Mugabe’s Judges grant ZANU-PF Bishop control over Harare Anglican diocese

ZIMBABWE – HARARE – Zimbabwe’s partisan Supreme Court has declared ZANU-PF apologist Bishop Nolbert Kunonga and his board of trustees legitimate and granted them control of all properties belonging to the Anglican Diocese of Harare.

Deputy Chief Justice Luke Malaba yesterday upheld an application by the Diocesan Trustees for the Diocese of Harare led by Bishop Kunonga.

The trustees sought to nullify an appeal by the Church of the Province of Central Africa challenging a High Court decision by Justice Ben Hlatshwayo to declare the board legitimate.

Bishop Kunonga and the trustees argued that Justice Hlatshwayo’s July 24, 2009 should be operational.

Mr George Chikumbirike of Chikumbirike and Associates represented the Diocesan trustees for the Diocese of Harare while Gill, Godlonton and Gerrans appeared for the Church of the Province of Central Africa.

“It is ordered that the appeal noted in case SC 180/09 be and is hereby dismissed in terms of rule 36(3) of the Supreme Court Rules with costs on a legal practitioner and client scale,” read part of Justice Malaba’s ruling.

Justice Malaba said Church of the Province of Central Africa’s appeal did not follow the bona fide purpose of testing the lower court’s judgement.

“It is clear from the promptitude of the action taken by the respondent in noting the appeal on the same day the interim order was made…

“The substantive questions in dispute between the parties were yet to be determined on the return date.

“The interim order decided nothing of substance,” Justice Malaba said.

In his view, Justice Malaba said, the appeal lodged by the Church of Province of Central Africa was a legal stratagem designed to indirectly secure the suspension of operation of the order granted by Justice Hlatshwayo.

The Church of the Province of Central Africa intended to take advantage and consecrate a new Bishop for the Diocese of Harare, he said.

“When a party abuses the legal process in this way, he should not expect protection from the court when the other party seeks redress of his conduct.

“I am unable to exercise the discretion reposed in the Judge under rule 36(3) in favour of respondent,” he said.

Justice Malaba noted that the Church of the Province of Central Africa had failed to act in accordance with requirements of the Supreme Court Rule 46.

“On September 16, the applicant filed an application with the Registrar for dismissal of the appeal by reason of failure by respondent to comply with the requirements of rule 46.

“…The rule require that the notice should indicate that the application is to be made on a date in future, not less than five days from the date of its service on the respondent,” he said.

The judge said it was clear from the nature of the order sought before Justice Hlatswayo that what would be restored if the Supreme Court appeal by the Church of the Province of Central Africa was dismissed would be the status quo.

“Whatever that to respondent would be fair result or not, it is an irrelevant consideration.

“The result would be in conformity with the legal position as determined by the provisional order made by the court a quo (lower court),” he said.

Justice Malaba said at the time the Church of the Province of Central Africa filed its opposing affidavits, it was under an automatic bar imposed on it as a result of its failure to furnish the security for costs of appeal within the prescribed time.

“It is because of the position of no right on the part of the respondent arising from its own conduct of non-compliance with the rules of the court that the applicant acquired right to make the application for dismissal of appeal.

“…There was no application for condonation of non-compliance by the respondent with requirements of sub rules (2) and (5) of rule 46 and extension of time within which to comply with the rules,” he said.

For the Church of the Province of Central Africa, Advocate Happious Zhou had argued that it was not necessary for purposes of the exercise for his client to make an application for condonation.

The judge however said an application for condonation is required without delay whenever a party realises they have not complied with a rule of the court.

“In the absence of a substantive application for condonation of no compliance with the rules, there was no basis on which the discretion vested in the judge under rule 36(3) could be exercised in favour of respondent.

“It would have been the making of the application for condonation that would properly have placed matters for consideration,” Justice Malaba said.

He blamed the Church of the Province of Central Africa for making a casual attitude to a grave problem.

“Without an application for condonation it proceeded to claim relief as if no-compliance with rules of court was an inconsequential matter.

“…One cannot consider absolving the respondent from the consequences of lack of diligence committed by its legal practitioners, when there is no suggestion in its papers that the ‘oversight’ was that of a legal practitioner,” he said.

The two sides have been fighting over control of properties after Bishop Kunonga withdrew from the Province of Central Africa.

Bishop Kunonga withdrew after slamming alleged condoning of homosexuality.

The differences have led to physical clashes leading to police intervention.