Assa Chimeri & 11 Ors v Deputy Sheriff N.O. & 5 Ors

### Preamble
1
HB 123/19
HC 1542/19
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ASSA CHIMERI

And

PARTSON CHAMISA

And

TIMOTHY NDLOVU

And

NELSON MUKWEBO

And

TARIRO LIZZY CHAMISA

And

SITHEMBILE MUTHAKHATHI

And

SARUDZAI MUKWEBO

And

SITHOKOZILE NDLOVU

And

CHETENI NDARIMANI

And

RUTH CHIDANHIKA

And

SYNDEY MAKUNI

And

ISSAC MAGURAISHE

Versus

DEPUTY SHERIFF N.O

And

REV RICHARD JOHN SIBANDA

And

THE APOSTOLIC FAITH MISSION OF PORTLAND, OREGON

(SOUTHERN AFRICAN HEADQUARTERS) INC

And

ONIYAS GUMBO

And

KWAZISO BOSHA

And

JAMESON NKIWANE

IN THE HIGH COURT OF ZIMBABWE

MABHIKWA J

BULAWAYO 3 JULY & 19 SEPTEMBER 2019

Urgent Chamber Application

Ms S.P.  Sauramba for the applicants

T. Ndlovu for the 2nd respondent

M. Nzarayapenga for the 3rd – 6th respondents

MABHIKWA J:	In this matter I was phoned just before midnight on 29 June 2019, it having been filed as an urgent chamber applicant.  I got to the High Court at 0012 hours on Sunday 30 June 2019.  I found some of the applicants present in the company of their legal practitioner, Ms Sauramba. I sat out to read the bulky application as well as listen to representations from Ms Sauramba on behalf of the applicants.  I was in my chambers until well after 4am.  I decided that the matter would be set down for a hearing whereupon the other parties would also present their side in opposition thereof if any.  The two gentlemen from the Registrar’s Office whom I had in my chambers all the time and Ms Sauramba then communicated that decision to the applicants. It is pertinent to mention that exactly a week earlier, my brother Justice Takuva had been awoken on Sunday morning at 0400 hours by members of the same church, with a chamber application.

Coming back to the current application, 3rd respondent (hereinafter referred to as “the Church”) filed its notice of opposition through Messrs Dube-Banda, Nzarayapenga & Partners Legal Practitioners.  On the date of hearing Mr Nzarayapenga appeared together with Ms Sauramba and advised the court that they eventually had instructions to represent the other three (3) respondents as well, excluding 1st and 3rd respondents.  The application was vigorously opposed.

The history of this matter, as set out by the applicants in the founding affidavit deposed to by Pastor Assa Chimeri is as follows;

Chimeri states that he is a pastor and minister in charge of 3rd respondent church from 1989, having been a member of the church since 1975.  He has been aware of divisions within the church that started soon after the death of Reverend Morgan Sengwayo in 1982, being the founder of the church in Zimbabwe.  The divisions proved acrimonious and irreconcilable leading to splinter churches, one led by the late Reverend Philemon Sibanda.

After the late Sibanda, dissention continued and others also broke away from the church.  According to Chimeri, the dissention has “played out in the church, in the public and in the courts of the land and it is common knowledge.

Paragraph 10 of the certificate of urgency states:

“The matter is rendered urgent by the fact that eviction is imminent of the applicants, who are members of the church and are being denied the right to assembly, worship and association, which are fundamental rights under the Constitution of Zimbabwe.”

In paragraph 18 of his founding affidavit, Chimeri says he and is co-applicants are local members of the church who only want to worship but have been “caught up in the control and leadership wrangles estopped in differences of opinion over whether to continue upholding traditional church practices or to dispense of them.”

The impression one gets therefore is that the applicants aver that although they are perceived to be aligned, and in occupation of the church premises through Reverend Richard John Sibanda, who was suspended or expelled from the church, that is not true.  They claim to occupy the church property on the basis of freedom of worship, and of their own membership of the church.

In opposition, the respondents raised five (5) points in limine.

Firstly, they argued that the applicants have always known that their evictions are imminent but they did not act.  The respondents argue that the applicants should have acted on the 4th of March 2019 when the consent order under case number HC 2106/19 (which is subject of the writ of ejectment in this case), was granted.  Respondents argue further that at the very least, applicants should have acted on 24 June 2019 when notices of eviction by the Sheriff were served on them.  So even if it was to be argued that the need to act may not have arisen on 4 March 2019, it certainly did arise on 24 June 2019.  Respondents also complain that since there is no explanation proffered both in the certificate of urgency and in the founding affidavit as to why no action was taken then.

Secondly, the respondents argue that this application fails to satisfy the requirements of an interdict.

Thirdly, the respondents submitted that the applicants did not approach the court with a high degree of condour expected of a party approaching the court on an urgent chamber basis. But deliberately chose to withhold facts relevant to the matter.

Applicants allegedly withheld the fact that the issue of occupation and control of church assets has always been vested in the church (3rd respondent).  The church exercises that control and authority through a board constituted and recognized by the church headquarters in Portland, Oregon.  At no point has the control of church assets devolved to individuals and so no individual can claim entitlement to, or as of right, hold on to property belonging to 3rd respondent other than the board.

That the applicants have deliberately withheld to the court the information that they all have defied the direction and authority of the church, to the extent that 2nd, 3rd and 4th applicants were suspended from church.  They were invited to work with the board, they refused.  They were invited for disciplinary hearing and again they defied and absented themselves from the hearing, leading to their eventual suspensions from the church. 1st respondent allegedly withheld from the court, the fact that prior to launching this application he had approached the church through his previous legal practitioners.  He was allowed to remain a pastor stationed at Masvingo, and he agreed.  About 3 days later he returned to say “his colleagues” in Bulawayo had advised him to decline the offer.

Respondents argue that if applicants were sincere that they are members of 3rd respondent, then they are aware that the church communions and doctrine have jurisdictional autonomy to determine church affairs, including grievance resolution mechanisms for its members, and the secular courts should only be brought in when the church has exercised that jurisdiction and failed.  Applicants avoided that remedy totally.

That the deponents to the founding and supporting affidavits have no locus standi to do so. The respondents argue that in effect, there is no proper application before the court.

Let me state right from the onset that in this matter there was a lot of reference to the Supreme Court case of Richard John Sibanda & 2 Ors vs The Apostolic Faith Mission of Portland Oregon, Southern African Headquarters) Inc SC-49-18.  I will come back to this important judgment later.

From the history of the dispute or disputes, even as chronicled by the respondents themselves, the matter is not urgent at all.  It is the same old story of divisions or factions in the church, wrestling over the ownership, occupation and control of church properties.  Surely, that one is being evicted from church property does not necessarily make the matter any urgent.

In any event, applicants apparently were served with notices of eviction on 24 June 2019.  The deponents to affidavits stated that they were served on 25 June 2019.  Be that as it may, I brought to Ms Sauramba’s attention the fact that the supporting affidavits particularly those of Cheteni Ndarimani and Ruth Chidanhika were sworn to on 26 June 2019 whilst the latest was done on 28 June 2019 at 0905 hours.	Ms Sauramba’s response was that the 1st applicant’s affidavit, which was the founding one was only done on 29 June 2019.  The court asked her to explain the fact that the affidavits made and deposed to on 26 June 2019 stated that the deponents (9th and 10th applicants) had read and understood the “founding affidavit of Assa Chimeri, the 1st applicant, and fully associate with the factual narrative and the order he seeks.”  The above statement in all the supporting affidavits would mean that the court was being misled.  The deponents were actually referring to, and supporting a none-existent founding affidavit.  The reverse is that the founding affidavit must have been done and deposed to on or before 26 June 2019 but the application was then filed late in the night of 29 June 2019 to create a mid-night urgency.

I agree with the respondents’ submission to the effect that this is one case or application replete with disputes of fact which are so manifest to the extent that the court is in no position to resolve them on the papers, let alone on an urgent basis.  The court cannot, based on the papers before it, come to a just resolution of the factual issues.  In any case, even the applicants themselves have stated as already shown above, that the church has been rocked by divisions and unending disputes for decades.  One of the major causes for friction is the ownership and control of church properties, especially after the “departure” of Reverend Richard John Sibanda as per the Supreme Court decision in case number SC-49-18.  I put the term departure in quotes because although the applicants sought to clothe their application as something else, and also that the applicants pretended in their application that they had nothing to do with R. J. Sibanda to the extent of citing him as a respondent, it was clear to me during submissions and argument that they, together with Sibanda, want to circumvent the Supreme Court judgment through this application. It was finally admitted by them anyway that they are Sibanda’s appointees and that he placed them in the offices they occupy.  So the application is nothing more than a fight over occupation, control and authority over church properties.  In fact, in that regard, the relief sought by applicants betrays them.  It reads as follows:

“Interim relief granted

The matter is held to be urgent and the normal rules relating to time frames and service be dispensed with and the matter heard as an urgent matter and ex-parte.

Pending the final determination of this application it be and is hereby ordered that:

The execution of the writ in case number HC 2106/19 be and is hereby stayed.

The 1st respondent be and is hereby barred from removing applicants from the premises.

Applicants be and are hereby ordered to be in lawful possession, occupation and control of the following properties

Stand No 2384 Dulibadzimu Township, Beitbridge

Stand No. 1159 Hunyani Township Chinhoyi

State 383 Mbizo Townshi, Kwekwe

Stand No. 14 Mucheke Township, Masvingo

Stand No. 4 Banali Street Rimuka Township, Kadoma

Stand No. 51 Makaza Street 6 Nzimbe Township, Trinagle

and the respondent are ordered not to interfere with the control of the said premises in all respects to the applicants.

The 1st respondent be and is hereby ordered and directed to act only against parties named in an order of court in the event he is instructed by the respondent to again serve processing respect of the properties mentioned in point 2 above.” (the underlying is mine)

Clearly, the application is not about the freedom of worship and association.  It is not true that the applicants have nothing to do with Reverend Sibanda. Surely all other worshippers, worship every Sunday from their own homes.  One does not need to occupy church property in order to worship.  The fact that one is a member of the church, even if he is a pastor, does not entitle him to occupy or control church property, let alone claim such occupation, authority and control as of right.  Being a pastor, caretaker or deacon in a church does not bestow to one any better right over other congregants of the same church in respect of church properties.

The above point brings us to the issue of the applicants’ locus standi as well as the competency of the relief sought/.

Unless otherwise shown and in exceptional cases, the court will not be quick to strip a property owner of his right to freely deal with, occupy, control, or exercise authority over his property.  Good examples where a property owner may be interdicted from the use, enjoyment and control of his property is where a judgment debtor who is a peregrini, if not so interdicted might dispose of or abscond with his property which was otherwise attachable in execution of the judgment debt.  Also, where an incola, if not interdicted, has been shown to be acting mala fides, wasting or disposing property in any other way  intent on preventing execution and defeating the course of justice. See Northern Farming (Pvt) Ltd vs Vegra Merchants (Pvt) Ltd & Anor H-328-13.

In casu, the applicants have not shown why the church should be interdicted from controlling its property and exercising authority over it, let alone grant the relief they seek.

In any event the applicants have not shown a clear, or at least a prima facie right to the property in respect of which they seek an order granting them exclusive control over.  In. Ntuliki vs White & Ors HH-46-15, it was held that a prima facie right is one that is apparent at first glance.  One does not need to dig or scrounge around for.  It is one that is not a matter of surmise or conjecture.

Alternatively, since the property, especially in light of the Supreme Court judgment number SC-49-18 is vested in the 3rd respondent (the church), the applicants should have been authorized by the 3rd respondent to seek the order on behalf of the 3rd respondent.  The applicants have claimed that they do not occupy the premises through 2nd respondent (Rev R. J. Sibanda).  To that extent, they have no right to resist eviction.  The order sought is therefore in competent.  It was also stated in any event in Nothern Farming (Pvt) Ltd (supra), at page 349C-D, that:

“It is often said that an interdict will not be granted if there is another satisfactory remedy available to the applicant.  In that context, a claim for damages is often contrasted with a claim for an interdict …”

In casu, as has already been stated above, the applicants not only had the option of moving out and recover any proven damages, but also could use the 3rd respondent’s internal dispute resolution mechanisms. The court also has to show its indignation and displeasure at the attitude and language exhibited by the applicants particularly at paragraphs 20 and 30 of their founding affidavit deposed to by the 1st respondent.  The affidavit states at page 15, paragraph 30, that,

“I pray that this matter be handled as an urgent application because of the following.  Matters of religion are very sensitive and delicate and this has been so for centuries and continue to be, involving as they do, matters of faith and identity.  Indeed to  cite an example, the wars in the Middle East pit one religious faith against another, in that case Christianity and Islam, and lives are lost daily in defence of one faith against another.” (underlining is mine)

The applicants cannot seriously come to court with such an attitude and they cannot extort as it were, an order in their favour by threats of civil disobedience or even criminal conduct causing breach of peace.  The court cannot condone such “arm twisting tactics” by any party or litigant to extort an order from it.  One cannot threaten the very same court from which he seeks redress.

Finally, and coming back to the judgment SC-49-18 again the applicants, through the founding affidavit by 1st respondent states thus at page 12 paragraph 20 –

“As I said, I am a member of the church and have been since 1975.  And I have reason to believe that the same outcome will be carried out on other numerous properties under the guise of a vague statement in the Supreme Court and High Court rulings which says “claiming through Sibanda” (the underlining is mine)

Again I find this paragraph to be very insulting, contemptuous, or at the very least, disrespectful of the two (2) Superior Courts.  Having read the Supreme Court judgment number SC-49-18, and knowing the High Court order in question which in fact was an order by consent of the parties, it appears to me that the Supreme Court judgment was very thorough, clear and unambiguous. For the record, the Supreme Court in that judgment used the term “or anyone claiming through him “a total of four (4) times.  For the avoidance of doubt, and for reference purposes, the order itself has the phrase three (3) times and states as follows.

“It is ordered, with each party bearing its own costs that:

The 1st respondent having been suspended on 25 January 2012 by the parent church and while that suspension remains extent, as no right to personally, or by anyone claiming through him make use of any of the applicant’s properties or amenities as well as its name.

The 1st respondent, or anyone claiming through him, shall immediately stop and shall at all times desist from making use of applicant’s name or any such name which may reasonably be confused with applicant’s name and which may give the impression that they have any continuing association with applicant.

The 1st respondent or anyone claiming through him, shall immediately relinquish possession and use of all of applicant’s properties both movable and immovable whether held by them directly or by those claiming the right of the use or occupation through them which are set out on C1 below and shall concede such use and possession to the applicant.”  The order then proceeds to list, under “LAND AND BUILDINGS”, twenty-eight church premises from which the former Overseer, Rev R. J. Sibanda or anyone claiming through him should immediately relinquish possession, use, occupation and control of all church properties, movable or immovable or else they be evicted.

Clearly, the six (6) church properties subject of this application are also listed in that Supreme Court judgment under C (vii), (viii), (x), (xv), (xvii) and (xx).  Yet the applicants now seek from this honourable court an order effectively reversing the Supreme Court order claiming that the Supreme Court order was vague as they were themselves not personally cited as parties to those proceedings.  The High Court consent order which the applicants say was imported from the Supreme Court judgment is allegedly equally defective.  As already stated above, and looking at the Supreme Court judgment there is no ambiguity as to who the phrase “or anyone claiming through him” meant.  It was argued that prior to his suspension from the church, Rev R. J. Sibanda (2nd respondent) had defied 3rd respondent’s authority.  That has not been disputed.  He then removed all those he perceived to be loyal to 3rd respondent replacing them with his own loyalists who are mostly the applicants in casu.  He did the same with all others including church congregants, caretakers and security guards.  He literally created parallel administrative structures of the church.  As a result there can be no illusion as to who the SC-49-18 judgment was referring to.

It is clear to me therefore, that the application is not about what it purports to be.  It is about the same old fight over occupation, use, ownership and control of church property.  That issue in my view, was decided and pronounced by the Supreme Court in case number SC-49-18.  If I am wrong in that view, then it is a matter which the parties, after all these years, if not decades of wrestling, can only bring to court by way of action procedure, were full evidence, tested under cross-examination, should be led and be relied upon by any court to resolve the numerous disputes of fact.

I am convinced also, and it is the court’s finding, that the intention of this application and the effect of the order sought, was meant to pressure a judge in chambers to unwittingly  review and “correct” a perceived “vagueness” in the said Supreme Court and High Court orders.  That, this court cannot do.  There is a plethora of cases to the effect that such an order would be incompetent.

Accordingly, I order as follows:

That the matter is not urgent and it is improperly before the court.

The matter be and is hereby removed from the roll of urgent matters.

That the applicants pay costs on the ordinary scale.

Majoko & Majoko applicants’ legal practitioners

James, Moyo-Majwabu & Nyoni, 2nd respondent’s legal practitioners

Dube-Banda,Nzarayapenga, 3rd to 6th respondents’ legal practitioners