Zimbabwe Supreme Court upholds Dr. Kunonga as Bishop of Harare: The Church of England Newspaper, May 7, 2010 p 8.

Dr. Nolbert Kunonga

First published in The Church of England Newspaper.

The Zimbabwe Supreme Court has handed down an order that effectively declares Dr. Nolbert Kunonga to be the lawful bishop of Harare.

On May 2, Deputy Chief Justice Luke Malaba ruled the Church of the Province of Central Africa (CPCA) had not followed proper legal procedures in appealing a July 2009 decision by High Court Justice Ben Hlatshwayo which recognized Dr. Kunonga as the Bishop of Harare.

The effect of the ruling is unclear. While Justice Hlatshwayo ruled in favour of Dr. Kunonga in July 2009, Judge President Rita Makarau held last year the two sides should share the properties pending a final disposition of the dispute. This view was upheld on March 3, 2010 on appeal by Justice Chinembiri Bhunu.

Dr. Kunonga and the CPCA’s Bishop of Harare, Dr. Chad Gandiya, are agreed that Dr. Kunonga leads a separate entity, the Anglican Church of Zimbabwe. (ACZ). However, the effect of the Supreme Court ruling is to confirm Dr. Kunonga as the CPCA Bishop of Harare, and it is in this capacity as CPCA Bishop, not in his new role as archbishop of the ACZ, that allows the breakaway bishop to control the diocese’s property.

However, Justice Malaba stated in his opinion that fairness or the underlying ecclesiastical dispute was not at issue. The question before the court was whether the attorneys for the province had filed a proper petition for appeal.

According to extracts from the ruling published in the state-controlled Harare Herald, Justice Malaba held the CPCA had not provided a bond for the costs of the appeal within the prescribed time and had failed to ask for a waiver of this requirement. The court had no recourse but to quash the province’s appeal, he said.

In his view the CPCA’s appeal was a legal stratagem designed to suspend the lower court’s order while it consecrated a new bishop for the diocese, thereby presenting the court with a fait accompli.

“When a party abuses the legal process in this way, he should not expect protection from the court when the other party seeks redress of his conduct,” the judge said.

“Without an application for condonation [a request for forgiveness from the court for omitting a required pleading] it proceeded to claim relief as if non-compliance with rules of court was an inconsequential matter.”

“One cannot consider absolving the [CPCA] from the consequences of lack of diligence committed by its legal practitioners, when there is no suggestion in its papers that the ‘oversight’ was that of a legal practitioner,” Justice Malaba ruled.

The attorney for the CPCA, Happious Zhou, told Newsreel his client was reviewing the ruling and would likely file a new petition, asking the court to clarify who was the lawful Bishop of Harare.