KUDYA
AJA: This
is an appeal against the entire judgment of the High Court dated 4
September 2019, in which the court a
quo
granted a declaratur
and consequential relief sought by the respondents against the
appellants and dismissed the application for a declaratur
sought
by the appellants against the respondents.
The
order of the court a
quo
erroneously confirmed the terms of a provisional order of the initial
urgent chamber application that had by consent of the parties been
removed from the roll of urgent chamber matters on 8 October 2018,
and enlisted on the opposed roll. The provisional order was
substituted by an “amended draft order” filed together with the
respondents' answering affidavits and heads of argument on 2
November 2018.
The
erroneous order was, with the consent of the parties, corrected by
this Court in terms of s22(1)(a) of the Supreme Court Act [Chapter
7:13]
in
Civil Appeal No. SC527/2019, which was specially lodged by the
respondents for that purpose and heard just before the present
appeal.
The
corrected order of the court a
quo,
therefore
forms the basis of the present appeal.
THE
FACTS
The
appeal concerns a church dispute between two formations for the
control and leadership of the Apostolic Faith Mission in Zimbabwe
(the AFM or the church). The appealed judgment is a consolidation of
two applications that were filed separately by the parties.
The
first application, HC9149/18, was filed by the first five respondents
against the seven hominal appellants on 4 October 2018, while the
second application, HC179/19, was filed by the first five appellants
against the second, third, sixth, seventh and eighth respondents on
10 January 2019.
In
the first application, the respondents sought the nullification of a
meeting held by the appellants on 22 September 2018, and all
subsequent acts flowing from it while in the second application the
appellants sought recognition as the duly elected office bearers of
the church and consequential relief.
The
High Court granted the first application and dismissed the second,
with costs.
The
church is a universitas
with a written constitution and consequent regulations, which
inscribe its foundational values, confession of faith, mission and
governance structures and reposes the power to sue and be sued in its
national office bearers in clauses 1.2, 1.3, 1.4 1.4. 6 (f) and
12.4.1, respectively.
The
dominant protagonists in the two applications were the second
respondent and the first appellant, respectively, who were elected
President and Deputy President of the church at the triennial
elections in April 2015. The third and fourth respondents were
elected at the same elections as General Secretary and National
Administrator.
Between
August 2015, and 15 September 2018, the Church, led by the Apostolic
Council and Workers Council, conducted a constitutional review
process (CRP) through a Constitutional Review Committee (CRC) chaired
by the fifth respondent, a co-opted member of the Apostolic Council.
The
CRP was designed to address acute electoral, financial and governance
shortcomings through the amendment of the constitution and geared to
deliver free, fair and credible church elections, strengthen
accountability and transparency and engender parity and equity in the
conditions of service of the clergy and development programs of the
church in both rural and urban areas.
The
CRP culminated in the Extraordinary General Meeting, EGM, of the
Workers Council of 10 February 2018, which resolved to hold the
triennial Provincial and Workers Council elections due on 28 April
2018, after “the Workers Council considers and if deemed fit,
passes, with or without amendment, the proposed amendments to the
Constitution of the Apostolic Faith Mission in Zimbabwe in terms of
the attached draft” at its scheduled meeting of 28 April 2018.
The
meeting of 28 April 2018, was terminated unceremoniously without
resolving the proposed resolution.
Tonderai
Mathende took the Church, the first, second and fifth respondents and
the first appellant to court under HC4756/18 and obtained an order
compelling the 2015 office bearers to reconvene and conclude the
aborted Workers Council meeting of 28 April 2018.
By
a letter dated 31 July 2018, the second respondent called for a
Workers' Council Meeting to be held on 15 September 2018 in
compliance with the court order issued under HC4756/18.
On
15 September 2018, the Workers Council met and considered the
proposed Constitutional amendments and “accepted” them subject to
the suspension of all the provisions, except for the provisions
relating to the conduct of elections in order to give other church
members an opportunity to propose further amendments to the
amendments.
The
resolution was carried by 2 021 votes, inclusive of the appellants'
votes, against 35, with no abstentions.
The
optimum number of councilors supplied by the respondents was 3 475
councilors against 2 056 provided by the appellants.
On
21 September 2018, the Apostolic Council met to consider the dates
and rules for the impending triennial elections.
The
provincial elections were to be held on 29 September and 3 October
2018, while the national elections would be on 3 November 2018.
The
first appellant told the meeting that “he would go his own way
because he did not accept the resolution that was passed by the
Workers Council on 15 September 2015”.
Whereupon
he served written notice, dated 20 September 2018, and co-signed by
all the appellants, except the fourth, on his fellow national office
bearers of the meeting of 22 September 2018.
Para
2, of the notice implored the targeted audience to:
“Please
note that this is a National Workers Council of all those councilors
who strongly feel the adoption of the DRAFT resulted in the formation
of a totally different church and is in itself a departure from the
church that they have always cherished and loved. It is, therefore, a
National Workers Council of those councilors who would like to remain
in the AFM in Zimbabwe Church which is governed by the old
constitution which the 15th
September National Workers Council attempted
to repeal.”(My
emphasis)
The
meeting of 22 September 2018, was purportedly attended by 2 056
councilors comprised of 1 562 delegates and 567 pastors from 513
assemblies with apologies from 137 assemblies.
The
attendees ignored the cease and desist call from the second
respondent.
The
meeting, inter
alia,
reviewed
and nullified the resolution of 15 September 2018, and by a total
1557 affirmative votes dismissed the serving national bearers other
than the first appellant, arrogated to themselves the power to
conduct triennial elections on 6, 13 and 20 October 2018 and incited
the members to revolt against the defrocked office bearers.
On
25 September 2018, the Apostolic Council abandoned the saved
electoral amendments because they were in complete dissonance with
the preserved governance structures of the amended constitution.
On
26 September 2018, the appellants spurned the cease and desist order
and call to return to the mainstream fold issued by the third
respondent.
They
appointed their own 26 provincial overseers and the fourth appellant
as the national administrator to whom church funds were to be
remitted.
They
also urged all church members to ignore the triennial dates set by
the apostolic council.
On
27 September 2018, appellants were suspended without pay and benefits
and subsequently charged with participating in an illegal meeting and
fomenting rebellion, disharmony, confusion, destabilization, disorder
and disturbances against the church,
forming
a splinter group and usurping the powers of the Apostolic Council and
the other office bearers in violation of clauses 1.4.2 and 1.4.6 of
the constitution.
They
snubbed the charges and notices of hearing, and were dismissed from
their official positions on 15 October 2018, with effect from their
respective dates of suspension.
They
refused to vacate church premises and surrender church assets in
their possession or under their control. They were permanently
replaced as office bearers at the national elections held by the
respondents on 3 November 2018.
The
appellants conducted parallel provincial elections on 3, 6, 7, 13 and
14 October 2018 and Worker's council elections on 20 October 2018,
where the first four appellants were elected as President,
Deputy-President, General Secretary and National Administrator.
It
was in their collective capacity as purported office bearers that
they lodged the second application.
THE
ARGUMENTS PRESENTED IN THE COURT A
QUO
The
first application
In
the first application, the respondents submitted that they were the
duly elected office bearers of the church, who had legal standing to
sue on its behalf for the vindication and protection of its assets
through a declaratur
and an interdict.
They
contended that they had satisfied the requirements for a declaratur
prescribed
in s14 of the High Court Act [Chapter
8:06]
and the common law requirements for a final interdict and were thus
entitled to such relief.
They
argued that the meeting of 22 September 2018, was ultra
vires
the constitution in that it violated the notice and quorum
requirements stipulated in clause 12.7.1 as read with 12.3, clause
13.3.1 of the regulations and clauses 12.6 and 12.9 and the financial
probity arrangements enshrined in clause 12.5 and 12.6 of the
constitution.
They
also argued that the vote of no confidence was not only alien to the
constitution but also violated the audi
alteram
rule.
Lastly,
they contended that the appointment, instead of election of office
holders in the church, was anathema to the constitution.
The
appellants took five preliminary points. These were;
(i)
that the application was not urgent;
(ii)
the respondents did not have locus
standi
to represent the church as their tenure of office as national office
bearers had expired on 28 April 2018, and had not been renewed;
(iii)
the matter was lis
pendens
in Mujokeri
v Madziyire
HC4583/18, in which judgment had been reserved;
(iv)
the application was a disguised review of the outcomes of the meeting
of 22 September 2018, which could not be sought urgently, on review,
or through a declarator; and
(v)
lastly, that there were material disputes of fact pertaining to the
quorum of the meeting of 22 September 2018, which could not be
resolved on the papers.
On
the merits, the appellants implicitly conceded that their meeting was
not convened in terms of the constitution by ascribing the call to “a
big constituency of the church which was clearly not happy with the
way the church was going about the constitutional changes”.
They,
however argued that this amorphous grouping had the power to
dis-appoint just as it had the power to appoint the respondents.
They
strongly contended that the resolution of 15 September 2018, was in
breach of the mandatory procedural requirements of the two-thirds
quorum prescribed in clause 12.6 of the constitution.
The
second application
In
the second application, the appellants, who baptized themselves as
“the Originals”, submitted that as the office bearers elected by
the church at the triennial elections of 20 October 2018, they had
the power to vindicate and protect the assets of the church from the
respondents, whom they christened “the Reform Side”, whose tenure
of office expired by the effluxion of time on 28 April 2018.
They
further submitted that the respondents by violating the amendment
clause, clause 12.6, to the constitution had by public acclamation
forfeited their claims to the leadership of the church to the
appellants.
The
respondents took two preliminary points:
(i)
They contended that the appellants had no locus
standi
to represent the church as their election to the national offices was
tainted by the illegality of the meeting of 22 September 2018, from
which they traced their authority.
(ii)
The second was that there were material disputes of fact on the
procedure, substance and effect of the meeting of 22 September 2018,
which could not be resolved on the papers.
On
the merits, the appellants contended, for the first time in argument
that, the appellants had seceded from the church on 22 September 2018
and therefore did not have
locus
standi
to
represent the church.
They
argued that the respondents sought to overhaul the constitution and
reframe the church in their own image by abandoning the confession of
faith and the fundamental doctrines of the church.
THE
DETERMINATION OF THE COURT A
QUO
The
court a
quo
criticized both parties for raising preliminary points “in such a
contentious matter.” It prefaced its decision on the preliminary
objections by remarking that:
“Both
Madziyire and Chiangwa should have realized that preliminary matters,
though permissible in terms of the rules of court, served no purpose
in such a contentious matter as the present one.
They
should have remained alive to the fact that the same required the
court to consider the merits of the case as opposed to having the
same resolved on the basis of technical issues.
Any
technical issue which is not capable of resolving the dispute of the
parties is not worth the paper on which it is written. It becomes a
time-wasting exercise which does not enhance the work of the court.
It should, therefore, be avoided as it constitutes an exercise in
futility which is of no benefit to anyone. It does not benefit the
party which raises it, let alone the party against which it is
raised.
Apart
from the issue of lis
pendens
which Chiangwa raised, I shall, therefore, deal with all the parties'
preliminary issues in the body of this judgment. They all relate to
the reasons which prompted Madziyire and Chiangwa to file their
respective applications.”
In
regards to the preliminary objections moved by the appellants in the
first application, the court a
quo
ruled that, the question of urgency was no longer a live issue, lis
pendens,
could not be sustained as the pending judgment in Mujokeri
v Madziyire
HC4583/18, had been handed down on 25 March 2019, prior to the
hearing before it, there were no material disputes of fact on the
quorum of 15 September 2018, and the use of a declarator rather than
a review in the circumstances of the application was proper, as a
nullity could not be reviewed. And lastly, that as the respondents
were the only office bearers of the church at the time the
proceedings were instituted, they had the requisite locus
standi
to
do so.
On
the merits, the court a
quo,
found that on a proper application of the operative constitution of
the church, the respondents had established their case on a balance
of probabilities and granted them the relief set out in the amended
draft order filed on 2 November 2018, as corrected by this Court.
It
specifically found that they were the office bearers of the church
vested with the power to call for, hold and preside over the Workers
Council meetings.
It
also held that although the triennial anniversary date had passed on
28 April 2018, clause 13.3.1 of the constitution as read with clause
13.1.1 of the regulations, preserved their term of office until the
holding of triennial elections in the calendar year in which the
triennial year fell. And in the alternative that, the common law
extended their appointment beyond the triennial anniversary date to
the date of the investiture of their elected successors.
It
thus found that the respondents had proved that the conduct of the
appellants on 22 September 2018 had been motivated by selfish
ambition to “illegally snatch power within the church through a
coup” and “split the church in their quest for power” and not
over any constitutional reform dispute, which reforms they voted in
favour of.
It
further determined that the meeting of 22 September 2018, suffered
from fatal and incurable extrinsic and intrinsic irregularities that
were in violation of the constitution, which rendered the meeting
void ab
initio.
Lastly,
it held that any outcomes that flowed from that meeting were also
void and of no force or effect.
On
the preliminary issues raised by the respondents in the second
application, the court a
quo
ruled that there were no material disputes of fact, which could not
be resolved on the averments on quorum on the papers of the
appellants in respect of the meeting of 22 September 2018. It upheld
the respondents' objection on locus
standi.
It found that the meeting violated the constitution of the church.
Further that, as the Workers Council elections held by the appellants
on 20 October 2018, were premised on the meeting of 22 September
2018, they were tainted by these violations. It found both the
meeting and the elections invalid and of no force or effect.
On
the merits, it held that the appellants bore the onus of establishing
on a balance of probabilities that the respondents had seceded from
the mainstream church and formed a new church by abandoning the
church constitution and adopting the proposed amendments to that
constitution.
It
found that the appellants had not placed any evidence capable of
discharging the onus.
They
had not filed the proposed amendments nor particularized the clauses
in the accepted but suspended constitution that violated the
operative constitution.
Rather,
they had produced and relied on the same constitution as the
respondents.
The
court dismissed the appellants' contention that at the time the
meeting of 15 September 2018, was held, the respondent's tenure of
office had expired on two grounds.
(i)
The first, was that clause 13.3.1 of the constitution as read with
clause 13.3 of the regulations allowed the office bearers to continue
in office beyond the triennial anniversary of their election to any
date within the calendar year of such anniversary.
(ii)
The second was that the common law abhorred a vacuum and thus allowed
office bearers of a universitas
to continue in office until elections were held to replace them.
It
was on the basis of these findings that the court a
quo
granted the first application and dismissed the second application
with costs.
THE
GROUNDS OF APPEAL
The
five grounds of appeal raised by the appellants were framed as
follows:
“1.
The High Court erred in failing to find that the adoption of a new
constitution by the second to eighth respondents and their followers
on 15 September 2018, was unprocedural and not in accordance with the
provisions of the Constitution of the fifth appellant.
2.
The High Court consequently erred in failing to find that the second
to eighth respondents and their followers seceded from the church of
the fifth appellant as from 15 September 2018 and therefore had not
locus
standi
to
challenge the proceedings of the fifth appellant's church
subsequent to that date.
3.
The High Court further erred in finding that the appellants had no
locus
standi
to
institute the proceedings in case number HC179/19 and having so found
in going ahead to determine the merits of that application.
4.
The High Court further grossly erred in finding that the new
Constitution adopted by the second to eighth respondents was not a
renunciation of the fifth appellant's Constitution when the said
constitution was not placed before the court by the respondents who
had the onus to place it before the court.
5.
The High Court further erred in finding that the appellants could not
seek consequential relief upon the grant of a declarator unless it
was combined with an interdict or a claim for a vindicatory relief.”
ISSUES
FOR DETERMINATION ON APPEAL
The
cumulative import of the first four grounds of appeal was that the
court a
quo grossly
misdirected itself in finding that the respondents and not the
appellants were the proper office bearers of the church imbued with
the requisite legal standing to act on its behalf.
The
last ground of appeal interrogates the correctness of the observation
of the court a
quo
that the declarator sought by the appellants was fatally defective
for want of vindicatory consequential relief.
The
two issues for determination on appeal that arise from all the
grounds are:
1.
Whether the court a
quo
was correct in finding that the respondents and not the appellants
were the recognized office bearers of the church, who had locus
standi
to act on its behalf.
2.
Whether the declarator sought by the appellants was not conjoined
with consequential relief and therefore fatally defective.
SUBMISSIONS
IN THIS COURT
In
this Court, Mr Magwaliba,
for
the appellants
submitted
that the respondents did not have locus
standi
to institute or defend legal proceedings on behalf of the church
because they seceded from the church on 15 September 2018.
He
contended that the adoption of the constitutional amendments by the
Workers Council on 15 September 2018, constituted the act of
secession in two respects:
The
main one was that the adoption was in breach of the peremptory notice
and quorum requirements prescribed in clause 12.6 of the
constitution. And the alternative was that the very adoption of the
amendments whose content was materially at variance with the content
of the amended constitution constituted a renunciation of the
original constitution, and was therefore an act of secession.
He
also contended that the duty to place the constitutional amendments
before the court a
quo,
which would have established secession, lay on the respondents.
He
argued that the effect of the act of secession was that the
respondents ceased to be office bearers of the church and
concomitantly lost the right to represent the church in any legal
proceedings lodged after that date.
He
further contended that it was remiss of the court a
quo
to further determine the second application on the merits once it had
decided the issue of locus
standi
against the appellants.
Lastly,
he contended that the finding of the court a
quo
that the relief sought in the second application was fatally
defective for failing to conjoin the declarator with an interdict cum
vindication was incorrect.
Mr
Girach,
for the respondents, submitted that the secession argument could not
be properly raised in the court a
quo
or
in this Court because it had not been pleaded by the appellants in
their opposing affidavits in the first application and founding
affidavits in the second application.
He
contended that the appellants' case in both claims was based on the
purported illegal stay in office subsequent to 28 April 2018.
In
the alternative, he argued that the resolution accepting and
immediately suspending the constitutional amendments other than those
relating to elections did not constitute secession.
He
contended that the respondents remained the only office bearers of
the church imbued with the power to represent it in all legal
proceedings launched by or against the church.
In
reply, Mr Magwaliba
argued that the oblique reference to the negation of the
“foundational and fundamental doctrines of the AFM in Zimbabwe and
of the AFM International” in the appellants' memorandum of 24
September 2018, and the averments in para 46 to 49 of the appellants'
founding affidavits sufficed to found secession as a cause of action.
THE
LAW
The
law concerning universitas
and the power of the courts to interfere in their affairs is
reproduced in Bamford's The
Law of Partnerships and Voluntary Associations in South Africa
3rd
ed at p849 and restated in various cases such as Dynamos
Football Club (Pvt) Ltd & Anor v ZIFA & Ors
2006
(1) ZLR 346 (S) 355G and 356A, Independent
African Church v Maheya
1998
(1) ZLR 552 (H) at 556E and Independent
African Church v Maheya
2000
(1) ZLR 39 (H). It is that courts generally construe the articles of
association or constitution of voluntary associations' strictly.
Thus, any conduct, which falls outside the strict requirements of the
constitution of a universitas
would generally be adjudged to be invalid.
This
is because the articles constitute the primary documents in which the
nature, manner and scope of voluntary associations are reposed. It is
also from these articles that voluntary associations derive universal
recognition by the courts.
Another
established principle of our law is that an applicant's cause
stands or falls on his founding affidavit and not in an answering
affidavit while the defence of a respondent stands or falls on his
opposing affidavit. See Steinberg
v Cosmopolitan National Bank of Chicago
1973
(4) SA 564 (RA) at 575G; Austerlands
(Pvt) Ltd v Trade and Investment Bank Ltd & Ors
SC 2006 (1) ZLR 372 (S) at 378D-E; Moyo
v Zvoma SC28/10;
Bonnyview
Estates (Pvt) Ltd v Zimbabwe Platinum Mines (Pvt) Ltd
SC15/18; and Pountas'
Trustee v Lahamas
1924 WLD 67 at 6.
The
principles on which secession is based are well settled in this
country. They are crystallized in the case of The
Church of the Province of Central Africa v Diocesan Trustees, Harare
Diocese
2012 (2) ZLR 392 (S).
In
that case at 415B and in Sibanda
& Ors v The Apostolic Mission of Port Oregon (Southern African
Headquarters)
SC49/18 at p11, secession was equated to schism and unilateral
declaration of independence and was authoritatively defined as “the
separation of a Church into two Churches or the secession of a group
owing to doctrinal, disciplinary differences”.
Again,
the common law principle governing the expiration of fixed tenure of
office bearers was settled in the cases of Padayiche
v Pavadai NO & Anor 1994
(1) SA 662 (W) at 672G and
Exparte
United Party Club
1930
WLD 277 at 281.
It
is that the tenure of office of elected office bearers is not
terminated by the effluxion of time but by subsequent elections that
are held for new office bearers.
APPLICATION
OF THE LAW TO THE FACTS
Whether
the court a
quo
was correct in finding that the respondents and not the appellants
were the recognized office bearers of the church, who had locus
standi
to act on its behalf
The
appellants nailed their colours on the secession argument.
In
so doing, the appellants lost the opportunity to attack the bases
upon which the court a
quo
held that the respondents and not the appellants were the proper
office bearers of the church who had the legal standing to represent
it in legal proceedings.
The
case pleaded by the appellants in the second application was
predicated on the expiration of the triennial tenure of the
respondents on 28 April 2018. This was expressly stated in paras 17
to 19 of the appellants' main founding affidavit deposed to by the
first appellant.
That
was why the court a
quo
relied on clause 13.3.1 of the constitution as read with clause 13.3
of the regulations and the common law principle stated in the
Padayiche
case and
Ex
parte United Party Club
case
for its decision.
The
secession argument was raised by the appellants for the first time in
their supplementary heads of argument filed a
quo
some two months after the respondents had filed their own heads.
The
supplementary heads were not based on the pleadings before the court
a
quo.
The
failure to plead secession hamstrung the appellant's case in that
they failed to particularize the changes rendered to the
constitution, which overhauled rather than amended the constitution,
was the basis for the finding a
quo
that the appellants had failed to discharge the onus on them to
establish secession.
It
is for these reasons that I agree with the submission made by Mr
Girach
in this Court that the appellants could not properly premise their
grounds of appeal on a cause of action, which they did not plead a
quo.
The
correctness of the submission is borne out by the well-established
principle of our law that a case stands or falls on its founding
affidavit. It does not stand on the answering affidavit or in
correspondence exchanged between the parties before the institution
of litigation.
Thus,
the contention by Mr Magwaliba
that the oblique reference to the breach of “foundational and
fundamental doctrines of the AFM in Zimbabwe and of the AFM
International” in the appellants' memorandum of 24 September
2018, coupled with the averments made in paras 46 to 49 of the
appellants' founding affidavit sufficed to found secession as a
cause of action is incorrect.
The
letter addressed to the respondents on 24 September 2018, is not a
pleading. The contents of that letter were not pleaded in the
appellants' founding affidavits and they do not, standing on their
own, constitute pleadings.
Paras
46 to 49 of the appellants' founding affidavit merely summarized
the schism that existed in the church in the aftermath of the
unconstitutional meeting held by appellants on 22 September 2018, and
constituted the concluding remarks of the cause of action raised in
paras 17 to 19 of the same affidavit. These paras do not plead
secession to be a derivative
of
the meeting of 15 September 2018.
The
submissions made by Mr Girach
in this respect have merit and must be upheld.
The
import of this finding is that the appeal should really be dismissed
at this stage.
I,
however, proceed to deal with the appeal in the further respects that
were argued for the sake of completeness.
Mr
Magwaliba
contended that the failure to strictly abide by the requirements of
clause 12.6 of the constitution invalidated the meeting of 15
September 2018, and the outcomes that flowed from it.
Per
contra
Mr
Girach
argued that that meeting together with its outcomes was valid.
In
terms of clause 12.9.1 of the constitution the quorum
required for a valid meeting for the despatch of a constitutional
amendment is a simple majority of the full complement of the Workers
Council.
Whether
reliance is placed on the 3475 total membership figure provided by
the respondents or 2056 figure supplied by the appellants, the quorum
was achieved by the recorded total number of 2056 councilors in
attendance on 15 September 2018.
Clause
12.6 of the constitution provides that:
“To
amend this Constitution written notice shall be given to the General
Secretary by Provincial Workers Council, the Apostolic Council, at
least six months before the next Workers' Council meeting. In the
said notice, details must be given of the proposed amendment. Such
notice shall then be forwarded to all Provincial Workers Councils in
preparation for the next Workers Council Meeting. A two-thirds
majority of the Workers' Council shall decide whether the
Constitution should be amended or not.”
The
cumulative and conjunctive requirements to pass a valid
constitutional amendment are that:
1.
Six months written notice from either the Provincial Workers Council
or the Apostolic Council or both be given to the General Secretary
before the Workers Council meeting at which the amendments are to be
considered;
2.
The details of the proposed amendments must accompany the notice;
3.
The notice and the detailed amendments must be sent to all Provincial
Workers Councils before that Council meeting;
4.
The quorum for passing the amendment is a two-thirds majority of the
optimum membership of the Workers Council.
Mr
Magwaliba
correctly contended that clause 12.4.1 and 12.3.1 of the constitution
enjoins the Workers Council and the Apostolic Council and the office
bearers, acting of their own accord, to strictly abide by the letter
and spirit of the constitution. He also correctly contended that the
courts are enjoined by case law, such as in the Dynamos
matter, supra,
to generally construe the constitutions of universitas
like the church strictly.
The
meeting of 15 September 2015 was, however, convened on a month's
and not six months' notice.
The
notice emanated from the President and General Secretary and not the
Workers Council or Apostolic Council. However, the notice together
with the proposed amendments were dispatched to the Provincial
Councils for the next Workers Council meeting by the General
Secretary.
The
parties were at variance on whether the resolution of that day was
passed by the two-thirds quorum prescribed in clause 12.6.
The
second and third respondents did not convene that meeting of their
own accord. They did so in obedience to a judicial command emanating
from the unopposed Mathende application.
They
were commanded to convene the Workers Council meeting on 30 days'
notice to the members of the Workers Council. The 30 days were to be
calculated to commence within 7 days of the service of the order on
the last of the respondents cited in that order.
The
onus to establish, on a balance of probabilities, the date on which
the last of the respondents in HC4756/18 was served with the court
order was on the appellants.
They
did not adduce any evidence to that effect in their papers.
In
the absence of that evidence, the argument by Mr Magwaliba
that 15 September 2018, fell outside the outer limits of the court
order is unsustainable.
It
seems to me that the failure of the respondents to abide by the
constitutional time frame would not affect the constitutional
validity of the meeting for the reason that the time limits for
convening the meeting of 15 September 2018, were prescribed by a duly
constituted court of law. It is trite that extant court orders must
be obeyed.
This
principle was affirmed by this Court in Econet
Wireless (Pvt) Ltd v Minister of the Public Service, Labour and
Social Welfare & Ors
SC31/16
at p 6, where BHUNU JA aptly remarked that:
“The
doctrine of obedience of the law until its lawful invalidation was
graphically put across by Lord Radcliffe in
Smith
v East Elloe Rural district Council
[1956] AC 736 at 769 when he observed that:
'An
order, even if not made in good faith, is still an act capable of
legal consequences. It bears no brand of illegality on its forehead.
Unless the necessary procedures are taken at law to establish the
cause of invalidity and to get it quashed or otherwise upset, it will
remain as effective for its ostensible purpose as the most impeccable
of orders.'
If
it were not so, and every litigant challenging the validity of any
law was excused from obeying the law pending determination of its
validity, there would be absolute chaos and confusion rendering the
application of the rule of law virtually impossible. This is because
anyone could challenge the validity of any law just to throw spanners
into the works to defeat or evade compliance with the law.”
To
the same effect is Hodkinson
v Hodkinson
(1952) 2 ALL ER 567 (CA) at 569C:
“It
is the plain and unqualified obligation of every person against, or
in respect of whom, an order is made by a court of competent
jurisdiction to obey it unless and until that order is discharged.
The uncompromising nature of this obligation is shown by the fact
that it even extends to cases where the person affected believes it
to be irregular or even void.”
That
order was extant on the date of the meeting.
It,
therefore, conferred the imprimatur
of validity to the meeting, notwithstanding that it was not in
accordance with the constitutionally stipulated six month notice
period and that the notice did not come from the constitutionally
mandated source.
It
is clear to me that the first three requirements prescribed by clause
12.6 were met.
The
only issue that has exercised my mind was whether the two-thirds
threshold of the optimum membership of the Workers Council was met.
If
the full membership was the tally sheet figure of 3475 supplied by
the respondents, then the 2021 councilors who passed the proposed
amendments would have been short by 296 of the 2317 members required
to pass the resolution.
My
burden was removed by the finding of the court a
quo
on this aspect.
It
accepted
the figure of 2056 councilors furnished by the appellants as the
established optimum number of the Workers Council.
That
finding was not appealed.
The
effect of this finding is that the proposed amendments were passed by
98 per cent of the total Workers Council membership, which figure
exceeded the minimum 67 per cent constitutional threshold.
Consequently,
the resolution of 15 September 2018, met all the procedural
requirements prescribed in Clause 12.6.
The
alternative contention on secession submitted by Mr Magwaliba
is unsustainable.
The
import of the submission is to deny the Church the constitutional
power to reframe itself in tandem with evolving contemporary
religious developments and thought, which would impact on its shared
fundamental religious doctrines and principles.
The
constitution of any organisation is a living document, which must
evolve and be amenable to necessary periodic reviews to remain
relevant to its vision, mission and core values.
The
church is no exception. It cannot remain trapped in a time warp of a
bygone era.
In
casu,
there were no entrenched or pillar clauses in the church constitution
which precluded the Workers Council from amending the Constitution.
Rather,
the constitution contemplated its own amendment, including the
clauses relating to the church's confession of faith,
ecclesiastical doctrines, governance, worship and discipline.
All
that was required of the Workers Council was to follow the
requirements of Clause 12.6 and the prescribed consultative
processes.
It
did so subject to the intervening order of court that had to be
obeyed in accordance with the doctrine of obedience to the law; an
aspect the rule of law.
In
any event a reading of the Church
for the Province of Central Africa case, supra,
at p407E suggests that the passing of an invalid resolution does not
constitute a renunciation of the fundamental doctrines of the church
but merely makes the resolution void ab
initio.
I
am unable to find that, by passing an invalid resolution, the Workers
Council evinced an intention to secede from the Church.
A
void ab
initio
resolution would be of no force or effect. It would have preserved
the subsisting status quo
ante,
thus guaranteeing the continued validity of the subsisting
constitution and tenure of the elected office bearers.
The
alternative submission predicating secession on the content of the
constitutional amendments would, therefore, be dismissed for lack of
merit.
There
is a further basis for dismissing the secession argument.
It
is that the appellants were aware, before their meeting of 22
September 2018 that the resolution had suffered a still birth at
inception and would not be applied to the impending triennial
elections. The awareness is shown by the following factors.
(i)
Firstly, the appellants characterized the resolution in the notice of
meeting of 20 September 2018, as an “attempt to repeal” the
constitution.
(ii)
Secondly, they boasted in their memorandum of 26 September 2018 that
their unsanctioned meeting had prompted the Apostolic Council to
abandon the electoral amendments.
(iii)
Lastly, they declined to return to the mainstream fold when entreated
to do so on 26 September 2018.
There
was therefore no secession by the respondents emanating from the
adoption of the resolution at the time the appellants held the
meeting of 22 September 2018, conducted their own triennial elections
in September and October 2018 and lodged the second application in
January 2019.
The
further contention by Mr Magwaliba
that the appellants were prevented from particularizing the
decimation of the subsisting constitution by the respondents'
failure to attach the constitutional amendments to their pleadings a
quo,
is clearly disingenuous.
This
contention, which relates to the fourth ground of appeal, seeks to
place the onus of placing the amendments on the respondents.
In
so doing, the appellants overlooked the trite principle of our law
that he who alleges must prove.
This
point was emphatically restated by this Court in Zimbabwe
United Passenger Company Limited v Packhorse Services (Pvt) Ltd
SC13/2017
at 11 as follows:
“The
cardinal rule on onus
is that a person who claims something from another in a Court of law
has to satisfy the Court that he is entitled to it. See Pillay
v Krishna,
1946 AD 946 at 952–953. It also settled that he who alleges must
prove. See MB
Investments (Pvt) Ltd v Oliver & Partners,
1974 (3) SA 269 (RA).”
See
also Goliath
v Member of the Executive Council for the Eastern Cape
[2014] ZASCA 182 at p8.
It
is trite that the existence of secession is a question of fact.
The
appellants bore the onus
to
establish secession by producing the proposed constitutional
amendments.
They
disingenuously claimed that the amendments were hidden from them by
the respondents when it was common cause that both hard and soft
copies of the documents had been dispatched to all structures on 18
February 2018 and 31 July 2018.
It
is clear that the appellants did not attach the proposed amendments
to their own pleadings because they were not necessary to establish
the case they pleaded in the second application.
This
last point on secession is also unmeritorious.
The
appellants' failed to establish the jurisdictional facts upon which
they sought to predicate the secessionist argument.
Accordingly,
the first four grounds of appeal must fail.
In
the premises, the respondents wielded the power to institute legal
proceedings for and on behalf of the church and were entitled to the
declaratory order and consequential relief sought, which were
designed to protect the assets of the church from the interlopers in
the parallel formation.
They
properly exercised that power and obtained judgment in their favour
in the court a quo, which judgment correctly declared the appellants
meeting of 22 September 2018 and all its subsequent outcomes invalid.
It
is trite that all outcomes flowing from an invalid act are also
invalid. See Osman
v Jhavary & Ors
1939
AD at 361 and Muchakata
v Netherburn Mine
1996
(1) ZLR 153 (S) at 1578BC.
The
meeting of 22 September 2018 was the genesis of the appellants'
secession from the mainstream church which had matured by the time
they held their own parallel elections in October 2018 and filed the
second application in January 2019.
The
finding a
quo
that it was the appellants who seceded is therefore unassailable.
I
uphold the finding a
quo
that election year referred in clause 12.9.1 of the constitution as
read with 13.3.1 of the regulations correlated to the 2018 calendar
year in which the triennial cycle fell.
Again
the Padayiche
and Ex
parte United Party Club,
cases,
supra,
are authority for the proposition that office bearers continue to
hold office even beyond their prescribed time until replaced by
election.
The
finding of the court a
quo
to the same effect is unassailable.
The
finding that the meeting of 22 September 2018, was a nullity,
undermines the basis upon which the second application was conceived.
It
was premised upon the legitimacy of the 20 October 2018, elections,
which in turn derived efficacy from the invalid meeting of 22
September 2018. The appellants brought this application as office
bearers of the Church, which they were not. They, therefore lacked
the legal capacity to do so.
The
court a
quo
correctly held that they did not have the locus
standi
to institute proceedings on behalf of the Church.
It
is correct that the court a
quo
then proceeded to deal with other ancillary issues.
The
issue of locus
standi
had been raised by both parties as a preliminary issue in their
respective applications.
The
finding that the respondents had locus
standi
while the appellants did not adequately resolved the dispute between
the parties. It was not necessary for the court a
quo
to delve into the other issues.
Whether
the declarator sought by the appellants was not conjoined with
consequential relief and therefore fatally defective
It
is correct that the court a
quo
erroneously remarked at the tail end of its judgment, on page 26,
that it was incompetent to seek consequential relief in an
application for a declarator that was not conjoined with an
“interdict cum
vindication”.
In
contrast, at page 7 of the judgment the court stated that:
“They
allege that the respondents adopted a new constitution for
themselves, and in the process have broken away from the church to
form their own church which is separate and different from the Old
AFM church. They
move me to interdict them from using the name,
accessing
the assets of the church without their authority.”
(My underlining for emphasis)
The
relief sought by the appellants a
quo
was worded as follows:
“IT
IS ORDERED THAT:
1.
The application for a declaratory order be and is hereby granted.
2.
The 1st
to 4th
applicants be and are hereby declared to be the duly and properly
elected officials of the fifth applicant.
3.
The respondents are hereby barred from using the name of the fifth
applicant in the conduct of their activities without the
authorisation of the applicants.
4.
The respondents are hereby barred from accessing or using any assets
or property of any kind belonging to the fifth applicant.
5.
The respondents and their followers or agents or assignees be and are
hereby directed
to
relinquish
to the fifth applicant all and any property belonging to fifth
applicant that is in possession or under control of the respondents.
6.
Failure of 5 above, the Sheriff of Zimbabwe or his lawful deputy be
and is hereby authorised
to take all and any property and assets belonging to fifth applicant
from the
control
and possession of the respondents and handover same to the
applicants.
7.
The respondents shall pay applicant's costs of suit.” (My
underlining for emphasis)
I
agree with Mr Magwaliba
that the appellants did seek a declarator conjoined with prohibitory
interdicts in para 3 to 4 and vindication in para 5 and 6.
The
finding of the court a
quo,
though obiter,
was therefore incorrect. It, however, did not constitute the
rationale on which it based its judgment.
The
ratio
decidendi
was that the appellants did not have the requisite locus
standi
to institute HC179/19 because they were not office bearers of the
Church.
This
how the court a
quo
expressed itself on the question of locus
standi
at p.22 of the judgment:
“The
question which begs the answer is did Chiangwa act in terms of the
constitution and its regulations when he convened the meetings of 22
September
2018?
The
answer to the same is in the negative.
The
second question which flows from the first and its answer is was the
meeting of 22 September 2018 which was called in violation of the
constitution valid?
The
answer is in the negative.
The
third and final question is does any act which resulted from the
invalid meeting carry any semblance of validity?
The
answer is, once again, in the negative.
On
the strength of the above mentioned three questions and their
respective answers, therefore, it cannot be said that Chiangwa has
any locus
standi
to apply as he did under HC179/19.
His
conduct which emanated from the meeting of 22 September 2018 is a
complete nullity. All the activities which he undertook on the basis
of that meeting were a nullity.
Madziyire,
and not Chiangwa, has locus
standi
to
sue as he did. He has substantial interest in the affairs of the
Church. Chiangwa does not have such.”
It
must have been apparent to the appellants that the remarks upon which
the fifth ground of appeal is founded were obiter.
It is improper to note an appeal against such remarks.
This
Court pronounced itself on the issue in Muza
v Saruchera & Ors
SC45/18 thus:
“The
appellant erred in noting an appeal against findings that were made
by way of orbiter
remarks. His error is however understandable in that he is a
self-actor who could not discern between the ratio of a judgment and
the other findings of the court a
quo
by way of obiter.”
The
impugned remarks were, therefore, inconsequential to the decision
made by the court a
quo.
The
fifth ground, though substantively correct, is devoid of procedural
merit and must be struck out.
General
comments
Mr
Magwaliba
criticized the court a
quo
for using the merits to determine the preliminary points.
Mr
Girach
conceded
that such an approach was “inelegant but not blatantly wrong.”
The
approach of the court a
quo
was colored by its misunderstanding of the sentiments made, inter
alia,
in Telecel
Zimbabwe (Pvt) Ltd v Postal and Telecommunications Regulatory
Authority of Zimbabwe & Ors
HH446/15 at p7, which deplored the futility of raising unsustainable
preliminary points in a bid to avoid decision on the merits.
That
case did not advocate the procedure adopted by the court a
quo.
It
ought to have determined the matter without delving into the merits
by assessing the admitted conduct of the parties against the
provisions of the constitution.
It
is significant, however, that in the end justice was properly served.
Costs
The
respondents sought the dismissal of the appeal with costs on the
ordinary scale. They have substantially succeeded on appeal. There is
no reason to depart from the general rule that costs follow the
cause.
Disposition
The
appellants did not have locus
standi
to launch the second application because their claim to office was
anchored on their initial meeting of 22 September 2018, which was
void ab
initio
and
of no force or effect.The
respondents, however, as the elected office bearers of the Church had
the locus
standi
to bring the first application.
The
findings of the court a
quo
in these respects were correct and are upheld in this appeal.
In
regards to the second issue, the obiter
dictum
of the court a
quo
that the appellants did not conjoin the main relief that they sought
in the second application with the consequential relief of an
“interdict cum
vindication” was incorrect.
However,
as the fifth ground of appeal, which related to this issue was
improperly conceived, it is struck out.
Accordingly,
it is ordered that:
1.
The fifth ground of appeal be and is hereby struck out.
2.
The appeal be and is hereby dismissed in its entirety with costs.
MAVANGIRA
JA:
I agree
MAKONI
JA: I
agree
G.S.
Motsi Law Chambers,
appellants legal practitioners
Mtetwa
& Nyambirai,
respondents legal practitioners
