CONSTITUTIONAL COURT OF SOUTH AFRICA
Mduduzi Shembe and Others v Ntombifikile Primrose Shembe N.O.
CCT 08/20 Date of hearing: 2 February 2021 ________________________________________________________________________
MEDIA SUMMARY
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The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On 2 February 2021 at 10h00, the Constitutional Court will hear an application for leave to appeal against the whole judgment and order of the Supreme Court of Appeal, which upheld an appeal against a decision of the Full Bench of the KwaZulu-Natal Division of the High Court, Pietermaritzburg (the Full Bench). The Full Bench had dismissed an appeal by the applicants against the decision of the Kwa-Zulu Natal Local Division, Durban.
The matter concerns leadership succession in the Nazareth Baptist Church at Ebuhleni (Church). In 1910, Prophet Isaiah Shembe established the Church of Nazarites at Ekuphakameni. Prophet Isaiah had three sons: Isaack, Johannes and Amos. Before he died, Prophet Isaiah nominated and ordained Johannes and Amos as the future leaders of the Church. Johannes would serve first and upon his death Amos would succeed him.
Shortly after his father’s death, Isaack established the Church of Nazareth Ecclesiastical Endowment Trust (Trust), which would hold Prophet Isaiah Shembe’s immovable properties for the benefit of the Church.
Clause 8 of the Trust Deed provided:
“Upon the office of Titular Head of the Church of Nazareth becoming vacant and the Executive and Advisory Committee shall elect a successor from amongst the pastorsof the Church of Nazareth and such successor may be one of the members of the said Executive and Advisory Committee, provided that if the office should be rendered vacant by death and the deceased Titular Head shall have recommended certain names from whom his successor shall be confined to the choice of one of those persons whose names have been recommended by the deceased Titular Head.”
Following Johannes’ death on 19 December 1976, a dispute arose as to whether Johannes’
son Londa Shembe or Johannes’ brother, Amos Shembe, was his rightful successor. The dispute caused the Church to splinter into two factions: the Ekuphakameni faction (led by Londa Shembe) and the Ebuhleni faction (led by Amos Shembe). When Amos Shembe died in 1995, his son, Mbusi Vimbeni Shembe (Vimbeni Shembe) was announced as the new titular head of the Church of Nazareth and the sole trustee of the Trust.
In 1999, the Church purported to adopt a constitution under the name Nazareth Baptist Church (Constitution). Paragraph 9 of the Constitution purports to dissolve the Trust “upon the commencement of the constitution” and paragraph 10 stipulates that “the Head and Leadership of the Church shall during his lifetime nominate and appoint his successor in office”.
Vimbeni Shembe’s death in March 2011 catalysed another leadership dispute, this time between his son Mduduzi Shembe (the first applicant) and his nephew, Vela Shembe. The first applicant based his claim on an alleged oral nomination by Vimbeni Shembe prior to his death whereas Vela Shembe relied on a written deed of nomination allegedly signed by Vimbeni Shembe.
Vela Shembe applied to the High Court for an order giving effect to the aforementioned deed of nomination and a further order appointing him as the Trust’s sole trustee. The parties agreed that there were irreconcilable disputes of facts and the matter was referred for the hearing of oral evidence. Jappie JP narrowed these disputes to a single question, namely, who did Vimbeni Shembe nominate to succeed him as the titular head and leader of the Nazareth Baptist Church at Ebuhleni? The learned judge concluded that the answer to this question depended on (i) whether the Trust Deed or the Constitution regulates succession in the Church; (ii) whether the deed of nomination in favour of Vela Shembe was genuine; and (iii) whether there was an oral nomination of the first applicant by Vimbeni Shembe.
In relation to the first question, Jappie JP held that the provisions of the Trust Deed that dealt with succession of leadership and the titular head of the Church applies only to the Church with its headquarters at Ekuphakameni. The learned judge also concluded that a deed of nomination nominating Vela Shembe was indeed drawn up on the instruction of Vimbeni Shembe and that there had not been an oral nomination of the first applicant.
Jappie JP granted an order “that effect be given to the deed of nomination in which the late leader Mbusi Vimbeni Shembe nominated Vela Muhle Shembe as the appointed titular head of the Nazareth Baptist Church at Ebuhleni”.
The applicants appealed to the Full Bench. Five months before the Full Bench handed down its judgment, Vela Shembe died. A formal substitution application was made which replaced Vela with Ntombifikile Primrose Shembe N.O., the executrix of the his estate, who is the respondent in this Court. A majority of the Full Bench upheld the trial court’s finding that Vela Shembe was the late leader’s rightful successor. Like the trial court, the majority found that the deed of nomination was genuine and that there had been no oral
nomination of the first applicant. Unlike the trial court, however, the majority held that succession in the Church is regulated by the Trust Deed.
The applicants appealed to the Supreme Court of Appeal, which upheld the trial court’s finding that the Constitution applied to the leadership succession issue and concluded that the trial court’s finding that the only choice of successor was Vela was “unassailable”.
Gorven AJA noted that, as an appeal court, the Full Bench was only permitted to depart from the trial court’s finding of fact if it could point to a material misdirection by the trial court (which it did not do).
In this Court, the applicants’ case centres on the Trust Property Control Act 57 of 1988 (TPCA) and their contention that the Supreme Court of Appeal ignored section 13 of the TPCA and, in doing so, established precedent for parties to act ultra vires trust deeds. The applicants submit that this Court’s jurisdiction is engaged on account of the Supreme Court of Appeal’s failure to apply section 13 of the TPCA, which amounts to an infringement of the separation of powers, and that the application raises various arguable points of law of general public importance that ought to be considered by this Court, including whether an extraneous document can vary the provisions of a trust deed in the absence of compliance with section 13 of the TPCA.
The applicants contend that prior to the Supreme Court of Appeal’s judgment in this matter, the legal position was that a trust deed can only be amended in terms of provisions in the trust deed permitting variation or by a competent court in terms of section 13 or 14 of the TPCA and that a document which is “extraneous” to the trust deed has no application to trust business or affairs. The applicants say that the Supreme Court of Appeal departed from this position and as a result the legal position is now that parties are allowed to act ultra vires a trust deed without meeting the established requirements for lawfully varying it and that a court may vary a trust deed without complying with section 13 of the TPCA.
The respondent submits that this matter concerns factual issues only and therefore does not raise a constitutional matter or an arguable point of law. The respondent notes that both the trial court and the Supreme Court of Appeal found on the facts that insofar as the issue of succession is concerned, the Trust Deed does not apply and, further, that its order was simply to appoint Vela Shembe as the titular head of the Church. The court thus made no finding as to whether Vela could or should be appointed as sole trustee and there was accordingly no variation of the Trust Deed.
The respondent contends that the question of which document governs succession is in any event of no moment because whichever document applies, when there is a single nomination (as in this case, in light of the unchallenged finding that Vimbeni Shembe appointed Vela Shembe only), that person will be the successor. The respondent submits that if the status of the Constitution and Trust is in issue, this Court should find that the Constitution governs succession in the Church and points to various findings made by the trial court which support that conclusion.
