MASENDZA and Another v GOSPEL OF GOD CHURCH INTERNATIONAL and Others (64 of 2025) [2025] ZWHHC 64 (6 February 2025)

7 HH 64-25 HC 1769/23 HC 1785/23 MAGAGA MASENDZA and REUBEN MASEDZA and GOSPEL OF GOD CHURCH INTERNATIONAL and RUSAPE TOWN COUNCIL and ZIMBABWE REPUBLIC POLICE and COMMISSIONER GENERAL and MINISTER OF LOCAL GOVERNMENT PUBLIC WORKS AND NATIONAL HOUSING HIGH COURT OF ZIMBABWE CHITAPI J: HARARE 6 June 2024 & 6 February ,2025 Opposed Court Application L Uriri with N Mushangwe, for the applicant S M Hashiti, for 1st respondents No appearance 2nd to 5th respondents CHITAPI J: This judgment determines case No S HC 1769/23 which is the principal case and case No HC 1785/23 which in my reference is the subsidiary case. The subsidiary application concerns the applicants prayer for consequential relief which would derive from the applicant succeeding in the relief sought in the main case. It does not however follow that the applicant’s success in the main case leads to the applicants automatic success in the subsidiary case. The dispute between the applicant and the first respondent is emotive and has a long or old history. The first, respondent Gospel of God International is a common Law Universitas. It is a church founded by the late Peter Jack Masedza (“the deceased”). In the church circles and outside it the late Peter Jack Masedza is known and referred to as Baba Johane Masowe. He died in Zambia on 14 September, 1973, aged 59 years old meaning he was born in 1914. In terms of a burial permit dated 17 September 1973 issued by the Government of Zambia under that country’s Births and Deaths Registration Ordinance Peter Jack Masedza’s (The deceased) remains were to be taken to Rhodesia (new Zimbabwe) for “burial or disposal by Arthur Dirorimwe, Nothing further has been stated in the application about Diorimwe, He is unlikely to be surviving anyway but who knows. He could, had he been available given some insight into the facts and circumstances of the deceased’s burial as it is the to topical issue which concerns this application. The two applicants, Magaga Masedza and Rubern Masedza are surviving sons of the deceased of the first respondent. The first applicant is the principal deponent to the founding affidavit. The second applicant stood by and verified the affidavit of the first applicant. The first applicant averred in the founding affidavit that the deceased whom he referred to as “late Johane Masowe Shoniwa Masedza”had other children namely ; Reya Masedza, Makure Masedza, Ronica Msedza Gibert Masedza nad Cosmas Masedza. The first applicant then confused the narration when he alleged in paragraph 20 of the founding affidavit that “....... of these 9 are deceased.” The narration is confusing in that the listed siblings including the two applicants would number seven. Nothing material turns on this misnomer. It was averred that the deceased’s children and their progeny had an interest to visit the deceased’s grave. Elsewhere in the affidavit the first applicant averred in paragraph 9 of the affidavit that he is the leader of the of the first respondent. The deponent to the first respondent’s affidavit one Erica office a female adult who described herself as the Deputy President of the first respondent averred that the applicants were in fact one of several breakaway factions, as off shoots of the first respondent. The deponent averred that the oreqinal church founded by the late Baba Johane Masowe” is the first respondent which is in charge of the shrine whereat the founders’ body was interred. I should point out for the avoidance of doubt that the issue of the leadership dispute and who is the true leader of the first respondent does not arise herein save within the context of the applicants prayers in both main and the subsidiary application wherein the exhumation of the remains of the deceased is sought. In this regard the party in possession, custody or control of the place of burial of the founder becomes a necessary party. The second respondent is Rusape Town Council, a local authority for Rusape Town and its environs. The applicants cited the second respondent on the alleged basis that the place where the deceased remains were interred was located in the area of the jurisdiction of the second respondent. The second respondent objected to its joinder in the application on the basis that the place of the founders burial fell under the jurisdiction of Makoni Rural District Council. The applicants did not take issue with this point of avoidance by the second respondent. The matter rests there as the second respondent was in no show at the hearing. The third respondent is the Zimbabwe Republic Police (ZRP). The applicants cited it on the basis that it was in charge of all policing work in Zimbabwe. The fourth respondent Godwin Matanga was then the Commissioner General of ZRP or the third respondent. The applicants did not really advance any grounds or basis to cite third and fourth respondents save to state that they are charged with policing work which is both a legal and factual imperative provided for in the constitution of Zimbabwe. No substantive or other relief was sought against the third and fourth respondents in the draft order. The fourth respondent filed an opposing affidavit on both his behalf and a behalf of the third respondent. The fourth respondent protested or objected to his citation and that of the third respondent on the basis that no cause of action or relief was sought from them. The objection had merit In the answering affidavit to the third and fourth respondents’ affidavit the applicants averred that the citation or joinder of the two respondents was proper because they are mandated to maintain law and order. A new fact was then alleged that ZRP police officers were stationed at the burial place of the deceased and were the ones preventing the applicants and their children as well as other unnamed people from accessing the grave of the deceased. The applicants also averred that they cited or joined the third and fourth respondents to the application because the Sheriff would require the assistance of the ZRP in enforcing court orders. The third and fourth respondents did not show up at the hearing and their objection was not advanced. I however observe for posterity that an applicant who cites or sues a respondent must allege facts which establish a cause of action against such respondent as well as the relief sought against that respondent. As a general rule, it is improper to cite the police on the mere ground that the police enforce law and order. The court will not issue an order that directs police to carry out their function as mandated by law unless the police have abrogated that duty. Where the police have abrogated their duty a mandamus may be applied for by the aggrieved party be. It is also unnecessary for the court to make an order that police should assist the Sheriff to seek the intervention of the police in executing a court order. Police are legally bound to assist the Sheriff. If the police do not perform their duty an aggrieved party can seek an order that the police should act in accordance with their constitutional mandates. The fifth respondent, the Minister of Local Government, Public Works and National Housing did not file any response to the application. The applicants’ cited the Minister aforesaid as stated in the founding affidavit “- - as the Minister responsible for all Local Authorities in Zimbabwe.” No relief was sought from the fifth respondent. I repeat by reference, the same observations I have made in regard to the citation of the third respondents, to the effect that the applicant who cites a respondent must allege a cause of action against that respondent. Whilst noting that rule 57(1)(a) of the High Court Rules provides that a court application should be in writing and on “notice to all interested parties having a legal interest in the matter - -“,. The rule cannot be construed to mean that where a local authority is cited in a matter the responsible Minister in charge of Local Authorities should also be made a respondent even where the Minister is not alleged to have done anything connected with the dispute at hand or an order is sought suffering the Minister to act. Making an application on notice to parties who have a legal interest in the matter is not the same as making such persons “a party to the application” if no relief is sought against them. Parties who have a legal interest are given notice so that they elect to join in the proceedings if they consider such a course an advised one. Nothing turns on this other than to give direction because the parties did not raise the anomalies as issues of engagement. On the substance of the application, the facts are not in serious contention. The relief sought in the main application as set out in the draft order is expressed thus: “IT IS DECLARED THAT: The applicants have a right to exhume the remains of the late Johanne Masowe Shoniwa Masedza which are buried at Gandenzara Shrine, Rusape. No costs of suit are awarded unless there is opposition to this application in which event it is prayed that the costs of the application be awarded to the applicants and be payable by the respondents opposing this application, the one paying the other to be absolved.” The costs draft prayer is inelegantly expressed because it apportions joint and several liability on “respondents opposing this application.” The question arises as to what happens if only one respondent opposes and joint and several liability does not arise. No issue of great moment however arises therefrom because the draft order is not the final order of the court. It is draft by the applicant. Further, the issue of awarding or not awarding costs is a matter for the exercise of judicial discretion by the court including the incidence and apportionment of such costs. The applicants’ prayer for a declaratur is straight forward really. In the founding affidavit they state that they are children of the deceased. They averred that the deceased fell ill in Kenya but died in Zambia on 14 September 1973. They could not attend the burial of the deceased because they and their mother held British Passports which rendered them unable to enter Zimbabwe (then Rhodesia). The court will take judicial notice that the Government of the day had declared unilaterally (UDI) its independence from the British Empire and that government and the country was placed on international sanctions. There is no dispute on the papers that the applicants failed to enter the country for burial for the reasons which the applicants gave. The applicants averred that the place where the deceased was buried in Gandanzara is a property owned by the first respondent, then called the Gospel of God Church. The applicants’ disputes with the first respondent was simply stated in the founding affidavit. The applicants averred that following the attainment of independence and advent of Zimbabwe they travelled to Zimbabwe. However, their attempts to visit the place of burial of the deceased were thwarted by members of the first respondent. The applicants averred that they pursued their rights to access the place of burial culminating in an application which they filed against the first respondent under case No. HC 3379/2001. The application was disposed of by Hungwe J (as he was) by judgment of HH 164/2003 through its dismissal. Note is made that the first respondent was the applicant therein. Significantly in case No. HC 3379/2001 and as captured in the judgment HH 164/2003, the first applicant herein prayed for the following order. “(a) That the applicant; members if his family, descendants of the late Johane Masowe Magaga and members of the Gospel of God Church aligned to the applicant be and are hereby allowed visitation rights known as inter ad sepulcrum at least twice a year for a period of one month to the grave of the late Johane Masowe Magaga at times which they will agree with the leaders of the respondent. (b) That the agreement to exercise the right of inter ad sepulcrum be exercised after giving at lease 30 days notice from the date at which such visitation shall occur. (c) That the applicant and members of his family be allowed to exercise the right of inter ad sepalcrum at least once every month for a period of seven days. (d) Costs of suit.” Having read through judgment HH 164/2003, it is noted that the learned judge discussed at length the right called inter ad sepulcrum Not surprisingly the learned judge found himself having to viset the archives and refer to Roman and Dutch authoritative texts on the subject. After analysis, the learned judge dismissed the application with costs on the basis that the applicant had “failed to establish ius re aliena” over the shrine. In the judgment, an obiter statement was made by the learned judge that the burial place of the deceased was not a grave yard but a shrine and place of worship capable of ownership. It was further opined that the place of burial was more than a grave and did not qualify as a burial place and could not qualify to be so by “any analogy.” It was my understanding that the judgment was not appealed against. However, a comparison of the draft order sought in case No. HC 3379/2001 with the one in the application in casu, shows that the relief sought are different. In the current application what is sought is a declaration for the court to declare that the applicants have a right to exhume the remains of the deceased from where they are interred. When the two applications are compared, it seems to me that what the first applicant now joined by the second applicant has done is to say to the first respondent, you have refused us access to our furthers place of burial. Fine and well, if we cannot access and visit our late fathers’ place of interment, then we need to exhume his remains from there and we wont be bother the first respondent thereafter.” I must after juxtaposing case No. HC 3379/2001 and the current application note that the former case had to do with seeking an order for visitation of the place of burial but the current application seeks that the court declares that the applicant have a right to exhume the remains of the deceased, their father. The first respondent in opposing the application through the affidavit of Erica Office its Deputy President, duly authorized to act for the first respondent, gave a narration of how the deceased came to be buried where his remains are interred, she also deposed to what she believe to have been the wishes of the deceased. The deponent averred that she was an adult female and “Deputy President of the first respondent “and as such” was authorized to depose to facts alluded to which facts were to the best of her knowledge and belief true and correct. The applicants in the answering affidavit took issue that the deponent did not allege that she was authorized to represent the first respondent in opposing the application. The applicants averred that the first respondent’s board or its Trustees ought to have attached a resolution appointing the deponent to represent the first respondent. The objection was not pursued or addressed in argument. However, for hygiene purpose and proper procedure, a deponent to an affidavit which purports to be made on behalf of a juristic entity should allege the basis of authority to represent the juristic body. The deponent averred that the burial place of the deceased was chosen by the deceased. In para(s) 5 and 6 of the opposing affidavit she stated: “4. The late before he died had appointed his most senior wife -sister Mai Megi Matanhire to take over the running of the church and its branches nation wide. 5. He had also instructed his most senior Pastor Kunzanzira and his senior wife that he should be buried at Dandaza Hill which was and is located within the premises of the first respondent being Gandanzara Rusape now called Gandanzara shrine. See judgment by Smith J in HH 91/03 marked Annexure A. 6. The late also instructed that a tombstone was to be built on the grave and every year on the 28th September a synod is to be held at such place where all his followers would congregate and be taught about his life and teachings.” It was averred that deceased’s wishes have been followed ever since the deceased’s death and that the place of the deceased’s burial had become a revered place and shrine where yearly synods are held with the first respondent’s followers including the families of the deceased also congregating. The deponent perhaps to court the court’s sympathy pointed out that his Excellency the President of Zimbabwe had attended the last synod in his capacity as such. The State President of course attends any public functions as he may choose to as a first citizen or in his official capacity. I say this to emphasize that the alleged attendance by his Excellency the President of Zimbabwe does not constitute a fact which impacts on the issues for determination. It was the deponents’ further averment in paragraph 8of the opposing affidavit as follows: “The late during his life time had weaned off all his children and regarded them as followers of the church with no special privileges and an in particular the first applicant had been disowned for being greed (sic) and power hungry and the late had shared his vision that in future he would be a problem and line with that vision the first applicant indeed left the church and formed his own church which is based in Marondera. The late had categorically instructed that none of his children would succeed him as leader of the church he founded”. The deponent also averred that the applicant and his church had unsuccessfully tried to take over the shrine without success and had made a failed attempt through the courts in the Rusape Magistrates Court in the late 90s. I have decided to zero in on the background as deposed to by the deponent in order to show that there is animosity towards the first applicant by the first respondent or the by the deponent out. One can easily notice the of animosity wherein the first applicant is described as power hungry and dishonest person who broke away from the first respondent to form his church. In relation to the judgment of Smith J HH 91/03 it was concerned with a dispute of leadership succession in the first respondent. The court ruled that Mai Megi was the lawful leader or President of the first respondent thus dismissing a claim to leadership by a faction led by Chivese. The judgment is of no material value to the issue of the declaration sought herein. In the answering affidavit the applicant denied that the deceased had given any instructions for his burial nor that his grave be turned into a shrine for members of the first respondent to make yearly visits thereat. The applicants averred that the annual visits did not arise from a death wish by the deceased but was a decision by follows of the first respondent to do the visits according to their beliefs. The applicants questioned the alleged burial deposition as there was no will to evidence the alleged burial wishes of the deceased. The applicants averred that the deceased did not suddenly fall ill and as such he had ample time to and could have recorded his wishes. The applicants averred that it was unconscionable that as children of the deceased they can be held to have no say on what happens to their father’s remains. The applicants strongly expressed their sentiments in paragraph 4 of the answering affidavit inter alia as follows 4……. It is unconscionable for members of the first respondent to decide what should happen to our father’s remains and for their decision to be held against and above our wishes. We also have a right to visit our fathers resting place and lay flowers on his grave as and when we feel like it. This is consonant with our African religion and tradition. It is also a biblical tradition that the children should burry and have access to their father’s grave. As Africans a tomb of an illustrious ancestor is a very important symbol of our heritage existence and pride. Luke what I mentioned within founding affidavit, if we had not been deemed access to our fathers grave then this application would not have been made. (Underlying own emphasis). It is the behavior of the first respondent that led to this application being filed. We have genuine grievances and we seek the probation of the court for the to be considered” It is of course an unfortunate setualion where recording to the applicants they have come to court because of an alleged belligerence by the first respondent. One cannot help but note that the nature of the dispute is one which the parties can resolve if Grod faith and bona fides are exerused by the parties. This observation and comment is of course made as an aside. The court deals with what is before it and the evidence adduced by the parties. In relation to the allegation that the deceased instructed his most senior Pastor Kunzanzira and senior wife Mai Magi Matanhire that he should be buried at Dandaza Hill, the applicants denied that such instruction existed. They averred that they are the ones and their other siblings who engaged with authorities to allow the deceased’s remains to be brought to Zimbabwe (then Rhodesia) for burial. The applicants averred that they were denied entry into Zimbabwe and could not spearhead the burial. They averred that the first respondents members then took advantage of the situation to give a false narrative that the deceased had requested to be buried where they buried him and that he wanted the place turned into a shrine. The applicants further averred that there were succession wrangles between the deceased’s late wives Magi Matanhire and Rozi Ngosi and that the false narrative was also intended to quell the wrangle. The false narrative according to the applicants was now being used to deny them access to the place of burial. There can be no doubt that the background to the burial of the deceased remains a controversial issue. The applicants deny the respondents narrative. None of the person to whom the deceased allegedly confided in relation to his death wishes is there or attest to that issue. The depositions of the deponent to the founding affidavit are hearsay. Even though she professed to having knowledge of the facts she deposed to, she did not advert to the sources of such knowledge. It is also evident that no other siblings of the applicants have, participated in this application. This does not however take away the applicants right to make the application. The deponent to the first respondents’ affidavit stated that the first applicant was disowned by the deceased during his lifetime and that the first applicant “could not culturally and morally go against the wishes of the dead worse his father in his case”. The significance of this averment is that the first respondent recognizes the importance of cultural and moral standards as well as their normatives. The applicants in this regard averred that culturally they are the ones who have a say over the burial of their father and must have access to the place where he is baried. The crux of the application is however for the court to determine whether or not the applicants have a right to exhume the remains of the deceased and whether or not the court should grant the declaration sought. The High Court is empowered to grant a declaratory order in terms of the s 14 of the High Court Act, [Chapter 7.06] which reads as follows: “14 HIGH COURT MAY DETERMINE FUTURE OR CONTINGENT RIGHTS The High Court may, in its discretion, at the instance of any interested person enquire into and determine any existing future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.” In the case of Zezere v Earthwales (Private) Limited & Anor HH 26/24 Manzunzu J in relating to the requirements to be satisfied for a declaratur to be issued in terms of s 14 of the High Court stated as follows at p 3 of the cyclostyled judgment: “The law governing applications for declaratory orders in terms of this s 15 well settled. The applicant must show that he/she is An interested person That there is a right or obligation which becomes the object of ...... That he is not approaching the court for what amounts to a legal opinion upon an abstract or academic matter. That there is an interested party upon which the declaration will be bending , and That consideration of public policy favours the issuance of the declarator See Movement for Democratic Change v The President of the Republic of Zimbabwe & Ors HH 28/07; RK Footwear Manufactures (Pvt) Ltd v Book Bocek Sales (Pvt)Ltd 1986 (2) Ltd 209; Family Bought Friendly Society v Commissioner of Inland Revenue & Anor 1995 (4) SA 120 (T)” In the case of Newton Dongo v Joytindra Natverial Naik & 5 Ors Sc 52/20 gwaunza DCJ set out the test for the granting of declaratory orders sought in terms of s 14 of the High Court Act, at para 11 as follows: “11 The appellants application for a declaratur in the court a quo was made in terms of s 14 of Act which states as, follows: “The High Court may in its discretion at the instance of any interested person enquire into and determine any existing future or contingent right or obligation not withstanding that such person cannot claim any relief sought consequential upon such determination.” Implicit from a reading of the provision is that a declaratur is sought by a person with an interest in the subject matter of the dispute inquiring or seeking a determination of an existing, future or contingent right. In Johson v Agricultural Finance Corp 1995 (1) ZLR 65 (S) gubby CJ had occasion to consider when a declaratur should be granted. The learned Chief Justice remarked as follows at 72 E-F. “ the condition precedent to the grant of a declatory order under s 14 of the High Court of Zimbabwe Act, 1981 is that the applicant must be an ‘interested person’ in the senseof having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court. The interest must concern an existing future or contingent right. The Court will not decide abstract academic or hypothetical questions unrelated thereto. But the presence of an actual dispute or controversy between the parties interested is not a prerequisite to the exercise of jurisdiction.” The learned Deputy Chief Justice went further to instructively state at para 12 of the same judgment as follows: [“12] On the basis of this authority, before a court can exercise its discretion to grant a declaratur it must satisfy itself that the person seeking such relief has a real interest in the matter and that there is an existing contingent or future right to protect Cilliers AC Loots C and Nel HC in their book Herbstien and Van Winsen; The Civil Practice of the High Courts of South Africa (5th edition ; Juta and Co Ltd Cape Town 2009) state as follows in this regard at p 1433 to 1434; “It is a trite principle of the common law that an applicant seeking a declaration must have a direct interest in the right to which the order will relate. The right must attach to the applicant and not be a declaration of someone else’s right. It is essential for a prospective litigant to have the necessary locus standi in law when commencing proceedings. This requires that a litigant should be both endowed with the necessary capacity to sue and have a legally recognized interest in the relevant action to seek relief.” In their submissions, applicants through their counsel and as advanced in heads of argument submitted that the applicants had a direct and substantial interest in the exhumation and reburial of the deceased. It was submitted that the deceased did not leave any testament written or otherwise which spelt out issues concerning his burial. The applicants submitted that as the first born biological son of the deceased he according to Roman Dutch law had a duty and the right to bury the deceased. Reliance was placed on the cases of W & Others v S & Others 360/16 (2016) ZAW CHC 49 and Shi – ML V B071/hilo – KA and 7 Others SAHCO 10091/2020. The first case is to the effect that the heir has a right to decide on the issues of the burial of the deceased to which he/she is heir. The second case is to the effect that courts have modified the approach to the rule that the heir is solely responsible for burial issues by noting that considerations of fairness to and expectations of the community are matters to properly take into account. The first respondent in the heads of argument and submissions by counsel to the court did not dispute that the applicants had a real and substantial interest in the matter. Indeed such a position would have been untenable since the deponent to the first respondent’s opposing affidavit did admit that customs of Zimbabwe would apply. She stated that customarily the first applicant was according to custom enjoined not to go against the wishes of the deceased as his father. It is also my observation that the C onstitution 2013 provides in section 3(i)(e) on founding values and principles that: “13.1. Zimbabwe is founded on respect for the following values and principles: _ _ _ _ _ _ _ _ _ _the nations diverse cultural, religious and traditional values.” The applicants averments that it accords with traditional customs that children MUST bury their parents and have access to their graves, build tombstones and preserve the graves as family heritages was correctly submitted. The direct and substantial interest of the applicants in the order they seek is amply demonstrated. A judgment for or against them in the subject matter will affect them substantially. The interest is not academic The applicants allege that because of denial of access to their father’s burial place, they are prejudiced as they cannot have any connection with the place where the remains of their father sit. They seek a reburial to a place where the applicants would not be denied access. The applicants have locus standi therefore to bring this application. The right to seek the declaration is not synonymous with the grant of the right. All the circumstances of the case are considered including the laws which impact on the relief sought. The applicants submitted that the deceased was a true worshipper of God who never wished to be idolized as a symbol of worship or to be enstrined with his grave being used for the benefit of leaders of the first respondent. It was submitted the issue of exlimation was produced for under the Cemeteries Act [Chapter 5:04] The applicant without quoting any specific provisions of the Cemeteries Act averred that the general rule on exhumations and reburial of humans remains was that it shall not be done unless authorized by the relevant sphere of government as permitted by relevant local government laws in whose jurisdiction the exhumation will take place or through a court order. The applicant did not cite any specific provision of the law on the point advanced .The failure to relate to the specific law or provisions therefore places the court in a difficult position of having to look for the law by itself. It is the duty of the counsel to be specific when they plead facts and to correctly cite the law. The first respondent averred that the application was frivolous because it was being made more than 20 years after the death of the deceased. It was however noted that prescription was not pleaded. It appears that the parties were in the courts on related matters in the intervening period. Nothing will turn on the issue of the delay to bring this application The first respondent submitted that the remains of the deceased lay …….in or at a shrine and not a cemetery. It was submitted that a cemetery was described as a “public cemetery” in the definition section under the Cemetries Act. The submission was also made that Hungwe J (as he was then) had in judgment HH 164/2003 stated that the place where the deceased’s remains was interred was a shrine which was more that a graveyard but a place of worship. The remarks were obiter of course but in any event the issue of whether or not children of the deceased could claim the remains and seek the exhumation of the same. There was no declaration made that the remains of the deceased had become the property of the first respondent. It is in my view open to the applicants in the circumstances to seek the exhumation of the deceased’s remains. The applicants cannot be deborted from making an exhamalion claim of the remains of the deceased. The matter is however not that simple. The first respondents’ counsel referred to s 38(4) of the Cemetries Act. It provides as follows: “(4) Subject to subjection (5) – The Minister or any person authorized by him; or With the approval of the Minister, a local authority or a local board established in terms of the Urban Councils Act [Chapter 29:15] may revently remove or cause to be removed the human remains; memorials and memorial and Monuments in any closed cemetery from that cemetery to another cemetery” There is no doubt that the issue of places of burial and exhumations involve the Minister who administers the Cemetries Act. The first respondent’s counsel stremously argued that the Act in relation to exhumations or body removals applied to a closed cemetery. It was argued that the Act applied to a public cemetery. I did not find the definition of public cemetery in the Act It appears to me therefore that a public cemetery has to be a place where the pubic can be buried and have access thereto. There was no submission made that the public cannot be buried at the same place as where the deceased is buried. If for example no one else can be buried there, then it is a place closed to further burials. A cemetery is a place where dead people are buried. There is nothing in the law to indicate that where the place at which dead body is buried has been turned been turned into a shrine, then no exhumation may be done. The first respondent is however, correct that whether a cemetery is closed or not is a Ministerial driven process in terms of s 36 of the Cemetries Act. In terms thereof the Minister acting with Presidential consent may direct the closure of a cemetery. It is only from a closed cemetery that according to the first respondent, an exhumation may be made. I propose to refrain from addressing and resolving the submission to avoid prejudging the matter. It is clear that process and procedures for exhumation of buried remains of deceased people are governed by statute. An exhumation must be authorized by the Minister of Local Government, Rural and Urban Development or other Minister whom the President may assign the administration of the Cemetries Act. The applicants did not aver that they ever sought authority or approval of the responsible Minister or that they followed stalulory procedure. They however accepted that exhumations had to be authorised by Government or by a court order. Taking up from the applicant’s submission, the courts will not interfere in matters of executive function and are moreso governed by statute. The role of the court is not spelt out in the Cemetery Act. However the role of the Minister is spelt out. The doctrine of separation of powers must be respected. The courts do not interfere with executive functions save on review on cognizable grounds of review. The applicants did not justify their approach to court as the point of first call. The applicants have established their case for a declaratur that they have a right to seek the exhumation of the deceased’s remains. The applicants have established their right and substantial interest in the exhumation which they want to seek. They however want the court in the subsidiary case HC 1785/23 to grant consequential relief that they can proceed with exhumation. The order sought reads as follows from the draft order: “IT IS ORDERED THAT: The second respondent is ordered to issue a reburial permit to enable the disinterment of the remains of the late Johanne Masowe Shoniwa Masedza.The third to fifth respondents be and are hereby ordered to enforce the disinterment of the remains of the deceased described in para 1 from the grave site at Gandanzara, Rusape.No costs of suit are awarded unless there is opposition to the application in which it is prayed that the (sic) of this application be awarded to the applicants and be payable by the respondents opposing this application, the one paying the other to be absolved.” The costs order is again toutologus but that is only by way of observation. With the applicant and first respondent having submitted that the exhumation is governed by the Cemeteries Act, it is clear that the consequential relief cannot be granted as claimed because the applicant did not follow the requirements for exhumation. The matter must end there because commenting further may confuse the processes to be followed with parties then arguing that the court has already decided the issues. The application for consequential relief Case No. HC 1781/23 does not preclude the applicants from seeking consequential relief after following due process. The remaining issue pertains to costs. This is an emotive matter. The applicants have cause to come to court to follow up on the remains of their father. The first respondents’ attitude is that the applicants are a bother going so far as to make personal attacks on the first applicant. The issue between the parties remain a live one and hopefully it will settled sooner than later. In exercising the courts’ discretion on costs, an appropriate order is one in which each party bears its own costs I dispose of the into applications as follows: IT IS ORDERED THAT: The main application Case No. HC 1769/23 succeeds.The applicants have a right to exhume the remains of the late Johanne Masowe Shoniwa Masedza which are buried at Gandanzara Shrine Rusape, subject their following due process.Case No. HC 1785/23 is dismissed.In respect of both Case No. HC 1769/23 and HC 1785/25 each party shall pay its own costs.This order disposes of both matters and the Registrar must file a copy of the order in both case Nos HCH 1769/23 and HCH 1785/23 Chitapi J: …………………………………………… Mushangwe & Company, applicants’ legal practitioners Venturens & Samukange, first respondent’s legal practitioners 7 HH 64-25 HC 1769/23 HC 1785/23 7 HH 64-25 HC 1769/23 HC 1785/23 MAGAGA MASENDZA and REUBEN MASEDZA and GOSPEL OF GOD CHURCH INTERNATIONAL and RUSAPE TOWN COUNCIL and ZIMBABWE REPUBLIC POLICE and COMMISSIONER GENERAL and MINISTER OF LOCAL GOVERNMENT PUBLIC WORKS AND NATIONAL HOUSING HIGH COURT OF ZIMBABWE CHITAPI J: HARARE 6 June 2024 & 6 February ,2025 Opposed Court Application L Uriri with N Mushangwe, for the applicant S M Hashiti, for 1st respondents No appearance 2nd to 5th respondents CHITAPI J: This judgment determines case No S HC 1769/23 which is the principal case and case No HC 1785/23 which in my reference is the subsidiary case. The subsidiary application concerns the applicants prayer for consequential relief which would derive from the applicant succeeding in the relief sought in the main case. It does not however follow that the applicant’s success in the main case leads to the applicants automatic success in the subsidiary case. The dispute between the applicant and the first respondent is emotive and has a long or old history. The first, respondent Gospel of God International is a common Law Universitas. It is a church founded by the late Peter Jack Masedza (“the deceased”). In the church circles and outside it the late Peter Jack Masedza is known and referred to as Baba Johane Masowe. He died in Zambia on 14 September, 1973, aged 59 years old meaning he was born in 1914. In terms of a burial permit dated 17 September 1973 issued by the Government of Zambia under that country’s Births and Deaths Registration Ordinance Peter Jack Masedza’s (The deceased) remains were to be taken to Rhodesia (new Zimbabwe) for “burial or disposal by Arthur Dirorimwe, Nothing further has been stated in the application about Diorimwe, He is unlikely to be surviving anyway but who knows. He could, had he been available given some insight into the facts and circumstances of the deceased’s burial as it is the to topical issue which concerns this application. The two applicants, Magaga Masedza and Rubern Masedza are surviving sons of the deceased of the first respondent. The first applicant is the principal deponent to the founding affidavit. The second applicant stood by and verified the affidavit of the first applicant. The first applicant averred in the founding affidavit that the deceased whom he referred to as “late Johane Masowe Shoniwa Masedza”had other children namely ; Reya Masedza, Makure Masedza, Ronica Msedza Gibert Masedza nad Cosmas Masedza. The first applicant then confused the narration when he alleged in paragraph 20 of the founding affidavit that “....... of these 9 are deceased.” The narration is confusing in that the listed siblings including the two applicants would number seven. Nothing material turns on this misnomer. It was averred that the deceased’s children and their progeny had an interest to visit the deceased’s grave. Elsewhere in the affidavit the first applicant averred in paragraph 9 of the affidavit that he is the leader of the of the first respondent. The deponent to the first respondent’s affidavit one Erica office a female adult who described herself as the Deputy President of the first respondent averred that the applicants were in fact one of several breakaway factions, as off shoots of the first respondent. The deponent averred that the oreqinal church founded by the late Baba Johane Masowe” is the first respondent which is in charge of the shrine whereat the founders’ body was interred. I should point out for the avoidance of doubt that the issue of the leadership dispute and who is the true leader of the first respondent does not arise herein save within the context of the applicants prayers in both main and the subsidiary application wherein the exhumation of the remains of the deceased is sought. In this regard the party in possession, custody or control of the place of burial of the founder becomes a necessary party. The second respondent is Rusape Town Council, a local authority for Rusape Town and its environs. The applicants cited the second respondent on the alleged basis that the place where the deceased remains were interred was located in the area of the jurisdiction of the second respondent. The second respondent objected to its joinder in the application on the basis that the place of the founders burial fell under the jurisdiction of Makoni Rural District Council. The applicants did not take issue with this point of avoidance by the second respondent. The matter rests there as the second respondent was in no show at the hearing. The third respondent is the Zimbabwe Republic Police (ZRP). The applicants cited it on the basis that it was in charge of all policing work in Zimbabwe. The fourth respondent Godwin Matanga was then the Commissioner General of ZRP or the third respondent. The applicants did not really advance any grounds or basis to cite third and fourth respondents save to state that they are charged with policing work which is both a legal and factual imperative provided for in the constitution of Zimbabwe. No substantive or other relief was sought against the third and fourth respondents in the draft order. The fourth respondent filed an opposing affidavit on both his behalf and a behalf of the third respondent. The fourth respondent protested or objected to his citation and that of the third respondent on the basis that no cause of action or relief was sought from them. The objection had merit In the answering affidavit to the third and fourth respondents’ affidavit the applicants averred that the citation or joinder of the two respondents was proper because they are mandated to maintain law and order. A new fact was then alleged that ZRP police officers were stationed at the burial place of the deceased and were the ones preventing the applicants and their children as well as other unnamed people from accessing the grave of the deceased. The applicants also averred that they cited or joined the third and fourth respondents to the application because the Sheriff would require the assistance of the ZRP in enforcing court orders. The third and fourth respondents did not show up at the hearing and their objection was not advanced. I however observe for posterity that an applicant who cites or sues a respondent must allege facts which establish a cause of action against such respondent as well as the relief sought against that respondent. As a general rule, it is improper to cite the police on the mere ground that the police enforce law and order. The court will not issue an order that directs police to carry out their function as mandated by law unless the police have abrogated that duty. Where the police have abrogated their duty a mandamus may be applied for by the aggrieved party be. It is also unnecessary for the court to make an order that police should assist the Sheriff to seek the intervention of the police in executing a court order. Police are legally bound to assist the Sheriff. If the police do not perform their duty an aggrieved party can seek an order that the police should act in accordance with their constitutional mandates. The fifth respondent, the Minister of Local Government, Public Works and National Housing did not file any response to the application. The applicants’ cited the Minister aforesaid as stated in the founding affidavit “- - as the Minister responsible for all Local Authorities in Zimbabwe.” No relief was sought from the fifth respondent. I repeat by reference, the same observations I have made in regard to the citation of the third respondents, to the effect that the applicant who cites a respondent must allege a cause of action against that respondent. Whilst noting that rule 57(1)(a) of the High Court Rules provides that a court application should be in writing and on “notice to all interested parties having a legal interest in the matter - -“,. The rule cannot be construed to mean that where a local authority is cited in a matter the responsible Minister in charge of Local Authorities should also be made a respondent even where the Minister is not alleged to have done anything connected with the dispute at hand or an order is sought suffering the Minister to act. Making an application on notice to parties who have a legal interest in the matter is not the same as making such persons “a party to the application” if no relief is sought against them. Parties who have a legal interest are given notice so that they elect to join in the proceedings if they consider such a course an advised one. Nothing turns on this other than to give direction because the parties did not raise the anomalies as issues of engagement. On the substance of the application, the facts are not in serious contention. The relief sought in the main application as set out in the draft order is expressed thus: “IT IS DECLARED THAT: The applicants have a right to exhume the remains of the late Johanne Masowe Shoniwa Masedza which are buried at Gandenzara Shrine, Rusape. No costs of suit are awarded unless there is opposition to this application in which event it is prayed that the costs of the application be awarded to the applicants and be payable by the respondents opposing this application, the one paying the other to be absolved.” The costs draft prayer is inelegantly expressed because it apportions joint and several liability on “respondents opposing this application.” The question arises as to what happens if only one respondent opposes and joint and several liability does not arise. No issue of great moment however arises therefrom because the draft order is not the final order of the court. It is draft by the applicant. Further, the issue of awarding or not awarding costs is a matter for the exercise of judicial discretion by the court including the incidence and apportionment of such costs. The applicants’ prayer for a declaratur is straight forward really. In the founding affidavit they state that they are children of the deceased. They averred that the deceased fell ill in Kenya but died in Zambia on 14 September 1973. They could not attend the burial of the deceased because they and their mother held British Passports which rendered them unable to enter Zimbabwe (then Rhodesia). The court will take judicial notice that the Government of the day had declared unilaterally (UDI) its independence from the British Empire and that government and the country was placed on international sanctions. There is no dispute on the papers that the applicants failed to enter the country for burial for the reasons which the applicants gave. The applicants averred that the place where the deceased was buried in Gandanzara is a property owned by the first respondent, then called the Gospel of God Church. The applicants’ disputes with the first respondent was simply stated in the founding affidavit. The applicants averred that following the attainment of independence and advent of Zimbabwe they travelled to Zimbabwe. However, their attempts to visit the place of burial of the deceased were thwarted by members of the first respondent. The applicants averred that they pursued their rights to access the place of burial culminating in an application which they filed against the first respondent under case No. HC 3379/2001. The application was disposed of by Hungwe J (as he was) by judgment of HH 164/2003 through its dismissal. Note is made that the first respondent was the applicant therein. Significantly in case No. HC 3379/2001 and as captured in the judgment HH 164/2003, the first applicant herein prayed for the following order. “(a) That the applicant; members if his family, descendants of the late Johane Masowe Magaga and members of the Gospel of God Church aligned to the applicant be and are hereby allowed visitation rights known as inter ad sepulcrum at least twice a year for a period of one month to the grave of the late Johane Masowe Magaga at times which they will agree with the leaders of the respondent. (b) That the agreement to exercise the right of inter ad sepulcrum be exercised after giving at lease 30 days notice from the date at which such visitation shall occur. (c) That the applicant and members of his family be allowed to exercise the right of inter ad sepalcrum at least once every month for a period of seven days. (d) Costs of suit.” Having read through judgment HH 164/2003, it is noted that the learned judge discussed at length the right called inter ad sepulcrum Not surprisingly the learned judge found himself having to viset the archives and refer to Roman and Dutch authoritative texts on the subject. After analysis, the learned judge dismissed the application with costs on the basis that the applicant had “failed to establish ius re aliena” over the shrine. In the judgment, an obiter statement was made by the learned judge that the burial place of the deceased was not a grave yard but a shrine and place of worship capable of ownership. It was further opined that the place of burial was more than a grave and did not qualify as a burial place and could not qualify to be so by “any analogy.” It was my understanding that the judgment was not appealed against. However, a comparison of the draft order sought in case No. HC 3379/2001 with the one in the application in casu, shows that the relief sought are different. In the current application what is sought is a declaration for the court to declare that the applicants have a right to exhume the remains of the deceased from where they are interred. When the two applications are compared, it seems to me that what the first applicant now joined by the second applicant has done is to say to the first respondent, you have refused us access to our furthers place of burial. Fine and well, if we cannot access and visit our late fathers’ place of interment, then we need to exhume his remains from there and we wont be bother the first respondent thereafter.” I must after juxtaposing case No. HC 3379/2001 and the current application note that the former case had to do with seeking an order for visitation of the place of burial but the current application seeks that the court declares that the applicant have a right to exhume the remains of the deceased, their father. The first respondent in opposing the application through the affidavit of Erica Office its Deputy President, duly authorized to act for the first respondent, gave a narration of how the deceased came to be buried where his remains are interred, she also deposed to what she believe to have been the wishes of the deceased. The deponent averred that she was an adult female and “Deputy President of the first respondent “and as such” was authorized to depose to facts alluded to which facts were to the best of her knowledge and belief true and correct. The applicants in the answering affidavit took issue that the deponent did not allege that she was authorized to represent the first respondent in opposing the application. The applicants averred that the first respondent’s board or its Trustees ought to have attached a resolution appointing the deponent to represent the first respondent. The objection was not pursued or addressed in argument. However, for hygiene purpose and proper procedure, a deponent to an affidavit which purports to be made on behalf of a juristic entity should allege the basis of authority to represent the juristic body. The deponent averred that the burial place of the deceased was chosen by the deceased. In para(s) 5 and 6 of the opposing affidavit she stated: “4. The late before he died had appointed his most senior wife -sister Mai Megi Matanhire to take over the running of the church and its branches nation wide. 5. He had also instructed his most senior Pastor Kunzanzira and his senior wife that he should be buried at Dandaza Hill which was and is located within the premises of the first respondent being Gandanzara Rusape now called Gandanzara shrine. See judgment by Smith J in HH 91/03 marked Annexure A. 6. The late also instructed that a tombstone was to be built on the grave and every year on the 28th September a synod is to be held at such place where all his followers would congregate and be taught about his life and teachings.” It was averred that deceased’s wishes have been followed ever since the deceased’s death and that the place of the deceased’s burial had become a revered place and shrine where yearly synods are held with the first respondent’s followers including the families of the deceased also congregating. The deponent perhaps to court the court’s sympathy pointed out that his Excellency the President of Zimbabwe had attended the last synod in his capacity as such. The State President of course attends any public functions as he may choose to as a first citizen or in his official capacity. I say this to emphasize that the alleged attendance by his Excellency the President of Zimbabwe does not constitute a fact which impacts on the issues for determination. It was the deponents’ further averment in paragraph 8of the opposing affidavit as follows: “The late during his life time had weaned off all his children and regarded them as followers of the church with no special privileges and an in particular the first applicant had been disowned for being greed (sic) and power hungry and the late had shared his vision that in future he would be a problem and line with that vision the first applicant indeed left the church and formed his own church which is based in Marondera. The late had categorically instructed that none of his children would succeed him as leader of the church he founded”. The deponent also averred that the applicant and his church had unsuccessfully tried to take over the shrine without success and had made a failed attempt through the courts in the Rusape Magistrates Court in the late 90s. I have decided to zero in on the background as deposed to by the deponent in order to show that there is animosity towards the first applicant by the first respondent or the by the deponent out. One can easily notice the of animosity wherein the first applicant is described as power hungry and dishonest person who broke away from the first respondent to form his church. In relation to the judgment of Smith J HH 91/03 it was concerned with a dispute of leadership succession in the first respondent. The court ruled that Mai Megi was the lawful leader or President of the first respondent thus dismissing a claim to leadership by a faction led by Chivese. The judgment is of no material value to the issue of the declaration sought herein. In the answering affidavit the applicant denied that the deceased had given any instructions for his burial nor that his grave be turned into a shrine for members of the first respondent to make yearly visits thereat. The applicants averred that the annual visits did not arise from a death wish by the deceased but was a decision by follows of the first respondent to do the visits according to their beliefs. The applicants questioned the alleged burial deposition as there was no will to evidence the alleged burial wishes of the deceased. The applicants averred that the deceased did not suddenly fall ill and as such he had ample time to and could have recorded his wishes. The applicants averred that it was unconscionable that as children of the deceased they can be held to have no say on what happens to their father’s remains. The applicants strongly expressed their sentiments in paragraph 4 of the answering affidavit inter alia as follows 4……. It is unconscionable for members of the first respondent to decide what should happen to our father’s remains and for their decision to be held against and above our wishes. We also have a right to visit our fathers resting place and lay flowers on his grave as and when we feel like it. This is consonant with our African religion and tradition. It is also a biblical tradition that the children should burry and have access to their father’s grave. As Africans a tomb of an illustrious ancestor is a very important symbol of our heritage existence and pride. Luke what I mentioned within founding affidavit, if we had not been deemed access to our fathers grave then this application would not have been made. (Underlying own emphasis). It is the behavior of the first respondent that led to this application being filed. We have genuine grievances and we seek the probation of the court for the to be considered” It is of course an unfortunate setualion where recording to the applicants they have come to court because of an alleged belligerence by the first respondent. One cannot help but note that the nature of the dispute is one which the parties can resolve if Grod faith and bona fides are exerused by the parties. This observation and comment is of course made as an aside. The court deals with what is before it and the evidence adduced by the parties. In relation to the allegation that the deceased instructed his most senior Pastor Kunzanzira and senior wife Mai Magi Matanhire that he should be buried at Dandaza Hill, the applicants denied that such instruction existed. They averred that they are the ones and their other siblings who engaged with authorities to allow the deceased’s remains to be brought to Zimbabwe (then Rhodesia) for burial. The applicants averred that they were denied entry into Zimbabwe and could not spearhead the burial. They averred that the first respondents members then took advantage of the situation to give a false narrative that the deceased had requested to be buried where they buried him and that he wanted the place turned into a shrine. The applicants further averred that there were succession wrangles between the deceased’s late wives Magi Matanhire and Rozi Ngosi and that the false narrative was also intended to quell the wrangle. The false narrative according to the applicants was now being used to deny them access to the place of burial. There can be no doubt that the background to the burial of the deceased remains a controversial issue. The applicants deny the respondents narrative. None of the person to whom the deceased allegedly confided in relation to his death wishes is there or attest to that issue. The depositions of the deponent to the founding affidavit are hearsay. Even though she professed to having knowledge of the facts she deposed to, she did not advert to the sources of such knowledge. It is also evident that no other siblings of the applicants have, participated in this application. This does not however take away the applicants right to make the application. The deponent to the first respondents’ affidavit stated that the first applicant was disowned by the deceased during his lifetime and that the first applicant “could not culturally and morally go against the wishes of the dead worse his father in his case”. The significance of this averment is that the first respondent recognizes the importance of cultural and moral standards as well as their normatives. The applicants in this regard averred that culturally they are the ones who have a say over the burial of their father and must have access to the place where he is baried. The crux of the application is however for the court to determine whether or not the applicants have a right to exhume the remains of the deceased and whether or not the court should grant the declaration sought. The High Court is empowered to grant a declaratory order in terms of the s 14 of the High Court Act, [Chapter 7.06] which reads as follows: “14 HIGH COURT MAY DETERMINE FUTURE OR CONTINGENT RIGHTS The High Court may, in its discretion, at the instance of any interested person enquire into and determine any existing future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.” In the case of Zezere v Earthwales (Private) Limited & Anor HH 26/24 Manzunzu J in relating to the requirements to be satisfied for a declaratur to be issued in terms of s 14 of the High Court stated as follows at p 3 of the cyclostyled judgment: “The law governing applications for declaratory orders in terms of this s 15 well settled. The applicant must show that he/she is An interested person That there is a right or obligation which becomes the object of ...... That he is not approaching the court for what amounts to a legal opinion upon an abstract or academic matter. That there is an interested party upon which the declaration will be bending , and That consideration of public policy favours the issuance of the declarator See Movement for Democratic Change v The President of the Republic of Zimbabwe & Ors HH 28/07; RK Footwear Manufactures (Pvt) Ltd v Book Bocek Sales (Pvt)Ltd 1986 (2) Ltd 209; Family Bought Friendly Society v Commissioner of Inland Revenue & Anor 1995 (4) SA 120 (T)” In the case of Newton Dongo v Joytindra Natverial Naik & 5 Ors Sc 52/20 gwaunza DCJ set out the test for the granting of declaratory orders sought in terms of s 14 of the High Court Act, at para 11 as follows: “11 The appellants application for a declaratur in the court a quo was made in terms of s 14 of Act which states as, follows: “The High Court may in its discretion at the instance of any interested person enquire into and determine any existing future or contingent right or obligation not withstanding that such person cannot claim any relief sought consequential upon such determination.” Implicit from a reading of the provision is that a declaratur is sought by a person with an interest in the subject matter of the dispute inquiring or seeking a determination of an existing, future or contingent right. In Johson v Agricultural Finance Corp 1995 (1) ZLR 65 (S) gubby CJ had occasion to consider when a declaratur should be granted. The learned Chief Justice remarked as follows at 72 E-F. “ the condition precedent to the grant of a declatory order under s 14 of the High Court of Zimbabwe Act, 1981 is that the applicant must be an ‘interested person’ in the senseof having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court. The interest must concern an existing future or contingent right. The Court will not decide abstract academic or hypothetical questions unrelated thereto. But the presence of an actual dispute or controversy between the parties interested is not a prerequisite to the exercise of jurisdiction.” The learned Deputy Chief Justice went further to instructively state at para 12 of the same judgment as follows: [“12] On the basis of this authority, before a court can exercise its discretion to grant a declaratur it must satisfy itself that the person seeking such relief has a real interest in the matter and that there is an existing contingent or future right to protect Cilliers AC Loots C and Nel HC in their book Herbstien and Van Winsen; The Civil Practice of the High Courts of South Africa (5th edition ; Juta and Co Ltd Cape Town 2009) state as follows in this regard at p 1433 to 1434; “It is a trite principle of the common law that an applicant seeking a declaration must have a direct interest in the right to which the order will relate. The right must attach to the applicant and not be a declaration of someone else’s right. It is essential for a prospective litigant to have the necessary locus standi in law when commencing proceedings. This requires that a litigant should be both endowed with the necessary capacity to sue and have a legally recognized interest in the relevant action to seek relief.” In their submissions, applicants through their counsel and as advanced in heads of argument submitted that the applicants had a direct and substantial interest in the exhumation and reburial of the deceased. It was submitted that the deceased did not leave any testament written or otherwise which spelt out issues concerning his burial. The applicants submitted that as the first born biological son of the deceased he according to Roman Dutch law had a duty and the right to bury the deceased. Reliance was placed on the cases of W & Others v S & Others 360/16 (2016) ZAW CHC 49 and Shi – ML V B071/hilo – KA and 7 Others SAHCO 10091/2020. The first case is to the effect that the heir has a right to decide on the issues of the burial of the deceased to which he/she is heir. The second case is to the effect that courts have modified the approach to the rule that the heir is solely responsible for burial issues by noting that considerations of fairness to and expectations of the community are matters to properly take into account. The first respondent in the heads of argument and submissions by counsel to the court did not dispute that the applicants had a real and substantial interest in the matter. Indeed such a position would have been untenable since the deponent to the first respondent’s opposing affidavit did admit that customs of Zimbabwe would apply. She stated that customarily the first applicant was according to custom enjoined not to go against the wishes of the deceased as his father. It is also my observation that the C onstitution 2013 provides in section 3(i)(e) on founding values and principles that: “13.1. Zimbabwe is founded on respect for the following values and principles: _ _ _ _ _ _ _ _ _ _ the nations diverse cultural, religious and traditional values.” The applicants averments that it accords with traditional customs that children MUST bury their parents and have access to their graves, build tombstones and preserve the graves as family heritages was correctly submitted. The direct and substantial interest of the applicants in the order they seek is amply demonstrated. A judgment for or against them in the subject matter will affect them substantially. The interest is not academic The applicants allege that because of denial of access to their father’s burial place, they are prejudiced as they cannot have any connection with the place where the remains of their father sit. They seek a reburial to a place where the applicants would not be denied access. The applicants have locus standi therefore to bring this application. The right to seek the declaration is not synonymous with the grant of the right. All the circumstances of the case are considered including the laws which impact on the relief sought. The applicants submitted that the deceased was a true worshipper of God who never wished to be idolized as a symbol of worship or to be enstrined with his grave being used for the benefit of leaders of the first respondent. It was submitted the issue of exlimation was produced for under the Cemeteries Act [Chapter 5:04] The applicant without quoting any specific provisions of the Cemeteries Act averred that the general rule on exhumations and reburial of humans remains was that it shall not be done unless authorized by the relevant sphere of government as permitted by relevant local government laws in whose jurisdiction the exhumation will take place or through a court order. The applicant did not cite any specific provision of the law on the point advanced .The failure to relate to the specific law or provisions therefore places the court in a difficult position of having to look for the law by itself. It is the duty of the counsel to be specific when they plead facts and to correctly cite the law. The first respondent averred that the application was frivolous because it was being made more than 20 years after the death of the deceased. It was however noted that prescription was not pleaded. It appears that the parties were in the courts on related matters in the intervening period. Nothing will turn on the issue of the delay to bring this application The first respondent submitted that the remains of the deceased lay …….in or at a shrine and not a cemetery. It was submitted that a cemetery was described as a “public cemetery” in the definition section under the Cemetries Act. The submission was also made that Hungwe J (as he was then) had in judgment HH 164/2003 stated that the place where the deceased’s remains was interred was a shrine which was more that a graveyard but a place of worship. The remarks were obiter of course but in any event the issue of whether or not children of the deceased could claim the remains and seek the exhumation of the same. There was no declaration made that the remains of the deceased had become the property of the first respondent. It is in my view open to the applicants in the circumstances to seek the exhumation of the deceased’s remains. The applicants cannot be deborted from making an exhamalion claim of the remains of the deceased. The matter is however not that simple. The first respondents’ counsel referred to s 38(4) of the Cemetries Act. It provides as follows: “(4) Subject to subjection (5) – The Minister or any person authorized by him; or With the approval of the Minister, a local authority or a local board established in terms of the Urban Councils Act [Chapter 29:15] may revently remove or cause to be removed the human remains; memorials and memorial and Monuments in any closed cemetery from that cemetery to another cemetery” There is no doubt that the issue of places of burial and exhumations involve the Minister who administers the Cemetries Act. The first respondent’s counsel stremously argued that the Act in relation to exhumations or body removals applied to a closed cemetery. It was argued that the Act applied to a public cemetery. I did not find the definition of public cemetery in the Act It appears to me therefore that a public cemetery has to be a place where the pubic can be buried and have access thereto. There was no submission made that the public cannot be buried at the same place as where the deceased is buried. If for example no one else can be buried there, then it is a place closed to further burials. A cemetery is a place where dead people are buried. There is nothing in the law to indicate that where the place at which dead body is buried has been turned been turned into a shrine, then no exhumation may be done. The first respondent is however, correct that whether a cemetery is closed or not is a Ministerial driven process in terms of s 36 of the Cemetries Act. In terms thereof the Minister acting with Presidential consent may direct the closure of a cemetery. It is only from a closed cemetery that according to the first respondent, an exhumation may be made. I propose to refrain from addressing and resolving the submission to avoid prejudging the matter. It is clear that process and procedures for exhumation of buried remains of deceased people are governed by statute. An exhumation must be authorized by the Minister of Local Government, Rural and Urban Development or other Minister whom the President may assign the administration of the Cemetries Act. The applicants did not aver that they ever sought authority or approval of the responsible Minister or that they followed stalulory procedure. They however accepted that exhumations had to be authorised by Government or by a court order. Taking up from the applicant’s submission, the courts will not interfere in matters of executive function and are moreso governed by statute. The role of the court is not spelt out in the Cemetery Act. However the role of the Minister is spelt out. The doctrine of separation of powers must be respected. The courts do not interfere with executive functions save on review on cognizable grounds of review. The applicants did not justify their approach to court as the point of first call. The applicants have established their case for a declaratur that they have a right to seek the exhumation of the deceased’s remains. The applicants have established their right and substantial interest in the exhumation which they want to seek. They however want the court in the subsidiary case HC 1785/23 to grant consequential relief that they can proceed with exhumation. The order sought reads as follows from the draft order: “IT IS ORDERED THAT: The second respondent is ordered to issue a reburial permit to enable the disinterment of the remains of the late Johanne Masowe Shoniwa Masedza. The third to fifth respondents be and are hereby ordered to enforce the disinterment of the remains of the deceased described in para 1 from the grave site at Gandanzara, Rusape. No costs of suit are awarded unless there is opposition to the application in which it is prayed that the (sic) of this application be awarded to the applicants and be payable by the respondents opposing this application, the one paying the other to be absolved.” The costs order is again toutologus but that is only by way of observation. With the applicant and first respondent having submitted that the exhumation is governed by the Cemeteries Act, it is clear that the consequential relief cannot be granted as claimed because the applicant did not follow the requirements for exhumation. The matter must end there because commenting further may confuse the processes to be followed with parties then arguing that the court has already decided the issues. The application for consequential relief Case No. HC 1781/23 does not preclude the applicants from seeking consequential relief after following due process. The remaining issue pertains to costs. This is an emotive matter. The applicants have cause to come to court to follow up on the remains of their father. The first respondents’ attitude is that the applicants are a bother going so far as to make personal attacks on the first applicant. The issue between the parties remain a live one and hopefully it will settled sooner than later. In exercising the courts’ discretion on costs, an appropriate order is one in which each party bears its own costs I dispose of the into applications as follows: IT IS ORDERED THAT: The main application Case No. HC 1769/23 succeeds. The applicants have a right to exhume the remains of the late Johanne Masowe Shoniwa Masedza which are buried at Gandanzara Shrine Rusape, subject their following due process. Case No. HC 1785/23 is dismissed. In respect of both Case No. HC 1769/23 and HC 1785/25 each party shall pay its own costs. This order disposes of both matters and the Registrar must file a copy of the order in both case Nos HCH 1769/23 and HCH 1785/23 Chitapi J: …………………………………………… Mushangwe & Company, applicants’ legal practitioners Venturens & Samukange, first respondent’s legal practitioners