11 December 2012

Zimbabwe: Kunonga Loses Appeal

ARCHBISHOP Nolbert Kunonga's Anglican Church of the Province of Zimbabwe's fresh bid to control Anglican Church properties yesterday hit a snag after the High Court threw out his church's urgent chamber application.

Judge President George Chiweshe ruled that the Supreme Court had already determined the property ownership case.

To this end, he said, he had no jurisdiction to hear the fresh application by Archbishop Kunonga and his ACPZ.

Archbishop Kunonga's church was ordered to pay the costs of the suit.

Last month, Deputy Chief Justice Luke Malaba ruled that the property in question belonged to the Church of the Province of Central Africa's Harare Diocese led by Bishop Chad Gandiya.

Justice Chiweshe said lawyers for CPCA, led by Advocate Thabani Mpofu, convincingly argued that the High Court had no jurisdiction to hear the matter.

"The parties have referred me to numerous authorities in support of their respective positions. I thank them for their diligent research and their lively arguments.

"In the final analysis, I agree with the mother church that this matter is res judicata (matter already decided) -- the Supreme Court has spoken.

"Accordingly, I hold that I have no jurisdiction to entertain this application. For that reason, I would, as I hereby do, dismiss this application with costs," ruled Justice Chiweshe.

Adv Mpofu and Mr Raymond Moyo of Gill Godlonton and Gerrans represented CPCA while Mr Jonathan Samukange and Mr Tafadzwa Hungwe of Venturas and Samukange acted for ACPZ.

Justice Chiweshe said Archbishop Kunonga's ACPZ should have approached the Supreme Court for determination on whether it was bound by the Supreme Court judgment delivered in favour of CPCA.

"The answer to these questions requires an interpretation of the scope and extent of the Supreme Court judgment in SC48/2012.

"The High Court is not the appropriate forum for that kind of exercise. The applicant church should have approached the Supreme Court for directions," ruled Justice Chiweshe.

However, Justice Chiweshe said CPCA's decision to continue with evictions in the face of a notice of set down was wrong.

"I must at this stage state that it is the practice, custom and tradition of this court that when an urgent matter has been set down, it suspends execution until the matter is heard.

"Mr Samukange's letter of complaint was copied, among others, to the mother church's (CPCA) legal practitioners. Notwithstanding that intimation, the mother church proceeded with these evictions," said Justice Chiweshe.

Archbishop Kunonga and his followers were evicted from church properties that fall under ACPCA's Diocese of Harare on the strength of the Supreme Court order.

Mr Samukange said he had instructions to note an appeal at the Supreme Court.

"We are appealing against the decision. We will be filing our notice of appeal tomorrow (today). I think the judge erred . . . the Anglican Church of the Province of Zimbabwe is different from Dr Kunonga," said Mr Samu-kange.

Meanwhile, Bishop Elson Madoda Jakazi of the Anglican Diocese of Manicaland is seeking to revive his battle to control the diocese, a month after his Supreme Court appeal was struck off the roll.

In October, Justice Malaba struck off the notice of appeal on the basis that it was fatally defective.

He is now seeking permission to file a fresh notice of appeal out of the stipulated period.

Supreme Court judge Justice Vernanda Ziyambi yesterday heard arguments from both parties and reserved ruling on the condonation application.

Bishop Jakazi was the leader of the Manicaland Diocese until September 2007 when he wrote a letter of resignation citing differences on the alleged tolerance of homosexuality by the mother church.

CPCA accepted the resignation but Bishop Jakazi later made a U-turn and sought to nullify his resignation and withdrawal from the church.

The bid failed and the church appointed a new bishop to head the diocese.

Bishop Jakazi then filed an urgent chamber application to block the consecration of the new bishop, but Justice Chinembiri Bhunu threw out the application.

He filed a notice of appeal that was dismissed in October.

Bishop Jakazi is now seeking to revive the battle.

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