Reverend Clement Nyathi v The Trustees for the Time Being of the Apostolic Faith Mission of Africa & 6 Ors

### Preamble
1
HH 417 - 25
HCH 3949/24
---------


REVEREND CLEMENT NYATHI

versus

THE TRUSTEES FOR THE TIME BEING OF THE APOSTOLIC FAITH MISSION OF AFRICA

and

REVEREND ROSEWELL ZULU

and

PATSON HLABANGANA

and

HERBERT KELEB YALALA

and

CLEVER MEMBERE

and

CHIRILELE MUGOYANA

and

THE APOSTOLIC FAITH MISSION IN AFRICA JUDGMENT

HIGH COURT OF ZIMBABWE

KATIYO J

HARARE; 18 March 2025 & 11 July 2025

Opposed application

Adv L Uriri with K Ncube & Madau, for the applicant

Adv T Mpofu, for the respondents

KATIYO J:

Introduction

This is an application for leave to sue, brought by Reverend Clement Nyathi following the judgment granted by Phiri J in HC 2406/19. The applicant seeks a declaratory order that Phiri J's judgment erroneously extended the decree of perpetual silence ordered by Mabhikwa J in HB 189/18 to the applicant who was never cited in that judgment.

Background

The underlying dispute arises from a long-standing ecclesiastical conflict within the Apostolic Faith Mission in Africa (AFM). Various actors, including Reverend Nyathi, have approached the courts on numerous occasions concerning leadership, property ownership, and governance issues within the church.

In HB 189/18, Mabhikwa J issued a decree of perpetual silence against certain litigants, namely Claudius Manamela, Rosewell Zulu and others, restraining them from commencing litigation without the leave of the court. Reverend Nyathi was a respondent in that case, and not among those interdicted.

Despite this, Phiri J in HC 2406/19 made an order barring Reverend Nyathi from instituting legal proceedings without prior leave of the High Court, purporting to be guided by the earlier judgment in HB 189/18.

The applicant avers that Phiri J’s judgment mistakenly conflated the parties affected by Mabhikwa J’s decree with him. He contends that he is unjustly prevented from approaching the courts, resulting in a procedural and constitutional injustice.

Analysis of Facts and the Law

The legal issue to be determined is whether the order by Phiri J in HC 2406/19 improperly extended the decree of perpetual silence to the applicant, thereby conflicting with Mabhikwa J’s order in HB 189/18.

The decree of perpetual silence, an exceptional remedy in our jurisdiction, is not to be granted lightly. As held in Herbstein & Van Winsen, The Civil Practice of the High Courts of South Africa, a perpetual bar to litigation must be limited to vexatious litigants whose conduct undermines judicial processes. Such relief must be granted only against identified parties based on a proven track record of abuse.

In HB 189/18, Mabhikwa J specifically mentioned the parties bound by the decree: Caudius Manamela, Rosewell Zulu, and others named in the application. The judgment makes no reference to Reverend Nyathi as an interdicted party. Indeed, the record shows that Nyathi was a respondent, not an applicant, in that matter.

It was thus erroneous for Phiri J to extend the operation of HB 189/18 to the applicant in HC 2406/19. The applicant’s urgent application before Phiri J was merely seeking stay of execution, and no counterclaim or conduct was demonstrated therein to justify a decree of perpetual silence against him.

Judicial caution must be exercised before sanctioning such relief. As per the principles in Corderoy v Union Government (Minister of Finance) 1918 AD 512, repeated and persistent litigation on the same cause of action involving the same parties may justify intervention. However, that standard was not met by the applicant in HC 2406/19. There was no pattern of frivolous litigation warranting such harsh procedural sanction against him.

Moreover, the right to access the courts is a fundamental right protected under section 69 of the Constitution of Zimbabwe, 2013. A party may only be barred from exercising this right where justified by due process. No due process was followed in extending Mabhikwa J’s order to Reverend Nyathi.

Case authority such as Zimbabwe Anti-Corruption Commission v Mangwiro SC 117/22 underscores the court’s duty to jealously guard the right to be heard and access to remedies.

Further, rule 29(1)(a) of the High Court Rules 2021 allows rescission where a judgment is erroneously sought or granted. The order of Phiri J is a classic example. The perpetuation of that error in subsequent applications amounts to procedural injustice.

Conclusion

The decree of perpetual silence granted by Phiri J in HC 2406/19 against Reverend Clement Nyathi was founded on a mistaken interpretation and application of Mabhikwa J’s order in HB 189/18. The two judgments are in direct conflict.

It is clear that the applicant was not a party to the decree issued by Mabhikwa J, and Phiri J’s reliance on that judgment to bind the applicant was misplaced.

The continued application of the perpetual silence decree against the applicant is unconstitutional, procedurally improper, and prejudicial.

Accordingly, it is ordered that:

The decree of perpetual silence granted against Reverend Clement Nyathi in HC 2406/19 be and is hereby set aside.

It is declared that the order granted by Mabhikwa J in HB 189/18 does not apply to Reverend Clement Nyathi.

The applicant is granted leave to sue the respondents in this or any competent court without the requirement to first obtain leave of the High Court.

There shall be no order as to costs.

Katiyo J: ……………..………………………….

Kossam Ncube & Partners, applicant’s legal practitioners

Gill, God Lanton & Gerrars, respondent’s legal practitioners