The Diocesan Trustees for the Diocese of Harare v The Church of the Province of Central Africa and Bishop Chad Gandia

This case arose from a dispute between rival factions within the Anglican Church concerning legitimacy and entitlement to Church property. On 24 July 2009, HLATSHWAYO J granted a provisional order under case HC 2792/09 stopping the consecration of a new bishop by the first respondent, and a declarator under case HC 4327/09 declaring Nolbert Kunonga's Board of Trustees as the legitimate Board of Trustees for the Diocese of Harare. The first respondent lodged an appeal to the Supreme Court on the same date. Notwithstanding HLATSHWAYO J's orders, the respondents proceeded to consecrate the second respondent as the new Bishop for the Diocese of Harare, relying on the rule that an appeal suspends the decision appealed against. The applicant then filed an urgent chamber application seeking to enforce HLATSHWAYO J's orders, arguing that the appeal was mala fide and that it was filed before HLATSHWAYO J had delivered his judgment, rendering it a nullity. The applicant's counsel contended that the judgment was delivered at 16:35 (after 4 pm when the registrar's office closed), while the respondents argued the appeal was filed during normal working hours after judgment was delivered.

• Whether the notice of appeal to the Supreme Court was filed before HLATSHWAYO J had delivered his judgment
• Whether the appeal was irregular and a legal nullity
• Whether the High Court had jurisdiction to hear the matter given that the same issue was pending before the Supreme Court
• Whether the appeal was noted mala fide for the purpose of bypassing HLATSHWAYO J's orders

The application was dismissed with costs.

Where the same issue is pending before both the Supreme Court and the High Court, the High Court lacks jurisdiction to hear and determine the matter, as allowing both courts to proceed would set them on a collision course. When a higher court is set against a lower court, the higher court takes precedence. An applicant who chooses to discharge the onus of proof on the papers without viva voce evidence bears the risk of failing to prove its case on a balance of probabilities. Where an applicant's deponent contradicts himself on a material point of fact upon which the application hinges, this renders the veracity of the affidavit unreliable and highly questionable, and the applicant will fail to discharge the onus of proof.

The court observed that it would generally trust the word of its officers (such as the Judge's clerk) until the contrary is shown, as they are sworn to tell the truth at all material times. However, the court also noted it would hesitate to find that several lawyers would put their careers on the line for the sake of advancing their client's case, given that deliberately misleading the court has grave consequences for legal practitioners. The court noted that while the Judge's clerk appeared to have no interest in the outcome, he did not keep a record of the times mentioned in his affidavit and did not explain how he ascertained the time, leaving open the possibility that he might be genuinely mistaken.

This case illustrates important principles of Zimbabwean civil procedure, including: (1) the prohibition against having the same issue pending simultaneously in the Supreme Court and High Court, with the higher court taking precedence; (2) the onus of proof on an applicant seeking to prove irregularity in proceedings on the papers; (3) the consequences of contradictory statements in affidavits by a party's deponent; and (4) the court's approach to determining disputed factual issues on the papers without viva voce evidence. The case also demonstrates the court's reluctance to find that legal practitioners would deliberately mislead the court and jeopardize their careers.