Mugodhi Apostolic Faith Church v Washington Mugodhi

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                                                                                   HH 463-21
                                                                                  HC 6126/20


MUGODHI APOSTOLIC FAITH CHURCH
versus
WASHINGTON MUGODHI


HIGH COURT OF ZIMBABWE
MUREMBA J
HARARE, 2 July 2021 & 9 September 2021


Unopposed Application


G. Sithole, for the applicant
No appearance for the respondent


       MUREMBA J: This matter was set down for hearing on the 2 nd of July 2021 as an
opposed application. However, neither the respondent nor his legal practitioners appeared for
the hearing despite the respondent’s legal practitioners being served with the notice of set
down. Resultantly, Mr Sithole applied for a default judgment to be granted in favour of the
applicant.
       I queried with Mr Sithole the applicant’s locus standi to bring the application in casu.
The facts of the matter are as follows. The now late Tadewu Mugodhi who used to be the
bishop of the applicant was ill from February 2019 to October 2019 when he then died. In
August 2019 when he was still ill, he called for a meeting with the Board of Ministers of the
applicant together with vice bishops and pastors and made a pronouncement that his son the
respondent in the present matter, Washington Mugodhi was now going to hold the office of
vice bishop and subsequently succeed him as bishop upon his death. Tonnie Sigauke who is
the deponent to the applicant’s founding affidavit averred that this pronouncement by the
now late bishop was contrary to the provisions of the applicant’s constitution, particularly
section 4 which provides that the Vice Bishop should hold office as the Acting Bishop when
the bishop is unable to perform his duties. The applicant already had 2 vice bishops who
were appointed in terms of the constitution: Aaron Munodawafa and the deponent himself.
       The applicant averred that the pronouncement of the respondent as the vice bishop of
the applicant triggered an urgent chamber application under HC 6734/19 by the applicant
against the now late bishop, the respondent in the present matter and two other respondents.
This court granted a provisional order declaring the pronouncement of respondent as the vice
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bishop unlawful. However, the provisional order was appealed against and on 19 October
2019 the Supreme Court allowed the appeal on the basis that this court had made findings
based on minutes written in vernacular which were not translated contrary to the provisions
of 49 of the High Court Act [Chapter 7:05].
       It is averred in the present application that upon the death of Bishop Tadewu Mugodhi
in October 2019, the respondent installed himself as the bishop of the applicant. He did this in
February 2020 at the late bishop’s memorial service and continues to hold himself as such to
date. It is further averred that he has even changed the locks at the applicant’s national shrine
in Hwedza. It is contended that the respondent’s appointment as bishop of the applicant is
ultra vires the applicant’s constitution. It is on this basis that this application was brought.
The draft order shows that the following three declaraturs are being sought.
       “It be and is hereby declared that:
           1. Aaron Munodawafa is the substantive Bishop of the applicant in terms of its
              Constitution.
           2. Tonnie Sigauke is Acting Bishop of the applicant in terms of the Constitution.
           3. Respondent’s appointment as Bishop of the applicant, being ultra vires the
              applicant’s Constitution is null and void.

               Consequently, it is hereby ordered that:
           4. Respondent is interdicted from holding himself as Bishop of the applicant.
           5. Respondent shall pay costs of suit on a legal practitioner and client scale .”

       It is clear that the deponent to the applicant’s founding affidavit wants the
respondent’s appointment as bishop of the applicant be declared null and void. He wants
Aaron Munodawafa to be declared the substantive bishop whilst he is declared the acting
bishop of the applicant. The deponent averred that on 2 February 2020 at the National
General Conference of the applicant following the death of Bishop Tadewu Mugodhi which
had created a vacancy in the office of the bishop, Aaron Munodawafa was appointed bishop
of the applicant while the deponent remained as vice bishop. It was further resolved that
since Bishop Munodawafa was now very old and senile, blind and unable to walk, the
deponent should be appointed acting bishop.
       With all these averments made by the applicant’s deponent, it was my considered
view that if the respondent installed himself as the bishop of the applicant and continues to
hold himself as such and has gone on to change the locks at the national shrine in Hwedza,
then it means that the applicant is now under the control of the respondent. Given this
scenario, I then sought to understand from Mr Sithole how the applicant which is now under
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the control of the respondent is suing its bishop for his removal. The question that came to
mind was who authorised the applicant to sue? Mr Sithole referred to the resolution marked
as Annexure A which he said authorized the deponent to be the acting bishop of the
applicant. This resolution in question is an extract of the minutes of the National General
Conference held on 2 February 2020. However, other than appointing the deponent to the
founding affidavit as the acting bishop, it says nothing about the applicant being authorized to
institute legal proceedings against the respondent. It also does not say that the deponent was
authorized to represent the applicant in the said legal proceedings. It should also be noted that
this National General Conference was held on 2 February 2020 and the present application
was only filed on 22 October 2020, more than 8 months later. Being an acting bishop does
not clothe Tonnie Sigauke, the deponent with the authority to represent the applicant in legal
proceedings or to institute legal proceedings on its behalf. He needs to show that he was
properly authorised by the applicant.
       I find the submission that the deponent is the current head of the applicant self-
defeating to the deponent. He cannot claim that he is currently in charge of the applicant yet
he is suing the respondent for holding himself as the current leader of the applicant. The mere
fact that the deponent, Tonnie Sigauke wants the appointment of the respondent as the bishop
of the applicant to be nullified on the basis that it was made unconstitutionally means that
currently, the person who is in charge of the applicant is the respondent. Whether rightly or
wrongly, that is beside the point right now. With that, Tonnie Sigauke cannot claim that he
has authority to bring legal proceedings on behalf of the applicant when he has no control
over it. He has brought these proceedings in an attempt to take control of the applicant. Under
the circumstances there is therefore no way the church can be bringing the present
proceedings as the applicant. The applicant can only be a co-respondent with Washington
Mugodhi who has control over it. It is clear from the founding affidavit that Tonnie Sigauke,
the deponent has a personal interest in the matter. The relief that he is seeking is meant to
serve his personal interest. He wants to be appointed Acting Bishop of the applicant and for
the respondent to be divested of power over the applicant. Clearly this is an acknowledgment
that the respondent has taken leadership and control of the applicant, otherwise why sue him?
Tonnie Sigauke is trying to serve his own interests under the guise of the applicant. He
should have brought this application in his own name.
       Mr Sithole’s further submission was that the issue of locus standi in the circumstances
of the parties had already been determined by this court in case no. HC 6734/19 in judgment
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HH 575/19. This was an urgent chamber application between the parties and that same issue
arose. This court made a finding that Tonnie Sigauke was authorised to bring the application
on behalf of the applicant on the basis of a resolution that was made in the minutes of 10
August 2019. However, to begin with, that judgment was later overturned by the Supreme
Court. So, it is unsafe to rely on a judgment that was overturned. Secondly, the High Court
judgment in issue is silent on the arguments and submissions that were made by the parties in
respect of this issue. So, it is dangerous to blindly follow the decision that was made.
       Further, it is interesting to note that a declaratur for the appointment of Aaron
Munodawafa as the bishop of the applicant is being sought yet Aaron Munodawafa is not an
applicant in the matter. A relief which affects him cannot be sought in his favour without him
being a party to the proceedings. He is a necessary party. The matter cannot be adjudicated in
his absence. What if he does not want to be declared the substantive bishop? Besides, he is
said to be senile. Does he even appreciate the existence of the present legal proceedings? It
means that for his participation in any legal proceedings he would want to be represented by a
curator ad litem.
       In view of the foregoing, I make a finding that the applicant has no locus standi to
bring the present application.
       In the result, it is ordered that the application is dismissed.




Muvingi & Mugadza, applicant’s legal practitioners