C of A
(CIV) No 8/92
LESOTHO COURT OF APPEAL
MOSUOE NYAMATHE FIRST APPELLANT
LION SECOND APPELLANT
LION THIRD APPELLANT
MOKOENA FIRST RESPONDENT
KOU (PAULINA LION) SECOND RESPONDENT
PAULUS RAMOTSO THIRD RESPONDENT
TLAPANA FOURTH RESPONDENT
TAU LION FIFTH RESPONDENT
RAMOTSO SIXTH RESPONDENT
Appellants applied successfully in the Court below for the issue of a
rule nisi calling on the Respondents to show cause why:
" 1 (a) The Respondents shall not be restrained from entering
the site of the Zion Apostolic Faith Mission Church at Motimpose,
Maseru and from residing there or holding religious services, until
David Thuloane Lion (from whom they claim authority in the
Apostolic Faith Mission Church) has by due process of law been
authorised by a court of competent jurisdiction to deal with
affairs of the Zion Apostolic Faith Mission Church and the estate of
the late Solomon Lion.
Respondents are omnia ante directed to vacate the mission house of
the mission church of the Zion Apostolic Faith Mission
Motimposo and restore possession of the said premises to third
applicant and refrain from interfering with applicants'
except by due process of law.
Respondent who claims to be acting on behalf of David Thuloane Lion
shall not be restrained from holding himself as the
Bishop of the Zion Apostolic Faith Mission church in Lesotho as David
Thuloane Lion has withdrawn case No. 21870/88 in which the
Thuloane Lion claimed to be the head of the Zion Apostolic Faith
Mission church and the heir to the estate of the late
shall not be directed to pay the costs, of this application.
2. That this rule operate as an interim interdict pending the
finalisation of this application."
of the rule was opposed by the Respondents. The matter was set down
for hearing as an opposed motion and argued on
the papers presently
before us. Judgment was reserved on 15th December, 1989.
25th February 1992 Molai J. who presided, issued an order discharging
the rule as regards prayers (a) and (c) but confirmed
it in respect
of prayer (b). On the issue of costs the judgment reflects the
Respondents having substantially succeeded are in the discretion of
the Court, awarded 2/3 of the taxed costs,"
noted an appeal against the Order in so far as it discharged paras
l(a) and l(c).
noted a cross-appeal directed at that part of the order confirming
para l(b) of the rule.
' I refer
to the parties as Appellant and Respondents respectively as they are
cited in the heading to the judgment.
the notices of appeal cited a variety of grounds, in argument before
us both parties contended that a proper analysis of
should have prompted the Court a quo to give judgment in their
Solomon Lion was the head of the Zion Apostolic Faith Mission Church.
This church has its headquarters in Grasmere in
the Republic of South
Africa. The church has a number of branches one of which is in
Lesotho. Archbishop Lion administered the
church with the assistance
of an Executive
On the 5th of September 1987 he passed away.
Appellant alleges that he is the presiding Bishop of the Church in
Lesotho having been consecrated as bishop by Archbishop
on the 11th September 1982 and he annexes what is called a
Certificate of Ordination as evidence of this fact.
however two unusual features apparent on the face of the certificate.
The document is dated January 1982. 9 months prior
to the date on
which 1st Appellant alleges he was consecrated a Bishop. Secondly the
word "Bis" (which I assume is short
for Bishop) has been
inserted, albeit with some difficulty, in front of the name of First
Appellant where it appears in the body
of the document. I will revert
to the significance of these factors later in this judgment. However
it is at least clear that he
is an ordained Minister of the Church.
He alleges that he succeeded one Bishop Simon Mofolo as presiding
Bishop, the order of seniority
having been confirmed by Archbishop
Solomon Lion during Easter 1986 when Paulina Kou (commonly known as
Paulina Lion) the second
Respondent was consecrated and became fourth
principle issues of dispute are articulated by 1st Applicant in his
affidavit. He says that The late Archbishop Solomon Lion
church with the assistance of the executive committee which operates
from Grasmere Transvaal which is its headquarters.
executive committee) took over the running of the church after his
death in September 1987. This they did because he
minor child Godfrey Emmanuel .Lion who was only 6 years old when he
died. First Appellant then goes on to state
" 5.2. On the 7th November 1987 it was agreed that the National
Branches of the Zion Apostolic Faith Mission Church would
answerable to Presiding Bishops that had been consecrated by the late
6.1. Solomon David Lion died domiciled in Grasmere Transvaal in the
Republic of South Africa. Consequently his estate is administered
according to the Laws of the Republic of South Africa.
6.2. As already stated although the Zion Apostolic Faith Mission
Church was as one time in Lesotho, it expanded
and moved to the Republic of South Africa and its headquarters is now
at Grasmere Transvaal in the Republic of South Africa after
6.3. A dispute later developed after the 7th November 1987.
The eldest son of the late Solomon Lion is David Thuloane Lion who is
a village headman at Maboloka Transvaal, South Africa in
the area now
known as the Republic of Bothuthatswana, claimed to be the successor
of his father. David Thuloane Lion claimed that
by birth as the late
Solomon Lion's eldest son he had automatically inherited the Office
of Archbishop and head of the Zion Apostolic
Faith Mission Church.
6.4 As more fully appears in the affidavit of Elizabeth Master Lion,
to enforce his claim David Thuloane Lion brought legal proceedings
under case Number 21970/88 in the Witwatersrand Local Division of the
Supreme Court of South Africa against Elizabeth Master Lion
Executor of the Estate of the late Solomon Lion and the mother and
guardian of Godfrey Emmanuel Lion
who is a minor who has been earmarked and consecrated Archbishop of
the Zion Apostolic Faith Mission Church. In these proceedings
Thuloane Lion claimed both the leadership of the Church and church
property. This application has since been withdrawn. See
affidavit of Elizabeth Master Lion marked annexure " B" .
7.1. David Thuloane Lion was never ordained a priest or minister of
the Zion apostolic Faith Mission Church nor has he been consecrated
bishop. I have never seen him in church either in Lesotho or in the
Republic of South Africa.
7.2. David Thuloane Lion never attended conferences Christmas and
Easter celebrations of the Zion Apostolic Faith Mission that
at Grasmere Transvaal in the Republic of South Africa or any of the
regional headquarters of the church.
7.3. In our church the call to minister in the church is by call and
the direction of the holy spirit. This is
how the church was founded, there is Apostolic succession among
bishop guided by the holy spirit. No man can claim that he can
minister in the church merely because he is a son of an archbishop or
7.4. As more fully appears in my certificate of ordination marked
annexure "A", the Zion Apostolic Faith Mission Church
founded by Dowie John Alex in 1848 AD. No person can be a Minister
unless duly consecrated and ordained according to Gods law.
late Edward Lion one of the first African leaders of the Church never
suggested or pretended that the church was private
property see his
last certificate of ordination marked annexure "C".
8.1. Isaac Mokoena (First Respondent) is seizing the property of the
Zion apostolic Faith Mission Church in Leostho claiming to
authorised by David Lion who failed to pursue his application number
21970/88 before Supreme Court of South Africa (Witwatersrand
Appellant then alleges that the Second, Third, Fourth and Fifth
Respondents claiming to be acting on 1st Respondents instructions,
are presently occupying the mission house of the Zion Apostolic Faith
Mission Church by force without his permission.
Appellant summarises the dispute between the parties thus :
"8.5 (a) The Respondents now say David Thuloane Lion as head of
the Zion Apostolic Faith Mission Church has appointed First
Respondent as his chief Bishop and that First Respondent is the sole
legitimate authority in Lesotho.
say even if First Respondent's appointment by David Thuloane Lion
was proper (which it is not) Respondents are not entitled
the law into their own hands and help themselves to what they
Appellant is the widow of the late Solomon Lion who
the time of his death Archbishop of the said church. She is also the
Secretary General of the Church.
the issue of succession she says the following:
"6.1 Prior to his death the late Solomon Lion during Easter in
1987 my late husband consecrated my minor son Godfrey Emmanuel
and announced this to the congregation and sent messages to member of
the Church in the Republic of South Africa, Lesotho,
Botswana, Zimbabwe, Mozambique and Bophuthatswana that Godfrey
Emmanuel would succeed him.
6.2 The conference of the 7th November 1987 held at Grasmere
Transvaal decided that the administration of the church would be in
the hands of the executive committee until Godfrey Emmanuel Lion
reached majority and assumed the Archbishop's mantle."
Appellant's affidavit deals principally with the relief sought in
terms of para (b) of the Rule. In support of this claim
4.1. On the 4th August, 1989 Paulina Kou (commonly known as Paulina
Lion) Maseeiso Mokoena (the wife of Isaac Mokoena) Mojalefa
Ramots'o, Simon Tlapana, Mats'episo Tau Lion and Maria Ramots'o
entered the Mission house which is my residence claiming
been authorised by Isaac Mokoena who had been made Bishop by David
Thuloane Lion. They occupied the sitting room which
they have now
turned into their residence, to gain entry they broke the lock of the
4.2 I sought police assistance but after Isaac Mokoena's explanation,
the police said the matter was a civil dispute not a criminal
In par. 6
of the affidavit she goes on to say:
"6. 6.1 On the 17th August, 1989 when this problem was before
the Principal Chief of Thaba-Bosiu chief Khoabane Theko and Chief
Majara Theko, Isaac Mokoena claimed the Mission house in which
reside the personal property of the late Archbishop solomon Lion.
Consequently it was not the property of David Thuloane Lion
as it had
never been the property of the Zion Apostolic Faith Mission Church.
Isaac Mokoena said he was claiming the property as
6.2 A Title Deed was brought which showed that Archbishop Solomon
David Lion had clarified the fact that the site belonged to the
Apostolic Faith Mission Church and the site was registered in the
Deeds Registry Maseru as that of the Zion Apostolic Faith
concludes by averring that unless urgent relief is granted "there
might be fighting and breaches of the peace."
response Respondents have filed opposing affidavits. I proceed to
Respondent alleges that he is the presiding bishop of the Zion
Apostolic Faith Mission Church. He says that "as is clear
the Applicants own papers, this matter involves serious disputes of
fact which to the Applicants' own knowledge would necessitate
evidence." He accordingly urges the dismissal of the application
on this ground alone.
elaboration of this contention he tenders the following evidence -
" I aver that there is so much disagreement between the First
Applicant's version, as set out in his Affidavit, and mine that
would be pointless for me to set out point by point my denials of his
averments and my version of events having regard to the
ultimately the alleged dispute between the two factions of the church
and their respective candidates, namely Thuloane
and Second Applicant
on behalf of her son Godfrey Emanuel, will be settled in the Republic
of South Africa where, admittedly, the
headquarters of the Church is
situated. I respectfully submit that this Honourable Court has no
jurisdiction to decide who the
proper head of the Church is and.
consequently, who between First Applicant and I is the leader of the
Church in Lesotho as such position is dependent on whether
or not it
is sectioned by whoever happens to be the head of the Church. As it
is, I do not admit that First Applicant is Presiding
Senior Bishop as
alleged. I deny that he is a Bishop of the Church at all. In the
premises I respectfully submit that Applicants'
prayer that I be
restrained from holding myself out as Presiding Bishop of the Church
in Lesotho will not be granted as such order
will amount to usurping
the powers of the relevant authorities of the Church. I respectfully
call attention to the fact that Civil
Case 21970 of 1988 in the
Witwatersrand Local Division, which was an application, was withdrawn
on the basis of a technicality
and has since been re-instituted as an
Respondent then proceeds to deny that he was in any way involved in
the seizure of property occupied by third Appellant and
this part of the application against him be dismissed. He also denies
that 2nd Appellant is the widow of Solomon Lion
in the sense of ever
having been legally married to him.
In so far
as 3rd Appellant is concerned he denies that she has ever been the
secretary of the church in Lesotho.
Appellant is the widow of Zacharia Lion the younger brother of
Solomon Lion she is, it is common cause, a bishop of the Church
has been so since June 1986.
In so far
as 3rd Appellant's claim of an unlawful seizure of the property
concerned, this Respondent claims that 3rd Appellant has
lived at the
mission premises since 1984. She also claims that 3rd Appellant has
never been a secretary of the Church. Concerning
the occupation of
the mission house which is the subject matter of prayer (b) in the
Order, she avers as follows:
deny that 3rd Applicant has lived at the mission premises since
1984. I aver that 3rd Applicant lived at Grasmere and used to
Maseru with Solomon Lion and used to stay at number 33 Arrival
Centre, Maseru. In October, 1987, after the death of Solomon
the house at Arrival Centre was given up by the Church and
thereafter 1 aver that 3rd Applicant would, on her visits to Maseru,
stay in the mission house at Motimposo."
was placed in charge of this house by Solomon Lion in 1963 and have
lived there ever since. Solomon's widow, the 5th Respondent,
living in a house near by, was party to this arrangement. Sixth
Respondent has also lived in the house with me since 1963
Applicant, except on her said visits to Maseru, has never resided in
the house. She has, to the best of my knowledge been
non-Lesotho pass port on the occasions she has come here and only
stayed here for the periods permitted her by the Immigration
authorities. On the 5th August, 1989 this Applicant was living in
Lesotho on the basis of a permit of 6 months duration in the
of which she was going in and out of Lesotho."
evidence concerning the events in question on the day
spoliation is alleged to have taken place reads as follows:
I aver that on the 4th August, 1989 I was returning from my pastoral
visits outside Maseru and went to my usual residence where
with 3rd Applicant, and 6th Respondent. 'Ma Seeiso was my visitor who
was going to spend the night with me.
Third and Fourth Respondents had assisted me bo carry my luggage to
the house. Fifth Respondent was not present. We entered and
the lounge and after a while one Geneva Thakgomo, who was in 3rd
Applicant's company, came from an inside room and locked
door locking us in. Third Respondent asked her what she was doing and
why and requesting her to let them out. She refused.
then forced the door open after which the police arrived.
The police took all of us, including 1st Respondent who was in his
own house in the site, to the charge
office in Maseru leaving 3rd Applicant behind as she claimed she was
unwell. She sent out Geneva to act for her. Geneva explained
police that there was a split in the Church between the followers of
Thuloane and those of Godfrey Emmanuel and that 3rd
Applicant did not
want he followers of Thuloane living in that house. The police asked
1st Respondent to go home and settle the
matter, we then left and
went back to the mission house,
I admit that I and 6th Respondent occupied the sitting room since the
4th August, This was because 3rd Applicant forcibly denied
to the other portions of the house."
chief's assistance was unsuccessfully invoked and 2nd Respondent
stayed in the house with 6th Respondent - confined to
room until evicted by the order of Court issued on August 25, 1989.
Respondent says he is a priest of the Church and that he was not
involved in the events of August 4 when 3rd Appellant
her occupation of the mission house was unlawfully terminated. He
says he was never served with any papers and that there
was no basis
for involving him in these proceedings.
Respondent, also a Priest of the Church, advances exactly the same
defence as 3rd Appellant and also seeks the discharge of
Appellant says that she is the widow of the late Solomon Lion. She
confirms the evidence of second Respondent that she has
in the house with 6th Respondent since about 1963 and avers that 3rd
Appellant had lived in the house as a visitor
contends that the site in issue was allocated to her late husband in
his personal capacity by Chief Letsie K. Theko and she
validity of the rectification of the title deed which she says took
place without her knowledge and in violation
of her rights.
Respondent merely identifies herself with the averments of 2nd
evidence was also submitted on behalf of Respondents on the issue of
the alleged disturbance of 3rd Appellant's possession.
Lion, the second son of Solomon Lion says that he has lived in one of
his father's houses on the site in question since
1964. When he
arrived there in that year he found 2nd and 6th Respondents'
"occupying my father's house" i.e. the mission
subject matter of dispute.
September 1984 and when his father came to attend a funeral in he
came with his two personal secretaries who the deponent identifies
2nd and 3rd Appellants. They stayed in the mission house aforesaid
although 2nd and 6th Respondents "were still in the
in charge of it." After this visit his father came to the
mission with the said Appellants from "time to
However in 1987 his father rented a flat and subsequently a house
where he and like two Appellants stayed.
December 1987 his father having died he collected his belongings and
took them to the mission house and handed them over to 2nd
Respondents "to look after."
expresses surprise that third Appellant regards herself as having
been in occupation of the mission house. He says: "as
far as I
know she was here visiting as usual and has not been here for 4
of Motimposo also filed a short affidavit in support of the
Respondents case. He says that he has known 2nd Respondent
about 1963 "from which time she has been occupying the mission
house on Solomon Lion's church site in Motimposo.
Respondents case in the Court a quo. In reply First Appellant points
to the fact that 1st Respondent has failed to say
who appointed him
as presiding bishop let alone who ordained him. He points to the
contrast between his affidavit and that if Paulina
Respondent) in this respect.
enlarges on this in par. 3.2 and 3.3. of his replying affidavit by
stating the following:
"3.2 In the Church a Bishop is ordained by the Archbishop and
authority in the Church determined by the
Archbishop, First Respondent cannot claim to be a Bishop without
first proving his ordination.
3.3 A bare denial of my ordination without proving his own ordination
when I have proved my own ordination by the late Archbishop
David Lion in an attempt to manufacture a dispute where none exists."
reiterates that 3rd Respondent has been residing in the Church
Mission house and that she is the church secretary.
Appellant also filed a replying affidavit in which she inter alia
proved prima facie by attaching the relevant documentation
is executrix in the estate of the late Archbishop Lion and that she
was married to him. She had previously been married
to him by African
custom in 1975.
Appellant in her reply insists that she has always lived at the
mission house since 1984 - although she occasionally visited
Republic of South Africa - or that 2nd and 6th Respondents were ever
residing permanently in the mission house. She also proves
facie that she is a Lesotho citizen and
travelled on a Lesotho passport. (Respondents having raised the issue
by alleging albeit tentatively that she was not a
citizen of the
Kingdom of Lesotho and that she was travelling on a South African
reiterates that Respondents broke into the house, and that in any
event they had taken the law into their own hands by seizing
sitting room. To her knowledge "none of the chiefs ever said
that Paulina resided in the mission house for many years."
In so far
as fifth Respondent is concerned she was occupying one of the other
houses on the site "where she is still residing.
They only came
to the Mission house to cause trouble."
denies the evidence of Tefo Lion virtually in each and every respect.
It was on
this evidence that the Court a quo came to the conclusion that it
should discharge the rule as regards prayers 1 (a) and
confirm it in respect of prayer (b).
to his conclusion bo discharge the rule in respect of prayers l(a)
and l(c) the learned Judge points to the apparent alteration
insertion of the letter "Bis" before the name of the first
Appellant and to the discrepancy in the dates. He says
therefore considers it "a dubious document". In the absence
of convincing documentary proof he finds himself
unable to hold that
either 1st Appellant or 1st Respondent "...... is a Bishop, not
to mention the presiding Bishop in the
National Branch of the Zion
Apostolic Faith Mission Church in Lesotho."
his finding on the fact that 3rd Appellant had proved her Lesotho
Citizenship and that the allegation she had travelled on
a S. A.
passport was false, the Court a quo held that 3rd Appellant had been
in peaceful occupation of the mission house since
1984. The learned
Judge goes on to find the following:
The Respondents' story that prior to 4th August 1989 the 2nd and the
6th Respondents were living in the mission house is
obviously intended to cover the truth of the applicants' version that
on the day in question, 4th August, 1989 the
2nd, 3rd, 4th, 5th and
6th Respondents, acting on the instructions of the 1st
went to the mission house and deprived the 3rd Applicant of her
peaceful occupation thereof. I have no hesitation in
Respondents story as false."
confirming prayer l(b) of the rule the Court records the following :
" As regards prayer l(b) of the rule, I have found on a balance
of probabilities, that the 3rd applicant has been in peaceful
occupation of the mission house since 1984. However, the second,
third, fourth, fifth and sixth Respondents, presumably acting
instructions of the 1st Respondent, have on 4th August, 1989 forcibly
deprived the 3rd Applicant of her peaceful occupation
of the mission
house. That was clearly a spoliation which the Respondents could not,
in my view, be permitted to do."
submissions before us Counsel for the Appellants stressed the paucity
of the evidence supporting 1st Respondent's claim to
of the Church, This contention has considerable force. Ordinarily one
would have expected Respondent to have placed
more cogent and
the Court in substantiation of this fundamental issue.
as is apparent from the summary of Appellant's evidence set out
above, they have embarked on these proceedings on the basis
dispute concerning succession had arisen and that legal proceedings
had been instituted by the competing claimant David
Lion in the
Republic of South Africa. (1st Respondent it must be remembered,
claims to have received his authority as head of the
Lesotho from the said David Lion.)
circumstances. and although a great deal of evidence has been
submitted to substantiate 1st Appellant's claim to the leadership
the Church, I believe it would be unwise in view of the approach
adopted by Appellants to hold on the papers before us, that
entitled to a finding of their favour on the issue of succession,
whilst I do not accord the dominant weight to the defects
certificate of ordination, in the absence of any explanation, it does
tend to reinforce the view just expressed.
therefore find no good ground for disturbing the Order of
a quo discharging paragraph 1 (a) and (c) of the rule nisi.
I come to
consider the merits of the cross-appeal. The Court a quo as can be
seen from the judgment in rejecting Respondents' version,
almost exclusively on the fact that Respondents had falsely alleged
that second and third Appellants had been using non-Lesotho
This allegation was made somewhat guardedly by 2nd Respondent and
most explicitly by Tefo Lion in his supporting affidavit.
alleges that he was responsible through his wife "who worked at
the Immigration department, for arranging permits
for their stay in
finding must however be added the fact that 1st Respondent
recklessly, it would seem, denied dogmatically that "2nd
Appellant is the widow of Solomon Lion in the sense of ever having
been legally married to him". In the event 2nd Appellant
only alleges a marriage by African custom in 1975, but proves a civil
marriage to the said Solomon Lion by attaching an abridged
a quo does not however deal with the evidence of
who deposes, albeit in very bald terms, that he has known 2nd
Respondent since about 1963 "from which time she has
occupying the mission house on Solomon Lion's Church site at
Motimposo." Prima facie this does tend to give some support
we do not know whether the "mission house" to which he
refers is the same house to which Appellants lays claim
she was a permanent resident. It must be borne in mind that there are
66 houses on the property in question and it is
alleged by Appellants
that fifth Respondent stayed at another house on the site, and 2nd
Respondent stayed at the mission house
when she was a guest on church
point to the fact that 3rd Appellant has at least since 1987, and
apparently as a matter of right, stayed at the mission
these circumstances I find it improbable that she would have
spuriously invented a version containing the detailed evidence
by her that Respondents sought to bring about a change in the status
quo ante by interfering with her peaceful occupation.
point to the fact that on the issue of ownership of the property in
question Appellants case has been supported by documentary
whereas Respondents have failed to reinforce its case in resisting a
spoliation order with acceptable, objective and
accordingly find that Appellants have proved that Third Appellant was
in peaceful occupation of the mission house in question
and that she
was unlawfully disturbed in such occupation by or on behalf of the
possible that some of the Respondents may have some limited rights of
occupation as guests or otherwise to the mission house.
On the papers
before us they have exercized those rights in a manner incompatible
with the rights of third Respondent to peaceful
occupation of the
property. The balance of convenience, indeed peace and tranquility
dictates that until such time as the main
dispute is settled or
Respondents succeed in an action to establish such rights an Order
that they should vacate the property was
conclude that the Court a quo was right in confirming the
of Prayer (b) of the rule nisi.
accordingly ordered that:
appeal is dismissed with costs.
Cross Appeal is dismissed with costs.
Delivered at Maseru on this day of January, 1993.
I agree :
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