Church of the Province of Central Africa v Dr Nolbert Kunonga & 3 Ors

HH 197-2011
                                                                             HC 2259/08

CHURCH OF THE PROVINCE OF CENTRAL AFRICA
versus
DR NOLBERT KUNONGA
and
REVEREND MUNYANYI
and
COMMISSIONER GENERAL OF POLICE N.O.
and
ASSISTANT COMMISSIONER MAZANGO



IN THE HIGH COURT OF ZIMBABWE
GUVAVA J
HARARE, 28 APRIL & 2 MAY 2008

Urgent Chamber Application


Mr Moyo, for the applicants
Mrs Chizodza, for the 1st & 2nd respondents
Mr Maphosa for 3rd & 4th respondents

          GUVAVA J: This matter came before me on a certificate of urgency on 28 April
2008. After hearing submissions from counsel I granted a provisional order in the
following terms:
          "1. Pending determination of this matter, the applicant is granted the following
relief;
          a)       The applicant is hereby granted leave to enforce and execute the
                   provisional order granted by this Honorable Court in case number HC
                   345/08 as clarified in case number HC 402/08.
          b)       The first, second, third, and fourth respondents be and are hereby
                   interdicted and restrained from interfering with the applicants church
                   services at church premises held in accordance with the provisional
                   order granted in case number HC 345/08 and clarified in HC 402/08."
 The parties in a letter dated 12 August 2011 have requested written reasons for my
decision. These are they.
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       The background to this application and a plethora of other cases which have come
before this court concerning the dispute within the Anglican Church can be summarized
as follows. In September 2007 the first respondent announced that he was withdrawing
the Anglican Diocese of Harare from the Church of the Province of Central Africa. The
Church of the Province of Central Africa had comprised four dioceses that is Malawi,
Zambia, Botswana and Zimbabwe. Having withdrawn from the Church of the Province of
Central Africa the first respondent proceeded to establish the Anglican Church for the
Province of Zimbabwe for which he is Archbishop. The first respondent has claimed
ownership to all the church premises and refuses to share them with the applicant. A
matter is currently pending in this court to determine the dispute in regards to the
ownership of these properties. On 13 January 2008 the first and second respondent with
the assistance of third and fourth respondents disrupted various church services that were
being conducted by the applicant. The applicants approached this court on an urgent basis
in case number HC345/08. MAKARAU JP on 19 January 2008 issued a provisional order
setting out how and when church premises are to be available to the applicant and the
first respondent for their services and interdicting the parties from interfering with the
activities of the other. The first and second respondents did not comply with the order and
the applicants brought another urgent chamber application being HC402/08. In that case
KARWI J made an order clarifying and setting out the actual times when the parties were
to take turns in using the church premises. The first and second respondents have noted
appeals in the Supreme Court in respect of the two matters. Following the noting of these
appeals the first and second respondents through one Morris Brown Gwedegwe wrote a
letter to third respondent on 9 April stating that the appeals suspended the operation of
the High Court judgments and therefore the applicants no longer had any right to use the
church premises. They thus sought the assistance of third respondent in barring the
applicants from using the church premises. Following this letter the fourth respondent
directed the riot police on 20 April 2008 to disperse a congregation at St Michael's parish
in Mbare where Bishop Bakare was conducting a meeting of the mothers union. This led
to the present application before me.
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       The first and second respondent opposed the application. They argued firstly that
the matter was not urgent as the appeals had already been noted in the Supreme Court and
they had requested that the appeals be heard on an urgent basis. Mrs Chizodza therefore
argued that there was no need for the interim relief that the applicants were seeking as the
matter would be resolved very soon. She further argued that the conduct of the
respondents on 20 April was above board as the noting of appeals against both judgments
of the High Court suspended their operation and therefore the applicants were not entitled
to the use of the property. She further submitted that granting of the order sought would
cause irreparable harm to the first and second respondents as parishioners would be afraid
to attend their church services due to the clashes that were taking place between the
worshippers. Mr Maphosa for the third and fourth respondents stated that he had no
submissions to make and would abide by the decision of the court.
       The urgency of the matter in my view was self evident. It is not in dispute that
applicant's members were being barred from attending Sunday service and other related
church programs. It seemed to me that the dispute between the parties, being an
ecclesiastical one, it was necessary for the court to intervene and stop the unending
clashes between the worshippers.
       The first and second respondent's submitted that the matter was not urgent as the
appeals were to be heard urgently in the Supreme Court. Although it was conceded that
the appeals had been noted and heads of arguments filed I was not persuaded that this
removed the urgency of the matter as it was apparent that there was no certainty as to
when the appeals would be actually heard by the Supreme Court.
       It was for these reasons that I held that the matter was urgent and proceeded to
hear the merits.
       It was my view that the application which was before me was one seeking for
leave to execute pending appeal. Where a party applies to have an order of court enforced
notwithstanding the pending of an appeal the following principles must be applied:


       1.          "The potentiality of irreparable harm or prejudice being sustained by the
                   appellant on appeal if leave were to be granted
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       2.        The potentiality of irreparable harm to be granted to the respondent on
                 appeal if leave to execute were to be refused

       3.        The prospects of success on appeal, including more particularly the
                 question as to whether the appeal is frivolous or vexatious or has been
                 noted with the bona fide intention of seeking to reverse the judgment
                 but for some indirect purpose, e.g to gain time or harass the other party;
                 and

       4.        Where there is potentiality of irreparable harm or prejudice to both
                 appellant and respondent, the balance of hardship or convenience, as the
                 case may be."(see Masimbe v Masimbe 1995 (2) ZLR 31 (S))

       In applying these principles to the facts of the case before me I was not persuaded
by Mrs Chizodza's argument that irreparable harm or prejudice is likely to be suffered by
the respondents if I were to grant the order sought. The orders made by MAKARAU JP
and KARWI J had, in my view, brought about some semblance of orderliness in the
manner in which the church services were being conducted by the different factions.
Indeed this was confirmed by the supporting affidavits filed by Vincent Fenga, Jonathan
Makoni and Blessing Shambare representing the different parishes. I took the view that
the premises over which the applicants have been prohibited from using are not ordinary
commercial premises which are used for the purpose of profit. Rather they were
established for the purpose of allowing persons to worship freely.
        It was also my view that the appeals were noted with the primary purpose to
merely harass the applicant as the main dispute relating to the ownership of the properties
was already before the court. The evidence that came out clearly in the papers before me
was that the timetables which had been set out in terms of the judgments of this court
were working well. There was no real reason why the first and second respondents could
not have continued to hold services in accordance with the court orders as there was no
prejudice to them.
       On the other hand were this court to deny the relief being sought the applicants
would continue to suffer as their members would have nowhere to conduct their services.
It seemed to me that the balance of convenience clearly favored the applicants. The
orders made were temporary pending the determination of the main matter. It seemed to
me that, as both parties were purportedly Christians, the only christen thing to do was to
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allow the applicant and the respondents to continue sharing the use of the church until the
appeals were determined by the Supreme Court.
       It was for these reasons that I granted the order sought as amended.




Gill, Godlonton & Gerrans applicant’s legal practitioners
M V Chizodza Chineunye, 1st & 2nd respondents’ legal practitioners
Civil Division of the Attorney General's Office, 3rd & 4th respondent's legal practitioners