Full text of Judge Makarau’s ruling on sharing church premises and service times – 18-19 Jan 08

  CASE NO HC 345/08
Harare 18 and 19 January 2008.
Mr R Moyo for applicant.
Superintendent Nzombe for 1st, 2nd and 3rd respondents
Mr J Mtizwa for 4th and 5th respondents.
            MAKARAU JP: Matters ecclesiastical are seldom best resolved by applying man made law.
            The applicant has approached this court on a certificate of urgency, seeking a final order restraining the respondents from interfering with the applicant’s congregation when conducting church services and undertaking church related services at all its churches and that the respondents be bound to keep the peace towards the applicant’s parishioners. As interim protection, the applicant seeks the same order as sought in the final order, and, in addition, that its possession and control of all the churches and the keys thereof be restored.
            The application was opposed by the 4 th and 5th respondents. The 1st, 2nd and 3rd respondents submitted themselves to be bound by whatever order the court makes in the matter. In opposing the application, the 4 th and 5th respondents raised a point in limine that the same dispute is before this court in another urgent application where judgement was reserved. Regarding the merits of the matter, the respondents argued that the applicant was never in possession of the churches and thus could not be despoiled. They further argued that there was never a time-sharing agreement between the parties in terms of which the applicant may have gained possession of or access to the church premises.
            The parties have been before the courts in a number of instances. To date, three other urgent applications under case numbers HC3208/07; 5637/07 and 6464/07 and a summons case under HC6544/07 have been brought by either of the parties since September 2007 giving the impression that the church has lost its focus and instead of fighting the good fight and seeking the kingdom of God first, church members are fighting each other and are seeking early power and control of church assets.
            The dispute between the parties has divided the worshippers in the church and reports of clashes between worshippers aligned to each side have been in the media. It is common cause that as a result of the unending clashes between worshippers of the church, the police called a meeting on 31 December 2007, where the two parties were requested to talk to each other and work out an arrangement where both sides would continue to worship at the same churches while maintaining peace towards each other. The applicant alleges that at this meeting an agreement was reached as to how the two sides would co-exist. The 4 th and 5th respondents deny that there was such an agreement and aver that the parties merely agreed to talk. The 1st and 2nd and 3rd respondents aver that they did broker an agreement between the parties on this day.
            While I am convinced that an agreement must have been brokered by the police on 31 December 2007, for reasons that follow, it is unnecessary that I be deterred by this dispute of fact.
            In case no HC3208/07, the 4 th respondent, acting under the Diocese of Harare, seeks an order from this court restraining the applicant before me and Retired Bishop Sebastian Bakare from conducting church services in church buildings controlled by the Diocese and from interfering with the ministry of the Diocese. The matter was filed prior to 31 December 2007 and thus does not cite the police nor seek to bind them in any manner.
            It is the above case that the 4 th and 5th respondents allege forms the basis of the plea in abatement that they take in limine.
            I am unable to agree with the 4 th and 5th respondents in this regard. The parties before me are different and the relief being sought against the respondent is wider than a restraining interdict in the sense that the applicant is seeking an order restoring possession of the church premises to it.
            On the basis of the above, I therefore decline to uphold the plea.
            Turning to the merits of the matter, Mr Moyo for the applicant argued that the application before me is for a spoliation order, namely that the applicant must have been in peaceful and undisturbed possession of the property and secondly, that it must have been deprived of such possession forcefully or unlawfully. This is trite.
            Regarding the issue of whether the applicant was in possession of the church premises throughout the diocese, Mr Moyo gave me three possible positions. The first is that the applicant had access to the church premises prior to 21 September 2007, the date on which the 4th respondent, acting on behalf of the Harare Diocese, broke away from the applicant. Secondly, he referred me to an averment in the opposing affidavit of Retired Bishop Sebastian Bakare under case no HC3208/07 to the effect that the church premises are always under the control of church wardens. Thirdly, I understood him to be saying that after the meeting of 31 December 2007, the applicant had the right to access and enjoy use of the church premises that was despoiled when on 13 January 2008, certain church services of the applicant were disrupted by the police in a manner that was clearly meant to uphold the claims of the 4 th respondent that his faction is the one in control and is the one that should minister to all worshippers.
            The hesitation of Mr Moyo in this regard was not lost to Mr Mtizwa who seized on it to strongly argue that the applicant never had control or possession of the church premises and could not have gained possession after the meeting with the police on 31 December 2007.
            I am constrained to find against the applicant in this regard. It is my view that the applicant has not laid out sufficient facts before me upon which I can find that it had possession of the premises and had that possession wrestled away from it by the actions of the police on 13 January 2008. Thus I am of the view that the applicant has approached the court for incorrect relief as on the facts before me it is not entitled to an order giving it control over the church premises and keys.
            It appears to me that the correct position is that the rights of the members of the church on each side of the divide to enjoy use of church premises pending determination of the suit determining which faction owns the churches and other assets of the Diocese was restated by the agreement of 31 December 2007 and the actions of the police on 13 January 2008 gave rise to a reasonable apprehension on the part of the applicant that such right was under threat. This in my view is what the evidence before me reveals. It is however not the case that the applicant argued. While it is not the case that the applicant argued, there is just sufficient information in the draft order and in the affidavits filed on behalf of the applicant to reveal that this in essence is the position of the applicant.
            I find the arrangement by the police to keep peace between the two factions and their attitude in this application quite commendable. In my view, even if there was no agreement reached between the parties as to how they would share time to use church facilities, the police finds that this arrangement will enhance its efforts in keeping peace between the two factions pending determination of the suit I have referred to above. It is not the purpose of this court to tie the hands of the court in its efforts to keep peace.
            On the basis of the above, I will hold that the applicant has a clear right to continue enjoying the use of the church premises. It is beyond dispute that the right of parishioners to use church premises in the days prior to 21 September 2007 when the church was united. It may have become doubtful after that date but was in my view restated by the arrangement put in place by the police on 31 December 2007. There is reasonable apprehension that the right may be under threat and thus there is need for the issuance of interim protection in the form of an interim interdict.
            In the result, I make the following order:
1.      pending determination of HC6544/07,
(a)    The 4th respondent and all those acting under his authority shall have use of the church premises at times previously slotted for such activities prior to 21 September 2007.
(b)   The 4th respondent and all those acting under his authority shall make church premises available to the applicant 90 minutes after its activities as detailed in (a) above.
(c)    The above time slots may be varied by the parties at parish level provided that such variation is reduced to writing and communicated to the 1 st, 2nd and 3rd respondents.
(d)   Both the applicant and all those acting under its authority and the 4 th respondent and those acting under his authority are not interfering with the activities of the other exercised in terms of this order.
(e)    Each party shall pay its own costs.
Gill, Godlonton & Gerrans , applicant’s legal practitioners.
Civil Division of the Attorney-General’s Office , 1st, 2nd and 3rd respondents’ legal practitioners.
Chihambakwe Mtizwa & Partners , 4th and 5th respondents’ legal practitioners.


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