Shembe and Others v Shembe N.O. (CCT 08/20) [2021] ZACC 17; 2021 (11) BCLR 1238 (CC) (22 June 2021)

Shembe and Others v Shembe N.O. (CCT 08/20) [2021] ZACC 17; 2021 (11) BCLR 1238 (CC) (22 June 2021)

The Constitutional Court held that the application for leave to appeal does not raise arguable points of law of general public importance that ought to be considered. The issues raised by the applicants are academic and have no practical effect between the parties, as the factual findings regarding succession and the authenticity of the Deed of Nomination were not challenged. The Supreme Court of Appeal's remarks about the variation of the Trust Deed were obiter dicta and not part of the ratio decidendi. The central question in the matter was factual, not legal, and the applicants' arguments did not engage the Constitutional Court's jurisdiction. Accordingly, leave to appeal was refused.

Citation
[2021] ZACC 17
Parties
Applicant: Mduduzi Shembe; Applicant: Nkosi Mqoqi Ngcobo; Applicant: Mbongwa Friend Nzama; Respondent: Ntombifikile Primrose Shembe N.O.
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
22 June 2021
Case Number
CCT 08/20
Procedural Posture
Leave to Appeal / Application for Leave to Appeal to the Constitutional Court From the Supreme Court of Appeal
Outcome
Leave to appeal is refused. Costs are awarded against the applicants, including the costs of two counsel.
Judges
Jafta J, Khampepe J, Madlanga J, Majiedt J, Mhlantla J, Pillay AJ, Theron J, Tlaletsi AJ, Tshiqi J
Legal Topics
Leave to Appeal, Trust Property Control Act, Succession in Religious Organisations, Variation of Trust Deed
Constitutional Law Civil Procedure Leave to Appeal Trust Property Control Act Succession in Religious Organisations Variation of Trust Deed

Case Brief

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Parties

Mduduzi Shembe

Applicant

Nkosi Mqoqi Ngcobo

Applicant

Mbongwa Friend Nzama

Applicant

Ntombifikile Primrose Shembe N.O.

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal to the Constitutional Court From the Supreme Court of Appeal

Legal Issues

  1. 1 Whether the Supreme Court of Appeal erred in allowing the Constitution of the Ebuhleni Church to vary the Trust Deed governing succession.
  2. 2 Whether an extraneous document can amend the provisions of a trust deed contrary to its prescripts and the formalities as contemplated by the Trust Property Control Act.
  3. 3 Whether the provisions of a trust deed are optional and whether a court may ignore section 13 of the Trust Property Control Act.

Ratio Decidendi

The Constitutional Court held that the application for leave to appeal does not raise arguable points of law of general public importance that ought to be considered. The issues raised by the applicants are academic and have no practical effect between the parties, as the factual findings regarding succession and the authenticity of the Deed of Nomination were not challenged. The Supreme Court of Appeal's remarks about the variation of the Trust Deed were obiter dicta and not part of the ratio decidendi. The central question in the matter was factual, not legal, and the applicants' arguments did not engage the Constitutional Court's jurisdiction. Accordingly, leave to appeal was refused.

Court Disposition

Leave to appeal is refused. Costs are awarded against the applicants, including the costs of two counsel.

Orders

  • Leave to appeal is refused.
  • The applicants must pay the respondent’s costs, including the costs of two counsel.