Anglican saga: ‘Judge did not apply his mind’

DEPUTY Chief Justice Luke Malaba tore into High Court judge Justice Ben Hlatshwayo’s 2008 judgment giving excommunicated Anglican Archbishop of Harare Nolbert Kunonga control of all the Church of the Province of Central Africa (CPCA) immovable and movable assets after he seceded from the fold.
Report by Paidamoyo Muzulu

Kunonga left the (CPCA) in 2007 to form his own Anglican Church of the Province of Zimbabwe over the issue of homosexuality saying he could not accept the CPCA Harare Diocese’s refusal to “exclude from our fold such people or elements that have embraced out of their own free will, support or sympathy for homosexuals”.

Malaba ruled that Hlatshwayo had not carefully applied his mind to the matter when he handed Kunonga and his followers control of the CPCA assets.

Malaba said Hlatshwayo had “shut his mind to the other evidence which had a direct bearing on the matter”.

“It was his duty to decide the question of withdrawal of membership upon consideration of all the relevant evidence placed before him,” he said.

“Had the learned judge carried out his duty, he would have appreciated that the anti-homosexuality stance adopted by Dr Kunonga and his followers was no longer consistent with their remaining members of the church”.

Malaba said the belief of a Christian church must be founded, in general, upon the Holy Scriptures.

He said Kunonga and his followers reached a stage where they regarded it a matter of faith that homosexuals and members of the church who supported or sympathised with them should not be associated with.

“To them, these people (if they regarded them as such) had no right to worship God in the church. It did not matter whether there was practice of homosexuality or not. Their faith in Jesus Christ did not entitle them to membership of the church,” said Malaba in his judgment.

Malaba said it is important to bear in mind when carrying out the analysis of the evidence that it is not what the court might think of the importance of the difference between Dr Kunonga and his followers on the one hand, and the others on the other, on the question of homosexuality, which matters.

“The court is interested on what the parties thought about the matter. Equally it is not for the court to say whether the principles adhered to by either party on the question of homosexuality are good or bad,” said Malaba.

Malaba said respect for human dignity is a founding principle of faith. He said it must have been clear for Kunonga and his followers the position they had taken contradicted the accepted expression of the doctrine of the church which requires every person to be treated with respect and dignity.

Malaba said Kunonga and his followers occupied the CPCA property without permission.

Kunonga’s group had grabbed parish buildings, schools, orphanages and clinics across the country.

Most of the buildings and institutions such as boarding schools St Augustines in Penhalonga, Daramombe in Chivhu and St David’s Girls High (Bonda Mission) in Chimanimani, are tottering on the brink of collapse.

CPCA congregants under Bishop Chad Gandiya have been holding services in the open or rented buildings.

Veritas, a local lawyers grouping welcomed Malaba’s judgment, although it complained about the time it took before the appeal was heard.

“It is regrettable that it has taken so long for the matter to be resolved. Although the Supreme Court was commendably prompt in arriving at the decision less than a month after hearing the appeal on 22 October (2012),” Veritas said.

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