Apostolic Faith Mission in Zimbabwe v Cossam Chiangwa

### Preamble
1
HH 21-22
HC 6465/21
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APOSTOLIC FAITHMISSION IN ZIMBABWE

versus

COSSAM CHIANGWA

HIGH COURT OF ZIMBABWE
TSANGA J

HARARE, 29 November, 2021 & 13 January,2022

Urgent Chamber Application: 
(Execution Pending Appeal)

F Mahere, fo rapplicant
L Madhuku, for  respondent

[1]	TSANGA J:Having obtained a spoliation order on the 10th of November2021 under HC 5549/21against dispossession of church premises by the respondent, the applicant sought leave to execute pending an appeal that has been lodged by the respondent against the granting of that order. The matter was set for hearing on the25th ofNovember2021 when the respondent requested to formally file a point in limine for consideration regarding referral of the matter to the Constitutional Court in terms ofs175(4) of the Constitution of Zimbabwe 2013.The request to file a formal application for consideration of referral of the matter to the Constitutional Court was granted and the case resumed for hearing on the 29th of November 2021. Fore ase of dealing with the parties in the context of the case as a whole, I retain the title of applicant with reference to Apostolic Faith Mission in Zimbabwe and that of respondent with reference to Cossam Chiangwa in addressing the preliminary point raised.

[2]	The issues which the respondent seeks to be referred to the Constitutional Court are the following:

Whether or not the High Court‘s common law jurisdiction to order an execution of its judgment pending an appeal already pending in the Supreme Court:

Is consistent with the hierarchy of courts provided for in s162of the Constitution of Zimbabwe 2013.

involvingasdoes,a lowercourtdeterminingthe prospectsofsuccess ofanappealalreadybefore asuperior court,isconsistentwiththemandatory duty of the courtsto beimpartialas providedforin subss 1and2ofs164of the Constitution ofZimbabwe, 2013.

involving as itdoesa lower court determiningthe prospects ofsuccessofanappeal already before asuperior court isconsistentwith thefundamentright ofevery personto afairhearingenshrinedins69(2)as read withs 3 (1) ( b)of theConstitution ofZimbabwe, 2013

involving as itdoesa lower courtdetermining theprospects ofsuccess of an appealalready before a superiorcourt isconsistentwith thefundamental right ofeverypersontoaccessto the courtsenshrinedin s69(3) as readwith s3(1) (b)of the Constitution of Zimbabwe, 2013.

[3]	The gist ofrespondent’ssubmissions are thatforreasons ofcourthierarchy, impartially, and fair hearing as articulated above,once a Supreme Court isseizedwith an appeal,no lower court should have anything todowith that appealwhetherdirectly orindirectly.It is argued thatwhat suspends thejudgment is the power of the Supreme Courtand that it this court,bypowerof thelaw, that suspendsthejudgment of the lower court. Thus the common lawruleis said to runcontraryto this power bypermitting a lower court toundowhatahighercourtwould have ordered. It is in this respect that the commonlawruleis allegedto be in breach ofs 162 (judicial authority)asreadwithss168 and169whichdeal with the Supreme Court anditsjurisdiction. Itisalso argued that under thecommon lawjurisdiction, it ismandatory for a judgetodealwithprospects of success and the judgeistherebybeforced topitch his or hertentin favour of oneside in the appealmatter. This is alleged toviolate theimperative ofimpartiality espoused in s 164 of theconstitution.

[4]	In response tothisquest for referralon theabovegrounds, the applicant arguesthatthecontextin which the application to executependingappealis sought has to befullyappreciated. Inthis instance, the application is beingmadeagainst the overall back dropof aSupremeCourtjudgmentwhichauthorisedittotakecontrolof thechurchandwherethatcontrolhadbeeninterferedwiththroughspoliation asfound by the HighCourt.Thusapplicantarguesthattheappeal hasnot been noted on bona fidegroundsbutmerely to gain timeandharass the applicant. Theeffect ofallowing thereferralwould, according to the applicant,be todelaythedayofreckoning. Thusthe applicantargues thatif thecourtdoes notgranttheexecution itwould becondoningan illegality.The applicant is also not prepared to share the premises of worship with the respondent pending the appeal on the basis that this would in fact be condoning the respondent’s illegalconduct.

[5]	The applicant alsoargues that though on the face of it the issues raised for referral may not appear frivolous, theyare manifestlyvexatiousin nature in thatapplicantwould bevexedbynotbeingable to conductitsSundayservices. It wouldequallybevexedinthatitwould not beable to carryinto effect thejudgment of the SupremeCourtthatgave itcontrol of the church.Applicantwouldbefurthervexedas a litigantthathasfolloweddueprocessand soughttheprotectionof thelawonlyto behamperedby avexatiousapplication. In herargumentsin response to the applicationforreferral Ms Mahere, on behalf of the applicanttherefore emphasised that referral would offend the notion of equality before the law and the right to equal protection as provided for by s 56 of our Constitution.

[6]	Critically the respondentwassaidto havefailed toplaceasingleauthoritybeforethe courtthatstatesthatan application for executionpendingappealviolatestherightto a fairhearing, whosecomponentsare,firstly,aright to beheard,and,secondly,aright toafairhearing.Evenifexecutionpendingappealis granted Ms Maherearguedthattherespondentwould stillhaveanample opportunitytoputforward his caseand make hislegalrepresentations. She emphasised that no factshadbeen placed to demonstratein whatway theapplicationviolatesafair hearing and thatcontrary to therespondent’sassertion in theapplication forreferral,the courtwouldnot bepitching its tent with either side. The notion of fairness, she argued, requires that a litigant be able to protect and prevent a judgment from being a brutum fulmen. As forviolation of s 162 on judicial authority of the courts, she argued that there is nothingin that section that takes away the powers of the High Court to invoke several procedures on appeals pending beforethe Supreme Court.Shealsoemphasised that in any event the procedure of execution pending appealis one granted in exceptional circumstances but however,moved that the application for referral be dismissed on grounds that it isvexatiousand also frivolous in the context of the case.

Analysis of argumentsfor referral

[7]	Indeed atfirst glance, it may appear as if the quest for referral is not frivolous in the sense thatthe respondent appears tomotivate some seemingly rational but in reality highly generalised non-contextualised argumentsin support of theapplication forreferral.This is not surprising. Arguments for or against a position are created by lawyers all the time and it is in fact the norm toputup whatever decent argument on behalf of a client. Coming up with different possibilities to a client’s problem is after all the duty of an astute lawyer. However, it does not mean that the purposes for which such arguments arenot necessarily frivolous or vexatious. Applicationsfor executionalways engage thefactsand arecontextual.

[8]	Stay of execution admittedly provides some protection against what might indeed be an erroneous judgment by a lower court whilst the power of the lower court to allow execution equally deals with situations of manipulative abuse of procedural court processes. It is a fact that generally the right to appeal is preserved and thus suspension of execution of a judgment is not easily interfered with. But whilstan appealautomaticallysuspendstheexecution ofajudgmentwithnoaction being required on the part of the appellant for the suspension of the order, there may be factual situations which may make a suspension impractical or undesirable. In such circumstances there is nothing wrong in ordering enforcement during the pendency of an appeal. What is important is that each case must be dealt with on its merits. The totality of the factual circumstances and an analysis of the full facts is therefore always important in cases such as these in arriving at a proper conclusion as to whether stay of execution isjustified ornot.

[9]	The back dropagainst which the applicantseeksexecution has beenarticulatedby the applicant. The applicant’s incentive in seeking enforcements rests in not only having won their litigation on spoliation but it is also against the backdrop of having won the Supreme Court matter in the church’s leadership wrangle. The applicant also seeks enforcement expeditiously against the backdrop of the respondenthaving left thechurch only toreturnbyforce to take over the premises. The respondent, on the other hand, believing as he does that his congregants are in the majority, seeks to delay the enforcement of that judgment on the basis that the court erred. Generalised arguments that deliberately skirt the context of each case in whichexecution issought cannot therefore be a basis for creating an imagined constitutional crisis. Materially, there is therefore nothing inherently unconstitutional in a court ordering execution of its judgment where it firmly believes that the appeal has been lodged to simply buy time. Allowing a lower court to determine whether a judgment should be enforced pending an appeal is a way of dealing with frivolous appeals. As stated in Old Mutual Life Assurance Company (Private) Limited V L.Makgatho HH 39-07:

“Where however the appellant brings the appeal with no bona fide intention of testing the correctness of the decision of the lower court, but is motivated by a desire to either buy time or to harass the successful party, the court, in its discretion, may allow the successful party to execute the judgment notwithstanding the absolute right to appeal vesting in the appellant.”

[10]	As regards the unconstitutionality of a court ordering execution in a matter which is on appeal in a higher court, what is important to grasp is that the Supreme Court looks at the appeal as whole to determine whether the appeal is merited and not. It is not tied to whetherexecution has been permitted or not. Moreover, an appeal in the SupremeCourt is heard by three judges. It thereforecannot be suggested that a single judge of the High Court would even have the power to influence the reasoning of three judges on whether the appeal is merited or not. Therefore in sofaras thequestforreferral allegesinconsistency with the hierarchy of courts provided for in s 162 of the Constitution of Zimbabwe 2013, the argument isindeedfrivolous. In other words, even if execution is permitted, the fact is that three judges the Supreme have the ultimate unfettered sayontheappeal. Theirdecision hasnothing to dowithwhether execution has been allowedor notpendingappeal but rather theirfocusis squarely on themerits of that appeal. Theargumentthat a lower court determining the prospects of success of an appeal already before a superior court is inconsistent with the mandatory duty of the courts to be impartial as provided for in subs(s) 1 and 2 of s 164 of the Constitution of Zimbabwe, 2013 istherefore flawed. There is also no interference with a right to a fair hearing enshrined in s 69(2) as read with s 3 (1) (b) of the Constitution of Zimbabwe, 2013.On hearing of the appeal the Supreme Court may affirm or reverse the judgment appealed against based on the meritsof theappeal.

[11]	Thequest forreferralin myview islackingin meritand is accordinglydismissed. Whatthiscourt needstofocusiswhether theapplicationforexecutionpendingappeal is merited based on thosefactorswhicha courtfacedwithsuch an application isenjoined toconsider.

The Merits

[12]	Drawing on the Supreme Court case of Netone Cellular (Pvt) Ltd v Netone Employees & Anor 2005 (1) ZLR 275SC at p 281, Ms Mahere laid out the factors which a court would normally consider in determining what is just and equitable where an applications for execution pending appeal has been made. These are as follows:

(1)	the potentiality of irreparable harm or prejudice being sustained by the appellant on appeal (respondent in the application) if leave to execute were to be granted;

(2)	the potentiality of irreparable harm or prejudice being sustained by the respondent on appeal (applicant in the application) 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 not with the bona fide intention of seeking to reverse the judgment but for some indirect purpose, e.g. to gain time to harass the other party;and

(4)	where there is the potentiality of irreparable harm or prejudice to both appellant and respondent the balance of hardship or convenience, as the case may be.

[13]	She argued that the respondent would not suffer any harm given that he had in fact left and formed his own church and was in fact now worshipping at different premises before making a return. If the order for execution pending appeal is granted, he would therefore simply go back to the premises thathe and his congregants were now using. Moreover, she emphasised that there are no other proceedings pending to question applicant’s authority to control the church.

[14]	As regards whether the applicant, on the other hand, would suffer harm, she emphasised that the applicant has been unable to conduct its church services even though they had been doing so from the time of the Supreme Court judgment that dealt with the issue of the church’s leadership. Unlike the respondents who had left, they do not have an alternative venue. Lost services can also not be recovered if the appeal fails. In addition she also emphasised that allowing spoliation to continue could result in a volatile situation getting worse as respondent continues to take the law into its own hands. She drew attention to a widely reported shooting incident that had occurred at the church following the spoliation order beinggranted.On balance of hardship, she argued that convenience favours the status quo ante being restored, and, lawfulness to prevail, pending the Supreme Court appeal on spoliation.

[15]	As for prospects of success on the grounds of appeal, the respondent has appealed on the following summarised grounds:

That the court erred in granting a spoliation order pursuant to an urgent chamber application in circumstances where a spoliation order, being a final order, can only be granted pursuant to a court application.

That the court erred in granting a spoliation order without making a definitive finding the respondent was in possession of the property in question.

That the court erred in granting a spoliation order without making a definitive finding that the alleged act of spoliation by the appellant was unlawful or wrongful

As an alternative to twoabove, the court’s finding that it was the respondent who was in possession of the property in question was grossly irrational in that no reasonable court applying its mind to the disputed facts, would ever have reached such a conclusion.

That given that the respondent is a persona ficta which can only possess property through agents, the court erred in granting a spoliation order in favour of the respondent without establishing the natural persons thatpossessed for and on behalf of the respondent.

[16]	As for prospects of success Ms Mahere argued that the respondent has no prospects of success and has simply noted an appeal to prolong an unlawful occupation. The appeal was therefore said to be an abuse of court process, vexatious and mala-fide, its effect beingto allow the respondent to benefit from wrong doing pending thehearing.As regards the first ground of appeal thatthereshouldhavebeenafullcourtapplicationforafinalorder to begranted, sheargued that there is no law which prevents a court from granting a spoliation on the basis of an urgent chamber application. As such this ground could not be the basic upon which the Supreme Court would sanction an act of spoliation.

[17]	As regards ground twoin which the court is said not to have made any finding that the respondent was in possession of the premises, shemaintained thatthecourtdidin fact makesuch afinding. Ground threeto theeffect that that thecourtdidnotmakea findingthat thespoliation was wrongfulandunlawfulwas also said to be frivolous since an act of spoliation is inherently unlawful and due process was not followed by the respondent in this instance.As for ground 4 that no reasonablecourtapplyingitsmind to the disputed factswouldhave reachedsuchaconclusion,she argued that thisgroundisequally withoutmeritasthe respondent’s entitlement to possession was unsubstantiated. With regards to ground five thatthenaturalpersons that possessed for and on behalf of the applicant (respondent in appeal)needed to beestablished, MsMahereargued thatthere is no law which requires every person to be named.

[18]	The sum total of the argument on the merits was therefore that it isurgent for this court to find that the noting of the appeal should not suspend the order especially as s 176 of the Constitution entitles the High Court to protect and regulate its process. Furthermore, it is the applicant who has chosen not to resort to violence, making this a proper case to grant the order for execution pending appeal.

[19]	Mr Madhuku argued in responseto the abovesubmissions that this is not a proper case to apply the principles stated in the Netone Cellular case. His thrust was that irreparable harm means that it would be “pointless” whereasherein there is no irreparable harm in that context. He also argued that the court should take cognisance of the fact that courts now conduct virtual services and that this is not the kind of case that the common law had in mind. For the respondent, he stated that it might be injustice of a high level but not irreparable harm. He also argued that it had been two months since the alleged incident of spoliation on 10th October 2021and that as such, the respondents who have been there would suffer injustice.

[20]	Onbalance of convenience, he again emphasised that the respondent has been on the premises for at last two months going by the judgment whilst he maintained though that the respondent has always been in occupation. As such, he argued that it would be inconvenient to change the status quo when an appeal is still to be heard. According to him, it would be inconvenient to disturb the status quo now when the respondents are in control and occupation of the premises.

[21]	On prospects of success, he maintained that the court was wrong to give a final order for spoliation through an urgent chamber application on the basis that justice in closed chambers is not open justice. He emphasised the need for open court in that every interested party must be a party to an application.

[22]	As for grounds two and three, he argued that the court did not make definitive finding on possession and that the court had not openly stated that the applicant was in possession. He also argued that it could not be said that the appeal is mala-fide as there was no evidence of the mind-set of the respondent. He also challenged the applicant’s quest for the order to stand despite the noting of the appeal on the basis that the right to appeal is given by statute. He therefore argued that this application for execution pending appeal is in fact an application for preferential treatment.

[23]	In response, Ms Mahere highlighted that the respondent, through his counsel, had in fact confirmed in argument that he and his congregantshad merely been on the premises for two months and that the court was therefore clearly not dealing with a litigant who has been in possession but one who took possession two months ago. She agreed with the respondent’s own assessment that he would not suffer irreparable but stressed that the respondent could not speak for the applicant in thatregard. She re-emphasised the need to go back to the status quo on the basis that the applicant is failing to conduct church service and for a church whose main business is to worship, to stop them from doing so goes to the root of irreparable harm. Moreover, the applicant was said not to be conducting any virtual services. As regards the argument on other interested parties ifindeed any, she pointed out that they had not sought to be joined.

Analysis of themeritsof application forexecution pending appeal

[24]	The issue of whether the application isfrivolous orvexatioushas already been looked atwithrespect to theissueofreferral.I turn to the relatedissue of prospectsof success of the grounds of appeal astheseareafundamentaldeterminanton whether ornotexecutionpendingappealshould be granted. As regards the first ground of appeal, the High Courtjudgment on spoliation in para 9 clearly stated that central to spoliation is the need to urgently stop unlawful conduct and self-help and restore the status quo ante until the law has taken its course. This court maintains that there was nothing wrong therefore in hearing the application on an urgent basis in order to stop the unlawfulness that had been clearly speltout in the application andacceptedastruthby the court. This wasin contrast tothe respondent’sassertions that he had never left the premises to start his own church when theevidence in the application showed he most certainly had. The ground of appeal is unlikely to succeed.

[25]	As regards the second and third grounds of appeal, paragraph 10 of the judgment clearly outlined the applicant’s basis for seeking spoliation and examined the counter arguments bythe respondent. The judgment made it clear that the respondent’s reasons for its action of despoliation emanate from his view that his faction of congregants being the majority, are the owners of the premises. See para(s) 13-15.The court‘s judgment is clear that ownership is not a reason for despoliation and that the respondent did despoil the applicant and that the ownership dispute must follow due process.

[26]	The fourth ground that the court erred in reaching a conclusion of despoliation on the facts that were before it is also unlikely to succeed. The judgment clearly captured the factual realities as put forward by the applicant that supported the conclusion that the respondent had left the church and formed his own. The fact that the respondent put forward bare denials does not make the court’s finding unreasonable.

[27]	The last ground of appeal is also meritless under the factual findings that he had indeed previously left only to return on the 10th and 11th of October under the circumstances averred. There was no error in the court granting a spoliation order in favour of the applicant herein under circumstances where it was clear thatapplicant’s congregants indeed had control of the premisesfollowing the resolution of the churchleadership wrangle by the Supreme Courtand thedeparture of the respondent. There was no need to establish them as natural persons.

[28]	Consequently, looking at the application as a whole this court comesto theconclusionthatthe application for executionpendingappealis meritorious and that theappealhassimplybeenmade tobuytimeto allow therespondent to re-establish himselfon the premises whilsthechartshiscourse ofactionregardinghisrealgripewhichcentres onownershipof thepremises.

[29]	Accordingly, it is ordered that:

The application by theapplicant for leaveto executethe judgmentofthis honourableCourtgrantedon 10thNovember2021asjudgmentnumberHH 626-2021, pending the appeal against the judgment noted by the respondent under SC 433/2021, be and is hereby granted.

Consequently, it directed that theapplicantbe and isherebygrantedleave tocarrythejudgmentof thiscourt inHH 626-2021 into executionnotwithstandingtheappealagainstitby therespondent.

The costs of this application shall follow the outcome of the appeal in SC 433/21.

Mtetwa &Nyambirai, applicant’s legal practitioners
GS Motsi Law Chambers,respondent’s legal practitioners