it continues to exist. They used the property of the
Appellant Church to further the interests of their new Church of the
Province of Zimbabwe.
There
can be no doubt that the original purpose of the property Trust was
for the maintenance and support of the Church. It is clear from the
provisions of the Constitution that the property belonged to the
Church as named in the Constitution and was to be held for and on
behalf of the Provincial Synod of that particular Church. The Church
is one known to hold the faith described by the Constitution. The
import of the Trust would be that the buildings, for example, should
be enjoyed as places of religious worship by congregations of the
said body of Christians called the Church of the Province of Central
Africa. 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.
It would be unreasonable to think that the trust with which they
would have been expected to act authorized Dr Kunonga and others to
use the property for the achievement of the interests of their new
Church.
In
Chong
v Lee (1981)
BCLR 13 at 17, HINDS J stated:
“Where
a number of people group together to establish a Christian church and
it is formed for the purpose of promoting certain defined doctrines
of religious faith then expressed, property which the church acquires
is impressed with a trust to carry out that purpose, and a majority
of the congregation cannot divert the property to uses inconsistent
with such defined religious doctrines, against the opposition of a
minority of the congregation, however small such minority may be”.
The
principle is that in the absence of express provision in the
Constitution of a voluntary association such as a Church, property
held in trust must be applied for the benefit of those who adhere to
the fundamental principles of the association. Related to this is the
principle that a member of a voluntary association who leaves the
organization whilst others remain must leave the property with those
who have not resigned membership. When one leaves a club one does not
take its property with him or her. It has long been established as a
salutary principle of law in this area of property ownership that
when one or more people secede from an existing Church they have no
right to claim Church property even if those who remain members of
the congregation are in the minority.
From
all the circumstances of the dispute between the Church and Dr
Kunonga and his adherents, it is clear that they constituted the
seceding party. They broke away from the Church citing irreconcilable
differences on the question of tolerance of homosexuality. In the
absence of evidence of a contract in terms of which the Provincial
Synod directed that Dr Kunonga and his followers should continue
holding tenaciously to Church property after they had withdrawn
membership from the Church, the principle that the property must fall
under the control and use of those who adhere to the fundamental
principles of the Church must be enforced..
Ethiopian Church Trustees v Sonjica
1926 EDL 107 at pp 115–116.
In
Nederduitsch
Hervomde Congregation of Rustenburg v The Nederduitsch Hervomde of
Gereformeerde Congregation of Rustenburg
(1895) 12 CLJ 140, KOETZE CJ said at 142:
“Those,
however, who, as members of the congregation of the former Hervomde
Church of Rustenburg, however small their number might be, have not
joined the union, still remain the Hervomde Congregation of
Rustenburg, and are as such entitled to all the property and things
belonging to, or standing registered in the name of the Hervomde
Church of the Congregation of Rustenburg.”
In
Zambezi
Conference of Seventh Day Adventists v General Conference of
Seventh Day Adventists & Anor 2001(1)
ZLR 160
after
a dispute with the SDA, delegates to a local conference decided on 20
December 1992 to secede from the Mother Church to form the Seventh
Day Adventists. The new body claimed ownership of the properties of
its predecessor. The claim was dismissed on the same principle that
those who have left a Church have no claim to its property. McNALLY
JA at p 162 D-F said:
“These
individual members, who seceded from the Church, even if they be a
majority of the members of a particular congregation, have seceded as
individuals. They cannot have a claim to property of the SDA. They
have formed a universitas,
a
new
association of individuals. They cannot have a claim to property of
the SDA. It may be that, as individuals, they subscribed towards the
funds of the Church. But they did so as members. Having now founded a
new universitas,
they
cannot in law claim ownership of Church property.”
There
has been no dispute as to the ownership of the movable and immovable
property the possession of which was claimed by the Appellant Church
from Dr Kunonga and the others named in case No. HC6544/07. It is
common cause that the property belongs to the Church. It has a right
to an order for vindication of its property from possessors who have
no right to have it. The learned Judge was wrong in giving Dr Kunonga
and his followers the right to possess and control the property of
the Church without its consent. They had no right to continue in
possession of the congregational buildings when they had departed
from the fundamental principles and standards on which the Church is
founded. They left it putting themselves beyond its ecclesiastical
jurisdiction.
The
suggestion made by Mr Kanengoni
in argument that Dr Kunonga and his followers have disbanded the new
Church has no basis in the papers. The Court agrees with Mr de
Bourbon
that had that happened the Court would not be hearing these appeals.
In any case they would have to be formally “received” back in the
Church. That has not happened.
For
all these reasons, the judgment of the court a
quo
cannot stand. It is therefore ordered as follows:
1.
The appeal in the case of The
Church of the Province of Central Africa v The Diocesan Trustees for
the Diocese of Harare
SC 180/09 succeeds with costs.
2.
The judgment of the court a
quo
in case No. HC 4327/08 is set aside and substituted with the
following:
“The
application is dismissed with costs”.
3.
The appeal in the case of the Church
of the Province of Central Africa v Bishop N. Kunonga & Ors
SC 130/10 be and is hereby allowed with costs.
4.
The judgment of the court a
quo
in case No. HC6544/07 is set aside and substituted with the
following order:
“The
claim is granted with costs”.
ZIYAMBI
JA: I agree
OMERJEE
AJA: I agree
Gill,
Godlonton & Gerrans, appellant's
legal practitioners
Chikumbirike
& Associates, respondent's
legal practitioners
