Shembe and Others v Shembe N.O.

The dispute arose from leadership succession in the Ebuhleni branch of the Nazareth Baptist Church. The late Titular Head, Mr Vimbeni Shembe, died in 2011. Competing claims to succession were made: the first applicant alleged an oral nomination in his favour, while the late Mr Vela Shembe relied on a written Deed of Nomination appointing him as successor. The respondent, as executrix of Mr Vela Shembe’s estate, pursued enforcement of that nomination. A further dispute concerned which instrument governed succession at Ebuhleni: the 1935 Nazareth Ecclesiastical Endowment Trust Deed or a Constitution purportedly adopted by the Ebuhleni congregation in 1999. The High Court found, on oral evidence, that the written Deed of Nomination in favour of Mr Vela Shembe was authentic, that no oral nomination of the first applicant occurred, and that succession at Ebuhleni was governed by the Constitution rather than the Trust Deed. Appeals to the Full Court and the Supreme Court of Appeal failed. The applicants then sought leave to appeal to the Constitutional Court, arguing that the Supreme Court of Appeal impermissibly allowed variation of a trust deed contrary to the Trust Property Control Act.

Leave to appeal was refused, and the applicants were ordered to pay the respondent’s costs, including the costs of two counsel.

The case clarifies the limits of the Constitutional Court’s jurisdiction, particularly its reluctance to entertain appeals that are factual or academic in nature. It underscores that not every alleged misapplication of legislation raises a constitutional issue and affirms the distinction between ratio decidendi and obiter dicta when assessing alleged precedent. The judgment is significant for disputes involving religious bodies and trusts, emphasizing that factual determinations about which governing instrument applies can be decisive.