Judgment record
Church of the Province of Central Africa & Ors v Elson Madoda Jakazi & Ors
HH 238-11HH 238-112011
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CHURCH OF THE PROVINCE OF CENTRAL AFRICA
and
BOARD OF TRUSTEES FOR THE DIOCESE OF MANICALAND
and
MUSIWA MWASHITA.
versus
ELSON MADODA JAKAZI
and
BOARD OF TRUSTEES FOR THE DIOCESE OF MANICALAND
and
REVERAND BERNARD MAUPA
and
REVERAND VUSUMUZI NDLOVU
and
AND REVERAND KATANGA
HIGH COURT OF ZIMBABWE
UCHENA J
HARARE, 4, 6, and 10 October 2011.
Urgent Chamber Application
H Zhou, for the applicants
T. M. Kanengoni, for the respondents
UCHENA J: The first applicant is the Church Of The Province Of Central Africa,
commonly known as the Anglican Church. The second applicant is the first applicant’s
Board of trustees charged with the responsibility of looking after diocesan property in its
Manicaland Diocese. The third applicant is the first applicant’s warden at All Saints
Zimunya Church.
The first respondent is the Bishop of the Diocese of Manicaland for a faction of
the first respondent now affiliated to the Anglican Church in the Province of Zimbabwe.
The second respondent is a board of trustees for the Diocese of Manicaland falling under
the first respondent’s faction. The third to the fifth respondents are Reverend’s of the first
respondent’s faction.
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The parties had, on 12 October 2009, appeared before BHUNU J in HC 4804/09,
before whom they consented to an order which allowed each party to remain in charge
and control of the church’s property which was in their respective possession at the time
of the consent order. The parties complied with the consent order until the applicant’s
filed an urgent chamber application claiming that they had been despoiled of their All
Saints Zimunya Church, by the respondents.
The applicants narrated their dispossession through the supporting affidavit of
Musiiwa Mwashita the third applicant. He explained how the third to fourth respondents
approached him demanding the keys for the All Saints Zimunya church. He refused to
give them possession of the church after which the respondents sought the help of the
police, who helped them to force the third applicant to surrender the keys to them. After
they had been despoiled the applicant’s sought the co-operation of the respondents in
returning the church to them through their lawyers who wrote to the respondents’
lawyers. When the last letter was not responded to by the date the applicants’ lawyers had
given as the dead line for the respondent’s response, they filed this urgent application.
In their opposing papers the respondents do not dispute that they dispossessed the
applicants in the manner explained by Mwashita, but claim that they had possession of
the Zimunya church when parties entered into the consent order before BHUNU J. They
claim to have been acting in counter spoliation when they dispossessed the applicants as
alleged in Mwashita’s supporting affidavit They sought to prove that by tendering
documents in which the Zimunya priest communicated with the first respondent and his
predecessors, and a voucher through which the priest was paid a stipend by the
respondents’ faction.
The applicants filed an answering affidavit through which they disputed the
respondents’ allegation that they had possession of the Zimunya church at the time the
consent order was entered into. They produced documents which proves that the
Zimunya priest Reverend Rondozai was in their faction.. They also filed a supporting
affidavit by Reverand Rondozai’s widow in which she categorically denied that she and
her husband were in the respondents’ faction. A parishioner Agnes Chipangura also
deposed to an affidavit in which she stated that Reverand Rondozai was in the applicant’s
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faction. She also stated that the Zimunya parish has always been under the applicants
until the respondents despoiled them.
The evidence in the applicants’ affidavits tends to support their claim that they
always had possession of the Zimunya church. This is especially so in view of the
affidavits of Moreen Virginia Rondozai, Musiiwa Mwashita, Agnes Chipangura and
Reverand Chigwanda. These are persons who are directly connected with the Zimunya
church and are expected to know under whom their parish was operating. Mrs Rondozai
was the deceased Reverand Rondozai’s spouse. She and her husband were shepherding
the parish. She can not be mistaken as to which faction they pledged their loyalty. She is
supported by the parishioners, Mwashita and Agnes, and the fact that the respondents had
to force Mwashita to give them the keys to the church. The applicants’ position is
strengthened by the respondents’ failure to explain convincingly how if they had always
been the possessors of the Zimunya Church, they ended up having to force the church’s
warden to give them the key’s. There is also no explanation as to why Mrs Rondozai with
the concurrence of other parishioners would turn against them. The probabilities favour
the applicants’ claim that they were despoiled by the respondents.
The affidavit of Reverand Chigwanda confirms that the Zimunya parish was
being administered by the applicants through himself and Reverend Waiziweyi as they
alternated in conducting Sunday services at the All Saints Zimanya church. This raises
the question of why the respondents would have allowed this to happen from the time
Reverend Rondozai died in May 20011 till 6 September 20011. The respondents said
they had appointed a priest to work with Reverend Rondozai because of his ill health.
They did not have the confidence of stating his name. More importantly they do not say
where he was for the keys to end up in the custody of the church’s warden. This also
raises questions as to how if there was an assistant priest Reverands Chigwanda and
Waiziweyi could have been conducting services at this church since the death of
Reverend Rondozai.
The documental evidence also favours the applicants’ .position. There is
Annexure G, a declaration of allegiance to the applicant by Reverand Rondozai, dated 27
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June 2008, which is supported by his wife’s affidavit. The fact that it is dated June 2008
means by the time the parties entered into the consent order the applicants had possession
of the Zimunya church. There is Annexure H the contract of employment between the
applicants and Reverend Rondozai dated 22 November 2009. This contract was entered
into soon after the consent order of 12 October 2009. It seems the applicants were
through the allegiance and contracts of employment, confirming who was and was not on
their side. Annexure I, dated 1 December 2009, proves that applicant issued Reverand
Rondozai with a licence to officiate in the Anglican Diocese of Manicaland at All Saints
Zimunya Chapelry.
On the other hand all the respondents could do to prove Reverend Rondozai’s
allegiance to them was tendering Annexure D a petty cash voucher for the payment of a
stipend to him, dated 17 April 2009, and Annexure F a letter dated 15 January 2008 in
which the first respondent advised Reverand Rondozai of his appointment of an interim
priest because of Reverand Rondozai’s ill health. While Annexure D tends to show the
respondents could have paid Reverand Rondozai on 17 April 2009, it is not supported by
documents proving persistent and continuous payments to prove that Reverand Rondozai
was their priest. Mr Zhou for the applicants submitted that at the beginning of
factionalism papers from one faction could have found their way to the other faction.
This renders the solitary proof of payment to be of limited to no value. The letter on the
appointment of the interim priest came from the first respondent. There is no proof that it
was received at the Zimunya church. It is thus not a strong link between the respondents
and Reverand Rondozai. It pales into insignificancy, when viewed in the light of the
priest’s name not being given and there being no evidence of such priest having been
posted to the All Saints Zimunya church. The other documents tendered refer to periods
before factionalism started and are not relevant to the determination of this application.
The facts of the case therefore favours the applicant’s application, but the
application can not be determined without considering Mr Kanengoni’s submission that
the respondents’ conduct is nothing more than a counter spoliation, an immediate
reaction to the applicants’ act of unlawfully depriving them of their possession of the
church, after the death of Reverand Rondozai. This submission was premised on the first
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respondent’s deposition that his faction was in charge of the Zimunya church when the
parties entered into a consent order before BHUNU J, and that the applicants took
advantage of Reverend Rondozai’s death to despoil his faction of that possession.
Mr Kanengoni for the respondents submitted that counter spoliation is a
recognised defence to an application for a spoliation order. He relied on the Namibian
case of The Three Musketeers Properties (PTY) LTD and Another vs Ongopolo Mining
and Prossessing LTD and Others Case No SA 3/2007, in which MUTAMBANENGWE
AJA at p 19 to 20 of the cyclostyled judgment said;
“SMUTS AJ cited a number of cases in support of his statement at p 44 of his
judgment that counter- spoliation is accepted by the common law as a defence to
an act of spoliation , to mention but one, in Mans v Loxton Municipality and
Another 1948 (1) SA 966 (CPD) STEYN J considered the question at length (pp
976-978) citing a number of authorities including common law writers on the
subject to illustrate various formulations of the doctrine: (Van Leeuwen; Voet;
Salkowski; Savigny and Huber) and ended with the following statement (at 977-
978)
‘Breaches of the peace are punishable offences and to prevent potential
breaches the law enjoins the person who has been despoiled of his
possession even though he be the true owner with all rights of ownership
vested in him, if the recovery is instanter in the sense of being still a part
of the res gestae of the act of spoliation then it is a mere continuation of
the breach of the peace which already exists and the law condones the
immediate recovery, but if the dispossession has been completed, as in this
case where the spoliator, the plaintiff, had completed his rescue and placed
his sheep in his lands, then the effort at recovery is, in my opinion, not
done instenter or forthwith but is a new act of spoliation which the law
condemns’
SMUTS AJ pointed out that in Ness and Another v Greef, supra, a full bench at
648 approved of a statement by Van der Merwe in Sakereg at 93 “that a Court has
a wide discretion to approve an act of counter-spoliation and to refuse the original
spoliator against the original possessor” and “in that matter even though a period
of 11 days had elapsed between the appellant’s occupation until he was locked out
by the respondent, the Court held that the respondent’s conduct amounted to an
instanter recovery of the premises”.
Mr Kanengoni also referred the court to the South African cases of Mans v Loxton
Municipality & Anor 1948 (1) SA 966 (CPD), De Beers v Firs Investments Ltd 1980 (3)
SA 1087 (W) and Ness and Another v Greef 1985 (4) SA 641 (CPD).
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He submitted that counter spoliation can be allowed even after a considerable
time has lapsed after the first spoliation. He relied on the case of Ness and Another v
Greef (supra) where a tussle over immovable property continued over a period of eleven
days during which the owner was resisting being despoiled by a spoliator, where VIVIER
J @ 649 D – H said;
“It is true that in the present case, a much longer time elapsed from Ness’ first
occupation of the premises until he was finally locked out by the respondent. Can
it be said however, that, having entered the premises on 5 March 1984, against the
owner’s explicit prohibition, having ignored the notice put up by the respondent
that day, having replaced the locks installed by respondent’s locksmith on 7
March 1984 to keep him out, all the time well knowing that he had no right to be
on the premises nor to trade there, Ness had become so firmly established or
ensconced in his possession that his spoliation of the premises was complete? I
think not. That would be as COETZEE J said in De Beer’s case, an unrealistic
evaluation of the situation. I think it is far more realistic to describe the situation
existing on the premises in the days which followed Ness’ first intrusion on 5
March 1984 as “one indivisible transaction, in which the previous possessor
defended his possession by force”. (See) Savingy’ treaties on possession (Perr’s
translation), which is quoted in Man’s case at 976. Respondent did not only use
force, as is shown by the letter, written by her attorneys on 9 March 1984. In my
view the tussle for possession of the premises, commenced on 5 March 1984 and
continued until, 16 March 1984 when respondent finally succeeded in ousting
Ness from the premises. The events which followed after 5 March 1984 were all
part of the res gestae of the original act of spoliation and a continuation of the
breach of peace committed by Ness on 5 March 1984. On the facts of the present
case, therefore, I am of the view that respondent’s conduct of 16 March 1984
amounted to instanter recovery”
Relying on these authorities Mr Kanengoni argued that respondents discovered
that the applicants had despoiled them by taking over the Zimunya church after the death
of Reverend Rondozai. He submitted that as stated in Mwashita’s affidavit they tried to
get the keys from him on 6 September 20011. He resisted them, causing them to seek
police assistance through which they managed to get the keys from him 3 days later on 9
September 2011. He argued that from the time the respondents started demanding the
keys on 6 September and their obtaining them on 9 September the tussle for the keys was
on going. That may be so but the real issue in this case is if the applicants had despoiled
the respondents, when had they done so, and had their spoliation been completed by the
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time the respondents discovered it. If it had been completed the respondents would not be
entitled to the defence of counter - spoliation, as that defence can only be successful if it
is instanter and forms part of the res gestae of original spoliation.
Mr Zhou for the applicants, relying on the South African cases cited by Mr
Kanengoni for the respondents and the case of Abbott v Von Tholeman 1997 (2) SA 848
(CPD) @ 852 F, submitted that counter spoliation should be part of the res gestae of the
original spoliation and can not be relied upon after the initial spoliation has been
completed. He argued that in this case the applicants’ warden Mwashita had the keys and
therefore possession of the Church. He had been in such possession since the death of
Reverend Rondozai, who had possession of the church before the consent order. He
therefore submitted that even if it was possible, that the respondents believed they had
been despoiled, at the time of Reverend Rondozai’s death in May 2011, they could not
have been counter-spoliating five months later in September 2011, as the first spoliation
would have been completed in May 2011. He referred the court to Silberberg and
Schoeman’s “The Law Of Property” third edition, at page 144 where the learned authors
said;
“As a general rule a possessor who has been unlawfully dispossessed cannot take
the law into his own hands to recover his possession. Instead, he will have to
make use of one of the remedies provided by the law, for example the mandament
van spolie. But if the recovery is instanter (forthwith) in the sense of being still a
part of the res gestae of the act of spoliation, then it is regarded as a mere
continuation of the existing breach of the peace and is consequently condoned by
the law. This is known as counter spoliation (contra spolie). However if the
victim of the first act of spoliation fails to act instanter and takes the law into his
own hands to regain possession of the thing after the dispossession has been
completed, his conduct would constitute a new breach of the peace and would be
regarded as a separate act of spoliation, entitling the first spoliator to a spoliation
order against him”.
Counsels for both parties, agree on the requirements of counter spoliation. They
however disagree on the effect of the lapsing of time between the acts of spoliation and
counter spoliation. Mr Kanengoni for the respondents submitted that a delay of three days
does not defeat the defence of counter spoliation. Mr Zhou for the applicants relying on
Silberberg’s discussion of the case of Ness v Greeff at p 145 of their book already
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referred to above, argued that that case was wrongly decided, when it was held that
recovery after a period of eleven days was instaner recovery.
In my view the parties’ different views on whether the eleven day tussle for
possession in Ness (supra) was instanter or not is not material for the resolution of this
application. In the Ness Case (supra) the tussle for possession started when the first
spoliation commenced. It thus disturbed the completion of the first spoliation and thus
laid the basis of counter spoliation. In this case the respondents simply allege that
applicants despoiled them when Reverend Rondozai died. Reverend Rondozai died in
May 2011. Reverends Magwanda and Maiziweyi of the applicants, then took over the
priestly duties at the All Saints Zimunya church. They alternated in conducting church
services. Mwashita had physical possession of the keys, since the death of Reverend
Rondozai. This means if the respondents ever had possession of All Saints Zimunya
church, they were despoiled soon after Reverend Rondozai’s death in May 2011. That
spoliation was well settled and completed by the 6 th of September 2011 when the
respondents demanded the keys from Mwashita. Their conduct can not be described as
instanter to the alleged despoliation of May 2011. It thus cannot qualify as a counter
spoliation. It is clearly a new spoliation which the applicants are entitled to ward off
through this urgent application.
Mr Kanengoni’s reliance on the period 6th to 9th September 2011 as a continuous
tussle similar to that in the Ness case (supra) misses the fact that the respondents allege
that they were despoiled soon after Reverend Rondozai’s death. The tussle for the keys,
between the 6th and 9th September 2011 therefore took place long after the alleged first
spoliation and can not be a basis for a defence of counter spoliation. Counter spoliation
can only succeed if the despoiled, acts by resisting the on going spoliation. It like self
defence can not be condoned in circumstances where the initial spoliation has been
completed, and the initial spoliator, now has firm control and possession of the despoiled
property. Revenge spoliation cannot be disguised as counter spoliation, just as revenge
can not be disguised as self defence
Counsels for both parties referred to case law from other jurisdictions to prove
that counter spoliation is a defence to an application for a spoliation order, and as to the
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circumstances under which such a defence would be accepted. They did not refer to a
case from this jurisdiction to show that the defence of counter spoliation has been
accepted by our courts. My own research has however established that it has. In the case
of Kama Construction (Pvt) Ltd v Cold Comfort Farm Co-Operative & Ors 1999 (2)
ZLR 19 (SC) at p 21 F-H McNALLY JA commenting on the requirements for obtaining
a spoliation order and the defences which can be raised against such an application said;
“The relief applied for was in essence a spoliation order. It is trite that in order to
obtain a "mandament van spolie" or spoliation order, the applicant must show
that:
(a) he was in peaceful and undisturbed possession of the thing; and
(b) he was unlawfully deprived of such possession.
See Joubert Law of South Africa Vol 27 para 78; Botha & Anor v Barrett 1996
(2) ZLR 73 (S) at 79E-F.
The only valid defences that may be raised are that:
(a) the applicant was not in peaceful and undisturbed possession of the thing in
question at the time of the dispossession;
(b) the dispossession was not unlawful and therefore did not constitute spoliation;
(c) restoration of possession is impossible;
(d) the respondent acted within the limits of counter-spoliation in regaining
possession of the article.”
Mr Kanengoni for the respondents submitted that the respondent’s conduct was
not unlawful as they used police to take the keys from Mwashita Mr Zhou for the
applicants referred the court to the case of Mutsotso & Ors v Commissioner of Police &
Anor 1993 (2) ZLR 329, at 332 H to 333 A-C, where Robinson J held that the use of the
police in the dispossession of the applicants in that case, did not clothe the respondent’s
conduct with legality, as dispossession must, be through the due process of the law. I
agree with Mr Zhou’s submission, and find that the use of the police by the respondents
to cow Mwashita into surrendering his possession of the church’s keys to them does not
make their dispossession of the applicants lawful.
I am satisfied that on the facts placed before me the applicants have provisionally,
proved that they were despoiled. They had undisturbed possession, until the respondents
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forced Mwashita to surrender the keys to them. They proved that the respondents were
not acting in counter spoliation, as their acts were not part of the res gestae of the alleged
original spoliation and were not instanter to it. They are therefore entitled to a provisional
order restoring the status quo.
In the result it is ordered that;
Pending determination of this matter the applicants are granted the following
relief;
The respondents are ordered to forthwith restore to the applicants possession,
control and use of the All Saints Zimunya church.
Gill Godlonton & Gerrans, applicants’ Legal Practitioners
Chikumbirike & Associates, respondent’s Legal Practitioners