‘Bulawayo High Court judges don’t un­der­stand law’

Chronicle (Zimbabwe) - - Front Page - Mashudu Net­sianda

THE Deputy Chief Jus­tice Luke Mal­aba yes­ter­day blasted his sub­or­di­nates at the Bulawayo High Court for “poorly” han­dling mat­ters in­volv­ing ri­val camps fight­ing for con­trol of the Apos­tolic Faith Mis­sion of Africa (AFMA, say­ing they ex­uded a lack of un­der­stat­ing of the law.

DCJ Mal­aba, who was sit­ting with Jus­tices Tendai Uchena and An­to­nia Gu­vava dur­ing a Supreme Court cir­cuit in Bulawayo, made the re­marks as he quashed rul­ings by the High Court judges granted in favour of a break­away group led by Rev­erend Cle­ment Ny­athi.

Rev Ny­athi and a camp which was led by the late Rev Tony Tshuma have been locked in a pro­tracted le­gal wran­gle over the con­trol of the church’s as­sets.

“As we fi­nalise this mat­ter, I must make it known to you that we are wor­ried about the man­ner in which these cases were han­dled by the judges at the High Court. It is a clear in­di­ca­tion of lack of un­der­stand­ing of the law by judges who are fail­ing to ap­pre­ci­ate an in­ter­dict. Judges are sup­posed to be ser­vants and in­ter­preters of the law,” said DCJ Mal­aba.

He said the judges granted un­law­ful or­ders, some of which lacked merit and facts. DCJ Mal­aba said in some cases, a judge granted a re­lief which the ap­pli­cants had not sought in their draft or­der.

“Even if they are peo­ple of God you don’t grant them what they did not ask. The law doesn’t al­low that,” he said.

DCJ Mal­aba set aside all the five judg­ments of the High Court which were being ap­pealed against by the late cler­gy­man’s fac­tion, bring­ing to rest power strug­gles that have rocked the church since the be­gin­ning of 2014.

Bulawayo High Court judge Jus­tice Nokuthula Moyo, in Oc­to­ber 2014, or­dered Rev Tony Tshuma to step down as church over­seer and pres­i­dent.

Jus­tice Moyo de­clared Tshuma’s ap­point­ment as null and void on the grounds that proper pro­ce­dures were not fol­lowed when he was ap­pointed in 2008.

She or­dered the church to go back to the draw­ing board and elect a new leader and board in terms of the con­sti­tu­tion of 1986.

Jus­tice Moyo’s rul­ing fol­lowed an ur­gent cham­ber ap­pli­ca­tion by Rev Tshuma chal­leng­ing the Rev Ny­athi camp, which had ear­lier ap­plied to the court seek­ing an or­der declar­ing his ap­point­ment as null and void.

Jus­tice Moyo said Rev Tshuma and his board of trustees were not prop­erly elected in terms of the church’s con­sti­tu­tion.

“It’s the find­ing of this court that the sec­ond ap­pli­cant has no lo­cus standi or au­thor­ity to bring pro­ceed­ings in his of­fi­cial ca­pac­ity as the pres­i­dent or chair­man of the board of trustees. It’s also the find­ing of this court that the mem­bers of the board of trustees, who were elected con­trary to pro­vi­sions of the con­sti­tu­tion, are in fact not duly elected mem­bers of the board. Un­con­sti­tu­tion­al­ity begets il­le­gal­ity and un­en­force­abil­ity in my view. One can­not build some­thing out of noth­ing,” she said.

Rev Ny­athi ac­cused Rev Tshuma of con­niv­ing with some “few mis­guided in­di­vid­u­als” to impose him­self as the church’s leader soon af­ter the death of his pre­de­ces­sor, Rev Phile­mon Sibanda seven years ago. He ac­cused Rev Tshuma of fraud­u­lently amend­ing the con­sti­tu­tion with­out the knowl­edge of mem­bers of the church’s board of trustees.

The late Rev Mor­gan Seng­wayo founded the church, orig­i­nally known as the Apos­tolic Faith Church of South­ern Africa in Zim­babwe, in 1955.

Fol­low­ing Rev Seng­wayo’s death in 1982, Rev Sibanda was ap­pointed church over­seer. In 1985, squab­bles rocked the church fol­low­ing al­le­ga­tions of adul­tery against Rev Sibanda, which prompted him to break away from the orig­i­nal Pe­land­aba church with dis­grun­tled mem­bers form­ing their own church at Loben­gula Ex­ten­sion, re­nam­ing it Apos­tolic Faith Mis­sion of Africa.

Mean­while, Rev Rosewell Zulu was on Sun­day elected the new over­seer and pres­i­dent of the church, tak­ing over from Rev Tshuma who died in May.— @ mash­nets.

Deputy Chief Jus­tice Luke Mal­aba

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