Lawrence Gandiya v Bishop Farai Mutamir Diocesan Disciplinary Chairperson (CPCA-Diocese of Harare) & Anor

### Preamble
IN THE LABOUR COURT OF
JUDGMENT NO. LC/H/390/25
CASE NO. LC/H/824/25
ZIMBABWE HELD AT HARARE
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE

JUDGMENT NO. LC/H/390/25

CASE NO.	LC/H/824/25

IN THE MATTER BETWEEN:

LAWRENCE GANDIYA	APPLICANT

Versus

BISHOP FARAI MUTAMIRI DIOCESAN DISCIPLINARY

CHAIRPERSON (CPCA-DIOCESE OF HARARE)	1st RESPONDENT

And

ANGLICAN CHURCH OF THE PROVINCE OF

CENTRAL AFRICA (CPCA)- DIOCESE OF HARARE	2nd RESPONDENT

6 OCTOBER and 17th OCTOBER 2025 BEFORE THE HONOURABLE GONESI J

For the Applicant:	C. Mucheche,

For the Respondents:	K. Maeresera

GONESI J: This is an application for review in which the following order is sought:

“1. The instant application for review be and is hereby granted.

The suspension letter dated 17 April 2025, disciplinary hearing verdict and penalty and all ancillary directives after the disciplinary proceedings against the applicant are set aside in their entirety.

The applicant, Reverend Father Lawrence Gandiya, is hereby reinstated to all ecclesiastical duties with retrospective effect from the date of his suspension on 17 April 2025, with full salary, monetary benefits, and non-monetary entitlements restored retroactively, including but not limited to monthly stipend, allowances, fuel, utility payments, grocery allowance, school fees, 13th cheque, special collections rectory, housing, vehicle and water supply.

The respondents shall pay applicant’s costs of suit on a legal practitioner-and client scale, jointly and severally, the one paying the other to be absolved.”

FACTUAL BACKGROUND

The applicant is Lawrence Gandiya, a Reverend Father of the 2nd respondent. The 1st respondent is Reverend Father Mutamiri, the Chairperson of the Diocesan Tribunal (CPCA-Diocese of Harare). The 2nd respondent is the Anglican Church of the Province of Central Africa (CPCA) Diocese of Harare. On or about April 2025, the applicant was charged before the Bishop’s Court with alleged contravention of Canon 24(1)(J), which is “…conduct giving just cause for scandal or offence or otherwise unbecoming a clergyman.” The allegations were that the applicant, being a fully ordained Priest in the church, unlawfully and intentionally took advantage of his vocation to abuse his privilege by engaging in an improper relationship with one Mrs. Tenyson, thereby giving just cause for scandal or offence or otherwise unbecoming a clergyman. The applicant was found guilty of the charges and suspended from all ecclesiastical duties.

Aggrieved by the procedure taken by the Bishop’s Court, the applicant has noted this application for review on the following grounds,

GROUNDS FOR REVIEW

“ a. Lack of jurisdiction

The employer respondents did not lawfully discipline the applicant in terms of a registered code of conduct as required by section 12B(1) and 2 of the Labour Act hence the whole disciplinary proceedings were unlawful, null and void ab initio. Also, the respondents lacked jurisdiction to entertain and determine allegations arising from private communications and marital suspicions.

Gross procedural irregularity

Key witnesses, including Mrs. Tennyson, were not called to testify, depriving the proceedings of essential evidence.

Bias or reasonable apprehension of bias

The 1st respondent acted with bias or created a reasonable apprehension of bias in favour of the complainant.

Procedural irregularity

The proceedings were procedurally irregular due to reliance on unauthenticated WhatsApp messages, selective evidence and disregard of statutory protections.”

PROCEEDINGS BEFORE THIS COURT

At the commencement of the proceedings, the respondents raised a preliminary point on the jurisdiction of the Labour Court to deal with this matter. It was submitted that the matter is purely ecclesiastic and this court should adopt a deference approach. It was also contended that the relief which was being sought by the applicant was also ecclesiastical. Mr. Maeresera further submitted that there were remedies available to the applicant in the Constitution and Canons of the 2nd respondent, as the applicant had a right

to appeal to the Provincial Court and a further appeal to the Final Court in terms of Canon 26(9). Counsel argued further that the relief being sought by the applicant was one this court could not give, an order reinstating the applicant to all ecclesiastical duties. Mr. Maeresera concluded by stating that the applicant should exhaust internal remedies.

In response, Mr. Mucheche submitted that the Canons have no application to the employer and employee relationship between the parties in independent Zimbabwe. Counsel argued that section 3 of the Labour Act [Chapter 28:02] was clear that the Act applied to all employers and employees except those whose conditions of employment were otherwise provided for in the Constitution. Mr Mucheche argued thus that the 2nd respondent was not excluded from the Labour Act and there was no special law for churches in Zimbabwe. Counsel went further and submitted that section 12 (1) of the Labour Act was clear on what determined an employer employee relationship. A plethora of case law, constitutional provisions and textbooks were cited by Mr. Mucheche to support his argument.

Mr. Mucheche argued that the key determining factor of an employer - employee relationship was remuneration and, in this case, the applicant was receiving remuneration, meaning he was an employee of the 2nd respondent. Counsel contended that the 2nd respondent could not subject the applicant to any disciplinary proceedings in the absence of a registered code of conduct. Mr Mucheche argued that church doctrines did not apply to the employer employee relationship and as such the court had jurisdiction to determine the present application. Counsel moved for the amendment of the draft order and that it be amended by removing the phrase “to all ecclesiastical duties…”He therefore prayed for the dismissal of the preliminary point as it was devoid of merit.

In response, Mr. Maeresera stated that the principles of constitutional avoidance and subsidiarity should be adopted in this case, as there are

specific subsidiary provisions applying in this case and as such the court should avoid relating to the constitutional provisions. Counsel submitted that it was incorrect that the Constitution and Canons did not apply in this case because they were promulgated in 1955. The applicant was seeking the court to rewrite the contract between the parties, something which is against public policy, so argued counsel. Mr Maeresera submitted further that the issue of unfair dismissal did not arise as the matter was purely ecclesiastical. Counsel contended that the Supreme Court even affirmed the validity of the Constitution and Canons in the case of The Church of the Province of Southern Africa v CCMA & Others (C619/2000) [2001] ZALC 141; 2002 (3) SA 385 (LC). It

was also submitted that the court should not grant an amendment to the draft order as it did not have jurisdiction to deal with the matter. Mr. Maeresera sought for costs on an ordinary scale.

ISSUES FOR DETERMINATION

Whether or not the Labour Court has jurisdiction to deal with this matter.

APPLICATION OF THE LAW TO THE FACTS

Whether or not the Labour Court has jurisdiction to deal with this matter.

In the adjudication of this matter, the pivotal issue for determination is the legal characterisation of the dispute, specifically, whether the nature of the dispute falls within the ambit of a labour dispute governed by employment law, or whether it pertains to ecclesiastical concerns subject to the doctrines, governance, and internal regulations of a religious institution. The resolution of this question is essential, as it will dictate the applicable legal framework.

In the case of Chimenya v The Chairperson of The Synodical Committee of The Reformed Church in Zimbabwe and Ors SC 319-23, it was stated that,

“In order to determine whether the court a quo had the requisite

jurisdiction to hear the matter before it, it is necessary in the court’s

view to first establish whether or not the matter before the court a quo related to ecclesiastical matters and/or church doctrine. A definition of ecclesiastical law from Black’s Law Dictionary reads as follows;-

‘An ecclesiastical matter is one that concerns doctrine, creed, or form of worship of the church, or the adoption and enforcement within a religious association of needful laws and regulations for the government of the membership, and the power of excluding from such associations those deemed unworthy of membership”(my emphasis)

The applicant was subjected to disciplinary proceedings pursuant to the Canons and ecclesiastical laws governing the church, which constitute the internal regulatory framework of the religious institution. Prior to the initiation of such proceedings, the applicant had expressly acknowledged and consented to be bound by the said Canons, through signing the clergy contract of service.

In the case of Oasis Medical Centre (Pvt) Ltd v Beck & Anor HC 4808-15, it was stated that,

“The signer must beware․ Once a person appends his or her signature to a document, it must be known that they are liable for the ensuing consequences and obligations․ It was the applicant’s responsibility to read the information about what the document entails before entering into the agreement․ I do not believe it is proper for the applicant to try and challenge clause 27 of the lease agreement at this moment in time

․ It remains bound by its signature․”(my emphasis)

It is therefore procedurally and legally untenable for the applicant to now repudiate the binding nature of the Canons to which he voluntarily submitted. Such repudiation undermines the principle of pacta sunt servanda, which holds that agreements voluntarily entered into must be honoured. The applicant’s attempt to disavow the authority of the Canons, after having acquiesced to their jurisdiction, is improper and amounts to an abuse of process.

Furthermore, on the 5th of October 2024 the Applicant took an oath with the following words:

“ I Lawrence Gandia assent to the Declaration of Fundamental Principles of the Province of Central Africa, and I further declare that I consent to be bound by all the Canons of the Province of Central Africa, and by all the laws which have hereinafter been made, or which may from time to time be made by the Diocesan Synod of the DIOCESE OF HARARE CPA and by the Provincial Synod of the Province of Central Africa…”

It is clear that the applicant accepted to be bound by the Canons and Constitution of the 2nd respondent.

In the case of Church of the Province of Central Africa v Diocesan Trustees for the Diocese of Harare SC 48-12, it was stated that,

“By definition a church is a voluntary and unincorporated association of individuals, united on the basis of an agreement to be bound in their relation to each other by certain religious tenets and principles of worship, government and discipline․ The existence of a constitution is testimony to the fact that those who are members of the church agree to be bound and guided in their behaviour as individuals or office- bearers on ecclesiastical matters by the provisions of the constitution and the canons made under its authority.”(my emphasis)

The Canons are binding on the parties as it is the law they agreed to be governed with. In the case of Church of the Province of Southern Africa Diocese of Cape Town v Commission for Conciliation Mediation and Arbitration and Ors (C619/2000) [2001] ZALC 141; 2002 (3) SA 385 (LC), it was stated that,

“The Constitution and the Canons constitute the legal framework within which the Applicant operates. While the Constitution sets out the principles that underlie the functions of the church and the manner in which it is structured by, for example, providing for, the establishment of Dioceses and Synods and the powers and duties of such bodies the Canons give substance to the principles contained in the Constitution. The Canons relate not only to the appointment and tenure of the clergy,

the election of bishops but various other matters such as matrimony and pastoral discipline. The Canons also deal with the disciplinary proceedings of priests and bishops. The rules and regulations that constitute the Canons are applicable not only to the clergy within the Applicant church but also to Applicant’s parish councils, church wardens, chapel wardens and the general public who are members of the Applicant.”(my emphasis)

It is trite to note that the Canons also provide for the procedure to be taken in disciplinary hearings. It is provided on Canon 26 that the Diocesan Court shall have sole original jurisdiction and the Provincial Court shall be the appeal court. A further appeal is also provided to the Final Court. In relation to the Canons, I find that this court has no jurisdiction to deal with the matter, as the provisions are very clear on the procedure to be taken. The applicant should therefore exhaust internal remedies, as this is a purely ecclesiastical matter.

Canon 26 (9) provides as follows;

“There shall be a right of appeal from the judgement of a Diocesan Court to the Provincial Court on a matter of law, or a matter of fact, or a matter of mixed law and fact, or against the severity of a sentence...”The Provincial Court is, therefore a “court of appeal from every Diocesan Court in the Province” and “every such appeal to be considered as a review of the matter and not as a re-trial thereof.”

In casu , it is clear that the applicant did not pursue and exhaust domestic remedies available. In the circumstances it is clear that the court does not have jurisdiction to determine the present review application before the exhaustion of internal remedies.

In Anos Chimenya v The Chairperson of the Synodical Committee of the Reformed Church in Zimbabwe and 2 ors supra ,the court observed as follows,

“A judicial review cannot be determined in a vacuum. By nature,

it addresses the procedural aspects that pertain to a decision reached

by a lower tribunal on a particular matter that is properly before it. It follows from this that while such grounds will or should, not address the merits of the decision made by the lower tribunal, such decision undoubtedly remains the subject of the review sought. In casu, the subject of the review sought by the appellant in the court a quo was the church’s ultimate decision that the issues in dispute should be settled through mediation between the contesting parties”

In casu by parity of reasoning it is apparent that the review application is emanating from the decision of the Bishop’s Court to suspend the applicant from performing ecclesiastical duties for one year and the suspension of all benefits attended to the applicant’s duties as a Reverend.

In Stalap Investments Pvt Ltd & 3 ors v Willoughby & #039;Investments Pvt Ltd & 2 ors HH 459/19 the honourable judge observed thus :

“The law on exhaustion of domestic remedies is settled and can be summarized as follows. Where there are adequate domestic remedies a party is required to exhaust them before approaching the courts. See Zikiti v United Bottles 1998 (1) ZLR 389. Domestic remedies can only be by passed where there are good reasons for approaching the court, for instance where the domestic tribunal undermines the remedy sought or the tribunal lacks jurisdiction or such other special reasons that should be  placed  before  the  court.  See Girjac  Services  (Pvt) Ltd v Mudzingwa 1999 (1) ZLR 243 (S)…”

In casu, the applicant never pleaded that the domestic remedies were inadequate and hence in the absence of proof of inadequacy of the said domestic remedies, this court will not proceed to hear the present application before the applicant exhaust domestic remedies .

Accordingly, the preliminary point taken by the respondents has merit and ought to be upheld.

DISPOSITION

The preliminary point taken by the respondents succeeds.

The court lacks jurisdiction to decide the matter on the merits and as such the application for review be and is hereby struck off the roll.

applicants’ legal practitioners

Chizengeya, Maeresera & Partners, respondents’ legal practitioners