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Civil Appeal No. SC 180/09 & SC 130/10

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Civil Appeal No. SC 180/09 & SC 130/10 Judgment No. SC 48/2012 1 Civil Appeal No. SC 180/09 & SC 130/10 REPORTABLE ZLR (34 ) THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA v THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE SUPREME COURT OF ZIMBABWE MALABA DCJ, ZIYAMBI JA & OMERJEE AJA HARARE, OCTOBER 22 & NOVEMBER 19, 2012 A P de Bourbon SC, with him T Mpofu, for the appellant T M Kanengoni with him C Nyika, for the respondent MALABA DCJ: There are two appeals against judgments of the High Court. The first decision appealed against is in case No. HC 4327/08 whilst the second appeal is against the judgment in case No. HC 6544/07. Both decisions were made by the same judge. At the centre of the dispute in each case is the question whether those people who had been members of the Board of Trustees for the Diocese of Harare relinquished the right to control the appellant’s property on 21 September 2007. Put differently, but directly, the question raised by both appeals is; did those people who had been members of the Board of Trustees for the Diocese of Harare withdraw their membership from the appellant and ipso facto resign their offices thereby losing the right to control its property such as church buildings, houses, schools, motor vehicles and funds in banks? The appellant shall hereinafter be referred to as “the Church”, or “the Province” or “the Appellant Church” as the context permits. Judgment No. SC 48/2012 2 Civil Appeal No. SC 180/09 & SC 130/10 Who are the parties involved in the dispute over the right of control and occupation of the property? The Appellant Church is a voluntary association of members whose main objective is to hold the faith of Jesus Christ and act in accordance with the doctrines in which it is embodied. The Church was formed on 8 May 1955, out of four dioceses of Northern Rhodesia, Nyasaland, Mashonaland and Matabeleland under the terms and provisions of the Constitution contained in what is known as the ‘Green Book’. The first two dioceses had previously fallen under the administrative jurisdiction of the Church of the Province of Cape Town, headed by the Archbishop of Cape Town. The other two had formed the administrative area of the Church of the Province of Canterbury, under the Archbishop of Canterbury. The preamble to the Constitution of the Church (“the Constitution”) recites that it was established to cover the dioceses to strengthen it in the work of “witnessing in Central Africa the redemption wrought for all men in Christ”. Today “the Church” has as its administrative area the whole of the four countries of Botswana, Malawi, Zambia and Zimbabwe under the control of an ecclesiastical authority headed by an Archbishop. The terms and provisions of the Constitution and the Canons under the authority of which they are made show the following. The Church is made up of clerical as well as lay members who are voluntarily associated together. They all hold the faith of Christ as taught in the Holy Scriptures, preached by the Apostles and expressed in the doctrines, sacrament and discipline in the public worship of God according to the principles set forth in the Book of Common Prayer. It is by the Constitution, which constitutes an agreement between members, that the faith by which all those people who choose to take up membership of the Church and the standards in accordance with which they undertake to act is revealed. The standards and Judgment No. SC 48/2012 3 Civil Appeal No. SC 180/09 & SC 130/10 principles which govern specific matters of worship, government and discipline in the Church all relate to and find ultimate justification in conformity with the faith and the doctrines by which it is expressed. It goes without saying that membership of the Church is a public confession of the faith of Christ. It is a declaration of commitment to act at all times and places in accordance with the doctrines and the mutual rules of the Constitution. That is the contract in terms of which each person binds himself or herself to others as a member and office-bearer in the Church. It is by reference to adherence to the unity of the doctrines and the rules as the standard of behaviour that any religious group of people can lay claim to being described or identified as part of the Church. In terms of Article 2 of the Constitution, the Church is under the general authority of the Archbishop who sits in the Provincial Synod. This is the legislative body of the Church dealing with the making of rules for the order, good governance, worship and discipline in the Province. The Provincial Synod is made up of Bishops of the Province, Clergy and Laity who are communicants. The Archbishop also sits in the Episcopal Synod. This is a body dealing with matters of faith such as the preservation of the truth of the Church’s doctrine, the purity of its life and the worthiness of its worship. The Episcopal Synod is made up of Bishops of the Province only. The Archbishop who presides over the two bodies administers all the functions of the Church to members in the dioceses through Bishops who are the heads of the dioceses. A Diocesan Bishop is elected or chosen from among the male communicants of any diocese who are over 21 years of age. He is a member of and presides over the proceedings of the Diocesan Synod. He also administers property rights owned by the Church through a Board of Trustees which he heads. Under the supervision of the Archbishop a Diocesan Bishop is “chief in Judgment No. SC 48/2012 4 Civil Appeal No. SC 180/09 & SC 130/10 superintendency” in matters ecclesiastical within the diocese. Members of the Diocesan Board of Trustees are appointed by the Diocesan Synod. The Archbishop is also a Bishop of a diocese. He is elected to the office in accordance with the Canons of the Church. In terms of the Constitution, every member, including Bishops, is bound to obey the lawful directions and instructions of the Archbishop and give to him due obedience. The powers exercised by the Archbishop through the two organs of the Church are limited to ecclesiastical matters as distinguished from temporal affairs. There is obviously a condition implied that the powers shall be used bona fide for the purposes for which they are conferred. It is declared as one of the fundamental principles of the Church and therefore binding on individual members that: “In conformity with Christian doctrine, the Church of this Province proclaims the equal value of all men before the righteous Love of God, and while careful to provide for the special needs of different peoples committed to its charge, allows no discrimination on grounds of racial difference only, in the membership and government of the Church”. (Fundamental Declaration III). As at 4 August 2007, the Diocesan Bishop of Harare was the Rt. Reverend Dr Nolbert Kunonga. He was a member of the Board of nine Trustees responsible for holding, managing and using Church property in trust and on behalf of the Province. Article 20 as read with Article 23 of the Constitution requires that all movable or immovable property of the Church be held, managed or used by the Trustees in trust for and on behalf of the Province. That applies even to Diocesan Boards of Trustees appointed by Diocesan Synods. The management Judgment No. SC 48/2012 5 Civil Appeal No. SC 180/09 & SC 130/10 of Church property held by a Diocesan Board of Trustees is required to be in accordance with rules made by the Provincial Synod. Under Article 18 of the Constitution the Provincial Synod have the full power and authority to determine in what manner and upon what conditions such property shall be used or occupied. Under Article 24 no-one is allowed to be admitted to any office in the Province or be entitled to receive any income, emolument or benefit from or out of any property held under the authority of the Provincial Synod unless he or she has signed a declaration of submission to the Canons or Rules of the Province relating to such office. The respondent is made up of Dr Kunonga who was the Diocesan Bishop of Harare and those people with whom he constituted the Board of Trustees for the Diocese of Harare before 21 September 2007. They claimed that they remained in those positions after that date with the right to hold Church property. What then brought about the situation in which the dispute over the right of control and occupation of Church property arose? A debate which had started in the Church sometime back on the question whether homosexuality was being tolerated by the ecclesiastical authorities reached crisis point in Zimbabwe on 4 August 2007. This was an emotional subject over which different opinions were bound to be held by different members of the Church who engaged in the debate. Dr Kunonga and his followers held very strong views on the question of tolerance of homosexuality. Judgment No. SC 48/2012 6 Civil Appeal No. SC 180/09 & SC 130/10 They approached the debate on the assumption that homosexuality as a practice was being tolerated by the authorities in the Church. Whilst not conceding that homosexuality as a practice was tolerated in the Church, the other side argued that all men and women are God’s children. The effect of the argument was that even if some men are homosexuals they remain human beings entitled to be treated with dignity as long as they do not practice homosexuality in Church or in violation of the law of the land.
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