On 30 January 2018, the applicants caused to issue legal proceedings, an application, out of this Honourable Court –“In the High Court of Zimbabwe, held in Bulawayo. The applicant sought an order that it be declared that:(1) That the President of the Apostolic Faith Mission of Africa International is Reverend ...
On 30 January 2018, the applicants caused to issue legal proceedings, an application, out of this Honourable Court –
“In the High Court of Zimbabwe, held in Bulawayo. The applicant sought an order that it be declared that:
(1) That the President of the Apostolic Faith Mission of Africa International is Reverend Zulu.
(2) That the President of the Apostolic Faith Mission of Africa is Reverend Clement Nyathi.”
On the day of the hearing, on 10 July 2018, the first applicant quickly made what he termed an application for the matter to be removed from the roll.
That application, which must have taken everyone by surprise, was vigorously opposed by the first, second and fourth respondents.
The court may mention, at this stage, that, for all intents and purposes, it became clear, as the matter progressed, that this was an application (i.e. the main application and the “mini” application for removal from) were being orchestrated by the first applicant.
The second applicant, despite being present in court, and allegedly appearing in an individual capacity, said virtually nothing apart from bending over for a second to say he was associating himself with the first applicant's submissions - and this only when asked by the court.
The third applicant was not even present, although, upon inquiry by the court, the three (3) applicants were said, by the first applicant, to be appearing purely in their individual capacity.
The first applicant then told the court that for some reason, the third applicant had failed to attend court.
It was however clear that the first applicant, as he went on over-drive in submissions, was really speaking on behalf of all three (3) applicants - and moreso supposedly on behalf of a “church”.
This court had to discover later on…, that the third applicant is his wife, as shown by various other matters brought before the courts.
As the first applicant insisted, the court decided not to shut him out, as an unrepresented litigant, but to give him a long ear so to speak.
The court still asked him, however, to be clear on what application exactly he was making; in terms of what legal basis he was making it; and the reasons why he was making it.
The first applicant then said that this matter was heard before Mr Justice BERE who clearly recused and also clearly stated that no Judge from the Bulawayo High Court would hear the matter. He said that Justice BERE thus and then recused himself on his behalf and on behalf of all Bulawayo High Court Judges.
He went on to say both parties were therefore of the view that the matter would be transferred elsewhere and were shocked to be told that they were appearing before me.
He went on to say both parties would still press that no Bulawayo High Court Judge should hear the matter hence the application for its removal from the roll.
The court later learnt, from a copy of an order produced by counsel for the first, second and fourth respondents, and after reading a 'swarm' of other matters by the same litigants, that;
(i) Firstly, my brother Mr Justice BERE…, did not recuse himself from, this matter.
(ii) Secondly, and in any case, he did not and could not have legally recused himself on behalf of all other Bulawayo Judges. He clearly recused himself on his own behalf only.
(iii) Thirdly, both parties, the first applicant seemed to mean that the applicants and the respondents were all anticipating that the matter would be transferred elsewhere or would still pursue for that position. Clearly, that was not the case, he must himself have been taken by surprise, not only the respondents but also the second applicant. The third applicant was not in attendance anyway.
When the court sought to confirm whether indeed a transfer of the matter was the expectation and wish of both parties, counsel for the first, second, and fourth respondents emphatically disagreed and submitted that the court is being misled.
Counsel for the first, second, and fourth respondents also shed light on the plethora of cases, mostly applications brought before the courts by the three (3) applicants and/or their group. He further submitted that the applicants merely make a flurry of accusations, unfoundedly, with the sole purpose of diverting the court from its core business and mandate to properly deal with issues before it.
Ultimately, the first applicant in fact then and again went overdrive in his accusations, adding to the list counsel for the first, second, and fourth respondents himself and the Registrar's officer.
He even accused all Bulawayo Judges of “discussing” these matters before going into court.
He could not back down - even after being reminded that the Judge in this hearing had just come from Harare.
Unclear and unheralded as it sounded, the first applicant was directed to file his clear and written application before 18 July 2018 and serve it on the defendants' counsel.
He did not by close of business on 17 July 2018. The application/request had no merit, and, in any case, was vigorously opposed.
It is dismissed.
Coming to the main application, the court had sought to look at all the other matters involving the parties that kept on coming up in this application to have a better understanding of what was going on.
This was moreso because, from the reading of the papers, one was left wondering why such a matter was brought to court by way of an application in the first place. In fact, it had been initially brought as an urgent chamber application.
I must say that the respondents at…, point 18.4 of their opposing affidavit also make the same point; that the application procedure should not be used in matters that are as contentious as this one.
Secondly, the applicants, in their notice of application, state that the application is made in terms of Order 30 of the High Court Rules, 1971.
Order 30 provides for interpleader applications. The facts in this application have nothing to do with an interpleader – absolutely.
In addition to the court's reservations, as well as point 18.4 of the respondents' opposing affidavit, my brother, KAMOCHA J…, stated, on 5 February 2017, in case number HC302/17, that:
“This matter appears to have apparent and numerous disputes of fact about the ownership of the church and those can only be settled through a fully fledged trial.”
He dismissed the application.
This court managed to get 10 cases from this Honourable Court involving these parties - at times with other members of the church(s) involved. But, there appears to be about half a dozen more when considering those at the High Court, Harare, the Supreme Court, and Constitutional Court as well as the Magistrates' Court.
95% or more have been brought by the applicants or with their involvement.
There is no doubt, after reading a majority of those cases, that the applicants have taken it upon themselves to throw applications of whatever nature to these courts like confetti at a wedding.
Indeed, like my brothers and sister Judges before, it is like a hobby to them.
In my view, they seem like people who sit over coffee laughing and agree to file yet another application in the hope that they may get a contradicting decision, laugh their lungs out, and use it.
I would not agree more with my brother MATHONSI J, in case number HB236-17, that, “is common ground that when the church split in 2014, Manamela went with the group that totally moved away from the church premises…,. Quite clearly, Manamela wants to use the court to allow him to get into the premises which he left in 2014.”
The Judge went on to highlight what has been highlighted in various judgments involving the same litigants, that, from the checkered history of the matter, the applicants file application in the courts seeking literally the same relief, that of being allowed to “sneak back” into the church premises they abandoned out of their free will. This has become their pastime.
The current application is no exception.
MANGOTA J and the Supreme Court have stated the same.
In the current application, the applicants curiously make an application which seemingly brings no benefit to them but to one of the respondents in their application. This is the third respondent, a Reverend Clement Nyathi, who, for obvious reasons, does not oppose the application and makes no appearance.
A reading of the plethora of the other cases shows that the third respondent is, in fact, part of the applicants only thrown in the current case among the pigeons so to speak.
To that extent, this court would agree with counsel for the first, second, and fourth respondents that the intention is to pool wool over the court's face.
The court will agree that this application is more of an application made on behalf of Clement Nyathi, who has lost all matters involving and concerning the leadership of the church and control of the assets thereof. They are nothing more than foot soldiers of Clement Nyathi. They have lost almost all the matters.
The court will re-iterate my brother MATHONSI J's warning, that, a litigant or litigants cannot be allowed to enjoy filing frivolous applications at the same time abusing the court and other litigants.
