BHUNU
J: The parties are engaged in rather acrimonious litigation concerning the consecration
of the 2nd respondent as the Anglican Bishop of Harare on the 26th July 2009 done in
the face of a Court order barring such consecration.
On
the 24th July 2009 Hlatshwayo J under Case number HC 2792 / 09 issued
a provisional order barring the 1st respondent in the following
terms:
“TERMS OF THE INTERIM ORDER.
a)
That the consecration of a new bishop by the Respondent
on the 26th July 2009, or any date thereafter be and is hereby
stopped pending the discharge or confirmation of this order on the return date.
TERMS OF THE FINAL ORDER SOUGHT.
a)
That it be declared that Dr. Nolbert Kunonga is still
the Bishop of the Diocese of Harare.
b)
That the Respondent is barred from recognizing any
Bishop of the Diocese of Harare until there has been compliance with the
constitution of the respondent.
c)
That it pays costs of suit.”
Despite
the above restraining order the 1st Respondent went ahead and ordained the 2nd Respondent as
the Anglican Bishop for the province of Harare on the basis that the court
order had been suspended by a notice of appeal it lodged with the Supreme Court
on the judgment date.
The
ordination has prompted the Applicant to lodge this urgent application before
me. The application in the main seeks to set aside the 2nd
Respondent's appointment on the basis that the noting of the appeal in the
Supreme Court was a nullity in that it was incompetent and fraught with serious
procedural irregularities.
The
applicant has mounted a two pronged attack on the validity of the notice of
appeal:
a)
That it was irregular and to that extent a nullity in
that it was lodged before the learned judge had delivered his judgment; and
b)
That it was incompetent and to that extent a nullity in
that it was issued without leave of this Court as is required by law.
As
regards the first allegation counsel for the applicant made serious allegations
which impugned on the integrity and professional conduct of the respondents'
legal practitioners. The allegations necessarily raise serious factual disputes
incapable of resolution without evidence.
After
hearing argument on the 3rd of August 2009 I called for the
Registrar's report seeking clarification as to whether or not the notice of
appeal was filed before Hlatshwayo J had delivered his Judgment.
The
Registrar has since filed his report. The report confirms that indeed the
notice of Appeal was filed in the Supreme Court and served on the other part
before Hlatshwayo J had delivered his judgment.
The
respondents have challenged the Registrar's report pointing out that it was to
a large extent compiled from hearsay evidence. Counsel for the respondents also
sought to place in issue the integrity and conduct of personnel in the
Registrar's office concerning the processing of the notice of appeal.
After
deliberations it was unanimously agreed that the respondents were within their
rights in challenging the Registrar's report. It was further agreed that there
was need to call for evidence from those concerned in the actual processing of
the notice of appeal to assist the Court in determining disputed facts. The parties
were however unable to agree on the format and procedure for laying that
evidence before the court.
Relying on rule 246 counsel for the
applicant proposed that viva voce
evidence be led from the relevant witnesses. The rule provides that:
“246.
(1)
A Judge to whom papers are submitted in terms of rule
244 or 245 May
(a)
require the Applicant or the deponent of any affidavit
or any other person who may, in his opinion, be able to assist in the
resolution of the matter to appear before him in chambers or in Court as may to
him seem convenient and provide on oath or otherwise as the judge may consider
necessary, such further information as the judge may require.
(b)
either party's legal practitioner to appear before him
to present such further argument as the Judge may require.”
On
the other hand counsel for the respondents preferred that evidence be provided
through affidavits as provided by rule 227 (4) which provides that in an
application:
“(4) An affidavit filed with a written
application –
(a)
shall be made by the applicant or respondent, as
the case may be' or by a person who can swear to the facts or facts set out
therein; and
(b)
may be accompanied by documents verifying the facts or
averments set out in the affidavit and any reference in this Order to an affidavit
shall be construed as including such documents.”
It
must be noted that rule 246 is premised on the presiding Judge's discretion to
call for oral evidence to help him determine the matter after perusing the
papers. The Judge is however under no obligation to call for such evidence. The
discretion is entirely his depending on the exigencies of the matter.
On
the other hand rule 227 (4) imposes an obligation on both parties to file
affidavits in support of their respective factual averments. A perusal of the
papers shows that neither party has so far filed any affidavits concerning
whether or not the notice of appeal was filed after Hlatshwayo J had delivered his judgment.
As
I have already pointed out the issues at hand are hotly contested. There are a
lot of serious allegations and counter allegations concerning the parties and
Court officials. We operate in an adversarial legal system where the contest is
between the parties and the Judge's role is mainly that of an umpire.
Normally,
the Judge only descends into the arena to seek clarification of the facts and
not to advance either party's cause. That being the case, rule 246 is sparingly
used by judges for fear of descending into the arena and having their vision
clouded by the dust of the conflict.
Considering
that there has been no affidavits concerning the issue at hand, I consider it
inappropriate to enter the arena at this point in time because there is really
nothing to clarify at this stage. It is up to the parties to advance their
respective positions without the assistance of the Judge.
For
the foregoing reasons I direct that the parties shall proceed in terms of rule
227 (4) reserving my rights to invoke the discretion conferred upon me by rule
246 as and when it becomes necessary in
the course of proceedings.
Chikumbirike & Associates' Applicant's
Legal Practitioners.
Gill Godlonton &
Gerrans, Respondents' Legal Practitioners.
