Apostolic Faith Mission in Zimbabwe v Simon Nyahwema

The applicant (Apostolic Faith Mission in Zimbabwe) was the owner of a mission house and church building at Chizinga Assembly, Chizinga Shopping Centre, Mhondoro. In 2018, the church faced a leadership dispute between two factions which resulted in a legal battle that was finally resolved in Case Number SC 67/21 in favor of the leadership of Amon Dubie Madawo. During this dispute, Pastor Kanhukamwe, who was stationed at the Chizinga Assembly, abandoned the property and deployed the respondent (Simon Nyahwema) without the authority or consent of the applicant. The respondent was a member of a dissident splinter group that formed their own church called Apostolic Faith Mission of Zimbabwe (a different entity). The respondent had no legal relationship with the applicant as an employee, congregant, or otherwise, but continued to occupy the premises. The applicant sought to evict the respondent and all those claiming occupation through him.

• Whether there existed a material dispute of fact requiring oral evidence that precluded determination by application
• Whether the property in question was community property or church property
• Whether the applicant proved ownership of the property for purposes of actio rei vindicatio
• Whether the respondent had any legal right to occupy the premises
• Whether members of a church who break away to form a splinter group retain rights to church property

1. The respondent and all those claiming occupation through him at Chizinga Assembly, Chizinga Shopping Centre, Mhondoro were ordered to vacate the premises within 48 hours from the date of the order. 2. The respondent was ordered to pay costs of suit on a legal practitioner-client scale.

1. For purposes of actio rei vindicatio, an owner must prove ownership of the property and that the property is in possession of another at the commencement of the action. Once ownership is proved, the onus shifts to the possessor to prove a right to retention. 2. When members of a church break away to form a splinter group, property that was acquired or built when they were part of the original church entity remains with that original entity. The breakaway members do not take church property with them simply because they participated in its development while they were members. 3. To establish a material dispute of fact requiring oral evidence, a respondent must do more than make bare denials - the defense must be set out in clear and cogent details. A mere allegation of a possible dispute of fact is not conclusive of its existence. 4. A person who has no legal relationship with a church (not an employee, congregant, pastor, or agent) and who occupies church property without the owner's consent is in unlawful occupation and subject to eviction.

The court made observations about the need for a robust common-sense approach to disputes on motion, noting that justice can be defeated or seriously impeded by an over-fastidious approach to disputes raised in affidavit. The court emphasized that courts must not hesitate to decide issues of fact on affidavit merely because it may be difficult to do so, as otherwise the effective functioning of the court can be circumvented by simple and blatant strategy. The court also noted that the splinter group (Apostolic Faith Mission of Zimbabwe) is a different entity altogether and should acquire its own property rather than occupying the property of the original church.

This case reinforces important principles of Zimbabwean property law and church law. It clarifies that members who break away from a religious organization to form a splinter group do not acquire rights to the original church's property, even if they participated in building or developing that property while they were members. The case demonstrates the application of actio rei vindicatio in the context of church property disputes and confirms that bare denials without supporting evidence are insufficient to establish material disputes of fact requiring oral evidence. It also illustrates the courts' willingness to take a robust common-sense approach to resolve disputes on affidavit evidence where the opposing party's allegations are vexatious.