Benson Makachi & 7 Others v Evangelical Church of Zimbabwe

The appellants were former members and leaders of the respondent church, a common law universitas governed by its constitution. The first appellant served as Bishop from 2009-2014 despite lacking the required theological degree. When his term expired, he was disqualified from re-election due to lack of qualifications and being over the retirement age of 65. The church convened an AGC on 20-21 March 2015 to elect a new Bishop. The first appellant convened this AGC but then boycotted it along with most other appellants. The AGC proceeded without quorum and elected Isaac Soda as Bishop. On 28 March 2015, the appellants held a clandestine "Emergency Extra-Ordinary General Conference" where they renounced Soda's election, excommunicated Council members who supported the AGC, and declared the first appellant as substantive Bishop. They established parallel structures, opened separate bank accounts, and allocated themselves leadership positions. A second election on 10 September 2016 again elected Isaac Soda, but appellants disputed this. The respondent sought a declaratory order that appellants had seceded and were not entitled to use the church's name and properties.

• Whether the court a quo erred in finding that the appellants had seceded from the respondent church
• Whether the appellants were entitled to use the respondent's name, uniforms and properties
• Whether natural persons could be members of the church or only local congregations
• What are the legal consequences of secession from a voluntary religious association
• Whether adherence to the church's constitutional principles or allegiance to a particular leader/majority determines which faction represents the original church
• Whether a party can obtain judgment on issues not pleaded in their declaration

The appeal was dismissed with costs. The High Court's declaratory order was upheld, confirming that the appellants were no longer members of the respondent church and were not entitled to use the respondent's name, uniforms, and properties. The order evicting appellants from the church premises was also upheld.

When a schism occurs in a voluntary religious association, the faction entitled to the church's property and name is determined by adherence to the fundamental constitutional principles upon which the church was founded, not by allegiance to a particular leader or majority support. Those who act in contravention of the church's constitution and create parallel structures outside constitutional provisions are seceders who have no right to claim church property, even if they constitute the majority. A court cannot grant judgment on a cause of action that has not been pleaded; parties are bound by their pleadings and cannot obtain relief on issues not raised in their declaration without proper amendment.

The Court observed that while both elections of Isaac Soda (on 21 March 2015 and 10 September 2016) were afflicted with irregularities, and the constitution did not provide for a re-run election, the respondent had not pleaded for a declaration of Soda as the legitimate Bishop and therefore the court could not make such a declaration. The Court also commented critically on the appellants' convoluted heads of argument, noting that while legal practitioners may have different styles, whatever style is adopted must be clear and consistent with the grounds of appeal. The Court noted that the issue improperly became focused on Isaac Soda's election at the pre-trial conference despite this not arising from the pleadings, which was clearly improper.

This judgment is significant in South African and Zimbabwean law on voluntary religious associations for establishing clear principles on how courts determine legitimacy in church schisms. It reinforces that adherence to constitutional principles and governance structures, rather than majority support or allegiance to particular leaders, determines which faction represents the original church. It confirms that seceders forfeit all rights to church property regardless of their numerical strength. The case also reaffirms fundamental procedural principles that courts cannot determine issues not properly pleaded and that pleadings define the parameters of disputes. The judgment provides important guidance on how courts should approach internal church disputes while respecting church autonomy and constitutional governance.