BETHLEHEM APOSTOLIC CHURCH v CHIRUMBWA and OTHERS (407 of 2025) [2025] ZWHHC 407 (8 July 2025)

3 HH 407-25 HCH 4163/24 BETHLEHEM APOSTOLIC CHURCH versus REPHIO CHIRUMBWA and TINASHE MASIKATI and JOHN MUHOMBA HIGH COURT OF ZIMBABWE TAKUVA J Harare, 20 January & 08 July 2025 Court Application for an Interdict N Mugiya, for the applicant T S Nyawo with L C T Dzoro, for the first and second respondents W Musikadi with K Chikonangombe, for the third respondent TAKUVA J: This is a court application for an interdict where the applicant seeks the following order: “The first to third Respondents and all those claiming through them be and are hereby barred from accessing Stand No. 33784 Caledonia Harare without the express consent of the ApplicantThe first to third Respondents and all those claiming through them are hereby ordered not to interfere with the Applicant's control, use and administration of its church whatever manner.The first to third Respondents and all those claiming through them be and are hereby ordered to stop all forms of stands and land allocations either to themselves or third parties or their supporters forthwith.The first to third Respondents and all those claiming through them are ordered to release and return to the Applicant the following assets; i) 37 chasis ii) 2 shovels iii) 2 hoes iv) 4 curtains v) Church deco cloths vi) A11 church documents forthwith or at least not later than 48 hours from the date of this order. The first to third Respondents be and are hereby ordered to pay costs of suit on a client - attorney scale, jointly and severally one paying the others to be absolved.” BACKGROUND FACTS The applicant in this matter is a church, governed and administered by its constitution. The respondents are all male adults. The dispute that brought these parties to court is centered on leadership and management of the church’s assets. The church encountered a dispute which led to its division into two factions. To resolve this dispute, TSANGA J under case number HC 3350/17 ordered the church to hold elections according to its constitution, to determine its rightful leader. The applicant’s bishop according to the church’s elections of 24 February 2018 was declared to be one Mr Gemu. This election was followed up by the expulsion of the opposition faction of the church that was led by the first respondent. The first respondent, however, proceeded to challenge the election under case number HC 9055/19 wherein MUSITHU J granted an order in favour of Mr Gemu and the first respondent’s claim was dismissed. The applicant claims that what has led to this application is the continued use of its church premises by the first respondent despite being instructed to leave. The applicant also claims that the respondents are in possession of their assets as listed in the draft order. There is also the issue of leasing part of the church premises to an unregistered school called Findale Academy, that the applicant claims the respondents facilitated and are profiting from. It is on this basis that the applicant seeks an interdict order from this court. On the other hand, the respondents are of a different view thus opposing this application. The first and second respondents challenge the application stating that it is an abuse of court thus it ought to be dismissed. They are of the view that the application constitutes res judicata as the dispute between the parties was settled in HC 9936/19. The third respondent bases its opposition on its claim that the applicant has established no clear right to back the relief it seeks from this court. All the respondents also deny being in possession of the assets claimed by the applicant. This court shall deal with the point in limine raised that is dispositive of this matter. The first and second respondents claim that the applicant has no locus standi to seek the intended relief. They claim that the applicant only possesses a personal right and cannot be allowed to evict or interdict a trespasser. The requirements of an interdict are set out clearly in the case of Setlogelo v Setlogelo 1914 AD 221 at 227 wherein it was held that: “In order to succeed in obtaining a final interdict, whether it be prohibitory or mandatory, an applicant must establish: (a) a clear right; (b) an injury actually committed or reasonably apprehended; and (c) the absence of similar or adequate protection by any other ordinary remedy.” ZHOU J further interpreted the meaning of a clear right as follows: “Whether the applicants have a clear right is a matter of substantive law; whether that right is clearly established is a question of evidence. The right which is sought to be protected through the interdict must thus be a legal right. The evidence tendered must prove on a balance of probability the existence of a right which exists in law, be it at common law or statutory law, which can be protected. In the case of Starke, NO v Schreiber [2001] 1 All SA 167(C) at 174, it was held that “in order to establish a ‘clear right’ . . . the applicants must prove, on a balance of probability, that they are legally entitled to prohibit the respondents…” See also Mujokeri & Anor v Apostolic Faith Mission in Zimbabwe & Ors HH-372-18. The very first requirement for one to seek an interdict is a clear right. Zhou J clearly demonstrates what this means and this ought to shed light to the applicant that it holds no right as described. As the respondents rightfully state, the applicant has no right to either evict or interdict them. The applicants should be guided in that the election served to declare the bishop and leader of the church but not the owner of the land the church is positioned. Due to this fact, it is only the owner of the land, in this case, Minister of Local Government and Public Works that can initiate proceedings to evict the respondents. The applicant has not placed before the court anything to prove its legal right as illustrated by Zhou J. The applicant is therefore misdirected in its heads of arguments wherein it argues that in seeking an interdict the right merely must be a legal one. There is need to tender evidence before the court to support the existence of this legal right before the court grants the interdict. The court therefore agrees with the respondents’ argument that the applicant has no locus standi. The court cannot grant the order that the applicant seeks in this matter as the law is clear as to what one is required to establish in an application for an interdict. Further, the third requirement for an interdict is the absence of similar or adequate protection by any other ordinary remedy. The applicant has the option to apply for a spoliation order if they indeed are legal occupants of the property in dispute. Applicant claims that it was previously in peaceful possession of these said premises. It is very clear that if the elections had favored the respondents, they also would have wanted to be in peaceful possession of the very same church premises. The refusal of this faction to leave the premises as instructed by the bishop constitutes spoliation which the applicant can approach the court and seek an order against. C.B Prest in, The law and Practice of Interdicts, p 45 defines a final interdict as: “… a drastic remedy and (probably largely for that reason) in the court’s discretion. The court will not in general, grant an interdict when the applicant can obtain adequate redress in some other form of ordinary relief.” There are clearly other remedies that the applicant can pursue and there has not been any substantial evidence presented to the court to strengthen the applicant’s claimed right. The applicant seeks a final interdict and this cannot be granted to a party that has not proved ownership of the property as illustrated by the locus classicus case of Setlogelo v Setlogelo cited above. DISPOSITION Accordingly, it is ordered that the matter be and is hereby dismissed with costs. Takuva J………………………………… Mugiya Law Chambers, applicant’s legal practitioners Nyawo Ruzive Attorneys, first and second respondents’ legal practitioners Chimuka Mafunga Commercial Attorneys, third respondent’s legal practitioners 3 HH 407-25 HCH 4163/24 3 HH 407-25 HCH 4163/24 BETHLEHEM APOSTOLIC CHURCH versus REPHIO CHIRUMBWA and TINASHE MASIKATI and JOHN MUHOMBA HIGH COURT OF ZIMBABWE TAKUVA J Harare, 20 January & 08 July 2025 Court Application for an Interdict N Mugiya, for the applicant T S Nyawo with L C T Dzoro, for the first and second respondents W Musikadi with K Chikonangombe, for the third respondent TAKUVA J: This is a court application for an interdict where the applicant seeks the following order: “The first to third Respondents and all those claiming through them be and are hereby barred from accessing Stand No. 33784 Caledonia Harare without the express consent of the Applicant The first to third Respondents and all those claiming through them are hereby ordered not to interfere with the Applicant's control, use and administration of its church whatever manner. The first to third Respondents and all those claiming through them be and are hereby ordered to stop all forms of stands and land allocations either to themselves or third parties or their supporters forthwith. The first to third Respondents and all those claiming through them are ordered to release and return to the Applicant the following assets; i) 37 chasis ii) 2 shovels iii) 2 hoes iv) 4 curtains v) Church deco cloths vi) A11 church documents forthwith or at least not later than 48 hours from the date of this order. The first to third Respondents be and are hereby ordered to pay costs of suit on a client - attorney scale, jointly and severally one paying the others to be absolved.” BACKGROUND FACTS The applicant in this matter is a church, governed and administered by its constitution. The respondents are all male adults. The dispute that brought these parties to court is centered on leadership and management of the church’s assets. The church encountered a dispute which led to its division into two factions. To resolve this dispute, TSANGA J under case number HC 3350/17 ordered the church to hold elections according to its constitution, to determine its rightful leader. The applicant’s bishop according to the church’s elections of 24 February 2018 was declared to be one Mr Gemu. This election was followed up by the expulsion of the opposition faction of the church that was led by the first respondent. The first respondent, however, proceeded to challenge the election under case number HC 9055/19 wherein MUSITHU J granted an order in favour of Mr Gemu and the first respondent’s claim was dismissed. The applicant claims that what has led to this application is the continued use of its church premises by the first respondent despite being instructed to leave. The applicant also claims that the respondents are in possession of their assets as listed in the draft order. There is also the issue of leasing part of the church premises to an unregistered school called Findale Academy, that the applicant claims the respondents facilitated and are profiting from. It is on this basis that the applicant seeks an interdict order from this court. On the other hand, the respondents are of a different view thus opposing this application. The first and second respondents challenge the application stating that it is an abuse of court thus it ought to be dismissed. They are of the view that the application constitutes res judicata as the dispute between the parties was settled in HC 9936/19. The third respondent bases its opposition on its claim that the applicant has established no clear right to back the relief it seeks from this court. All the respondents also deny being in possession of the assets claimed by the applicant. This court shall deal with the point in limine raised that is dispositive of this matter. The first and second respondents claim that the applicant has no locus standi to seek the intended relief. They claim that the applicant only possesses a personal right and cannot be allowed to evict or interdict a trespasser. The requirements of an interdict are set out clearly in the case of Setlogelo v Setlogelo 1914 AD 221 at 227 wherein it was held that: “In order to succeed in obtaining a final interdict, whether it be prohibitory or mandatory, an applicant must establish: (a) a clear right; (b) an injury actually committed or reasonably apprehended; and (c) the absence of similar or adequate protection by any other ordinary remedy.” ZHOU J further interpreted the meaning of a clear right as follows: “Whether the applicants have a clear right is a matter of substantive law; whether that right is clearly established is a question of evidence. The right which is sought to be protected through the interdict must thus be a legal right. The evidence tendered must prove on a balance of probability the existence of a right which exists in law, be it at common law or statutory law, which can be protected. In the case of Starke, NO v Schreiber [2001] 1 All SA 167(C) at 174, it was held that “in order to establish a ‘clear right’ . . . the applicants must prove, on a balance of probability, that they are legally entitled to prohibit the respondents…” See also Mujokeri & Anor v Apostolic Faith Mission in Zimbabwe & Ors HH-372-18. The very first requirement for one to seek an interdict is a clear right. Zhou J clearly demonstrates what this means and this ought to shed light to the applicant that it holds no right as described. As the respondents rightfully state, the applicant has no right to either evict or interdict them. The applicants should be guided in that the election served to declare the bishop and leader of the church but not the owner of the land the church is positioned. Due to this fact, it is only the owner of the land, in this case, Minister of Local Government and Public Works that can initiate proceedings to evict the respondents. The applicant has not placed before the court anything to prove its legal right as illustrated by Zhou J. The applicant is therefore misdirected in its heads of arguments wherein it argues that in seeking an interdict the right merely must be a legal one. There is need to tender evidence before the court to support the existence of this legal right before the court grants the interdict. The court therefore agrees with the respondents’ argument that the applicant has no locus standi. The court cannot grant the order that the applicant seeks in this matter as the law is clear as to what one is required to establish in an application for an interdict. Further, the third requirement for an interdict is the absence of similar or adequate protection by any other ordinary remedy. The applicant has the option to apply for a spoliation order if they indeed are legal occupants of the property in dispute. Applicant claims that it was previously in peaceful possession of these said premises. It is very clear that if the elections had favored the respondents, they also would have wanted to be in peaceful possession of the very same church premises. The refusal of this faction to leave the premises as instructed by the bishop constitutes spoliation which the applicant can approach the court and seek an order against. C.B Prest in, The law and Practice of Interdicts, p 45 defines a final interdict as: “… a drastic remedy and (probably largely for that reason) in the court’s discretion. The court will not in general, grant an interdict when the applicant can obtain adequate redress in some other form of ordinary relief.” There are clearly other remedies that the applicant can pursue and there has not been any substantial evidence presented to the court to strengthen the applicant’s claimed right. The applicant seeks a final interdict and this cannot be granted to a party that has not proved ownership of the property as illustrated by the locus classicus case of Setlogelo v Setlogelo cited above. DISPOSITION Accordingly, it is ordered that the matter be and is hereby dismissed with costs. Takuva J………………………………… Mugiya Law Chambers, applicant’s legal practitioners Nyawo Ruzive Attorneys, first and second respondents’ legal practitioners Chimuka Mafunga Commercial Attorneys, third respondent’s legal practitioners