Mugodhi Apostolic Faith Church and Washington Mugodhi N.O v Davison Mangoma and Others; Ranganai Chikwena and Others v Mugodhi Apostolic Faith Church and Others

Three applications were before the court involving a leadership dispute within Mugodhi Apostolic Faith Church. HC 5594/21 was an application for an interdict to bar certain respondents from entering church premises and interfering with its congregants. HC 901/22 was an urgent interim interdict application pending determination of HC 5594/21. HC 905/22 was an application for declaratory relief seeking to determine: (a) that the second respondent was the substantive Bishop, (b) that the third respondent was the Vice Bishop, and (c) that the fourth respondent's appointment as Vice Bishop was ultra vires and null and void. The parties agreed that HC 905/22 should be heard first as its resolution would determine who the leader of the church was. A central dispute emerged concerning whether the church had a written constitution. Applicants claimed there was a written constitution filed on record, while respondents argued there was no written constitution and that the document produced was fraudulent and doctored for purposes of the proceedings. The alleged constitution showed contradictory dates (1 August 2012 and a date stamp of 28 May 2018). Additionally, there were two conflicting versions of minutes from a meeting held on 10 August 2019.

• Whether there were material disputes of fact that could not be resolved on the papers in motion proceedings
• Whether the matter should be referred to trial for the leading of viva voce evidence
• Whether the court should invoke Rule 59(26)(b) of the High Court Rules to take a robust approach and allow oral evidence in motion proceedings
• Whether the church had a written constitution

The matter was referred to trial for evidence to be led from the committee members on the Constitution to determine whether the Church has a written constitution, and for the person who prepared the minutes of 10 August 2019 to testify on the minutes. The papers filed of record were ordered to stand as the pleadings.

A material dispute of fact arises when material facts alleged by an applicant are disputed and traversed by a respondent in such a manner as to leave the court with no ready answer to the dispute between the parties in the absence of further evidence. Where there are divergent positions on a central issue - such as whether a written constitution exists, with one party claiming it does and producing a document, and another denying its existence and challenging the authenticity of the produced document - this constitutes a material dispute of fact that cannot be resolved on the papers and requires the matter to be referred to trial for viva voce evidence. Rule 59(26)(b) of the High Court Rules is not meant to convert motion proceedings into trial proceedings and should not be invoked to allow oral evidence where there are fundamental material disputes of fact that require full trial proceedings.

The court observed that matters must not be brought to court under motion proceedings if there are material disputes of facts. The court also noted that mere allegations of a possible dispute of fact is not conclusive of its existence (as per Rio Zim case). In this particular case, the court remarked on the contradictory dates appearing ex facie on the alleged constitution (1 August 2012 versus date stamp of 28 May 2018) and the absence of committee members' names as indicators supporting the finding of a genuine dispute requiring investigation through viva voce evidence.

This case is significant in South African and Zimbabwean civil procedure jurisprudence as it reinforces the established principles governing when matters should be referred to trial from motion proceedings. It demonstrates the court's application of the test for material disputes of fact as established in Supa Plant Investments v Chidavaenzi, and clarifies the limitations of Rule 59(26)(b) of the High Court Rules. The case confirms that this rule is not intended to convert motion proceedings into trial proceedings. The judgment is also relevant to church law disputes, illustrating how courts approach internal church governance disputes where fundamental factual questions about constitutional documents must be resolved. It shows judicial restraint in refusing to make determinations on disputed documents without proper viva voce evidence.