Trustees for the Time Being of Oasis of Love Trust v Andrew Njenje and Others

The Trustees of a church Trust brought an urgent application seeking a provisional order interdicting church elders from selling immovable property (Stand 1210 Bluffhill Township of Stand 1180 Bluffhill Township) belonging to the Trust without the Trustees' consent. The property was registered in the name of the Trust. The Trust Deed expressly vested the power to buy and sell immovable property in the Trustees. An advertisement had been placed through Robert Root Estate Agents to sell the property, but the Trustees had not consented to such sale. The Trustees alleged that the church elders (respondents) had initiated steps to sell the property. The respondents denied giving any mandate to sell the property and distanced themselves from the advertisement. There appeared to be power struggles within the church. The Trust was constituted for the benefit of all congregants and various named interest groups.

• Whether church elders may dispose of property registered in the name of a Trust when the Trust deed expressly vests the power to buy and sell immovable property in the Trustees
• Whether the application was urgent and properly brought
• Whether the requirements for a provisional interdict were satisfied: (a) prima facie right; (b) well-grounded apprehension of irreparable harm; (c) absence of adequate alternative remedy; and (d) balance of convenience
• Whether church governance structures can override legal authority vested in trustees under a Trust deed

The provisional order was granted as prayed, interdicting the church elders from selling the immovable property or any other Trust property without the Trustees' consent.

Where a Trust has been constituted and property vested in it, the Trustees alone exercise fiduciary control in accordance with the Trust Deed. Any purported sale of Trust property by non-trustees would be ultra vires and invalid. Church governance structures cannot override the express provisions of a Trust instrument. Where a Trust deed expressly grants Trustees the authority to buy and sell immovable property, that power is clear and unambiguous, and in the absence of provisions conferring similar authority upon church elders or other parties, such persons have no legal mandate to dispose of Trust property. Trustees derive their powers strictly from the Trust instrument.

The court observed that urgency exists in degrees, and a matter may justify preferential allocation on the roll even if the time frames are not drastically abbreviated. The question is not whether the procedure was perfectly urgent in form, but whether, substantively, delay would defeat the purpose of the application. Certain procedural aspects of an application may be inelegant (such as using ordinary response periods), but they do not, individually or cumulatively, demonstrate that urgency was self-created or contrived if there is substantive urgency. The court noted that clerical errors in referring to outdated forms do not go to the substance of urgency and cannot justify dismissal of an application. The court also observed that there appeared to be power struggles within the church in this case.

This case is significant in Zimbabwean trust law as it clarifies that Trustees derive their powers strictly from the Trust instrument, and where property is vested in a Trust, control over that property is governed by the Trust deed and applicable trust law. Church governance structures, including elders, do not override the legal authority vested in trustees unless the Trust deed expressly provides otherwise. The case reaffirms the principle that spiritual or administrative leadership within a church does not equate to legal authority over Trust property. It emphasizes the fiduciary duties of trustees and the protection of trust assets from ultra vires acts by non-trustees. The case also demonstrates the court's approach to balancing procedural irregularities against substantive urgency in interdict applications.