MAKARAU JP: After hearing submissions from counsel, I
dismissed the above application and indicated that my reasons would follow. I
now set then out.
On
28 April 2010, this court issued an order barring the applicants from
interfering with the first respondent's worshipping at a farm in Mazowe. The
order also specifically granted the first respondent access to the farm for the
purposes of worshipping and conducting church services.
The
order was granted unopposed.
On
14 May 2010, the applicants approached this court on a certificate of urgency
seeking a final order staying the execution of the order granted on 28 April
2010 and also rescinding the order. In the interim, the applicant prayed for an
order barring the respondents from conducting any church service at the farm.
The
applicant and the respondent were once one church, worshipping together at the
farm in Mazowe. The Founder of their church, one Mudyiwa Dzangare passed away
in May1989 at the farm, where he is buried. In May of each year, his followers
hold a congress in his memory. Before his death, Mudyiwa Dzangare is alleged to
have told his followers that he would resurrect and presumably come back to
lead his flock. A point of divergence emerged amongst his followers, with the
applicant believing that their dead leader is yet to resurrect in his old form,
an event that they await whilst praying at the farm where he died. The first respondent
on the other hand, believes that their founder has since resurrected in the
form of a baby girl who lives in Guruve, whom they now follow as the leader.
The
issue that sparks litigation between the parties is which of the two groups has
the right to hold its annual congress at the farm where the founder of the
church died and lies buried. It would appear that prior to the order of this
court issued on 28 April 2010, the applicants had successfully barred the first
respondents from worshipping at the farm, a situation that was reversed by the
order. In the urgent application before me, the applicants wanted the situation
to revert to the position where the first respondents stood barred from holding
the annual congress at the farm.
In
my view, this court is being called upon to determine on matters that are beyond
it. Matters ecclesiastical are best left to courts that are equipped to deal with
matters of faith where evidence of the facts being alleged may not be
necessary. Circular courts are trained to be and tend to be hard nosed and will
call for evidence on all facts alleged, a feat that destroys most faith for
faith is belief in things unseen and
unheard.
The
applicant has approached this court fro two separate remedies. Firstly, it
prays for an order staying the execution of the order granted on 28 April 2010.
Secondly, it prays for an order calling upon the first respondent to show cause
why the default judgment granted on 28 April 2010 should not be rescinded.
I
will deal with each of the relief sought in turn.
As
stated above, the applicant has approached court on a certificate of urgency to
have the execution of the order of 28 April 2010 stayed. This it seeks as a
final order.
That
this court has power to stay the execution of its judgments is trite. The staying
of execution of a judgment for whatever reason is a separate exercise of
discretion by the court. It is not granted for the mere asking as it seeks to
suspend or defer enjoyment of a legal right or benefit upheld by the court in
the judgment. It is therefore to be granted only if it is not in the interest
of justice that such right or benefit be enjoyed by the respondent. The
rationale for the position appears to be that once a litigant has been
successful and has obtained “fruits” from the preceding litigation, such a
litigant should not be deprived of such fruits unless it is not in the
interests of justice that they immediately enjoy the “fruits”. (See The Annot Lyle (1886) 11 PD 114 (CA) at
116 and Monk v Bartram [1891] 1 QB
346).
In
application for stay of execution pending appeal, review or determination of an
application for setting aside the judgment, the rationale of staying execution
has become so common place that judicial officers hardly find the need the
articulate it. It is clearly not in the interests of justice that the
respondent enjoys the fruits of litigation which may be reversed on appeal,
review or may be set aside after the determination of an application for
rescission.
In
casu, the applicant seeks to deprive
the first respondent of the fruits of its litigation that yielded the order of
28 April 2010. Such deprivation is not sought for on a temporal basis or
pending the determination of some other process that may reverse the gains made
by the respondent in the earlier proceedings. The applicant before me did not
follow the usual and in my view, correct procedure of seeking to suspend the
operation of the order temporarily and pending the determination of an
application for rescission of judgment.
I
may have been inclined to overlook this lapse in procedure and granted the stay
of execution as interim relief, had I been persuaded that the application as a
whole, had merit. In this event, I would have ordered the applicant to file an
application for rescission of judgment within a specified period, whilst the
temporary relief held. I was not so
persuaded. I will explain.
In
my view, the applicant adopted an incorrect approach in seeking to have the
default judgment set aside by way of an urgent application.
It
is trite that in urgent chamber applications, two complimentary principles are
at play. Due to the nature of the proceedings, the judge presiding over an
urgent chamber application may not issue a final order save with the consent of
all parties before him or her. This is so because a plaintiff approaching the
court on a certificate of urgency is required to do no more than establish a
prima facie case that he or she is entitled to interim recognition and
invariably, some protection, whilst calling upon the respondent to show cause
why certain final relief should not be granted. Final orders cannot be granted
on a prima facie basis. For final
relief, the applicant must succeed on a balance of probabilities, a level of
proof that is not required in urgent chamber applications but is a must in all
civil litigation.
Two
issues arise from the manner in which the applicant sought to have the default
judgment against it rescinded. It did not file a court application, on notice
to the respondents, as provided for in the rules of this court. Order 10 Rule
63(1) of the High Court Rules 1971 specifically provides that a party against
whom a judgment has been given in default may apply to have that judgment set
aside by filing a court application. It would appear that the ruled of court do
not envisage a situation where and when such relief can be obtained through the
filing of a chamber application.
While
the use of a wrong form of application to approach the court for relief is not
in general fatal to the application, in this instance, it is my view that it
is. By approaching the court by way of a chamber application, the applicant
assumed a very light burden of proof for itself to obtain rescission of a
default judgment. Had it approached the court in the normal way, it would have
assumed the burden of proving its allegations on a balance of probabilities. As it were, the applicant hoped to obtain
relief on a prima facie case and then shift the burden of proof to the
respondents to show why the default judgment should not be set aside. In my
view, this manner of proceeding is untenable as it has the effect of placing an
evidentiary burden on the respondents, which the law does not cast. It is not
part of our law that a respondent bears any burden of proof to hold onto a
default judgment in its favour. The burden is always on the applicant to prove
that there is just cause for the setting aside of the judgment.
Further
and in any event, it appears to me that the applicant has approached the court
on an incorrect factual basis. It incorrectly in my view alleges that it was
not served with the court application that yielded the order of 28 April 2010. It
is common cause that the second respondent's return of service indicates that
the application was served personally on the chairperson of the applicant, at
his homestead in Maodzwa village in Chiweshe Communal lands. The deponent to
the applicant's founding affidavit confirms that this is his abode and that he
has been resident at this abode since 1918. The whole application was premised
on a error by the applicant's legal adviser who clearly misread the return of
service and advised his client that service of the application had been
effected in Madziwa (Communal Lands), instead of Maodzwa. The similarity in the
spellings of the two localities is patent and the error on the part of the
legal practitioner may be understandable. The fact however remains that the
application was served at the right place and on the right person. It is valid
at law.
On
the basis of the foregoing, it is clear that the application was brought on a
wrong footing that emanated from a misreading of the return of service. It may be
that the application was not brought to the attention of those in the applicant
who would have been able to take action on it in time but on the face of it, it
was served on the applicant's chairperson.
In
his submissions, Mr Muunganirwa for
the applicant defined the issue before me as being the question whether or not
the applicant had the right to bar the respondent from congregating at the farm
which allegedly hosts the shrine of the applicant church. He urged me to grant
the application as to allow the two sides to worship at the same shrine would
inevitably lead to public violence.
In
essence, this is the burning issue between the parties as I have stated
elsewhere above. It calls for determination the question whether the applicant
has the right to exclusively worship at the shrine while it awaits the
resurrection of its founder. Conversely, it calls for the determination of
whether the respondent is correct in its assertions that its leader has since
resurrected in the form of the little girl in Guruve.
In
my view, the rights that the applicant asserts or seeks to assert to
exclusively worship at the shrine whilst awaiting the resurrection of its
leader are not founded on common law or in any statute. They may be based on
the peculiar faith that the applicants and the first respondent subscribe to. They
are incapable of expression of enforcement in a circular court of law unless
and until they come in disguised or dressed up as some common law or statutory right. Similarly or conversely,
the reasons advanced by the applicant for excluding the other faction of the
church from worshiping at the farm are not recognizable at common law. Believing
that their common leader has resurrected is not a bar at law from worshipping
at the farm where the church leader died.
Assuming
therefore that the application before me sought interim protection for the
applicant not to have its shine adulterated by the presence of the “girl
jesus', leader of the first respondent, I still would have dismissed the
application on the basis that I have no ecclesiastic jurisdiction to determine
the correct leader of this particular church, being a mere secular court.
It
is on the basis of the foregoing that I dismissed the above application.
Muunganirwa & Co, applicant's legal
practitioners.
J Mambara &
Partners, 1st respondent's legal
practitioners.
