Assemblies of God (Spiritual Movement) and Luckmore Zinyama and Philip Zinyama and David Makwindi v Assemblies of God and Sheriff of the High Court

### Preamble
1
HH 452-24
HCH 7458/23
REF HC 7365/23
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ASSEMBLIES OF GOD (SPIRITUAL MOVEMENT)

and

LUCKMORE ZINYAMA

and

PHILIP ZINYAMA

and

DAVID MAKWINDI

versus

ASSEMBLIES OF GOD

and

SHERIFF OF THE HIGH COURT

HIGH COURT OF ZIMBABWE

TAKUVA J

HARARE, 9 October 2024

Urgent Chamber Application

E Mubaiwa, for the applicants

B Magogo, for the respondent

TAKUVA J:       This is an application for Stay of Execution pending the determination of an application for rescission of an order for the eviction of the third and fourth applicants from church premises as per the Judgement and Court Order under case number HC 5359/23. The order also directs the eviction from church premises all those occupying the said premises through the third and fourth applicants.

Applicants seek the following relief:

“ 1 The application for stay of execution of the order of eviction granted against third and fourth applicants in case HC 5359 /23 is hereby granted pending the finalization of the application for rescission of default Judgement filed by the applicants in case HC 7365/23.

2 The warrant of eviction issued in case HC 5359/23, if any is set aside

3 Costs of suit shall be in the cause in case HC 5359/23.”

FACTS

The Applicant and the first respondent are both Pentecostal churches. The former’s head office is in Marondera and the latter in Harare. The first applicant’s head office is situated at Stand 2666 Corner Beiha and Mbeira Streets, Rujeko, Marondera being the premises in issue. On 24 August 2023, first respondent served summons on all four applicants under case number HC 5359/2. The four applicants entered their appearance to defend the matter through their legal practitioners and copies were served on respondent’s legal practitioners.

It later became apparent that the notice was fatally defective. Efforts to explain the error by applicant’s legal practitioners to the first respondent’s legal practitioners yielded negative results. First respondent proceeded to set the matter down on the unopposed roll for 27 September 2023. At the hearing, the first respondent argued that third and fourth applicants had failed to enter appearance to defend within the prescribed dies induciae of ten days. On the other hand third and fourth applicants argued that they had timeously and correctly entered their appearance to defend as required by the law and therefore case HC 5359/23 did not qualify to be proceeded with as an unopposed matter in respect of all the four applicants. It was further argued that the default was a result of an error hence not wilful.

On 4 November 2024, this Court dismissed the third and fourth Applicants’ argument and granted the default judgment. Applicants have filed an application for rescission of default judgment. They then filed this application.

APPLICANTS CASE

URGENCY OF THE CASE

It is applicant’s contention that the matter is extremely urgent in view of the following;

Applicants filed an application for rescission of the default judgment under case number HC 7365/23 which application is pending before this Court.

The third and fourth applicants and all those claiming through them have been given hours to vacate the premises. This will cause gross irreparable harm to all of them.

Proceeding with execution of the judgment before the application for rescission is completed will mean that even if the application for rescission is granted, they will not be able to automatically return to the premises in issue but to institute litigation to that effect.

The premises are the national headquarters of the first applicant. It is where its national leader’s offices including the third applicant who is its national leader are located.

The fourth applicant is the Finance Secretary of the first applicant whose office is responsible for inter alia collecting, keeping and disbursing church funds nationally. Consequently, his eviction will disable those critical functions.

If the application is not dealt with on an urgent basis, the outcome of the rescission application becomes academic.

IRREPARABLE HARM TO BE SUFFERED BY APPLICANTS

Applicants submitted that if the execution is proceeded with they will suffer disproportionate and irreparable harm. Firstly there will potentially be serious and wide spread physical confrontation between members of the two churches who may not accept the impending eviction from church premises they have been attending for over thirty years. Secondly, it was contended applicants will suffer huge expenses that will be difficult to fully recover in the event the application for rescission is granted.

EXISTENCE OF A STRONG DEFENCE

It is argued that stand 2666 Rujeko Marondero belongs to the first applicant in that first applicant and first respondent are separate and independent churches within the International Assemblies of God fellowships. Further it was submitted that the first applicant acquired the lease agreement from the Municipality of Marondera at a time when the second applicant was already a member of the first applicant. Applicants have been paying for water and other services to the Marondera Municipality see Annexure 11- 12attached to the notice of opposition. The applicants claim to have been in peaceful and lawful occupation of the church stand in issue since they completed construction there at in 1982, which construction was done without any input whatsoever from the respondent.

FIRST RESPONDENT CASE

The first respondent raised three points in limine namely

Lack of urgency

Lack of locus standi

That the application is defective.

URGENCY

The argument here is that the matter is not urgent because the applicants have not treated the matter as urgent by filing this application “nearly two weeks after the applicants had sight of the judgment.” It is alleged further that the applicants delayed to serve the urgent chamber application on the first respondent and all their grounds of urgency are “too fragile to carry an argument on urgency.” The first respondent urged the court to strike the matter off the roll with costs on a higher scale because the default arose from a bar that applicants failed to have uplifted. Both aspects of urgency namely, time and consequence have not been satisfied.

LOCUS STANDI

The second point in limine is that the first and second applicants have no locus standi to     file the present application in that the order in default was given against third and fourth applicants only. Therefore, it is not operational against first and second Applicants. Accordingly first and second applicants are improperly before the court as they chose to bring the application under R 27 and not R 29 of this Court   Rules 2021.

DEFECTIVE APPLICATION

This point was raised on the basis that since the application is supported by three Founding Affidavits it is defective

This point in limine was abandoned at the hearing

MERITS

It was denied that second applicant has a strong case against the first Respondent in the main matter under case number HC 53 59/23. As against third Respondent it was argued that he has not attached the resolution supporting his appointment. The third and fourth applicants failed to comply with the rule of court in that the notice of appearance to defend did not notify that the third and fourth applicants were going to defend the action.

It was further submitted that the Applicants were warned about the defective appearance to defend and that only first and second applicants had entered an appearance to defend. Unfortunately, this warning fell on deaf ears and first Respondent applied for default judgment which was grunted. According to the first respondent, the third applicant was in wilful default and the default Judgement was properly granted. No reasonable justification for failing to amend the appearances to defend and serve a “proper” notice on the first Respondent as required by the rules was proffered.

As regards the running of the affairs of the first Applicant, it was contended that first Applicant is run through an independent committee, therefore the eviction of the third and fourth applicants will not seriously affect its operations as these two can be replaced. Third Applicant has no prospects of success in the main matter if judgment is rescinded. He has no valid defence and the eviction will not sever his freedom to worship.

Ownership of the property according to the first Respondent vests in itself. This is so because the lease agreement referred to was between the first Respondent and the Municipality of Marondera. See Declaration annexed to the summons in HC 5357/23. It was contended that first Applicant was created when the second, the third and fourth Applicants (former members of first Respondent) moved out of first Respondent to form the first Applicant. The lease agreement was entered into before Applicants left first Respondent. This is how the second, third and fourth Applicants represented the first Respondent in the lease agreement. Notwithstanding this representative role, the first Applicant is not entitled to possess and control the property. Also first Respondent denied that the construction of the church was carried out by the first Applicant. First Respondent claims to have been sorely responsible for the construction.

Further, first Respondent submitted that it was established in 1959 while the first Applicant was established in 2021 as a Trust.

THE LAW

The question of what constitutes urgency is a well-trodden path. The locus classicus in our jurisdiction is Kuvarega v Registrar General and Anor 1998(1) ZLR 188 (H) at 193 F-G where Chatikobo J stated;

“what constitutes urgency is not only the imminent arrival of the day of reckoning, a matter is urgent, if at the time the need to act arises, the matter cannot wait. Urgency which stems from a deliberate or careless abstentiou from action until the deadline draws near is not the type of urgency contemplated by the rules.”

Clearly the two elements of urgency namely, the time factor and the consequence or irreparable harm to be suffered if the relief is denied have been satisfied. The first respondent wants to evict the Applicants from the property in issue notwithstanding the fact that the application for rescission has not yet been finalised. An order for eviction is sui generis in that once the order for eviction  is enforced, it will not necessarily follow that it will be undone- See Mupfumi v Makoni 1993(1) ZLR 80 (SC) at 83 B-D .

The Court has a wide discretion to regulate its processes to ensure that justice is done. The application for rescission is already pending before the Court. Heads of argument have been filed and an application for a set down date has been filed – See SINO HYDRO v TOWNSEND ENTERPRISES SC27/19.

As regards the time factor, I take the view that the Applicants did not sit on their laurels at all. Also, the delay if it can be termed that has been satisfactorily explained. It is common cause that the default judgment was granted on 3 November and application for rescission was filed on 13 November (six business days). This application was filed on 16 November. It must be noted that the application for rescission was done before execution was initiated. The court must also consider the effects of the IECMS on how soon litigants can come to court. The fact that applicants were at some stage barred is irrelevant to the question. All in all I am satisfied that this matter is urgent. The point in limine was taken out of fashion. It is hereby dismissed. The first Respondent’s argument that the first and second Applicants have no locus standi is without merit in that while it is correct that the default judgment is against the third and fourth Applicants, the first Respondent has locked out the second Applicant. In my view, the manner in which the order is being executed will inevitably result in first and second Applicants being affected negatively. The two have a substantial interest in the matter. In my view the fact that the founding affidavit does not plead rule 27 is neither here nor there what is critical are the contents of the affidavit. In casu rule 29 remains open to the first and second Applicants. Failure to cite the precise rule on the cover of the application is not fatal. Also to take note of are the numerous disputes of fact surrounding ownership of the property. These dis putes require a trial to resolve them.

In the circumstances, I find that the first and second Applicants have locus standi in this matter. This point in limine is dismissed for lack of merit.

MERITS

The first Respondent contention that the application for rescission does not have bright prospects of success requires closer scrutiny. The critical question becomes was third and fourth Applicants default willful? The answer depends on the interpretation. It is possible that a different court might arrive at a different meaning. In my view, this makes the Applicants’ case arguable.

While not diciding the rescission application, I am of the view that the disputes relating to

Who acquired the property from Marondera Municipality?

Who signed the lease agreement on behalf of the first Respondent?

make the application for stay of execution not only necessary but valid.

I am persuaded to accept Applicants submission that they will suffer irreparable harm if the stay is refused. This arises from the fact that, the two sides have been worshiping at the same site for some years. Obviously the situation on the ground is as put by the Applicants “volatile.” Ordering the eviction of one group in the circumstances will arouse feelings of hostility.

The interests of justice demand that execution of the default judgment be stayed.

In the result is ordered that:

The application for stay of the order for eviction granted against third and fourth Applicants in case HC 5359/23 is hereby granted pending the finalization of the application for rescission of a default judgment filed by the Applicants under case number 7365/23

The warrant of eviction in case HC 5359/23 if any is set aside

Costs of suit shall be in the cause in case number HC 5359/23.

Mufuka and Associates, applicant’s legal practitioners

Maposa and Mahlangu Attorneys, respondent’s legal practitioners

.