Ex
Parte Chamber Application
KAMOCHA
J:
The interim relief sought in this matter was couched in the following
fashion:
“Pending
determination of this matter, the applicant (sic) is granted the
following relief:
1.
All 3rd respondent members are interdicted from barring or blocking
any other church member from entering the 3rd respondent premises
wherever situated.
2.
All 3rd respondent members are interdicted from inciting violence,
threats of violence, assault or act on an (sic) unlawful manner
within the 3rd respondent premises wherever situated.
3.
ZR Police is empowered to arrest and detain and charge fine of
US$100-00 or three months imprisonment to any church member who
incites violence, threats of violence, assault or act in any unlawful
manner that disturb other church members peace of worshipping
wherever 3rd respondent premises situated.
4.
ZR Police is empowered to use minimum force on all 3rd respondent
premises wherever situated when necessary to give peace and order.
5.
This order shall operate at all 3rd respondent premises wherever
situated.
6.
This order shall remain operational not withstanding any appeals or
applications as may be noted by any party hereto till 3rd respondent
leadership matters are fully finalized.
7.
No order as to costs.”
On
31 January 2017 the applicant Claudious Manamela and Brighton Nanga
filed a similar application on a certificate of urgency seeking the
same redress. After reading the papers filed of record this court
concluded thus:
“(1)
This matter appears to have apparent numerous disputes of facts about
the ownership of the church. These can only be settled through a
fully fledge long trial. The applicants should prepare themselves for
such contest in court.
(2)
Those who resort to violence should be prosecuted for the offences
they allegedly committed and should be punished accordingly.
(3)
Accordingly this matter does not deserve to jump the queue and is
hereby dismissed.”
While
that application had two applicants the present one has an increased
number of four. The number of respondents is the same in both
applications.
The
first respondent in the first matter is different from the second
matter.
The
substance in both applications is the same and so is the redress
being sought.
The
matter is clearly res judicata.
The
present application was only signed by the first applicant Claudious
Manamela but all the other three applicants did not sign it as
required by Order 32 Rule 227(2)(b) of the rules of this court which
recites that:
“(2)
every written application and notice of opposition shall —
(a)-----
(b)
be signed by the applicant or respondent, as the case may be, or by
his legal practitioner.”
Manamela
is not a legal practitioner to have signed on behalf of the other
three applicants.
Further
two of applicants did not file their supporting affidavits.
My
sister MOYO J in a case where Manamela had a similar dispute relating
to the same church held that Manamela had no locus standi in the
matter.
There
is no reason for me to hold otherwise.
The
factions of the Apostolic Faith Mission of Africa have taken each
other to court many times. Some matters have been brought to finality
by the Supreme Court. However, there are still two which are still
pending in Harare in cases HH12163/15 and HH385/16.
These
two matters have been consolidated and are being dealt with at the
same time.
A
decision will be made about who seceded from the church and the court
will determine the rights of each faction in the church.
This
application is in respect of the same issues. This matter is
therefore clearly lis pendens.
It
is common ground that when the church split in 2014 Manamela went
with the group that totally moved away from the church premises.
There then followed a series of court cases in which Manamela's
group came out second best losing all five cases on appeal.
It
was submitted by the church that because he lost the five cases on
appeal he was desperate to get back inside thereby causing chaos as
he tries to come back.
Applicant
has claimed no right either clear or prima facie.
Those
are the rights the court in Harare is still to determine by hearing
evidence. Quite clearly Manamela wants to use the court to allow him
to get into the premises which he left in 2014.
At
the end of arguments by the parties the court dismissed the
application with costs on the ordinary scale and indicated that the
reason would follow. These are they.
Attorney
General's Office Civil Division, 1st & 2nd respondents legal
practitioners
Messrs
Masiye-Moyo & Associates, 3rd respondent's legal practitioners
