Urgent
Chamber Application
MUREMBA
J:
Following
a leadership dispute in the African Apostolic Church (VaApostora
VeAfrica) which is the tenth respondent in this matter, the applicant
approached this court by way of a court application in case number
HC2402/20 for a relief.
He
petitioned the court in his capacity as an interested party, reverend
and church member for a declaratur to set aside the purported
appointment of the first respondent, Alfred Kushamisa Mwazha as the
successor to the founder and Archbishop of the church, Paul Ernest
Mamvuru Mwazha (Paul Mwazha) now a centurion at 102 years.
The
first respondent together with the second, third and fourth
respondents are sons of Paul Mwazha.
Whilst
the first and fourth respondents are bishops in the church, the
second respondent is a former member and bishop of the church.
The
third respondent is a Seventh Day Adventist.
The
rest of the respondents from the fifth to the ninth respondent hold
high ranking positions in the church, the tenth respondent.
I
must particularly mention that the fifth respondent is the General
Secretary of the church.
There
is a point in limine that was raised by the applicant in the present
urgent chamber application that relates to him that I will deal with
later on in the judgment.
In
HC2402/20 it was the applicant's contention that the first
respondent usurped power by seeking to ascend to the position of
Archbishop and leader of the tenth respondent unconstitutionally,
contrary to the provisions of the tenth respondent's constitution.
He
contended that the first respondent acted in connivance with the
second to ninth respondent in usurping power.
The
applicant contended that the first respondent was purporting to have
been appointed by the Archbishop as his successor.
Although
the respondents opposed the application, CHITAPI J made a finding
that the note the respondents were relying upon did not support their
claim that the Archbishop nominated or appointed the first respondent
as successor. He granted the following order on 3 December 2020:
“1
The purported nomination and/or appointment of the first respondent
as the Archbishop or successor to the Archbishop of the tenth
respondent presently Ernest Paul Mamvura Mwazha is unconstitutional
vis–a-vis the 10th respondent's constitution and resultantly is
null and void.
2.
Any appointments and reassignments of personnel made by the 1st
respondent and other actions which changed the administration of the
church made by the 1st respondent in the purported position of
Archbishop are null and void.
3.
The respondents are each and all of them ordered to comply with the
provisions of clause 9.2.2 of the 10th respondent's constitution in
regard to the succession dispute bedeviling the 10th respondent. The
respondents must comply with this order within seven (7) days of the
date of this order.
4.
The 1st to 9th respondents jointly and severally, the one paying the
other to be absolved shall pay costs of this application on a party
and party scale”.
Dissatisfied
or aggrieved by the judgment of this court, the respondents noted an
appeal under SC552/2020 on 11 December 2020.
In
turn the applicant on 17 December 2020 filed the present urgent
chamber application for leave to execute pending appeal.
It
is the applicant's contention that since noting the appeal, the
first to ninth respondent have been harassing him and other members
of the church. They have been violently disrupting church services
together with their followers. They have taken over the church
structures and have been influencing their followers to disrupt
church gatherings and places of worship.
He
then referred to some specific incidents which I will refer to later
on in the judgment.
The
applicant averred that he wants peace and tranquillity.
In
response to the application the respondents raised 2 points in
limine.
But
before I deal with them, I will first deal with the point limine
raised by the applicant in response to the respondents notice of
opposition. It was to the effect that the tenth respondent is not
before the court because:
(i)
Firstly, the deponent to its opposing affidavit, Benjamin Takura is
not in the hierarchy of the people who can represent it.
(ii)
Secondly, the fifth respondent, Richard Juru who signed the
resolution authorising the deponent to represent the church has no
such powers.
Richard
Juru is the General Secretary of tenth respondent.
Mrs
Mabwe submitted that the tenth respondent can only be represented by
members of the Board of Trustees in terms of Clause 9.6.2 of its
Constitution and Benjamin Takura is not a member.
I
will dismiss this point in limine because as was correctly submitted
by Mr Ochieng, clause 9.6.2 only says who the trustees of the board
are. It reads:
“Regular
members of the Board of Trustees shall be Archbishop Ernest Paul
Mwazha, Priesthood Council, Chairman of BoT & vice Chairman,
General Secretary of BoT & vice, Finance Chairman & vice,
Publicity Chairman & vice, Transport Chairman & vice and
other appointed BoT Bishops co-opted by the Archbishop. The Board mat
at any time appoint any individuals to sit in meetings to advise or
perform projects related to any existing needs.”
The
clause does not speak to what Mrs Mabwe submitted.
Even
the preceding clause, clause 9.6.1 (although she did not refer to it)
does not speak to that. It reads:
“The
Board of Trustees (BoT) shall serve the church by leading in
planning, coordinating, conducting, and evaluating the ministries and
programs of the church. The primary functions of the Board of
Trustees shall be to recommend to the church suggested objectives and
church goals, to review and coordinate ministry and programs
recommended by church officers, organisations, and committees, to
recommend to the church the use of leadership, calendar time, and
other resources according to program priorities, and to evaluate
achievements in terms of church objectives and goals.”
Clause
9.6. is the clause which deals with the issue of the Board of
Trustees. It is made up of clauses 9.6.1 and 9.6.2 only. And I have
already quoted both of them above.
Nowhere
in those clauses is it mentioned that legal action shall be taken or
defended in the name of the church by the Board of Trustees as the
applicant averred.
So,
the submission by Mrs Mabwe that the resolution authorising Benjamin
Takura to depose to the affidavit on behalf of the tenth respondent
cannot save him has no foundation.
Mrs
Mabwe did not demonstrate that the General Secretary, Richard Juru
who also happens to be the fifth respondent in the present
application has no powers to authorise a member of the church to
institute and defend proceedings on behalf of the church.
She
needed to cite the relevant provision of the constitution which deals
with who represents the church in bringing and defending legal
action.
At
law, he who alleges must prove.
The
applicant did not prove his allegation. This point in limine is thus
dismissed.
I
now revert to the points in limine raised by the respondents. As I
have already stated elsewhere above, the respondents raised 2 points
in limine:
(i)
Firstly, that the matter is not urgent.
(ii)
Secondly, that the relief sought is not the remedy for the injury
alleged. In addition to that, the interim relief and the final relief
that are being sought are identical.
Urgency
The
respondents averred that the matter should not be treated as urgent
because the applicant is seeking leave to execute an order that was
granted in an ordinary application on an urgent basis.
They
averred that although the face of the judgment speaks of an urgent
application, the matter was brought as an ordinary court application
which shows that the applicant himself accepted that the matter was
not urgent at the time that he filed it.
The
applicant did not dispute that the matter was brought as an ordinary
application and not as an urgent application.
The
respondents averred that the certificate of urgency does not
demonstrate the urgency of the matter save to make bald allegations
of urgency. They averred that the applicant did not in the founding
affidavit, demonstrate how and when the urgency arose. The
respondents averred that more importantly, no evidence was placed
before the court to show that there was violence and what the form of
violence was. They contended that it seems that the applicant is bent
on having an application for leave to execute on an urgent basis when
there is no such urgency.
In
the certificate of urgency, it is stated that the respondents filed
the appeal with the aim of abusing, victimising, and harassing
members of the church.
The
applicant and over a hundred thousand members of the church have been
suffering the brunt of the respondent's continuous violence and
illegal actions and there is nowhere to run.
It
was further averred that the applicant acted with urgency.
The
notice of appeal was filed on 11 December 2020 and the said
infractions had happened during the course of the previous week.
There is imminent danger to the applicant's rights, most
importantly the right to gather, freedom of assembly and freedom of
conscience. If the respondents are allowed to persist with their
unlawful conduct it will lead to further violence, injury and
destruction of property.
In
the founding affidavit the applicant averred that the first to ninth
respondent have been waging a war against church members.
They
have been using groups of supporters to ferment violent habits,
disrupt church services and alienate church property. The places of
worship have been turned into places of conflict. Vulnerable members
such as orphans, widows, the aged, and children are now unable to
attend church services because of the violence. Their rights to
freedom of assembly, association and conscience as enshrined in
sections 58 and 60 of the Constitution of Zimbabwe, Act 2013 need to
be protected and preserved pending appeal.
The
applicant contended that there is danger of irreparable prejudice to
him and hundreds of thousands of other church members in several
countries and the ill Archbishop.
The
applicant averred that he acted at the earliest opportunity in
bringing this application.
Mrs
Mabwe submitted that the applicant did not waste time in protecting
his rights because the disruption of churches happened from 4
December 2020 up to 10 December 2020. The notice of appeal was filed
on 11 December 2020 and the violence continued up to 14 December
2020. The application was then filed on 17 December 2020.
She
further submitted that by noting the appeal the respondents wanted to
disobey the court order as it is frivolous and vexatious.
I
find merit in the objection by the respondents.
The
certificate of urgency and the founding affidavit do not inform why
the application for leave to execute has to be heard on an urgent
basis given that the main matter giving rise to this application was
brought and heard as an ordinary application.
The
judgment thereof by CHITAPI J shows that the hearing started on 31
July 2020 and the judgment was handed down on 3 December 2020. In
between the two dates the matter was heard on 5 August and 14 August
2020.
The
question that comes to mind is how then can execution thereof become
urgent all of a sudden?
A
matter is urgent if at the time the need to act arises, the matter
cannot wait1.
In
other words, time being of the essence in urgent matters, the
applicant should act when the need to act arises.
The
certificate of urgency and the founding affidavit must therefore
exhibit urgency in the manner that the applicant reacted to the
events or situation complained of.
If
the situation complained of has been existing for a significant time
before the application is made, the matter is not urgent.2
In
casu, the anarchy in the church is what necessitated the filing of
the present application.
The
applicant is basically complaining about physical violence in the
church, disruption of church services and alienation of church
property.
Despite
his founding affidavit being 16 pages long, he only referred to 3
specific incidents.
The
rest are generalised averments about people fighting in the church
over public address systems and other property of the church.
There
are also averments about people having resorted to leaving children,
wives and the sick at home fearing violence at church.
It
is not stated where and when this happened. The specific perpetrators
thereof are not mentioned.
The
following are the specific incidents that the applicant referred to:
On
5 December 2020 there was violence at Hopely Circuit, Zone 6 Harare.
One Chikono came with a group of people to disrupt church service.
They claimed to be acting for and on behalf of the first respondent.
A case of assault was opened under RRB4620501 by the victim.
In
Mutare the weekend after the judgment was delivered, all church
services were disrupted. People appointed into leadership positions
by the first respondent tried to forcefully take control of church
proceedings, resulting in resistance from the congregation. This led
to violence erupting. Police had to be called to maintain peace and
order during services.
The
applicant also referred to an assault incident that allegedly
happened on 27 October 2020 at Caledonia Farm African Apostolic
Church, Eastview Circuit. One Onias Sibanda assaulted one Hatidani
Maphosa and a police report was made at Mabvuku Police station under
RRB4539885.
These
incidents show that the anarchy in the church has been ongoing since
October 2020, well before the judgment was delivered on 3 December
2020. It continued even after the judgment had been passed and before
the appeal was noted on 11 December 2020.
The
incident of 5 December 2020 is pertinent.
Even
after the appeal was noted the anarchy is said to have continued.
This has been a continuing state of affairs with the bulk of the
incidents complained of having happened before the appeal was noted
on 11 December 2020.
The
matter cannot therefore be urgent.
The
applicant did not act when the need to act arose as far back as
October 2020 right up to the time the appeal was noted on 11 December
2020.
His
application does not exhibit urgency in the manner that he reacted to
the events or situation complained of.
The
events or situations complained of were in existence for a
significant time before the application was made. The matter cannot
therefore suddenly become urgent because the respondents have filed
an appeal.
To
make matters worse, other than generalised averments, the applicant
refers to no specific incident that happened after the 11th of
December 2020, after the appeal was filed.
Therefore,
the applicant has not laid any foundation for his contention that
since noting the appeal, the first to ninth respondent together with
their followers have been harassing him and other members of the
church by violently disrupting church services and taking over the
church structures.
The
matter cannot therefore be urgent.
Repetitive
and unsubstantiated generalised averments that the applicant's and
other church members constitutional rights have been violated do not
help the applicant's case.
The
relief sought is not the remedy for the injury alleged: what is
alleged is wrongful conduct of violence, disruption of church
services and alienation of church properties.
On
this basis, the applicant is seeking leave to execute pending appeal.
It
is the respondents contention that the relief being sought by the
applicant is not the remedy for the injury or wrongful conduct
alleged. Their argument is that the injury complained of does not
arise from the inability to execute the judgment that was granted by
CHITAPI J ON 3 DECEMBER 2020.
Mr
Ochieng's submission was that if these allegations are proven, they
would entitle the applicant to some other remedy like an interdict,
but certainly not leave to execute pending appeal.
His
argument was that the judgment that the applicant is seeking to
execute pending appeal is centred on a succession dispute between the
parties which emanated from the interpretation of a note the
respondents are relying upon as the basis of the first respondent's
appointment. He further submitted that the judgment had nothing to do
with the anarchy that the applicant is now complaining of in the
present application. He argued that the two disputes are different.
As such the applicant cannot seek to execute a judgment that was
granted on a different cause of action on the basis of a different
cause of action.
I
am in agreement.
A
judgment granted on a different cause cannot be executed on the basis
of a different dispute.
In
my discussion of the first point in limine on urgency, I have already
demonstrated that the wrongful conducts that necessitated the filing
of the present application started as way back as October 2020 and
continued after the judgment was delivered, before the appeal was
noted.
The
delivery of the judgment did not stop the anarchy.
The
applicant did not in his founding affidavit explain how its execution
pending appeal will stop the anarchy.
The
judgment simply declared unconstitutional the purported appointment
of the first respondent as the successor to the Archbishop. It
nullified his appointment. It also nullified all appointments of
personnel that he made in his purported position as Archbishop. The
judgment further ordered the respondents to comply with the
provisions of clause 9.2.2 of the tenth respondent's constitution,
for the Priesthood Council (a council of bishops) to preside as the
head of the church on behalf of the Archbishop.
If
the judgment is executed, it will change the leadership of the church
into a further dimension which is totally different from what is
prevailing now and what was prevailing before the purported
appointment of the first respondent. It is going to remove the first
respondent from the position of Archbishop. At the same time, it is
not going to restore Paul Mwazha as the Archbishop.
The
question is how is all of this going to resolve or stop the anarchy
that has been ongoing since October 2020 well before the judgment was
delivered?
The
applicant did not explain the link between the execution of the
judgment pending appeal and the wrongful conduct complained of.
I
am in agreement with the respondents that the two are divorced from
each other. I will thus uphold the point in limine.
Disposition
The
two points in limine are interwoven as the second point in limine
also determines whether or not the matter is urgent.
The
applicant is seeking leave to execute judgment pending appeal on an
urgent basis on the basis of a dispute that is different from the
dispute that gave rise to the judgment. Clearly the relief that he is
seeking is not the remedy for the injury alleged.
In
the circumstances, the matter cannot be urgent, even if it was
timeously filed a few days after the appeal was noted. The relief
sought is also an important consideration in determining whether or
not the matter is urgent. If there is no link whatsoever between the
injury complained of and the relief sought, as is the situation in
casu, the matter cannot be urgent.
In
the result, I make the determination that the matter is not urgent.
It be and is hereby struck off the roll with costs.
Mushangwe
and Company, applicant's legal practitioners
Mupindu
Legal Practitioners, respondents legal practitioners
1.
Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 (H)
2.
Gwarada v Johnson & Ors 2009 (2) ZLR 159 (H)
