Mduduzi Shembe, the son of late leader of the Ebuhleni Congregation of the Nazareth Baptist Church (Vimbeni Shembe), better known as Shembe church, will have to vacate his position in a few days in what is anticipated to be a showdown.
Mduduzi’s hold on the throne legally ended on Tuesday when the Constitutional Court in Johannesburg refused and dismissed to entertain his appeal from the previous Supreme Court of Appeals ruling which recognised the church’s constitution and his late father’s wishes for his cousin Vela to lead the church when he dies.
Vimbeni died in 2011. Vela passed away in 2017.
Since the death of his father 10 years ago, Mduduzi has been arguing that he was the rightful successor because his father had told him so. He started occupying the top position in 2011.
However, yesterday’s ruling means that he’d have to vacate the throne and be replaced by Vela’s brother Phila, who was appointed by the deceased.
Vela’s legal representative Adv Trevor Nkosi said they did not rule out some resistance from Mduduzi and his supporters within the church.
“It took 18 judges and four courts to get a final decision on this matter. I'm meeting my client soon and then we will prepare a letter for Mduduzi stating that he must vacate his position. We anticipate that he might ignore it and use congregants’ emotions to shield himself.
“If that is the case we will then use legal means to have him removed. This might cause further divisions but the rule of law must prevail,” said Nkosi.
Mduduzi’s legal counsel SC Logan Govender said the apex court's decision meant that the matter was “legally buried”.
“Concours was the last court we could approach. We just have to move on now,” Govender said on Tuesday.
In her judgment, justice Leona Theron said Mduduzi's decision to challenge the previous ruling by the Supreme Court of Appeal was an academic exercise that should not be entertained.
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 people nominated. While the constitution by contrast provides for a single nomination only,” said Theron.
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.
“This court refuses leave to appeal on the basis that the matter does not raise an arguable point of law of 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 will pay the respondent’s costs including the costs of two counsels.”
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