The apex court has finally put to rest the 10-year succession battle at the Ebuhleni Congregation of the Nazareth Baptist Church, better known as Shembe, when it refused to entertain the appeal by the son of the late church leader.
In her judgment on Tuesday at the Constitutional Court, justice Leona Theron said the decision of Nkosi Mduduzi Shembe, son of the church leader Vimbeni Shembe, to challenge the previous ruling by the Supreme Court of Appeal was an academic exercise that should not be entertained.
Mduduzi and his uncle Vela had been embroiled in a succession battle over the Ebuhleni Church, which came into existence in 1976, after a leadership dispute that caused the original church to split into two factions.
Before Vimbeni Shembe died in 2011 he wrote two letters which he handed to his lawyers in which he elected his cousin Vela to take over the reins and be the sole trustee of the church. However, Mduduzi challenged this claim and argued that his father told him orally that he nominated him for succession. Other members of the family sided with him.
The KwaZulu-Natal High Court in Pietermaritzburg ruled in Vela’s favour, weighing the church’s clause 8 of the trust deed adopted in 1935 against its 1999 constitution. Both documents regulate succession differently.
“The trust deed provides mechanism to elect a successor should the incumbent circular head not nominate a successor or nominate more than one successor. It says if the head nominates more than one successor, the choice of successor, which was to be made by the executive and advisory committees, should be limited to the persons nominated. While the constitution by contrast, provides for a single nomination only,” said Theron on Tuesday.
The high court ruled that the late leader had nominated Vela in terms of the written deed of nomination as his successor and that he had not nominated the first applicant (Mduduzi). “The trial court concluded that the trust deed was not adopted, used or applied by the Ebuhleni and the constitution applied instead,” said Theron.
In December 2019 the Supreme Court of Appeal upheld the high court ruling that only Vela was nominated and also reached a conclusion that succession in Ebuhleni is regulated only by its constitution.
“This court refuses leave to appeal on the basis that the matter does not raise an arguable point of law of general public importance which ought to be considered by this court. It reaches this conclusion because the applicants have in effect sought to appeal against a remark by the Supreme Court of Appeal which were made in passing. In its judgment, the appeals court accepted from the onset that the factual findings on a trial court were unassailable and cannot be disturbed,” said Theron.
“The remark that the constitution had been buried by the trust deed has simply been 'by the way' and not reasoning for the judgment. The applicant’s appeal is an abstract and an academic exercise at best which this court ought not to entertain. As a result the leave to appeal is refused. The applicant’s will pay the respondent’s costs including the costs of two counsels."
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