BHUNU
J: The applicant in his founding
affidavit states that he is a dully consecrated and enthroned Bishop currently
heading the Anglican Diocese of Manicaland.
The
second applicant is the Anglican Board of Trustees for the Diocese of
Manicaland whereas the first respondent is the Church of the Province of
Central Africa.
On
23 September 2007 the Rt. Reverent Elson Jakazi addressed a letter to the
Archbishop of the Church of the Province of Central Africa and the Bishop of
Upper Shire notifying them of its withdrawal from the church of the Province of
Central Africa.
The
withdrawal was prompted by disagreements on issues of homosexuality.
The letter
reads:
“Your Grace,
RE:
NOTIFICATION OF WITHDRAWAL OF THE ANGLICAN DIOCESE OF MANICALAND FROM THE
CHURCH OF THE PROVINCE OF CENTRAL AFRICA
The above
subject refers.
To put to rest
speculation from your office, the church of the Province of Central Africa and
the rest of the Anglican community, this letter comes to you as confirmation
that the Anglican Diocese of Manicaland has withdrawn from the church of the
Province of Central Africa with effect from 21 September 2007.
The resolution
by the Diocesan committee which is attached and my submission to the Provincial
Synod when I moved a motion on the need for the dissolution of the Province
also attached and the minutes of the standing committee is a statement of
emphasis on this matter by the standing committee
This your Grace
is the kind of seriousness that we take this matter.
Yours faithfully
Signed
The Rt. Revt.
Elton Jakazi.
cc All Bishops of the Church of Central
Africa the Bishops of the Church of The Province of Central
Africa”
The
Bishops of the Province of Central Africa responded by issuing a statement
rejecting the withdrawal of the Diocese of Manicaland but accepted the
withdrawal of the first applicant as an individual. The statement reads in part:
“BISHOPS OF
THE PROVINCE OF CENTRAL AFRICA STATEMENT ON
THE DIOCESE OF MANICALAND ISSUE.
We the
undersigned Bishops of The church of the Province of Central Africa At the
extraordinary Episcopal Synod held on 24 December 2007 at the Lusaka Hotel
Zambia, state that we were consulted by the dean of The Province of Central
Africa the Rt. Rev. Chama in connection with the contents of the letter of 23
September 2007. Addressed to the Archbishop of the Church of The Province of Central
Africa. (CPOA) concerning the withdrawal by
Bishop Jakazi of the Diocese of Manicaland from the CPOA.
We unanimously
concur that:
1.
The fundamental declarations, articles of the
constitution, canons and laws of the CPOA do not permit the unilateral
withdrawal of a Diocese from the Province even if as alleged by Bishop Jakazi
but challenged by many, the Diocesan standing committee of the Diocese
unanimously expresses a desire no longer to be associated with the province.
2.
Bishop Jakazi was inter
alia expressing his personal attitude and intention to severe all ties with
the Province and was himself withdrawing from the Province.
3.
In the circumstances we accept his personal
resignation and withdrawal from the body of the CPOA”. (my emphasis).
The
applicant in a letter written by his Diocesan Registrar dated 31 October and
subsequently followed up by his own letter attempted to recant and retract his
withdrawal from The Central Province of The Church of Central Africa.
The
retraction met with outright rejection. On 20 December 2007 Bishop Albert Chama
advised him of the same in the following terms:
“We write to
advise you that following the letter of 31 October 2007 written on your
instructions by the Diocesan Registrar of Manicaland, Mr. Peter Makombe
retracting your withdrawal from the Church of The Province of Central Africa as
per your letter of 23 September2007, addressed to the former Archbishop of Central
Africa Dr. Bernard Amos Malango and copied to all bishops of the Province, The
extraordinary Episcopal Synod held at the hotel on 20 December 2007 considered
your letter of retraction and decided to
uphold the earlier decision taken and communicated to you that you are no
longer a Bishop of the Church of the Province of Central Africa,
Consequently we
as dean of the Province of Central Africa immediately appoint a Vicar General
for the Diocese of Manicaland pending the election of the next Bishop.”
The
first respondent followed up by appointing the second and third respondents in
terms of the above letter.
Aggrieved
by the first respondent's refusal to reinstate him and the appointment of the second
and third respondents, the applicants launched this urgent chamber application
seeking a declarator setting aside the appointments on the basis of
unlawfulness. It also seeks to have the first applicant declared the reigning
Bishop for the Diocese of Manicaland until such time his appeal has been
determined in terms of the first respondent's constitution and canons. It is an
established rule that resignation is a unilateral voluntary act which takes
effect as soon as the resignation has been communicated to the correct person
or authority. In the case of Mazengi v Standard Chartered Bank & Anor (2)
ZLR 137 this court held that a letter of resignation constitutes a final act of
termination by an employee.
What
this means is that once the first applicant's resignation letter was received
by the Archbishop of the Central African Province
of Central Africa the first applicant
automatically ceased to be an employee or member of that church organization
without any further formalities.
Having
ceased to be an employee or member of the church organization he automatically
stripped himself of any rights and privileges arising from the contract of
employment, membership or his status as Bishop of that church organization. The
first applicant was not dismissed. His was a voluntary act to resign from that
church organization. That being the case, he can hardly be heard to complain or
cry foul. Any appeal or review which he may launch means that he is appealing
or seeking a review of his own conduct. This is wholly untenable and illogical
such that it must be incompetent at law.
The
applicant having voluntarily divested himself of all rights and privileges
accruing to a member, employee or Bishop of the Anglican Church Province of
Central Africa he has no residual rights to
meddle in the affairs of that organization by barring the appointment of
replacement staff.
For
that reason the application cannot succeed. It is accordingly ordered that the
application be and is hereby dismissed with costs.
Chikumbirike & Associates, applicants' legal practitioners
Gill Godlonton &
Gerrans, respondents' legal practitioners
