Two consolidated cases arising from a protracted dispute between factions of the Church of the Province of Central Africa over ownership and control of church properties in three dioceses. On 24 July 2009, Hlatshwayo J granted an order in HC 4327/08 declaring Dr. Nolbert Kunonga and others as Diocesan Trustees for the Diocese of Harare and ordering the Church to give vacant possession of diocesan assets. The Supreme Court in SC 180/11 on 7 July 2011 ordered that the appeal against Hlatshwayo J's order be suspended and that the noting of appeal should not suspend the operation of the order. Armed with these orders, Dr. Kunonga and his compatriots, through the Deputy Sheriff, began evicting school employees and parishioners from church properties in the Dioceses of Central Zimbabwe and Masvingo. The School Development Committee at Daramombe School complained that staff members were being evicted and summarily dismissed without due process. The Church of the Province of Central Africa sought to interdict the evictions, while simultaneously defying Hlatshwayo J's order within the Diocese of Harare.
1. The first applicant in HC 8174/11 (the Church) was denied audience until it complied with Hlatshwayo J's judgment in HC 4327/08. 2. The first and second respondents in HC 8174/11 (Dr. Kunonga and Bishop Munyanyi) were denied audience until they reversed all executions done after 25 August 2011. 3. In HC 8777/11, the court granted the provisional order: (a) declaring that the Supreme Court and High Court orders do not give respondents the right to dismiss the applicant's members from employment; (b) declaring that the orders do not cover Daramombe School as it falls under Masvingo Diocese; (c) ordering costs against the second respondent on attorney-client scale; (d) ordering stay of eviction of all staff at Daramombe High School and Primary School; (e) prohibiting interference with staff operations; (f) ordering reinstatement of any removed staff members pending final determination.
The binding legal principles established are: (1) A party in deliberate contempt of court or defying court orders closes the door to judicial remedies and will be denied audience until compliance - the rule is 'obedience first, complaints later'; (2) Court orders must be executed in accordance with due process of law and cannot authorize illegal actions such as eviction or dismissal of employees without following proper procedures; (3) The grant of vacant possession of property does not, without more, entail wholesale eviction of lawful occupants without recourse to law; (4) The audi alteram partem rule is fundamental and applies even in the execution of court orders - no one shall be dispossessed without being heard; (5) Where unlawful dispossession occurs, courts will summarily restore the status quo ante as a preliminary matter before investigating the merits, applying the spoliation remedy; (6) Religious organizations with established ecclesiastical court systems and domestic remedies should utilize those mechanisms to resolve internal disputes before resorting to secular courts; (7) Both parties to litigation who undermine the authority of courts by defying orders may be denied audience until they have purged their contempt.
The court made several non-binding observations: (1) The judge questioned why the Church preferred secular courts to its own elaborate ecclesiastical court system presided over by qualified judges, only to then defy secular court judgments when adverse to its interests; (2) The court noted the irony that Dr. Kunonga won his case on the basis of being condemned without trial, then proceeded to use that judgment to evict and dismiss employees without hearing them; (3) The court observed that submission to secular court jurisdiction entails the corollary obligation of obeying and abiding by court judgments and orders; (4) The judge suggested that the Supreme Court's unusual decision to authorize execution pending appeal was likely premised on the availability of domestic remedies within the church's own system; (5) The court commented that had all parties recognized the authority of the courts, the evictions and dismissals would not have occurred; (6) The judge noted that determination of specific labour law rights lies in the province of the Labour Court, citing Tuso v City of Harare; (7) The court expressed the view that both litigants cannot seek relief in courts whose authority they continue to hold in disdain, and that Hlatshwayo J's judgment placed the Church 'in the driving seat' to control its own affairs through domestic mechanisms.
This case is significant in South African and Zimbabwean jurisprudence for several reasons: (1) It demonstrates the principle that courts will deny audience to parties approaching with 'dirty hands' or in contempt of court orders, applying the doctrine from Associated Newspapers of Zimbabwe; (2) It reinforces the principle that domestic remedies, particularly in religious organizations with established internal dispute resolution mechanisms, should be exhausted before resorting to secular courts; (3) It establishes that court orders granting possession must be executed in accordance with due process and cannot override fundamental labour law protections; (4) It applies the anti-spoliation remedy to protect employees in peaceful possession from unlawful eviction; (5) It illustrates the limits of ecclesiastical disputes in secular courts and the importance of respecting internal church governance structures; (6) It demonstrates the court's commitment to the audi alteram partem principle even in the context of executing court orders.