ConCourt dismisses Shembe succession appeal with costs

The Constitutional Court has dismissed with costs the appeal by the Ebuhleni faction of the Nazareth Baptist Church, popularly known as Shembe church.

The faction led by late leader Vimbeni Shembe’s son Mduduzi Shembe initially claimed the late leader had orally nominated him as his successor.

That nomination was challenged by his uncle, Vela Shembe, who claimed he had been nominated by the late leader in terms of a written deed of nomination.

Vela Shembe then applied to the KwaZulu-Natal High Court for an order that effect be given to the written deed of nomination.

Mduduzi however contended that the trust deed applied to the succession issue and, in relation to the nomination issue, the deed of nomination Vela relied on was a forgery and that his oral nomination should stand.

The court found that the late leader nominated Vela in terms of the written deed of nomination and did not nominate Mduduzi.

On appeal, the court upheld its finding that only Vela Shembe was nominated by the late leader.

Vela Shembe has since died.

Mduduzi took the fight to the Supreme Court of Appeal where his application failed. The battle then ended in the ConCourt.

ALSO READ: Shembe church must vote for new leader, court rules

In her judgment on Tuesday, Justice Leona Theron refused leave to appeal on the basis that some requirements 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,” reads the judgment.

“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.”