Judah Ngwenya & 4 Ors v Joel B. Tawodzera

### Preamble
1
HB 307/20
HC186/19
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JUDAH NGWENYA

And

STEPHEN SIBANDA

And

PERCY DHLAMINI

And

FRANCIS NDEKE MWENE

And

EDSON NYARAMBI

Versus

JOEL B. TAWODZERA

IN THE HIGH COURT OF ZIMBABWE

MABHIKWA J

BULAWAYO 2 MARCH 2020 AND 12 JANUARY 2021

Opposed Application

Z. C Ncube, for the applicants

T Tavengwa, for the respondent

MABHIKWA J:	The applicants obtained interim relief and on the confirmation date they sought the following final order, that;

“1.	The purported appointments of the listed people as Holy Messengers and Evangelists be and is hereby declared unlawful and therefore null and void and be and is hereby set aside:-

1.1	Holy Messengers

a)	Sethulo Chauke

b)	Getrude Chitonho

c)	Sizo Dube

d)	Sithandiwe Ndlovu

e)	Vavariro Jane Maphosa

1.2	Evangelists

a)	Calvin Chauke

b)	Tonderai Chitonho

c)	Mthulisi Dube

d)	Regis Ndlovu

e)	Martin Maphosa

f)	Tsistsi Moyo

g)	Miriam Dube

2.	The purported suspension of Smart Moyo and Simon Moyo be and is hereby declared unlawful and therefore set aside.

3.	The respondent be and is hereby permanently barred from purporting to appoint and or suspend any member without following the standing orders and consulting the Evangelists.

4.	The respondent pays costs of suit on an attorney and client scale.”

Relief was granted in the absence of respondent’s response.  He has now opposed the confirmation of the Provisional Order.

This judgment will deliberately not dwell on the issue of the drawing up of the church programme for the church special meeting of the 1st to the 3rd of February 2019 known as “Isithembiso Siyajabulisa” Chivimbiso Chinofadza” “Tsolofetso ea itumedisa.” By its very nature and perhaps by operation of the interim relief that issue had long been overtaken by events at the time of the hearing of these confirmation proceedings.

In short, in his opposing papers, the respondent declared that he is the Senior Evangelist of Guta Ramwari Religion appointed by the “Holy Host of God/Founder of Guta Ramwari Religion.”  He declared also that as the Senior Evangelist, he is the spokesperson of the church.  He is also the chairperson of the Counsel of the church.

The respondent therefore claims that all that is complained of was in fact done by the church.  Even what he himself is alleged to have done personally, was in fact done in the name of the church.  He therefore avers that the applicants’ application should fall on the basis that the church was not sued and is therefore not a party to these proceedings.  Further the applicants themselves have not shown that they were authorized by the church to bring this action, neither do they purport to represent the church.

I must say from the onset that neither the church nor the fourteen (14) individual church members sought to be affected by paragraphs 1 and 2 of the order have been cited and served with this application.  In my view the application seeks to affect and bind individuals who may not even be aware such an application has been made and an order sought against them.  This would be against the dictates of the principles of our law and those of natural justice generally.  There is enough precedent to that effect including the case of Mugugu v Police Service Commission & Anor – 2010 (2) ZLR 185 (H)

I am cognisant of the fact that the respondent in his opposition does not raise that point in respect of paragraph 1 of the order sought covering the listed five (5) Holy Messengers and the seven (7) Evangelists.  Clearly, that was not his obligation to raise or argue legally.  However, he still raised the point in respect of paragraph 2 in respect of Smart and Simon Moyo whom the order seeks to have their purported suspension be declared unlawful and set aside.  He raised the objection generally in his heads of argument that the prayer sought should be dismissed on the basis that the final order sought affects persons who are not parties to these proceedings, and that the due process of the law dictates that all persons affected by an order must given a reasonable opportunity to face the allegations against them and be given due notice to respond and defend themselves against such allegations.  The respondent goes on to argue for instance that the two (2) Moyos (Smart and Simon) have not themselves approached the court to seek relief.  They have not made any application or solemn declarations to have their suspensions lifted by the court, neither have they shown, in one way or another, that they are aggrieved.  They also have not given any of the applicants authority to represent them in these proceedings yet the applicants in paragraph 2 seek an order in their favour.  Almost the same argument goes for the twelve (12) individuals in paragraph (1) of the order sought.  The only difference is that in paragraph (1) ,the order sought is against the individuals.  This makes it legally more pertinent that they should have been cited and served with the application.

I remain cognisant of and alive to the provisions of Order 13 rule 87 which is to the effect that no cause or matter shall be defeated by reason of misjoinder or nonjoinder of any party and the court may in any cause determine the issues or questions in dispute so as they affect the rights and interests of the persons who are parties to the cause or matter.  But each case is determined on its own merits.  In casu, the order sought literally lists the said 14 individuals and seeks to affect directly and substantially their interests, appointments and standing in church, yet they have not been cited as parties to the proceedings and therefore cannot defend themselves against the order.

In Sibanda v Sibanda & Anor 2009 (1) ZLR 64 (H) the applicant was suing her husband for divorce.  She alleged that after separation but before divorce action was instituted, the husband (1st respondent) formed a trust.  Her application to join the trust in the action was resisted on the ground that this was a matrimonial action.  The court held that for a party to be joined in action, it is necessary that the party should have a direct and substantial interest in the issues raised in the proceedings before the court, matrimonial matters included.  What the court is to consider is the joinder or nonjoinder of the parties and of course the effect of the order on the persons.  The court allowed the joinder, even in a matrimonial matter.  I must say that an applicant or plaintiff may cite a respondent and seek an order against him/her and then add the phrase “and all those claiming through him.”  I am convinced that the current case is not one such case.  It is not the kind of a case such as an eviction, where the other persons that may be affected would be “tenants” “sub tenants” or “relatives” that are unknown or may not even exist.  In casu, the 14 individuals to be affected by paragraphs 1 and 2 of the order sought are known and have been listed by names.  Further and importantly, the order sought against them in respect of paragraphs (1) and (2) is completely independent of the respondent who has been cited (Joel Tawodzera).  See also Mugano v Fintrac & Ors – 2013 (2) ZLR 452 (H), on direct and substantial interest in the issues involved and in the order which the court may make.

Whilst the respondent has argued that the applicants had not exhausted internal remedies or alternatives available to it such as the Supreme Council, the Administrative Council, the National Council, the Provincial Council, an applicant for a declarator may properly make such an application without exhausting such available alternatives.  In an application for a declaratory order, it is not necessary that an actual dispute should exist nor that there should be no other remedy available.  See Munn Publishing (Pvt) Ltd –Zimbabwe Broadcasting Corporation – 1994 (1) ZLR 337 (S).

The applicants seek a declaratur that the appointment of the listed individuals to the positions of Holly Messengers and Evangelists and the suspension of the two stated church members were done by the respondent.  However, the respondent argues that the appointments and suspensions were done by the church, or at the very least, on behalf of the church.  Infact even if it were to be accepted that the appointments were done by the respondent on a frolic of his own the 12 now enjoy such priviledges and the 2 stand suspended.  The applicants cannot seek an order affecting them in the case of the 12 without joining them.  In the case of the two (2) Moyos, it is them who should bring the action or application to have their suspension declared null and void.  Further the applicants should either have joined the church as respondent or provided proof that they are representing the church.

I notice clearly that the applicants’ application is a long list of grievances of wrongs and irregularities that applicants claim to have been created by the respondent and his “clique.”  The issues are so wide.  They range from improper and inexplicable conduct by respondent and other church members, improper appointments and improper suspensions, lack of knowledge by the applicant and others of the church’s Constitution and doctrines.  For instance the issue of who should read the church standing orders and who should not.  The application even goes on to complain and seek an order even on the drawing up of the Guta Ramwari Special meetings and other general programmes.  It refers to who should be included in the programmes and who should not.  It even refers to some initial and special parts of admissions.  It also seeks to show that, and asks the court to notice that respondent does not know what he is doing because in drawing up the programme, he did not put “the picture of the first Holy Host on the left,” and that this failure by the respondent has “caused furore within the ranks of the church” and that the court should intervene.

The court cannot intervene and be seen to regulate the ecclesiastical matters of the church.  In the joint judgment of the Opposed matters in:

Munenerwa v Reformed Church in Zimbabwe and Chikwakwara & Ors v Reformed Church in Zimbabwe HMA 57-17

MAFUSIRE J in my view discussed, and very well articulated the circumstances under which it is permissible for the court to interfere in church matters.  In the two cases, what was supposed to be an investigative enquiry had suddenly, and without notice to the applicants turned into a disciplinary hearing.  One of the applicants had not been given an opportunity to be heard or to defend himself.  Various procedural rights of the applicants had been flouted.  In addition, the temporal rights of some of the applicants had been affected although the dispute had its genesis in matters of faith.  The respondent argued against the determination of the matter by the secular courts contending inter alia, that this being a dispute ecclesiastical, the secular courts had no jurisdiction over it.  The High Court held that;

“In matters ecclesiastical, only marginal inquiry into church governance is permissible and only where the decision of the ecclesiastical institution is based on, inter alia, fraud, collusion or arbitrariness.”

The court held further that;

“It is not the function of the court to prescribe doctrines or religious tenets to any ecclesiastical organization unless such interference is …. necessary to protect some civil or temporal right or interest.”

As can be seen from the facts of that case, the application succeeded only to the extent that in the purported disciplinary hearing, there was a serious breach of the audi alteram partem rule of natural justice and various procedural rights of the applicants had been flouted.  In addition, the temporal rights of some of the applicants had been affected which does not appear to me to be the case in casu.

Finally, the applicants had raised a point in limine concerning the respondent’s Notice of Opposition.  The concern was on the affidavits which the applicants alleged were mere statements suspiciously signed by a purported Commissioner of Oaths who probably signed the last “signature page” without even seeing or reading the body of the statement or seeing the deponent signing it.  The applicants complain that there is a purported affidavit which is an undated statement marked S.O.O and that the statement is not an affidavit “as contemplated by law and by the rules of this court.”  Applicants do not unfortunately state which law or rules of court have been offended, it is true that the respondent’s Founding Affidavit and the supporting affidavits by Gibson Ngwenya and Nicholas Moyo all have signatures on their own page separate from the signature of the documents especially the signature of the Commissioner of Oaths.  All the documents were allegedly sworn to and signed before a legal practitioner a Mr Sonford Tsumele.  The applicants argue that large spaces have been deliberately created so that the “signature page” stands alone in all purported affidavits.  The suspicion by the applicant is that there is a curious trend whereby the depositions or body of the affidavit is “deliberately separated from the page where the deponent and the Commissioner of Oaths ought to append their signatures.”  The applicants argue that this raises the suspicion that only the last pages of the purported affidavits were taken to the deponents to sign without having read the depositions they were attesting to, bringing into question as well the ethical conduct of the purported Commissioner of Oaths.

Whilst the above suspicions by the applicants may be understandable from the circumstances, they remain suspicions.  There is no legal basis for the court to hold that the affidavits were not properly commissioned and therefore expunge them from the record.  The court has not been shown any law that the body of an affidavit should always be on the same page with the signatures of the deponent and the Commissioner. In the case of Madzimbamuto, the body and the signatures are on the same page.  However, on the portion of the Commissioner of Oaths, there is an endorsement S.O.O. and no stamp.  Again, whilst this may appear unothordox and raising suspicions, it is not enough to simply argue that this is not in terms of the law or rules without showing which rule of court or which law.   To my knowledge, it would be difficult for the court to hold that this is simply a statement.  There is also no law that a Commissioner of Oaths should always stamp every document that he commissions.  It has also not been shown that this is the type of case refered to in the cases in Tobacco Sales Floor (Ltd) v Swift Debt Collectors (Pvt) Ltd – 2011 (1) ZLR 486 and in Rock Chemical Fillers (Pvt) Ltd v Bridge Resources (Pvt) ltd & Ors – 2014 (2) ZLR 30 (H).  I thus dismissed the point in limine.

From the foregoing and in the circumstances, the application for confirmation of the Provisional Order is dismissed with costs.

Ncube and Partners, applicants’ legal practitioners

Mutuso Taruvinga and Mhiribidi, respondent’s legal practitioners