Opposed
Matter
MANGOTA
J:
The
plaintiffs are husband and wife. They are members of the third
defendant.
The
first and second defendants are also husband and wife respectively.
They are leaders of the third defendant.
The
third defendant operates under the name United Family International
Church.
The
first and second defendants, as leaders of the third defendant, are
allegedly endowed with the spiritual gift of being able to foretell a
person's past, present and future circumstances.
They
are, in the parlance of the third defendant's teachings, referred
to as prophets.
The
plaintiffs filed six claims against all the three defendants. These
entered appearance to defend.
They,
in terms of Rule 140 of the High Court Rules, 1971 addressed a letter
to the plaintiffs. The letter is dated 9 August, 2017.
The
letter complained about the manner in which the plaintiffs pleaded
their claims. Its contents alleged that:
(i)
the claim was either vague and embarrassing; or
(ii)
the claim did not disclose a cause of action; or
(iii)
the claim did not clarify if the plaintiffs were suing in contract or
in delict; or
(iv)
the plaintiffs did not know how to plead defamation under the actio
injuriarum;
or
(v)
the plaintiffs failed to appreciate that mental anguish was not a
head for damages claimable for defamation; or
(vi)
the plaintiffs did not state, in regard to the sixth claim, if they
were pleading defamation or injuria.
The
letter placed the plaintiffs on notice to remedy the alleged defects
which the defendants complained of failing which the latter would
except to the claims.
The
plaintiffs received the letter on 10 August, 2017. They did nothing
about the complaint.
The
defendants filed the exception on 30 August, 2017. This is,
therefore, the subject of these proceedings.
The
record does not show the date on which the defendants served the
plaintiffs with the exception. Nor does it show the date that they
served their heads of argument upon the plaintiffs.
What
is evident, however, is that both parties filed their Heads.
The
defendants Heads were filed on 20 September, 2017. The plaintiffs
filed theirs on 4 October, 2017.
The
filing of Heads by the parties set the stage for the exception to be
heard and determined.
The
defendants summarised their case in paras (3) and (4) of their Heads.
They submitted that the plaintiffs summons and declaration were
excipiable in two respects. These were that:
(a)
they did not disclose any cause of action against any of the three
defendants; and
(b)
they are vague and embarrassing to the extent that the vagueness and
embarrassment go to the root of the cause of action.
Critical
to the resolution of this matter is whether or not one or more or all
of the claims do not, as the defendants alleged, disclose a cause of
action.
Where
they do not, the defendants position remains unassailable. Where they
do, the defendants complaint remains unwarranted.
The
phrase 'cause
of action'
was aptly defined in Peebles
v Dairiboard Zimbabwe (Pvt) Ltd
1999 (1) ZLR 41 which the defendants cited in their Heads. The case
authority says of the phrase:
“simply
a factual situation the existence of which entitles one person to
obtain from the court a remedy against another person.”
The
question which begs the answer is does that factual situation exist
in each of the plaintiffs six claims.
The
plaintiffs said it does.
They
also submitted, and in my view correctly so, that all their claims
were grounded in delict and not in contract.
An
analysis of each of the six claims is relevant. It is from the
intended analysis that the existence or otherwise of the cause of
action is established.
The
plaintiffs case was/is that their claims (1) to (4) rested on the
delict of fraud.
Professor
G Feltoe defines fraud in his “A
Guide to The Zimbabwean Law of Delict”
3rd
Ed, p8. The learned author states that the delict of fraud falls
under deceptive practices. He says fraud is committed when the
defendant, with intent to defraud, makes a statement to the plaintiff
knowing or suspecting that the statement is false and intending that
the plaintiff will act upon it to his prejudice. He stresses that, if
the plaintiff suffers loss as a result of such fraudulent deception,
he is entitled to claim damages.
With
fraud, therefore, the false statement is made to the plaintiff who
acts upon it.
The
definition which Professor Feltoe gave for the delictual action of
fraud is, with minor variations, substantially the same as fraud as
defined in the law of contract.
Innocent
Maja defines fraud from the perspective of the law of contract.
The
learned author states in his book “The
Law of Contract in Zimbabwe”
p96, that:
“For
an innocent party to claim delictual damages successfully, she/he
must establish that:
(a)
there was a wrongful or unlawful conduct (by either commission or
omission) by the wrongdoer:
(b)
the conduct led to the harm of a person, property or finances; and
(c)
the wrongdoer caused patrimonial loss either intentionally or
negligently.”
The
plaintiff's statement as regards each of the four claims is that
they are claiming delictual damages from the defendants. They
submitted that the damages are based on the misrepresentations which
the defendants made to them and other members of the third defendant.
The misrepresentations, they argued, induced them to act as they did
to their actual prejudice. The defendants, they said, by word or
conduct created false impressions in their minds and the impressions
induced them to act in the way which they did much to their serious
loss. They argue that the defendants made the false statements with
the specific intention to defraud them.
The
argument of the defendants is that the statements were not made to
the plaintiffs alone.
They
were made to all members of the third defendant and during church
service.
The
plaintiffs declaration shows that whilst the statements were made to
all members of the third defendant, the plaintiffs acted upon them.
These, it is evident, enjoyed a special privileged position in the
third defendant. A reading of each claim shows the following:
Claim
1:
The
first and second defendants knew, before the date the statement was
made, that the plaintiffs had an existing ZB Bank loan to the tune of
$500,000. The plaintiffs had informed them of that matter privately.
The statement which was to the effect that anyone with a bank debt or
loan would be cancelled as it was the season of miraculous
cancellation of debts did induce the plaintiffs more than any other
congregant to believe the defendants. They did and, in the process,
they lost their Marlborough house as a result of the same.
Claim
2:
The
defendants statement which was to the effect that one Tichaona Mawere
was a great lawyer who would never lose a case was taken seriously by
the plaintiffs. Out of their trust in the defendants, they handed
their case to Mr Mawere for his attention. When he produced no
results, they consulted the defendants on the same. These assured
them that everything was above board.
Claim
3:
The
first and second defendants would call the plaintiffs on to the
stage, presumably during church service, and announce to the
congregants that the plaintiffs were a successful example of their
Ministry. Such statements encouraged the plaintiffs to pour more and
more contributions in the form of money into the third defendant's
pocket.
Claim
4:
Defendants
paraded the plaintiffs on stage, presumably during church service,
and showed them as the chosen people whom God showered with blessings
to a point where they were regarded as successful business people.
It
is evident, from the foregoing, that the plaintiffs and the
defendants enjoyed very good social, and possibly spiritual, ties.
That fact alone explains why the plaintiffs took the word of the
defendants more seriously than any other member of the third
defendant did.
That
the defendants made the statements, in words or deed, in all the four
claims requires little, if any, debate.
The
statements, the plaintiffs argue, were false. They were made with the
intention that they act upon them. They so acted upon them to their
actual prejudice in regard to each claim.
They
stated, and correctly so, that, if they had known the true facts,
they would not have acted in the manner which they did.
The
plaintiff's case in regard to the four claims is water-tight. There
is nothing which is vague and/or embarrassing in each of those
claims. Their cause of action for each is clear, cogent and to the
point. The claims fall neatly into the delict of fraud. They are
neither frivolous nor vexatious.
The
defendants urged the court not to concern itself with the claims of
the plaintiffs. They submitted that the claims arose from proceedings
which took place within the third defendant.
They
said the proceedings related to matters of faith in which the court
had no business.
They,
in the mentioned regard, referred the court to the dictum
of DOUGLAS J who made some remarks on a matter which was similar to
the present one. The learned judge stated in United
States v Ballard,
322 US 78 (1944) that religious doctrines and beliefs could not be
subjected to the rigours of legal proof.
The
defendants took their arguments to the jurisdiction of this court.
They
referred me to what DEVITTE J stated in Independent
African Church v Maheya
HH79/90 wherein he remarked as follows:
“… in
the case of a congregational schism, where the resolution of a church
property dispute involves matters of church doctrine and practices,
the courts should not become immersed in a consideration of the
merits of doctrinal matters. They ought, instead, to use a term
applied by the American courts to apply 'neutral principles of
law.'”
The
plaintiffs argued to the contrary.
They
stated that the court can, indeed, inquire into matters
ecclesiastical. They, in the mentioned regard, placed reliance on
Church
of the Province of Central Africa v Diocesan Trustees of the Diocese
of Harare
SC481/12
which they said rejected the position which this court took in the
Maheya
case.
They
insisted that the current case does not require the court to inquire
into matters ecclesiastical. They said it requires the court to
inquire into the defendants lies.
They
placed further reliance on Robert
Martin Gumbura v The State
SC78/14
wherein PATEL JA, dismissing Gumbura's appeal for bail pending
appeal, stated as follows:
“In
the circumstances presented by this case, the
quasi-mystical force of religious dogma might overwhelm its
conscripts and devotees to
a point where it operates to vitiate and negate any meaningful
consent to sexual
abuse and exploitation by their spiritual masters.
Taking
a broad conspectus of the facts and probabilities in
casu,
it appears to me that the
complainants having been enmeshed within the overpowering cocoon
woven by the appellant, unwillingly
succumbed to his sexual advances and predations. Thereafter
constrained by fear and misconception, they remained taciturn for
several years and only reported their respective ordeals after
appreciating the full nature of their sexual bondage.” (emphasis
added).
The
background to the above citation is that Gumbura, like the first two
defendants, was a leader of his church. He was tried and convicted of
rape by a magistrate. He appealed to this court against conviction
and sentence. He unsuccessfully applied to the magistrate for bail
pending appeal. He appealed to this court and also failed. He
appealed
to
the Supreme Court against the decision of this court which refused to
grant him bail pending appeal. He submitted, as a ground of appeal,
that the complainants took an inordinate delay to complain against
what he was alleged to have done to them. He said the complainant's
delay in report the rape showed that his prospects of success on
appeal were very strong.
The
learned judge of appeal rejected his argument.
He
remained of the view that Mr Gumbura had to prosecute his appeal
while he is in prison. He, therefore, dismissed the appeal.
Two
important matters come out of the above cited case:
(i)
The first is that every person is fallible. No one is, therefore,
immune to making mistakes. That is so notwithstanding the person's
standing, social, spiritual or otherwise, in society.
(ii)
The second is that, where one commits a crime or a wrong (i.e delict)
the person cannot escape the long arm of the law. He will either be
prosecuted or sued, depending on what he is alleged to have done.
That, depends on the definition which society places on his conduct.
That will, once again, occur irrespective of his status, social,
spiritual or otherwise, in society.
Applying
the above-observed matters to the current case, therefore, the
defendants cannot be allowed to hide behind the proposition that
their situation relates to ecclesiastical matters which the court has
no jurisdiction to determine.
A
fortiori
when
the Maheya
case upon which they placed reliance was over-ruled by the Supreme
Court.
Where
they are alleged, as in
casu,
to have acted fraudulently to the prejudice of some of their
congregants the latter have every right to sue them.
The
plea which they advance will not, therefore, assist them.
The
last two claims of the plaintiffs (i.e. 5 and 6) were not elegantly
drafted. The plaintiffs position in regard to the fifth claim is that
the defendants issued malicious statements which affected the
business of the plaintiffs. They describe the statement as being
defamatory of them.
The
defendants stated that the claim does not plead the particulars of
the alleged defamatory publication with sufficient particularity.
They submitted that it does not identify the “sting thereof.”
They averred that they did not plead that the alleged material,
whatever it is and howsoever allegedly published, is per
se
defamatory.
The
statement which is the subject of the defendants complaint reads:
“25.
The defendants caused damages through defamation of character by
publishing false articles against the plaintiffs and their business
activities; articles claiming that plaintiffs
perfumes cause cancer.”
(emphasis added)
The
plaintiffs should have couched their claim in a clearer manner than
they did.
The
claim, in my view, falls under injurious falsehood more than it does
fall under the delict of defamation of character.
The
allegedly false statement about the plaintiffs was made to third
parties who acted upon it with the result that the plaintiffs
suffered financial loss.
The
delict is committed when the defendant intentionally publishes to a
third party a statement concerning the plaintiff or his business
which the defendant knows or suspects is false intending that the
third party will act upon it and that the plaintiff will be caused
financial loss (See
Feltoe's A Guide To The Zimbabwean Law of Delict,
p61).
The
last claim (i.e. 6) falls under the delict of injuria.
This
is committed when a person, without justification, intentionally
affronts another's dignity or invades the other's privacy.
The
plaintiffs alleged that the defendants exposed the plaintiffs private
lives on the defendants Facebook online page, The
Truth About Prophet Makandiwa.
They submitted that they had given the information about them to the
defendants in private.
It
is evident, from the foregoing that, whilst the headings which
related to the two claims were erroneously stated, the substance of
each claim discloses a clearly defined cause of action.
A
request for further particulars by the defendants would have assisted
the plaintiffs to realise that the heading of each claim was stated
in error. They would, therefore, have effected the necessary
amendments to the same and, in the process, allowed the defendants to
know what the plaintiffs case in regard to each of those claims was.
The
defendants have not pleaded to the plaintiffs claims.
The
plaintiffs stated that, where necessary, they would move the court to
permit them to amend those of their claims which remained unclear to
the defendants.
The
law allows them to effect the amendments in respect of claims (5) and
(6). See Addler
v Elliot
1988 (2) ZLR 283 (SC) at 292B and Green
v Lutz
1996 RLR 633 at 641 A.
The
amendments, I am satisfied, will not prejudice the defendants in
anyway.
All
the three defendants were properly sued.
The
first two's suit lies in the statements which they made. The suit
of the third defendant hinges on the fact that it connected the
plaintiffs to the defendants. The bond which the plaintiffs created
with the first two defendants emanates from the fact that the
plaintiffs became members of the third defendant in which the first
and second defendants were/are leaders. The last two claims also
follow from the parties initial relationship.
In
the premise, it is ordered that:
1.
The defendants exception in regard to all the six claims be and is
hereby dismissed with costs.
2.
Leave be and is hereby granted to the plaintiffs to amend their
declaration and prayer in regard to claims (5) and (6) within ten
(10) days of their receipt of this judgment.
3.
Thereafter, the matter shall proceed in terms of the High Court
Rules, 1971.
Venturas
& Samukange,
plaintiffs legal practitioners
Manase
and Manase,
defendants legal practitioners
