Shembe v Shembe NO (957/2018) [2019] ZASCA 172 (2 December 2019)

Shembe v Shembe NO (957/2018) [2019] ZASCA 172 (2 December 2019)

The Supreme Court of Appeal held that the trial court's factual findings were not vitiated by any material misdirection. The constitution of the Nazareth Baptist Church, adopted in 1999, governed the succession dispute, not the trust deed. The evidence established that the late leader, Vimbeni Shembe, nominated and appointed Vela Shembe alone as his successor, both in writing and by subsequent confirmation. The oral nomination of Mduduzi Shembe was found improbable and unsupported by the evidence. The trial court's approach to costs was justified given the nature of the dispute and the parties involved. The amicus curiae's submissions did not assist in resolving the actual issues before...

Citation
[2019] ZASCA 172
Parties
Appellant: Mduduzi Shembe; Appellant: Nkosi Mqoqi Ngcobo; Appellant: Mbongwa Friend Nzama; Respondent: Ntombifikile Primrose Shembe NO; Amicus Curiae: Vukile Vukukhule Shembe
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
2 December 2019
Case Number
957/2018
Procedural Posture
Civil Appeal / Appeal From Kwa Zulu Natal Division of the High Court, Pietermaritzburg
Outcome
Appeal dismissed with costs, including costs occasioned by employment of two counsel.
Judges
Petse, Plasket, Mbatha, Tsoka, Gorven
Legal Topics
Leadership Succession, Church Constitution, Factual Findings on Appeal, Costs Orders, Role of Amicus Curiae
Civil Procedure Family and Children Leadership Succession Church Constitution Factual Findings on Appeal Costs Orders Role of Amicus Curiae

Case Brief

Summary, issues, holding and outcome

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Parties

Mduduzi Shembe

Appellant

Nkosi Mqoqi Ngcobo

Appellant

Mbongwa Friend Nzama

Appellant

Ntombifikile Primrose Shembe NO

Respondent

Vukile Vukukhule Shembe

Amicus Curiae

Procedural Posture

Civil Appeal / Appeal From Kwa Zulu Natal Division of the High Court, Pietermaritzburg

Legal Issues

  1. 1 Whether the trial court's factual findings regarding leadership succession in the Nazareth Baptist Church were vitiated by material misdirection.
  2. 2 Which governing instrument—the trust deed or the constitution—applied to the succession dispute.
  3. 3 Whether the late leader nominated Vela Shembe alone or both Vela and Mduduzi Shembe as successor.

Ratio Decidendi

The Supreme Court of Appeal held that the trial court's factual findings were not vitiated by any material misdirection. The constitution of the Nazareth Baptist Church, adopted in 1999, governed the succession dispute, not the trust deed. The evidence established that the late leader, Vimbeni Shembe, nominated and appointed Vela Shembe alone as his successor, both in writing and by subsequent confirmation. The oral nomination of Mduduzi Shembe was found improbable and unsupported by the evidence. The trial court's approach to costs was justified given the nature of the dispute and the parties involved. The amicus curiae's submissions did not assist in resolving the actual issues before...

Court Disposition

Appeal dismissed with costs, including costs occasioned by employment of two counsel.

Orders

  • The appeal is dismissed with costs, such costs to include those occasioned by the employment of two counsel.