Magaga Masendza and Reuben Masedza v Gospel of God Church International and Others

The applicants were surviving sons of the late Peter Jack Masedza (known as Baba Johane Masowe), founder of the Gospel of God Church International (first respondent). The deceased died in Zambia on 14 September 1973 and was buried at Gandanzara Shrine in Rusape. The applicants, who held British Passports, could not attend the burial due to UDI-era restrictions on entry into Rhodesia. After Zimbabwe's independence, the applicants attempted to visit their father's grave but were denied access by the first respondent's members. The applicants previously sought visitation rights in case HC 3379/2001, which was dismissed by Hungwe J in judgment HH 164/2003. The current application sought a declaration that the applicants had a right to exhume their father's remains. The first respondent opposed, claiming the deceased had given instructions to be buried at Dandanzara Hill and for the site to become a shrine where annual synods would be held. The first respondent also alleged the first applicant had been disowned by the deceased and had formed his own breakaway church.

• Whether the applicants, as children of the deceased, had locus standi to seek a declaratory order for exhumation of their father's remains
• Whether the applicants had a direct and substantial interest in the exhumation sufficient to warrant a declaratory order under section 14 of the High Court Act
• Whether the court could grant a declaratory order recognizing the applicants' right to exhume remains without the applicants first following the statutory procedures under the Cemeteries Act
• Whether customary law principles regarding children's rights to bury parents and access graves were applicable
• The proper interpretation and application of the Cemeteries Act in relation to exhumation of remains from a shrine

1. The main application Case No. HC 1769/23 succeeded. 2. The applicants have a right to exhume the remains of the late Johanne Masowe Shoniwa Masedza which are buried at Gandanzara Shrine Rusape, subject to their following due process. 3. Case No. HC 1785/23 is dismissed. 4. In respect of both cases, each party shall pay its own costs.

Children of a deceased person have a recognized customary law right to seek exhumation of their parent's remains, which right is protected by the constitutional founding value of respect for diverse cultural and traditional values. This right gives them locus standi to seek a declaratory order under section 14 of the High Court Act. However, the declaration of such a right does not entitle the applicants to bypass statutory procedures for exhumation established under the Cemeteries Act, which requires ministerial authorization. A court will not grant consequential relief that would interfere with executive functions governed by statute, in accordance with the separation of powers doctrine. The fact that remains are buried at a shrine rather than a public cemetery does not, in itself, extinguish the customary law rights of children to seek exhumation, subject to following proper procedures.

The court made several obiter observations: (1) It is improper to cite police as respondents merely on grounds they enforce law and order, unless they have abrogated their duty; similarly, citing a Minister simply because they have responsibility over a cited entity is inappropriate where no relief is sought from the Minister and no cause of action is alleged. (2) A deponent to an affidavit purporting to represent a juristic entity should properly allege and demonstrate the basis of their authority to represent that entity, ideally through a resolution. (3) The dispute between the parties was described as one that "the parties can resolve if good faith and bona fides are exercised by the parties." (4) The court noted that commenting further on the interpretation and application of the Cemeteries Act "may confuse the processes to be followed with parties then arguing that the court has already decided the issues," deliberately leaving certain statutory interpretation questions open for future determination. (5) The court observed that the previous judgment HH 164/2003 did not declare that the remains had become property of the first respondent.

This case is significant in Zimbabwean jurisprudence for several reasons: (1) It recognizes and affirms the constitutional protection of customary law rights regarding burial and access to graves of deceased family members, anchoring these in section 3(1)(e) of the Constitution which protects diverse cultural and traditional values. (2) It clarifies the scope of declaratory relief under section 14 of the High Court Act, demonstrating that courts can declare rights exist while still requiring parties to follow statutory procedures before exercising those rights. (3) It reinforces the separation of powers doctrine by refusing to usurp executive functions under the Cemeteries Act, even when granting declaratory relief. (4) It illustrates how courts balance religious/institutional claims over burial sites (shrines) with family rights under customary law. (5) It demonstrates judicial restraint in emotionally charged disputes with long histories, avoiding unnecessary determinations that might prejudice future proceedings.