Reverend Stanley Mafukidze v President of the Apostolic Faith Mission in Zimbabwe (in his official capacity)

### Preamble
1
HH 312-2012
HC 5004/10
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REVEREND STANLEY MAFUKIDZE

versus

PRESIDENT OF THE APOSTOLIC FAITH

MISSION IN ZIMBABWE

(in his official capacity)

HIGH COURT OF ZIMBABWE

MAKONI J

HARARE, 21 October 2010 and 28 March 2012

Opposed Court Application

J S Mandizha, for the applicant

Mrs J Zindi, for the respondent

MAKONI J:	The applicant approached this court seeking an order in the following terms:

“It is ordered and declared that:

The Constitution of the Apostolic Faith Mission in Zimbabwe (“The Constitution”) is the Supreme Law governing all the legal matters of the church.

The formation of branch – assemblies within the AFMZ is regulated by Chapter 3 of the Regulations to the said Constitution.

Any branch assembly formed outside of Chapter 3 of the Regulations to the said Constitution is illegal and ultra-vires the Constitution of the AFMZ.

That the respondent only bears the costs of suit in the event of an unsuccessful opposition to this application.”

The brief background to the matter is that the applicant is a pastor in an assembly which is in the Harare South Province (“HSP”) called the AFM Innercity Assembly. Some developments occurred in the AFM Innercity Assembly which resulted in some members moving to set up the AFM Belvedere Assembly. This resulted in the applicant seeking the intervention of the Apostolic Council (“AC”). In response the AC wrote annexture C to the HSP advising it inter alia to “regularise the Belvedere Assembly constitutionally.” It is this process of regularisation that the applicant takes issue with. The applicant avers that the so called Belvedere Assembly is in fact not an assembly within the confines of the AFM Constitution. It was not formed in terms of Chapter 3.1.1 of the Constitution.

The HSP’s position is that it has regularised the Assembly when in actual fact it did not comply with the Constitution. The respondent has not done anything about the matter by so doing his conduct amounts to approving of the illegality. The applicant was therefore left with no choice but to seek the assistance of this court to clearly and unequivocally declare the import of para 5 of annexure C. He asks the court to determine whether a branch assembly, sub-assembly or assembly even, can be formed constitutionally in any way other than in terms of Chapter 3 of the Regulations.

The application is opposed on mainly three grounds. The first one is that the applicant is non-suited in that he does not have locus standi to bring the present proceedings. The respondent avers that he doubts the applicant’s commitment to the AFM. He has associated himself with the Global Covenant Church.

The second ground is that the applicant has not exhausted his domestic remedies. He has approached this court instead of the AC in terms of the Constitution.

The third ground is that the respondent puts a different interpretation to Chapter 3 of the Constitution to that of the applicant.

I will first of all deal with the relief being sought by the applicant in para 1 of the draft order. He seeks an order that I declare the Constitution as the Supreme Law of the AFM Church. This is opposed by the respondent on the basis that in terms of the Constitution, the supreme laws consist of the Constitution and the Regulations. They cite Chapter 13 para 13.9 of the Constitution.

It is not clear to me why the applicant seeks such an order. In his founding affidavit and his heads of argument he did not provide me with a basis for making such an order. He makes no mention of why I should declare the Constitution as the supreme law. I have painstakingly gone through the Constitution and there is nothing that supports the applicant’s claim. I have had occasion to look at the Constitution of the Republic of Zimbabwe. Section 3 clearly declares that the Constitution is the supreme law of Zimbabwe and any if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void. Section 2 of the Constitution of the Republic of South Africa has the same provision.

My view is that if it was the intention of the drafters of the AFM Constitution that it be the Supreme Law then it should have been specifically stated so. In any event, as I have already stated, the applicant did not in his papers provide me with a basis to make such an order.

Locus Standi

It appears to me that the challenge by the respondent of the applicant’s locus standi is half-hearted. The respondent’s argument is that there is considerable doubt coming from the applicant’s statements and conduct that the applicant is still a committed member of the AFM but rather a member of the Global Covenant Church. As was correctly submitted by the applicant, the respondent in its opposing affidavit para 5.1 concedes that the applicant is a pastor of an assembly which is in the Harare South Province called AFM Innercity Assembly. Further to this, the applicant is a member of the AFM Zimbabwe. It is from his assembly that the breakaway group has emerged. The applicant has clearly established the requisite locus standi to institute these proceedings. The respondent has not taken any action to have the applicant removed as a pastor or a member despite their suspicion that the applicant might have started his own church.

Domestic Remedies

It is the respondent’s argument that the relief that the applicant seeks in para(s) 2 and 3, which is the interpretation of the provisions of the Constitution, is solely in the perview of the Apostolic Council. The applicant should have approached the AC. The applicant should have cited the AC rather than cite the President. The AC has not resolved the matter. The applicant ought to be ordered to per-sue domestic remedies before approaching this court.

The applicant contends what he seeks is a declaratory order and the determination of such matters falls within the ambit of this court as provided for by s 14 of High Court Act [Cap 7:06] (“The Act”). The AC has no jurisdiction to entertain such matters. He further contends that the AC is now functus officio as it has made a resolution in the form of annexutre C.

Section 14 of the Act empowers this court, in its discretion, to grant declaratory orders. In Munn Publishing (Pvt) Ltd v ZBC 1994 (1) ZLR 337 at p 343 G it was stated:

“The condition precedent to the grant of a declaratory order under s 14 of High Court Act [Cap 7:06] is that the applicant must be an interested person; in the sense of having a direct and substantial interest in the subject matter of the suit …”

I have already made a finding, earlier on in the judgment that the applicant has an interest in the suit before me. The applicant has therefore established the first stage of the requirements for the grant of a declaratur.

At p 344 C of Munn Publishing (Pvt) Ltd case supra, the CHIEF JUSTICE states:

“At the second stage of the enquiry, the court is obliged to decide whether the case before it is a proper one for the exercise of its discretion under s 14 of the Act.”

Is this a proper case for me to exercise my discretion in favour of the applicant in view of the respondent’s contention that there are domestic remedies available to the applicant?

In the Johnsen v AFC 1994 (1) ZLR 95 (H) at p 75 A it was stated that a declaratory order will be granted even if some other form of relief is available and that the merits of each case constitute one of the circumstances of the matter to which regard must be paid before a declaratory order is issued.

In casu, what the applicant seeks, in effect is the interpretation of Chapter 3 of the Constitution and Chapter 3 of the Regulations regarding the formation of new assemblies and branch assemblies. The applicant framed the issue as “what is the correct and legal way of forming new assemblies and branch assemblies in terms of the Constitution and the Regulations of the AFM Church?”

Chapter 13 para 13.5.1 of the Constitution of the AFM provides:

“The AC shall explain and clarify all matters in the Constitution which are not clearly understood and which need special interpretation. It shall be authorised to take decisions upon all matters for which no provision has been made in the Constitution.”

The applicant’s contention is that a new assembly is established in terms of s 3 (1) of the Constitution as read with Chapter 3 of the Regulations. The two are complimentary.

The respondent contends that there are two provisions dealing with the creation of new assemblies for a reason. The two are intended to cater for two different scenarios. Firstly where no assembly exists in a particular arrear. Second scenario is where there is evidence that the work of an existing assembly exceeds its capacity. A new branch is formed.

These are the sort of issues or disputes which were envisaged when s 13.5.1 of the Constitution was drafted. The AC is composed of very senior members of the AFM which includes the President, Provincial overseers and Head of Departments. They would be well versed in the spiritual matters and aims of the AFM. They are well qualified to interpret the relevant provisions.

My view is that approaching the AC is a remedy available to the applicant before approaching the court. He had domestic remedies available to him. He did not establish a good reason why he decided to approach this court without exhausting the domestic remedies.

The applicant did not refer the question of the interpretation of Chapter 3 of the Constitution and Chapter 3 of the Regulations to the AC. He did not advance any reasons why he did not. It is curious that the applicant did not attach to his papers the initial letter he wrote to the AC complaining about the formation of a splitter group. In my view, the applicant should have specifically referred the issue of the interpretation of the provisions in issue to the AC. That is their task in terms of [Cap 13:5] s 13.5.1. He cannot argue that the AC is functus officio when he had not presented the issue to them for determination.

It is settled in our law that where domestic remedies are capable of providing effective redress in respect of the complaint and secondly where the unlawfulness alleged has not been undermined by the domestic remedies themselves, a litigant should exhaust domestic remedies before approaching the courts unless there are good reasons for not doing so. See Girjac Sevell (Pvt) Ltd v Mudzingwa 1999 (1) ZLR 243 (S) at 249 D, Moyo v Foresty Commission 1996 (1) ZLR 173 (H) at 191 D -192 B.

In view of the above, I will withhold my jurisdiction to exercise my discretion in favour of the applicant.

I will therefore make the following order:

The application is dismissed.

The applicant to pay the respondent’s costs.

Mandizha & Company, applicant’s legal practitioners

Mtetwa& Nyambirai respondent’s legal practitioners