Free Methodist Church of Zimbabwe v Kabelo Dube and Kanya Nare and Mr. Mudzingwa and Mrs. Chitanga and Free Methodist Church Masvingo Circuit

1
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FREE METHODIST CHURCH OF ZIMBABWE
versus
KABELO DUBE
and
KANYA NARE
and
MR. MUDZINGWA
and
MRS. CHITANGA
and
FREE METHODIST CHURCH MASVINGO CIRCUIT

HIGH COURT OF ZIMBABWE
PATEL J

Civil trial

HARARE, 13 to 15 September 2011 and 10 January 2012

C. Daitai, for the plaintiff
S. Mushonga, for the defendants



       PATEL J:     This case involves a long-standing factional fight

between the members of a religious group, relating to questions of

leadership and proprietary rights. The plaintiff seeks restoration of

possession in respect of the church premises in Masvingo. It also seeks

an order restraining any disruption of or interference with its lawful

activities. The defendants assert their autonomy from the plaintiff and

are vehemently opposed to the relief claimed by the plaintiff.

       The issues for determination herein, as agreed at the trial, are as

follows: (i) whether Bishop Abner Chauke has authority to represent the

plaintiff; (ii) whether the 5th defendant (the circuit church) has locus standi

in judicio; (iii) whether the plaintiff, through Rev. Shinasi Gezani, was in

peaceful occupation and possession of the disputed church premises; (iv)

whether the plaintiff and Gezani were lawfully evicted and dispossessed
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of the church premises; (v) whether the defendants should be interdicted

from interfering with the plaintiff’s lawful activities.


Evidence for the Plaintiff

       Bishop Abner Daniel Chauke was appointed as the bishop of the

plaintiff church in 2000. He heads the church under its 2004 Constitution

(the Book of Discipline). He testified as follows. The defendants are

members of the plaintiff church and are presently in occupation of the

church premises at Stand No. 12489 Runyararo, Masvingo. These

premises are the headquarters of the plaintiff and comprise several

buildings designed and used for church purposes. Until September 2006,

the plaintiff was in peaceful occupation of the premises and had full

access to all its buildings and facilities. In 2006 Rev. Gezani was

transferred from Gweru to Masvingo. He stayed there peaceably for

about two weeks until he was forcibly evicted on 22 September 2006

without any court order. The police were called but were unable to

resolve the situation. Since then Gezani and the witness have been

barred from entering the church premises. The matter was taken up with

the Free Methodist World Conference, which is based in Indianapolis USA

and is the legislative assembly incorporating all Free Methodist churches

across the world. The World Conference despatched two regional bishops

to conciliate but the defendants refused to listen to them. The plaintiff

then engaged lawyers who wrote to the defendants on 9 May 2007

[Exhibit 1]. There was subsequent litigation in the Masvingo Magistrates

Court and in the High Court. The present action was filed on 24

September 2009. The witness was consecrated as bishop at Lundi Mission

in January 2000 and is the head of the General Conference of the Free

Methodist Church in Zimbabwe. On 10 October 2009, the World
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Conference affirmed this position and repudiated the defendants’ claims

[Exhibit 2]. On 5 September 2009, the Board of Administration of the

General Conference granted him authority to institute this action [Exhibit

3]. There was an earlier resolution to that effect on 7 July 2009 [Exhibit 4],

but that meeting did not have the requisite quorum. All three constituent

conferences of the plaintiff church (Lundi, Ralph Jacobs and Chiredzi)

were represented at the subsequent meeting in September 2009 by their

elected representatives. The meeting was duly constituted by 11 out of 13

members, in conformity with the two-thirds quorum prescribed by the

Book of Discipline. The Board of Administration is composed of 4

members from each constituent conference, consisting of 2 lay and 2

ministerial delegates The quorum need not comprise an equality of lay

and ministerial delegates, and voting only requires such parity if one-

quarter of the delegates so require. The 5 th defendant (the circuit church)

is not a recognised legal entity and does not own the church premises in

Masvingo. The land in question was purchased in 1998 or 1999, and the

receipts for the land and buildings are in the name of the plaintiff and not

the 5th defendant. According to the Book of Discipline (para. A856), all

church property belongs to the plaintiff and vests in the Board of

Trustees of the General Conference.

      Under cross-examination, the witness explained that he was first

appointed as bishop in January 2000 for a four year term under the

Provisional Constitution of the church. In August 2004 he was appointed

for a second four year term under the Book of Discipline, which was

adopted by the General Conference earlier that year. Thereafter, in

August 2008, he was elected for a further third term by the General

Conference. There is nothing in the Book of Discipline to restrict the

number of terms of appointment. In August 2006, the General
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Conference dissolved the Ralph Jacobs Conference and suspended

several of its members. The World Conference questioned this decision

on 21 March 2007 [Exhibit 5] and called for a full quorum. The Board of

Administration was then reconstituted in 2008 or 2009 and took a further

decision to suspend the members in question. This was approved by the

World Conference on 10 October 2009 [Exhibit 2]. The Minutes of the Jury

hearing on 10 March 2006 [Exhibit 6] show that the 1 st defendant was

found not guilty of the charges laid against him. However, the Minutes

are not a proper record as they were not signed by the Chairperson, who

died before they were presented. The decision to replace the suspended

members was passed on to the Lundi Conference held in September

2006, where Rev. Gezani was appointed as pastor of the church in

Masvingo. In that respect, the letter of complaint from the 5 th defendant

dated 12 September 2006 [Exhibit 7] is meaningless as it was addressed

to the 5th defendant itself. As regards the resolution of the Lundi

Conference held on 11 July 2009, passing a vote of no confidence in the

witness [Exhibit 8], this meeting was not properly constituted or chaired

and had no power to pass any such vote. Only the World Conference and

the International Council of Bishops could hold a bishop accountable for

misbehaviour. At the end of his testimony, as requested by the Court, the

witness produced two organograms [Exhibits 9 & 10] showing the

structural organisation of the Free Methodist Church in Zimbabwe.

      Rev. Shinasi Gezani became a pastor and member of the Ralph

Jacobs Conference in 1991. His evidence was that in 2006 he was

appointed as pastor to Masvingo by the MEG Board chaired by Bishop

Chauke. Two of the 5th defendant’s leaders were represented at that MEG

Board meeting. On 8 September 2006, he was welcomed at the church

premises and given the keys to the pastor’s house. He moved in and
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conducted his pastoral duties for two weeks without any protest from the

defendants. Thereafter, on 22 September 2006, four young men came

saying that they had been sent by the 1st and 2nd defendants to remove

his property. They took his belongings and threw them outside the

church premises. He and his family were then forcibly evicted. Bishop

Chauke was also barred from using the bishop’s office and the Bible

school at the same premises. Thereafter, the witness stayed at a farm

nearby and eventually at Lundi Mission, which is 112 km away from the

Masvingo church, where he has continued with his pastoral duties with

about 25 out of 55 of the 5th defendant’s members.

      Hasani Dumela is a member of the Lundi Conference and has been

the Secretary of the Board of Administration of the General Conference

since 2004. His evidence was that the 1 st defendant, together with his

wife and Rev. Ndlovu, were suspended as pastors. They then appealed to

the World Conference, which responded on 10 October 2009 supporting

the suspension and expulsion of all three pastors [Exhibit 11]. On 22

September 2006, the witness went to the Masvingo church and saw Rev.

Gezani’s property on the roadside. He spoke to one Godi who said that he

had been sent by the 1st and 2nd defendants to evict Gezani and his family.

He then called Bishop Chauke to assist Gezani and his family and they

were relocated. He later tried to access the Masvingo church premises

but was denied entry by the 2nd defendant. Consequently, the bishop’s

office and the Bible school have not functioned properly. He produced a

letter from the Head Steward of the 5th defendant dated 9 May 2009

[Exhibit 12] barring entry to Bishop Chauke and his followers, according

to a court ruling. He was unable to find any such ruling at the Masvingo

Magistrates Court. He has never seen Exhibit 8 and no meeting was held

by the Lundi Conference on 11 July 2009. As Secretary, he would have
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been informed and aware of any annual conference that is convened.

Under cross-examination, he was shown the minutes of that Lundi

Conference [Exhibit 13] showing a large attendance of members. The

minutes are signed by one W. Chuma as the Secretary, but Chuma is not

the Secretary of the Lundi Conference. The minutes reflect the

proceedings of a district conference, as distinct from those of an annual

conference, which would only be attended by 20 delegates.


Evidence for the Defendants

      Rev. Kabelo Dube, the 1 st defendant, is a pastor of the 5 th

defendant, which is a member of the plaintiff church. He became a pastor

when he was posted to Masvingo in 1996. He testified as follows. He was

suspended in December 2005 on charges of insubordination. He

appealed to the World Conference and the matter was reconsidered. A

Jury was then appointed to sit on 10 March 2006 and found him not guilty

[Exhibit 6]. The Chairperson of the Jury died before he could sign its

minutes and there was no follow-up communication between the Jury

and the Board of Administration. Following his suspension, he vacated

the pastor’s house at the Masvingo church on 31 August 2006. He gave

the house and church keys and one gate key to the stewards, and the

Bible school keys with one gate key to Bishop Chauke. On 8 September

2006, Bishop Chauke called him late at night regarding access to the

Masvingo church premises. He went to the premises and used the

bishop’s keys to gain entry. He then helped to move Gezani’s belongings

into the dormitory and returned home at midnight. Thereafter, he has

never had any dealings with access to or control of the premises. He did

not instruct Godi, a youth church member, to impede Gezani’s

occupation of the premises. When he resumed his pastoral duties in
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Masvingo in April 2007, he did not take control of any keys and continued

to reside outside the church premises. The trustees of the 5 th defendant

and its stewards are the persons in control of the church premises.

According to the Provisional Constitution of the Free Methodist Church

(Article VI.C.5), the bishop’s term of office is four years and limited to not

more than two consecutive terms [Exhibit 14]. The Book of Discipline

must be read together with the Provisional Constitution, because certain

provisions in the latter, particularly as regards the bishop’s term of office,

are not included in the former. Bishop Chauke should therefore have

stepped down after his second term in 2008. As regards the resolution

authorising this action [Exhibit 3], the 1st defendant eventually conceded

that the lack of a lay-cum-clergy parity did not matter as long as the

quorum element was satisfied. At the relevant time, the full complement

of the Board of Administration was 13 with a two-thirds quorum of 9. At

the meeting in question, 11 members were present and voted for the

resolution. The minutes of an extraordinary meeting of the Ralph Jacobs

Conference held on 9 September 2006 [Exhibit 15] were produced

through the 1st defendant. Although he did not attend this meeting, he

agreed with the grievances set out in the minutes, which grievances have

yet to be resolved.

      Under cross-examination, the 1st defendant acknowledged that the

Ralph Jacobs Conference should ordinarily have 10 delegates and be

chaired by the Bishop. However, the extraordinary meeting in September

2006 was not chaired by the bishop and there were no delegates from

Gweru or Zvinavashe. The 1st defendant complained about Bishop

Chauke to the International Council of Bishops in 2009 and the matter is

still being considered. He accepted that until the Council takes steps to

remove him, Chauke is still the bishop of the church in Zimbabwe. He
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further accepted that this was specifically affirmed by the World

Conference [Exhibit 2] and that the World Conference also confirmed and

supported his expulsion [Exhibit 11]. As regards Rev. Gezani’s removal

from the church premises, he conceded that he would have been in

lawful and peaceful occupation until his eviction on 22 September 2006.

He was not aware of any court order authorising that eviction. As for the

church premises in Masvingo, he admitted that although the local church

is the immediate owner, the national church remains the ultimate owner

of the premises.

      Rev. Khanya Nare, the 2nd defendant, is a member of the plaintiff

and the 5th defendant. His evidence was that the Masvingo church

premises are owned by the 5 th defendant, as it was allocated that stand

and paid for it. In his view, Bishop Chauke’s third term of office is

unconstitutional and undermines the leadership of the church. He did not

accept Rev. Gezani’s pastoral appointment in 2006 because he was

appointed by the Lundi Conference and not the Ralph Jacobs Conference.

After his arrival in Masvingo, Gezani stayed in the dormitory for the first

week and occupied the pastor’s house during the second week. The 2 nd

defendant was not involved in Gezani’s eviction and has never had any

direct or indirect control over the church premises. He participated in

drafting Exhibit 7 which was authored at the extraordinary meeting held

in Bulawayo on 9 September 2006. Under cross-examination, he

conceded that although the church premises were purchased by the local

church, they belong to the national church as its headquarters and main

place of business. As regards Gezani’s eviction from the premises, the

extraordinary meeting had resolved that he should leave but not how he

should be removed. He accepted that the World Conference had
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recognised Bishop Chauke as the bishop, but he did not agree with that

position.

      Nehemiah Samuel Zanamwe is a trustee and senior steward of the

5th defendant. At a meeting of the 5th defendant held on 28 February 2010

[Exhibit 16], another steward was authorised to act for the 5 th defendant

in this matter. This was because the witness was away at that time. He

has since been authorised to appear at the trial. However, there was no

further resolution of the 5th defendant to that effect. He was not present

at the extraordinary meeting held on 9 September 2006, but he

supported its views because Bishop Chauke had arbitrarily suspended 3

pastors without consulting the local churches. Of the 10 delegates of the

Ralph Jacobs Conference only 3 had been suspended. Therefore, the

bishop could still have convened that conference in 2006. He did query

this with Bishop Chauke by letter on 5 June 2006 [Exhibit 17], but there

was no reply from him. The witness took the view that the Masvingo

church premises are owned by the 5 th defendant. This is because the land

was purchased at the local level [Exhibit 18] and the premises were

constructed with foreign donations to the 5 th defendant. The local

congregation did not accept Rev. Gezani’s pastoral appointment because

he had been appointed at the Lundi Conference and not at the Ralph

Jacobs Conference. The congregation had decided not to let him into the

church premises. He gained entry with the 1 st defendant’s assistance but

without the blessing of the congregation. He changed the locks to the

pastor’s house in order to occupy it. The witness did not personally see

this but received a full report from Godi (Godwin Masiyambiri). He

reacted by giving Exhibit 7 to Godi who was to present it to Gezani and

ask him to leave. Gezani then left the pastor’s house and the church

premises voluntarily. Under cross-examination, the witness stated that he
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had instructed the church secretary to write the letter of 9 May 2009

denying access to Bishop Chauke and his followers [Exhibit 12]. The court

ruling referred to in that letter was the ruling of the Masvingo

Magistrates Court declining jurisdiction in the plaintiff’s application for

repossession of the premises. The witness was not present when Gezani

voluntarily left the premises but Godi told him what took place. However,

he could not explain the discrepancy in paragraph 7(d) of the 5 th

defendant’s Plea to the effect that Gezani refused to leave the premises.

He was also unable to explain the contents of Godi’s affidavit [Exhibit 19]

in Case No. HC 3374/10 (the 5th defendant’s application for joinder

herein). Paragraphs 3 and 4 of that affidavit indicate that Godi moved

Gezani’s property out of the premises and that Godi was assisted by his

friends in removing Gezani. The witness conceded that when Gezani was

removed from the premises there was no court order authorising his

removal.


Bishop’s Authority to Represent Plaintiff

      The first issue that arises for determination is the legitimacy of

Bishop Chauke’s standing as bishop of the plaintiff church. At the

constitutional level, as appears from its prefatory pages, the Book of

Discipline was presented to the General Conference of North America by

the Provisional General Conference of Zimbabwe on 24 June 2003. It was

then adapted and adopted for the Zimbabwe General Conference at

some stage in 2004. It seems reasonably clear that its detailed provisions

were intended to replace and supersede the Provisional Constitution

[Exhibit 14] as the only Constitution of the Free Methodist Church in

Zimbabwe. That being so, it must stand alone and cannot be construed in

conjunction with the Provisional Constitution. Unlike Article VI.C.5 of the
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latter, which limits the bishop’s tenure of office to two consecutive terms,

the Book of Discipline is conspicuously silent on the point in its relevant

provisions. Whether this was a deliberate omission on the part of Bishop

Chauke and his Board of Editors is a moot point. Be that as it may, it

seems to me that his third term of office as bishop is constitutionally

unimpeachable in the absence of any restriction in the Book of Discipline.

It is also common cause that Bishop Chauke’s status was explicitly

affirmed by the President of the Free Methodist World Conference in

October 2009 [Exhibit 2].

      The next issue relates to the votes of no confidence in Bishop

Chauke passed by the Ralph Jacobs and Lundi Conferences in September

2006 [Exhibit 15] and July 2009 [Exhibit 13] respectively. As appears from

the minutes of the 2006 meeting, and as was conceded by the 1 st

defendant, this meeting was not chaired by the bishop, as is stipulated by

para. A591(11) of the Book of Discipline, and there were no delegates

from Gweru or Zvinavashe. It was therefore not properly constituted. The

minutes of the 2009 meeting, as was explained by the Secretary to the

Board of Administration, reflect the proceedings of a larger district

conference, as distinct from those of an annual conference which should

have been chaired by the bishop. Consequently, it must be accepted that

neither meeting had the power to pass the purported votes of no

confidence in the bishop.

      As   regards   authority   to   represent   the   plaintiff    in   these

proceedings, the relevant resolution of the Board of Administration in

September 2009 [Exhibit 3] clearly authorised Bishop Chauke to that

effect. In this respect, the objection put forward by the defendants as to

the lack of equality between lay and clerical members is not sustained by

the Book of Discipline. Para. A282 provides that each constituent
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conference is entitled to the same number of lay as ministerial delegates

in the General Conference. However, this does not impact on the

requisite quorum to enable any conference to conduct its business. The

meeting in question was duly constituted by 11 out of its full complement

of 13 members, in conformity with the two-thirds quorum prescribed by

para. A288. As was eventually conceded by the 1 st defendant, this quorum

need not comprise an equality of lay and ministerial delegates. Moreover,

in terms of para. A289, voting only requires such parity if one-quarter of

the members present so require. In the premises, it follows that Bishop

Chauke was duly authorised to represent the plaintiff in this matter.


5th Defendant’s locus standi

       Part B of Chapter IV of the Book of Discipline deals with local

church administration. It provides for the conduct of meetings and the

establishment of various boards with specific functions. However, it is not

clear from these provisions whether a local church is endowed with legal

personality and capacity separate and distinct from the national church.

The matter was not adequately canvassed in evidence at the trial or in

the closing submissions filed of record. Indeed, Mr. Daitai has expressly

abandoned the plaintiff’s insistence that the 5 th defendant has no locus

standi in judicio.

       As for Zanamwe’s authority to represent the 5 th defendant at the

trial, it is clear from the resolution of February 2010 [Exhibit 16] that it

was not him but another steward that was authorised to act for the 5 th

defendant. However, this issue is not critical to the principal issues for

determination and Mr. Daitai has quite correctly conceded that it is not

decisive in this matter.
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Whether Plaintiff in Peaceful Occupation of Church Premises

      It is common cause that until September 2006 the plaintiff,

through Bishop Chauke and the Secretary to the Board of Administration,

had full access to the church premises in Masvingo. The plaintiff was

using the premises as its headquarters and for the operation of the

bishop’s office and the Bible school. Moreover, as from 8 September to 22

September 2006, Rev. Gezani, who had been appointed by the plaintiff as

pastor to Masvingo, had access to the premises and the plaintiff’s house.

The precise circumstances of his arrival are not entirely clear, but the fact

of his entry and access are not disputed. Subsequently, he conducted two

Sunday services as the pastor and the defendants attended these

services without any complaint or protest. It is therefore abundantly clear

that Gezani and the plaintiff, through Bishop Chauke and the Board

Secretary, were in peaceful and undisturbed occupation of the premises

until 22 September 2006.


Whether Plaintiff Lawfully Evicted from Church Premises

      All the witnesses in this matter have confirmed that there was no

court order authorising the eviction of Rev. Gezani from the church

premises. By the same token, contrary to the import of Zanamwe’s letter

in May 2009 [Exhibit 12], there was no court order or ruling allowing the

defendants to bar the plaintiff and its functionaries from entering and

utilising the premises. As for Zanamwe’s evidence that Gezani voluntarily

moved out, this is flatly contradicted by paragraph 7(d) of the 5 th

defendant’s Plea to the effect that Gezani refused to leave the premises.

It is also discredited by paragraphs 3 and 4 of Godwin Masiyambiri’s

affidavit [Exhibit 19] in Case No. HC 3374/10 which clearly indicate that he

and his friends forcibly moved Gezani and his property out of the
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premises. It follows that Gezani and the plaintiff were unlawfully evicted

from and thereafter unlawfully dispossessed of the church premises.


Spoliation

      Mr. Mushonga contends that the plaintiff’s claim for restoration of

the church premises must be rejected for four reasons. Firstly, the stand

in question was purchased and developed by the 5 th defendant, which

therefore has stronger beneficial and possessory rights over the

premises. Secondly, the pastoral appointment of Rev. Gezani was

effected improperly because it was not sanctioned by the Ralph Jacobs

Conference. Thirdly, the plaintiff’s claim against spoliation was instituted

long after the events of September 2006 and must therefore be

dismissed because of the excessive delay. In this regard, reliance is

placed upon the case of Jivan v National Housing Commission 1977 (3) SA

890 (W). Fourthly, Gezani’s removal from the premises was an act of

instant repossession and justified by way of counter-spoliation in favour

of the 5th defendant. In support of this contention, Mr. Mushonga cites

Mans v Loxton Municipality & Another 1948 (1) SA 966 (C) and De Beer v Firs

Investments Ltd 1980 (3) SA 1087 (W).

      The doctrine of spoliation is encapsulated in the maxim spoliatus

ante omnia restituendus est, to wit, he who is despoiled must be restituted

before all else. It is a fundamental and well established principle of our

law that no one is permitted to forcibly or wrongfully dispossess another

of his movable or immovable property without his consent. Whenever

this occurs, the courts will summarily restore the status quo ante. See Nino

Bonino v de Lange 1906 TS 120 at 122. The claimant need only prove that

he was in peaceful and undisturbed possession of the property and that

he has been unlawfully deprived of such possession. See Chisveto v
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Minister of Local Government and Town Planning 1984 (1) ZLR 248 (H) at

250; Van t’Hoff v Van t’Hoff & Others (1) 1988 (1) ZLR 294 (X) at 296.

       In the instant case, as I have already stated, it has been clearly

demonstrated that Gezani and the plaintiff were in peaceful and

undisturbed occupation of the church premises until 22 September 2006.

It has also been incontrovertibly established that Gezani and the plaintiff

were unlawfully evicted and dispossessed of the premises. In this

respect, the defendants’ assertion that Bisop Chauke has continued in

office unconstitutionally is totally immaterial. Equally irrelevant is their

contention that Gezani was unprocedurally appointed as pastor to the

Masvingo church. It is trite that the lawfulness or otherwise of the

claimant’s possession of the property in question does not arise for

consideration at all. See Chisveto’s case, supra, at 250.

       As regards ownership of the church premises, the receipts for the

purchase of the land [Exhibit 18] are in the name of the plaintiff and not

the 5th defendant. Moreover, according to paras. A856-858 of the Book of

Discipline, all church property, including that acquired by any local

church, belongs to the plaintiff and vests in the Board of Trustees of the

General Conference. Thus, as was eventually accepted by the 1 st and 2nd

defendants, even though the premises might have been purchased by

the 5th defendant, they ultimately belong to the national church as its

headquarters and main place of business. In any event, the question of

ownership is not a relevant consideration in the context of spoliation. It is

settled law that in spoliation proceedings the fact that the spoliator owns

or has beneficial rights in the property despoiled is wholly irrelevant. See

Van t’Hoff’s case, supra, at 296.

       Turning to the delay in instituting these proceedings, the one year

limitation period supposedly applicable to the remedy of mandament van
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spolie was firmly rejected in Jivan’s case, supra, at 892-893. Steyn J went

on, at 893, to postulate that the court has a discretion to decline the

remedy where, on account of the delay in seeking it, no relief of any

practical value can be granted at the time of the hearing. This approach

was approved in Chisveto’s case, supra, at 253. The additional aspect to be

considered is whether the claimant’s failure to apply for relief

immediately constitutes such acquiescence in what has been done by the

spoliator as to deprive the claimant of the right to seek restoration of the

status quo ante. See De Villiers v Holloway (1902) 12 CTR 566 at 569. Having

regard to these case authorities, with which I respectfully concur, it is

clear that delay per se does not preclude the mandament. Rather, the

remedy may be refused where the delay in instituting proceedings shows

acquiescence on the part of the claimant and/or the facts are such that

no relief of practical value can be granted by the court at the time of the

hearing of the matter.

      Before addressing the facts in this case, I would note that the

defendants did not specifically raise the questions of excessive delay,

acquiescence or impracticality in their pleadings. Be that as it may, the

evidence herein shows that, after 22 September 2006, the plaintiff initially

attempted to involve the police. Thereafter, it resorted to internal dispute

resolution mechanisms, both within the country and at the World

Conference level. Eventually, the plaintiff instituted legal proceedings in

the Magistrates Court, as well as earlier an application in this Court that

was later withdrawn, before issuing summons in the present case. On

these facts, the delay in instituting this claim cannot be said to be

inordinate or unreasonable. Moreover, the plaintiff’s conduct after having

been dispossessed of the church premises is patently inconsistent with

any acquiescence on its part. As regards the practicality of the relief
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sought, there is nothing before me to show that the restoration of the

church premises into the plaintiff’s control is of no practical value. On the

contrary, the 5th defendant, which is effectively in control of the premises,

is still a member of the plaintiff church. And the latter quite obviously

requires access to the premises as its headquarters in order to carry out

its work for the purposes of the General Conference.

      The concept of counter-spoliation was articulated in Mans’ case,

supra, at 977-978, on the basis that the act of recovery must be instanter.

In other words, it must form part of the res gestae of the act of spoliation

so as to be a mere continuation of the existing breach of the peace. Such

instant recovery may be condoned. However, where the act of

dispossession has been completed, any attempt at recovery is no longer

forthwith or instant but amounts to a new act of spoliation which the law

condemns.

      In my view, the defence of counter-spoliation does not avail the

defendants in casu for the following reasons. First and foremost, it cannot

be said that the defendants were despoiled of the church premises in any

way. On the contrary, the plaintiff was in control of the premises to begin

with. After his suspension, pursuant to Bishop Chauke’s directive, the 1 st

defendant vacated the pastor’s house on 31 August 2006 and

surrendered all the keys in his possession to the bishop and the

stewards. On 8 September 2006, Rev. Gezani moved into the premises

and assumed his pastoral duties, until he was forcibly evicted on 22

September 2006. Secondly, even if it were to be accepted that Gezani

dispossessed the defendants, the supposed act of recovery by the

defendants took place two weeks later. It certainly cannot be regarded as

having occurred instantly as a continuation of Gezani’s breach of the

peace. It was clearly a new act of spoliation without any court order or
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other legal basis. Accordingly, restoration of the church premises to the

plaintiff’s control does not involve any infringement of the defendants’

rights. Nor does it entail the eviction of the 5 th defendant as it will

continue to occupy and utilise the premises under the auspices of the

General Conference.


Interdict against Interference with Plaintiff’s Activities

      The     unchallenged     evidence     of   the    plaintiff’s   witnesses

demonstrates that since September 2006 the plaintiff and all of its

functionaries have been denied entry and access to the church premises

in order to carry out their respective duties. That this situation has

continued is confirmed by Zanamwe’s letter in May 2009 [Exhibit 12]

barring the plaintiff from entering and utilising the premises.

      The grant of a final interdict is premised on the establishment of

three well-settled requirements: a clear right vested in the applicant; an

injury actually committed or reasonably apprehended; and the absence

of any other remedy. See Setlogelo v Setlogelo 1914 AD 221 at 227;

Universal Merchant Bank Zimbabwe Ltd v The Zimbabwe Independent &

Another 2000 (1) ZLR 234 (H) at 239.

      In the instant case, there is no doubt that the plaintiff is the

ultimate owner of the church premises and that it uses them as its

headquarters on the basis of a clear right to do so. It is obviously entitled

to freely access the premises and use them for its daily activities. It is also

not in doubt that the defendants have barred the plaintiff’s access to the

premises and inflicted injury by interfering with the plaintiff’s lawful

activities at the premises. Lastly, I cannot perceive any other viable

remedy that might be available to the plaintiff in the circumstances of
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this case. It is accordingly entitled to the interdict that it seeks against the

defendants.


Disposition

      The plaintiff seeks an order for costs on a higher scale because the

defendants have taken the law into their own hands and because of their

persistence in defending this matter. While this argument is not without

merit, the 1st and 2nd defendants’ stance was that they did not direct Rev.

Gezani’s removal or participate in his eviction. Their evidence in this

regard was not meaningfully challenged or dislodged by the plaintiff’s

witnesses. Again, there was no evidence to show the 3 rd and 4th

defendants’ involvement in the dispossession of the plaintiff.

      The only clear culprit in the process is Zanamwe who, by his own

admissions, directed Masiyambiri and others to eject Gezani and

thereafter took action to prevent the plaintiff from entering and utilising

the church premises. However, neither Zanamwe nor Masiyambiri have

been cited as defendants in this action. If they had been so cited, they

would clearly have deserved censure with a punitive award of costs.

      Zanamwe claimed to represent the 5th defendant at the trial as its

trustee and senior steward. However, he was unable to adduce any

written authority to do so. Therefore, his actions and those of

Masiyambiri cannot be directly attributed to the 5 th defendant. In the

event, I do not believe that there is any justification for penalising the

entire congregation comprising the 5 th defendant for the unlawful

conduct of two of its members.

      In the final analysis, I take the view that this is the kind of case

where an order for costs, whether on an ordinary or higher scale, would

be purely counter-productive and is therefore unwarranted. The plaintiff
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                                                                   HC 4468/09
has clear proprietary rights which have been violated. On the other hand,

the defendants have genuine grievances pertaining to Bishop Chauke’s

tenure of office and style of leadership. It seems to me that all the parties

involved should now endeavour to reconcile and settle their differences

so as to further their mutual spiritual alliance. That, after all, is the only

legitimate purpose of their adherence to the Free Methodist Church of

Zimbabwe.


      In the result, it is ordered as follows:

   1. The defendants and all those who claim occupation through them

      be and are hereby ordered to restore to the plaintiff possession

      and control of the church premises at Stand No. 12489 Runyararo,

      Masvingo, within ten (10) days of this order, failing which the

      Deputy Sheriff be and is hereby authorised to give effect to this

      order.

   2. The defendants be and hereby ordered not to disrupt or interfere

      with the plaintiff’s lawful activities at the aforesaid church

      premises.

   3. Each party shall bear its own costs.




Magwaliba & Kwirira, plaintiff’s legal practitioners
Mushonga & Associates, defendants’ legal practitioners