Shembe v Shembe (AR250/2017) [2018] ZAKZPHC 45 (12 April 2018)

Shembe v Shembe (AR250/2017) [2018] ZAKZPHC 45 (12 April 2018)

The court found that both the written Deed of Nomination and the alleged oral nomination were made by the late Vimbeni Shembe regarding succession to the leadership of the Nazareth Baptist Church. The expert handwriting evidence overwhelmingly supported the authenticity of the Deed of Nomination, and the oral nomination was not excluded on the balance of probabilities. The Trust Deed remains applicable to both Ekuphakameni and Ebuhleni sections, and its purported dissolution by adoption of the Constitution was invalid. The executive committee, appointed in 2010, is empowered under clause 8 of the Trust Deed to elect and appoint the church's titular head and sole trustee from the two...

Citation
[2018] ZAKZPHC 45
Parties
Appellant: Mduduzi Shembe; Appellant: Inkosi Mqoqi Ngcobo; Appellant: Mbongwa Friend Nzama; Respondent: Vela Shembe
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
12 April 2018
Case Number
AR250/2017
Procedural Posture
Civil Appeal / Appeal From Kwa Zulu Natal Local Division, Durban
Outcome
Appeal succeeds in part; executive committee to elect and appoint titular head and sole trustee from two contestants; costs order under case number 6259/2011 set aside and respondent ordered to pay costs; appeal against costs order under case number 4625/2011 dismissed.
Judges
Madondo DJP, Mnguni J, Poyo Dlwati J
Legal Topics
Church Leadership Succession, Trust Deed Interpretation, Nomination and Appointment, Costs Award, Expert Evidence Handwriting, Constitutional Application
Civil Procedure Family and Children Land and Property Church Leadership Succession Trust Deed Interpretation Nomination and Appointment Costs Award Expert Evidence Handwriting +1 more

Case Brief

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Parties

Mduduzi Shembe

Appellant

Inkosi Mqoqi Ngcobo

Appellant

Mbongwa Friend Nzama

Appellant

Vela Shembe

Respondent

Procedural Posture

Civil Appeal / Appeal From Kwa Zulu Natal Local Division, Durban

Legal Issues

  1. 1 Whether the late Vimbeni Shembe nominated Vela Shembe or Mduduzi Shembe, or both, as Titular Head of the Nazareth Baptist Church.
  2. 2 Whether the Trust Deed applies to the Nazareth Baptist Church, Ebuhleni.
  3. 3 Whether the oral nomination of Mduduzi Shembe by the late leader is valid and should be given effect to.

Ratio Decidendi

The court found that both the written Deed of Nomination and the alleged oral nomination were made by the late Vimbeni Shembe regarding succession to the leadership of the Nazareth Baptist Church. The expert handwriting evidence overwhelmingly supported the authenticity of the Deed of Nomination, and the oral nomination was not excluded on the balance of probabilities. The Trust Deed remains applicable to both Ekuphakameni and Ebuhleni sections, and its purported dissolution by adoption of the Constitution was invalid. The executive committee, appointed in 2010, is empowered under clause 8 of the Trust Deed to elect and appoint the church's titular head and sole trustee from the two...

Court Disposition

Appeal succeeds in part; executive committee to elect and appoint titular head and sole trustee from two contestants; costs order under case number 6259/2011 set aside and respondent ordered to pay costs; appeal against costs order under case number 4625/2011 dismissed.

Orders

  • The appeal succeeds to the limited extent that paragraph 4 of the order of the judgment of the court a quo is set aside and replaced with an order that the respondent is ordered to pay the costs of the application under Case Number 6259/2011, including costs occasioned by the employment of two counsel.
  • Otherwise, the appeal is dismissed with costs, including costs occasioned by the employment of two counsel.