Tuesday, 29 November 2016

DEP CHIEF JUSTICE BLASTS BYO JUDGES : YOU DON'T UNDERSTAND THE LAW

THE Deputy Chief Justice Luke Malaba yesterday blasted his subordinates at the Bulawayo High Court for “poorly” handling matters involving rival camps fighting for control of the Apostolic Faith Mission of Africa (AFMA, saying they exuded a lack of understating of the law.

DCJ Malaba, who was sitting with Justices Tendai Uchena and Antonia Guvava during a Supreme Court circuit in Bulawayo, made the remarks as he quashed rulings by the High Court judges granted in favour of a breakaway group led by Reverend Clement Nyathi.
Rev Nyathi and a camp which was led by the late Rev Tony Tshuma have been locked in a protracted legal wrangle over the control of the church’s assets.

“As we finalise this matter, I must make it known to you that we are worried about the manner in which these cases were handled by the judges at the High Court. It is a clear indication of lack of understanding of the law by judges who are failing to appreciate an interdict. Judges are supposed to be servants and interpreters of the law,” said DCJ Malaba.
He said the judges granted unlawful orders, some of which lacked merit and facts. DCJ Malaba said in some cases, a judge granted a relief which the applicants had not sought in their draft order.

“Even if they are people of God you don’t grant them what they did not ask. The law doesn’t allow that,” he said.

DCJ Malaba set aside all the five judgments of the High Court which were being appealed against by the late clergyman’s faction, bringing to rest power struggles that have rocked the church since the beginning of 2014.

Bulawayo High Court judge Justice Nokuthula Moyo, in October 2014, ordered Rev Tony Tshuma to step down as church overseer and president.

Justice Moyo declared Tshuma’s appointment as null and void on the grounds that proper procedures were not followed when he was appointed in 2008.

She ordered the church to go back to the drawing board and elect a new leader and board in terms of the constitution of 1986.

Justice Moyo’s ruling followed an urgent chamber application by Rev Tshuma challenging the Rev Nyathi camp, which had earlier applied to the court seeking an order declaring his appointment as null and void.

Justice Moyo said Rev Tshuma and his board of trustees were not properly elected in terms of the church’s constitution.

“It’s the finding of this court that the second applicant has no locus standi or authority to bring proceedings in his official capacity as the president or chairman of the board of trustees. It’s also the finding of this court that the members of the board of trustees, who were elected contrary to provisions of the constitution, are in fact not duly elected members of the board. Unconstitutionality begets illegality and unenforceability in my view. One cannot build something out of nothing,” she said.

Rev Nyathi accused Rev Tshuma of conniving with some “few misguided individuals” to impose himself as the church’s leader soon after the death of his predecessor, Rev Philemon Sibanda seven years ago. He accused Rev Tshuma of fraudulently amending the constitution without the knowledge of members of the church’s board of trustees.
The late Rev Morgan Sengwayo founded the church, originally known as the Apostolic Faith Church of Southern Africa in Zimbabwe, in 1955.

Following Rev Sengwayo’s death in 1982, Rev Sibanda was appointed church overseer. In 1985, squabbles rocked the church following allegations of adultery against Rev Sibanda, which prompted him to break away from the original Pelandaba church with disgruntled members forming their own church at Lobengula Extension, renaming it Apostolic Faith Mission of Africa.

Meanwhile, Rev Rosewell Zulu was on Sunday elected the new overseer and president of the church, taking over from Rev Tshuma who died in May. chronicle

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