African Apostolic Church (VaApostora VeAfrica) and Ernest Mhambare v Alfred Kushamisa Mwazha and Ngoni Edward Mwazha and James Mwazha and Richard Juru and Elson Tafa and Charles Tekeshe and Lovemore Mharadze and Norman Siyamuzhombwe

### Preamble
1
HH 585-22
HC 1102/22
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AFRICAN APOSTOLIC CHURCH

(VaApostora VeAfrica)

and

ERNEST MHAMBARE

versus

ALFRED KUSHAMISA MWAZHA

and

NGONI EDWARD MWAZHA

and

JAMES MWAZHA

and

RICHARD JURU

and

ELSON TAFA

and

CHARLES TEKESHE

and

LOVEMORE MHARADZE

and

NORMAN SIYAMUZHOMBWE

HIGH COURT OF ZIMBABWE,

MUTEVEDZI J

HARARE, 13 April and 5 September 2022

Urgent Court application

L Uriri, for the applicants

L Madhuku, for the respondents

MUTEVEDZI J: Renowned writer Leslie Flynn authored a text aptly titled Great Church Fights. In it he makes the analogy of two porcupines living in freezing conditions. They huddle together to keep warm. Unfortunately every time they got close to each other their quills pricked and forced them to move apart. The two needed each other but could not stop needling. That analogy epitomizes the dispute before me. As will be shown later in the judgment, disagreements between and amongst Christians typify the condescending attitude of believers when their personalities grate one another.  The papers before me show that between October 2021 and January 2022, the same parties had, either as applicants or respondents, been involved in no less than eight separate suits.  Because of their relentless approaches to this court, the issues have become convoluted.

On 13 April 2022 I heard arguments in this urgent court application. Thereafter I granted the applicants the order they had prayed for after amending their draft.  The respondents subsequently appealed against that decision to the Supreme Court. I was obliged to give detailed reasons for the decision. Below I provide them.

The first applicant is a Church which is over half a century old. It allegedly has a membership of over a hundred thousand people. The membership is said to span across five continents of the world. The second applicant, Earnest Mhambare, is a reverend in the first applicant.  First, second third,  sixth and seventh respondents are described as defrocked bishops of the first applicant. The fourth respondent is a former general secretary of the first applicant whilst the fifth and eighth respondents are former publicity secretaries of the first applicant.

The background to the application is that the applicants previously sought and obtained provisional interdicts barring the same respondents from using and abusing the first applicant(herein after the Church)’s shrines. These were in case numbers HC 1159/21, HC 5763/21 and HC 4792/21. Those interdicts were obtained on the basis that the respondents were all defrocked from the Church after due disciplinary processes carried out in terms of the Church’s constitution. The orders are extant. The applicants allege that in defiance of those court orders, the respondents proceeded to organize a meeting of their followers at Guvambwa shrine in Chivhu from 15-18 April 2022. It was on that basis that the applicants approached this court with an urgent court application in which they sought final relief in the following terms:

IT IS ORDERED THAT:

That you show cause to this Honourable Court why a final order should not be made in the following terms-

The meeting convened by the respondents at Guvambwa shrine in Chivhuon 15th -18th April 2022 be and is hereby cancelled

The respondents and those acting through them be and are hereby ordered not to convene meetings of the African Apostolic Church (VaApostori veAfrica),visit the first  applicant’s Shrines or places of worship or organize any event there

The respondents pay costs of suit on an attorney client scale.

In summary, the applicants supported the grant of the above final interdict by arguing that they are the rightful owners of the land where the Guvambwa shrine is situated and therefore have a clear right capable of protection. Further, they argued that the Supreme Court in case number SC 552/20 authoritatively determined the issue of the Church’s leadership and ruled that the first respondent, Alfred Kushamisa Mwazha is not the leader of the first applicant; that all the respondents were excommunicated from the church and are therefore no longer members of the first applicant. They also alleged that the respondents are outlaws who have defied court orders and rendered them brutum fulmen.

In their notice of opposition, the respondents sought to incorporate into this application and requested the court to consider, the records indicated below before making a determination of this issue. These were: HC5760/21, HC 5763/21, HC 6128/21, HC 6188/21, HC 6305/21, HC 6967/21, HC 256/222 and HC 537/22. As will be illustrated later, besides this being unnecessary, the court considered that a reference to that host of court proceedings was simply intended to distract its attention from the real issues at hand. Further, the dispute before the court had not been determined previously.

In the notice of opposition, the respondents raised two preliminary objections to the application. The first was that the first applicant was not properly before the court and could not institute legal proceedings at the instance of the persons behind the application. The second objection was that the matter is not urgent. At the hearing, the respondents raised a third preliminary objection relating to the form of the application. I proceed to deal with the preliminary objections starting with the question of form.

Application does not comply with rules of court

The respondents argued that the application in its current state did not comply with rules of court relating to urgent court applications.  Their view was that court applications are governed by R59 as opposed to chamber applications which are regulated by R60. Further they made the point that R59 (6) merely provides that there is room to have a dies induciae which is shorter than 10 days. It follows that an applicant wishing to have his/her/its court application heard on urgent basis is required to make a specific application to the judge in chambers. When the dies is shortened that does not remove all the other requirements of a chamber application. They then referred the court to various authorities including ZOU v Mazombwe 2009(1) ZLR 101; Marrick Trading v Old Mutual 2015 (2) ZLR 343; Max Mapungu v Minister of Justice and Others CCZ 7/21. Whilst the other authorities will be dealt with later in the judgment, I wish to point out that I agree with counsel for the applicants that the case of Max Mupungu (supra) is distinguishable from the case at hand because it did not deal with the question of forms. Its ratio was centred on the question of leave to sue sitting judges.

In addition to the above, the respondents also argued that the record was not paginated. In their view, that disbarred the applicants from being given audience.

In response, the applicants resisted the objection on the basis that the respondents were deliberately ignoring the point that there was a case management meeting before Manyangadze J. During that case management process, timelines were agreed to. A date of hearing was set with the consent of the parties. The court retained the power to regulate its processes with the consent of the parties. They further contended that the application for the recusal of the judge arose because there was a valid application before the court which had already been set down. Once the parties agreed to the timelines and the set down, the court gave directions based on those agreements. The applicants also argued that Rules 36 (17) and 58(13) of the High Court Rules, 2021(hereinafter the Rules) prohibit the respondents from raising any objection relating to want of form.  They added that the authorities cited by the respondents were all distinguishable from the instant case for one reason or another.

In the court’s analysis, the objections raised under this head are clearly self-serving. The background to the case given by counsel for the applicants is not debatable. This application was initially before my brother judge Manyangadze J. He dealt with all the pre-hearing processes during which he called for a case management meeting which the parties all attended. It was only at the commencement of the hearing when the matter had been called out in court that the respondents moved a motion for the judge to recuse himself from presiding over the matter. He agreed.

My conception of the purpose of a case management meeting is that it enables the judge and the parties to iron out any outstanding pre-hearing issues. These will include such things like pagination of records, filing and service of pleadings and shortening of the dies induciae where that is required. It is a platform designed to enable a judge to take charge of the case which has been allocated to him/her. This is particularly desirable in an adversarial jurisdiction such as ours where one of the challenges faced by the courts is the ever increasing backlog of cases. That backlog is, to a significant extent attributable to the dilatoriness and tardiness with which litigants prosecute their cases. The idea therefore is that once a matter is before a judge he/she must be able to give directions to expedite the hearing. The case management meeting ensures that when the matter is set down for hearing, the court or judge can focus on the real dispute other than dealing with peripheral aspects of the case such as the adequacy or otherwise of the pleadings.  An important aspect of the case management meeting is the consent of the parties to the setting of timelines and the departure from some aspects of the rules of court. More often than not, judges give directions pursuant to the agreements made by the parties. I consider case management meetings to be a vital cog in the broader case management system which our courts are endeavouring to implement. It is the modern, trendy, effective and indispensable way of judicial adjudication of cases. Litigants must therefore not be allowed to damage its efficacy by reopening arguments relating to issues they consented to or those which a judge would have given particular directions on using his discretion to allow a departure from the rules of court, during case management meetings.

In this case, and as already stated, the parties appeared before Manyangadze J for that precise purpose. They agreed on the timelines within which they would file whatever pleadings were outstanding. They agreed to have the matter set down for hearing and a date was allocated for that purpose.  This was done with the consent of everyone in the full knowledge of the form of the application and the state of the record. To then turn around and seek to bar the hearing of the application on the merits on the basis of those technicalities is being duplicitous.

For purposes of completeness and in case the views I express above are wrong, legal considerations of the same arguments appear to further justify my conclusions.  Mr Uriri argued that the respondents could not raise technical objections in their bid to prevent the court from hearing the application on the merits. He referred the court to R 36(17) and 58(13) of the Rules to support his argument. R36 (17) provides as follows:

“(17) No technical objection shall be raised to any pleading on the ground of any alleged want of form.”

Deme J was confronted with the same argument in the case of Gardner Magandi v Felix Pambukani HH 210/22. He found and in my view correctly so, that whilst the above rule unequivocally proscribed the raising of technical objections to pleadings for want of form, it fell under Part V of the Rules which regulates pleadings generally for action procedure. By parity of reasoning that rule cannot apply to the application procedure. The instant case is an application. R36 (17) is however analogous to R 58(13) in Part VIII of the Rules which governs the application procedure. It provides that:

(13) Without derogation from rule 8 but subject to any other enactment, the fact that an applicant has instituted—

(a) a court application when he or she should have proceeded by way of chamber application; or

(b) a chamber application when he or she should have proceeded by way of a court application;

shall not in itself be a ground for dismissing the application unless the court or judge, as the case may be, considers that—

(c) some interested party has or may have been prejudiced by the applicant’s failure to institute the application in proper form; and

(d) such prejudice cannot be remedied by directions for the service of the application on that party with or without an appropriate order of costs.

Arguments on compliance with prescribed forms are not new. One of the cases which extensively dealt with that issue is Marick Trading (Private) Limited v Old Mutual Life Assurance Company of Zimbabwe (Private) Limited and another 2015(2) ZLR 343. In that case Mafusire J was at pains to explain both the essence and rationale of the forms used in court and chamber applications. He was clear that Form 29 (which is a replica of Form 23 in the current rules) must be utilised in ordinary court applications, or those chamber applications which must be served. (Underlining is mine). He added that one of the outstanding features of Form 29 was that it brought to the attention of a respondent the nimiety of procedural rights set out in the form. These rights include advising the respondent of the filing of the application itself, his/her right to dispute the application and the repercussions of failure to file opposing papers within the stated timeframes.  He also explained that on the other hand Form 29B- which is now Form 25- is employed in chamber applications. Its major feature is that it requires the substantive grounds on which the application is based to be summarily stated on the face of the form.

After reviewing a number of decisions from this and other jurisdictions the court in Marrick Trading (supra) came to the conclusion that the arguments about which form to use is never a sterile one. It cited with approval the sentiments of Hlatshwayo J, (as he then was), in Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101 (H) at pp 102H – 103E that:

“In terms of r 229C, the use of one form instead of another, of Form 29 instead of Form 29B,

does not in itself constitute sufficient ground for dismissing the application, it being necessary

for a court or a judge to conclude that some interested party has thereby suffered prejudice

which cannot be remedied by directions for service on the injured party, with or without an

order of costs. …… However, the applicant’s error in this instance was not one of using

one form instead of another, but of using a completely different format from the

authorized ones ….”

The case at hand is a court application. The fact that the applicants succeeded in motivating the court to hear it on an urgent basis does not and cannot take away its basic character. As already stated an applicant who wishes to file a court application does so in terms of R59 (1) of the Rules. The application must be in Form 23.  An examination of pages 1-4 of the application in question shows that the applicants indeed used Form 23. It advised the respondents that the applicants intended to apply to the High Court for an order in terms of the annexed draft; it further alerted them that the accompanying affidavit/s and documents would be used in support of the application. In addition, the application informed the respondents, if they so wished, to file papers in opposition in a specified manner and within a specified time limit failing which the respondent was equally warned that the application would be dealt with as an unopposed application. In-between the notice of the application and the warnings to the procedural rights, the applicants stated the grounds upon which their application was based. Admittedly, those grounds are not a feature of Form 23. That appeared to have riled the respondents at the hearing. Tellingly, it had not jolted them at any time before that.

From the above, it is apparent that the form used in this application is substantially Form 23. My reading of the rules and comprehension of the authorities cited is that a party cannot seek to have an application dismissed for want of form for the sake of it. Instead the aggrieved party must show that he/she suffered prejudice as a result of the deficiencies of the form used. As alluded to earlier, the respondents in this case did not allege any prejudice resulting from the addition of the grounds upon which the application was predicated which the applicants unnecessarily added to Form 23. In fact, as held in ZOU v Mazombwe (supra), the use of one form instead of another on its own cannot be a basis for the dismissal of an application. My views are fortified by the dicta of Chitakunye J (as he then was) in the case of Infralink (Pvt) Ltd v Sheriff of Zimbabwe N.O. and Others HH 1/18, that:

“Whilst the raising of irregularities is not objectionable it is important to demonstrate the prejudice occasioned by such irregularities. This should not, however, be taken as a licence for lackadaisical approach to pleadings by legal practitioners.”

I have already indicated the respondents’ acquiescence to the form of the application. They did not raise an eyebrow against that form in their notice of opposition. They again did not blink during the case management meeting before Manyangadze J. The point was only taken as an afterthought at the hearing, not because it prejudiced them but in my consideration, for purposes of defeating the hearing of the case on the merits.  To me, it is a technical objection which is clearly inconsequential and harmless to the respondents’ cause. In the case of Keavney &Anor v Msabaeka Bus Service (Pvt) Ltd 1996 (1) ZLR 605 (S), Mcnally JA suggested that the failure by a litigant to plead the real defence or cause of action may suggest shear idleness or a deliberate and unconscionable attempt to avoid attracting an onus or burden of adducing evidence or that the defence is being raised as an afterthought. Those observations by the Supreme Court vindicate my finding that this argument was raised as an afterthought. There was no prejudice suffered. On that basis, I am entitled to overlook, the unnecessary addition of grounds of the application which appear in the applicants’ Form 23.

I am also aware of the Supreme Court’s holding in the case of Forestry Commission v Moyo 1997 (1) ZLR 254 (SC) that though the rules of court are not an end in themselves, to be slavishly applied for their own sake, they are there to regulate the practice and procedure of the High Court and, in general, strong grounds would have to be advanced to persuade the court or judge to act outside them. What however distinguishes that authority from the present case is that it referred to grave non-compliance with the rules. I have indicated that in this case, the form used is substantially Form 23. One cannot therefore talk of grave non-compliance where there is substantial compliance with the rules.

Mr. Madhuku further took issue with the dies induciae stated in the application. The respondents were given 48 hours within which to respond to the application if they so wished. R60 (6) of the Rules provides that:

“(6) The time within which a respondent in a court application may be required to file a notice of opposition and opposing affidavits shall be not less than ten days, exclusive of the day of service, plus one day for every 200 kilometres or part thereof where the place at which the application is served is more than 200 kilometres from the court where the application is to be heard.

Provided that in urgent cases a court application may specify a shorter period for the filing of opposing affidavits if the court on good cause shown agrees to such shorter period.”

The above proviso to the rule is the basis upon which the concept of urgent court applications is built.  Given its clear meaning the respondents’ argument is very tenuous. My literal interpretation of the provision is that an applicant is allowed to state in his/her court application a shorter period within which the respondent must file opposing affidavits. In other words in every instance that an applicant wishes that their court application be heard on an urgent basis they are at liberty to disregard the ten day period stated in R60(6). The only condition attached to it is that the court must agree to that shorter period. I do not read the proviso to mean that an applicant must first make a separate application to be allowed to state the shorter period. He/she must suggest the period within which he/she wishes the respondent to file opposition at the time that the application is filed. The period is then subject to the approval of the court.  There was therefore nothing anomalous with the applicants giving the respondents two days within which to respond. That issue subsequently went before a judge who, in the discretion given to him by the proviso, regulated the times within which the notices of opposition and other pleadings had to be filed.

Against the above background, I am obliged to dismiss as I hereby do, this particular preliminary objection for want of merit.

First applicant not properly before the court and incapacity to institute proceedings

The respondents took the point that in terms of the first applicant’s constitution, the leadership of the church is either with the Archbishop or the Priesthood Council. There is no provision which allows the deponent to the founding affidavit in this application or the board of trustees to institute legal proceedings. As such the first applicant is not properly before the court and cannot institute legal proceedings at the instance of the persons behind it.

The applicants forcefully responded to this objection. Their major contention was that the issue of who has authority to represent the church had been decided on several occasions by this court particularly in decisions number HC 1159/21, HC 5963/21 and HC 4792/21. The facts from which the present dispute emanates cut across the many records already referred to. They urged the court to make reference to and to take note of the orders in the different cases cited. When that is done, so they said, it would be apparent that the respondents’ objection in this regard is ill-conceived because it is an issue that the courts have already determined and ruled on. In other words it amounts to issue estoppel.

The law on issue estoppel

The doctrine of issue estoppel has not only been comprehensively dealt with in a number of cases in this jurisdiction but has also been embraced as part of our law. In Kashiri v Muvirimi 1998 (1) ZLR 270(SC) at 274 D-F Korsah JA cited with approval Phipson on Evidence13 ed paras 28-46, where he said:-

“If, in litigation upon one such cause of action, any of such separate issues as to whether a particular condition has been fulfilled is determined by a court of competent jurisdiction, either upon evidence or upon admission by a party to the litigation, neither party can, in subsequent litigation between one another upon any cause of action which depends upon the fulfilment of the identical condition, assert that the condition was fulfilled if the court has in the first litigation determined that it was not, or deny that it was fulfilled if the court in the first litigation determined that it was'.

With regard to P, precisely the same issue as that before the Community Court - sexual intercourse between the parties - arose in the present case for determination.  That issue having been determined between the same parties by the Community Court, the determination of it by that court raises an issue estoppel.  The parties are estopped from disputing an issue decided by a judgment of a court of competent jurisdiction”.

Prior to the decision in Kashiri v Muvirimi (supra) his LORDSHIP had also dealt with the same doctrine in Willowvale Mazda Motor Industries v Sunshine Rent-a-Car1996 (1) ZLR 415 (S).   At p 423 B-F of the judgment he held that:-

“While the doctrine of issue estoppel may not be part of Roman-Dutch law and may not as yet have found a berth in South African law, it seems to me that this court, in the wider application of existing law in the light of current modes of thought, has found the artificiality of limiting estoppel to the same subject to be unproductive of justice, and has embraced the doctrine of issue estoppel under the general rule of public policy that there should be finality in litigation.

The doctrine is succinctly stated thus by LORD DIPLOCK in Mills v Cooper (supra) at 468 thus:

“A party to civil proceedings is not entitled to make, as against the other party, an assertion, whether of fact or of legal consequences of facts, the correctness of which is an essential element in his cause of action or defence, if the same assertion was an essential element in his previous cause of action or defence in previous civil proceedings between the same parties or their predecessors in title and was found by a court of competent jurisdiction in such previous civil proceedings to be incorrect, unless further material which is relevant to the correctness or incorrectness of the assertion and could not by reasonable diligence have been adduced by that party in the previous proceedings has since become available to him”

Put in another way, the doctrine of issue estoppel simply means that an issue which has been adjudicated by a court of competent jurisdiction may not be pursued again by the same parties. It necessarily implies that issues from previous litigation between the same parties which were competently decided and overlap into another cause of action between those parties shall be treated as having already been decided.

In the instant case, the respondents referred this court to their notice of opposition in case number HC 5760/21 which they incorporated as their opposition in the current proceedings.  In the opposing affidavit therein, they make the point that the first applicant is improperly before the court for various reasons. Significantly however, the respondents concede in paragraph 20 that in case number HC 5763/21, Manyangadze J determined and dismissed the same preliminary objection. They then argue that they are in the process of appealing against that decision.  That in my view settles this matter. The question of whether or not the second applicant can represent the Church was previously decided in his favour by this court. It cannot be revisited except on appeal by the Supreme Court or except if the respondents show that there are exceptional and further material relevant to the correctness or otherwise of Manyangadze J’s decision which have become available to them. In addition they are required to illustrate that after reasonable conscientiousness, they could not have put that material before the court in the previous proceedings. No such averment appears in the respondents’ opposing affidavit. They do not even make the allegation that they appealed against the decision but that they are in the process of doing so. That unfortunately is not sufficient to enable this court to revisit the issue of whether the 1st applicant is properly before this court. It was settled. In the circumstances the preliminary objection also has no merit and is dismissed.

That the matter is not urgent

This is a court application.  The applicants moved the court to hear it on an urgent basis. In my view, the only difference between such court application and an urgent chamber application relates to the way the two are brought before the court. The considerations as to urgency are not distinct.  The law on urgency and what constitutes such urgency is so trite in this jurisdiction that I need not belabour this judgment with references to case law. But if any were required the notoriety of cases such as Kuvarega v Registrar General and Anor 1998 (1) ZLR 188 (H) and Triple C Pigs and Anor v Commissioner General –Zimbabwe Revenue Authority 2007(1) ZLR 27 cannot escape attention. The common thread running through those authorities is that a matter is urgent if at the time the need to act arises, the matter cannot wait. In other words the longer it would take to obtain relief the more academic the relief would become to the applicant. It is against that background that the issue of urgency in this application must be approached.

The relevant facts relating to when the cause of action in this case arose are that on 17 February 2022, the first applicant received information that the respondents were preparing to hold a conference to celebrate Easter at the Church’s Guvambwa shrine in Chivhu. Among other sources, the applicants became aware of the respondents’ intentions and preparations through press advertisements and posters sponsored by the respondents. The applicants attached as annexure A1 to the application, one of the press advertisements. Prior to that there had been verbal communication of the respondents’ intention to hold the conference from their legal counsel to the applicants’ counsel. That discussion was promptly followed up by written communication of disapproval from the applicants’ legal practitioners.

I have already indicated that the parties in this application have dragged each other to court at every turn and that those incessant applications and counter applications have twisted the issues. The respondents argue that this application is not urgent because the same issues have ben argued in previous cases. The applicants have therefore always been aware of them. Whilst I agree that the issues relating to the use of the shrines by the two church factions have been central to the disputes between them, I find it unconscionable that the respondents dispute the urgency with which the applicants approached the matter. True that there are court orders which bar the respondents from using the church’s shrines and that efforts were made by the parties to resolve some of the disputes amicably.  It appears however that both the orders and the efforts were in vain. The respondents, from the papers and arguments in court, appear to have deliberately disregarded the court orders in HC 1159/21 and HC 5763/21 leading to the applicants instituting contempt of court proceedings against them. Those proceedings could not deter them as shown by their resolution to hold church conferences at the prohibited shrines. Their intentions to do so are undeniable as illustrated by the press advertisements and the intimation from their legal counsel. The argument that the application is not urgent because it has been pending since February is not convincing. The gathering that the applicants seek to stop is due to start on 15 April 2022. The applicants got wind of that information on 17 February 2022 and filed this application the next day. There can be no question that they acted with the urgency which the matter deserved. If it is had after the gatherings are held, then the application would be merely academic. On that basis, I find the objection on urgency to have been raised as a matter of fashion. It has no merit and is hereby dismissed.

The merits

As indicated in the introductory paragraphs of the judgment, the applicants seek a final interdict in the terms indicated. In essence, they beseech the court to prohibit the respondents from proceeding with what they consider an illegal gathering scheduled to take place at the 1st applicant’s shrine called Guvambwa in Chivhu from 15-18 April.  At the hearing the applicants urged the court to note that on the merits, the application is barely opposed. The respondents simply incorporated their previous notices of opposition in related matters as their opposition to the present application. In the court’s view, that stance was ill-advised for a reason or two. First the law on applications requires that each and every averment alleged in the founding affidavit must be specifically controverted. Second, the events which are alleged to have triggered the need to act are said to have arisen on 17 February 2022 yet the notices of opposition which the respondents seek to rely on were all filed sometime in 2021. That realisation appears to partly explain why the respondents were hell- bent on preventing the application from being heard on the merits. The respondents’ notice of opposition curtly states the following:

ON THE MERITS

17. Ad para 1-28

17.1. Nothing is admitted

17.2. To the extent of the background issues raised by the applicants, I hereby incorporate the responses in HC 5760/21 and HC 6188/21

17.3. Requirements for an interdict are all matters of law and counsel will address them. I respectfully believe the requirements cannot and have not been met in the circumstances. The applicants are not the church. For the reasons we have stated in the pending matters, the applicants have seceded. They cannot therefore be entitled to an interdict of any nature.

The above constitutes the respondents’ entire opposition to this application on the merits. Much as counsel for the respondents argued that their opposition was contained in previously filed notices of opposition, paragraph 17.2 is clear that records HC 5760/21 and HC 6188/21 are incorporated for purposes of the background matters to the dispute. As already hinted, HC 5760/21 was filed on 21 October 2021 whilst HC 6188/21 was filed on 4 November 2021.

The law on final interdicts

The interdict being sought in this application is final. The Supreme Court in the case of Masimba Charity Huni Fuels (Pvt) Ltd v Nathan Amos Kadurira and Makoni Rural District Council SC 39/22, recently restated that the function of an interdict is to prohibit illegal conduct, to force the performance of a particular act or to redress the consequences of unlawful conduct. The requirements for a final interdict are not debatable. An applicant for a final interdict must prove:

(a) A clear right;

(b) Irreparable harm actually committed or reasonably apprehended; and

(c) The absence of an alternative remedy.

Whilst the last two requirements have generally caused very little if any discomfort amongst litigants and the courts, the issue of a clear right has occasionally ignited debate. The word ‘clear” is accepted to connote the quantum of proof needed to establish the right. It is not a qualification of the right, which like any other issue in civil proceedings, remains to be established on a balance of probabilities. Black’s Law Dictionary, 2nd Edition, defines a clear right as:

“A right that is based on a matter of the law that has been determined by totally accepted facts.”

In other words, my understanding is that the word ‘clear’ in clear right is not used as an adjective but as an adverb. It expresses a relation of degree of proof required to prove the right. To express it in even simpler terms it means that the right must be established clearly. Whether the applicant possess such right is a matter of substantive law. It should exist at law and be capable of protection.

In this case, the applicants allege that the respondents were expelled from the Church and are no longer its members. They attached correspondence relating to the disciplinary action that was taken against each of the respondents resulting in each of the expulsions.  They further alleged that the first applicant constructed structures at Guvambwa shrine. The properties are maintained by the first applicant’s board of trustees. The respondents despite their being excommunicated from the Church are arranging to invade that shrine and hold a conference thereat with their own followers. In the applicants’ view, that conference would amount to a desecration of their holly place of worship. To compound the respondents’ woes, the applicants argue that previously, this court issued orders on three separate occasions, interdicting the respondents from visiting, Guvambwa and the church’s other shrines or organising any event there. The respondents however continue to circumvent those orders. In addition, the Supreme Court’s decision in the case of Alfred Mwazha and 9 Others v Earnest Mhambare SC 116/21 confirmed that the first respondent in this case is not the successor Archbishop of the first applicant because Archbishop Paul Mwazha is still alive and remains leader of the church. In their view, there can be no doubt that the first applicant has a right to hold, occupy and use its property. It also has a right to protect its property against use by some unauthorised and defrocked former members of its ranks.

In his submissions at the hearing counsel for the respondents’ argument was again tepid.  He argued that the applicants have no legal right to protect. That there is in the papers, no explanation of what a shrine is. In the respondents’ view, it is simply an open communal land allocated by traditional leaders. As a matter of legal right, the applicants cannot restrain others from worshipping at the shrine.

Needless to mention, the argument by the respondents that the Guvambwa shrine is an unimportant communal place is ludicrous. If it were as ordinary as they seek to portray, there would have been no point in them fighting tooth and nail to have access to worship thereat. That there have been accusations and counteraccusations relating to the shrine illustrates that they all consider it consecrated. In the end the totally accepted facts of this case are that the shrine in question is property of the first applicant. At law, specifically s 71(2) and (3) of the Constitution of Zimbabwe, 2013, the applicants have a right to hold, occupy and use that property. It is the first applicant which is entitled to control its property. The wisdom or lack of it of the applicants believing in the holiness of the shrine is a matter that the court refuses to be drawn into.  It’s a matter of theology. The Constitution provides for and allows freedom of worship.  I am obliged in my assessment of whether the applicants have discharged the onus on them to prove, on a balance of probabilities, a clear right to the shrine in question, to consider the rationale of an interdict. It is to prohibit unlawful conduct. The respondents have repeatedly been interdicted from visiting and organising events at the applicant’s shrine until the issue of the church leadership is resolved.  They have and without any basis to do so, been unrelenting. In the end I am inclined to find, as I hereby do, that on a balance of probabilities, the applicants have clearly established their right to control the shrine at Guvambwa.

Irreparable harm actually committed or reasonably apprehended

In relation to this requirement, the applicants argued that there is imminent danger to their rights because the respondents are bend on holding their illegal gatherings utilising the church’s sacred shrines. Allowing that to happen will be heresy in terms of the church’s doctrine and constitution. It will amount to desecration of the shrines. They further stated that there is also a danger that the respondents’ actions will promote lawlessness and defiance of court orders. The respondents’ actions are therefore a direct threat to the church’s existence. Once they are allowed to proceed with their illegal gatherings, the consequences will be permanently damaging to the applicants.

In contesting this ground, the respondents argued that the dates on which the respondents have planned their gathering do not coincide with the dates on which the applicants wish to hold theirs. As such there cannot be any harm to the interests of the applicants.

The above submission by the respondents illustrates where they missed the point. The argument was never about the clash of dates. It was about injury to the first applicant’s reputation, standing and goodwill as a church. It was also about deprivation of the first applicant’s constitutional right to hold, occupy and freely use its property. The Guvambwa shrine is considered holly by the first applicant and its followers. Its use by unauthorised persons or groups of persons harms the church. Its desecration cannot be adequately compensated by an award of monetary damages for instance. The irreparable harm contemplated refers to instances where the applicant will suffer permanent or irreversible injury if the interdict was not granted.  See Pomelo Mining v Annandale Trust and Another HH 403/18 for that proposition.

In this case, the applicants have clearly made a case that they stand to suffer irreparable prejudice. There is evidence that the respondents have previously invaded the applicants’ shrines and there is evidence that another invasion is imminent.

The absence of an alternative remedy.

The applicants argue that there is no alternative remedy available to them given the background of this matter. They stated that the Supreme Court authoritatively resolved the leadership of the church. It emphasised that as long as Archbishop Paul Mwazha was alive, he remained the leader of the church.  Despite that pronouncement, the respondents have relentlessly circumvented that and other court decisions with first respondent particularly, claiming to be the leader of the first applicant. The applicants proceeded to apply that the respondents be held in contempt of court under case number HC6128/21. Two other applications to set aside the respondents’ alleged illegal actions were filed. All that has not stopped the respondents. As a result, so the applicants argue, there is no alternative remedy other than to seek this interdict.

In response, the respondents were again curt. Their defence was a bald assertion that the applicants had not shown that they do not have an alternative remedy. My view, is therefore that the allegation that the applicants have no alternative remedy was hardly challenged. But even if it were, what is clear is that the respondents need something drastic to stop them from pursuing their self-serving agendas. The applicants correctly describe them as outlaws. If what the applicants allege is correct, the respondents’ defiance of court orders leaves me with no doubt that all things being equal, they should not have had a right of audience before the court. They were coming to court with very dirty hands. I could not however pursue that route because I considered that the issue of whether they are in contempt of this court’s orders is one that is pending and must be left to be determined after proper arguments. That cannot however detract from my finding that if the contempt proceedings could not deter them and if all the other legal processes instituted by the applicants could not stop them, I do not see any other remedy except this interdict, being available to adequately protect the applicants’ interest.

Due to the tepid opposition to this aspect and the issues I raised above, I am entitled to draw the inference that the applicants have proved that they will suffer irreparable harm if the interdict is not granted and that they have no option but to seek this interdict as there is no adequate alternative remedy.

Costs

In their papers, the applicants prayed that the respondents be visited with costs on a higher scale. During arguments however, Mr. Uriri did not persist with that request. As such I had no reason to depart from the rule that ordinary costs follow the outcome.

Disposition

It was on the basis of the above, that I ordered that:

The respondents’ preliminary objections are all dismissed

The urgent court application is granted in the following terms:

The meeting convened by the respondents at Guvambwa Shrine in Chivhu on 15 -18 April 2022 be and is hereby cancelled

The respondents to pay the applicants’ costs of suit jointly and severally, the one paying the others to be absolved.

Mushangwe and Company, applicants’ legal practitioners

Lovemore Madhuku Lawyers, respondents’ legal practitioners