This is an appeal against the entire judgment of the High Court, dated 4 September 2019, in which the court a quo granted a declaratur and consequential relief sought by the respondents against the appellants and dismissed the application for a declaratur sought by the appellants against the respondents.
The order of the court a quo erroneously confirmed the terms of a provisional order of the initial urgent chamber application that had, by consent of the parties, been removed from the roll of urgent chamber matters, on 8 October 2018, and enlisted on the opposed roll. The provisional order was substituted by an “amended draft order” filed together with the respondents answering affidavits and heads of argument on 2 November 2018.
The erroneous order was, with the consent of the parties, corrected by this Court in terms of section 22(1)(a) of the Supreme Court Act [Chapter 7:13] in Civil Appeal No. SC527/2019, which was specially lodged by the respondents for that purpose and heard just before the present appeal.
The corrected order of the court a quo, therefore forms the basis of the present appeal.
THE FACTS
The appeal concerns a church dispute between two formations for the control and leadership of the Apostolic Faith Mission in Zimbabwe (the AFM or the church).
The appealed judgment is a consolidation of two applications that were filed separately by the parties.
The first application, HC9149/18, was filed by the first five respondents (Apostolic Faith Mission in Zimbabwe, Aspher Madziyire, Amon Madawo, Munyaradzi Shumba and Tawanda Nyambirai) against the seven hominal appellants (Cossam Chiangwa, Amon Chinyemba, Nathan Nhira, Shepherd Sebata, Donard Mdoni, Arthur Nhamburo and M. Mashumba) on 4 October 2018; while the second application, HC179/19, was filed by the first five appellants (Cossam Chiangwa, Amon Chinyemba, Nathan Nhira, Shepherd Sebata and Apostolic Faith Mission in Zimbabwe) against the second (Aspher Madziyire), third (Amon Madawo), sixth (Clever Mupakaidzwa), seventh (Briton Tembo) and eighth (Christopher Chembere) respondents on 10 January 2019.
In the first application, the respondents sought the nullification of a meeting held by the appellants on 22 September 2018, and all subsequent acts flowing from it while in the second application the appellants sought recognition as the duly elected office bearers of the church and consequential relief.
The High Court granted the first application and dismissed the second, with costs.
The church is a universitas with a written Constitution and consequent regulations, which inscribe its foundational values, confession of faith, mission and governance structures and reposes the power to sue and be sued in its national office bearers in clauses 1.2, 1.3, 1.4 1.4. 6(f) and 12.4.1, respectively.
The dominant protagonists in the two applications were the second respondent (Aspher Madziyire) and the first appellant (Cossam Chiangwa), respectively, who were elected President and Deputy President of the church at the triennial elections in April 2015. The third (Amon Madawo) and fourth (Munyaradzi Shumba) respondents were elected, at the same elections, as General Secretary and National Administrator.
Between August 2015 and 15 September 2018, the Church, led by the Apostolic Council and Workers Council, conducted a Constitutional Review Process (CRP) through a Constitutional Review Committee (CRC) chaired by the fifth respondent (Tawanda Nyambirai), a co-opted member of the Apostolic Council.
The Constitutional Review Process (CRP) was designed to address acute electoral, financial, and governance shortcomings through the amendment of the Constitution and geared to deliver free, fair and credible church elections; strengthen accountability and transparency; and engender parity and equity in the conditions of service of the clergy and development programs of the church in both rural and urban areas.
The Constitutional Review Process (CRP) culminated in the Extraordinary General Meeting (EGM) of the Workers Council of 10 February 2018, which resolved to hold the triennial Provincial and Workers Council elections, due on 28 April 2018, after “the Workers Council considers, and, if deemed fit, passes, with or without amendment, the proposed amendments to the Constitution of the Apostolic Faith Mission in Zimbabwe in terms of the attached draft” at its scheduled meeting of 28 April 2018.
The meeting of 28 April 2018 was terminated unceremoniously without resolving the proposed resolution.
Tonderai Mathende took the Church, the first (Apostolic Faith Mission in Zimbabwe), second (Aspher Madziyire) and fifth (Tawanda Nyambirai) respondents and the first appellant (Cossam Chiangwa) to court under HC4756/18 and obtained an order compelling the 2015 office bearers to reconvene and conclude the aborted Workers Council meeting of 28 April 2018.
By a letter dated 31 July 2018, the second respondent (Aspher Madziyire) called for a Workers Council Meeting to be held on 15 September 2018 in compliance with the court order issued under HC4756/18.
On 15 September 2018, the Workers Council met and considered the proposed Constitutional amendments and “accepted” them subject to the suspension of all the provisions, except for the provisions relating to the conduct of elections, in order to give other church members an opportunity to propose further amendments to the amendments.
The resolution was carried by 2,021 votes, inclusive of the appellants votes, against 35, with no abstentions.
The optimum number of councillors supplied by the respondents was 3,475 councilors against 2,056 provided by the appellants.
On 21 September 2018, the Apostolic Council met to consider the dates and rules for the impending triennial elections.
The provincial elections were to be held on 29 September and 3 October 2018, while the national elections would be on 3 November 2018.
The first appellant (Cossam Chiangwa) told the meeting that “he would go his own way because he did not accept the resolution that was passed by the Workers Council on 15 September 2015.”
Whereupon, he served written notice, dated 20 September 2018, and co-signed by all the appellants (Cossam Chiangwa, Amon Chinyemba, Nathan Nhira, Apostolic Faith Mission in Zimbabwe, Donard Mdoni, Arthur Nhamburo and M. Mashumba), except the fourth (Shepherd Sebata), on his fellow national office bearers of the meeting of 22 September 2018.
Paragraph 2 of the notice implored the targeted audience to:
“Please note that this is a National Workers Council of all those councilors who strongly feel the adoption of the DRAFT resulted in the formation of a totally different church and is in itself a departure from the church that they have always cherished and loved. It is, therefore, a National Workers Council of those councilors who would like to remain in the AFM in Zimbabwe Church which is governed by the old Constitution which the 15th September National Workers Council attempted to repeal.”…,.
The meeting of 22 September 2018, was purportedly attended by 2,056 councillors, comprised of 1,562 delegates and 567 pastors from 513 assemblies with apologies from 137 assemblies.
The attendees ignored the cease and desist call from the second respondent (Aspher Madziyire).
The meeting, inter alia, reviewed and nullified the resolution of 15 September 2018, and, by a total 1,557 affirmative votes, dismissed the serving national bearers, other than the first appellant (Cossam Chiangwa), arrogated to themselves the power to conduct triennial elections on 6, 13 and 20 October 2018 and incited the members to revolt against the defrocked office bearers.
On 25 September 2018, the Apostolic Council abandoned the saved electoral amendments because they were in complete dissonance with the preserved governance structures of the amended Constitution.
On 26 September 2018, the appellants (Cossam Chiangwa, Amon Chinyemba, Nathan Nhira, Shepherd Sebata, Apostolic Faith Mission in Zimbabwe, Donard Mdoni, Arthur Nhamburo and M. Mashumba) spurned the cease and desist order and call to return to the mainstream fold issued by the third respondent (Amon Madawo).
They appointed their own 26 provincial overseers and the fourth appellant (Shepherd Sebata) as the National Administrator to whom church funds were to be remitted.
They also urged all church members to ignore the triennial dates set by the Apostolic Council.
On 27 September 2018, the appellants were suspended without pay and benefits and subsequently charged with participating in an illegal meeting and formenting rebellion, disharmony, confusion, destabilization, disorder, and disturbances against the church; forming a splinter group and usurping the powers of the Apostolic Council and the other office bearers in violation of clauses 1.4.2 and 1.4.6 of the Constitution.
They snubbed the charges and notices of hearing, and were dismissed from their official positions on 15 October 2018 with effect from their respective dates of suspension.
They refused to vacate church premises and surrender church assets in their possession or under their control.
They were permanently replaced as office bearers at the national elections held by the respondents (Apostolic Faith Mission in Zimbabwe, Aspher Madziyire, Amon Madawo, Munyaradzi Shumba, Tawanda Nyambirai, Clever Mupakaidzwa, Briton Tema and Christopher Chembere) on 3 November 2018.
The appellants conducted parallel provincial elections on 3, 6, 7, 13 and 14 October 2018 and Worker's Council elections on 20 October 2018, where the first four appellants (Cossam Chiangwa, Amon Chinyemba, Nathan Nhira and Shepherd Sebata) were elected as President, Deputy President, General Secretary and National Administrator.
It was in their collective capacity, as purported office bearers, that they lodged the second application.
THE ARGUMENTS PRESENTED IN THE COURT A QUO
The First Application
In the first application, the respondents submitted, that, they were the duly elected office bearers of the church, who had legal standing to sue on its behalf for the vindication and protection of its assets through a declaratur and an interdict.
They contended that they had satisfied the requirements for a declaratur prescribed in section 14 of the High Court Act [Chapter 7:06] and the common law requirements for a final interdict and were thus entitled to such relief.
They argued that the meeting of 22 September 2018 was ultra vires the Constitution in that it violated the notice and quorum requirements stipulated in clause 12.7.1 as read with 12.3, clause 13.3.1 of the Regulations and clauses 12.6 and 12.9 and the financial probity arrangements enshrined in clause 12.5 and 12.6 of the Constitution.
They also argued that the vote of no confidence was not only alien to the Constitution but also violated the audi alteram rule.
Lastly, they contended that the appointment, instead of election, of office holders in the church, was anathema to the Constitution.
The appellants took five preliminary points. These were;
(i) That the application was not urgent;
(ii) The respondents did not have locus standi to represent the church as their tenure of office, as national office bearers, had expired on 28 April 2018 and had not been renewed;
(iii) The matter was lis pendens in Mujokeri v Madziyire HC4583/18, in which judgment had been reserved;
(iv) The application was a disguised review of the outcomes of the meeting of 22 September 2018 which could not be sought urgently, on review, or through a declarator; and
(v) Lastly, that there were material disputes of fact, pertaining to the quorum of the meeting of 22 September 2018, which could not be resolved on the papers.
On the merits, the appellants implicitly conceded that their meeting was not convened in terms of the Constitution by ascribing the call to “a big constituency of the church which was clearly not happy with the way the church was going about the Constitutional changes.”
They, however argued, that, this amorphous grouping had the power to dis-appoint just as it had the power to appoint the respondents.
They strongly contended that the resolution of 15 September 2018 was in breach of the mandatory procedural requirements of the two-thirds quorum prescribed in clause 12.6 of the Constitution.
The Second Application
In the second application, the appellants, who baptized themselves as 'the Originals' submitted, that, as the office bearers elected by the church at the triennial elections of 20 October 2018, they had the power to vindicate and protect the assets of the church from the respondents, whom they christened 'the Reform Side' whose tenure of office expired by the effluxion of time on 28 April 2018.
They further submitted, that, the respondents, by violating the amendment clause, clause 12.6 to the Constitution, had, by public acclamation, forfeited their claims to the leadership of the church to the appellants.
The respondents took two preliminary points:
(i) They contended, that, the appellants had no locus standi to represent the church as their election to the national offices was tainted by the illegality of the meeting of 22 September 2018 from which they traced their authority.
(ii) The second was that there were material disputes of fact on the procedure, substance, and effect of the meeting of 22 September 2018 which could not be resolved on the papers.
On the merits, the appellants contended, for the first time in argument, that, the respondents had seceded from the church on 22 September 2018 and therefore did not have locus standi to represent the church.
They argued, that, the respondents sought to overhaul the Constitution and reframe the church in their own image by abandoning the confession of faith and the fundamental doctrines of the church.
THE DETERMINATION OF THE COURT A QUO
The court a quo criticized both parties for raising preliminary points “in such a contentious matter.” It prefaced its decision on the preliminary objections by remarking that:
“Both Madziyire and Chiangwa should have realized that preliminary matters, though permissible in terms of the rules of court, served no purpose in such a contentious matter as the present one.
They should have remained alive to the fact, that, the same required the court to consider the merits of the case as opposed to having the same resolved on the basis of technical issues.
Any technical issue which is not capable of resolving the dispute of the parties is not worth the paper on which it is written. It becomes a time-wasting exercise which does not enhance the work of the court. It should, therefore, be avoided as it constitutes an exercise in futility which is of no benefit to anyone. It does not benefit the party which raises it, let alone the party against which it is raised.
Apart from the issue of lis pendens, which Chiangwa raised, I shall, therefore, deal with all the parties preliminary issues in the body of this judgment. They all relate to the reasons which prompted Madziyire and Chiangwa to file their respective applications.”
In regards to the preliminary objections moved by the appellants in the first application, the court a quo ruled, that, the question of urgency was no longer a live issue; lis pendens could not be sustained as the pending judgment in Mujokeri v Madziyire HC4583/18 had been handed down on 25 March 2019, prior to the hearing before it; there were no material disputes of fact on the quorum of 15 September 2018; and the use of a declarator rather than a review, in the circumstances of the application, was proper, as a nullity could not be reviewed; and, lastly, that, as the respondents were the only office bearers of the church at the time the proceedings were instituted, they had the requisite locus standi to do so.
On the merits, the court a quo, found, that, on a proper application of the operative Constitution of the church, the respondents had established their case on a balance of probabilities and granted them the relief set out in the amended draft order filed on 2 November 2018, as corrected by this Court.
It specifically found, that, they were the office bearers of the church vested with the power to call for, hold, and preside over the Workers Council meetings.
It also held, that, although the triennial anniversary date had passed, on 28 April 2018, clause 13.3.1 of the Constitution as read with clause 13.1.1 of the Regulations, preserved their term of office until the holding of triennial elections in the calendar year in which the triennial year fell; and, in the alternative, that, the common law extended their appointment beyond the triennial anniversary date to the date of the investiture of their elected successors.
It thus found, that, the respondents had proved that the conduct of the appellants, on 22 September 2018, had been motivated by selfish ambition to “illegally snatch power within the church through a coup” and “split the church in their quest for power” and not over any constitutional reform dispute - which reforms they voted in favour of.
It further determined that the meeting of 22 September 2018 suffered from fatal and incurable extrinsic and intrinsic irregularities that were in violation of the Constitution, which rendered the meeting void ab initio.
Lastly, it held that any outcomes that flowed from that meeting were also void and of no force or effect.
On the preliminary issues raised by the respondents in the second application, the court a quo ruled that there were no material disputes of fact which could not be resolved on the averments on quorum on the papers of the appellants in respect of the meeting of 22 September 2018; it upheld the respondents objection on locus standi; it found that the meeting violated the Constitution of the church; further, that, as the Workers Council elections held by the appellants on 20 October 2018 were premised on the meeting of 22 September 2018 they were tainted by these violations; it found both the meeting and the elections invalid and of no force or effect.
On the merits, it held that the appellants bore the onus of establishing, on a balance of probabilities, that the respondents had seceded from the mainstream church and formed a new church by abandoning the church Constitution and adopting the proposed amendments to that Constitution.
It found that the appellants had not placed any evidence capable of discharging the onus.
They had not filed the proposed amendments nor particularized the clauses in the accepted but suspended Constitution that violated the operative Constitution.
Rather, they had produced and relied on the same Constitution as the respondents.
The court dismissed the appellants contention, that, at the time the meeting of 15 September 2018 was held, the respondents tenure of office had expired on two grounds:
(i) The first was that clause 13.3.1 of the Constitution as read with clause 13.3 of the Regulations allowed the office bearers to continue in office beyond the triennial anniversary of their election to any date within the calendar year of such anniversary.
(ii) The second was that the common law abhorred a vacuum and thus allowed office bearers of a universitas to continue in office until elections were held to replace them.
It was on the basis of these findings that the court a quo granted the first application and dismissed the second application with costs.
THE GROUNDS OF APPEAL
The five grounds of appeal raised by the appellants were framed as follows:
“1. The High Court erred in failing to find that the adoption of a new Constitution by the second to eighth respondents and their followers, on 15 September 2018, was unprocedural and not in accordance with the provisions of the Constitution of the fifth appellant.
2. The High Court consequently erred in failing to find that the second to eighth respondents and their followers seceded from the church of the fifth appellant as from 15 September 2018 and therefore had not locus standi to challenge the proceedings of the fifth appellant's church subsequent to that date.
3. The High Court further erred in finding that the appellants had no locus standi to institute the proceedings in case number HC179/19, and, having so found, in going ahead to determine the merits of that application.
4. The High Court further grossly erred in finding that the new Constitution, adopted by the second to eighth respondents, was not a renunciation of the fifth appellant's Constitution when the said Constitution was not placed before the court by the respondents who had the onus to place it before the court.
5. The High Court further erred in finding that the appellants could not seek consequential relief upon the grant of a declarator unless it was combined with an interdict or a claim for a vindicatory relief.”
ISSUES FOR DETERMINATION ON APPEAL
The cumulative import of the first four grounds of appeal was that the court a quo grossly misdirected itself in finding that the respondents, and not the appellants, were the proper office bearers of the church imbued with the requisite legal standing to act on its behalf.
The last ground of appeal interrogates the correctness of the observation of the court a quo that the declarator sought by the appellants was fatally defective for want of vindicatory consequential relief.
The two issues for determination on appeal that arise from all the grounds are:
1. Whether the court a quo was correct in finding that the respondents, and not the appellants, were the recognized office bearers of the church who had locus standi to act on its behalf.
2. Whether the declarator sought by the appellants was not conjoined with consequential relief and therefore fatally defective....,.
Whether the declarator sought by the appellants was not con-joined with consequential relief and therefore fatally defective
It is correct that the court a quo erroneously remarked, at the tail end of its judgment, on page 26, that it was incompetent to seek consequential relief in an application for a declarator that was not conjoined with an “interdict cum vindication.”
In contrast, at page 7 of the judgment, the court stated that:
“They allege that the respondents adopted a new Constitution for themselves, and, in the process, have broken away from the church to form their own church which is separate and different from the Old AFM church. They move me to interdict them from using the name, accessing the assets of the church without their authority.”…,.
The relief sought by the appellants a quo was worded as follows:
“IT IS ORDERED THAT:
1. The application for a declaratory order be and is hereby granted.
2. The 1st to 4th applicants be and are hereby declared to be the duly and properly elected officials of the fifth applicant.
3. The respondents are hereby barred from using the name of the fifth applicant in the conduct of their activities without the authorisation of the applicants.
4. The respondents are hereby barred from accessing or using any assets or property of any kind belonging to the fifth applicant.
5. The respondents and their followers or agents or assignees be and are hereby directed to relinquish to the fifth applicant all and any property belonging to fifth applicant that is in possession or under control of the respondents.
6. Failure of 5 above, the Sheriff of Zimbabwe or his lawful deputy be and is hereby authorised to take all and any property and assets belonging to fifth applicant from the control and possession of the respondents and handover same to the applicants.
7. The respondents shall pay applicant's costs of suit.”…,.
I agree with counsel for the appellants, that, the appellants did seek a declarator con-joined with prohibitory interdicts in paragraphs 3 to 4 and vindication in paragraphs 5 and 6.
The finding of the court a quo, though obiter, was therefore incorrect. It, however, did not constitute the rationale on which it based its judgment.
The ratio decidendi was that the appellants did not have the requisite locus standi to institute HC179/19 because they were not office bearers of the Church.
This how the court a quo expressed itself on the question of locus standi…,:
“The question which begs the answer is: did Chiangwa act in terms of the Constitution and its Regulations when he convened the meetings of 22 September 2018?
The answer to the same is in the negative.
The second question which flows from the first and its answer is: was the meeting of 22 September 2018, which was called in violation of the Constitution, valid?
The answer is in the negative.
The third and final question is: does any act which resulted from the invalid meeting carry any semblance of validity?
The answer is, once again, in the negative.
On the strength of the above mentioned three questions and their respective answers, therefore, it cannot be said that Chiangwa has any locus standi to apply as he did under HC179/19.
His conduct, which emanated from the meeting of 22 September 2018, is a complete nullity. All the activities which he undertook on the basis of that meeting were a nullity.
Madziyire, and not Chiangwa, has locus standi to sue as he did. He has substantial interest in the affairs of the Church. Chiangwa does not have such.”
It must have been apparent to the appellants that the remarks upon which the fifth ground of appeal is founded were obiter. It is improper to note an appeal against such remarks.
This Court pronounced itself on the issue in Muza v Saruchera & Ors SC45-18 thus:
“The appellant erred in noting an appeal against findings that were made by way of orbiter remarks. His error is however understandable in that he is a self-actor who could not discern between the ratio of a judgment and the other findings of the court a quo by way of obiter.”
The impugned remarks were, therefore, inconsequential to the decision made by the court a quo.
The fifth ground, though substantively correct, is devoid of procedural merit and must be struck out....,.
In regards to the second issue, the obiter dictum of the court a quo, that the appellants did not conjoin the main relief that they sought in the second application with the consequential relief of an “interdict cum vindication” was incorrect.
However, as the fifth ground of appeal, which related to this issue, was improperly conceived, it is struck out....,.
1. The fifth ground of appeal be and is hereby struck out.
