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CIV/APN/207/83
IN THE HIGH COURT OF LESOTHO
In the Application of:
CASWEL MOSUOE NYAMATHE 1st Applicant
ELIZABETH LION 2nd Applicant
'MALERUO LION 3rd Applicant
and
ISAAC MOKOENA 1st Respondent
PAULINA KOU (Paulina Lion) 2nd Respondent
MOJALEFA PAULUS RAMOTSO 3rd Respondent
SIMON TLAPANA 4th Respondent
'MATSEPO TAU LION 5th Respondent
MARIA RAMOTSO 6th Respondent
JUDGMENT
Delivered by the Hon. Mr. Justice B.K. Molai on the 25th day of February 1992.
The applicants herein obtained against the Respondents, a Rule Nisi, calling upon the latter to show cause why:
"l(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 Zion Apostolic Faith Mission Church) has by due process of law been authorised by a court of competent jurisdiction to deal with the affairs of the Zion Apostolic Faith Mission Church
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and the estate of the late Solomon Lion,
The Respondents are omnia ante directed to vacate the mission house of the mission church of the Zion Apostolic Faith Mission church at Motimposo and restore possession of the said premises to third applicant and refrain from interfering with applicants' possession except by due process of law.
First Respondent who claims to be acting on behalf of David Thuloane Lion shall not be restrained from holding himself as the Presiding Bishop of the Zion Apostolic Faith Mission church in Lesotho as David Thuloane Lion has withdrawn case No. 21970/88 in which the said David Thuloane Lion claimed to be the head of the Zion Apostolic Faith Mission church and the heir to the estate of the late Solomon Lion.
Respondents shall not be directed to pay the costs of this application,
That this rule operate as en interim interdict pending the finalisation of this application."
Confirmation of the rule was opposed by the Respondents and affidavits were duly filed by the parties.
It may be mentioned, at this juncture, that when this matter came for arguments, the Respondents sought to raise a question of law viz, that there was a misjoinder, which had to be argued, in limine. It is to be observed, however, that paragraph (c) of subrule (10) of rule 8 of the High Court
3 Rules 1980 provides:
"(10) Any person opposing the grant of any
order sought in the applicant's notice of motion shall -
...........................
If he intends to raise any question of law without any answering affidavit, he shall deliver notice of his intention to do so, within the time aforesaid, setting forth such question."
In the present case the notice contemplated under the above cited paragraph (c) of subrule (10) of Rule 8 of the High Court Rules 1980 was admittedly not delivered by the Respondents to the applicants who naturally came to court unprepared to argue the question of law raised by the Respondents.
It was argued that as the Respondents had filed answering affidavits, there was no need for them to notify the applicants in accordance with the provisions of rule 8(10) (c) of the High Court Rules, supra. I found the argument untenable. To hold the contrary would imply that the Respondents could be allowed to take the applicants by surprise and raise for argument, a question of law at the time when the latter were obviously unprepared to argue. That would, in my view, be totally unfair. If they intended to raise a question of law, the Respondents simply had to comply with the provisions of Rule 8(10) (c) of the High Court Rules,
4 1980. They had not. Consequently I declined to entertain argument on the question of law raised, in limine, in total disregard of the provisions of the rules of this court.
It is common cause that Archbishop Solomon Lion was the head of the Zion Apostolic Faith Mission church, which has its headquarters in Grasmere, the Republic of South Africa and National Branches one of which is in Lesotho. He administered the church with the assistance of an Executive Committee. On 5th September, 1987 the Archbishop passed away.
It is further common cause that in his life time the archbishop had several wives. According to the applicants, the 2nd applicant, one of the Archbishop's junior wives and the general secretary of the church had a son by the name of Godfrey Emmanuel Lion. Prior to his death, Archbishop Solomon Lion had consecrated Godfrey Emmanuel Lion as the Archbishop who would succeed him as the Head of the Zion Apostolic Faith Mission church. At the time of Archbishop Solomon Lion's death, Godfrey Emmanuel Lion was still a minor child and the administration of the church fell upon the Executive Committee.
The Respondents denied, however, that the 2nd applicant was ever a lawful wife of the late Archbishop Solomon Lion or
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the general secretary of the church. She was, according to the Respondents, a mere personal secretary of the late Archbishop. By
implication, the Respondents denied, therefore, the applicants' averments that Godfrey Emmanuel Lion was the late Archbishop's son whom he had consecrated Archbishop and the future head of the Zion Apostolic Faith Mission church.
Notwithstanding the Respondents' denial that the 2nd applicant was lawfully married to the late Archbishop Solomon Lion, it is significant to observe that the applicants have annexed a marriage certificate indicating that on 2nd August, 1985 Archbishop Solomon Lion and the 2nd applicant did get married to each other by civil rites in Johannesburg, in the Republic of South Africa. That being so, I am convinced that the Respondents are not being honest with the court in their denial that the 2nd applicant and Godfrey Emmanuel Lion are the late Archbishop Solomon Lion's wife and son, respectively.
As regards their averment that Godfrey Emmanuel Lion was consecrated Archbishop and future head of the Zion Apostolic Faith Mission
church, the applicants have produced no documentary evidence to substantiate the averment. There is only their word against that of the Respondents, The court is, therefore, unable to resolve the issue on affidavit papers for it cannot say whether it is the typewriter of the
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applicants or that of the Respondents that is telling the truth.
It is not really disputed that, following the death of Archbishop Solomon Lion, it was agreed, on 7th November, 1987, that the National Branches of the Zion Apostolic Faith Mission church would be answerable to the Presiding Bishop of each Branch, According to the applicants there were, at the time of the death of Archbishop Solomon Lion, altogether five (5) Bishops in Lesotho. They were, according to the seniority of their consecration, Samson Mofolo, Caswel Nyamathe (1st Applicant), Phillip Motaung, Paulina Kou, alias, Lion (2nd Respondent) and Alfred Matholi. Bishop Samson Mofolo was, by virtue of his seniority, the Presiding Bishop responsible to the Headquarters at Grasmere, the Republic of South Africa. Following the death of Bishop Mofolo, on 8th May, 1989, the 1st Applicant became the moat senior and, therefore, the Presiding Bishop of the Lesotho National Branch of Zion Apostolic Faith Mission church. As the Presiding Bishop, the 1st applicant was responsible for the property of the Zion Apostolic Faith Mission church in Lesotho, which property included the site and mission house at Motimposo, Maseru.
It may, perhaps, be convenient to mention, at this juncture, that according to the Respondents, the so called mission site at Motimposo, Maseru, is not the property of the
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Zion Apostolic Faith Mission church but a personal property of the late Archbishop, who used to live thereon with the 5th Respondent, one of his widows. The applicants have, however, attached to their affidavits annexure "E", a Title Deed for the site.
According to annexure "E" the site was on 17th October, 1967 registered, under number 3741, in the name of Archbishop Solomon Lion. However, the Archbishop himself subsequently caused the registration to be amended so that the site was transferred to Zion Apostolic Faith Mission church of which he was the trustee. The amendment was effect by the Registrar of Deeds, in accordance with the provisions of S.6(6) of the Deeds Registry Act. 1967, on 5th September, 1972. That being so, the Respondents cannot be heard to say the site is a personal property of the late Archbishop and does not belong to the Zion Apostolic Faith Mission church.
The Respondents denied the averments that the 1st applicant was a Bishop, not to mention the Presiding Bishop, of the Zion Apostolic Faith Mission church in Lesotho. They denied therefore, that he was responsible for the church property which admittedly included the premises at Motimposo, Maseru. According to the Respondents, the 1st Respondent, and not the 1st Applicant, was the Presiding Bishop of the church in Lesotho.
Although they averred that the 1st Respondent was a
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Bishop in the Zion Apostolic Faith Mission church, the Respondents did not bother to produce any documentary proof to substantiate the averment. According to the applicants the 1st Applicant was consecrated a Bishop on 11th September, 1982. As proof thereof, they attached, to the founding affidavits, annexure "A" a certificate of the 1st Applicant's ordination.
I have read through annexure "A" and observed that it has apparently been altered by inserting the letters "Bis"
before the name of the 1st Applicant. The alteration has, however, not been initialled. Notwithstanding the applicants' averment that it is proof of the 1st applicant's consecration as a Bishop, on 11th September, 1982, annexure "A" was clearly issued in January, 1982 i.e. about 8 months before the alleged consecration of the 1st Applicant. That being so, annexure "A" is, in my view, no convincing proof that the 1st Applicant was, on 11th September, 1982 consecrated a Bishop in the Zion Apostolic Faith Mission church. Due to its apparent alteration which is not signed for, annexure "A" is, to say the least, a rather dubious document. In the absence of any convincing documentary proof, I am unable to find that either the 1st Applicant or the 1st Respondent is a Bishop, not to mention the Presiding Bishop, in the National Branch of the Zion Apostolic Faith Mission church in Lesotho.
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On the affidavits before me, it is common cause that the Zion Apostolic Faith Mission church site at Motimposo, Maseru, has a mission house and several other houses which are admittedly occupied by some of the Respondents and other members of the church. According to the applicants, the 3rd Applicant is one of the widows of the late Archbishop Solomon Lion and the secretary of the church in Lesotho. As the secretary, the 3rd Applicant has, on the authority of the late Archbishop Solomon Lion been peacefully occupying the mission house at Motimposo since 1984. The Respondents denied that the 3rd Applicant was either the wife of the late Archbishop -Solomon Lion or the secretary of the Zion Apostolic Faith Mission church in Lesotho. They averred that she was a personal secretary of the late Archbishop with whom she worked and stayed at Grasmere, the Republic of South Africa. She ordinarily travelled to Lesotho on a non-Lesotho passport and had to remain in the country on a permit specifying the length of period for her sojourn.
It is, however, significant that the applicants have attached to their affidavits annexures "G" and "H" which are Lesotho passports issued to the 3rd applicant on 19th December, 1975 and 25th July, 1989, respectively. According to the endorsements in her passports, the 3rd Applicant who is described as a Lesotho citizen, has visited the Republic of South Africa on numerous
occasions from 1975 to 1985 using
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annexure "G". When the annexure expired she was issued with another Lesotho passport, annexure "H".
As usual, the Respondents have not bothered to produce any documentary evidence to substantiate their averment that the 3rd applicant ordinarily travelled to Lesotho on a non-Lesotho passport and had to remain in the country on a permit. In the absence of any such evidence, I find it reasonable to reject as improbable the Respondents' suggestion that the 3rd applicant is not a citizen of Lesotho and ordinarily comes to this country as a visitor using a non-Lesotho passport. The suggestion is, in my view, nothing but the Respondents' fabrication calculated to mislead the court into believing that the 3rd Applicant, a Lesotho citizen who is a holder of a passport issued by this coutry, could not have been in peaceful occupation of the mission house at Motimposo, Maseru, since 1984.
It is common cause that David Thuloane Lion is the eldest son of the late Archbishop Solomon Lion, by one of his senior wives. According to the applicants, David Thuloane Lion claims that, by virtue of his being the eldest son of the late Archbishop, he has inherited the office of Archbishop and is, therefore,' the head of the Zion Apostolic Faith Mission church. This claim is, of course, disputed by the applicants who contend that, following the death of Archbishop Solomon
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Lion, the head of the Zion Apostolic Faith Mission church is Godfrey Emmanuel Lion whom the late Archbishop had, as it has already been stated earlier in this judgment, consecrated the Archbishop, who would succeed him as the head of the church. Consequently, there was, following the death of Archbishop Solomon Lion, a split in the Zion Apostolic Faith Mission church of which some members, including the Respondents followed David Thuloane Lion whilst others, including the applicants, followed Godfrey Emmanuel Lion.
It is further common cause that in 1988 David Thuloane Lion instituted, under case Number 21970/88 in the Witwatersrand Local Division of the Supreme Court of the Republic of South Africa, legal proceedings against the 2nd Applicant who is the executrix of the estate of the late Archbishop Solomon Lion and the guardian of young Godfrey Emmanuel Lion. In the proceedings David Thuloane claimed, inter alia, both the leadership of the church and the church property. The proceedings were, however subsequently withdrawn by David Thuloane Lion himself.
In their affidavits the applicants aver that notwithstanding the withdrawal of case Number 21970/88 in the Witwatersrand Local Division of the Supreme court in the Republic of South Africa, the Respondents claim that David Thuloane Lion, as head of the Zion Apostolic Faith Mission
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church, has appointed 1st Respondent as the Presiding Bishop and the sole legitimate authority is Lesotho. The Respondents do not dispute the applicants' averments but contend that case number 21970/88 in the Witwatersrand Local Division of the Supreme court of the Republic of South Africa was withdrawn because it had been instituted as an application. It has since been re-instituted as an action of which the decision is still pending before the court. The withdrawal was, therefore, on a technicality,
I shall assume, for the sake of argument, that case Number 21970/88 in the Witwatersrand Local Division of the Supreme Court of the Republic of South Africa has been re-instituted as an action. As it has already been pointed out earlier in that case, David Thuloane Lion claims, inter alia, to be the head of the Zion Apostolic Faith Mission church. In their own affidavits, the Respondents have, however, averred that the decision is still pending before the court. Until the court has given a decision in the matter, the Respondents cannot, therefore, be heard to say that David Thuloane Lion is. the head of the Zion Apostolic Faith Mission church and, as such has appointed the 1st Respondent to be the Presiding Bishop and the sole legitimate authority in Lesotho.
According to the applicants, the second, third, fourth, fifth and sixth Respondents, allegedly acting on the
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instructions of the 1st Respondent, have on 4th August, 1989 forcibly taken possession of the mission house occupied by the 3rd applicant since 1984. The Respondents also intended holding church services on the mission premises at Motimposo, Maseru in total disregard of the 1st Applicant's authority which action was likely to result in a fight between the two factions. Hence the institution of the present proceedings by the applicants for relief as aforesaid.
According to them on 26th and 27th August, 1989, the Respondents attended church services held on the church premises at Motimposo. There were no breaches of the peace. The applicants' fear that a fight is likely to occur between the two factions of the church as alleged has, therefore, no justification.
The applicants have not gainsaid the Respondents' averment that on 26th and 27th August, 1989 the latter attended church services without any incidents, I agree, therefore, that there is no justification for the applicants' fear that a fight is likely to occur between the two factions of the church if the Respondents were not restrained from holding church services on the mission premises at Motimposo.
In their affidavits, the Respondents averred that prior to 4th August, 1989, the 2nd and the 6th Respondents were living in the mission house with the 3rd Applicant who was a
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visitor, presumably from Grasmere, On 4th August, 1989, the 2nd Respondent arrived at the mission house from her pastoral visits outside Maseru. The third and the fourth Respondents assisted her with her luggage to the mission house. They found that the 3rd applicant had locked them out of the other portions of the house except the sitting room. The 2nd and the 6th Respondents have since been occupying the sitting room because the 3rd Applicant has forcibly denied them access to the other portions of the mission house on the grounds that they were followers of David Thuloane Lion and she does not want them in the house.
I have earlier in the judgment found that the 3rd applicant had been in peaceful occupation of the mission house since 1984, The Respondents' story that prior to 4th August 1989 the 2nd and the 6th Respondents were living in the mission house is a fabrication 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 Respondent, went to the mission house and deprived the 3rd Applicant of her peaceful occupation thereof. I have no hesitation in rejecting the Respondents story as false.
It is to be observed that prayer l(a) is double pronged. Firstly, it requires the respondents to be restrained from
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entering, and residing on, the site of the Zion Apostolic Faith Mission church at Motimpose, Maseru. Secondly, it requires the Respondents to be restrained from holding religious services on the church site until David Thuloane Lion, from whom they claim authority has, by a court of competent jurisdiction, been authorised to deal with the affairs of the church. As regards the first leg of prayer l(a) it is not really disputed that some of the Respondents live and/or lawfully occupy houses on the church site. Confirmation of the rule will inevitably, deny such Respondents access to the houses they lawfully live in and/or occupy on the church site. The court cannot, in my opinion, properly allow this to happen. The second leg of prayer l(a) is clearly based on the premises that the 1st Applicant is the most senior and/or the Presiding Bishop in Lesotho. I have, however, found that it cannot on the affidavits be conclusively held that the 1st Applicant is a consecrated Bishop, not to mention a senior or Presiding Bishop, in the Lesotho Zion Apostolic Faith Mission church. It follows, therefore, that prayer l(a) cannot be allowed to stand.
Similarly prayer 1 (c) cannot succeed on two grounds. Firstly, it is based on the applicants' averment that the 1st Applicant is the most senior and/or Presiding Bishop of the Zion Apostolic Faith Mission church in Lesotho, a fact which is, however, denied by the Respondents. The onus of proof
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that the 1st Applicant is a Bishop or Presiding Bishop in the church is clearly on the applicants. Assuming the correctness of my finding that the applicants have failed to discharge satisfactorily the onus that vested in them viz. that the first applicant was consecrated a Bishop and is the Presiding Bishop in the church, it necessarily follows that prayer. l(c) cannot be allowed to stand. Secondly the Respondents have averred that case number 21970/88 in the Witwatersrand Local Division of the Supreme Court of the Republic of South Africa has been re-instituted as an action and the decision thereof-is still pending. The question whether or not David Thuloane Lion is the head of the Zion Apostolic Faith Mission church on whose behalf the 1st Respondent can, therefore, be held to be lawfully acting is admittedly to be decided in case 21970/88 of the Witwatersrand Local Division of the Republic of South Africa. That being so, prayer 1( c) of the rule is, in my view, prematurely brought before this court.
As regards prayer 1(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 on the 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
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view, be permitted to do.
In the result, I would discharge the rule as regards prayers l(a) and (c) but confirm it in respect of prayer (b) thereof.
The Respondents having substantially succeeded are, in the discretion of the court, awarded 2/3 of the taxed costs.
B.K. MOLAI
25th February, 1992.
For Applicants : Mr. Maqutu
For Respondents: Mr. Sello.
