Twelve Apostolic Church of Christ v Kikins & Ors (HB 6 of 2017; HC 1976 of 2015) [2017] ZWBHC 6 (12 January 2017)

1 HB 06/17 HC 1976/15 TWELVE APOSTOLIC CHURCH OF CHRIST Versus PHYSANT HEADMAN KIKINS And AUGUSTINE ROBSON MAFU And BHEKINKOSI MHASO IN THE HIGH COURT OF ZIMBABWE TAKUVA J BULAWAYO 14 OCTOBER 2016 & 12 JANUARY 2017 Opposed Application Advocate L. Nkomo for the applicant Mrs C. Bhebhe for the respondents TAKUVA J: This is an application for confirmation of a provisional order granted by this court per KAMOCHA J on 29 July 2015. The interim relief granted reads as follows: “Pending the finalisation of this matter, the applicant shall be granted the following relief: 1. The respondents be and are hereby interdicted from using the applicant’s name, colours, logo and assets in the conduct of their business. 2. The respondents be and are hereby the administration of the applicant, particularly from purporting to act as officers of the applicant, or collecting money from applicant’s members. interdicted from interfering with 3. The respondents be and are hereby interdicted from writing letters or holding meetings with the applicant’s members. 4. The bank account ZB Bank account number 4307-158813-200 be and is hereby frozen pending finalisation of this matter.” The terms of the final order are that: “The provisional order granted by this honourable court be confirmed in the following manner:- HB 06/17 HC 1976/15 1. The respondents’ letters of 18 May 2015 and 6 July 2015 be and are hereby declared to be a legal nullity. 2. The respondents be ordered to pay costs of suit at an attorney-client scale.” At the hearing of this matter Advocate Nkomo applied to amend paragraph (a) of the draft order by deleting paragraph (a) and substituting the following paragraph: “(a) The interim relief granted to the applicant be and is hereby confirmed as final”. The application was granted resulting in the amendment of the draft order. The facts are that the applicant is a church, established according to Article 11 of the Constitution in terms of Luke 6 v 13 and Ephesians 2 v 20, 21. This constitution is duly registered with the Registrar of Deeds. The 1st, 2nd and 3rd respondents are members of this church. The deponent to the founding affidavit one Aleck Francis Dube is the Chairman of the Board of Trustees. It appears a schism has arisen within the applicant whereby the 1st respondent now calls himself the “Acting Archbishop” while the 2nd respondent signs documents as the “Ex-Board Chairman” and the 3rd respondent purports to be the “Secretary-General”. Having acquired their new titles, the 1st respondent was so excited that he decided to flex his muscles by dismissing the chairman of the Board of Trustees and the Clerk of the Board of Trustees one Bishop Manners Aron Ngwenya from their lawfully appointed senior posts in the church. In dismissing the two, the 1st respondent was so brazen that he put pen to paper and wrote: “DATE: 18 May 2015 NOTICE OF DISMISSAL BISHOP ALECK FRANCIS DUBE REF: TO: Dear Bishop HB 06/17 HC 1976/15 Following the resolution passed at an extra ordinary meeting held by the Twelve Apostolic Church of Christ Board of Trustees members, Executive Board, Ministers, Church elders, Deacons and Women’s League, all sub-quarters represented (Zimbabwe, South Africa and Botswana) on the 16th of May 2015, it was agreed that the Board of Trustees office be dissolved with immediate effect. You are hereby advised that you have been relieved from your duties as chairman of the board of trustees and any church related matters. Reasons for your dismissal include violation of church doctrine and making decisions without consultation or authority. Yours in Christ Acting Arch Bishop Physant Headman Kikins” (my emphasis) Bishop Manners Aron Ngwenya received a similar letter. Despite being warned by applicant’s legal practitioners that the meeting of the 16th of May 2015 was a nullity for want of compliance with the church’s constitution, the respondents would not listen. Instead, they opened a new savings bank account number 4307-158813-200. Further, they requested all districts to pay US$50,00 and R1 000,00 from sub-quarters. Disturbed by these numerous interferences, applicant approached this court on an urgent basis and obtained the order referred to earlier. The respondents opposed the confirmation on the following grounds: 1. The chairman of the board of trustees has no locus standi in these proceedings. 2. The meeting of the 16th May 2015 was properly sanctioned and the resolution passed at that meeting is valid. 3. The break-away group is that involving the chairman and the clerk; and 4. The appointment of the 1st respondent as the acting Archbishop is lawful. As regards the 1st ground, the dispute centers on the interpretation of Article IX (E) (a) of the applicant’s constitution which states; HB 06/17 HC 1976/15 “(a) The chairman, vice chairman and the clerk of the board are, in terms of the constitution empowered to sign, execute, complete any deed and or documents of the church relating to any other matter under the administrative care or control of the board, and all deeds and documents so signed shall be deemed and construed to be a good and sufficient authority for the purpose therein prescribed by a Registrar of Deeds or any other public official or any other person.” The respondents contend that this provision does not empower the chairman of the board of trustees to institute legal proceedings on behalf of the applicant as the clause relates “to the holding of the property which may have been acquired or will be acquired.” On the other hand, the applicant contends that the power conferred by paragraph (E) sub-paragraph (a) thereof is to institute legal proceedings on behalf of the applicant in matters connected with the administration of the church. The first point to note is that the locus standi of a voluntary association derives from the provisions of its charter or constitution, either expressly or impliedly – see Christian Faith Tabernacle v Sparrows Nest Ministries 2009 (2) ZLR 15 (H). In casu, the applicant according to its constitution has perpetual succession viz continued existence or identity despite changes in its membership. It also has the capacity to acquire rights and incur obligations independently of its members, in particular the capacity to own property. I associate myself with PATEL J (as he then was) when he stated in the Christian Faith case supra that: “Where the constitution endows the church with the capacity to do everything necessary to effectuate its objectives, including by implication the power to advance and protect its property rights, the power to sue must perforce be implied as being necessarily incidental to its express powers for the due carrying out of its express objects.” It therefore follows that the applicant has locus standi in these proceedings. The question of whether or not the deponent to the founding affidavit, Bishop Aleck Francis Dube who is the Chairman of the Board of Trustees has authority to represent the applicant must be considered within the contextual circumstances bedeviling the applicant and its constitutional provisions. In terms of Article IX (E) (a) of the applicant’s constitution, the chairman of the board of trustees is mandated to deal with matters under the “administrative care or control of the Board …”. It is HB 06/17 HC 1976/15 common cause that respondents have interfered with the proper administration of the applicant, its property and membership by opening a new bank account where they are signatories and inviting applicant’s members to deposit money into that account. The respondents ‘ argument that this Article only relates to property is misplaced in that property includes money as shown in Article IX (E) (b) that states: (a) All monies, funds or securities in the form of a gift endorsement, or bequeaths and all other property which may be acquired for or on behalf of the church shall be paid to and held and administered by the Board of Trustees, and not in the name of any office –bearers of the church or in the name of any person acting on its behalf; all such office-bearers shall give effect to the provision of this clause so far as they are thereby affected.” (my emphasis) It is precisely because the Board of Trustees is endowed with this power that it was “dissolved” by the respondents whose spiritual vision has been blurred by the seeming struggle for supremacy in the material world. Also, the respondents have dissolved an institution that is a creature of the constitution without first amending the constitution. Not only that, they have proceeded to dismiss office bearers. All these issues fall under the jurisdiction of the Board of Trustees in that they are administrative in nature and scope. As regards the chairman’s competence to swear to an affidavit, Order 32 r227 (4) (a) of the High Court Rules 1971 is pertinent. The rule states: “4. An affidavit filed with a written application – (a) shall be made by the applicant or respondent, as the case may be or by a person who can swear to the facts or averments set out in therein; and (b) …”. (my emphasis) The chairman of the board of trustees is a bishop in the applicant. As such, he has the capacity to swear positively to facts set out in his affidavit concerning the applicant’s affairs. HB 06/17 HC 1976/15 The respondents argued that the meeting of the 16th May 2015 was properly sanctioned in that it was held after agreements reached on 28 February and 28 April 2015 to postpone it to the 16th May 2015. There was, however, a concession that the meeting was not convened in terms of Article X (c) but in terms of Article X (b) of the constitution. Meetings of the applicant are provided for in Article X of its constitution. Paragraph (a) deals with the Annual General Meeting where members receive reports from the retiring executive, balance sheet and statements of revenues and expenditure. It is also tasked to elect a new executive and members and generally to attend to all business which may be brought before it. Paragraph (b) deals with a “General meeting of the members” for the purposes of discussing all matters pertaining to the church and any matters which may be submitted by any of the members. The Article clothes the chairman of the board of trustees with the authority to convene meetings. The power is contained in paragraph (c) which states “Upon the signed requisition of not less than 15 (fifteen) members, the board of trustees’ clerk with the instruction of the board of trustees chairman shall within 14 (fourteen) days convene a special General Meeting of members for the purpose set out in the requisition.” (my emphasis) Also, a meeting of the executive must be convened by the chairman – see Article X (d). Finally, paragraph (e) states; “The Chairman shall have the right at any time, on requisite notice to convene a meeting either of the executive or the members.” Quite clearly, the 1st respondent is not one of those people authorized to convene meetings. Notwithstanding this clear position, the 1st respondent is the one who sent invitations – see p 85 paragraph 3 of the record. Not only that, he is the one who personally dissolved the board of trustees and the minutes show on page 90 that “the house shouted in seconding.” The constitution does not provide for such conduct. It is clearly unlawful. For these reasons, I find that the meeting of the 16th of May 2015 was unlawfully convened and its results are a legal nullity. The question of which group broke away is neither here nor here. The crux of the matter is not about numbers in each group but about complying with the constitutional provisions by all HB 06/17 HC 1976/15 members. As regards the appointment of 1st respondent as the “Acting Archbishop”, it is apparent that in terms of the constitution, there is no such post. The Archbishop cannot unilaterally appoint another person to act in his stead and behalf. It does not assist 1st respondent to cite “tradition” which is ultra vires the constitution. In terms of clause X (E) (9), a member of the Board of Trustees can only be relieved of duty at the Annual General Meeting. Now, the meeting of the 16th May 2015 was not an Annual General Meeting. It was purportedly an extra-ordinary meeting which can only be called in terms of Article X (c) of the constitution. Hence, the meeting could not dismiss members of the Board of Trustees. Consequently, the resolutions passed in that meeting are void ab initio. The other ground upon which 1st respondent relies on for his appointment as Acting Archbishop is that he was appointed by the Archbishop who is currently unable to fulfill his duties due to ill-health. First respondent then attached an affidavit by the Archbishop “blessing” him to run the affairs of the applicant. However, this affidavit has numerous defects which have been conceded to by the respondent’s legal practitioner. Some of these defects are the following: (a) There is no name below the deponent’s signatures; (b) There is no indication of whose thumb print is on the document. (c) The year is put as 2011 and yet it refers to events that occurred in 2015. (d) The deponent who is a lay person uses legal terms like null and void in its contents (e) There is no indication of which commissioner commissioned it as there is no name or stamp. (f) The signature is different from the one onpage 75 which was also purportedly signed by the Archbishop. I should hasten to point out that the second affidavit on page 75 is also affected by all the defects referred to above. Due to these defects the two affidavits are invalid and cannot prove 1st respondent’s depositions. Even assuming that the 1st respondent had authority, his conduct in dismissing the two bishops suspected of misconduct without giving them an opportunity to defend themselves contrary to rules of natural justice is clearly illegal and unconstitutional. HB 06/17 HC 1976/15 Consequently, it is ordered that: (a) The interim relief granted to the applicant be and is hereby confirmed as final. (b) The respondents’ letters of 18th may 2015 and 6 July 2015 be and are hereby declared to be a legal nullity. (c) The respondents to pay costs of suit. Messrs R. Ndlovu & Company, applicant’s legal practitioners Messrs Coghlan & Welsh, respondents’ legal practitioners