Source: Supreme Court reserves $428k Kunonga judgment | The Herald May 13, 2016
Daniel Nemukuyu Senior Court Reporter
The Supreme Court has reserved judgment in the matter in which ex-Anglican Church leader Arch Bishop Dr Nolbert Kunonga, is contesting the High Court judgment compelling him to pay $428 000 to the church as compensation for the shares he looted and sold. Dr Kunonga sold the shares without authority at the height of his five-year wrangle with the church. The former leader, who moved out of the Anglican Church of the Province of Central Africa to form his own church, clung on to the Anglican property for five years while “tormenting” the church members and denying them access to the properties.
During that time, he sold the church’s shares in various listed companies without authority. The church discovered the illegal sale after the Supreme Court made a final determination in the church’s property wrangle in 2012. After the decisive court ruling, the legitimate owners carried out an audit, which revealed that the shares had been unlawfully disposed of. Dr Kunonga sold the shares together with his lieutenants — Beaven Michael Ngundu, Alfred Tome, Justin Nyazika and Winter Shamuyarira.
High Court judge Justice Nicholas Mathonsi, last year ordered Dr Kunonga to pay back the money. Aggrieved by the High Court decision, Dr Kunonga noted an appeal. Supreme Court judge Justice Vernanda Ziyambi, sitting with Justices Paddington Garwe and Chinembiri Bhunu yesterday, heard arguments from both parties and reserved judgment. Advocate Thabani Mpofu represented the Anglican Church while Advocate Tembinkosi Magwaliba acted for Dr Kunonga. Adv Mpofu, on behalf of the church, raised preliminary points arguing that the notice of appeal was defective. Adv Mpofu told the three – member bench that the 16 grounds of appeal crafted by Dr Kunonga were too many and did not comply with the rules of the Supreme Court. The grounds, Adv Mpofu said, were meaningless and confusing. He added that the grounds also attacked the findings of the court, thereby rendering the notice of appeal invalid.
Adv Magwaliba conceded that the grounds were too many but was quick to abandon 10 of the grounds, leaving the notice of appeal with only six. But Adv Mpofu further crashed the remaining six grounds arguing that they were also invalid and their determination was time wasting. Adv Magwaliba insisted that the six grounds were valid emphasising much on the ground that the High Court imposed the figure of $428 000 without hearing Dr Kunonga’s views on that. He argued that the $428 000 was not justified and that the court could have heard both parties before arriving at a decision. However, Adv Mpofu argued that the parties agreed on the figures and that there was never any objection from Dr Kunonga in the High Court. To that end, Adv Mpofu said there was never any contestation in the High Court matter hence raising the issue on appeal was totally misplaced.
It is Dr Kunonga’s contention that the shares in question were sold in the interest of the church. Dr Kunonga argued that in selling the shares, he did not do so in his personal capacity, but as the then head of the Diocesan Trustees of the Diocese of Harare. He is also challenging the court’s decision to disregard the value of $270 000 that the shares were sold and valuing them at $428 000 in line with the official and prevailing rates.
Dr Kunonga argues that there was no evidence proving that the shares were sold for more than $270 000.
The shares sold are listed as follows: BAT Zimbabwe. . . 8 391 shares Dawn Properties . . .1 006 486 shares Delta Corporation . . . 150 586 shares DZL . . . 22 956 shares Econet . . . 6 510 shares Old Mutual . . . 5 925 shares Seedco . . . 8 641 shares TN Financial. . . 1 909 900 shares ZPI. . .864 833 shares High Court judge Justice Nicholas Mathonsi last year ruled that since Dr Kunonga and his group broke away from the Anglican Church of the Province of Central Africa in 2007 they ceased to be members of the church and lost right over the church property. The judge said any sale of assets they did after August 4, 2007 was tantamount to selling other people’s property without permission. Justice Mathonsi said although the Kunonga group sold the shares at a giveaway price of $270 000, the church was entitled to the officially prevailing rate as at the time of the sale.