A BID by two disgruntled Apostolic Faith Mission (AFM) pastors to compel the church to engage external auditors recently went up in smoke after High Court judge Justice Happius Zhou dismissed the application, saying the church was a private organisation, where members were free to leave if they felt aggrieved by the leadership’s conduct. BY CHARLES LAITON
Justice Zhou delivered the judgment on June 27, 2018 following an application by AFM pastor, Kefias Mujokeri and one Paymore Murefu, who had petitioned the court seeking an interdict to compel the church to cause an external audit of books of accounts for the period 2004 to 2015.
“Whether the applicants [Mujokeri and Murefu] have a clear right is a matter of substantive law. Whether that right is clearly established is a question of evidence. The right which is sought to be protected through the interdict must thus be a legal right,” Justice Zhou said.
“Neither membership nor employment gives the applicants a legal right to the finances or other assets of the first respondent (AFM). The respondent as a church is a private organisation, which a member can choose to join or leave. “Members do not invest money in a church which would give them a right to its assets because the first respondent both in terms of its constitution and by the common law has a juristic personality, which is distinct from that of its members. Assets of the first respondent do not belong to its members.”
The judge said in order to sustain a case in such a matter, the evidence tendered must prove on a balance of probability the existence of a right which exists in law, be it at common law or statutory law, which can be protected.
“The applicants may have a moral interest to ensure that the affairs of the first respondent are conducted in a transparent manner in accordance with the constitution and other laws of the first respondent. But those interests cannot be elevated to the status of legal rights which could be protected by an interdict,” he said.
“Equally, the position of employee does not give the first applicant (Mujokeri) a right to the first respondent’s assets. The obligation of the employer to an employee is to pay the agreed remuneration. An employee acquires no proprietary right in the assets of his employer by virtue of being an employee which would entitle him to seek an interdict in connection with the assets of the employer.”
Justice Zhou further said Harare lawyer Charles Warara, who represented the pastors, “repeatedly made the submissions that the first respondent (AFM) is a public institution. That is incorrect”.
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“While its constitution gives it legal personality with the capacity to sue or be sued in its own name, the first respondent does not, by that fact, become a public institution,” he said.
In the application, Mujokeri and Murefu had cited AFM, its president Aspher Madziyire, Munyaradzi Shumba and Amon Madawo as respondents.
