Apostolic Faith Mission IN Zimbabwe V Apostolic Faith Mission OF Zimbabwe & 2 ORS

### Preamble
1
HH 355-21
HC 3016/21
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APOSTOLIC FAITH MISSION IN ZIMBABWE

versus

APOSTOLIC FAITH MISSION OF ZIMBABWE

and

COSSAM CHIANGWA

and

APOSTOLIC FAITH MISSION IN ZIMBABWE

(Registration Number CF 221/01)

HIGH COURT OF ZIMBABWE

MUZOFA J

HARARE, 30 & 1 July 2021

Urgent Chamber Application

F Mahere, for the applicant

T L Mapuranga, for the 1st & 2nd respondents

K Ncube, for the 3rd respondent

MUZOFA J: This is an urgent chamber application in terms of which the applicant seeks the following relief as set out in the provisional order:-

TERMS OF FINAL ORDER

That you show cause to this Honourable Court why a final order should not be made in the following terms:

The respondents be and are hereby interdicted and restrained from using a logo that has a crown, a cross and a shining sun inside a circle because it infringes the Applicant’s registered Trademark Number 1584/2012 registered on 20 November 2021 in class 45 under 15 in respect of church meetings and gatherings.

The respondents be and are hereby interdicted and restrained from using the name APOSTOLIC FAITH MISSION OF ZIMBABWE and making any communications in that name to members of the public because there is reasonable likelihood that the members of the public may be confused or deceived into believing that the 1st Respondent is similar one and /or the same church with the Applicant.

That the Respondent shall pay the costs of suit on a legal practitioner and client scale.

TERMS OF THE INTERIM RELIEF GRANTED

Pending the determination of this matter applicant is granted the following relief:-

That a temporary interdict be and is hereby granted against the Respondents.

The Respondents be and are hereby interdicted and restrained from using a logo that has a crown, a cross and a shining sun inside a circle because it infringes the Applicant’s registered Trademark Number 1584/2012 registered on 20 November 2021 in class 45 under 15 in respect of church meetings and gatherings.

The respondents be and are hereby interdicted and restrained from using the name APOSTOLIC FAITH MISSION OF ZIMBABWE and making any communications in that name to members of the public because there is reasonable likelihood that the members of the public may be confused or deceived into believing that the 1st Respondent is similar one and /or the same church with the Applicant.

That the Respondents shall pay costs of suit on a legal practitioner and client scale.”

When the applicant issued out process it was against the 1st and 2nd respondents. On the date of hearing on … the 3rd respondent applied to be joined in the matter. The application was granted by consent and the matter was postponed for parties to file further pleadings.	The brief background to the case is as follows. The applicant is a church established by its constitution; it is a common law universitas. A dispute arose in the applicant’s leadership   sometime in 2018. At the time of the dispute, one Madziyire was the President, and the 2nd respondent was the deputy President of the church. Two groups emerged one led by Madziyire, and another led by Chiangwa. Two groups emerged one identifying with Madziyire on the one side and the other one led by Chiangwa. Both groups claimed to belong and advance the applicant’s interests. The parties sued each other. Madziyire and four others sued under HC 9149/18 and Chiangwa and four others sued under HC 179/19.Subsequently the two matters were consolidated and judgment was entered in favour of the Madziyire group. An appeal to the Supreme Court was unsuccessful. The Supreme Court confirmed the High Court judgment Madziyire was the legitimate leader of the applicant. Following the Supreme Court judgment, the Chiangwa grouping reconstituted itself and formed a new church called Apostolic Faith Mission of Zimbabwe with a corresponding logo to identify itself. The applicant avers that the name is similar to its name and the logo is identical to its logo. On that basis it seeks to interdict the 1st and 2nd respondents on an urgent from using same. No relief is sought as against the 3rd respondent.

The application was opposed. At the outset, the applicant and the respondents took preliminary points. The applicant raised the point that the deponent to the 3rd respondent is not properly before the court as he lacks authority to represent the 3rd respondent. The respondents took the points that the matter is not urgent, that the relief sought is incompetent, non-probity, lis pendens and lack of locus standi.

Urgency

For a matter to qualify as urgent, the court must consider certain factors for it to come to an informed decision. These factors are now settled. The court considers whether the circumstances are such that the matter cannot wait and the court must immediately intervene to avert irreparable harm. In other words, delayed intervention may render future intervention meaningless, the court may as well not act since the harm would have materialized. There must be evidence that the party will suffer irreparable harm if the court does not immediately intervene and there is no other remedy. The applicant must treat the matter as urgent by demonstrating that he acted as soon as the harm materialized, or the threat of harm was imminent. Where there has been a delay in acting there must be a satisfactory explanation for the delay. The applicant must show that the balance of convenience is in their favour. These factors were succinctly expressed by the learned Judge in Dexprint Investments (Pvt) Ltd v Ace Property and Investments (Pvt) Ltd  that:

“For a court to deal with a matter on urgent basis, it must be satisfied of a number of important aspects. The court has laid down guidelines to be followed. If by its nature the circumstances are such that the matter cannot wait in the sense that if not dealt with immediately irreparable prejudice will result, the court can be inclined to deal with that matter on urgent basis…it must be clear that the applicant did on his own part treat the matter as urgent.’

The court will look to the certificate of urgency first which is the condition precedent to an urgent application. The certifying legal practitioner must express his opinion why he believes the circumstances of the case are such that they cannot wait and the matter must jump the queue and be heard ahead of other matters. The certifying legal practitioner must therefore properly apply his mind to the facts before expressing the opinion. This is because approaching the court on an urgent basis is to ask for an indulgence to be heard ahead of others that have filed their cases and are waiting for their turn to be heard. In Chidawu and Others v Shah and Others GOWORA JA (as she was then) went into detail on the need for the legal practitioner who certifies the matter as urgent to properly apply themselves to the facts and set out an opinion and noted,

‘In terms of the rules where a chamber application is accompanied by a certificate by a legal practitioner certifying that in his or her opinion the matter shall be referred to a judge for consideration. In other words, the certificate of urgency is the sine qua for a judge to consider a matter. The certificate of urgent must clearly set out the basis of urgency without necessarily regurgitating the founding affidavit, It is an opinion by an officer of the court expressed to assist the court to make an informed decision on urgency’. (my emphasis)

Although the court zeroed in on apparent issues showing inadvertences by the legal practitioner in that matter, I believe the sentiments are apposite in many instances where matters are certified as urgent when the facts do not confirm as such. It seems certifying a matter as urgent has become a routine process   rather than well considered and thought through process.

In this case, the certificate of urgency sets out the basis of urgency that the applicant has been in existence for over hundred years using the said name and is the proprietor of a registered trademark registered under No 1584/2012.On 28 May 2021 the Supreme Court handed down judgment whose effect was that the 2nd respondent was not the legitimate leader of the applicant. In response to the judgment the 2nd respondent formed a church in the name of the 1st respondent with a logo similar to the applicant’s logo. The applicant discovered the existence of the 1st respondent on the 6th of June 20121 and immediately instructed its legal practitioners to advise the 1st and 2nd respondents to stop using the name and the logo. It gave the respondents 48 hours to comply with the letter. When there was no compliance, the applicant filed this application on the 11th of June 2021 for relief as already set out.

One paragraph addresses the other requirements of urgency and I set out it in full to demonstrate my point,

‘In addition to the above, the relief sought by the applicant requires the urgent attention of this honorable court. The longer it takes for the Respondents to be interdicted from their actions, the more the harm that the Applicant will suffer. The harm is also irreparable. The present application is the only relief to arrest the damage to the Applicant’s name and reputation, including protecting its registered trademark.’

The paragraph does not state the nature of damage suffered or anticipated in the applicant’s name. It is not stated how the applicant’s reputation will be irreparably damaged by the use of the name and the trademark by the 1st applicant. There is a dearth of crucial information. What is referred to is that the harm is irreparable. It was not shown how the harm is irreparable. Terms were just included in the certificate of urgency without necessarily relating them to the facts of the matter. In the absence clear averments alluding to the e irreparable harm in the certificate of urgency it is difficult for a court to conclude that the matter is urgent. On the papers there is no demonstration that the matter must jump the queue to avert some irreparable harm, real or imminent.

I agree with counsel for the respondents, no grounds of urgency have been placed before the court except the factual background of the case. Even if consideration is made of the founding affidavit, urgency is not established. The irreparable harm is said to be that the congregants and the members of the public might be misled by the name and the logo that closely resemble the applicant’s name and logo. It is said the church is known as AFM and the members would be misled. I appreciate the point that the two names would invariably lead to two churches known as AFM and that may cause some confusion. However, this on its own cannot result in urgency. The dispute between the applicant and the 2nd respondent dates back as far back as 2018.It is common cause that the applicant slowly and surely split through marked milestones which were confirmed by the formation of the 1st applicant. Thus, during the melee when the 2nd respondent was elected President of the other grouping invariably members of the church made conscious decisions as to which AFM grouping to follow. As noted in the judgment by MANGOTA J there were two groups one fronted by Madziyire and one fronted by Chiangwa. The members therefore had to identify where they belong by the name of the leader and not the name of the church or its logo. So, members followed their preferred leaders and not necessarily the name of the church or the logo. I find no confusion arising that catapults this matter to be heard on an urgent basis.

There was an indication that since the 1st and 2nd respondents’ activities are predominantly church activities like the applicant’s there may be harm to the applicant’s reputation. The basis of the apprehension of harm to the applicant’s reputation was not set out in the papers or even in the oral submissions made in court. The nearest suggestion was that the members of the church give money which the applicant depend on. I could not fully appreciate the point. Everyone has a right to choose where they worship. This is the freedom of conscience provided in the Constitution. Inherent in that right is the freedom to decide whether to give money or not. I am not persuaded that by merely being part of a congregation it is assumed that the members will invariably give money to the church. This is a matter of conviction and discipline. Therefore, the loss of revenue argument is based on assumptions. Urgency cannot be based on assumptions there is no loss of revenue whether real or threatened on these facts.

My finding on urgency disposes of the matter but I shall briefly comment on the nature of the relief sought. The relief sought in the interim and in the final is the same except for the first paragraph that the applicant seeks an interim interdict. The 2nd and 3rd paragraphs of the interim relief is similar word for word with the final relief sought.

When this issue was raised on the incompetent relief sought, Ms Mahere would not relent. She distinguished the relief sought by the standard of proof that in the interim the applicant must establish a prima facie right and on the return date it has to establish a clear right. This is the correct position at law. However, what is clear is that this would have been a matter that required parties to have adopted the procedure set out in. I say this in view of the fact that indeed if the applicant is granted the interim relief its interests are fully catered for and the final relief maybe unnecessary.

Accordingly, the following order is made,

The application is struck off the roll of urgent matters.

There is no order as to costs.

Mtetwa & Nyambirai, applicant’s legal practitioners

Mathonsi Ncube Law Chambers, 3rd respondent’s legal practitioners