Daniel Nemukuyu Senior Court Reporter
THE Zimbabwe Assemblies of God Africa church (Zaoga), which built its university on someone’s gold claims in Bindura, has pleaded with the High Court to suspend its eviction and subsequent demolition of the multimillion-dollar Zimbabwe Ezekiel Guti University.
High Court judge Justice Joseph Musakwa last week granted a default order compelling the church to vacate the premises to pave way for businessman Mr Charles Chakumba to freely conduct his gold mining operations.
The default judgment was granted after Zaoga and its lawyers failed to turn up for the pre-trial conference.
Mr Chakumba, who was allocated the gold claims at Barasse Farm in Bindura in 1994, then successfully applied for a default judgment against the church through his lawyer, Mr Vusani Bangidza of Tavenhave and Machingauta Legal Practitioners.
Mr Chakumba was allocated mining claims 31 and 32 under registration number 22441 and 22442, respectively at Barasse Farm by the Ministry of Mines and Mining Development in 1994.
He had been operating in the area until 2010 when the church was also allocated the same piece of land for the construction of a university by Bindura municipality.
For Mr Chakumba to properly carry out his business, the university’s state-of-the-art educational facilities and other structures on the premises now have to be demolished.
On Wednesday, Zaoga lawyers, Debwe and Partners, filed an urgent chamber application for stay of execution of the default order pending determination of an application for rescission of the same decision.
The church argued that its failure to attend the pre-trial conference was due to a mistake on the part of the lawyers’ secretary who was served with the pre-trial hearing notice but misfiled it.
“Applicant (church) contends that the said judgment was obtained in default at the pre-trial conference as a result of a genuine mistake on the part of its legal practitioners’ secretary who upon service of the pre-trial conference notice, diarised it for March 16 instead of March 3 2016,” read the papers.
The church said it only became aware of the eviction order through a report published in The Herald.
“Applicant became aware of the said judgment on March 7 following the publication of an article concerning the matter in question in The Herald,” the church argued.
The church indicated that it had since filed an application for rescission of the default order and that pending finalisation of that matter, the eviction and possible demolition should be suspended.
The church is seeking a temporary interdict restraining Mr Chakumba from evicting the university, staff members and students at the campus.
According to summons issued by Mr Chakumba in August last year, the miner argued that he was the legitimate owner of the mining claims adding that Zaoga was barring him from exercising his mining rights. The church also claimed to be the legitimate owners of the piece of land after being allocated by council.
However, Mr Chakumba said, the dispute was resolved by the Ministry of Mines and Mining Development that declared him as the rightful owner. Despite caution, Mr Chakumba stated, Zaoga refused to vacate the land and was continuously interfering with his right to the mining claims.
Mr Chakumba then instituted legal proceedings to evict the church. In its opposing papers, the university argued that it had been duly allocated the land by Bindura municipality in 2008 for the establishment of Zimbabwe Ezekiel Guti University (Zegu).
“The said piece of land was allocated to defendant’s university by the municipality of Bindura in March 2008 in consultation with the Ministry of Local Government, Public Works and National Housing,” read the papers.
The church argued that the matter should be dismissed because the summons were filed after the required period of up to three years in terms of the Prescription Act.
“Plaintiff became aware of Zegu’s occupation of the land in February 2010. On that date, the plaintiff’s claim was due. During the public consultations that were carried out by the Environment Impact Assessment team to assess the impact of the Zegu project in January 2010, plaintiff did not object to the university project in any way. The plaintiff’s summons was served on the defendant on the 19th of August 2015 that is more than three years after the date upon which the claim arose. In the premises, the plaintiff’s claim is prescribed in terms of the Prescription Act, Chapter 8:11,” the church argued.