The latest
ruling clears the way for Rev Nyathi to pursue fresh legal action against a
rival camp led by Reverend Rosewell Zulu, which controls the church’s assets.
The AFMA, one
of Zimbabwe’s oldest indigenous churches, founded in 1955 by the late Reverend
Morgan Sengwayo, before it was later rocked by endless divisions, resulting in
several splinter groups has been entangled in a bitter leadership dispute since
2014.
The wrangle
centres on the rightful leadership and ownership of church properties,
particularly following the death of Rev Philemon Sibanda in 2008, who had led a
breakaway from the original Apostolic Faith Church of Portland Oregon, to form
FMA in Bulawayo’s Lobengula Extension suburb.
Last Tuesday,
Harare High Court judge, Justice Never Katiyo ruled that a previous judgment by
the late Justice Clement Phiri had erroneously applied a perpetual silence
order, which was originally issued by former Bulawayo High Court judge Justice
Thompson Mabhikwa, to Rev Nyathi, who was not among those barred from
litigation in that original case.
The ruling
under case number HC 2406/19 had mistakenly extended the gag order, originally
granted under HB 189/18, to Rev Nyathi, whose lawyers, Kossam Ncube and
Partners, challenged the order, arguing that it constituted a breach of
constitutional rights and due process.
According to
court papers, the trustees for the time being of the AFM, Reverends Zulu,
Patson Hlabangana, Herbert Keleb Yalala, Clever Membere and Chirilele Mugoyana
and the AFMA judgment, were cited as respondents.
Justice Katiyo
ruled that perpetual silence orders are “exceptional remedies” that must be
reserved for parties with a demonstrable history of vexatious litigation.
“The decree of
perpetual silence is not to be granted lightly. It must be limited to litigants
whose conduct has consistently undermined judicial processes. That threshold
was not met in Rev Nyathi’s case,” he said.
Justice Katiyo
noted that Rev Nyathi’s urgent application before Justice Phiri was merely a
bid to stay execution of a prior judgment and did not amount to vexatious or
frivolous litigation.
He further
noted that such relief must be granted only against identified parties based on
a proven track record of abuse.
“It was thus
erroneous for Justice Phiri to extend the operation of HB 189/18 to the
applicant in HC 2406/19. The applicant’s urgent application before Justice
Phiri was merely seeking a stay of execution, and no counterclaim or conduct
was demonstrated therein to justify a decree of perpetual silence against him,”
said Justice Katiyo.
“Judicial
caution must be exercised before sanctioning such relief. As per the
principles, repeated and persistent litigation on the same cause of action
involving the same parties may justify intervention. However, that standard was
not met by the applicant in HC 2406/19.”
Justice Katiyo
ruled that the judgment by Justice Phiri had conflated Rev Nyathi with parties
originally interdicted by Justice Mabhikwa, such as Claudius Manamela and Rev
Zulu among others.
Citing Rule
29(1)(a) of the High Court Rules, 2021, which permits rescission of judgments
granted in error, Justice Katiyo declared Justice Phiri’s ruling “a classic
example of procedural injustice.”
Justice Katiyo
said the decree of perpetual silence granted by Justice Phiri in HC 2406/19
against Rev Nyathi was founded on a mistaken interpretation and application of
Justice Mabhikwa’s order in HB 189/18.
“Accordingly,
it is ordered that the decree of perpetual silence granted against Reverend
Clement Nyathi in HC 2406/19 be and is hereby set aside. It is declared that
the order granted by Justice Mabhikwa in HB 189/18 does not apply to Reverend
Clement Nyathi,” he said.
Justice Katiyo
said his ruling clears Rev Nyathi to relaunch legal proceedings.
“The applicant
is granted leave to sue the respondents in this or any competent court without
the requirement to first obtain leave of the High Court. There shall be no
order as to costs,” he said.
Rev Nyathi had
long argued that he was unfairly barred from accessing the courts, resulting in
prejudice and a constitutional violation. His lawyers maintained that in the
original case, he was merely cited as a respondent and was not among those
prohibited from initiating court proceedings.
“Despite this,
Justice Phiri in HC 2406/19 made an order barring Reverend Nyathi from
instituting legal proceedings without prior leave of the High Court, purporting
to be guided by the earlier judgment in HB 189/18,” argued the lawyers.
The legal
dispute stems from ongoing factionalism within AFMA, with frequent court
battles over church leadership, control of assets and doctrinal authority. Rev
Nyathi accuses his rivals of seizing church leadership and properties shortly
after the death of Rev Sibanda. Sunday News
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