Liability, Negligence or Dolus re: Fraud

HH10-18 : UPENYU MASHANGWA and BLESSING MASHANGWA vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and UNITED FAMILY INTERNATIONAL CHURCH
Ruled By: MANGOTA J

The plaintiffs are husband and wife. They are members of the third defendant.

The first and second defendants are also husband and wife respectively. They are leaders of the third defendant.

The third defendant operates under the name United Family International Church.

The first and second defendants, as leaders of the third defendant, are allegedly endowed with the spiritual gift of being able to foretell a person's past, present, and future circumstances.

They are, in the parlance of the third defendant's teachings, referred to as prophets.

The plaintiffs filed six claims against all the three defendants. These entered appearance to defend.

They, in terms of Rule 140 of the High Court Rules 1971 addressed a letter to the plaintiffs. The letter is dated 9 August 2017.

The letter complained about the manner in which the plaintiffs pleaded their claims. Its contents alleged that:

(i) The claim was either vague and embarrassing; or

(ii) The claim did not disclose a cause of action; or

(iii) The claim did not clarify if the plaintiffs were suing in contract or in delict; or

(iv) The plaintiffs did not know how to plead defamation under the actio injuriarum; or

(v) The plaintiffs failed to appreciate that mental anguish was not a head for damages claimable for defamation; or

(vi) The plaintiffs did not state, in regard to the sixth claim, if they were pleading defamation or injuria.

The letter placed the plaintiffs on notice to remedy the alleged defects which the defendants complained of failing which the latter would except to the claims.

The plaintiffs received the letter on 10 August 2017. They did nothing about the complaint.

The defendants filed the exception on 30 August 2017. This is, therefore, the subject of these proceedings.

The record does not show the date on which the defendants served the plaintiffs with the exception. Nor does it show the date that they served their heads of argument upon the plaintiffs.

What is evident, however, is that both parties filed their Heads.

The defendants Heads were filed on 20 September 2017. The plaintiffs filed theirs on 4 October 2017.

The filing of Heads by the parties set the stage for the exception to be heard and determined.

The defendants summarised their case in paragraphs (3) and (4) of their Heads. They submitted that the plaintiffs summons and declaration were excipiable in two respects. These were that:

(a) They did not disclose any cause of action against any of the three defendants; and

(b) They are vague and embarrassing to the extent that the vagueness and embarrassment go to the root of the cause of action.

Critical to the resolution of this matter is whether or not one or more, or all, of the claims do not, as the defendants alleged, disclose a cause of action.

Where they do not, the defendants position remains unassailable. Where they do, the defendants complaint remains unwarranted.

The phrase 'cause of action' was aptly defined in Peebles v Dairiboard Zimbabwe (Pvt) Ltd 1999 (1) ZLR 41 which the defendants cited in their Heads. The case authority says of the phrase:

“Simply, a factual situation the existence of which entitles one person to obtain from the court a remedy against another person.”

The question which begs the answer is: does that factual situation exist in each of the plaintiffs six claims?

The plaintiffs said it does.

They also submitted, and in my view correctly so, that all their claims were grounded in delict and not in contract.

An analysis of each of the six claims is relevant. It is from the intended analysis that the existence or otherwise of the cause of action is established.

The plaintiffs case was/is that their claims (1) to (4) rested on the delict of fraud.

Professor G. FELTOE defines fraud in his “A Guide to The Zimbabwean Law of Delict” 3rd Ed…,. The learned author states that the delict of fraud falls under deceptive practices. He says fraud is committed when the defendant, with intent to defraud, makes a statement to the plaintiff knowing or suspecting that the statement is false and intending that the plaintiff will act upon it to his prejudice. He stresses that, if the plaintiff suffers loss as a result of such fraudulent deception, he is entitled to claim damages.

With fraud, therefore, the false statement is made to the plaintiff who acts upon it.

The definition which Professor FELTOE gave for the delictual action of fraud is, with minor variations, substantially the same as fraud as defined in the law of contract.

INNOCENT MAJA defines fraud from the perspective of the law of contract. The learned author states in his book “The Law of Contract in Zimbabwe”…, that:

“For an innocent party to claim delictual damages successfully, she/he must establish that:

(a) There was a wrongful or unlawful conduct (by either commission or omission) by the wrongdoer:

(b) The conduct led to the harm of a person, property, or finances; and

(c) The wrongdoer caused patrimonial loss either intentionally or negligently.”

The plaintiff's statement, as regards each of the four claims, is that they are claiming delictual damages from the defendants.

They submitted that the damages are based on the misrepresentations which the defendants made to them and other members of the third defendant. The misrepresentations, they argued, induced them to act as they did to their actual prejudice. The defendants, they said, by word or conduct, created false impressions in their minds and the impressions induced them to act in the way which they did much to their serious loss. They argue that the defendants made the false statements with the specific intention to defraud them.

The argument of the defendants is that the statements were not made to the plaintiffs alone. They were made to all members of the third defendant, and during church service.

The plaintiffs declaration shows that whilst the statements were made to all members of the third defendant, the plaintiffs acted upon them. These, it is evident, enjoyed a special privileged position in the third defendant. A reading of each claim shows the following:

Claim 1:

The first and second defendants knew, before the date the statement was made, that the plaintiffs had an existing ZB Bank loan to the tune of $500,000. The plaintiffs had informed them of that matter privately. The statement, which was to the effect that anyone with a bank debt or loan would be cancelled as it was the season of miraculous cancellation of debts did induce the plaintiffs, more than any other congregant, to believe the defendants. They did, and, in the process, they lost their Marlborough house as a result of the same.

Claim 2:

The defendants statement, which was to the effect, that, one Tichaona Mawere was a great lawyer who would never lose a case, was taken seriously by the plaintiffs. Out of their trust in the defendants, they handed their case to Mr Mawere for his attention. When he produced no results, they consulted the defendants on the same. These assured them that everything was above board.

Claim 3:

The first and second defendants would call the plaintiffs onto the stage, presumably during church service, and announce to the congregants that the plaintiffs were a successful example of their Ministry. Such statements encouraged the plaintiffs to pour more and more contributions, in the form of money, into the third defendant's pocket.

Claim 4:

The defendants paraded the plaintiffs on stage, presumably during church service, and showed them as the chosen people whom God showered with blessings to a point where they were regarded as successful business people.

It is evident, from the foregoing, that, the plaintiffs and the defendants enjoyed very good social, and possibly, spiritual ties. That fact alone explains why the plaintiffs took the word of the defendants more seriously than any other member of the third defendant did.

That the defendants made the statements, in words or deed, in all the four claims, requires little, if any, debate.

The statements, the plaintiffs argue, were false.

They were made with the intention that they act upon them. They so acted upon them to their actual prejudice in regard to each claim. They stated, and correctly so, that, if they had known the true facts, they would not have acted in the manner which they did.

The plaintiff's case in regard to the four claims is water-tight. There is nothing which is vague and/or embarrassing in each of those claims. Their cause of action for each is clear, cogent, and to the point. The claims fall neatly into the delict of fraud. They are neither frivolous nor vexatious.

The defendants urged the court not to concern itself with the claims of the plaintiffs. They submitted that the claims arose from proceedings which took place within the third defendant. They said the proceedings related to matters of faith in which the court had no business.

They, in the mentioned regard, referred the court to the dictum of DOUGLAS J who made some remarks on a matter which was similar to the present one. The learned judge stated in United States v Ballard 322 US 78 (1944) that religious doctrines and beliefs could not be subjected to the rigours of legal proof.

The defendants took their arguments to the jurisdiction of this court.

They referred me to what DEVITTE J stated in Independent African Church v Maheya HH79-90 wherein he remarked as follows:

“…, in the case of a congregational schism, where the resolution of a church property dispute involves matters of church doctrine and practices, the courts should not become immersed in a consideration of the merits of doctrinal matters. They ought, instead, to use a term applied by the American courts to apply 'neutral principles of law.'”

The plaintiffs argued to the contrary.

They stated that the court can, indeed, inquire into matters ecclesiastical. They, in the mentioned regard, placed reliance on Church of the Province of Central Africa v Diocesan Trustees of the Diocese of Harare SC48-12 which they said rejected the position which this court took in Independent African Church v Maheya HH79-90.

They insisted that the current case does not require the court to inquire into matters ecclesiastical. They said it requires the court to inquire into the defendants lies.

They placed further reliance on Robert Martin Gumbura v The State SC78-14 wherein PATEL JA, dismissing Gumbura's appeal for bail pending appeal, stated as follows:

“In the circumstances presented by this case, the quasi-mystical force of religious dogma might overwhelm its conscripts and devotees to a point where it operates to vitiate and negate any meaningful consent to sexual abuse and exploitation by their spiritual masters.

Taking a broad conspectus of the facts and probabilities in casu, it appears to me that the complainants having been enmeshed within the overpowering cocoon woven by the appellant, unwillingly succumbed to his sexual advances and predations. Thereafter, constrained by fear and misconception, they remained taciturn for several years and only reported their respective ordeals after appreciating the full nature of their sexual bondage.”…,.

The background to the above citation is that Gumbura, like the first two defendants, was a leader of his church. He was tried and convicted of rape by a magistrate. He appealed to this court against conviction and sentence. He unsuccessfully applied to the magistrate for bail pending appeal. He appealed to this court and also failed. He appealed to the Supreme Court against the decision of this court which refused to grant him bail pending appeal. He submitted, as a ground of appeal, that the complainants took an inordinate delay to complain against what he was alleged to have done to them. He said the complainants delay in reporting the rape showed that his prospects of success on appeal were very strong.

The learned judge of appeal rejected his argument.

He remained of the view, that, Mr Gumbura had to prosecute his appeal while he is in prison. He, therefore, dismissed the appeal.

Two important matters come out of the above cited case:

(i) The first is that every person is fallible. No one is, therefore, immune to making mistakes. That is so notwithstanding the person's standing, social, spiritual or otherwise, in society.

(ii) The second is that, where one commits a crime or a wrong (i.e delict) the person cannot escape the long arm of the law. He will either be prosecuted or sued, depending on what he is alleged to have done. That depends on the definition which society places on his conduct. That will, once again, occur irrespective of his status, social, spiritual or otherwise, in society.

Applying the above-observed matters to the current case, therefore, the defendants cannot be allowed to hide behind the proposition that their situation relates to ecclesiastical matters which the court has no jurisdiction to determine.

A fortiori when Independent African Church v Maheya HH79-90, upon which they placed reliance, was over-ruled by the Supreme Court.

Where they are alleged, as in casu, to have acted fraudulently to the prejudice of some of their congregants, the latter have every right to sue them.

The plea which they advance will not, therefore, assist them.

Appealed
SC95-21 : UPENYU MASHANGWA and BLESSING MASHANGWA vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and UNITED FAMILY INTERNATIONAL CHURCH
Ruled By: GWAUNZA DCJ, MAKONI JA and BERE JA

This is an appeal against the whole consolidated judgment of the High Court dismissing the appellants application in HC4197/18 and granting the respondents application in HC1774/18.FACTUAL BACKGROUNDThe appellants are husband and wife and were, at one point, members of the United Family International Church (“UFIC”), the third respondent in casu.The ...

This is an appeal against the whole consolidated judgment of the High Court dismissing the appellants application in HC4197/18 and granting the respondents application in HC1774/18.

FACTUAL BACKGROUND

The appellants are husband and wife and were, at one point, members of the United Family International Church (“UFIC”), the third respondent in casu.

The first and second respondents are also husband and wife and are the leaders (prophet and prophetess, respectively) of the United Family International Church (UFIC).

In the court below, the appellants instituted an action against the respondents, under HC7214/18 claiming a total sum of US$6,535,000 to be paid jointly and severally, the one paying the others to be absolved, broken down as follows:

“(a) Damages for US$700,000 being the value of property number 14 Edinburgh, Marlborough, Harare.

(b) A refund of the sum of US$1,698,000 for misrepresentation.

(c) US$37,000 being refund for fees paid to Tichaona Mawere.

(d) An amount of US$1,100,000 being a refund paid to the defendants.

(e) An amount of US$2,000,000 being damages for fraud and misrepresentation.

(f) An amount of US$500,000 being damages for mental anguish.

(g) US$500,000 being damages for defamation of character. (sic)

(h) Payment of interest on the sums in (a) to (g) above at the prescribed rate from the date of demand to the date of full and final payment.

(i) Payment of costs of suit on a legal practitioner and client scale.”

The claims were particularised in the declaration as summarised hereunder:

CLAIM ONE

In 2012, and during church proceedings, the first and second respondents fraudulently misrepresented to the appellants “that anyone with a bank debt or loan was to be cancelled as it was a season of miraculous cancellation of debts.” (sic)

It is alleged, that, this followed after the respondents had been 'privately' informed that the appellants had an existing ZB Bank loan in the sum of US$500,000.

As a result of this misrepresentation, the appellants were induced not to pay back the loan, and, as a consequence, the Bank executed on their immovable property thus causing them to lose a property worth US$700,000.

CLAIM TWO

In the same year, the respondents misrepresented in church, that, one Tichaona Mawere (Mawere) “was a great lawyer and that he would not lose a case” when in fact he was not a registered legal practitioner.

Acting on the misrepresentation, the appellants instructed the said Tichaona Mawere (Mawere) to handle their matter for a claim of US$1,698,000 and expended fees in the sum of US$37,000. Mawere produced fake court orders resulting in them making a loss to the tune of US$1,735,000.

CLAIM THREE

That, in the period ranging from 2014 to 2016, the appellants were called on stage in church. The respondents would announce that the appellants “were a successful example in the Ministry.”

Acting on these “misrepresentations” the appellants made various direct contributions amounting to US$1,100,000 to the respondents. The respondents would represent “that, in so contributing, the plaintiffs (the appellants) would reap what was commensurate with their contributions.”

CLAIM FOUR

The appellants were again paraded in church on stage “as a chosen people by God to have succeeded in business.”

As a result of that further “misrepresentation” the appellants marketed the respondents prophecies for the advancement of the respondents interests and “their prophesies as the success story of the prophesies.” In the process, the appellants were prejudiced to the tune of US$2,000,000.

CLAIM FIVE

Before the amendment, which I shall deal with later, the claim was that “the defendants (the respondents) caused damages through defamation (sic) by publishing false articles against the plaintiffs and their business activities; articles claiming that the plaintiffs perfumes cause cancer.”

CLAIM SIX

The appellant's claimed that “the defendants caused mental anguish to the plaintiffs, emotional embarrassment and torture by exposing the plaintiffs private lives on the defendants Facebook online page 'The Truth About Prophet Makandiwa.'”

It was further averred, that, the information had been given to the respondents “in private” and the statements were meant to destroy their reputation.

Upon being served with the summons, the respondents entered an appearance to defend.

They further addressed a letter to the appellants, in terms of Rule 140 of the High Court Rules 1971 (the Rules), to the effect that the claims in question were vague and embarrassing and that they did not disclose a cause of action.

It was averred that it was not clear whether the appellants were suing in terms of Contract or under the Law of Delict, and, as regards claims five and six, whether the claims were made under defamation or injuria.

The appellants did not respond to this letter.

Consequently, the respondents filed an exception to the appellants summons and declaration.

The exception was dismissed on 12 January 2018 by MANGOTA J who ordered that the appellants amend their declaration in respect of claims five and six, that the respondents file their plea, and that the matter proceeds in terms of the Rules.

As directed, the appellants amended their declaration in respect of claims three, five, and six.

CLAIM THREE

It was amended by the addition of paragraph 20.1.

It was claimed, that, upon being confronted by the appellants, the respondents undertook to repay the appellants all the money they had contributed upon proof of such payment. Despite being furnished with the proof, the respondents have refused or neglected to pay in accordance with their undertaking.

CLAIM FIVE

It was amended by deleting the original claim and substituting it as summarised below:

The appellants were in the business of manufacturing and selling perfumes. On or around 16 August 2016, and after the fallout between the appellants and the respondents, the respondents caused to be published an article in the Herald Newspaper in which they said:

“You just need one person who can move around telling people that your perfumes can cause cancer and the news begins to spread; your company will begin to go down.” (sic)

“The statement was false and the respondents intended to spread a rumour and thereby injure the appellants in their trade. In view of the close relationship between the parties before the fallout, the words of the respondents caused a rumour to spread that the appellants perfumes cause cancer. As a result of the statement, and the subsequent rumours, the public desisted from purchasing appellants perfumes. Consequently, the appellants, through their company, ceased to manufacture the perfumes. The appellants suffered damages due to the respondents wrongful conduct in the sum of USD$500,000.”

CLAIM SIX

The original claim was deleted and substituted with a claim summarized as follows:

On or about 2 February 2017, the respondents caused to be published on their Facebook page titled “The truth about Emmanuel Makandiwa” private and intimate details of the appellants which they had received in confidence. The publication of the details was wrongful and was done with an intention to injure the appellants standing in society, and was done in the wake of the fallout between the parties. Appellants suffered damages, as a result of the unlawful intrusion into their private lives, in the sum of USD$500,000.

Following the dismissal of the exception, and, on 23 February 2018, the respondents filed an application for the dismissal of the appellants claims in toto in terms of Order 11 Rule 75 of the High Court Rules, under HC1774/18.

The respondents, having failed to prosecute their application under HC1774/18 timeously, the appellants filed a chamber application for dismissal of the same for want of prosecution in terms of Rule 236(3)(b) of the High Court Rules, on 8 May 2018, under HC4197/18.

Since both matters were set down for hearing at almost the same time, and, before different judges, a request was made for their consolidation and it was granted.

DETERMINATION BY THE COURT A QUO

The court' s approach was to determine the application in terms of Rule 236(3)(b) of the High Court Rules under HC4197/18 first.

It opined, that, if it granted the relief being sought by the appellants that would be the end of both matters. If it dismissed the application, then, it would proceed to hear the respondents application in terms of Rule 75 of the High Court Rules, under HC1774/18, which it coined the main matter.

Regarding the application for dismissal for want of prosecution, the court found that the reasons proffered for the delay in prosecuting the matter were reasonable. It also stated that it had a discretion to discharge the application or make any other order as it deemed fit in the circumstances.

In the result, the application for dismissal for want of prosecution was dismissed and the court ordered that the main matter be heard on the merits.

Pertaining to the issue of the dismissal of the appellants claims, in terms of Rule 75 of the High Court Rules, the court a quo dealt with each of the appellants claims in turn.

It found, that, the appellants claims were frivolous and vexatious and warranted summary dismissal.

Aggrieved by the decision of the court a quo, the appellants noted an appeal to this Court. This is the appeal that this Court is seized with.

GROUNDS OF APPEAL

“1. The court a quo erred and misdirected itself in that having found that respondents had, by their admission, failed to prosecute their cause within the prescribed period, it ought to have dismissed for want of prosecution; no special circumstances existing to exercise a discretion in their favour.

2. The court a quo grossly erred and misdirected itself in that a prior judgment of the High Court, in HH10-18, having established that a valid and substantiated cause of action based on fraud existed between the parties, it could not render otherwise.

3. A fortiori the court a quo effectively reviewed and contradicted an extant earlier judgment of a judge of parallel jurisdiction on the same cause, between the same parties, contrary to the principles of res judicata and issue estoppel.

4. The court a quo further erred and misdirected itself in finding, contrary to law, that, fraud and fraudulent misrepresentation did not constitute a valid cause of action at law; subsequently, the court a quo erred in failing to find that the question of whether fraud and its constituent elements had been proven was an evidentiary issue reserved for trial.

5. The court further grossly erred and misdirected itself in determining the matter regardless of conflicting material averments which could not be resolved on affidavit a fortiori, it could not find as a matter of fact that the claims by the appellants were frivolous and vexatious, absent evidence and its testing in contested action proceedings....,.

Regarding grounds four and five, the court, at the outset during the hearing, enquired of counsel for the appellants whether these grounds had been abandoned as they had not been motivated in the Heads of Argument.

In response, counsel for the appellants advised, that, none of the grounds were being abandoned.

On being asked to direct the court to where these grounds were motivated, he directed the court to paragraph 15 of the appellants Heads of Argument. This is what paragraph 15 states;

“Even if the court per TAGU J could revisit the question, it still did so wrongly and wrongfully. That there is a valid cause of action is beyond doubt. The law allows refunds and reimbursements for unlawfully paid funds. As a result, there cannot be argument that no cause of action can arise.”

The argument advanced in this paragraph completely misses the respondents position.

It is not that there is no cause of action. It is that the appellants pleaded falsehoods and that they could never succeed at trial on the facts as pleaded. Their action was therefore frivolous and vexatious.

The paragraph also misconstrues the finding of the court a quo.

Nowhere in the judgment a quo is it stated that a misrepresentation did not constitute a valid cause of action.

The court a quo examined each claim separately and gave reasons as to why it found each claim to be frivolous and vexatious. The crisp finding of the court a quo, in respect of each claim, was that on the facts as pleaded by the appellants, no competent cause could be sustained.

By way of illustration, in Claim One, the appellants alleged that the respondents alleged that they stopped paying the loan that they had obtained from ZB Bank on the basis of a prophecy made by the respondents to the effect that it was “a season of miraculous cancellation of debts.”

It could not, on the facts as pleaded by the appellants, be established through a deeds search at the Registrar of Deeds office that the appellants owed ZB Bank Limited USD500,000 and that the property they allegedly lost was bonded in favour of ZB Bank for that amount.

It could not be supported, factually, through a search carried out in the Civil Registry of the High Court that ZB Bank sued the appellants for USD500,000 between 2012 and 2017 as alleged, and that the property in question was attached or sold in execution as alleged or at all at the instance of ZB Bank Limited.

The reality on the ground, which the appellants never controverted, was that the property was at all material times owned by Carmeco Investments (Private) Limited (Carmeco) a separate persona from the appellants in terms of Deed of Transfer No.10763/2002 dated 24 September 2002.

In that regard, the law relating to companies applies with full force and effect.

The appellants cannot claim to have been prejudiced in respect of what they did not own.

In any event, as early as 29 February 2012 Carmeco Investments (Private) Limited had sold the property for USD800,000 to Nemajo Family Trust as represented by Steward Nyamushaya. The purchase price thereof was paid in full through the appellants agents, McDowells International (Private) Limited.

At no time did it appear from the deeds search that Carmeco Investments (Private) Limited, which owned the property, mortgaged number 14 Edinburgh Road, Marlborough to ZB Bank Limited for the sum of USD500,000 during the period 2012 to 2017.

The above illustration clearly demonstrates that the appellants pleaded falsehoods.

In their notice of opposition to the application, the appellants did not controvert these facts.

They contended, that, they did not have to reply to the evidence submitted by the respondents as it was a matter of evidence to be related to at trial.

They overlooked the fact, that, in terms of Rule 75(2) and (3) of the High Court Rules a party making an application in terms of subrule (1) is required to do two things:

(i) Firstly, he or she shall file an affidavit in which he sets out his belief that the action is frivolous and vexatious and the grounds for his belief.

(ii) Secondly, he or she may attach documents which verify his or her belief that the matter is frivolous and vexatious.

Once that information has been placed before the court, it should be incumbent upon the other party to controvert it.

In casu, the appellants did not do so. Rather, they directed their energy to a vitriolic attack on the respondents instead of addressing the requirements of Rule 75 of the High Court Rules.

Having misconstrued the court a quo's finding, grounds of appeal four and five must fail.

View Appeal
HH40-19 : UPENYU MASHANGWA and ANOR HC4197/18 and EMMANUEL MAKANDIWA and OTHERS HC1774/18 vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and ANOR and UPENYU MASHANGWA and ANOR
Ruled By: TAGU J

The two matters were consolidated to avoid conflicting judgments as the two matters involving the same parties, and same issues, were ready for arguments at almost the same time before different judges.

At the hearing of the two matters, counsels for the parties did not make oral submissions but agreed that the two matters be decided on the papers filed of record.

The following is the background to the two matters.

Upenyu and Blessing Mashangwa (the Mashangwas) are husband and wife respectively. They are members of the United Family International Church (UFIC).

Emmanuel and Ruth Makandiwa (the Makandiwas) are also husband and wife respectively. The Makandiwas are leaders (prophet and prophetess respectively) of United Family International Church (UFIC).

In case HC7214/18 the Mashangwas filed summons in this Honourable Court containing six claims against the Makandiwas and the United Family International Church for a total sum of US$6,535,000 to be paid jointly and severally, the one paying the other to be absolved.

In their declaration, the Mashangwas claimed that:

(1) In the year 2012, at Harare, and in church, the Makandiwas fraudulently and misrepresented to the Mashangwas that anyone with a bank debt or loan was to be cancelled as it was the season of miraculous cancellation of debts after the Makandiwas were informed, privately, that the Mashangwas had an existing ZB Bank loan to the tune of US$500,000.

As a result of the misrepresentation, the Mashangwas were induced not to pay the ZB Bank loan, and, in the result, the Bank executed on the Mashangwas property being 14 Edinburgh Road, Harare for $500,000 thereby losing their house valued at $700,000.

(2) In the same year, the Makandiwas misrepresented, in church, that one Tichaona Mawere was a great lawyer who would not lose a case, when, in fact, Mr Tichaona Mawere was an unregistered legal practitioner.

Acting on the misrepresentation, the Mashangwas handed over their McDowell file to the said Tichaona Mawere for a claim of US$1,698,000 and expended in fees an amount of US$37,000. Tichaona Mawere then produced fake court orders and the Mashangwas lost a total sum of US$1,735,000.

(3) In the years ranging from 2014 to 2016, the Mashangwas were called on stage, in church, by the Makandiwas and were announced as a successful example in their Ministry (UFIC).

Acting on this misrepresentation, the Mashangwas made various direct contributions to the Makandiwas and the church money amounting to US$1,100,000.

(4) The Mashangwas were also paraded in church, on the stage, by the Makandiwas, as the chosen people by God to have succeeded in business.

As a result of the misrepresentation, the Mashangwas marketed the Makandiwas prophecies to the tune of US$2,000,000.

(5) and (6) In claims (5) and (6), they alleged that the Makandiwas defamed them thereby destroying their reputation and causing monetary loss to the tune of USD500,000.

Having been served with the summons, the Makandiwas entered appearance to defend the claims.

They proceeded to address a letter, in terms of Rule 140 of the High Court Rules 1971, to the Mashangwas pointing out that the claims were vague and embarrassing and that they did not disclose a cause of action, and asked whether they were suing in contract or delict; and, as regards claim (5) and (6) asked whether the claims were in defamation or injuria.

The Mashangwas did not respond to the letter, causing the Makandiwas to file an exception on 30 August 2017 to the Mashangwas pleadings in terms of Order 21 Rule 137(1)(b) in case HC7214/18.

The exception was heard on 6 November 2017 by MANGOTA J in respect of all the six claims but was dismissed on 12 January 2018 and the Mashangwas were ordered to amend their declaration in respect of claims (5) and (6), and, the Makandiwas to plead, and thereafter, the matter was to proceed in terms of the High Court Rules 1971.

However, after the dismissal of their exception, the Makandiwas filed another court application on 23 February 2018 for the dismissal of the Mashangwas claims in terms of Order 11 Rule 75(1) of the High Court Rules 1971 in HC1774/18.

The Mashangwas, having felt that the Makandiwas had neglected or failed to timeously prosecute the court application which they instituted under case HC1774/18, filed a chamber application for dismissal on 8 May 2018 under HC4197/18.

Both applications were ready for hearing at almost the same time, before different judges, hence the consolidation of the two applications.

ISSUES FOR DETERMINATION

This court is therefore being asked to decide two issues simultaneously:

(i) The first issue is whether the Makandiwas application should be dismissed for want of prosecution as prayed for by the Mashangwas in HC4197/18.

In the event of this court granting the relief asked by the Mashangwas, this would be the end of the matters and this court will not deal with the Makandiwas application.

(ii) However, in the event that this court dismisses the Mashangwas application for dismissal, the court will proceed to deal with the second issue pertaining to the Makandiwas application for dismissal of the Mashangwas claims in the main case under HC7214/17....,.

SHOULD MAIN MATTER BE DISMISSED IN TERMS OF ORDER 11 RULE 75(1) OF THE HIGH COURT RULES

After the dismissal of their exception in HC7214/17 the Makandiwas pleaded to the main case and filed this application for summary dismissal of the principal case as being frivolous and vexatious in terms of Order 11 Rule 75(1) of the High Court Rules 1971 (the Rules).

The principal case contained the six claims brought against them by the Mashangwas as outlined above. I shall endeavor to deal with each of the claims where possible.

Suffice to state, at this stage, that Rule 75 of the High Court Rules provides that:

“75 Application for Dismissal of Action

(1) Where a defendant has filed his plea, he may make a court application for the dismissal of the action on the ground that it is frivolous or vexatious.

(2) A court application in terms of subrule (1) shall be supported by affidavit made by the defendant or a person who can swear positively to the facts or averments set out therein, stating that in his belief the action is frivolous or vexatious and setting out the grounds for his belief.

(3) A deponent may attach to his affidavit, filed in terms of subrule (2), documents which verify his belief that the action is frivolous or vexatious.”

In their supporting affidavits, the Makandiwas prayed that the principal case must accordingly be summarily dismissed pursuant to Rule 75(1) of the High Court Rules, and contended, among other things, that the action in the principal case is not only both frivolous and vexatious, but also a self–evident gross and contemptuous abuse of the process of this court on the bases that -

“1. The plaintiffs have deliberately pleaded and founded their purported causes of action on deliberate and easily demonstrable falsehoods;

2. Each of the six (6) claims suffers from predictable failure and so groundless that no reasonable person could ever hope to obtain relief therefrom;

3. The principle case has not been brought with the bona fide intention of obtaining relief;

4. The proceedings have been brought with the sole and mala fide intention of annoying and harassing us. It as such amounts to the unmitigated abuse and contempt of this court and the process thereof; and

5. The principal case is inconsistent with reason and common sense, and, as such, unworthy of serious consideration.”

The respondents (the Mashangwas) opposed the application. They took seven points in limine. The points were:

(1) Matter passed in rem judicatam;

(2) Estopel;

(3) Disputes of fact;

(4) Unlawful reversal of order of proceedings;

(5) Attempt to avoid the consequences of a valid acknowledgement;

(6) Mala fides and abuse of court process; and

(7) Provisions of the Rules not available to applicants.

On the merits, they contended, among other things, that, Mr Makandiwa is a common fraudster, a false prophet who has no relationship with God, is a liar who lied about a lawyer called Tichaona Mawere, and many other ills....,.

AD MERITS

The Makandiwas filed this application in terms of Rule 75(1) of the High Court Rules 1971 for the summary dismissal of frivolous and vexatious action proceedings instituted by the Mashangwas in an action pending before this court under case number HC7214/17.

The respondents made six claims.

Their cause of action in claims 1-4 is said to fall into the delict of fraud. The fifth claim is said to relate to the delict of injurious falsehoods. The sixth claim has been held to fall under the delict of injuria.

A common thread runs through these claims.

They plead that they were members of the third applicant (United Family International Church), a Christian Church founded by the first and second applicants (Emmanuel Makandiwa and Ruth Makandiwa). They further allege that they either received prophesies or representations in church or that certain injurious publications were made of and concerning them or their business. Hence, they claimed various sums all aggregating to a staggering six and a half million United States Dollars.

The applicants pleaded to each of the six claims. They denied the allegations.

Their pleas were filed in contemplation of the present application for dismissal.

The applicants placed before the court a detailed verifying affidavit that traversed and attached incontrovertible evidence which they said exposed the falsity of the facts pleaded by the plaintiffs in their declaration.

The applicants, thereafter, filed the present application for the dismissal of the suit as frivolous and vexatious.

The application is strongly opposed by the respondents.

THE LAW

Rule 75 of the High Court Rules allows a defendant, who has pleaded, to apply for the summary dismissal of the action on the grounds that it is vexatious.

The defendants must, on notice of motion, positively swear to the facts and verify their belief that the action is vexatious and deserving of summary dismissal.

The purpose of this procedure is the same as that of the procedure for summary judgment or provisional sentence.

The court, if satisfied, has the inherent jurisdiction to disallow and dismiss proceedings that are frivolous or vexatious: see Ushewokunze Housing Co-oporative Society Limited v Crest Breeders International (Private) Limited HH529-16; Rogers v Rogers & Another 2008 (1) ZLR 330…,.; and S v Coopers & Others 1977 (3) SA 475…,.

The test to be applied can be explained in no better words than those of MAKARAU JP…, in Stationery Box (Pvt) Ltd v Natcon (Pvt) Ltd & Anor HH64-10 as follows:

“The test to be applied in summary judgment applications is clear and settled. The onus resting on a defendant resisting summary judgment has been described as amongst the lightest that the rules of procedure cast on the litigants. He does not have to prove his defence. He must merely allege facts, which, if he can succeed in establishing them at the trial, would entitle him to succeed in his defence.

The defence so set up must, however, be plausible and bona fide.

Obviously implied in this test, but oft overlooked by legal practitioners, is that the defendant must raise a defence. The facts alleged must lead to and establish a defence that meets the claim squarely. If the facts that he alleges, fascinating as they may be and which he may very well be able to prove at the trial of the matter, do not amount to a defence at law, the defendant would not have discharged the onus on him and summary judgement must be granted.

To defend a claim arising out of a contract of sale, the purchaser must attack either the existence of the agreement itself or the fact that the goods sold were not delivered to him. If other defences are raised, they must be raised explicitly. It is not the function of the court to put words into the defendant's mouth and thereby establish a possible defence on his behalf when the defendant fails to do so in his opposing affidavit.”

In the present case, the respondents ultimately denied any liability to the plaintiffs.

This application, therefore, turns on the law of summary dismissal of cases on the basis that they are frivolous and vexatious.

Order 11 Rule 75(1) of the High Court Rules, which provides for this procedure, states that the defendant may make an application for the summary dismissal of the case, after filing of his plea, on the grounds that it is frivolous and vexatious.

My sole duty is to determine whether or not the claims are frivolous and vexatious.

CLAIM ONE

In claim one, the Mashangwas alleged that in the year 2012, and in church, the Makandiwas fraudulently and misrepresented that anyone with a Bank debt or loan was to be cancelled as it was a season of miraculous cancellation of debts.

The essence of this claim is that the applicants, having been informed, privately, that the respondents were indebted to ZB Bank Limited in the sum of $USD500,000 made representations well knowing same to be false.

The respondents were induced to believe the applicants more than anyone else in the church and defaulted on the payment of their loan resulting in their house being executed.

This misrepresentation has been denied on the basis, that, the said property had been sold by the respondents as early as February 2012 for USD800,000 to the Nemanji Family Trust represented by one Steward Nyamushaya. Hence, the claim was based on falsehoods meant to annoy, vex, and harass the applicants and without any bona fide intention of obtaining relief.

Even if it is true that such a representation was made in church, it is inconsistent with common sense and reason that God would unconditionally cancel all the debts of every nature and description and that congregates should immediately stop paying any loans that they had even before the same had been cancelled; that congregates should accordingly not engage their creditors; and that congregates should ignore demands, court processes, judgments, notices of attachment and advertisements of sales in execution and must not take any steps to safeguard their positions.

The respondents, from the papers, are business people of undoubted and unparalleled acumen. They knew very well that the debts, if any, they had incurred, they had done so in terms of positive law and not ecclesiastical law.

Even in the Holy Bible, King James Version, in Genesis 3 v 19, God advised Adam in the following words:

“In the sweat of thy face shalt thou eat bread, till thou return unto the ground; for out of it was thou taken…,.”

“By the sweat of your face you shall eat bread, till you return to the ground, for out of it you were taken; for you are dust, and to dust you shall return.”: see The Gideons International version…,.

In the vernacular language: 'uchadya cheziya kusvikira murufu': this is loosely translated to mean there is nothing for free and every man shall work hard to achieve what he wanted until death, and that God would give them power and wisdom to achieve their goals and not just expect miracles to happen on their own.

If Makandiwa talked of season of miraculous cancellations of debts, he did not literally mean those with debts should go home and just sit waiting for debts to be miraculously wiped without them doing something about them.

The law on misrepresentations in delict is settled: see Murray v McLean N.O. 1970 (1) SA 133 (R).

I therefore find the first claim to be frivolous and vexatious and must be summarily dismissed with the contempt it deserves in terms of Order 11 Rule 75(1) of the High Court Rules.

CLAIM TWO

The allegations in Claim Two are that the applicants made representations, in church, that a certain Tichaona Mawere was a great lawyer and that he would not lose any case.

This representation was denied by the applicants.

The applicants alleged, that, the prophecy given concerned the Mawere's exclusively to their family problems. It particularly related to their legal skills at home in resolving their family disputes. The applicant said so while counselling the Maweres not to do so. Never was anyone told to engage Tichaona Mawere who was a great lawyer. The applicants alleged they could not have said so given the fact that the respondents had engaged one Tichaona Govere of Govere Law Chambers to act for them on 20 March 2013, on a contingent basis, to prosecute the case against McDowells in judgment number HH288-13 which was argued before TAKUVA J on 23 July 2013, whose judgment was delivered on 2 September 2013.

If at all something to that effect was said, the respondents are not saying they were directly told to engage Tichaona Mawere.

The claim was contrived and perjured.

In my view, if indeed the applicants said Tichaona Mawere was a great lawyer, or words to that effect, they did not specifically tell the Mashangwas to hire him. They just misconstrued the prophecy or sermon to their own prejudice.

It is equally frivolous and vexatious that no relief could be obtained from it. The claim deserves to be summarily dismissed.

CLAIM THREE

Claim Three is based on the fact, that, from the year 2014 to 2016, the Mashangwas were called on stage, in church, and were announced as a successful example in their Ministry, United Family International Church (UFIC), and, as a result, they made direct contributions to the church amounting to $1,100,000.

The gravamen of this claim is that the respondents lost the sum of USD$1,100,000 as a result of the representation made by the applicants: in short, they are saying if the applicants had not paraded them in church as a successful example in the Ministry they would not have made contributions to the church.

Contributions are generally known as tithes and offerings.

Tithes and offerings are biblical concepts recorded as early as the Book of Genesis. Tithes and offerings are acts of worship that edifies the relationship between the person who gives the offering and God. They are predicated on the believer's faith and are not enforced. They are free will offerings given in all the Christian Churches. Tithes and offerings constitute 10% of the giver or offeror's income, though, in practice, not all believers give the exact 10%. Only in certain churches is the 10% enforced by forcing the followers to declare their incomes from which the 10% is calculated.

If the respondents allegation is true, which may be so given that they are business people, then, their income during the period in question exceeded USD$11,000,000, and, if they believed the representation made by the applicants, that they are a successful example in the Ministry, they willingly parted with an amount of USD1,100,000.

However, what makes the claim frivolous and vexatious, in my view, is the fact that if ever the respondents parted with such kind of money inside the third applicant, United Family International Church (UFIC), those were free will offerings not recoverable from anyone - unless the respondents wish to try the impossible and get that from God, the receiver of the offerings.

How they hope to get a court to interpret scripture and say one reading is preferable to another in the Holy Bible remains a mystery.

In casu, the respondents admitted, in their pleadings, that the tithes they gave cannot be returned.

Having made that admission in pleadings, the admission thereof had fatal consequences to their case. The admissions are conclusive proof of the admitted fact and the respondents are, at law, precluded from controverting it.

This is our law.

See DD Transport (Pvt) Ltd v Abbort 1988 (2) ZLR 92 (SC); Moresby–White v Moresby White 1972 (3) SA 222 (RA).

This claim, like the others above, is frivolous and vexatious and is summarily dismissed.

CLAIM FOUR

Claim Four, with the greatest of respect, does not make sense; its vague and embarrassing.

The gravamen of the claim is that the respondents were paraded on stage, in church, and shown to the other congregates as the chosen people by God to have succeeded in their business. As a result, they then marketed the first applicant's prophecies (Emmanuel Makandiwa) for the advancement of the applicants interests and prophesies, when, in truth and fact, this was sheer misrepresentation and they lost USD2,000,000.

What the respondents are saying is that when they were paraded in church as the chosen people by God, in actual fact, they were not chosen people by God. That, when they were said to be successful in their own business (remember they were in fact business people) they were really not successful people. That, because of the praise made by the applicants, they went on their own way to market the applicants prophesies using their own funds without being ordered to do so by the applicants. They did so because they genuinely believed that they were the chosen people by God. They, in my view, decided to show off and lost USD2,000,000.

At law, they did not plead any cognizable or known cause of action.

This is bad in law, and is frivolous and vexatious to then claim the sum of USD2,000,000 from the applicants. If at all, this may fall under volenti non fit injuria (he who voluntarily exercises his will suffers no injury).

The claim is therefore frivolous and vexatious and must be summarily dismissed.

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Zimbabwe

Liability, Negligence or Dolus re: Fraud

HH10-18 : UPENYU MASHANGWA and BLESSING MASHANGWA vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and UNITED FAMILY INTERNATIONAL CHURCH
Ruled By: MANGOTA J

Appealed
SC95-21 : UPENYU MASHANGWA and BLESSING MASHANGWA vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and UNITED FAMILY INTERNATIONAL CHURCH
Ruled By: GWAUNZA DCJ, MAKONI JA and BERE JA

View Appeal
HH40-19 : UPENYU MASHANGWA and ANOR HC4197/18 and EMMANUEL MAKANDIWA and OTHERS HC1774/18 vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and ANOR and UPENYU MASHANGWA and ANOR
Ruled By: TAGU J

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Liability, Negligence or Dolus re: Fraud

HH10-18 : UPENYU MASHANGWA and BLESSING MASHANGWA vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and UNITED FAMILY INTERNATIONAL CHURCH Ruled By: MANGOTA J

Appealed SC95-21 : UPENYU MASHANGWA and BLESSING MASHANGWA vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and UNITED FAMILY INTERNATIONAL CHURCH Ruled By: GWAUNZA DCJ, MAKONI JA and BERE JA

View Appeal HH40-19 : UPENYU MASHANGWA and ANOR HC4197/18 and EMMANUEL MAKANDIWA and OTHERS HC1774/18 vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and ANOR and UPENYU MASHANGWA and ANOR Ruled By: TAGU J

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Law Portal
Zimbabwe

HH10-18 : UPENYU MASHANGWA and BLESSING MASHANGWA vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and UNITED FAMILY INTERNATIONAL CHURCH
Ruled By: MANGOTA J

Appealed
SC95-21 : UPENYU MASHANGWA and BLESSING MASHANGWA vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and UNITED FAMILY INTERNATIONAL CHURCH
Ruled By: GWAUNZA DCJ, MAKONI JA and BERE JA

View Appeal
HH40-19 : UPENYU MASHANGWA and ANOR HC4197/18 and EMMANUEL MAKANDIWA and OTHERS HC1774/18 vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and ANOR and UPENYU MASHANGWA and ANOR
Ruled By: TAGU J