THE battle for control of Anglican Church property in the Harare Diocese was yesterday finally brought to an end after the Supreme Court ruled that Dr Nolbert Kunonga and his followers were no longer part of the Church of the Province of Central Africa. Dr Kunonga has lost the legal battle to control Anglican properties with the judiciary's apex court vesting such control in Bishop Chad Gandiya.
This means Dr Kunonga will have to surrender everything belonging to the church that is in his hands.
After the ruling, Bishop Gandiya and his followers broke into wild celebrations outside the Supreme Court with some singing hymns and dancing.
The song "Mhururu kumatenga" dominated the celebrations as human rights activist Jestina Mukoko and other CPCA parishioners ululated as they marched past Parliament Building towards the entrance to the church's head office.
Deputy Chief Justice Luke Malaba quashed the decision by the High Court granting Dr Kunonga and his followers power to control the church property in the name of the Diocesan Trustees of the Diocese of Harare.
"The appeal in the case of the Church of the Province of Central Africa versus the Diocesan Trustees for the Diocese of Harare SC180/09 succeeds with costs.
"The judgment of the court a quo in case Number HC 4327/08 is set aside and substituted with the following order: 'The appeal is dismissed with costs'.
"The appeal in the case of the Church of the Province of Central Africa Versus Bishop N Kunonga and others SC130/10 be and is hereby allowed with costs.
"The judgment of the court a quo in HC6544/07 is set aside and substituted with the following order: 'The claim is granted with costs'" the Supreme Court ordered.
Justice Malaba ruled that Dr Kunonga and his followers broke out of the Church of the Province of Central Africa in 2007 citing differences on the tolerance of homosexuality and that they were not entitled to any property.
"The court agrees with Mr (Advocate Adrian de Bourbon) that the evidence proved that Dr Kunonga and his followers created the schism.
"The schism in the circumstances of this case is clear evidence of withdrawal of membership by Dr Kunonga and his followers from the appellant church. They left the church and then formed the new church . . ." ruled the court.
It was the court's finding that anyone who leaves a church for some reason should leave the property with the remnants no matter how few they are.
The court also ruled that Dr Kunonga was wrongly in control of the properties since the schism in 2007.
He has been using the property to further the interests of their new church.
"When one leaves a club, he or she does not take its property with him or her.
"It has long been established as a salutary principle of law in this area of property ownership that when one or more people secede from an existing church they have no right to claim church property even if those remaining members of the congregation are in the minority.
"The learned judge (High Court) was wrong in giving Dr Kunonga and his followers the right to possess and control the property of the church without its consent.
"They had no right to continue possessing the congregational buildings when they had departed from the fundamental principles and standards on which the church is founded.
"It would be unreasonable to think that the trust with which they would have been expected to act authorised Dr Kunonga and his followers to use the property for the achievement of the interests of their new church," read the judgement.
The court found that Dr Kunonga was involved in the formation of a new church and was consecrated as bishop for the Church of the Province of Zimbabwe, a position equivalent to that of CPCA Archbishop, an indication that he was operating a parallel church.
Justice Malaba threw out the argument by Dr Kunonga's lawyers that his resignation or withdrawal was not provided for in the canons and that it was null and void.
Although the court could not rule on the propriety or otherwise of homosexuality, it held that Dr Kunonga clearly decided to move out of a church that tolerated homosexuality and that he could not claim to be part of that same church.
Bishop Gandiya, who could not hide his joy, addressed the celebrating crowd at the entrance of the Supreme Court.
"As you can see I am happy. We have been praying hard. We waited and now we have been vindicated. God has answered our prayers. You will be informed as soon as possible as to when we will move back into our properties.
"This is notice for Kunonga to move out. Kunonga is not a bishop in our church," he said.
Mr Philip Changadzo of St Paul's Church in Marlborough said the judgement had been long over due.
"This could have happened a long time ago. We have been suffering with some of us worshipping under trees. But God has his own time. This has been a great day for the Anglicans," he said.
Mr Tendai Ngwera of St Michael's Church in Mbare said the parishioners had suffered enough at the hands of Bishop Kunonga's followers.
"We endured the rains and cold while worshipping outside for all these years. We suffered a lot at the hands of Bishop Kunonga's people. We are vindicated at last," he said.