Bethlehem Apostolic Church and Bishop Zacharia Caleb Gemu N.O v Rephio Chirumbwa and Others

A leadership wrangle arose within the Bethlehem Apostolic Church after Bishop Alfred Zamnkosini resigned on 12 June 2015. This led to various litigation. In HC 3350/17, TSANGA J granted a consent order on 17 October 2017 directing parties to return to the status quo as at the time of the bishop's resignation, appointing the second applicant (Zacharia Caleb Gemu) as acting bishop until 24 February 2018, when the church was to hold its annual general meeting to appoint a bishop in terms of the church constitution. The second applicant claimed he was elected bishop on 24 February 2018 and handed all church property and keys to the church building. On 29 March 2018, the respondents allegedly came to the church and forcibly evicted him and other church members and took away the keys. The applicants sought a spoliation order for restoration of possession. The respondents disputed that the second applicant was elected bishop and alleged irregularities in the process, claiming the first respondent was elected bishop instead.

• Whether the applicants had peaceful and undisturbed possession of the church premises prior to the alleged spoliation
• Whether the applicants were unlawfully despoiled of possession on 29 March 2018
• Whether a spoliation order should be granted despite disputes about the outcome of the bishop election
• Whether material disputes of fact existed that would prevent the matter from proceeding as an application

1. The respondents are ordered to restore the status quo ante which was obtaining prior to 29 March 2018 and restore the applicants into the church temple and premises at Stand No. 3874 Caledonia, Harare forthwith. 2. The respondents are ordered to release and return the temple keys to the applicants within 24 hours of the date of this order. 3. The respondents are to pay costs of suit on a client-attorney scale, jointly and severally, one paying, others to be absolved.

In spoliation proceedings, the court must focus on the two essential requirements: (1) peaceful and undisturbed possession, and (2) unlawful despoilment. The determination of a spoliation application does not resolve the underlying substantive rights of the parties. Where an applicant has been in peaceful possession pursuant to a court order and complains of being forcibly dispossessed, the balance of probabilities may favour a finding of unlawful despoilment even where there are disputes about the outcome of an election or other process that may affect ultimate entitlement. The restoration of possession through a spoliation order does not constitute a determination of the parties' rights to the property in question.

The court observed that the parties appeared to have been driven by their differences and concentrated more on who was legitimately appointed the bishop, rather than focusing on the narrow issue before the court in a spoliation application. The court noted that the dispute of the outcome of the election is for another day, emphasizing the limited scope of spoliation proceedings. The court also commented that although the respondents denied despoiling the second applicant, it would make no sense for the second applicant to complain of being despoiled if he had in fact remained in peaceful possession throughout.

This case illustrates the application of spoliation principles in the context of church disputes in Zimbabwe. It demonstrates that spoliation proceedings focus narrowly on whether there was peaceful possession and unlawful despoilment, rather than on the underlying rights or disputes between parties. The case is significant for establishing that even where there are disputes about leadership succession in religious organizations, spoliation remains an available remedy to restore possession without determining the substantive rights of the parties. It reinforces that spoliation is a possessory remedy that can be granted even where material disputes exist about who has the ultimate right to control church property.