Ernest Mhambare v Alfred Kushamisa Mwazha and Others

This matter arose from a leadership dispute in the African Apostolic Church (VaApostora VeAfrica). The applicant, Ernest Mhambare, initially brought an application in HC 2402/20 challenging the purported appointment of the first respondent, Alfred Kushamisa Mwazha, as successor to the founder and Archbishop Paul Ernest Mamvuru Mwazha (aged 102 years). On 3 December 2020, Chitapi J granted an order declaring the first respondent's appointment unconstitutional and null and void, nullifying all his appointments, and ordering respondents to comply with clause 9.2.2 of the church's constitution. The respondents noted an appeal on 11 December 2020 under SC 552/2020. On 17 December 2020, the applicant filed an urgent chamber application for leave to execute pending appeal, alleging that respondents had been violently disrupting church services, harassing members, and taking over church structures since noting the appeal. The applicant cited specific incidents of violence from October 2020 onwards, including assaults at various church locations in Harare and Mutare, with police reports filed.

• Whether the application for leave to execute pending appeal was urgent
• Whether the relief sought (leave to execute pending appeal) was the appropriate remedy for the injury alleged (violence and disruption at church services)
• Whether the tenth respondent (the church) was properly represented before the court
• Whether there was a link between the judgment sought to be executed and the wrongful conduct complained of

The matter was struck off the urgent roll with costs against the applicant.

A matter is urgent only if at the time the need to act arises, it cannot wait. The certificate of urgency and founding affidavit must exhibit urgency in the manner the applicant reacted to events. If the situation complained of has existed for a significant time before the application, the matter is not urgent. An application for leave to execute pending appeal cannot be brought on an urgent basis when it is based on a cause of action different from the judgment sought to be executed. There must be a demonstrable link between the injury complained of and the relief sought - leave to execute a judgment dealing with one dispute cannot be granted on the basis of allegations relating to a different dispute. A judgment granted on one cause of action cannot be executed on the basis of a different dispute.

The court observed that the execution of the judgment would create a further dimension of leadership (a Priesthood Council) different from both the current situation and what prevailed before the first respondent's purported appointment, raising questions about how such execution would resolve ongoing anarchy. The court also noted that repetitive and unsubstantiated generalized averments about constitutional rights violations do not assist an applicant's case. The court commented that the relief sought is an important consideration in determining urgency - if there is no link between the injury complained of and the relief sought, the matter cannot be urgent.

This case is significant in Zimbabwean civil procedure for clarifying the requirements for urgent applications, particularly applications for leave to execute pending appeal. It reinforces that urgency must be demonstrated both in timing and in the nexus between the relief sought and the harm alleged. The case establishes that a matter cannot become urgent simply because an appeal has been noted, and that execution pending appeal must address the same cause of action as the original judgment. It also illustrates the principle that generalized allegations without specific evidence and dates are insufficient to establish urgency, and that a continuing state of affairs existing before the triggering event (here, the noting of the appeal) negates urgency.