HLATSHWAYO
J: The two matters HC 4327/08, which is
a court application,
and HC 2792/09,
which is an urgent chamber application, were consolidated and heard together.
Judgment in outline form was handed down on 24 July 2009 for both matters, but
as indicated then, a detailed written judgment was to follow. This is it:
In
HC 4327/078, Diocesan Trustees for the
Diocese of Harare v Church of the Province of
Central Africa (“the court application”)
the applicant seeks the following order:
“It
is ordered that:
1.
The following persons be and are hereby declared the
Diocesan Trustees of the Diocese of Harare:
(i) Bishop Dr Nolbert
Kunonga
(ii) Mr Beaven Michael
Gundu
(iii) Mr Justin M
Nyazika
(iv) Mr P Majokwere
(v) Mr Onias Gatawa
(vi) Mr Alfred Tome
(vii)Mr Winter Regie Shamuyarira
2.
The property of the Diocese of Harare whether movable
or immovable owned by the church within the Diocese vests in the Diocesan
Trustees mentioned in para 1 above.
3.
The respondent be and is hereby ordered to give vacant
possession/occupation and control of the assets of the applicant which respondent
occupies or possesses and or controls to the Diocesan Board within
seven days of the date of this order failing which the Deputy Sheriff
with the assistance of the Zimbabwe Republic Police be and is hereby authorized
on the direction of the Board to take occupational possession of any assets of
the Diocese and to hand over any assets or possession to the Board. (highlighted amendment added)
4.
Cost of suit”.
In
case No. HC 2792/09, Diocesan Trustees
for the Diocese of Harare v Church of the Province of Central Africa,
the applicants seek the following provisional order:
“Terms
of the Interim Order
a)
That the consecration of a new Bishop by the respondent
on 26 July 2009, or any date thereafter be and is hereby stopped pending
the discharge or confirmation of this order on the return date.” (highlighted amendment added)
Terms of the
Final Order Sought
a)
That it be declared that Dr Nolbert Kunonga is still
the Bishop of the Diocess 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; and
c)
That it pays costs of suit”.
There
were preliminary points of law that were raised pertaining to both matters: recusal
of the presiding judge, jurisdiction of the court, the defence of lis alibi pendens and locus standi of the applicants.
Recusal Application
No
formal written application for recusal of myself as the presiding judge was
made in this case, despite the requirement for such an application having been
drawn to the attention of the applicant or mover of the recusal motion (whom,
however, I shall continue to refer to as “the respondent” as in the main
matters). The necessity for such a formal application is self evident given
that certain issues raised informally in the preliminary stages of a recusal
request could have fallen away and more pertinent points assumed prominence.
The formal application, like pleadings, “fixes” or joins issues, so that the
proceedings do not become a snowballing roller-coaster of complaints and
allegations. As matters stand now, the basis for the application can only be
gleaned from the letter of the respondent dated 29 June 2009 addressed to the
High Court Registrar and the verbal submissions made in court on 23 July 2009,
which predictably introduced new issues.
The
relevant portion of the letter of 29 June 2009 reads as follows:
“The Honourable Judge has always taken the view that
this matter is capable of resolution and has been encouraging parties to settle
the same… In his effort to effect a settlement in the matter the Honourable
Judge has made it clear that he is inclined to take the position that since Dr
Kunonga's attempt to withdraw the Diocese of Harare in September 2007 was
uncanonical and unconstitutional it was to that extent a nullity and that in
the circumstances it should be taken that Dr Kunonga has therefore not left the
church of the Province of Central Africa and remains the incumbent Bishop for
the Diocese of Harare under the Church of the Province of Central Africa.
The Judge has expressed the view that it was not
useful to refer to events that then occurred after 21 September 2007.
The Honourable Judge among other things enquired about
Dr Kunonga's age in an apparent consideration of the fact that if he were to be
reinstated in the Church of the Province of Central Africa he could continue to
serve as Bishop and retire in the foreseeable future, the implication being
that in the circumstances our client's discomfort with reinstating Dr Kunonga
may be short lived.
Indeed in all these discussions the Honourable Judge
referred to Dr Kunonga as 'the incumbent Bishop'.
Our understanding of the Judge's position in this
regard has been confirmed by the other party in this matter in their urgent
application case number HC 2792/09 which has also been referred to Hlatshwayo J. Reference is made here to
para 6 of Dr Kunonga's founding affidavit in that urgent application”.
Paragraph 6 of
Dr Kunonga's founding affidavit in case No. HC 2782/09 reads:
“6. The
issues in the Anglican Church have been the subject matter of much controversy
since September 2007. Litigation is underway in various cases and in particular
pertinent to the issue at hand is case number HC 4327/08, in which the
applicant has instituted a suit (by way of court application) seeking a
declarator as appears on a copy of the draft order, which I attach as annexure
“B”. That issues raised therein are still pending, before his Lordship Mr
Justice Hlatshwayo, who postponed
the matter sine die, because it was
his Lordship's view that the parties must settle. The parties are to revert to
him shortly, at least before the end of the week, to enable dialogue to be
pursued in his Lordship's presence, both parties having accepted that his
Lordship's perspective that (made in the light of the averments that were made
in the application under reference), the only way in which the dispute in the
Anglican Church can be resolved is to revert to the status quo, as it pertained on 21 September 2007. It is not
necessary that I relate to the reasons for such in this application, suffice to
ask and beg this honourable court to refer to my affidavit in that matter,
which I beg leave be incorporated as part of this application”.
The
respondent (Church of the Province of Central Africa) itself emphatically countered
the above averments in its notice of opposition in a manner which should have
put the whole matter of recusal to rest, thus:
“36 Ad
paragraph 6
a) The application HC 4327/08 has not been determined by Hlatshwayo J. The respondent's position
to the proposed settlement will be set out to the judge and all interested
parties.
b) Hlatshwayo
J has not made a determination in that matter and it is improper that the
deponent herein would refer to the remarks that were made by Hlatshwayo J off the record in an attempt
to settle the matter. Hlatshwayo J
has not ruled that the parties should revert to the status quo pertaining on 21 September 2007. If indeed he has ruled
so the applicant is requested to provide proof of this at the hearing of this
application. The respondent has never agreed to that proposition. The
respondent notes that there is now agreement that Dr Kunonga's actions were
uncononical and unconstitutional and that the Diocese of Harare and as such its assets never left the
respondent.”
When next I met
the lawyers in chambers I clarified the position by making the following
points:
(a)
That I had not made any determination in the matter but
had merely invited the parties, “as a base and point of departure”, to focus on
the concession made that the attempted withdrawal of the Harare Diocese from
the Province of Central Africa was ineffectual. Subsequent developments could
then be taken on board but not as starting points, as there was great
divergence of opinion pertaining to them.
(b)
That the respondent's reply to the applicant's para 6
sets out the correct position in fact and at law and that, generally, recusal
would be expected where the judge has made statements outside court expressing prejudice against one of the litigants and
rarely where the comments are made in court, unless the utterances are
completely outrageous.
(c)
That any references that could have been made in
“without prejudice” consultations in chambers to an “incumbent Bishop” were not
made in a manner determinative of the matter but just to avoid continuously
referring to “Dr Nolbert Kunonga” in the same manner that reference was
constantly made in those discussions to “incoming Bishop”, “substitute” or “caretaker Bishop”.
(d)
That regarding the age of Dr. Kunonga, I had inquired
whether the appointment as bishop was for life and was advised it was subject
to a mandatory retirement age of 65 years, whereupon, and quite naturally, I
asked how old the “incumbent bishop” was and was told 62 or 63 – quite relevant
information which the parties in their negotiations could utilize whichever way
they pleased.
(e)
That, at any rate, intimations or indications made by a
judge in assisting parties to find common ground are not binding on the
parties. I also added that not being a
member of either of the so-called factions of the Anglican Church, nor a
Christian for that matter, but regarding myself as a rationalist or atheist, I
viewed their dispute quite dispassionately.
It appeared that both parties were satisfied with the above explanation
and that the issue of recusal had been laid to rest. Indeed, the parties
proceeded to make arrangements for the continuation of the settlement efforts
with the assistance of the same presiding judge. It was therefore surprising
that the respondent proceeded to file heads of argument regarding the
“application” for recusal stating:
“It
is regrettable that this application must be persisted in but application HC
2792/07
makes
it inevitable”.
The settlement efforts had continued for over a month; between 29 June
2009, when the letter requesting recusal was authored, until 20 July 2009 when
the parties declared that negotiations had failed and insisted that the formal
process, including the recusal application, be resumed. Accordingly, I set down
the matter of my recusal for argument in open court on 23 July 2009. Mr Zhou for the applicant in the recusal
matter based the “application” on the letter of 29 June 2009 already quoted
extensively above and the heads of argument filed on the subject. He, however,
added a new point: that since it is a tradition of this court that a judge who
presides over a pre-trial conference does not preside over the trial itself, I
should recuse myself from hearing the applications, having been involved in the
parties' abortive settlement efforts. However, I was not drawn to any
particularly sensitive information or documentation or processes which I could
have been exposed to during the settlement efforts which could possibly affect
my objectivity in dealing with the applications.
Before he could respond, I explained to Mr Chikumbirike, the applicant's lawyer in the main matters, that he
need not make any submissions at all as the matter of recusal strictly speaking
was one between the Bench and the side making the application, unless he
intended to make an exceptional contribution akin to a point of order in
parliamentary parlance (see Associated
Newspapers of Zimbabwe (Pvt) Ltd & Anor v Diamond Insurance Company (Pvt)
Ltd 2001 (1) ZLR 226 (H) at 233E-F) –
a position he fully appreciated but wished only to submit that in his view the
continuation with the recusal application was not bona fide as the issue had been settled in chambers. See Standard Chartered Finance Zimbabwe Ltd v
Georgias & Anor 1998 (2) ZLR 547
(H) where Smith J, in dismissing
an application for his own recusal from that case, said:
“I am satisfied that the application is not bona fide. Trinity (the
applicant) has not satisfied me that the grounds for this application are not frivolae causae. I am also satisfied
that I will be able to deal with the matter in an impartial and unbiased
manner.”
Although, of course, and with respect, the issue of the judge's own
subjective belief that he would not be biased is increasingly regarded as
irrelevant (Leopard Rock Hotel Co (Pvt) Ltd & Anor v Walenn Construction (Pvt) Ltd 1994 (1)
ZLR 255 (S) at 275A-B), I do associate myself with the notion, however, that
the application itself should be bona
fide. After the explanations and
clarifications in chambers which were apparently accepted and after the
applicant in its notice of opposition had pointed out the correct position at
law pertaining to the misconstrued privileged utterances, there remained very
little ground upon which a reasonable apprehension of bias could be based, a
mere suspicion of bias not being enough. See
Leopard Rock Hotel Co (Pvt) Ltd & Anor v Walenn Construction (Pvt) Ltd (supra) and the cases quoted with
approval therein, especially R (Donoghue)
v County Cork
JJ [1910] 2 IR 271 at 275 where Lord
O'Brien CJ said:
“By 'bias' I understand a real likelihood of an operative prejudice,
whether conscious or unconscious. There
must, in my opinion, be reasonable evidence to satisfy us that there was a real
likelihood of bias. I do not think that
the mere vague suspicions of whimsical, capricious, and unreasonable people
should be made a standard to regulate our action here. It might be a different
matter if suspicion rested on reasonable grounds – was reasonably generated –
but certainly mere flimsy, elusive, morbid suspicions should not be permitted
to form a ground of decision.”
Even in its supplementary heads of argument, the applicant in the recusal
matter (respondent in the main matters) betrays the lack of any subjective
apprehension of bias on its part, let alone the required objective standard,
but reveals, probably, the existence of a justifiable objection to the manner of
pleadings which could have been cured by an application to strike out the
offending paragraph:
“It must also be stated that the whole of the application
in case HC 2792/09 has been predicated on an opportunistic seizure of words
that fell from a learned judge's lips on an occasion which should have been sub rosa. The regrettable result of basing an application
on the pronouncements of a judge who was doing no more than to suggest an
avenue down which a settlement could be explored is that an indelible impression
of bias has been perceived on the part of the Respondent which must lead to an
application for recusal of the Judge in question” (para 8).
Regarding my participation in the abortive settlement, and as already
pointed out, my attention was not drawn to any particularly sensitive
documentation, discussions or processes that could jeopardize my
impartiality. The settlement attempt
never got beyond the initial stages where parties essentially restated their
positions – submissions which were no different from those they would make in
presenting their heads of argument or making closing remarks. The exchanges of letters were copied to the
court for information only and contained either notification to the judge that
negotiations were continuing or had finally failed or that applications would
be made to file certain additional documents, which was subsequently done.
The actual negotiations were not conducted by or before the judge, but by
the parties themselves, outside the court. Once the principle and need for
settlement was understood and accepted by all concerned, the judge remained simply
available to the parties should they need the court's assistance or directions.
In the same vein, the meeting with the lawyers and their principals in the judge's
chambers was arranged, with the consent of all concerned, with a view to enable
the principals to hear directly from the judge concerning what had been
identified in chambers as the need and apparent basis for a possible settlement
and to react thereto. Accordingly, the
parties contributed on the need for good faith in the settlement effort,
identities and capacities of the negotiating principals and the option to stay
all pending court cases and processes while negotiations continued.
A sample of the correspondence exchanged by the parties' lawyers and
copied to the judge's clerk may be of assistance in showing the role envisaged
for, and actually played by, the judge:
The respondent's lawyer wrote to his counterpart referring to the
lawyers' appearance in chambers on 3 June 2009, thus:
“The Honourable Judge expressed his view that this matter should perhaps
be resolved by the parties and that the respective legal practitioners should
take a leading role in this regard.”
On 4 June 2009, Mr Chikumbirike
for the applicants in the main matters wrote to the judge's clerk, copying the
other party, thus:
“Please could you bring to his Lordship's attention that the parties are
still discussing the above matter, with a view to settling. We intend to revert to his Lordship before
close of business tomorrow. The parties
will be holding a conference at 11.30 am tomorrow. Could you ask his Lordship
to bear with us whilst we are engaged in this fairly delicate process.”
Mr Chikumbirike addressed another letter to
the respondent on 5 June 2009:
“Your
letter of the 5th June 2009 … refers. Since we are relating to ecclesiastic
matters, let me borrow an analogy from the Biblical texts. I feel betrayed, as much as Jesus Christ was
betrayed by the actions of Judas Iscariot.
The contents of your letter seem to have scarpered, in one stroke, the bona fide efforts, which we, as legal
practitioners, had started, after the initiation by his Lordship, Mr Justice
Hlatshwayo, to take torch, and lead our respective clients from the impasse,
that has bedeviled the diocese of Harare since the actions, by both parties,
which we agreed had not been done in accordance with constitutional provisions,
which both accept are applicable to them … The position I hold, after reading
your letter, is that you still want to insist on the position held by your
client, in his affidavit in opposition to the application and in your heads of
argument.”
On 8 June 2009,
the respondent replied:
“It is unfortunate that your Mr Chikumbirike feels betrayed. As is
apparent from our letter of 5 June 2009 we took time to consider the matter and
more importantly to consult with our client and put forward what we believe is
a clear and understandable position taken by our client.”
On 7 July 2009,
the applicant wrote to the respondent:
“Our meeting of today's date, in his Lordship's chambers (Hlatshwayo J),
refers. From what has transpired so far, it is quite evident that his Lordship
wants a permanent resolution of the matter.
For that to be achieved, it would appear to be his view, that a judgment
of the court which will result in either of the divergent positions held by the
parties being upheld (or dismissed) will not be the ideal solution. The ideal being a judgment by consent. Consequently, he would like this matter
settled without the court having to impose its decision on the parties. From this, it follows, in our view that all
parties must relate to the negotiations towards a settlement, with a sense of
responsibility and maturity. To do so,
it is necessary that once a party has a thought, which it has formulated,
(which it thinks might solve the problem at hand), that it communicates that
thought to the other (so as to enable the thought to be interrogated). We only
have seven days within which to do this before the parties revert to his
Lordship.”
On 8 July, the
respondent replied:
“Our client is equally indebted to the Honourable Judge's attempt to
resolve this matter finally without the need for litigation. It is in that spirit that following our last
meeting on the 3rd of July 2009 we have met our client and sought
further instruction.”
And on 15 July
2009, the respondent further wrote:
“We refer to our
recent attempts to settle this matter and the various correspondence that we
have exchanged in that regard.
You will recall
that on Friday the 10th July 2009 we had agreed that we would meet
our respective clients on Monday 13 July 2009.
That we ourselves would then meet on Tuesday 14 July 2009 and then brief
Honourable Justice Hlatshwayo on the position of the discussions and the way
forward on Wednesday 15 July 2009. In
other words, today. Yesterday we made
several attempts to speak to you in vain.
We were advised at each turn that you were involved in some
consultation. Our attempts to reach you this morning have also not borne any
fruit. In light of the time element it is inevitable that we discuss this much
urgently and as much as possible report to Honourable Justice Hlatshwayo
today.”
And finally, on
20 July 2009, the respondent indicated that the negotiations had failed:
“We refer to the above matter and to the meeting which had been scheduled
at your offices for 2.30pm on Monday 20 July 2009. We waited and eventually left just before
3.00pm. As we waited the writer engaged
his counterpart, Mr Chikumbirike over this matter. We seem to be agreed that despite the
parties' best wishes we cannot pursue the settlement issue any further. The parties' efforts are underlined by the
fact that a lot of time and resources have been dedicated to this process. In the circumstances we look forward to hear
from the Honourable Judge about the resolution of the various matters before
him.”
From the above examples, it is quite clear that, as judge, I did not
participate directly in the abortive settlement efforts, nor was I expected
to. That alone should dispose of this
particular ground for recusal, and lay the whole issue to rest. However, there still remains the submission
made that my role in the settlement effort pertaining to an application may be
equated with participation in a pre-trial conference, which, as already noted,
constitutes a bar to presiding over the actual trial in terms of a
time-honoured tradition of this court.
My view is that this comparison ignores important differences between
application and trial procedures. In
application procedures, the judge makes decisions based on affidavits and legal
arguments filed of record and presented in court by counsel. Rarely do application proceedings entail the
calling and examining of witnesses with the consequent need for the judge to
assess the credibility of such witnesses.
Therein lies the nub of the distinction, in my view.
This court's tradition of prohibiting a pre-trial judge from conducting
the trial itself, seeks to prevent the mischief of a judge's assessment of
evidence in the actual trial being coloured by proceedings at the pre-trial
conference stage. That risk does not
exist in application proceedings, more so
where, as in this case, the judge was not directly involved in the settlement
efforts and the negotiations collapsed at the very early initial stages.
Finally, this might be as good an opportunity as any to reflect on
whether our rules and practices regarding recusal enhance or detract from
impartiality as a fundamental value inherent in judicial function. Firstly, regarding our rules, the adoption of
the objective test and increasing rejection of the subjective self-assessment
goes a long way in fostering public confidence in the administration of justice
and, in my view, appears to be well ahead of the The Bangalore Principles of Judicial Conduct (which was adopted by
the Judicial Group on Strengthening Judicial Integrity and noted by the UN
Commission on Human Rights, as revised at the Round Table Meeting of Chief
Justices at The Hague, 2002) which appears to embrace both the subjective and
the objective approaches. Principle 2.5
thereof provides guidelines as to circumstances in which judges should
disqualify themselves from a case, thus:
“2.5 A judge should disqualify himself or herself from participating in
any proceedings in which the judge is unable to decide the matter impartially
or in which it may appear to a reasonable observer that the judge is unable to
decide the matter impartially. Such
proceedings include, but are not limited to, instances where:
2.5.1
the judge has actual bias or prejudice concerning a
party or personal knowledge of disputed evidentiary facts concerning the
proceedings;
2.5.2
the judge previously served as a lawyer or was a material
witness in the matter in controversy; or
2.5.3
the judge, or a member of the judge's family, has an
economic interest in the outcome of the matter in controversy:
Provided
that disqualification of a judge shall not be required if no other tribunal can
be constituted to deal with the case or, because of urgent circumstances,
failure to act would lead to serious miscarriage of justice.”
The
European Court of Human Rights has established the principle that “any judge in
respect of whom there is a legitimate reason to fear a lack of impartiality
must withdraw” (see Indra v Slovakia ECtHR judgment of 1 February
2005, Application 46845/99, para.49) – an approach which is similar to ours.
Secondly,
regarding practice, the impression gained from reported cases that the judges appear
reluctant to recuse themselves where so requested may be misleading as the
reported cases are the contested ones, whereas, in practice, judges routinely
recuse themselves mero motu,
sometimes without even the parties knowing, and oftentimes at the slightest
prompting from any of the parties. Thus,
the reported cases constitute a tiny fraction of the recusal cases. However,
there still does exist a tension which should not be ignored between acceding
too readily to requests for recusal, on the one hand, and the duty to sit where
one is not disqualified on the other. As
was noted in Associated Newspaper of
Zimbabwe (Pvt) Ltd & Anor v Diamond Insurance Company (Pvt)
Ltd supra, the judge's duty to sit
where he or she is not disqualified is as compelling as the duty not to sit
where disqualified. In this regard, the
opinion of Mason J in the High
Court of Australia judgment Re JRL: Ex
p CJL (1986) 161 CLR 342 (HCA) at 352
bears repeating here:
“Although
it is important that justice must be seen to be done, it is equally important
that judicial officers discharge their duties to sit and do not, by acceding
too readily to suggestions of appearance of bias, encourage parties to believe
that by seeking the disqualification of a judge, they will have their case
tried by someone thought to be more likely to decide the case in their favour.”
Accordingly, I dismissed with costs
the application for my recusal.
Jurisdiction of the Court
Mr
Morris raised the issue of lack of
jurisdiction on the part of this court to hear the matters before it as a late
submission not even mentioned in his heads of argument. He submitted that the
majority of the bishops of the Church of the Province of Central Africa, who
constitute the Episcopal Synod thereof, are not within this court's
jurisdiction and therefore this court would not be able to give an effective
judgment. This issue need not detain us at all. It is common cause that the respondent is composed of dioceses
some of which are located here in Zimbabwe, although others are in countries
within the region (Zambia, Botswana, Malawi) and that, through such dioceses or
directly, it owns properties in Zimbabwe and other countries and that the
issues the subject matter of this litigation relate to ownership of such
properties and appointment to and retention of offices in Zimbabwe. I have no
doubt at all that this court will be in a position to give full effect to its
judgment in both matters. See Steytler v
Fitzgerald 1911 AD 346; Forbes v Uys 1933 TPD 369.
Further
than that, the respondent has clearly submitted to the jurisdiction of this
court as evidenced by numerous court cases it has participated in relating to
these matters and the pleadings it has filed relating to the matters before
this court. It has been said that once a defendant demands security of costs or
asks for a postponement or pleads to the merits, he will be held to have
submitted to the jurisdiction of the court. See Irving & Company v Dreyer
1921 CPD 185 and New York Shipping Co (Pty) Ltd
v EMMI Equipment (Pty) Ltd
& Ors 1968 (1) SA 353 (SWA).
A
related contention advanced by Mr Morris
is that formal law courts have no business dealing with ecclesiastical matters;
that there is no body of law in Zimbabwe, unlike in the United Kingdom, dealing
with such matters, and that therefore any aggrieved member of a religious body
should look to the internal rules of such a body, and not to the formal courts
for redress. However, in my view, this contention is only true to a limited
extent. It is correct to hold that, as a general rule, voluntary associations,
such as churches, should conduct their affairs according to their constitutions
and rules of association. The formal courts would not want to interfere at all
in such arrangements. However, where, for example, the criminal laws of the
country are violated or members are unfairly discriminated against or the very
rules of the association are violated, it is inevitable that the formal courts
would get involved.
As
to the laws that our courts would apply in connection with church disputes, I
am indebted to Mr Chikumbirike's
survey of the approach taken by our courts in his heads of argument in HC
4327/08. Our courts have consistently stated that there is no separate body of
law dealing with church disputes.
“In resolving
church disputes our courts have consistently applied the law of voluntary
associations. The majority of disputes involving private associations that
culminate in litigation involve churches. As there is no homogenous law of
voluntary association it seems to me that church property disputes demand
special focus. In resolving disputes involving voluntary associations which are
churches, the law applicable thereto ought to be fashioned to meet the needs of
Zimbabwe
churches. Religious associations have features which distinguish them from
other associations”: per Devittie J in Independent African
Church v Maheya 1998 (1) ZLR 552 (H) at p 556
D-E.
Again
in Independent Church v Maheya 2000 (1) ZLR 39 (H) it was held
that where the resolution of a church dispute involves matters of church
doctrine and practices, the courts should not become immersed in consideration
of the merits of doctrinal matters; they ought instead to apply “neutral
principles of law”, and further that all questions involving a voluntary
association may be resolved in terms of its constitution, using a common sense
interpretation.
Lis Alibi
Pendens
The
respondent has raised the plea of lis
alibi pendens in opposition to the hearing of the matters HC 4327/08 (the
application) and HC 2792/09 (the urgent chamber application), maintaining that
both matters were instituted in order to frustrate the prior action in HC
6544/07. Initially, of course, the plea
was directed at the court application, but when the urgent chamber application
was filed, the exception was accordingly extended. See, for example, the respondent's
notice of opposition in case HC 2792/09 para 38(c) where it is stated: “This
urgent application (HC2792/09) together with the matter HC 4327/08 are ill
conceived and are a clear attempt to avoid the proper determination of the
matter at the trial set for 6 July 2009” and the respondent's heads of argument
in HC 2792/09 which double as supplementary heads in HC4327/08, para 4:
“Alternatively, these matters are lis alibi
pendens in a trial cause where all genuine disputes of fact can be aired
and tested in a proper way.”
I
have already set out the claims and orders sought in the two applications at
the beginning of this judgment. In the
trial matter, HC6544/07, the respondent in the applications and plaintiff in
the trial, viz., the Church of the Province of Central Africa, seeks against
the applicants, the Diocesan Trustees for the Diocese of Harare, who are listed
in their individual capacities as the first to the seventh defendants (“the
trustees'') and various financial institutions (eighth to eleventh defendants)
an order interdicting the “trustees” from in any way holding themselves out as
office bearers of the plaintiff and in particular the first defendant from
holding himself out as the plaintiff's bishop of the diocese of Harare; the “trustees”
from accessing or transacting from plaintiff's bank accounts held by the
financial institutions and that the financial institutions are interdicted from
taking instructions from the “trustees”; an interdict against the “trustees”
from working or doing business from any of its immovable properties including
cathedrals, churches and chapels and for delivery of all plaintiff's movable
assets including specified motor vehicles and for the “trustees”, jointly and
severally, to pay the costs of the action.
Summons commencing action were
issued on 20 November 2007 but the parties only joined issue when plaintiff's
replication was filed on 9 May 2008. The
court application was filed on 28 August 2008 and the urgent chamber
application on 25 June 2009. The court
application was set down for hearing on 3 June 2009, but because it appeared
that there were prospects of settling the whole matter out of court, the
parties started negotiations, which eventually collapsed on 20 July 2009. In the meantime, the trial, which had been
pencilled for 5 July 2009, could not commence because the trial judge was taken
ill and also because the applications and negotiations had not been disposed
of.
The
plea in abatement that there are pending proceedings between the same parties (lis alibi pendens) is raised by a party
that is able to establish the following prerequisites: (a) that the litigation
is pending; (b) the other proceedings are between the same parties or their
privies; (c) the pending proceedings are based on the same cause of action, and
(d) the pending proceedings are in respect of the same subject matter. However, even if a party satisfies all the
requisites, the court still has discretion to order or refuse a stay of
proceedings on the grounds of lis alibi
pendens, and in the exercise of that discretion it will have regard to the
equities and to the balance of convenience in the matter. See Mhungu
v Mtindi 1986 (2) ZLR 171 (S); Baldwin v Baldwin 1967 RLR 289 (G); Chizura v Chiweshe 2003 (2) ZLR 64 (H)
This
case, unlike the usual lis pendens
cases where both matters are instituted by the same party, involves the rare,
but not unprecedented, situation where the prior matter, the action, was
instituted by one party and the latter matter by another party; and in this
case the latter matter consists of two applications. In Michaelson
v Lowenstein 1905 TS 324, “[t]he
court found it unnecessary to decide whether the exception lis pendens is or is not confined to actions in which the same
person is plaintiff or claimant in both actions, but held that the exception is
not an absolute bar and that it is a matter in the discretion of the cto decide
whether an action brought before it should be stayed pending the decision of
another previously brought between the same parties for the same cause and in
respect of the same subject matter or whether it is more just and equitable or
convenient that it should be allowed to proceed”: Estate Breytenbach v
Breytenbach 1945 TPD 264 at 268-9.
In our jurisdiction, it appears
settled that the exception lis alibi pendens
is available even where the matters in issue are not brought by the same party,
and indeed even where the prior or latter matters consist of more than one
suit. See Mhungu v Mtindi supra where, in response to an
application for summary judgment, the respondent said there were other prior
proceedings involving virtually the same issues. The court exercised its
discretion to determine the dispute before it in the summary judgment
application and made reference to its own records in the other proceedings,
taking note of their contents, in disposing of the matter. In Baldwin v Baldwin supra a wife sued for
divorce in a foreign jurisdiction and the husband brought his divorce action
before the local courts and the wife's plea in abatement of lis alibi pendens was rejected on the
basis that the balance of convenience and equities was not in her favour.
Mr Chikumbirike submitted that not all the requirements of lis alibi pendens were met in this case
and in particular that the parties are not the same, maintaining that Bishop
Kunonga is not the applicant:
“He
is only its Chairman. You do not find the status of a party in the deponent
that subscribes to that party's affidavit.
Moreover, 1st -11th respondents, apart from being
parties in Case No. HC6544/07, are not parties in this application. For one to
be a party, one needs to be cited, not merely mentioned, in the body of an
affidavit. These persons only appear in
the body of the affidavit as trustees and not in their individual capacities,
as is their citation in Case No. HC 6544/07.”
However, in my view, this is only a
purely technical change in the designation of the parties while the parties
remain substantially the same in all the matters: Thorsen v Coopsamy 1936 NPD
636. The eighth to eleventh defendants
in Case HC6544/07 are financial institutions who are not active in the
litigation and have opted to abide the court's decision. The fact that the financial institutions are
not cited in the two applications does not change the fact that the parties in
the applications and the action are virtually the same.
Therefore, I am satisfied that all
the basic requirements for the plea are present. The critical issue in this matter, however,
is how the court should exercise its discretion relative to the plea of lis pendens. Where does the balance of convenience and
equity lie? Does it lie in stopping the
applications and allowing the trial to proceed or can the issues raised in all
the matters be fairly, conveniently, equitably and expeditiously disposed of on
the basis of the averments and affidavits filed of record in the applications?
In order to answer the above
question, it might be useful to use a hypothetical situation which might be regarded
as fairly comparable to the factual situation in this case. Suppose a husband has issued summons against
his wife to whom he is married in a monogamous relationship seeking an order against
her continued use of their marital name, that she should stop holding herself
out as his wife, that she should surrender all assets under her control and
possession by virtue of the marriage and interdicting banks from accepting her
instructions in relation to their joint accounts, arguing that she has left the
matrimonial home and eloped with a lover.
Suppose again, that after pleading to the merits, the wife files a court
application for a declarator that she is still formally married to the husband
and is entitled to hold certain assets and transact in the joint accounts by
virtue of her extant marriage. And
suppose finally, the wife files an urgent application to stop the husband from
immediately contracting another marriage and the husband raises the plea of lis pendens. Would it be more equitable and convenient to
stay the applications and wait for the issues to be resolved at a trial to be
held at a future date way after the proposed marriage or would the court be
justified in disposing of the issues by hearing the applications?
In
my view, if the matters are capable of resolution on the papers, it would
appear that it would be beneficial for both parties to have a declaration of
their rights made upfront. Then, if the finding is that the marriage to the
wife no longer exists, the new marriage can be celebrated without the cloud of
disputation. If, on the other hand, the
court finds that the marriage to the wife is still extant, then the husband
would be saved from entering into a bigamous relationship and a long but
inconclusive trial would have been avoided.
The husband, of course, would still retain the right to proceed against
the wife regarding her indiscretions, either by formally suing for divorce or
in one way or another reconciling with her.
I
have already commented on the unique feature of this case, that the plea has
been raised as against both the court application and the urgent chamber
application, and that both applications and, indeed, all the three matters, are
intrinsically linked so that one cannot decide one matter without that decision
affecting the other matters. Thus, the
urgent chamber application seeks as interim relief an order interdicting the
consecration of a new bishop for the diocese of Harare while in the final
relief and the application the applicant seeks a declaration that he is still
the bishop of Harare and in the action the plaintiff seeks, among other things,
an interdict preventing the first defendant from holding himself out as the
bishop of Harare. The consecration has
been scheduled for 26 July 2009. If the
plea is upheld then the rights of the parties relating to the urgent
application would not be determined before the consecration – with irreparable
harm to the applicants. If, on the other
hand, the matters are heard, then the respondent, if successful, would proceed
with the consecration without the cloud of disputation, but even if
unsuccessful would not lose the right to institute disciplinary proceedings
against the applicants for whatever wrongs they are deemed to have committed. The balance of convenience and equity on this
ground of urgency and interrelatedness of the issues, in my view, is with the
applicants, all other things being equal.
The five days trial which was
scheduled for 6 July 2009 has been postponed indefinitely for reasons noted
above. The matters in issue are important issues of faith for a large number of
people who regard themselves as Anglicans in Zimbabwe, the central African
region and indeed the world over. In Diocese of Harare v Church of the Province of Central Africa & Anor 2008 (1) ZLR
139 (S), the Chief Justice underlined the urgent need to resolve the various
disputes between the protagonists in all the matters that have been litigated
upon. If the matters can be resolved on
the papers, in my view, it would be more expeditious to proceed on the basis of
the applications than to wait for a new trial date to be set. I am fortified in this conclusion by the fact
that not only is the rescheduling of the trial beset by the unfortunate
circumstances noted above, but there is the additional complication that
allowance has to be made for some witnesses to come from outside the country,
and that there is a point in limine
to be argued before the commencement of the trial on the challenged locus standi of the plaintiff.
The manner in which the locus standi of the plaintiff is
challenged and responded to in the replication is the mirror vision of the same
challenge and response in the two applications.
In fact, the issue of locus standi
of one or the other of the parties lies at the centre of the whole dispute in
all the three matters. In the action the
standing of the plaintiff is challenged in the following manner:
“The
plaintiff lacks the requisite locus
standi in judicio to sue in respect of property belonging to, or vested in,
the Diocese of Harare. In terms of the
Acts of the Diocese of Harare, such property is held in trust on the Diocese of
Harare's behalf by the Trustees of the Diocese of Harare and it is these Trustees
that are authorized or permitted to institute legal proceedings in respect of
the property of the Diocese.”
To the above plea, the plaintiff
replied that the first to seventh defendants “having resigned, withdrawn or
seceded from plaintiff and its diocese of Harare, are not eligible for
appointment or election to the positions of Trustees of the Diocese of Harare
and have no right to hold, possess, control or use any of the assets in issue
in this matter.” In other words, the whole subject matter of the application
would be rehashed in the trial, even if the plea is upheld.
I am also further fortified in my
conclusion about the inconvenience of upholding the plea by the fact that the
evidence which is sought to be led at the trial consists of information which is
already filed of record by way of affidavits and documents in the applications.
For example, in the plaintiff's synopsis of evidence the plaintiff indicates
that in the trial it will lead evidence from five witnesses, namely; Bishop
Trevor Mwamba, the Bishop of the Diocese of Botswana, Mr R Stumbles, the
Chancellor of the Diocese of Harare, Bishop Hatendi, Mr O Kuwana, Mrs M Ndebele
and from Phides Mazhawidza. It goes on
to say that Bishop Mwamba will take the court through the church's constitution
and will say that a diocese of the Church of the Province of Central Africa is
an integral part of the church and none of the dioceses can exist independently
from the Province and can only be excluded or removed from the Province through
a special procedure and that the defendants did not follow such procedure and
should be taken as having left the church and are no longer members of the plaintiff.
Mr
Stumbles will corroborate Bishop Mwamba and chronicle events leading to the
first defendant's secession from the plaintiff and tell the court how the first
defendant and his followers subsequently formed their own church known as the
Anglican Church for the Province of Zimbabwe, for which the first defendant is
the Archbishop, and that therefore the defendants cannot lay claim to the
assets of the plaintiff held through the diocese of Harare. The synopsis
concludes by pointing out that the rest of the witnesses “will lead evidence in
corroboration of the evidence set above”.
Now,
the evidence to be adduced from Bishop Mwamba is already part of the record in
the two applications by way of the filing of the Constitution and Canons of the
Church of the Province of Central Africa which have further been interpreted in
the affidavits and commented upon in heads of argument. The plaintiff's apparent star witness, Mr
Robert Stumbles, has already submitted a detailed affidavit on the issues
supported by an attachment of a statement of all the Anglican bishops
comprising the plaintiff at an Extraordinary Episcopal Synod especially held on
the diocese of Harare
issue. The other witnesses will
corroborate what the two key witnesses would have said. Beyond what is already
available on record, very little additional evidence, it seems, would be
forthcoming at the trial itself. Now, if
the issue can be determined on the basis of the affidavits and documents filed
of record in the applications, there appears to be very little reason why such
a decision should be postponed until a trial is held which would not put the
court in any materially better position to make the decision.
In Estate Breytenbach v Breytenbach supra at 269 it was said:
“If
the present matter can be decided on affidavit it is certainly just and
equitable and convenient that it should be so decided, otherwise respondent, by
reason merely of the fact that he has issued summons, will remain for a
considerable period in possession of the property to which he may not be
entitled and petitioners will be compelled to delay the liquidation of the
estate unnecessarily. As in my opinion
the matter can be decided on affidavit I am of the opinion that petitioners
should be allowed to proceed with their application and the exception of lis pendens fails...”
In
Richtersveld Community v Aleskor Ltd & Anor 2000 (1) SA 337
(LCC), it was concluded:
“At
the end of the day, considerations of convenience and equity must underpin the
exercise of any discretion whether or not to allow the defence of lis pendens. The case which is allowed
to proceed must not necessarily be the one that was instituted first. The question is whether 'justice will not be
done without the double remedy'. In the
present case I am satisfied that the plaintiffs had good reason for bringing
the second case.”
In
Geldenhuys v Kotzé 1964 (2) SA 167 (O) the applicant applied on a notice of
motion for the cancellation of a written deed of sale in terms of which he had
sold a certain farm to respondent, for an order that the respondent forthwith
vacate the farm and costs of the application.
Earlier an action had also been instituted in the same court against the
respondent for the cancellation of the same agreement with costs and also
damages. The respondent, who had already
entered appearance to defend the action, raised the defence of lis pendens, as the dispute in both
cases arose out of the same cause of action.
It was held that the applicant's procedure in bringing the application
was not inadmissible, either in relation to the facts or the nature of the
application, that the respondent had disclosed no good defence on the papers
and that, as the court had a discretion, the application should be allowed for
the sake of equity and convenience.
Accordingly,
the plea of lis pendens must fail,
and the factors discussed above and case authorities support this conclusion.
Locus
Standi
The
applicants' locus standi is
challenged on the basis that they left the church of the Province of Central
Africa, formed a province of their own called the Province of Zimbabwe and were
subsequently excommunicated, which allegations they deny. They maintain that
they, in their representative, and not individual, capacities attempted to
remove (withdraw) the diocese from the Province over a doctrinal dispute, that
in response to their request to withdraw the province, the Dean of the Province
responded by stating that their attempted withdrawal of the diocese was
“uncanonical and unconstitutional,” but, however, that their dissociation from
the province as individuals was accepted.
The
Dean's conclusion, in my view, was a non
sequitur. The applicants might have expressed their desire to sever ties
between the diocese and the province is very strong terms as noted by the
respondent, but nowhere in their letter do they evince a desire to withdraw as
individuals. Nothing done subsequently by the province to correct or ratify
this action seems to have been executed properly.
In
a letter dated 21 September 2007 addressed to the Archbishop and Primate of the
Church of the Province of Central Africa, the Most Reverend Dr B A Malango, Dr
Nolbert Kunonga in his capacity as Bishop of the diocese of Harare had written
concerning the formal withdrawal of the diocese of Harare from the Church of
the Province of Central Africa as follows:
“The
above refers, from the Bishop of the Diocese of Harare, Diocesan Synod,
Standing Committee, Diocesan Trustees and the whole body of the Church in the
Diocese…
Consistent,
therefore, with our 61st Session Diocesan Synod on the 4th
of August 2007, in accordance with the Scriptures and the will of God, we were
mandated by our Synod to dissociate and sever ties with any individual, group
of people, organization, institution, diocese, province which sympathizes or
compromises with homosexuality. We, the
Diocese of Harare, would like it to be put on record that with effect from 4th
August 2007 and as confirmed by the Provincial Synod, we are withdrawing from
the Church of the Province of Central Africa..”
On 16 October 2007 the Dean of the
Province of Central Africa and Bishop of Northern Zambia, the Right Reverend
Albert Chama responded in a letter headed “Acceptance of the Withdrawal of the
Bishop of Harare from the Church of the Province of Central Africa”:
“I
am in receipt of your letter dated 21 September 2007, addressed to the former
Archbishop of the Province, the Most Reverend Dr B A Malango advising him of
the formal withdrawal of the Diocese of Harare from the Church of the Province
of Central Africa.
I
would first like to advise you that it is constitutionally and canonically
impossible to withdraw the Diocese of Harare from the Church of the Province of
Central Africa because a diocese in accordance with the Constitution of the
Church of the Province of Central Africa forms an integral part of the
Province. Any act that purports to
withdraw a diocese is unconstitutional and uncanonical as this action is
tantamount to altering the very structure and essence of the Province. The Constitution and Canons of the Church of
the Province of Central Africa specifically stipulate that any alteration of
the Province would require the approval of the Provincial Synod after the Synod
of each Diocese in the Province has also approved and confirmed by the
Provincial Synod by a two-thirds majority of those present and has subsequently
been endorsed by the Archbishop of Canterbury as not affecting the terms of
Communion between the Church of the this Province, the Church of England and
the rest of the Anglican Communion.
Consequently,
the heading of your letter stating the 'Formal Withdrawal of the Diocese of
Harare from the Province of Central Africa' is unacceptable and
misleading. We, however, as the Dean of
the Province of Central Africa accept and acknowledge that you and some of your
supporters have by notice of your letter severed relationship with the Province
of Central Africa.
Therefore
I declare that the See of Harare is with immediate effect vacant and in
accordance with Canon 14(1) I shall be appointing a Vicar General to hold
office whilst the necessary steps are taken for the holding of an elective
assembly to elect the next Bishop of the Diocese of Harare.
Given
your leaving the Church of the Province of Central Africa we direct that all
properties and assets belonging to the Province should be surrendered
immediately to the Vicar General whose name we shall give you in a few days
time.”
Certain
developments and measures then followed, including the excommunication of the
bishop of Harare
some of the clergy and laity, the purported formation of a new province and the
ratification of the actions of the dean of the province.
Now,
if what the applicants did constituted an offence in terms of the canons of the
church, then they should have been charged, tried and punished accordingly.
Excommunication is a form of punishment following a trial. It has not been
shown that any such trial took place.
The
formation of a new province may be an act in violation of the canons of the
church and the church would be within its rights to punish such act in terms of
its own procedures. The courts will not interfere, for example, as regards
whether or not certain acts are punishable by excommunication or not as these
are issues within the ecclesiastical competency of the respondent. However, no such trials in terms of canons of
the church have taken place. All that
the province has done is to make declarations in direct conflict with specific
provisions of the canons.
Canon
24(1) provides that any bishop, priest or deacon of the province “may be
accused of and tried in Church
Court” for a variety of offences which include
schism and willful disobedience of church laws and authorities. There are strict procedures relating to the
prosecution of a bishop or a priest in terms of Canon 24(2):
“No original proceedings shall be instituted in any Church Court:
a)
…
b)
against a Bishop
of the Province unless it be preferred by at least three priests licenced in
the Province or by two Bishops of the Province, or, if it relates to matters
other than faith and doctrine, by at least three Priests and three
Churchwardens or Councillors all of the dioceses of the accused Bishop;
c)
against a priest or deacon, unless leave shall have
been given in writing by the Bishop:
d)
...”
The
canons also provide for the need for the issuance of notices to accused
persons, the right of appeal in respect of any conviction, the suspension of
decisions of the court pending appeal, etc. (Canon 26). There is nothing in the
pleadings showing that any of the above things were done and actual trials held
on the basis of which the sentence of excommunication was eventually
pronounced. Nothing.
I
have been referred to the opinion of my brother Hungwe in Diocese of
Harare v Church of the Province of
Central Africa & Anor 2008 (1) ZLR 112 (H) regarding locus standi of the applicants but, with
respect, it seems to me that the averments considered in that judgment are
different from what has been submitted before me. At any rate, since this
judgment is subject to a pending appeal, it would be remiss on my part to
comment any further on it.
By
the same token, I need not dwell on the contention of issue estoppel, which the
responds contends prohibits applicant from disputing that it has no locus standi as decided by Hungwe J, since this decision is
currently the subject of an appeal.
I
therefore find that the applicants do have locus
standi in judicio to bring these applications.
RE: COURT APPLICATION CASE HC 4327/08
The
issue whether there are disputes of fact which cannot be resolved on the papers
was not persisted in by the respondent in its heads of argument, and must be
regarded as having been abandoned. At
any rate, the court may take a robust approach and resolve the apparent
disputes. See Sofiantini v Mould 1956
(4) SA 150 (E) at 154 E, where it was stated:
“If by a mere
denial in general terms, a respondent defeats or delays an applicant who comes
to court on motion, the motion proceedings are worthless, for a respondent can
always defeat or delay a petitioner by such a device. It is necessary to make a robust, common
sense approach to a dispute in motion proceedings as otherwise the effective
functioning of the court can be humstrung and circumvented by the most simple
and blatant stratagem. The court must
not hesitate to decide an issue of fact on affidavit merely because it may be
difficult to do so.”
The
analysis pertaining to the issue of locus
standi has already led to the conclusion that the applicants do have locus standi to bring this application,
that they have not been lawfully removed from their positions as trustees and
that until they are so removed they continue to hold those positions and the
property of the church in trust.
Accordingly, the
order in terms of the draft as amended is granted.
RE: URGENT CHAMBER APPLICATION-HC 2792/09
Once
more the issue of locus standi has
been addressed, and decided. As far as the merits of the interim order sought
are concerned, the applicants need only establish a prima facie case. That the applicant will suffer irretrievable harm
if the proposed consecration of a new bishop for the dioceses of Harare proceeds before he
is legally removed from the same position admits of no dispute. That the matter is urgent and the remedy
sought is the only effective remedy available also admits of no dispute. The only real point of contention is what is
pointed out in the respondent's answering affidavit, to the effect that the
consecration of the new bishop has nothing to do with the position of the
bishop of the diocese of Harare. This new and startling contention is stated
in respondent's Harare
diocese registrar, Michael T Chingore's affidavit dated 23 July 2009 as follows:
“The third point
which should be made is that the Bishop being consecrated on 27th
July is a Bishop of the Anglican Communion worldwide, and not of Harare or the Church of
the Province of Central Africa. His
appointment transcends provincial boundaries.
The fact that the consecration is taking place in Zimbabwe does
not change the above position. The
consecration could have taken place in any part of the world. The position of Bishop of the Diocese of
Harare is an administrative position which may be given to him after his
consecration.”
However,
this contention is contradicted by all the previous pleadings and the affidavit
of a senior member of the church Mr Robert Atherstone Stumbles, the Chancellor
of the Anglican Diocese of Harare and Deputy Chancellor of the Church of the
Province of Central Africa, wherein he states that:
“The appointment
of Dr Chad Gandiya has been canonically confirmed and the respondent recognizes
him as the incoming bishop of the diocese”.
It
is quite clear therefore that the appointment of the new bishop is to replace
the existing one. Now, if Bishop Kunonga
is to be replaced, he must first be charged, tried, convicted and sentenced or
forced to resign in terms of the canons and constitution of the respondent. He cannot simply be replaced, wished away or
deemed to have resigned without due process in terms of the statutes declaring
or ratifying such removal.
To
use a homely example, a spouse in a monogamous relationship does not get rid of
a partner by marrying another spouse; that is bigamy, a crime. Such an estranged
spouse must first sue the errant spouse for divorce before entering into
another relationship. It does not zxmatter what the seriousness of the indiscretions
of the errant spouse may be. I suppose even in the traditional polygamous
relationships certain procedures like giving gupuro in the Shona culture or the thrice incantation of “I divorce
you” in the Islamic religion must be followed.
Accordingly,
the interim relief as amended is granted.
Chikumbirike & Associates,
applicant's legal practitioners
Gill Godlonton &
Gerrans, respondents' legal practitioners
