CHURCH OF THE PROVINCE OF CENTRAL AFRICA v DIOCESAN TRUSTEES, HARARE DIOCESE 2012 (2) ZLR 392 (S)

Flynote

Church — government of — constitution — members required to adhere to constitution — failure to do so — diocese seceding from church without following proper procedures — persons involved thereby voluntarily ceasing to be members of church — church property — persons seceding having no rights in respect of such property

Church — property — diocese seceding from church — persons involved thereby voluntarily ceasing to be members of church — church property — ownership remains with church — persons seceding having no rights in respect of such property

Headnote

The appellant church was formed in 1955 out of four dioceses of the Anglican Church. The Church now has, as its administrative area, the whole of Botswana, Malawi, Zambia and Zimbabwe, under the control of an ecclesiastical authority headed by an archbishop. It is governed by a constitution. Membership of the Church is a declaration of commitment to act at all times and places in accordance with the doctrines and the rules of the Constitution, the contract in terms of which each person binds himself to others as a member and office-bearer in the Church.

The Church is under the general authority of the Archbishop, who sits in the Provincial Synod. He also sits on the Episcopal Synod, which deals with matters of faith and is made up of bishops of the Province only. The Archbishop administers all the functions of the Church through bishops, who are the heads of the several dioceses. A diocesan bishop is a member of, and presides over, the proceedings of the Diocesan Synod. He also administers property rights owned by the Church through a Board of Trustees which he heads. Under the supervision of the Archbishop, a

A Diocesan Bishop is "chief in superintendency" in matters ecclesiastical within the diocese. Members of the Diocesan Board of Trustees are appointed by the Diocesan Synod.

As at 4 August 2007, the Diocesan Bishop of Harare was Dr Nolbert Kunonga. He was a member of the board of trustees responsible for holding, managing and using Church property in trust and on behalf of the Province. Under art 18 of the Church's Constitution, the Provincial Synod has the full power and authority to determine in what manner and upon what conditions such property shall be used or occupied. Under art 24 no-one is allowed to be admitted to any office in the Province, or be entitled to receive any income, emolument or benefit from or out of any property held under the authority of the Provincial Synod, unless he has signed a declaration of submission to the canons or rules of the Province relating to such office.

The respondent was made up of Dr Kunonga and those people with whom he constituted the Board of Trustees for the Diocese of Harare before 21 September 2007.

? A controversy arose within the Church over the issue of homosexuality and the extent, if any, to which it should be tolerated and the approach that should be taken towards homosexual people. The result of the debates which followed was that on 21 September 2007 Dr Kunonga wrote a letter to the Archbishop, notifying him of the withdrawal of the Diocese of Harare from the Province with effect from 4 August 2007. It was clear from the letter that the object was the creation of Zimbabwe as a Province. The Church responded by pointing out that such a move was constitutionally and canonically impossible, the proper procedures not having been followed. The see was declared vacant and Dr Kunonga was asked to hand over the Church's property to a vicar general, pending the election of a new bishop.

An extraordinary meeting of the Episcopal Synod of the Church decided that Dr Kunonga and his followers had left the Church and that he had, as a result of his behaviour, resigned as a Bishop of the Province. They revoked his pastoral licence.

? Dr Kunonga and his followers responded by forming a new ministry which they called the Anglican Church of the Province of Zimbabwe, with five dioceses, each headed by a Bishop consecrated and enthroned by Dr Kunonga. He and his followers did not surrender possession of the property of the Church upon secession.

The parties took the dispute over the Church property to the High Court. The Church sought orders directing the respondents to vacate or surrender possession of its property. The respondents sought orders declaring that they were still members of the Board of Trustees for the Diocese of Harare entitled to the control of Church property in the diocese. The High Court found for Dr Kunonga. The Church appealed.

Held, that by definition, a church is a voluntary and unincorporated association of individuals, united on the basis of an agreement to be bound in their relationship to each other by certain religious tenets and principles of worship, governance and discipline. The existence of a constitution is testimony to the fact that those who are members of the church agree to be bound and guided in their behaviour as individuals or office-bearers on ecclesiastical matters by the provisions of the constitution and the canons made under its authority.

Held, further, that the words and actions of the individuals as members and office bearers indicate whether there is conformity with the articles of faith. Just as a person would have exercised the right to freedom of choice in becoming a member of a church, he has the right to leave it of his own free will. A church has no right to compel a person to remain a member. When looked at in the light of the distinctive principles on homosexuality which the parties adopted in relation to the requirements of faith under the Constitution, the only reasonable inference to be drawn from the contents of his letter is that Dr Kunonga and his followers gave notice of having withdrawn their membership from the Church.

Held, further, that it was not for the court to say whether the principles adhered to by either party on the question of homosexuality were bad or good. The court does not discuss the truth or reasonableness of any of the doctrines of the religious group. Disputes over ownership or possession and control of Church property must be resolved on the basis of the interpretation and application of the law of voluntary associations. That law requires consideration and application of the terms and provisions of the Constitution of the body concerned, as well as the rules made under its authority.

Held, further, that adherence to the fundamental principles on which the Church is founded must be the factor on which disputes of ownership or possession and control of Church property are determined. Almost all constitutions of churches have, as their subject-matters, the faith, worship, governance and discipline to be observed. The constitution would invariably make provision for matters of faith as expressed in ecclesiastical doctrines and embodied in all the rules governing matters of worship, governance and discipline. It cannot be correct to say that whilst the Church considers the Word of God to be embodied as the primary command in the doctrines which are incorporated in the constitution by reference, they should not constitute the standard to be considered and applied by the court in determining the rights and obligations of the parties over the property in dispute.

Held, further, that adherence to the fundamental principles on which a church is founded is the critical factor to be considered in the determination of a dispute over church property. This means that those who have departed from the standards and principles on which the church is founded are more likely to leave it. For the purposes of establishing the fundamental principles of a church, it is not only the accepted interpretation of scriptures that counts. An accepted interpretation of, or inference from, subordinate standards may just as well be an article of faith as any other opinion. There is no tenable distinction for the purpose between one religious principle or opinion and another.

Held, further, that the exclusionary and distinctive principle to the effect that it is unlawful to associate with homosexuals and their supporters or sympathisers was put forward as a fundamental principle by Dr Kunonga and his followers. It was later to be the original principle on which the Church of the Province of Zimbabwe would be founded and became the creed or doctrine in terms of which their religious belief was expressed and on the basis of which they associated in the new church. The issue of associating with homosexuals and supporters or sympathizers of them which they had raised was about personal religion. They had originally agreed to associate with others on the terms and conditions contained in the constitution. They were now in effect saying that they did not want to be associated with the other members, with whom they disagreed, because they were said to tolerate homosexuality. They could only avoid contact by withdrawing themselves from the Church. It is not unusual for people to value separation from a church as a safeguard for doctrines which they hold intensely and as to which they know that the surrounding world is indifferent or hostile. Respect for human dignity is a fundamental principle of faith. It must have been clear to Dr Kunonga and his followers that the position they had taken contradicted the basis of this material particular of the accepted expression of the doctrine of the Church, which requires that every person be treated with respect and dignity. Once they adopted that position, they separated themselves automatically from the Church and ceased to form part of it. They did not recant their position; instead, they went on to form their own church, thereby creating a schism. A person who is responsible for the creation of a schism cannot be heard to say he has not withdrawn membership from the former Church. Even where a bishop, priest or deacon of the Province who is charged under canon 24(1) with the offence of schism is found guilty by the Church Court, the only sentence that can be imposed is excommunication.

Held, further, that resignation of a bishop is a question of fact dependent on the evidence of the conduct of the individual. Where the evidence shows that the individual exercised his right to terminate his relationship with the Church, the resignation takes effect immediately the conduct is committed. This is so unless there is a special provision by virtue of which it takes effect upon acceptance by the person who is given the right to receive written notice and decide whether to accept the resignation or not. The law is clear. Resignation is a unilateral act. Its validity does not depend upon acceptance by the person to whom it is directed. Acceptance determines when the resignation takes effect. In the final analysis, it is for the court and not the individual concerned to decide whether his conduct amounts to resignation or not. Once Dr Kunonga left the Church, and ipso facto vacated his office of Bishop of the Province, he was beyond the reach of the Church's disciplinary procedures, which would only be applicable to a "Bishop of the Province". Dr Kunonga was no longer a bishop of the Province.

Held, further, that in the absence of express provision in the constitution of a voluntary association, property held in trust must be applied for the benefit of those who adhere to the fundamental principles of the association. Related to this is the principle that a member of a voluntary association who leaves the organization, whilst others remain, must leave the property with those who have not resigned membership. When one leaves a club one does not take its property with one. It is well established that when one or more people secede from an existing church they have no right to claim church property, even if those who remain members of the congregation are in the minority.

Held, further, that once Dr Kunonga and his followers left the appellant Church, they disentitled themselves from continuing as members of the Board of Trustees of the Church. They could only hold the positions of trustees for the purposes of delivering services and protecting the property on behalf of the Province which is the owner of the property. When they left the Church, Dr Kunonga and his followers used the property and continued to control it without the approval of or authority from the Provincial Synod. They could no longer have been acting according to the mandatory tenets of the trust. The conditions under which they had held the property had changed. They could not separate the question of a control of the property of the Church from the obligation to uphold and adhere to the fundamental principles on which the Church is founded and for the purposes of the maintenance of which it continues to exist. They used the property of the Church to further the interests of their new church. The property could not be applied to purposes which are alien to the purposes of the Trust and for the benefit of persons who had no title to call themselves members and office bearers of the Church. It would be unreasonable to think that the trust with which they would have been expected to act authorized Dr Kunonga and others to use the property for the achievement of the interests of their new church.

Held, further, that from all the circumstances of the dispute between the Church and Dr Kunonga and his adherents, it was clear that they constituted the seceding party. They broke away from the Church, citing irreconcilable differences on the question of tolerance of homosexuality. The principle that the property must fall under the control and use of those who adhere to the fundamental principles of the Church must be enforced. The property in question belonged to the Church. The Church had a right to an order for vindication of its property from possessors who had no right to have it. Dr Kunonga and his followers had no right to continue in possession of the congregational buildings when they had departed from the fundamental principles and standards on which the Church was founded. They left the Church, putting themselves beyond its ecclesiastical jurisdiction.