Case  CCT08/20
[2021] ZACC 17

Hearing Date: 02 February 2021

Judgement Date: 22 June 2021

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On 22 June 2021 at 10h00, the Constitutional Court handed down judgment in an appeal against the judgment and order of the Supreme Court of Appeal, which upheld an appeal against a decision of the Full Bench of the KwaZulu-Natal Division of the High Court, Pietermaritzburg (Full Bench). The Full Bench had dismissed an appeal by the applicants against the decision of the Kwa-Zulu Natal Local Division, Durban (Trial Court).

The dispute between the parties in this matter related to leadership succession in the Nazareth Baptist Church (Church). More specifically, it concerned leadership succession in the Ebuhleni branch of the Church, which formed when a leadership dispute in 1976 caused the original Church, which was based at Ekuphakameni, KwaZulu-Natal, to splinter into two factions. The dispute arose following the death of Mr Vimbeni Shembe, who at the time of his death in 2011 was the leader of the Ebuhleni congregation (Titular Head), as well as the sole trustee of the Nazareth Ecclesiastical Endowment Trust (Trust). His son, who is the first applicant in the matter, initially claimed that the late leader had orally nominated him as his successor. That nomination was challenged by Mr Vela Shembe, who alleged that he had been nominated by the late leader in terms of a written Deed of Nomination.

There were two documents which purport to regulate leadership succession in the Ebuhleni Church, namely, Protocol 293 of 1935 (Trust Deed) and a Constitution allegedly adopted by the Ebuhleni Church in 1999 (Constitution). The Trust Deed governs the Trust, which was formed in the wake of the founder Isaiah Shembe’s death to hold certain immovable properties in trust for the benefit of the Church. Both the Trust Deed and the Constitution regulate leadership differently. Clause 8 of the Trust Deed provides for a mechanism to elect a successor should the incumbent Titular Head not nominate a successor or nominate more than one successor. It contains a proviso that if the Titular Head nominated more than one successor, the choice of successor, which was to be made by an Executive and Advisory Committee, should be limited to the persons so nominated. The Constitution, by contrast, provides for a single nominee only.

Mr Vela Shembe applied to the High Court of South Africa, KwaZulu-Natal Division, Durban (Trial Court), for an order that effect be given to a written Deed of Nomination. Certain factual disputes were referred for the hearing of oral evidence by agreement between the parties. The factual disputes related primarily to two issues, namely, who the late Mr Vimbeni Shembe had nominated as his successor (nomination issue) and whether succession in the Ebuhleni Church was governed by the Trust Deed or by the Constitution (succession issue). The first applicant, together with the second and third applicants, contended that the Trust Deed applied to the succession issue and, in relation to the nomination issue, that the Deed of Nomination relied upon by Mr Vela Shembe was a forgery and that the oral nomination of the first applicant should be given effect to. Mr Vela Shembe contended that the Constitution applied to succession and that he had been nominated in terms of the Deed of Nomination.

The Trial Court found, as a matter of fact, that the late leader nominated Mr Vela Shembe in terms of a written Deed of Nomination but did not nominate the first applicant. In relation to the succession issue, the Trial Court concluded, on the evidence, that the Trust Deed was not adopted, used or applied by the Ebuhleni Church and the Constitution applied instead. On appeal, the Full Court overturned the Trial Court’s finding on the succession issue (holding that the Trust Deed applies to succession) but upheld its finding that only Mr Vela Shembe was nominated by the late leader. Shortly after the Full Court handed down its judgment, Mr Vela Shembe passed away and Ms Ntombifikile Shembe N.O., the respondent, stepped into his shoes in her capacity as the executrix of his estate.

The applicants’ appeal to the Supreme Court of Appeal failed. That Court unanimously held that there was no material misdirection by the Trial Court and that its findings were unassailable. It accepted that “the Trial Court found as a fact that succession and other administrative issues in the church had been solely regulated by the Constitution” and that the “factual position is as was found by the Trial Court”. The Court nevertheless went on to note that the Trust Deed, insofar as it regulated succession to the position of Titular Head, had been varied by the Constitution and that this was sanctioned by the interpretive principle that “where a later document is adopted, the parts of an earlier document that are inconsistent with it are regarded as having been varied”.

Relying on this latter statement, the applicants applied for leave to appeal to the Constitutional Court on the basis that the Supreme Court of Appeal had, in effect, allowed a variation of the Trust Deed in breach of the Trust Property Control Act 57 of 1998 (Trust Property Control Act). Notably, the applicants did not challenge the Trial Court’s factual finding on the nomination issue, which was upheld by the Full Bench and Supreme Court of Appeal. Instead they argued that the matter raisedx a number of arguable points of law, all of which allegedly arose as a consequence of the Supreme Court of Appeal’s statement that the Trust Deed had been varied by the Constitution. In the main, these points related to whether the Supreme Court of Appeal had allowed an extraneous document to amend the provisions of a trust deed in contravention of the Trust Property Control Act.

In a unanimous judgment penned by Theron J and concurred in by Jafta J, Khampepe J, Madlanga J, Majiedt J, Mhlantla J, Pillay AJ, Tlaletsi AJ and Tshiqi J, the Constitutional Court refused leave to appeal on the basis that the requirements of section 167(3)(b)(ii) of the Constitution, which defines the Court’s general jurisdiction, were not met. Specifically, the arguable points of law raised by the applicants were not those which “ought to be considered” by this Court. It reached this conclusion because the applicants in effect sought to appeal against remarks by the Supreme Court of Appeal which were obiter dicta (comments made in passing). In its judgment, the Supreme Court of Appeal accepted from the outset that the matter turned on a dispute of fact and that the factual findings of the Trial Court were unassailable. It dismissed the appeal because it had upheld the factual findings of the Trial Court. Having accepted that the matter turned on factual findings that could not be disturbed, the remark that the Constitution had varied the terms of the Trust Deed was simply “by the way” and not part of the ratio decidendi (the rationale or reason) of its judgment. It followed that the applicants appeal was an abstract and academic exercise at best, which the Constitutional Court ought not to determine.

This led the Constitutional Court to conclude that the application did not raise arguable points of law of general public importance which it ought to consider and that the application for leave to appeal must accordingly fail.

The Full judgment  here [Judgment Recording(Via Court Youtube Channel)]