Togara Mapingure v Apostolic Faith Mission in Zimbabwe

The appellant was a pastor employed by the respondent church (Apostolic Faith Mission in Zimbabwe). He was dismissed and appealed against the dismissal. On 12 September 2021, at the invitation of the respondent's Odzi Assembly Board of Elders, the appellant appeared at the Odzi church and delivered a sermon. The respondent alleged that during the sermon, the appellant incited congregants to defy the authority of the respondent and its resident pastor. On 21 September 2021, the respondent made an ex-parte application for an interim interdict to prohibit the appellant from entering the church premises at Stand 361 Odzi Township, addressing congregants, or interfering with church services. The Magistrates Court granted the provisional order on 20 September 2021. On the return date of 15 October 2021, the appellant filed opposing papers disputing the allegations and contending that the respondent did not own the church property, which was in the hands of the Odzi congregants and community. On 12 April 2022, the Magistrates Court granted the application "as varied," prohibiting the appellant from addressing congregants without authority, interfering with church services, and disturbing the applicant's peace.

• Whether the court a quo misdirected itself when it considered disputed facts as if they were common cause
• Whether the court a quo erred in granting a final interdict based on an interim order, thereby confusing the requirements of a final interdict and an interim interdict
• Whether the court a quo erred in granting the application despite finding that the respondent had not exhausted available internal remedies
• Whether the court a quo erred in granting an order that was not sought by the parties without inviting them to comment or address the court on same

The appeal succeeded with costs. The order of the court a quo was set aside and substituted with the following: "The provisional order granted on the 20th September 2021 be and is hereby discharged with costs."

The binding legal principles established are: (1) An interim or provisional order is intended to preserve the status quo pending the return date and must be temporary in nature, not final. A court errs when it grants final relief based on a provisional order without following proper procedure. (2) A court may not grant relief that has not been sought by either party without first affording the parties the opportunity to make submissions on the relief it intends to grant. To do so amounts to a violation of the right to a fair hearing. A court's judgment must be founded on legal principles and must be based on the pleadings of the parties, the evidence placed before the court, and the submissions made by legal practitioners. (3) In granting relief, a court must decide no more than what is absolutely necessary for the decision on the case, and the decision must always be based on the pleadings of the parties.

The court noted that ground of appeal number one was vague and not concise, being argumentative and lacking particularity regarding what disputed facts the court a quo treated as common cause. The third ground of appeal was described as "basically academic" vis-à-vis the second ground. While the court set out the legal requirements for an interdict (citing Santod Investments (Pvt) Ltd v Shava (HH 336/18) and Masimba Charity Huni Fuels (Pvt) Ltd v Kadurira & Another SC 39/22), it did not make substantive findings on whether these requirements were met, as the appeal succeeded on procedural grounds.

This case is significant in Zimbabwean civil procedure law as it reinforces important principles regarding the granting of interdicts and the limits of judicial discretion. It emphasizes that: (1) provisional or interim orders must be temporary in nature and should not be converted into final orders without proper procedure; (2) courts must not grant relief that has not been sought by the parties without first inviting submissions; and (3) granting unsought relief without affording parties the opportunity to be heard violates the right to a fair hearing. The judgment strengthens procedural fairness in interdict applications and reaffirms the distinction between interim and final relief.