JIYAMWA and OTHERS v UNITED BAPTIST CHURCH OF ZIMBABWE and OTHERS (52 of 2025) [2025] ZWMTHC 52 (22 September 2025)

1 HCMTJ52-25 HCMTC83/25 GODFREY JIYAMWA and JONAH LIBERTY MUCHAYI and MISHECK KUGODA MLAMBO and BLESSING FUNANI and RASHID FUNANI and CEDRIC MAPOMBERE and JOSHUA MUGANO and GLADMAN SITHOLE and SAMUEL MTEMA and MICHAEL MAKAYA and PETROS MUNGANA and MISHECK SEMWAYO and LINCOLN MUGANO and GIFT MAGODHINI and NORMAN MATENDE and RICHARD BWERUDZA and CAIPHAS DHLUMO and ALBANY SIMANGO and LYDIA TATIRA and WEAVER TSANGAMIDZI versus UNITED BAPTIST CHURCH OF ZIMBABWE and AUSTIN MABHENA N. O and IRVIN MOYO N. O and PETER MANZANGA and JOHN MAZUWA HCMTJ52-25 HCMTC83/25 HIGH COURT OF ZIMBABWE SIZIBA J MUTARE, 19 & 22 September 2025 OPPOSED APPLICATION Professor L. Madhuku, for the applicants Mr A. Muchadehama, for the respondents SIZIBA J: INTRODUCTORY REMARKS 1. Church disputes are now ubiquitous. With the proliferation of churches, we hear more of worship and praise here and there and in this we rejoice. At the same time, we tend to worry as we see more effort being exerted towards elbowing of one another for powerful positions of leadership and honor. There is a clamoring for the highest place. This goes along with the concomitant desire to earn more money from the offerings which the genuine and sometimes gullible believers would have putatively dedicated and sacrificed to the Almighty God who is the unblemished author of all peace, love, unity and harmony. This phenomena is a contradiction on its own. Surely something has gone wrong somewhere, and the best solutions for all this will not come from the courts of law but from a transformation of the human heart itself. There should be a proper philosophy about church business by both the shepherds and their flock. These church disputes are always a surprise to the society and also to the courts. The courts should therefore not be too quick to delve into church disputes if such disputes can be resolved through other internal channels or structures of governance which are provided for in the church canons. The reason for this approach is simple. Churches are voluntary organizations or associations that are sui generis in the sense that they profess the existence of the invisible God as their Supreme Leader. The courts are generally not well equipped to preside over spiritual disputes or issues of such kind and almost all of these church disputes have a spiritual element whereby members of a rival faction are usually labelled as being lost souls who are wondering somewhere in the wilderness following an equally invisible devil or Satan. Moreover, matters of faith and HCMTJ52-25 HCMTC83/25 worship revolve around the freedom of conscience over one’s religion and beliefs which is a very delicate and sensitive fundamental right. It should be therefore a last resort for a court of law to tell a church how to conduct its business matters, otherwise such an organization may cease to represent the faith of its founders as well as the faith of those who have been persuaded to join it for what it has been in the past. A court of law should always resist the temptation to attempt to improve any church organization by its pronouncements of the law when such course is unnecessary or avoidable. 2. The courts will only intervene in ecclesiastical disputes on rare occasions and in a manner that should be in sync with the fundamental principles of the particular church as expressed in its canons. In Tachiona v Bulawayo Seventh Day Adventist City Centre Church and Another HB 63/17, MATHONSI J (as he then was) expressed the following sentiments at p 1 of the cyclostyled judgment: “ In our law, while the courts have generally adopted what has come to be known as the “deference approach” to church disputes which is to say that there is judicial recognition of the decisions of the church’s highest hierarchical bodies on matters of discipline, faith or ecclesiastical rule, and in the absence of fraud, collusion or arbitrariness, the decisions of the proper church tribunals upon matters purely ecclesiastical, are accepted in litigation before secular courts as conclusive because the parties made them so by consent, there will always be judicial review of church decisions in situations were fraud, collusion or arbitrariness are alleged. See Independent African Church v Maheya 1998 (1) ZLR 552 (H); Watson v Jones 80 US (13 Wall) 679 (1871); Gonzalez v Roman Catholic Archbishop 280 US 1 (1929).” 3. The applicants filed this application on 17 April 2025 seeking declaratory orders and consequential relief as follows: “IT IS DECLARED: 1. That the National Committee of the 1st Respondent has no power whatsoever under the Constitution of the 1st Respondent to sit as a ‘vetting committee’ and disqualify members of the 1st Respondent who would have been duly nominated by the 1st Respondent's districts to contest for leadership positions at an elective National Assembly of the 1st Respondent. 2. That every individual member of the 1st Respondent who is duly nominated by one or more districts of the 1st Respondent as a candidate for a vacant position to be contested at an elective National Assembly is eligible to stand as a candidate and, if elected, to hold office in the 1st Respondent. HCMTJ52-25 HCMTC83/25 3. That the disqualification of candidates listed in Annexure 4 to the founding affidavit of the 1st Applicant which disqualification was a product of the exercise of a non-existent power of the National Committee of the 1st Respondent is a nullity. 4. That the National Executive Committee elections conducted by the 1 st Respondent on 29 March, 2025 at UBC Chikanga Church in Mutare and presided over by the 2nd Respondent, having been so conducted without the participation of other candidates who had been validly nominated but unlawfully disqualified, were null and void. 5. Additionally that the National Executive Committee elections conducted by the 1st Respondent on 29 March, 2025 at UBC Chikanga Church in Mutare and presided over by the 2nd Respondent, were null and void, for the reason that they were conducted in breach of the following provisions of the constitution of the 1st Respondent- Article 6.2.3 and Article 6.2.4.3. AS CONSEQUENTIAL RELIEF, IT IS ORDERED: 6. That the National Executive Committee elections conducted by the 1 st Respondent on 29 March, 2025 at UBC Chikanga Church in Mutare and presided over by the 2nd Respondent, having been declared null and void, are set aside. 7. That the 1st Respondent conducts fresh National Executive Committee elections at a duly convened National Assembly meeting within two months of this order. 8. That at the aforesaid fresh election referred in paragraph 7 above, all candidates who were duly nominated by the 1st Respondent's districts, including the candidates in Annexure 4 attached to the 1st Applicant's affidavit, shall be eligible to stand for office, and if elected, to hold office in the 1st Respondent. 9. That pending the conducting of the aforesaid fresh elections, the 2nd and 3rd Respondents shall revert to their positions of President and Vice-President respectively. 10. The respondents who opposed this order shall pay the costs of this application on a legal practitioner and client scale.” THE APPLICANTS’ CASE 4. The applicants have alleged to be members of the first respondent which is a church association governed by a Constitution. The second and third respondents are the former President and Vice President respectively who held those leadership posts in the first respondent’s organisation prior to the elective National Assembly which was held on 29 March 2025 wherein the fourth and fifth respondents were elected as President and Vice President respectively and they still hold such posts. The second to the fifth respondents have been cited as interested parties to the application. The applicants have petitioned this court to nullify the results of the elective National Assembly held on 29 March 2025 so as to have the old leadership revert to office to conduct a proper HCMTJ52-25 HCMTC83/25 elective National Assembly in compliance with the first respondent’s Constitution. The applicants allege that the elective National Assembly held on 29 March 2025 was null and void because the then National Committee led by the second and third respondents discarded the requirements of the Constitution and acted as they liked to facilitate the election into office of those individuals whom they desired to put into positions. The applicants allege that the then National Committee violated the Constitution by vetting and disqualifying delegates who had been nominated by the churches for the National Assembly which power did not derive from the Constitution. It is also alleged that the quorum was not met and that some delegates who were not entitled to vote did vote and that there were no proper ballot papers to preserve the integrity of the vote. The applicants therefore allege that these violations of the Constitution warrant the intervention of this court to nullify the meeting that was held on that date as a non event and order a fresh process to be done in compliance with the Constitution so as to preserve the rule of law in the organisation. 5. Just before the elective national Assembly was held, the applicants raised their misgivings about the vetting and disqualification of delegates by the National Executive Committee led by the second respondent but their calls were not acceded to. They also filed an urgent chamber application under HCMTC 68/25 which was served upon the respondents but the respondents went ahead with the meeting and thereafter, the case was struck off the roll as it had been overtaken by events. The applicants argue that there should be an authoritative interpretation of the organization’s Constitution in this regard for the benefit of the church’s future business. THE RESPONDENTS’ CASE 6. The respondents are opposed to the relief sought by the applicants. They raised four points in limine in their opposing papers. The first one is that the applicants have no locus standi to bring this application since they are not members of the first respondent’s organization. The respondents allege that in terms of the first respondent’s Constitution, the members of the organization are the local churches who are entitled to nominate delegates to the National Assembly. The local churches to HCMTJ52-25 HCMTC83/25 which the applicants belong have not raised any issues of such nature and hence the applicants have no capacity at law to raise such issues at an organizational level. The respondents argue that the organization which consists of more than ten thousand members cannot be disrupted by a few disgruntled individuals. The second point in limine is that the nominees who were vetted and disqualified from the National Assembly have themselves not complained apart from the third applicant. The third point in limine is that there are material disputes of fact which cannot be resolved on paper. These disputes especially relate to the issues of whether there was a quorum or not, the questions about who voted and who did not vote and the nature of the ballot paper. The fourth and final point in limine is that the application has been overtaken by events because some of the individuals who were by then qualified for election into church positions are not qualified by virtue of their current standing in the church. 7. On the merits of the case, the respondents deny that there was no proper quorum. They also deny that there are delegates who voted who were not qualified to vote. They also contend that the ballot paper was proper and that the voting was above board. The respondents argue that since 2004, the church organization has always allowed the National Executive Committee to do vetting and disqualification of nominated delegates. The issue was discussed and approved by the National Assembly in 2012. Some of those who now sympathize with the applicants benefited from such vetting and hence the applicants are estopped from making an issue out of this now. THE COURT’S APPROACH TO THE DETERMINATION OF ISSUES 8. At the hearing of the application, the parties agreed that this court should hear arguments on the points in limine and also on the merits so that the case can be disposed of either on the basis of the points in limine or on the merits. I will therefore begin by determining the points in limine and then proceed to the merits only if I find that all the points in limine are without merit. LOCUS STANDI OF THE APPLICANTS HCMTJ52-25 HCMTC83/25 9. Locus standi refers to the ability of a party to bring a case before a court of law. The settled position at law is that a party with a real and substantial interest in the matter is qualified to bring legal proceedings before a court of law. See Sibanda and Others v The Apostolic Faith Mission of Portland Oregon (South African Headquarters) SC 49/18. Since it is common cause that the first respondent (hereinafter referred to as the church organization) has a Constitution, it is proper to assess the question of locus standi of the applicants in the context of the Constitution of the church organization. 10. The Constitution of the church organization has been supplied by both the applicants and the respondents. It is titled ‘Constitution of the Association of United Baptist Churches of Zimbabwe (As amended by the 2023 Extra Ordinary National Assembly)’. The title of the Constitution itself reflects that the church organisation is an organisation of the Baptist Churches in Zimbabwe. Article 1.1 is explicit that the church organisation is composed of the local churches. The members of the church organisation are defined further in Article 4.1 as follows: “4. ARTICLE FOUR: MEMBERSHIP 4.1. The Members of the Association shall be Local Churches of the United Baptist Church. 4.2. Local Churches shall be divided into the following categories: 4.2.1. Large Churches being organised churches with one hundred and fifty or more active members. 4.2.2. Medium Churches being organised churches with more than fifty but less than one hundred and fifty active members. 4.2.3. Small Churches being organised churches with less than fifty active members. 4.3. Other rules and regulations governing the operations of Local Churches are as set out in Part Three of this constitution, hereto appended.” 11. The Constitution of the church organization shows that the local churches are the ones who have a right to call for Extra Ordinary Meetings of the National Assembly. A minimum of ten local churches have the power to call for an Extra Ordinary Meeting of the National Assembly. See Article 5.2.2. All these local churches also have a right to be notified of any meetings at national level. See Article 5.3. The National Assembly is the highest decision - making body in the church organisation. See Article 6.2.1.1. It is composed as follows: HCMTJ52-25 HCMTC83/25 “6.2.2. Composition of the National Assembly The composition of the National Assembly shall be as follows: 6.2.2.1. Delegates from Member churches in the proportion of three delegates from each Major Church, two delegates from each Medium Church and one delegate from each Minor Church, all such delegates together being hereinafter referred to as “registered delegates”. It shall be more desirable if those in the local church Leadership be registered delegates to the National Assembly. 6.2.2.2. All pastors, evangelists and other full time church workers in the Association. 6.2.2.3. All National Committee members. 6.2.2.4. All Church workers who give reports. 6.2.2.5. All Associate members, i.e. those we work in partnership with 6.2.2.6. All District stewards. 6.2.2.7. All Church Department Heads 6.2.2.8. Observers i.e. UBC members who are in good standing. 6.2.2.9. All invited guests. 6.2.2.10. All Heads of Subsidiary bodies.” (Emphasis added) 12. The member churches to the church organization are the ones who are entitled to vote in the National Assembly. See Article 7.5. Part two in the Constitution then deals with District Assembles which conduct business sessions composed of all local churches in a given District. There are also District Committees which are constituted by the members of churches in a particular District. The individuals or natural persons are addressed under Part Three of the Constitution. This part provides as follows: “2. MEMBERSHIP 2.1 Application for Membership Any person may apply for membership who has confessed faith in the Lord Jesus as Saviour and who has given satisfactory evidence of a change of heart, and who agrees with the Basis of Faith and the Church Covenant. He may, if baptised or upon baptism, be received as a member of this Church.” 13. This part deals with individual members who form a local church. These natural persons have a right to vote in a local church business meeting as follows: “3.4 VOTING RIGHTS. Members on the Active Roll, seventeen years of age or older, may vote in Church business meetings. Other members may speak, but only by invitation.” 14. In the local churches, there is a Board of Elders which is elected at annual meetings. This Board of Elders has a chairperson who presides over or chairs all board or church HCMTJ52-25 HCMTC83/25 meetings in the absence of a church pastor. There is also a Board of Deacons at every local church. Paragraph 3.5 on this part provides as follows: “3.5 MATTERS TO BE CONSIDERED. All matters to be presented to the Church for a vote must first be discussed and recommended by the Board of Elders.” 15. Part four deals with principles and practices of the United Baptist Churches and the first of these principles is as follows: “1. BIBLICAL PRINCIPLES 1.1 The Principles and Practices of the United Baptist Churches are not a substitute for the Word of God. Their object is to ensure that in the life and witness of the Church all things are done decently and in order. 1 Corinthians 14:40.” (Emphasis added) 16. The Constitution of the church organisation shows that the church organisation follows or adopted a representative style of governance whereby key decisions that are made at the highest level in the National Assembly are made by registered delegates who are nominated and authorized to attend on behalf of local churches who are themselves members of the church organization. As such, it follows that such decisions at national level reflect the wishes of the local churches who are themselves composed of individual members of the faith or natural persons. The number of delegates which represent each local church depends on the size of the membership in that church. The question which then arises is whether in such an orderly, united and representative set up, individual members of different local churches have any capacity to raise issues of national interest in the church organization independent of the local churches themselves who are the members of the church organization. The answer is simply in the negative. The orderliness of the church organization as reflected in its Constitution makes it possible and desirable that all issues that affect a local church be agitated, discussed, resolved and adopted at that local church first before they are escalated above that level. In this particular instance, the applicants’ grievance is chiefly about the conduct of the respondents in holding the church organisation’s last elective National Assembly. It is the local churches that nominated and seconded their delegates there and it is these local churches that have voting rights in the business of HCMTJ52-25 HCMTC83/25 the church organization. After that, some of their nominated delegates were vetted and disqualified by the National Committee wrongly or correctly. The minutes of the National Executive meeting held on 8 to 9 November 2024 reflects that the Districts which nominated Reverend P. Matsatswa and Bishop Chimbijana were asked to nominate other candidates. It is not clear whether they complied to do so or not. Nothing prevents the local churches themselves either individually or collectively as the affected members of the church organization to seek audience with the National Executive or to approach the courts of law over these grievances. 17. In terms of the orderly structure of governance in the church organisation and in these local churches, the resolutions of such nature should emanate from the local church business meetings and the agenda thereof should be deliberated upon and approved by the Board of Elders first. To allow the applicants to emerge disjointedly from different individual churches purporting to advance the interests of their local churches and or their own interests on issues of national church interests without any proven buy-in by their local churches, their local pastors, their local Board of Elders and the affected District Assembles would be contrary to the spirit of orderliness that characterizes the church organisations’ Constitution. Such conduct which is being engaged upon by the applicants is clearly illegitimate and divisive to the church organization and it should be frowned upon by this court. They should rather go back to agitate their cause in their local churches until they convince their local churches in the relevant business meetings so that no individual interests shall be agitated before the courts of law to the detriment of unity and orderliness in those local churches. It may be embarrassing after all to find that perhaps the very affected local churches may not support what the applicants are doing. In any event, a minimum of ten of those local churches can call for an Extra Ordinary National Assembly which can effectively reject the election of the current church organization’s leadership or amend the Constitution without the intervention of this court. According to Professor Madhuku’s submission, such an Extra Ordinary Assembly cannot deal with the issue of elections since those elected into office must hold office for a term of five years. On the other hand, Mr Muchadehama submitted that in terms of the Constitution of the first respondent, the Extra Ordinary Assembly can deal with any business or agenda. He is correct. Clause 5. 2 to 5.2.2 of the church organisations’ Constitution provides as follows: HCMTJ52-25 HCMTC83/25 “5.2. Extraordinary General Meetings 5.2.1. Extraordinary Meetings of the National Assembly may be called by the National Committee for any necessary purpose deemed necessary. 5.2.2. Extraordinary Meetings of the National Assembly may also be called on the requisition of not less than ten Members of the Association specifying the business to be considered and given to the General Secretary in writing. The Secretary shall give notice of a meeting validly requisitioned by Members within fourteen days of his receiving the requisition in writing.” (Emphasis added) 18. The literal construction of clause 5.2.2 shows that ten churches of the church organisation are entitled or able if they so wish to call for an Extra Ordinary meeting of the National Assembly and push any agenda including the agenda of nullifying the past elections. The National Committee of the church organisation has no absolute power above the local churches, the local churches are able to call it to order if they so wish and such course will be the most desirable approach to keep the individual worshippers, local churches as well as the church organisation united and orderly as expressed in its Constitution. This is not to say that the applicants have no worthy cause. It is simply to say that there are internal channels that bind them in their church organization and local churches which channels must be followed in the interests of orderliness and harmony as provided for in the Constitution. The applicant’s locus standi cannot be divorced from the spirit and letter or context of the church organisation’s Constitution. For these reasons, I therefore hold that the applicants have no locus standi to bring this application. This point in limine has merit. NOMINEES NOT COMPLAINING 19. As for the nominees, it is common cause that the third applicant is the only nominee who is among the applicants. From the findings that I have already made above, the only proper complainants for purposes of this application should have been the local churches and District Assembles who have voting rights in the church organization and HCMTJ52-25 HCMTC83/25 also the rights to nominate and forward delegates to the National Assembly and who also have membership in the church organization. The nominees on their own would suffer the applicants’ fate as non - members of the church organization who only represent the local churches only for the purposes of transacting the business that they have been sent to do at the National Assembly, nothing more and nothing less. Their individual complaints would not change the complexion of this application. This point in limine has no merit. MATERIAL DISPUTES OF FACT 20. The disputes of fact relate to the issues of whether there was a quorum or not at the elective National Assembly of 29 March 2025. There is also a question as to who voted and who did not vote and whether such voters were entitled to vote in terms of the Constitution. Both parties did not attach any attendance register with a list of those who attended the elective National Assembly. The arguments about the numbers of the attendees and the capacities in which they attended cannot be resolved on paper but in a trial. The same applies to arguments about the nature and quality of the ballot paper and whether the ballot paper that was used was in compliance with the requirements of the Constitution. Professor Madhuku submitted that if this court finds that the vetting of nominees was a violation of the Constitution, the applicants’ cause can succeed without the need to determine the other issues that may require a trial. The problem with such an approach is that the applicants have not withdrawn their contentions relating to the disputed facts which require a trial and a failure to determine such issues by this court upon a determination of the merits of the application would be an irregularity warranting a rehearing of the case. See Nzara and Others v Kashumba N. O and Others SC 18/18. This preliminary point therefore has merit to the extent that if it was not for the point in limine on locus standi which goes to the root of this matter, a referral of the matter to trial would have been proper. The submission by Mr Muchadehama that the material dispute of facts warrants a removal of the matter from the roll is not persuasive to me as such course would still leave the matter unresolved. This is not a preliminary point that goes to the root of the matter. HCMTJ52-25 HCMTC83/25 APPLICATION OVERTAKEN BY EVENTS 21. This point in limine is premised on the argument that some of the persons who were qualifying for appointment to certain offices by virtue of their position as at 29 March 2025 when the elective National Assembly was held have now vacated those offices. This argument is divorced from the relief sought by the applicants. What the applicants want is to have this court invalidate the proceedings of the elective National Assembly such that it is deemed as not having occurred. After that invalidation, a new elective National Assembly would then be held. The changing of church posts does not make such relief impractical. This point in limine has no merit. CONCLUSION 22. A proper interpretation of the church organization’s Constitution favours a less liberal approach by this court on the question of locus standi. The applicants who are not members of the church organization and who have no right to vote in their individual capacity in its business affairs at national level without being delegated that right and function by their local churches have no locus standi to bring this case before this court. The internal channels provided for in the Constitution whereby the applicants can voice their concerns and vote at the business meetings of their local churches where they are members until the particular concerns are escalated by their local churches to the National Assembly will preserve the peace, order and harmony of the church organization. To entertain the applicants in agitating perceived interests of the local churches as individuals would be to let all the hell break loose and open the door for confusion and disorderly behaviour which is contrary to the church organization’s principles. In view of the above considerations, I therefore order as follows: (a) The point in limine that the matter has been overtaken by events is hereby dismissed. (b) The point in limine that the nominees have not complained is hereby dismissed. (c) The point in limine that there are material disputes of fact succeeds only to the extent that the matter would have been referred to trial in the event that a consideration of the merits was necessary. (d) The point in limine that the applicants have no locus standi is hereby upheld. HCMTJ52-25 HCMTC83/25 (e) The application is accordingly dismissed with costs. Lovemore Madhuku Lawyers, applicant’s legal practitioners Mbidzo, Muchadehama and Makoni, respondent’s legal practitioners