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Anglican Church cases - Supreme Court reserves judgment in main appeal - Court Watch 20/2012
Veritas
October 24, 2012

Anglican Church Cases: Supreme Court Dismisses 5 Appeals & Reserves Judgment in 2

This bulletin will outline the background of these cases, Monday’s Supreme Court hearing, the position while judgment is awaited, and give a brief summary of previous relevant court decisions leading to these appeals

Background

The Anglican Church in Zimbabwe has for many years been part of the Anglican Church of the Province of Central Africa, which is the supreme legal entity of the Anglican church in the region. The CPCA, while having a great deal of autonomy, is in turn part of the world-wide Anglican communion, symbolically headed by the Archbishop of Canterbury. The Province includes Zimbabwe, Zambia, Malawi and Botswana. Church property in the Province is owned by the Anglican Church of the Province of Central Africa, but is administered by trustees in each diocese [the Diocesan Trustees]. In Zimbabwe there are several dioceses, each headed by a bishop. Dr Nolbert Kunonga was elected and ordained as Bishop of the Diocese of Harare in 2001 in accordance with the constitution of the CPCA.

2007 Breakaway - In late 2007 Dr Kunonga broke away from the established Church of the Province of Central Africa [CPCA] with a small group of followers to form a separate Anglican church for the so-called province of Zimbabwe, with Dr Kunonga as its Archbishop. This withdrawal was rejected as “unconstitutional and uncanonical” by the CPCA; its stance being that the CPCA, as the official Anglican church, continued to exist in the Diocese of Harare and in Zimbabwe and could not be represented by people who had unilaterally chosen to leave. Dr Kunonga and his supporters, said the CPCA, had by their actions ”severed relationship with the Province of Central Africa” – and the CPCA had not legally been replaced by the breakaway Kunonga church. The CPCA, accordingly, proceeded to install a new Bishop of Harare, Bishop Bakare, who has since been succeeded by Bishop Gandiya. The CPCA continued to regard Dr Kunonga and his supporters as being no longer in communion with the Anglican church.

Dr Kunonga and his supporters, however, retained or took over possession and control of much church property, including churches and rectories, missions and their schools, hospitals and orphanages; and they have systematically, and sometimes violently, barred the CPCA and its members from using or accessing this property.

Monday 22nd October: Supreme Court Hearing

The Supreme Court sat on Monday 22nd October to hear the seven appeals that had accumulated over the past five years, all arising from High Court litigation over control of the Anglican church in Zimbabwe and its property. The appeals pitted the official Anglican Church of the Province of Central Africa [CPCA] against the breakaway Kunonga group and its followers. Although the whole of this week had been set aside for these cases, the court in fact completed the hearings on Monday, disposing of five appeals and reserving its judgment to a later date in the remaining two key appeals:

• five appeals were swiftly dismissed for failure to comply with the rules of court [these were all appeals by Kunonga or his followers in cases that had gone against the Kunonga group in the High Court – see below]
• in the remaining two appeals, argument by counsel from both sides was completed on Monday, and the court reserved judgment to a later date. [These were appeals by the official Anglican Church of the Province of Central Africa against decisions of Justice Hlatshwayo that went in favour of the breakaway Kunonga group. Justice Hlatshwayo, among other things, awarded all Anglican church property in the Diocese of Harare to the Kunonga group. See further below.]

The Arguments in the Supreme Court

The Supreme Court judges assigned to the appeal were Deputy Chief Justice Malaba and Justices Ziyambi and Omerjee. The atmosphere was businesslike. First, Justice Malaba raised the procedural defects and breaches of rules of court in the five Kunonga group appeals. These appeals were then dismissed. This left the court free to deal with the substantive issue between the parties – the correctness or otherwise of Justice Hlatshwayo’s decision of July 2009 in favour of the Kunonga group; as Justice Malaba pointed out, for practical purposes the Supreme Court’s decision on that issue would resolve the other CPCA appeal against Justice Hlatshwayo’s second decision to the same effect in May 2010.

• For the CPCA, Advocate Adrian de Bourbon argued that by their actions in September 2007 the Kunonga group had voluntarily removed themselves from the CPCA as individuals and denied the authority of the CPCA, thereby causing a schism in the Anglican church. As the parties responsible for the schism, they could not lay claim to control of the church or its property. Legally, that control had remained with the CPCA. “In effect they [the Kunonga group] are saying that a member of a club can resign from a club but still insist that he is the Treasurer of the club.”
• For the Kunonga group, Mr Kanengoni surprised CPCA supporters in court by arguing that Dr Kunonga and his supporters had never legally left the CPCA, but had all along retained their positions in the CPCA and their right to control the church and its property in the Harare Diocese. The breakaway church, he claimed, no longer existed. Advocate de Bourbon responded “We would not have been here if Dr Kunonga was still Harare Diocese Bishop and recognising the authority of the CPCA.”

The Position While Judgment is Awaited

Harare diocese - Until the Supreme Court decision is given, control of church property in the Diocese of Harare will remain with the Kunonga group. That is the effect of a ruling by Chief Justice Chidyausiku in August 2011 when he reinstated the CPCA’s appeal against Justice Hlatshwayo’s decision [see below for the history of this appeal and why reinstatement had become necessary].

Manicaland diocese - Here the position may be different, because the dismissal of former Bishop Jakazi’s appeal means that Justice Bhunu’s May 2010 ruling in favour of the CPCA, and against ex-Bishop Jakazi, is no longer suspended.

High Court Decisions Against Which the Appeals Were Made

The breakaway of September 2007 was swiftly followed by a number of High Court cases, with both sides going to court over control and use of Anglican church property in the Diocese of Harare – and in the Diocese of Manicaland, where the previously incumbent bishop followed the Kunonga lead. By 19th January 2008 there had already been four urgent chamber applications for interim orders pending a decision in a fifth case initiated by the official CPCA for a definitive decision on use of church properties.

19th January 2008 – High Court ordered shared use of church premises: A judge issued an interim order that the church premises should be shared pending a final court decision. The judge’s order dealt with the allocation of time slots for church services and allowed for variations to be agreed at parish level. The Kunonga group noted an appeal to the Supreme Court and continued to debar [sometimes violently] the official CPCA’s congregations.

30th January 2008 – High Court rejected Kunonga group’s claims to church property: On 30th January 2008 the court dismissed a separate urgent application by the Kunonga group for recognition of its right to possess church property. The Kunonga group noted an appeal.

1st February 2008 – High Court ordered continued sharing of church premises notwithstanding appeal: The official CPCA launched an application to have the Kunonga group declared in contempt of court as the Kunonga group, often with police assistance, had continued to deny the official Anglican church access to church premises. The court dismissed the application, but ruled that the interim sharing order decision was still effective. The Kunonga group noted an appeal.

July 2009 – Justice Hlatshwayo decided in favour of Kunonga group: While trial of the main case brought by the official CPCA to get its properties back was still awaiting a much-delayed trial, Justice Hlatshwayo issued a judgment awarding the Anglican church property in the Diocese of Harare to the Kunonga group.

The Anglican Church of the Province of Central Africa [CCPA] appealed to the Supreme Court against the Hlatshwayo decision:

The Kunonga group applied for the appeal to be summarily dismissed because the CPCA had failed to provide security for their legal costs, as required by the rules of court. The Supreme Court granted this application on 3rd May 2010 and dismissed the appeal.

The CPCA promptly applied for reinstatement of its appeal - But no decision was given on this application for over a year.

May 2010 – Justice Hlatshwayo barred the trial of the main CPCA case When the CPCA pressed for a trial hearing of their main case, Justice Hlatshwayo called both sides to his chambers, said his July 2009 decision had finally decided all issues, and ruled there was no need for a trial. The CPCA appealed to the Supreme Court.

It is the two appeals against Justice Hlatshwayo’s rulings in favour of the Kunonga group that are now being considered by the three Supreme Court judges after Monday’s hearing.

19th May 2010 – High Court ruled against Kunonga ally in Manicaland The former Bishop Jakazi of Manicaland followed the Kunonga lead and announced the Diocese of Manicaland’s withdrawal from the CPCA. The court held that as Jakazi had voluntarily left the CPCA, he had forfeited all rights over diocesan property, had no right to meddle in diocesan or CPCA affairs. Mr Jakazi noted an appeal to the Supreme Court.

31st May 2010 – the High Court suspended Justice Hlatshwayo’s decision: The suspension was to apply pending a Supreme Court decision on reinstatement of the CCPA appeal This should have revived the sharing arrangement but Kunonga immediately appealed, resulting in:

Reversion to Hlatshwayo judgment awarding property to Kunongo:

August 2011 – Chief Justice reinstated CPCA appeal against Justice Hlatshwayo’s judgment after a year’s delay. But he also decreed that Justice Hlatshwayo’s decision would be stand until the appeal was decided by the Supreme Court

Despite the Chief Justice’s call for “expeditious finalisation of the dispute”, the Supreme Court hearing has taken 14 months to organise.

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