CHITAKUNYE
JA: This
is an appeal against the whole judgment of the High Court, sitting at
Harare, handed down on 29 July 2020 as judgment number HH495/20,
wherein the court a
quo
granted a declaratory order to the effect that the appellants were no
longer members of the respondent and were thus not entitled to the
use of the respondent's name and properties.
FACTUAL
BACKGROUND
The
appellants are former members of the respondent. Most of them held
different leadership positions within its ranks. The respondent is a
common law universitas
with
various ecclesiastical branches nationwide. It
is a voluntary association of a religious character whose business
and conduct are governed by its Constitution.
The
genesis of the dispute between the parties followed the expiration of
the first appellant's five-year term as Bishop on 31 August 2014.
The first appellant had been appointed Bishop in 2009 irregularly as
he did not possess the educational qualification prescribed by the
respondent's Constitution.
He
was nevertheless allowed to complete his term.
It
is common cause that towards the end of the first appellant's term
as Bishop, a nomination process was initiated to shortlist candidates
for the vacant office in terms of the respondent's Constitution.
Five nominees declined to participate in the election process. The
first appellant along with another nominee were then removed from the
shortlist as they did not possess the requisite educational
qualification of a theological degree, or its equivalent approved by
the Annual General Conference (AGC) as the Supreme Board. Another
hurdle in the first appellant's way was that he was also ineligible
as he was past the retirement age of 65 years.
The
first appellant was aggrieved by this decision.
He
disputed his disqualification and refused to be removed from the list
of nominees.
The
respondent's Church Council (Council) resolved to hold an AGC for
the purpose, inter
alia,
of electing a Bishop.
The
AGC was initially set for November 2014 and when there was no quorum
of paid up members the conference was aborted. The conference was
eventually set for 20-21 March 2015. The first appellant, as the
outgoing Bishop and chairperson of the Council duly convened the AGC
for 20–21 March 2015.
However,
the first to eighth appellants, with the exception of the fifth
appellant, boycotted the AGC.
In
the result the congregants who attended the aforementioned conference
did not form a
quorum
in terms of the respondent's Constitution. The attendees resolved
to continue with the AGC and invoked Article IIIC(ii) of their
Constitution which states that:
“The
AGC shall be vested with powers to deal with and dispose of any
matters which may arise and for which no provisions exist.”
It
was at this AGC that a new Bishop, Isaac Soda, was elected.
The
appellants then clandestinely organised an alternate conference on 28
March 2015, which they termed the 'Emergency Extra-Ordinary General
Conference'.
The
outcome of that conference was the renunciation of Isaac Soda's
election as the Bishop, the excommunication of various members of the
Council who had proceeded with the AGC on 20-21 March 2015 and the
declaration of the first appellant as the substantive Bishop of the
respondent till the election of a new Bishop.
The
appellants established their own structures replacing the
excommunicated leaders. The excommunicated members were notified of
their expulsion from the church.
Thereafter,
the two sides became embroiled in a dispute to identify the bona
fide
representatives of the church.
The
acting Bishop, Reverend Amos Mateva, then convened an Extra-Ordinary
General Conference on 10 September 2016 to hold regularised
elections. Isaac Soda won the majority vote and was elected Bishop.
However,
his victory was disputed by the appellants who argued that it was
unconstitutional and they continued to champion the first appellant
as the legitimate leader of the church.
In
effect, there now existed two parallel structures utilising the name
of the respondent.
This
resulted in the respondent issuing summons in the court a
quo
for a declaratory order under HC10163/15 to confirm the secession of
the appellants.
BEFORE
THE COURT A
QUO
In
the court a
quo,
besides seeking a declarator, the respondent also sought an order
interdicting the appellants from using its name, uniforms and various
church buildings and an order evicting them from its aforesaid
buildings.
The
appellants on their part contested the relief sought contending that
they were still members of the respondent.
It
is, however, apposite to note that before the court a
quo,
and as confirmed by a joint pre-trial conference (PTC) minute dated
16 March 2018, the parties agreed that they were now two separate
entities.
They
also agreed that the first appellant's term of office as Bishop
expired and he had not been re-elected, that the qualifications for a
Bishop are as set out in the Constitution and that all other
ancillary matters between them would be resolved by a determination
of the legitimate faction between the two.
The
joint PTC minute of March 2018 inexplicably identifies the sole issue
referred to trial as whether or not Bishop Isaac Soda was the
legitimate leader of the original church which issue is not supported
by the pleadings.
At
the trial, it was argued that the election of Bishop Soda on 10
September 2016 was invalid as the church's Constitution did not
provide for a re-run.
The
first appellant begrudgingly admitted that he was over the
constitutional retirement age of 65 years.
He
also alleged that he boycotted the AGC held on 20–21 March 2015 due
to threats on his person despite being the convenor of that
conference.
He
also conceded that the clandestine meeting held on 28 March 2015 was
irregular.
It
was also common cause that the appellants had formed parallel
structures from the respondent which included opening separate bank
accounts and leadership posts.
After
hearing evidence from the parties, the court a
quo
ruled in favour of the respondent. It found that the appellants had
created a schism in that in their opposition to the election of Isaac
Soda and insistence on the validity of the first appellant's
candidacy, they had proceeded to allocate themselves positions in the
church and purportedly dismissed members of the Church Council. They
in effect proceeded to create their own structure contrary to the
dictates of the Constitution and defied attempts to be disciplined by
the respondent.
The
court held that as the appellants had abandoned the canons of the
church and its Constitution, they were no longer members of the
respondent.
The
appellants were interdicted from using the respondent's name and
regalia. They were also barred from using respondent's properties
previously in their possession and ordered to vacate its premises.
Aggrieved
by the court a
quo's
decision, the appellants noted this appeal on the following grounds
of appeal:
GROUNDS
OF APPEAL
1.
Having correctly found that Isaac Soda had not been properly elected
as the Bishop of the respondent, the court a
quo
erred
in holding that the appellants, by opposing Isaac Soda's supposed
leadership had seceded from the respondent.
2.
The court a
quo
erred in holding that the faction of the respondent led by Isaac Soda
was the correct church for purposes of the dispute that was before
it.
3.
The court a
quo
further fell into error at law in holding that the appellants were no
longer members of the respondent when in terms of the respondent's
Constitution, only local congregations and not natural persons are
capable of acquiring and/or relinquishing membership in the
respondent.
4.
The court a
quo
erred in granting eviction of the appellants at the instance of a
faction of the respondent which faction had no properly elected
leadership.
5.
The court a
quo
fell into error in holding that the assets of local churches belonged
to the respondent when the listed assets belonged to individual
autonomous local churches and some instances to individuals.
6.
The court a
quo
erred in granting an interdict against the appellants restraining
them from calling themselves the Evangelical Church of Zimbabwe and
using the respondent's uniforms when such issue was never referred
to it for determination.
SUBMISSIONS
BEFORE THIS COURT
Mr.
Madhuku,
for the respondent, raised a preliminary point that the appeal had
been deemed abandoned as the appellants heads of argument did not
address the grounds of appeal.
Per
contra, Mr Ndlovu,
for the appellants, submitted that they had motivated each ground of
appeal.
He
submitted that the issue is really one of style rather than failure
to motivate the grounds of appeal.
Resultantly,
Mr Madhuku
abandoned the preliminary point.
It
is, however, this court's view that whilst legal practitioners have
different styles of presenting their heads of argument, whatever
style adopted must surely be clear and consistent with the grounds of
appeal.
In
casu,
the heads of argument were convoluted and not easy to relate to
particular grounds of appeal. The appellants heads of argument could
have been drafted in a better way. We nevertheless opted to
painstakingly peruse the convoluted heads of argument as, in our
view, the real issues were clear from the record of proceedings.
On
the merits, counsel for the appellants submitted that the faction led
by Isaac Soda is the one which seceded from the church. This was
because Isaac Soda had not been properly elected as the Bishop and
his re-election itself was a nullity.
Mr.
Ndlovu
submitted that the first appellant remained the Bishop until an
election was held in accordance with the Constitution of the church.
As
to the appointment of people to the Council under the faction led by
the first appellant, Mr. Ndlovu
submitted that they were rightfully appointed in accordance with the
position that the first appellant was the legitimate Bishop until a
valid election was held.
Counsel
for the appellants also submitted that once the court found that
Isaac Soda had not been rightfully elected, the members who were not
in support of his election could not be said to have seceded.
Counsel
further submitted that the finding by the court a
quo
that the appellants were no longer members of the church was against
the church's Constitution which provides that affiliate branches of
the church are the ones considered as members of the church and not
natural persons such as the appellants.
In
motivating the fourth ground of appeal, counsel submitted that as
Isaac Soda was found not to be duly elected as Bishop, he could not
seek the eviction of other members of the church.
On
the fifth ground of appeal, counsel submitted that the court a
quo's
order that the appellants surrender properties to the respondent
violated the church's Constitution.
In
summation, counsel submitted that once a finding had been made that
Bishop Isaac Soda had not been duly elected, it followed that the
appellants could not be said to have broken away from the church
despite the accepted position that they had created a parallel
structure and allocated themselves leadership positions in that
structure.
He
maintained that there was therefore no basis for the grant of the
interdict against the appellants by the court a
quo.
On
the contrary, Mr. Madhuku,
for the respondent, submitted that the appeal was devoid of merit as
the appellants case was grounded on the mistaken fact that Isaac Soda
was not the duly elected Bishop of the church.
He
added that the real issue for determination by the court a
quo
was which of the two factions was the legitimate Evangelical Church
of Zimbabwe.
He
submitted that the court a
quo's
finding that the appellants had seceded from the church resolved the
dispute between the parties.
In
addition, counsel
reiterated
that the issue of Isaac Soda's occupation of the office of the
Bishop was not the main issue for determination but was merely one of
the side issues to be resolved by the court.
He
added that as the first appellant's term in office had expired, all
those in support of him had seceded from the church by forming their
own parallel structure.
This
Court finds that only one issue commends itself for determination in
this matter. It is whether the court a
quo
erred by finding that the appellants were no longer members of the
respondent and were thus not entitled to the properties owned by the
respondent.
APPLICATION
OF THE LAW TO THE FACTS
It
is common cause that in preparation for a pre-trial conference, the
parties held a meeting on 24 November 2017. In that meeting parties
agreed that the issue for referral to trial was “whether or not the
plaintiff (sic)
is the legitimate leadership of the Evangelical Church of Zimbabwe”.
It
was their view that a resolution of this issue would resolve the rest
of the issues they deemed ancillary.
At
that meeting the respondent being the church was represented by Rev
Dewah.
Thus,
the determination of the legitimate faction was to resolve the
dispute.
At
the PTC held on 16 March 2018 both sides acknowledged that the
Council had split into two factions. This acknowledgment was made
subsequent to the agreement made on 24 November 2017
referred to above.
Despite
the identification of the issue as one of legitimacy of the factions,
in the joint PTC minute the parties inexplicably recast the issue to
be whether or not Bishop Isaac Soda is the legitimate leader of the
original church.
The
court a
quo
aptly observed that the respondent had not pleaded for an order
declaring Isaac Soda to be the duly elected Bishop.
The
court a
quo
further found that there was no legitimate Bishop for the respondent
as on 13 June 2016 in case number HH359-16, MANGOTA J had found that
the election of Isaac Soda on 21 March 2015 was afflicted with
irregularities and so declined to declare him the duly elected
Bishop.
Equally
the court a
quo
held that the election of 28 March 2015 wherein the first appellant
was re-elected Bishop suffered the same fate as it was afflicted with
fatal irregularities which appellants conceded.
The
court a
quo
further held that the re-election of Isaac Soda done on 10 September
2016 was afflicted with some irregularities.
The
court noted that the Constitution did not provide for a re-run of an
election yet this is what the respondent had purported to do without
following the laid down procedures.
In
noting the above, the court a
quo
was alive to the fact that the respondent had not specifically
pleaded for a declaration of Isaac Soda as a duly elected Bishop
hence it did not make such a declaration.
A
perusal of the respondent's declaration before the court a
quo
clearly shows that the respondent did not plead for a declaration of
Isaac Soda as the legitimate Bishop of the Evangelical Church of
Zimbabwe.
The
respondent ought to have amended its declaration so as to include the
issue of the legitimacy of Isaac Soda as Bishop.
As
the respondent did not do so, the court a
quo
cannot be faulted for not making a declaration on whether or not
Isaac Soda is the legitimate Bishop of the respondent.
In
Mashonaland
Tobacco Company (Private) Ltd v Mahem Farms (Pvt) Ltd & Another
SC152/20 at p9, this Court summed up the general principle regarding
the necessity of pleading a cause of action in these words:
“As
a general rule, judgment cannot be granted on a cause of action that
is not pleaded. The pleadings must clearly set out the precise
parameters of the issues contested between the parties. Thus, in the
Namibian case of Courtney-Clarke
v Bassingthwaighte
1991 (1) SA 684 (Nm), at 698, it was explained that:
'…..
there is no precedent or principle allowing a court to give judgment
in favour of a party on a cause of action never pleaded,
alternatively, there is no authority for ignoring the pleadings….
and giving judgment in favour of a plaintiff on a cause of action
never pleaded. In such a case the least a party can do if he requires
a substitution of or amendment of his cause of action, is to apply
for an amendment.'
In
Medlog
Zimbabwe (Pvt) Ltd v Cost Benefit Holding (Pvt) Ltd
2018 (1) ZLR 449 (S) at 455G, this Court aptly stated the position as
follows:
'In
general, the purpose of pleadings is to clarify the issues between
the parties that require determination by a court of law.'
And
at page 456E-G that:
'25.6 In
Jowell
v Bramwell-Jones & Ors
1998 (1) SA 836 (W) at 898 the court cited with approval the
following remarks by Jacob and Goldrein Pleadings:
Principles and Practice
at
pp 8-9:
'As
the parties are adversaries, it is left to each of them to formulate
his case in his own way, subject to the basic rules of pleadings.…
For the sake of certainty and finality, each
party is bound by his own pleading and cannot be allowed to raise a
different or fresh case
without
due amendment properly made.
Each
party thus knows the case he has to meet and cannot be taken by
surprise at the trial.
The
court itself is as much bound by the pleadings of the parties as they
are themselves. It is not part of the function of the court to enter
upon any inquiry into the case before it other than to adjudicate
upon the specific matters in dispute which the parties themselves
have raised by their pleadings.
Indeed,
the
court would be acting contrary to its own character and nature if it
were to pronounce upon any claim or defence not
made
by the parties.
To
do so would be to enter the realm of speculation.……………………
The
court does not provide its own terms of reference or conduct its own
inquiry into the merits of the case but accepts and acts upon the
terms of reference which the parties have chosen and specified in
their pleadings.
In
the adversary system of litigation, therefore, it
is the parties themselves who set the agenda for the trial by their
pleadings and neither party
can complain if the
agenda
is strictly adhered to.'”
(underlining
for emphasis)
See
also DD
Transport (Pvt) Ltd v Abbot
1988 (2) ZLR 92 (S) at 101F-G and D-E; City
of Harare v Everisto Mungate
SC86/22.
In
casu,
the respondent's pleadings were for a declaration that the
appellants had seceded and attendant ancillary relief. The appellants
contention in their pleadings was that they had not seceded. The
pleadings clearly related to the issue of the legitimacy of the two
factions and the attendant consequences.
The
issue of Isaac Soda's election was unfortunately let in at the
pre-trial conference even though it did not arise from the pleadings.
This
was clearly improper.
The
court a
quo
did not err or misdirect itself when it noted that despite the
parties agreement on the issue as being on the election of Isaac
Soda, the respondent had not pleaded the election of Isaac Soda on 10
September 2016 and so it could not determine an issue not pleaded by
the parties.
There
was nothing in the pleadings to bring in the issue of Isaac Soda's
election.
It
is trite that issues of secession or schism are decided on adherence
to the church's principles and ethos as enshrined in its
Constitution rather than allegiance to a particular leader.
The
appellants counsel submitted that after the court a
quo
found that there was no legitimate Bishop of the respondent from the
elections of 21 March 2015, the court misdirected itself by holding
that the appellants had seceded from the respondent.
He
argued that as Isaac Soda was not a validly elected Bishop, the
appellants opposition to his appointment could not amount to
secession.
He
further submitted that the appellants did not create a schism within
the church by opposing Isaac Soda's appointment and assuming
positions within the church.
The
law on church disputes and in particular, secession, was discussed at
length by this Court in Church
of the Province of Central Africa v Diocesan Trustees, Harare Diocese
2012
(2) ZLR 392 (S), where MALABA DCJ (as he then was) at p410A-B stated
the importance of Constitutions in religious institutions as follows:
“By
definition, a church is a voluntary and unincorporated association of
individuals united on the basis of an agreement to be bound in their
relation to each other by certain religious tenets and principles of
worship, government and discipline. The existence of a Constitution
is testimony to the fact that those who are members of the Church
agree to be bound and guided in their behaviour as individuals or
office-bearers on ecclesiastical matters by the provisions of the
Constitution and the canons made under its authority.”
Premised
on the above, when faced with an issue of factionalism, the court
must determine which of the two groups before it has abandoned the
core values and ethos as espoused in the Constitution and canons of
the church and thus seceded.
The
seceders would not be entitled to ownership of the church's
property.
The
Court in the Church
of the Province of Central Africa (supra)
laid
out the important factors to be considered. Factors such as
allegiance to a particular leader or which faction or group has the
majority of members were held not to be applicable in these words at
p413F-G:
“The
rationale for the rejection of the application of the factor of
majority lies in the concept of a church as a voluntary association
of individuals united by an agreement on the religious principles by
which their affairs as individuals and association should be
conducted. On the principle of majority, it would mean that where one
person remains holding the original principles of the church there is
no organized association of people.
The
issue is not that the person is alone at the time of secession from
or division in the church. It is that the one person adheres to the
fundamental principles which define the church.
As
long as there is no provision in the Constitution (on the basis of
which he or she subscribed the principles and undertook to be bound
by them) as to what should happen when he or she is not in the
majority, his
or her adherence to the fundamental principles is the decisive
factor.”
(underlining
for emphasis)
The
above puts to rest the contention by the appellants that they ought
not to have been ordered to vacate the premises owned by the
respondent on the basis that ninety-four members of the Evangelical
Church of Zimbabwe recognize the first appellant as the Bishop while
only thirty-eight members recognize Isaac Soda as the Bishop.
Allegiance
to a particular leader or to a faction having the majority of members
are clearly not determinative factors in establishing which faction
gets ownership of property in the face of a split in the church.
The
paramount consideration in a matter such as this is which of the two
groups acted in accordance with the Constitutional principles upon
which the church is founded.
This
was unequivocally stated in the Church
of the Province of Central Africa case (supra)
at p412C
in
these words:
“Adherence
to the fundamental principles on which the church is founded must be
the factor on which disputes of ownership or possession and control
of church property are determined….”
And
at 413D that:
“The
application of the principle of adherence to the fundamental
principles of a church supports the proposition that those who have
departed from the standards and principles on which the church is
founded are more likely to leave it.”
In
casu,
the appellants are without doubt the ones who acted in contravention
of the respondent's Constitution.
This
is because they sabotaged
the duly convened AGC on 20-21 March 2015 by not attending it. They
then insisted on the nomination of the first appellant as a candidate
regardless of his lack of the requisite qualifications, such as
education and age.
Despite
the common factor that the first appellant was not eligible in terms
of the Constitution, the appellants did not renege on their position;
instead, they went on to create a parallel structure with the first
appellant as the Bishop, coupled with the dismissal of other members
from the Council and allocating themselves positions outside of the
provisions of the respondent's Constitution. They even went as far
as opening and operating new bank accounts for their faction.
This
undoubtedly resulted in the creation of a schism.
It
is a long-standing principle that a person who is responsible for the
creation of a schism cannot assert that he or she is still a member
of the original church.
Further,
it is on record that the appellants conceded that the Council had
split into two factions. This, in our view, is a clear indication
that the appellants broke away from the respondent. It is in view of
the above that this Court finds that the finding by the court a
quo
that the appellants constitute the seceding party cannot be faulted.
The
consequences of secession were well articulated in the Church
of the Province of Central Africa case (supra)
at
p421B as follows:
“It
has long been established as a salutary principle of law in this area
of property ownership that when one or more people secede from an
existing church, they have no right to claim church property, even if
those who remain members of the congregation are in the minority.”
The
author, B. Bamford on The
Law of Partnership and Voluntary Association in South Africa,
Juta & Co Ltd, 1982 at p218 supports the above assertion in these
words:
“The
seceders would not in any event be entitled to property belonging to
the parent association, even if the whole association has seceded…”
This
Court finds that as the actions of the appellants were brazenly in
violation of the principle values contained in the respondent's
Constitution, they are not entitled to any of the property belonging
to the respondent.
This
is in tandem with the tenet that the control and use of church
property is the preserve of those who uphold the fundamental
principles upon which the church is established and governed.
DISPOSITION
It
is clear that this appeal has no merit. The judgment of the court a
quo
cannot be faulted. The appeal ought to fail.
COSTS
There
was nothing submitted justifying a departure from the general
principle that costs follow the cause.
Accordingly,
the appeal be and is hereby dismissed with costs.
UCHENA
JA: I agree
CHATUKUTA
JA: I agree
Jiti
Law Chambers,
appellants legal practitioners
Mapondera
& Company,
respondent's legal practitioners
