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Postscript on Anglican Church court cases - Court Watch 23/2012
January 07, 2013

Stop Press: There have been newspaper reports that at a press conference on Wednesday 19th December Dr Kunonga’s spokesperson Reverend Admire Chisango [with Dr Kunonga being present] announced that Dr Kunonga and his breakaway church would abide by the Supreme Court ruling and that they had already surrendered the to Anglican Church of the Province of Central Africa [CPCA] all CPCA property that had been in their possession. Veritas, however, has ascertained from Dr Kunonga’s lawyer Jonathan Samukange that this does not mean that Dr Kunonga’s new court cases claiming the properties in the name of his breakaway church [the Church of the Province of Zimbabwe] are being dropped. [See below for details of the new court cases.]

The Story so Far: Court Watch 21/2012 of 22nd November summarised the Supreme Court’s judgment of 19th November confirming the right of the official Anglican Church of the Province of Central Africa [CPCA] to possess and control its property in the Diocese of Harare. The background to this decision was that CPCA property in the Harare Diocese is administered by a Board of Trustees chaired by the Archbishop of CPCA and including the Bishop of the Diocese – at one stage this was Dr Kunonga, but he broke away to form his own “Anglican” Church of the Province of Zimbabwe, and refused to relinquish the CPCA properties and, often violently, prevented access or use by loyalist Anglicans. There were court cases between the CPCA and Kunonga camp that dragged on for five years before a judgment was obtained in the Supreme Court which ruled that Dr Kunonga, had in September 2007, voluntarily withdrawn from membership of the CPCA and, in so doing, had lost the right to possess and control CPCA properties. This confirmation of the CCPA’s position meant that the Harare Diocese led by the legitimate CPCA Bishop of Harare [first Bishop Bakare and now Bishop Gandiya] could now use the properties again.

The Supreme Court decision - In the Supreme Court’s judgment, Deputy Chief Justice Malaba said that the case centred on “the question whether those people who had been members of the Board of Trustees for the Diocese of Harare” before 21st September 2007 [i.e., the then Bishop of Harare Dr Kunonga and certain other persons] withdrew their membership from the CPCA and resigned their offices as bishop and trustees, thereby relinquishing the right to control CPCA property in the diocese.

This bulletin outlines developments that have taken place since then in the Harare Diocese followed by an update on related litigation concerning the Manicaland Diocese.

Aftermath of the Supreme Court Decision

Following the Supreme Court decision some Kunonga followers and/or tenants voluntarily vacated the CPCA premises they were occupying, and the the CPCA, the official Anglican church, was able to resume possession. Others, including Kunonga himself, did not do so. The CPCA therefore had to take further legal action to give effect to the Supreme Court’s decision.

Church obtains eviction orders against Kunonga camp

The CPCA, on the basis of the Supreme Court judgement, obtained “warrants of ejectment and notices of removal” from the High Court. These authorised the Deputy Sheriff to carry out evictions, which he proceeded to do with police assistance. The Church properties concerned included the Cathedral in Harare. At the Cathedral Dr Kunonga himself was involved in a confrontation with the Deputy Sheriff, but eventually left.

Kunonga’s Second Bite at the Legal Cherry

Having switched legal firms, the Kunonga camp soon returned to the High Court in an attempt to avoid the consequences of the Supreme Court decision, but in a new guise. On 27th November Dr Kunonga’s new lawyer, Jonathan Samukange, lodged papers in the High Court commencing two fresh but interlinked legal cases in the name of Dr Kunonga’s breakaway Church of the Province of Zimbabwe:

1. An urgent application for a court order stopping the evictions

The basis of this was that a new case was being initiated by Dr Kunonga’s new Church of the Province of Zimbabwe [see 2 below] and until the High Court decided this new case the evictions should stop. This was supplemented on 29th November by a additional urgent application when the CPCA persisted with the evictions despite knowing that the urgent application had been lodged and would be heard on 4th December.

2. A summons seeking a court order that Anglican Church property is owned by the new church

This bold attempt to change the legal goalposts tries to get round the Supreme Court decision by relying on the fact that the decision was given in proceedings to which the new, breakaway Church of the Province of Zimbabwe was not a party – in other words, the fact that it was a decision against the “Diocesan Trustees for the Diocese of Harare” [Kunonga and his fellow former trustees], not against the new church, even though the new church was established by Dr Kunonga and his followers, with Dr Kunonga as its Archbishop.

Note: The claim is that the new church owns all the previous CPCA properties – which is surprising, given that up to now there has been no dispute between the CPCA and the Kunonga camp over ownership [as opposed to possession and use, which are different legal concepts]. As Justice Malaba said in his judgment: “There has been no dispute as to the ownership of the movable and immovable property.....It is common cause that the property belongs to the Church [the CPCA]. It has a right to an order for vindication of its property from possessors who have no right to have it.”

Indigenisation-type argument

The basis of the new church’s claim to ownership is apparently an assertion that the churches, schools, colleges and properties concerned are part of “the natural resources of the Zimbabwean community just like land and minerals” and therefore cannot be owned by a “foreign entity” such as the CPCA.

Note: the CPCA is not governed or controlled from England or by any other church. It is an independent, autonomous African church, with its own constitution and system of governance. It is also one of 38 autonomous churches that make up the worldwide Anglican Communion. The Archbishop of Canterbury is the senior bishop and head of the Church of England. He is also the symbolic head of the worldwide Anglican Communion, but that does not mean that the Archbishop or the Church of England can speak or act for the CPCA.

The Anglican Church of the CPCA Response

The CPCA’s response to these moves has been that the formation of the breakaway church by Dr Kunonga and his followers cannot be used to reverse the position that the Supreme Court has already finally decided; in other words, the Church relies on what lawyers call the rule of res judicata [a Latin tag which encapsulates the legal principle that a “matter decided” finally by the courts cannot be reopened].

Urgent Application to Stop Evictions Dismissed

The urgent application to stop the eviction [1. above] was heard in chambers by Judge-President George Chiweshe on 4th and 5th December He reserved judgment until 10th December.

Justice Chiweshe’s judgement [available from].

On 10th December Justice Chiweshe handed down his written judgment, in which, after outlining the background and the submissions advanced by both sides, he identified the cardinal point as whether the breakaway church was bound by the Supreme Court’s decision and if not, whether it has a right to be heard, and if so, whether in fact it should be heard. His conclusion was that that “the answer to these questions requires an interpretation of the scope and extent of the Supreme Court judgment....The High Court is not the appropriate forum for that kind of exercise.” The breakaway church should, he continued, have approached the Supreme Court for directions. He agreed with the CPCA’s argument that the matter is res judicata: “The Supreme Court has spoken ... I have no jurisdiction to entertain this application.” He therefore dismissed the application to stop the evictions. This conclusion leaves the CPCA in possession and control of Church property in terms of the Supreme Court’s decision.

Justice Chiweshe’s observations on CPCA continuing with evictions pending his decision

Justice Chiweshe referred in his judgment to the fact that the CPCA had persisted with evictions after the urgent application had been set down for hearing. He observed that “it is the practice, custom and tradition of this court that when an urgent matter has been set down, it suspends execution until the matter is heard.”

Note: Justice Chiweshe did not say the continued evictions were illegal, which they were not. From the CPCA point of view they considered the urgent application just one more delaying tactic after 5 years of waiting and, having a Supreme Court judgment in their favour, were anxious to celebrate Christmas in the restored churches.

Kunonga camp’s appeal against dismissal of its urgent application

On 13th December Mr Samukange lodged a notice of appeal in the Supreme Court against Justice Chiweshe’s dismissal of the new church’s urgent application. Once the CPCA has filed its papers in response to the notice of appeal, the case will proceed in accordance with the rules of court. It is unlikely that there will be any form of hearing before the beginning of the new Supreme Court term on 14th January.

Justice Chiweshe’s Decision Refers Only to the Urgent Application

NOT to the New Ownership Claim

Justice Chiweshe’s decision refers only to the new church’s urgent application to stop the evictions – not to the case initiated by the breakaway church’s summons seeking a court order declaring it to be the owner of all the church properties.

This case remains on the High Court’s books. It will follow the course laid down by the rules of court for the handling of cases involving disputed issues of fact and law. The rules include provision for early rejection by the High Court of claims that do not have a sound legal basis. Justice Chiweshe’s decision on the urgent application is an indication of the difficulties that may face the Kunonga camp if they choose to press on.

Manicaland: Former Bishop Jakazi Re-Applies to Supreme Court

Court Watch 21/2012 referred to the situation in the diocese of Manicaland where incumbent Bishop Josiah Jakazi followed the Kunonga lead but, unlike Kunonga, lost a High Court case against the Church of the Province of Central Africa. That was in May 2010. He appealed to the Supreme Court against this High Court decision. His appeal was due to be heard during the same week as the Church’s appeal against Justice Hlatshwayo’s decision in favour of the Kunonga camp. But Rev Jakazi’s appeal was not actually heard; instead, it was “struck off the roll” by the Supreme Court on 22nd October because it did not comply with the rules of court about appeal procedures. As this did not amount to a final dismissal of the appeal on the merits, Rev Jakazi had the right to apply to the Supreme Court for condonation of the late noting of a fresh appeal, and he promptly did so.

Judge hears application for condonation of late appeal - Justice Vernanda Ziyambi heard the condonation application in chambers at the Supreme Court on Monday 10th December. After listening to lawyers for both sides, the judge reserved judgment, meaning that her decision will be given on a later date. In reaching this decision Justice Ziyambi will be weighing up not only the acceptability or otherwise of Rev Jakazi’s reasons for not complying with the rules of court, but also whether she is satisfied that his proposed appeal has a reasonable prospect of success. Meanwhile, the May 2010 High Court decision concerned, which decided that he has no rights to CPCA property or to take part in the CPCA’s affairs, is fully operational.

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