BHUNU
JA:
This
is an appeal against the whole judgment of the High Court (the court
a
quo)
sitting at Harare which dismissed the appellant's application for
joinder as the fourteenth defendant on 16 January 2020 under case
number HC3499/14 (the main case).
At
the close of submissions by counsel we dismissed the appeal with
costs and indicated that our reasons for judgment would be delivered
in due course.
I
now proffer the reasons for the court order delivered on 20 July
2021.
BRIEF
SUMMARY OF THE CASE
1.
The substantive dispute between the parties in the main case before
the court a
quo
has to do with succession and ownership of church property between
the local church based here in Zimbabwe and a sister church based in
the United States of America. That is to say the first respondent and
the appellant respectively.
2.
It is common cause that sometime in 1976 the late Bishop Kenneth
Nyamhuka founded and incorporated the first respondent (the church)
as a
universitas
with its own Constitution. The affairs of the church are regulated by
the 1979 Constitution filed of record.
3.
As fate would have it, Bishop Nyamhuka fell ill and succumbed to
death on 4 April 2014. Following his death a dispute arose relating
to positions of leadership, possession and ownership of church
property amongst the local leadership of the church cited in the main
case.
4.
The appellant sought to intervene and be joined to the main case on
the basis that the Church is an affiliate of the appellant church
which is the mother body based in America.
In
its founding affidavit it claimed that it is responsible for the
appointment of the church's leadership and financial support. For
that reason it claimed the right to appoint the church's leaders
and to ownership of the disputed property.
On
that score it claimed that it had a direct and substantial interest
to wade into the succession battles among the local membership
of the church.
5.
The appellant's assertions to the effect that it is the mother body
of the church responsible for the succession process and ownership of
the church's property was strenuously disputed by the respondents.
They maintained that the church is independent of the appellant save
that they share the same Christian doctrine. To that extent they
asserted that the church has the right to appoint its own leadership
and has sole ownership of all its property.
THE
LAW
The
law on joinder of parties to judicial proceedings was eloquently
articulated by MAKARAU J (as she then was) in Burdock Investments
(Private) Limited v Time Bank Limited & Ors
where the learned judge had occasion to remark that:
“Before
a party may be joined or may be allowed to intervene in proceedings
before the court, he or she must establish a direct and substantial
interest in the subject matter of the judgment. The interest must be
such that the judgment cannot be carried into effect without
adversely affecting the legal position of the party mis-joined
and in circumstances where the defence of res
judicata
will not be raised against that party in future proceedings to
protect that interest.”
THE
ISSUE FOR DETERMINATION
6.
The crisp issue for determination in this appeal is whether or not
the appellant discharged the onus
of proving that it has a direct and substantial interest in the
subject matter for determination in the main matter.
APPLYING
THE LAW TO THE FACTS
7.
The respondents produced cogent empirical documentary evidence in the
form of annexures C1 and C2. The evidence shows that the appellant
has affiliates in 40 African countries under the administration of
its General Presbyter Masilela but Zimbabwe is not one of them.
8.
The learned judge a
quo's
summation which discredits appellant's claim cannot be faulted. It
completely discredits the appellants' claim that the church is its
affiliate. The learned Judge's sentiments at p7 of his cyclostyled
judgment bear repetition where he says:
“The
Applicant (appellant) offered no explanation for the absence of
Zimbabwe from the list of African countries which are, as it were,
affiliated to the applicant. Counsel for it stammered at the question
which related to Zimbabwe's absence from the list of countries
which fall under its administration. He eventually honed (sic)
(owned) up and stated that he did not know why Zimbabwe was not one
of the countries which fall under the applicant's administration in
Africa.”
9.
The learned judge a
quo
found that the appellant lay dormant without asserting its purported
rights for 5 years from May 2014 to June 2019. It only belatedly
filed its claim for joinder in aid of the ninth respondent after he
filed his plea. The ninth respondent Joshua Nyamhuka is the late
bishop Kennedy Nyamhuka's son who was the appellant's
acquaintance.
DISPOSAL
10.
A perusal of the parties' respective pre-trial conference memoranda
shows that this is a succession battle being fought amongst the local
membership of the church. The appellant is a total stranger with no
real and substantial interest in the dispute among Zimbabweans.
It has merely sought to dishonestly intervene in the main case to
prop up its acquaintance's son.
11.
It is surprising that counsel for the appellant had the temerity to
approach this Court on appeal in the face of such credible damning
evidence against his client. Such “Dutch” courage can only amount
to an abuse of court process.
12.
Counsel for the appellant has now asked for the reasons for judgment
to pave way for him to approach the Constitutional Court.
13.
It is for the foregoing reasons that we dismissed the appeal with
costs.
MATHONSI
JA: I
agree
CHITAKUYE
JA: I
agree
Mushonga
Mutsvairo and Associates,
the
appellant's legal practitioners
Danziger
& Partners,
the
1st
to 8th
respondents' legal practitioner
1.
2003 (2) ZLR 437 at p 442
