Pastor v Church (name not stated)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/206/25
HARARE, 20 MAY, 2025 AND
6 JUNE 2025
CASE NO LC/H/224/25
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/206/25

Before the Honourable G. Musariri, Judge:

For Applicant	- K. Masiyenyama, Attorney

For Respondent	- T. Machaka, Attorney

MUSARIRI, J:

On 14 March 2025 Applicant applied to this Court for the reinstatement of the abandoned and dismissed matter LCH 87/25. This application was made in terms of Rule 46 of the Labour Court Rules, 2017. Respondent opposed the application.

The founding affidavit by applicant’s attorney stated that;

“4. On the 3rd of February 2025, Applicant filed a Chamber Application in this honorable court for Condonation for late noting of Review. Find attached hereto a copy of the Application marked Annexture A. The Respondent filed its Notice of Opposition on the

1

17th of February 2025. (Find attached Annexture B). Applicant duly prepared an answering affidavit and same was filed on the 25th of February 2025 (find attached

annexture C). In terms of the rules, Applicant was supposed to file Heads of Argument by the 4th March 2025 and failed to do so leading the Registrar to dismiss the matter in terms of rule 46(b) of the rules of this honorable court on the 6th of March 2025. (Find attached the letter of dismissal of matter marked annexture D).

6. I humbly submit that my failure to file Heads of Argument within the stipulated time was not deliberate. On Monday the 24th of February 2025 I attended to a High Court criminal Appeal matter of … and the matter was subsequently postponed to the 3rd of March 2025 as the court had requested both parties to address it on some pertinent areas of the law. On the 3rd of March 2023 I attended the resumption of the Appeal hearing in the High Court with the hope that soon thereafter I was going to be able to return to the office and finish preparing the Heads of Argument in the present matter and file the same within the prescribed time. Unfortunately by the time I finished the High Court hearing, I suffered a sudden migraine head attach (sic) and I had to be immediately attended by my medical doctor who then gave me immediate sick leave days and bed-rest till the 7th of March 2025 (Find attached medical records marked annexture E.).

8. Thus when the matter was dismissed by the Registrar on the 6th of March 2025, I was not at work as I was still recovering from the illness at home and I had already planned to make an application for upliftment of bar once I return to work.

10. It is also submitted that the Respondent will not suffer any prejudice should this Application be granted. Applicant enjoys great prospects of success in both the Application for Condonation as well as on the Review Application itself as more fully appearing on annexture A attached hereto this Application. it should be noted that in the main, the Applicant is challenging the Respondent’s decision to have him suspended from

employment without following the due process of law. It have been submitted by the Applicant that the disciplinary hearing which was conducted by the Respondent

against the Applicant was marred with gross irregularities justifying the Court’s intervention to have same set aside. Chiefly being that there was no any proper charge upon which Applicant was subjected to a hearing, there was no any mention or reference to the applicable code of conduct (either in the papers inviting Applicant for Hearing or during the Hearing itself) for the proceedings against the Applicant, the disciplinary committee itself was improperly constituted.”

On the other hand Respondent’s opposing affidavit countered that;

“23. Even if one agrees that the legal practitioner for the Applicant attended some High Court business on the 24th of February 2023 and 3rd of March 2025 could be justification for one failing to file heads which had been due from 17th of February 2025.

24. The inescapable conclusion is that Applicant sought to prepare and file their heads on the last day of the dies and failed to do so.

25. The illness of the legal practitioner concerned which happened on the 3rd of March 2025 does not absolve the applicant who had to liaise with his legal practitioners to ensure that the necessary papers were timeously filed.

The Applicant is a Pastor in the Respondent and was suspended from carrying out his duties as a pastor in terms of the Church Deed and Standing Orders after allegations surfaced against him that he engaged in acts of infidelity and sexual immorality.

In his capacity as a Pastor the minor Synod of the Church suspended him from performing the duties of a Pastor until he has been cleared of the allegations of immoral conduct.

The proceedings were therefore not of a labour nature as no Labour statutes were invoked to deal with the Applicant but regard was had to the Constitution of the

Respondent church. The jurisdiction of the Court to interfere with the decision of the minor Synod of the Church cannot therefore be established.

33. Pastors save on a sui generis vocation or calling and cannot be strictly regarded as

employees of the church so as to trigger the jurisdiction of the Labour Court on review.”

Analysis

The applicable law was set out by the Supreme Court in the case of;

Doves v Harare SC 64/23 Per Makoni JA at Para (16)

“Dealing with an application for reinstatement of an appeal in Tel-One… this Court stated

the following;

‘Essentially, in an application of this nature, the applicant must satisfy the court firstly, that he has a reasonable explanation for the delay in question and secondly that his prospects of success on appeal are good.”

Explanation

The explanation tendered in casu is that the attorney planned to file the heads of argument on the 3rd March 2005 but fell ill. Thus he was not able to beat the deadline for filing the heads. However the heads could have been filed from the 17th February 2025 when applicant was served with the Notice of Opposition. As rightly noted by respondent, applicant left things until the last minute for no apparent reason. No satisfactory explanation was tendered why the heads were not filed before the attorney fell ill.

Prospects

The papers filed of record raise 2 (two) issues.

Whether the impugned proceedings are secular (employment) or spiritual (ecclesiastical):

Applicant argued that the proceedings are secular whereas respondent argued they are spiritual. Spiritual matters are not subject to labour laws and are thus beyond reach of the Labour Court. The test/s to determine the nature of such proceedings were set out by the Supreme Court in the matter of Dube v Awake Grace SC 104/21. This Court is unable to apply the test in the context of an application for reinstatement. The issue requires fuller and further ventilation.

Whether the impugned proceedings have terminated:

The conclusion of the impugned proceedings are contained in respondent’s letter to applicant dated

12 December 2024 which reads;

“The above refers.

The Minor Synod of the 3rd December 2024 made the following recommendation:

Based on the child’s birth certificate, the summons, affidavit by Prisca Chinyama and the default court ruling you have got a case to answer. All members of the Minor Synod agreed that you be put on suspension from all ministerial duties whilst legal proceedings regarding the paternity of Kudakwashe Ashley Chinyama, your alleged child is taking course. The onus is with you to produce evidence that you are not the father of Kudakwashe Ashley Chinyama.

Confirmation to be checked on the rescinding of the maintenance of Kudakwashe Ashley Chinyama ruling by the courts also whether there are proceedings regarding paternity of the same with the courts.

In His Service ”

The letter shows that respondent’s Minor Synod suspended applicant pending the outcome of legal proceedings pertaining to paternity of Kudakwashe Chinyama. That means the proceedings before the Synod are not yet concluded. This is confirmed by the provisions of respondent’s Deed of Church Order a copy of which is filed of record. Under the subtitle ‘Discipline and Resignation’ Section 79 it provides that;

“790 (4) The Minor Synod shall try the case and shall have power to suspend the accused minister until the next meeting of the District Synod or the Conference. It shall report its proceedings to the Conference. The Conference shall pass judgment upon the findings of the Minor Synod confirming modifying or annulling them.”

It is apparent that findings/decisions of the Minor Synod are subject to confirmation by the Conference. Therefore applicant ought to seek recourse from the Conference rather than Labour Court. This conclusion is consonant with case law like,

Mudzengi v Standard 2002(1) ZLR 334(S)

Per Ziyambi JA at P 338C

“… the appeal procedures set out in the Labour Relations Act were capable of providing the appellant with effective redness in respect of the alleged unlawful termination of his employment with the first respondent. No special circumstances or good reason having been shown by the appellant to exist justifying his approach to the High Court, the appellant’s obligation to exhaust his domestic remedies was peremptory. Accordingly the application ought, on this ground alone, to have been dismissed.”

Conclusion

In all the circumstances it is concluded that,

The explanation for applicant’s delay is unsatisfactory, and

Applicant’s prospects of success on the merits are not good.

Accordingly the Court is not persuaded to exercise its discretion in favor of the reinstatement sought.

Wherefore it is ordered that,

The application for reinstatement of the matter LCH 87/25 be and is hereby dismissed; and

Each party shall bear its own costs.

G. MUSARIRI J-U-D-G-E