Hilary Muza 
IN last week’s piece, I dealt with some of the key points to present to a court when handling a chieftainship dispute. This week, I turn to ecclesiastical disputes. My goal is to make you aware of the main issues that parties must be mindful of to which a court will apply its mind. These issues often determine whether or not an ecclesiastical legal suit succeeds or fails.
Locus standi
First, the party bringing the suit will invariably claim that they have authority to stand on behalf of the church. The church itself will often be cited as one of the applicants/plaintiffs as the case may be. A church, in legal parlance, is a common law universitas, meaning that it is a voluntary organisation that is governed by a constitution. A principal characteristic of a common law universitas is that is has the capacity to sue and be sued.
Where a church sues, therefore, it should do so only on the authority of the constitution. If a litigant is not clearly empowered by the church constitution to bring a claim to court, then a court of law will interrogate that authority and make a determination on it.
This is what happened in the case of Diocese of Harare v Church of the Province of Central Africa & Anor HH 6/2008, where the court determined that the applicant had not complied with certain provisions of the constitution that, if complied with, would give him the requisite locus standi (or legal standing/capacity to bring a legal suite).
“The question of locus standi is central to the determination of the availability of the remedy to the parties before a court…A church is a voluntary association and as such the general principles applicable to such associations should, in my view, apply…The constitution of a voluntary association, which together with its rules or regulations constituted the agreement entered into by its members not only determined the nature and scope of the association’s existence, but also prescribed and demarcated the powers of the association and its office-bearers.”
The court’s words simply mean that if you do not comply with the church constitution, chances are you will not succeed in litigation because you might lack sufficient legal standing to sustain a legal battle.
Exhaustion of domestic remedies
The courts are alive to the fact that they are probably not the best forum for deciding matters of faith. Makarau JP (as she then was) in Mudzimuunoera Apostolic Church Board of Trustees v Mudzimuunoera Apostolic Church-Guruve Division & Anor HC 92/10 said as much: “Matters, ecclesiastical, are best left to courts that are equipped to deal with matters of faith, where evidence of the facts being alleged may not be necessary.”
As a matter of law, a litigant must only approach a court after exhausting all internal remedies. Where no internal remedies are sought, there must be a very good reason. So if a church’s constitution provides for means of resolving any disputes internally, those means should be fully ventilated before coming to court.
Bhunu J (as he then was) in Church of the Province of Central Africa & Anor v Kunonga & Ors put it aptly when he said, “[what boggles the mind is why the Church prefers secular (sic) courts to its own courts only to defy the secular (sic) court judgments when they turn out to be adverse to its interests. Submission to the circular courts’ jurisdiction however, entails the corollary obligation of obeying and abiding with the courts’ judgment and orders.”
This is a gentle warning that when litigants take matters of faith into the realm of the secular, they will be bound to obey whatever ruling is made. Being confident one has a strong case must be a central consideration in this regard.
Effective control
In most ecclesiastical battles, both parties normally claim authority to lead in terms of the constitution. It is the interpretation of the constitution that will be in question. Invariably, however, there is a party exercising effective control over the church. Effective control is defined as a relationship which, if regard is had to the facts, points towards the possibility of exercising decisive influence.
Simply put, if there are two church leaders in a battle for authority, the courts will consider who between the two is conducting church services, running the church’s administration, is widely accepted as the leader by the church membership, and so on. All these factors point towards decisive control. The words of Hungwe J (as he then was) in the Diocese of Harare case have a bearing on the conception of effective control: “It is clear to me that the applicant has come nowhere near demonstrating that it has placed itself within the purview of those who confess to be Anglicans and who abide by the constitution of their church.”
The question of effective control can be a significant deciding factor in any case as it was in the recent case of Mugodhi Apostolic Faith Church v Mugodhi HH 463/21. Ultimately, seeing how reluctant the courts are to deal with ecclesiastical disputes, it is always wise for a litigant to ensure that they plug all the gaps in their case. Once these commonly addressed considerations are placed to the side, it allows for the real issues of contention to be decided.
Muza is an admitted legal practitioner, conveyancer and notary public. He writes in his personal capacity and is reachable at hilarykmuza@gmail.com and at 0719 042 628.
