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

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

IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: AR250/2017
In
the matter between:
MDUDUZI
SHEMBE
FIRST
APPELLANT
INKOSI
MQOQI
NGCOBO
SECOND
APPELLANT
MBONGWA
FRIEND
NZAMA
THIRD
APPELLANT
and
VELA
SHEMBE
RESPONDENT
ORDER
On
appeal from
the
KwaZulu-Natal Local Division, Durban (Jappie JP sitting as the court
of first instance):
(a)
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
is replaced
with the following order:
‘
The
respondent is ordered to pay the costs of the application under Case
Number 6259/2011, such costs to include those occasioned
by the
employment of two counsel.’
(b) Otherwise, the appeal
is dismissed with costs, such costs to include those occasioned by
the employment of two counsel.
APPEAL JUDGMENT
Madondo
DJP
[1]
The appellants appeal against the judgment of Jappie JP, handed down
on 18 October 2016, in which he issued an order:
(a) giving effect to the
Deed of Nomination wherein the late leader Mbusi Vimbeni Shembe
nominates Vela Muhle Shembe as the appointed
Titular head of the
Nazareth Baptist Church at Ebuhleni;
(b) dismissing the
counter relief sought by the first appellant in a notice of motion
under case number 4256/2011;
(c) directing the first
and second appellants to pay costs under case number 4256/2011
jointly and severally, the one paying the
other to be absolved.
[2]
The appellants further appeal against the following costs orders:
(a) the costs order
granted under case number 6259/2011, that the application was
dismissed with no order as to costs;
(b) the costs order
granted under case number 4625/2011, that the rule
nisi
is
discharged in respect of the four interlocutory applications with no
order as to costs is made.
ISSUES
[3]
Issues in this appeal are:
(a) Whether the late
Vimbeni Shembe nominated Vela Shembe or Mduduzi Shembe, or both Vela
Shembe and Mduduzi Shembe, as Titular
Head of Nazareth Baptist
Church;
(b) Whether the Trust
Deed applies to the Nazareth Baptist Church, Ebuhleni; and
(c) Other ancillary
issues stemming from the main issues in paragraph (a) and (b) above;
these will become more apparent later in
the discussion of the main
issues.
APPLICATIONS
FOR CONDONATION
[4]
The application for condonation for the late delivery of the
appellant’s practice note and the late lodging of the
respondent’s
practice note and heads of argument were granted
by consent. However, the appellants’ application for
condonation for the
late filing of the appeal record and
non-compliance with the time limits prescribed in Uniform rule
49(7)(a) was opposed. After
hearing the argument by both parties this
Court granted condonation on the grounds that the delay in filing the
appeal record was
not due to remissness on the part of the appellants
but to the complexities involved in the compilation of a voluminous
appeal
record. Also considerations of fairness to both parties, the
importance of the matter which requires that as a matter of public

interest be finalised without delay, and good prospects on appeal
urged this court to grant the application for condonation. See
Van
Wyk v Unitas Hospital & another (Open Democratic Advice Centre as
amicus curiae
)
[2007] ZACC 24
;
2008 (2) SA 472
(CC) at 477A-B.
BACKGROUND
[5]
Five applications were launched in the court
a
quo
on
an urgent basis under various case numbers as follows: 4256/2011;
4315/2011; 4625/2011; 6259/2011 and 7263/2011.
[6]
The main application was under case number 4256/2011. Several
interlocutory applications were also launched during the course
of
the hearing of the main application at the court
a
quo
.
The issue for determination in this application was whether the late
Vimbeni Shembe nominated Vela Shembe or Mduduzi Shembe or
both Vela
Shembe and Mduduzi Shembe as Titular Head of the Nazareth Baptist
Church. However, due to the fact that there were serious
disputes of
fact the matter was referred for the hearing of oral evidence on the
main issue and on other ancillary issues in the
matter.
[7]
In the main application (case number 4256/82011), among other relief,
the respondent, firstly, sought an order giving effect
to the Deed of
Nomination of Trustee and Titular Head of the Nazareth Baptist Church
signed by Mbusi Vimbeni Shembe, the deceased
leader (who was in the
court
a
quo
referred to as the late leader and, in order to avoid confusion, he
shall also hereinafter be referred to as ‘the late leader’),

wherein he nominated the respondent (Vela Shembe) as his successor.
Secondly, appointing him (the respondent) the sole trustee
of the
Church of the Nazareth Ecclesiastical Endowment Trust. Thirdly,
interdicting and restraining the appellants (Mduduzi Shembe,
Inkosi
Mqoqi Ngcobo and Chancey Sibisi) from proceeding with the
announcement, appointment, and anointment ceremony to nominate
the
first appellant as the sole trustee of the Church of the Nazareth
Ecclesiastical Endowment Trust and Titular Head of the Nazareth

Baptist Church.
[8]
The first appellant opposed the main application by the respondent
and in his counter-application he sought an order declaring
him (the
first appellant) to be the duly appointed titular head of the church
alternatively, empowering the executive and advisory
committee to
elect and appoint him as the leader of the church.
[9]
Under case number 4315/2011 the church and the third appellant
brought an application for an order freezing the three banking

accounts belonging to the church. The two banks (i.e First National
Bank and ABSA Bank), Master of the High Court, Chancey Sibisi
and the
respondent were respondents in the application.
[10]
The respondent was in agreement with the relief sought but only to
the extent that it should not be pending the outcome of
an
application for substitution of the sole trustee but pending the
outcome of the main application, (under case number 4256/2011).
[11]
Under case number 4625/2011 the respondent sought and obtained an
interdict against the first and second appellants and Chancey
Sibisi
(pending final determination of the main application) interdicting
and restraining them from making further announcements
that the first
appellant was to be appointed titular head of the church and from
appointing or anointing the first appellant as
the head of the
Church.
[12]
Under case number 6259/2011 the respondent sought an order declaring
the first appellant to be in wilful and
mala
fide
contempt of the court in terms of the order granted by the Durban
High Court on 15 April 2011, under case number 4625/2011. In

addition, an order interdicting and restraining the first appellant
from in any manner representing and conducting himself as the
leader
and the titular head of the church, and directing the first appellant
to handover to the sheriff certain vehicles and trailers.
Such
interdicts were granted
pendente
lite
the outcome of the main application.
[13]
Under case number 7263/2011 the Nazareth Baptist Church brought an
application against the respondent (Vela Shembe), the sheriff,
and
the first appellant for the return of the vehicles that were the
subject of an order granted in terms of case number 6259/2011.
The
church required the vehicles to provide food, clothing, shelter and
transport to orphaned children, destitute persons, and
members of the
church and the community.  The order was taken by consent.
[14]
On the main application the court
a
quo
accepted the evidence of the handwriting expert witnesses as to the
authenticity of the Deed of Nomination and the signature thereon,
as
that of the late leader. It then rejected the evidence of the second
appellant as to the oral nomination of the first appellant
by the
late leader. The court
a
quo
then issued an order giving effect to the Deed of Nomination.
[15]
Further, the court
a quo
held that the application of the
Trust Deed, Protocol 293/1935, is only limited to the Ekuphakameni
section of the church and it
does not apply at the Ebuhleni section.
The only document that applies at Ebuhleni section is the
Constitution which the Ebuhleni
section adopted in 1999.
CHURCH
HISTORY and INSTRUMENTS GOVERNING the ADMINISTRATION of THE CHURCH
and SUCCESSION to the OFFICE of the TITULAR HEAD and the
SOLE TRUSTEE
(The Trust Deed and The Constitution)
[16]
Before getting to the questions this Court is called upon to decide
in this matter, I propose to sketch out the brief history
of the
Church of Nazareth, and to make a full exposition of the instruments
governing and regulating the administration of the
church properties
and succession to the office of the titular head and the sole trustee
of the Trust.
[17]
The church was founded in 1910 by the prophet Isaiah Shembe and
having its headquarters at Ekuphakameni Mission, Inanda, Durban,
an
area falling under the jurisdiction of Amaqadi Traditional Council.
Isaiah Shembe, affectionately dubbed as Umqali Wendlela
and Mbombela
by his followers, became the first titular head of the church and by
virtue of that position he was in sole control
of the church.
[18]
The site on which Isaiah Shembe established Ekuphakameni Mission had
been allotted to him by Inkosi Mandlakayise Ngcobo, a
grandfather of
Inkosi Mzonjani Ngcobo and a great grandfather to the second
appellant. The Church of Nazareth is an African traditional
church.
In practice, in churches of this nature the application of the canon
law is much blended with the application of traditional
law and
customs.
[19]
Isaiah Shembe, the founder and the leader of the church, passed away
on 2 May 1935 after having nominated and ordained his
two sons,
namely Johannes Galilee  Shembe (JG Shembe), affectionately
dubbed as Ilanga, and Amos Kula Shembe (AK Shembe) affectionately

referred to as InyangaYezulu, as the future leaders of the church,
one after another. JG Shembe would first take over from Isaiah

Shembe, his father, as the titular head of the church and on his
death AK Shembe would succeed him. The two sons acquired their

nicknames, Ilanga and InyangaYezulu, respectively, from the fact that
when the prophet ordained them as future leaders of the church
he
referred to JG Shembe as the sun that would shine during the day and
AK Shembe as the moon that would shine during the night.
The latter
would nominate and appoint one of the stars to shine after him. On
the death of the prophet, JG Shembe took over as
the leader of the
church and his appointment was announced by Mr D S Shepstone together
with Dr J L Dube.
[20]
JG Shembe held the positions of the titular head of the church and
sole trustee of the trust until his death on 19 December
1976.
However, on the death of JG Shembe a dispute arose as to who should
succeed him notwithstanding the fact that Isaiah Shembe
had nominated
AK Shembe to succeed him (JG Shembe). A dispute to church leadership
between Londa Shembe, the son of JG Shembe,
and AK Shembe culminated
into physical violence which resulted in a blood bath between their
followers.
[21]
This came as a result of the fact that at the funeral of JG Shembe on
2 January 1977 Dr. E Z Sikhakhane together with Reverend
A A Ngcobo
announced the name of AK Shembe as the then new leader of the
church.  Such announcement was in accordance with
Isaiah
Shembe’s nomination of JG Shembe and thereafter AK Shembe
respectively, as his successors.  Londa Shembe then
challenged
the leadership of AK Shembe, his paternal uncle.  The latter and
his followers were eventually displaced from Ekuphakameni
Mission
during 1978 and sought shelter in Mbeka, the homestead of Inkosi
Mzonjani Ngcobo.  Amongst the people that were in
the company of
AK Shembe on his departure from Ekuphakameni, were the late leader in
this matter, Vimbeni Shembe (AK Shembe’s
son), some of the
wives of JG Shembe and children including the respondent and his
mother. In 1979 Inkosi Mzonjani Ngcobo allotted
AK Shembe a plot site
to build his own homestead, which he named Ebuhleni Bama Nazaretha,
also used as a church for worship purposes.
[22]
When the announcement of AK Shembe as a new leader was made, a few
members of the church led by Londa Shembe did not agree
with the
appointment.  Nevertheless, AK Shembe was anointed at Gospel
during March 1977.  However, the disgruntled church
members
under the leadership of some of the traditional leaders elevated
Londa Shembe as their leader during October 1977.
In terms of
the Trust Deed, Protocol 293/1935, AK Shembe held the positions of a
titular head and sole trustee of the church until
his death in 1995.
Before his death, he nominated his son as his successor in office.
This was the first so-called
star AK Shembe nominated and appointed
to shine after him.
[23]
At the funeral of AK Shembe, his son, Mbusi Vimbeni Shembe (the late
leader), was announced as the new titular head of the
Church of
Nazareth and the sole trustee of the trust, in terms of Protocol
293/1935, which positions he held until his death on
28 March 2011.
Londa Shembe had never been announced as the leader of the church but
he was merely a leader of the splinter
group.  When Londa Shembe
passed away nobody led the Ekuphakameni section until his son, Vukile
Shembe, grew up and was appointed
leader of the splinter church group
at Ekuphakameni. Mbusi Vimbeni Shembe was therefore, the rightful
successor to the titular
head of the Church of Nazareth and the sole
trustee of the trust.
[24]
The factions started to arise from the time of the leadership
struggle as to who the rightful successor was to JG Shembe between

Londa Shembe and AK Shembe.  During January 1978, AK Shembe led
his followers on pilgrimage to holy Mount Nhlangakazi.

Thereafter, he went to Zululand also on pilgrimage.  On his
return, the disgruntled church group being assisted by the police

prevented him (AK Shembe) from entering Ekuphakameni Mission.
As a result, AK Shembe went and sought shelter from Inkosi
Mzonjani
Ngcobo’s homestead.  The church is now divided into
various branches under their respective leadership, namely

Ekuphakameni, Ebuhleni, Ginyezinye, Thembezinhle and Johannesburg.
The church has, since 1977, been plagued by numerous court

proceedings relating to the dispute to church leadership.
Presently, at Ebuhleni section there are two competing claims to

church leadership.  The respondent claims that he is a rightful
leader through the Deed of Nomination and the first appellant
Mduduzi
Shembe also claims to be a rightful leader through an oral nomination
by the late leader.
TRUST
DEED PROTOCOL 293/1935
[25]
The Trust Deed Protocol 293/1935 (the Trust Deed) a document
governing and regulating the affairs of the church came into
existence through the prophet Isaiah Shembe in 1935.  Members of
the Church of Nazareth had from time to time contributed sums
of
money for the purpose of acquiring land, the erection of houses of
worship and the provision of funds for the maintenance of
all church
activities. Isaiah Shembe obtained land on behalf of the congregation
and transferred same in his own name. His intention
was to make a
trust in order to transfer certain of the immovable properties, held
by him on behalf of his congregation, to the
trust to be
administered.
[26]
The prophet died on 2 May 1935 and in order to give effect to his
wishes, Isaac Shembe, his oldest son, on 30 July 1935, executed
a
Notarial Deed of Trust and Donation whereby he created the Church of
Ecclesiastical Endowment Trust (the trust) and he donated
to the
trust certain immovable properties registered in the name of Isaiah
Shembe.  I propose only to refer to certain provisions
of the
Trust Deed which are relevant and essential for the determination of
the present matter.
[27]
In terms of clause 1 of the Trust Deed, Johannes Galilee Shembe (JG
Shembe), the second son of the prophet Isaiah Shembe, the
then
recognised Titular Head of the Church, together with his successors
in office as titular heads of the church, were to be appointed
as the
sole trustee to carry out the terms of the trust.
[28]
The Trust Deed further provides in clause 4 that the property of the
trust should be held by the trustee as the ecclesiastical
charity for
the benefit of the Church of Nazareth. This was to be interpreted to
mean the mother church situated at Ekuphakameni
and all branch
churches acknowledging the same confession of faith and following the
teaching of the founder Isaiah Shembe.
[29]
Clause 6 provides that the trustee shall appoint an executive and
advisory committee consisting of ten members; five of whom
shall be
pastors of the church and five of whom shall be lay members.
The executive and advisory committee appointed by the
trustee in
terms of clause 6 shall take control of the religious observances of
the Church of Nazareth, the discipline and control
of the individual
members thereof, and carry out generally the provisions of the trust;
but that all the acts of whatever nature
would be subject to the
approval and confirmation of the trustee.
[30]
In clause 7, the Trust Deed provides that the titular head shall
continue in office during his life time so long as he continues
to
observe and follow the tenets of the Church of Nazareth, although he
may be removed from office on the happening of certain
contingencies.
[31]
Clause 8 provides as follows:
‘
Upon the office of the Titular
Head of the Church of Nazareth becomes vacant the Executive and
Advisory Committee should elect a
successor from amongst the pastors
of the Church of Nazareth and such successor may be one of the
members of the said Executive
and Advisory Committee, provided if the
office should be rendered vacant by death and the late Titular Head
shall have recommended
certain names from whom his successor is to be
appointed then the choice of a successor shall be confined to the
choice of one
of those persons whose names have been recommended by
the late Titular Head.’
[32]
The Trust Deed was designed, among other things, to hold certain
immovable properties to be administered by the trust for the
benefit
of the church.  In addition, it makes provision for the
nomination and appointment of a successor to the late titular
head of
the church, who is also a sole trustee of the trust.  However,
the Trust Deed does not contain the clause providing
for the
termination of the trust.
The
CONSTITUTION of the NAZARETH BAPTIST  CHURCH
[33]
After the death of AK Shembe during 1995, his successor, Mbusi
Vimbeni Shembe, the late leader, and his followers, caused a

constitution to be drafted and adopted by the church members, which
he approved on 19 February 1999 (the Constitution) under the
name
Nazareth Baptist Church with its headquarters at Ebuhleni home,
Matabetulu Ward, Indwedwe.
[34]
Upon the commencement of the Constitution the trust embodied in
Protocol 293/1935 would be dissolved, and a new church known
as
Ibandla Lamanazaretha/Nazareth Baptist Church would emerge on the
approval and adoption of the Constitution.  The Constitution

having been approved and signed by the late leader, would become the
authoritative document of the church.
[35]
I, once again, propose to confine my discussion of the Constitution
to the provisions relevant to the determination of this
matter.
The Constitution makes provision for the automatic dissolution of the
trust and incorporation of the church under
the Constitution on the
date the late leader approved the Constitution and its amendments.
The Constitution also provides
that all movable and immovable
property which at the commencement of the Constitution vested in the
trust or vested in the name
of the trustee shall, upon the
commencement vest in the church, and be deemed to be registered in
its name.  It further makes
provision for the creation of a
trust at the discretion of the titular head to be used as a vehicle
for receiving movable and immovable
property of the church.
[36]
The Nazareth Baptist Church shall “be interpreted to mean the
mother church whose headquarters is on the Mount Matabetulu
and all
branch churches acknowledging the same confession and allowing the
teachings of the founder Isaiah Shembe as perpetuated
by Johannes
Galilee Shembe and being adherents of Amos Kula Shembe and his
successors thereof.”
[37]
Clause 10 of the Constitution empowers and authorises the Head and
Leadership of the Church during his life time to nominate
and appoint
his successor in office.
[38]
Clause 12 authorises the Head of the Church to appoint an executive
committee, comprising of ten members, from members of the
church
irrespective of whatever other position they may hold.  The
executive committee shall deal with any matter assigned
to it, and
the chairperson shall be appointed to deal specifically with the
matters so referred to in clause 12.4.
[39]
Although the Constitution is modelled on the provisions of the Trust
Deed, it purports to sanction a breakaway from the original
Church of
Nazareth and build a new church under the new name Nazareth Baptist
Church which purportedly is not governed by the Trust
Deed but only
by the Constitution.
[40]
The main issue for determination is whether the late Vimbeni Shembe
nominated Vela Shembe or Mduduzi Shembe or both Vela Shembe
and
Mduduzi Shembe as Titular Head of the Nazareth Baptist Church: The
church is led by a titular head who is in overall control
of the
affairs of the church and the trust.  The practice of the church
is that each incumbent titular head during his life
time nominates
and appoints a successor.
[41]
At the funeral of the late leader, on 3 April 2011, the name of Vela
Shembe, the respondent, was announced by the attorney
Buthelezi, and
the name of Mduduzi Shembe by Inkosi Ngcobo (the second appellant),
as the successor to the late leader.  Since
then, there have
been two competing claims to the leadership of the church.  The
respondent claims to be the rightful leader
through the Deed of
Nomination wherein the late leader nominated and appointed him as the
titular head of the church and sole trustee
of the trust.  The
late leader, according to the respondent, signed such document on 11
February 2000 and the letter confirming
such nomination and
appointment, which allegedly was delivered to Buthelezi Attorneys by
Mr. Sibisi, the Secretary-General of the
church, on 16 March 2011.
[42]
Mduduzi Shembe, the first appellant, claims to be the rightful church
leader through an oral nomination by the late leader
which was
communicated to the second appellant on four different occasions, and
on one of those occasions, the late leader apparently
did so in the
presence of Inkosi Qwabe.
DEED
OF NOMINATION
[43]
The first appellant caused the handwriting experts to be appointed in
order to ascertain whether or not the signature appearing
on the Deed
of Nomination was that of the late leader.  The respondent also
instructed a handwriting expert to consider the
letter delivered to
Buthelezi attorneys with a view to determining whether the late
leader wrote and signed such letter.
[44]
Michael John Irving, a forensic handwriting expert, testified that on
29 May 2011 he received instructions from Ms Simi Attorneys,
who are
the first appellant’s attorneys of record, to authenticate the
signature of the late Bishop M V Shembe.  He,
Irving, stated his
qualifications and his experience in the field.
[45]
For this purpose, Irving received the original disputed signature,
the Deed of Nomination of a Titular Head and the Trustee
of the
Church dated 11 February 2000.  He was also provided access to
an original handwritten letter addressed to Buthelezi
Attorneys by
Bishop M V Shembe, which was received by their offices on 16 March
2011.  He was also furnished with comparative
signatures; namely
original ABSA Provider Plan Application Form bearing two original
signatures of M V Shembe dated 30 May 2006
and 1 June 2006; stock
theft identification documents dated 30 November 2009 and 17 November
2006, respectively; and an original
handwritten letter, undated and
written on blue lined letter pad paper. These documents were
confirmed as featuring authentic signatures
of M V Shembe.
[46]
Generally, the comparative signatures must be of a contemporaneous
nature authored round about the same time as the disputed
signature.
However, there was a time difference between the disputed document,
which was dated 2000, and the closest document
to that, dated 2006.
Therefore, there was a period of six years between the disputed
signature authorship and the closest
comparative standard.  A
search for more contemporaneous documents was unsuccessful.
[47]
Irving explained that the signature stems from our habitual pen
control and writing ability.  However, it should be noted
that
at no stage will a person be able to write or author a one hundred
per cent replica of their own signature.  This is
caused by the
muscular adjustment and movement within the hand, the fingers, the
wrist and arm whilst writing signatures.
These are also
influencing features which create what appear to be variations in our
signatures.  These could be cause by
illness, medication, the
surface that we are writing on or due to other circumstances that may
affect the way we actually sign
the signature.  These are called
natural variations.  At the time of examination the examiner is
required to identify
the characteristics not only of the disputed
signature but also of the comparative standards.  These
characteristics determine
whether the disputed signature is a
forgery, written by someone else or by the original author.  In
the examination process,
the examiner looks for natural variations,
comparisons and differences.
[48]
During the examination each signature was identified under
magnification, magnified circumstances or microscopic circumstances.

The disputed signature was subjected to oblique lighting process to
determine that it was in fact original.  Irving did not
find any
indication of tracing or computer cut and paste or mechanical cut and
paste processes.  The characteristics were
identified as to
whether they were comparative, natural variations or differences.
[49]
In comparing the disputed signature on the Deed of Nomination dated
11 February 2000, to the six standard signatures or undisputed

signatures, Irving found 27 points of similarity.  In our
signatures we all have involuntary hesitations and particular stops

and speed variations, pressure variations which create a pattern.
All 27 similarities indicated hesitation, pen movement

characteristics, speed and pressure variations.  There were 27
similarities which a forger could not reproduce.  There
were
also natural variations within that range of signature, but were
identified with those numbers as well.
[50]
Irving’s findings were that the disputed signature found on the
original Deed of Nomination of the Trustee and Titular
Head of the
Nazareth Baptist Church dated 11 February 2000, and the standard
signatures submitted, contain characteristics which
can be associated
with the signature authorship of a single individual, M V Shembe.
The usual characteristics associated
with forgery of a signature were
not present in the disputed signature.  This signature reflects
natural line quality, rhythm,
pen lines and movement of an
established signature model pattern.
[51]
After this examination, the respondent’s attorney, Mr Trevor
Nkosi, invited Irving to carry out a further examination.
The
investigation involved the examination of handwritten documents as
opposed to signatures.  The slight differences of erratic
pen
movement and less care or attention noted in the writing of the
letter indicated as received on 16 March 2011 could be attributed
to
the conditions, circumstances at the time of writing, disability,
illness or writing surface and posture conditions. Irving
found three
dissimilarities in pen lifting and deviation of construction, and he
explained this as natural variations.
[52]
Irving’s evidence finds support in the evidence of Janie
Viljoen Bester, a forensic handwriting expert, who was also
requested
to examine the disputed signature on the Deed of Nomination of the
Trustee and the Titular Head of Nazareth Baptist Church.
He did
not find any fundamental handwriting differences between the
collected specimen signatures of M V Shembe and the disputed

signature.  He examined the signature for any characteristics of
forgery, but none were identified.  He was using a magnifying

glass and a hand held device that resembles a computer mouse which
has
inter
alia
a
function of distinguishing between different writing instruments.
[53]
Bester marked out 15 similarities which he felt sufficient within the
context of 21 discriminating elements of handwriting
and the fact
that there were no fundamental handwriting differences but natural
variations, which could be expected in handwriting.
The 15
points of similarities that he found led him to the conclusion that
the disputed signature was the signature of the late
leader.
[54]
Bester testified that similarities and differences of writing is the
heart of a comparison analysis.  A characteristic
that occurs in
the writing of one individual and does not occur in the writing of
any other is classified as an unexplained difference.
There
should be significant similarities and explainable differences
between two writings before the examiner can positively conclude
that
they were written by the same hand.
[55]
Bester stated that the correct interpretation of natural handwriting
variation nullifies any fundamental differences that might
exist and
the signature is therefore authentic.
[56]
The evidence of Irving and Bester also finds support in the evidence
of Leon Anton Esterhuyse, a forensic document examiner,
who was also
instructed to authenticate the disputed signature.  In the final
evaluation of all the scientifically determined
aspects of
importance, based upon theoretical knowledge and extensive practical
experience, he concluded that the disputed signature
on the
nomination document was in all probability made by the person, M V
Shembe, the late leader.  The disputed signature
would be a very
difficult one to forge because of its inconspicuous characteristics.
The forger would need to maintain fully
a good line quality, rhythm
and fluency in line movements.  He concluded that the disputed
signature is indeed authentic.
He found 18 points of
similarities between the disputed signature and the specimen
signature.
[57]
Irving identified 27 points of similarities and three points of
dissimilarity, Bester found 15 points of similarities and Esterhuyse

18 points of similarities.  However, they all agree on the
authenticity of the disputed signature.
[58]
Karel Frederick Conraad Landman, a handwriting expert, was also
instructed by the appellants’ attorneys to authenticate
the
disputed signature.  In order to execute the task given to him
he was also placed in possession of the disputed signature,
and the
undisputed specimen signatures of the late leader.
[59]
After thorough investigation and comparison, he arrived at the
following conclusions:
(a) The pictorial look of
the disputed signature does not resemble that of the five specimen
signatures;
(b) The rhythm and the
line quality of the disputed signature is not bad but definitely not
as good as that of the specimen signatures;
and
(c) Between the disputed
signature and the five specimens, he detected 24 divergences.
[60]
Landman found 24 points of divergences; he concluded that the
disputed signature had been created by simulating two of the

signatures in the set of comparative standards.  He concluded by
finding that the disputed signature is a forgery.  Regarding
the
findings by Landman of 24 points of inherent handwriting divergences
between the disputed signature and seven specimens, Irving
states
that he did not believe that Landman did a proper examination.
To Irving, he, Landman, seemed to have placed much
attention on the
dissimilarities.
[61]
Esterhuyse testified that the points of difference Landman allegedly
found were minor in nature, insignificant, superficial
and were all
reasonably explainable.  They all fall within the expected range
of natural variation by the signatory, Bishop
Shembe, the late
leader.
[62]
Bester, like Irving and Esterhuyse, referred to the 24 points of
dissimilarities, which had led Landman to the conclusion that
the
disputed signature is not that of the person who made the signature
on the specimen documents, not as  fundamental handwriting

differences but as natural variations which could be expected in
handwriting.
[63]
The testimony of Mr Z E Buthelezi, a practising attorney, is that
during 2000 the late leader came to his office and indicated
that he
intended to nominate a person who would succeed him as the leader of
the church and requested Buthelezi to note this down.

Buthelezi, in turn, requested the late leader to bring with him an
identity document of the person he wished to nominate.
[64]
The identity document was brought to Buthelezi for that purpose and
he prepared the document for signature by the late leader.
The
document was taken away for signature by the late leader and when it
came back, Buthelezi kept it in the safe.  The late
leader and
Buthelezi never discussed the matter again until Buthelezi received a
letter on 16 March 2011.
[65]
On 16 March 2011, Buthelezi had been out of his office and on his
return his receptionist gave him a letter and told him that
the
letter had been brought to the office by a certain Mr Sibisi; with
the request that Buthelezi should phone him immediately
after reading
it.
[66]
On 28 March 2011, Buthelezi received a telephone call notifying him
that the church leader had passed away.  He then proceeded
to
the late leader’s homestead with a view to announcing a
successor to the late leader.  He met the third appellant,
the
chairman of the Executive Committee, Reverend Mnyandu, and
uBabomncane, Gqibokubi, also known as Babu Nhlangakazi.
[67]
Sibisi testified that he was not present when the late leader signed
the Deed of Nomination and nor was he present when Mr
Zwane
counter-signed it.  Sibisi stated that he was simply called by
the late leader and directed him to sign the document.
Sibisi
then signed the document without questioning his master.  On 16
March
2011 the late leader called him, gave him an envelope and instructed
him to take it to the offices of Buthelezi Attorneys.
Sibisi
took the letter to Buthelezi’s offices without question.
[68]
Dr Roberts, the late leader’s physician, testified that during
March 2011, on enquiring from the late leader, as he was
then
suffering from a terminal illness, whether his affairs with regard to
succession to church leadership were in order, the late
leader told
him that the matter was in the hands of his lawyers.
[69]
Inkosi Ngcobo and Inkosi Qwabe testified that on 16 March 2011 the
late leader was critically ill and shaking to such an extent
that he
could not turn or write on the bed.  The widow of the late
leader, Mrs Joyce Shembe, testified that she did not know
anything
about Sibisi coming to collect a letter from the late leader on the
16 March 2011.  She did not see Sibisi on that
day.  She
went on to state that the late leader’s health condition could
be described as having been serious during
the last days of his life.
[70]
The court
a
quo
preferred the handwriting expert evidence of Irving, Esterhuyse and
Bester, pointing to the genuineness of the Deed of Nomination,
to
that of Landman mainly on the ground that Irving and Esterhuyse had
been instructed by the attorneys of the appellants to authenticate

the signature on the Deed of Nomination.  The court
a
quo
found
the evidence of the three expert witnesses credible and trustworthy.
The court was of the view that the evidence of
Landman was not aimed
at establishing the genuineness of the disputed Deed of Nomination
but at proving Irving, Bester and Esterhuyse
wrong.  The court
a
quo
found the evidence of Landman not worthy of consideration and
rejected it.
[71]
The court also accepted the oral evidence of Sibisi, and Buthelezi of
Buthelezi Attorneys, as to the drafting of the Deed of
Nomination and
the delivery of the confirmation letter on 16 March 2011.  The
court rejected the evidence of Mrs Joyce Shembe,
Inkosi Ngcobo and
Inkosi Qwabe as to the critical health condition of the late leader
on the day in question.
[72]
Mr
Choudree
SC
for
the appellants has argued that, as the time span between the disputed
signature and the authentic signature is six years, it
cannot be said
that the disputed signature and authentic signatures were authored
around the same time.  Irving testified
that the signature in
dispute appeared to have been written with a bit more care than the
other signatures.  In Mr
Choudree’s
submission, Irving argued under cross-examination that the gaps
between the initial and the surname are nowhere near what appears
in
the disputed signature.
[73]
Mr
Choudree
has argued that Bester agreed that there was a pen stop at the summit
of the letter “V” in disputed signature.
Bester
clarified that end stops is one of the indications of forgeries but
it is not always an indication of forgery.  However,
Bester
testified that the writer of the specimen signatures had a pen stop
as part of his handwriting characteristics.  Nevertheless,
Mr
Choudree
submits that this court cannot rule out and it must take cognisance
of the fact that, as testified by Bester himself, end stops
are an
indication of forgeries.
[74]
It has also been contended on behalf of the appellants that in the
light of the fact that Bester conceded that there are variations

between the disputed signature and the specimen signatures, it can
only be concluded that the disputed signature had to have been
a
forgery.
[75]
Further, it has been contended that if the disputed signature was in
fact signed in the year 2000, it is extremely strange
that the line
quality in the specimen signatures which were signed six to nine
years later were better.  According to the
evidence of Landman
the signature on the Deed of Nomination does not display the same
flamboyant movements and continuation of
line as does the specimen
signatures.  Mr
Choudree
has accordingly submitted that given all the conflicts between the
other three experts called by the respondent, and Landman, called
by
the first appellant, the court
a
quo
ought to have preferred the evidence of Landman to that of the other
three handwriting experts, for the simple reason that it is
logical
and well founded.  It has been argued that the court
a
quo
ought to have found that it could not possibly arrive at a conclusion
that the signature on the Deed of Nomination was indeed that
of the
late leader, Vimbeni Shembe, and that effect should not have been
given to the Deed of Nomination.
[76]
With regard to the oral evidence relating to the authenticity of the
Deed of Nomination, Mr
Choudree
has argued that in the light of the testimony of Sibisi regarding the
affixing of the signatures by the late leader and Zwane,
and the fact
that he had not witnessed the signatures being placed on the document
when he signed the document, the authenticity
of the Deed of
Nomination must be seriously questioned.  It was argued further
that, in the event of this Court finding that
the Deed of Nomination
is not a genuine document, it cannot be stated that the letter
received by Buthelezi Attorneys on 16 March
2011 supports and
confirms it (the Deed of Nomination).
[77]
With regard to the admissibility of the expert evidence, the true and
practical test of the admissibility of the opinion of
a skilled
witness is whether or not the court can receive ‘appreciable
help’ from the expert witness on the particular
issue.
See
Gentiruco
AG v Firestone SA (Pty) Ltd
1972 (1) SA 589
(A) at 616G-H.  The help of an expert must be
useful. See
Visagie
v Gerryts en ‘n ander
2000 (3) SA 670
(C) at 681A-B.
[78]
The court must be satisfied that the witness possesses sufficient
skill, training or experience to assist.  See
Menday
v Protea Assurance Co Ltd
1976 (1) SA 565
(E) at 569B;
Mahomed
v Shaik
1978 (4) SA 523
(N).  His or her qualifications have to be
measured against evidence he or she has to give in order to determine
whether they
are sufficient to enable him or her to give the relevant
evidence.  An expert witness’ opinion may only assist the
court
if the witness is better qualified to form an opinion than the
court.
[79]
While a handwriting expert is entitled to give evidence on the
similarities or differences between specimens, it is the court’s

responsibility to make the final decision.
S
v Boesak
[2000] ZASCA 112
;
2000 (3) SA 381
(SCA) para 58.
[80]
Guidance offered by the expert must be sufficiently relevant to the
matter in issue.  However, the opinion must not usurp
the
function of the court in deciding questions the court has to decide,
for it is the court’s responsibility to draw inferences.

See
Holtzhauzen
v Roodt
1997 (4) SA 766
(W) at 775A.
[81]
But the weight to be attached to such evidence must be assessed in
the light of all evidence before the court.  In the
present
case, the three handwriting experts, namely Irving, Bester and
Esterhuyse have without difficulty communicated to the court
the data
upon which their inferences were based.  It cannot, therefore,
be said that the evidence of the three handwriting
expert witnesses
was only a conjecture and uncertain to such an extent that it did not
offer any reasonable inferences.  See
also
Holzhauzen
at 776H.
[82]
As a result, the court
a
quo
cannot be faulted for holding that it was satisfied that the
authenticity of the Deed of Nomination had on the balance of
probabilities
been proved. The testimony of the hand writing experts
as to the authenticity of the Deed of Nomination is conclusive and
definitive
of the issue between the parties. As a consequence, it is
not necessary to consider any other evidence extrinsic to the
document,
as background information or surrounding circumstances or a
corroborative factor to the findings of the handwriting experts. See

also
Johnson
v Lead
1980 (3) SA 927
(AD) at 943B. The evidence of the three expert
witnesses is cogent, logical and consistent with the evidence
tendered before the
court
a
quo
.
[83]
This Court has no reason to conclude that Irving lacked sufficient
skill, training or experience to assist the court
a
quo
as
it had been alleged on behalf of the appellants.  The two of the
three experts had initially been instructed by the appellants
and
after discovering that their findings were against the appellants,
the appellants discarded them.
ORAL
NOMINATION
[84]
Mduduzi Shembe, the first appellant, claims to be a rightful leader
of the church and the sole trustee of the trust on the
basis of an
oral nomination, the late leader allegedly made to Inkosi Ngcobo, the
second appellant, on four different occasions,
on one occasion in the
presence of Inkosi Qwabe.
[85]
Vela Shembe, the respondent, contends that the nomination of the
first appellant was opportunistic and unlawful.  The
second
appellant created confusion at the funeral of the late leader which
enabled the first appellant to seize an opportunity
and claim
succession to the late titular head of the church.
[86]
The testimony of the second appellant in this regard is that the late
leader had on four different occasions communicated to
him that on
his (late leader’s) death the first appellant should succeed
him as the titular head of the church.  On
a commemoration day,
2 September 2010, at Ladysmith the late leader confided in the second
appellant that it was his last wish
that the first appellant should
succeed him as the titular head of the church.  On 10 January
2011, the second appellant was
en route to the holy Mount Nhlangakazi
on pilgrimage and he walked past the late leaders’ homestead
with the intention to
enquire about the late leader’s failure
to join the pilgrimage.  At the late leader’s homestead,
Ebuhleni, the
second appellant met up with Inkosi Qwabe at the gate
and they entered the homestead together.  The late leader told
them
that he would not join the pilgrimage due to ill health.
The late leader went on to tell the second appellant about his
impending
death.  When the second appellant expressed much
concern about the late leader’s health condition, the late
leader allayed
his fears by saying that he should not worry because
Mduduzi Shembe, the first appellant, was available to take over the
reins
as the church leader, as he had previously told him about it.
The second appellant and Inkosi Qwabe left the late leader’s

homestead for the pilgrimage at the holy Mount Nhlangakazi.
[87]
On 17 February 2011, the late leader presented the second appellant
with a cow and a goat.  On the following day, the
second
appellant proceeded to the late leader’s home in order to
personally thank the late leader for the present. Once again
the late
leader expressed his last wish that the first appellant should
succeed him as the titular head of the church.  On
5 March 2011,
the second appellant slaughtered a beast and offered the late leader
a piece (chunk) of meat, a hind leg, which the
late leader, in turn,
gave to his paternal uncle, Nhlangakazi. When the second appellant
expressed his gratitude for the gift the
late leader once again
repeated his last wish that the first appellant should succeed him as
the leader of the church.  According
to the second appellant,
the late leader shared this succession information with him in his
capacity, first, as an Inkosi of the
area where the late leader was
resident and, second, as his confidante.
[88]
The evidence of the second appellant finds corroboration in the
evidence of Inkosi Makhosini Wellington Qwabe, specifically
with
regard to what transpired between the late leader and the second
appellant on 10 January 2011.  Inkosi Qwabe coincidentally

visited the late leader’s homestead with the second appellant.
When the second appellant expressed concern about the
late leader’s
state of health, the latter told him not to worry about that because
the first appellant was available to take
over as a church leader.
[89]
The court
a
quo
rejected the evidence of the second appellant, as to the existence of
the oral nomination by the late leader of the first appellant
as the
church leader, purely on the grounds, firstly, that when, at the
funeral of the late leader on 3 April 2011, the second
appellant
announced who the new leader would be, the second appellant omitted
to expressly state that he was thereby giving effect
to the last
wishes of the late leader.  Instead, the second appellant relied
on his status as an Inkosi of the area where
the church is situated.
Secondly, that if the late leader had in fact nominated his son,
Mduduzi Shembe, as his successor,
why did he not expressly mandate
the second appellant to announce this? Thirdly, that the court could
not obtain from the second
appellant what the late leader in fact had
actually said to him.  It was for that reason the court
a
quo
concluded that the first appellant had failed to discharge the onus
which rested on him to show on the balance of probabilities
that
there had in fact been an oral nomination.
[90]
The evidence of Inkosi Qwabe was only considered in determining the
exactness of what the late leader had said to the second
appellant,
but not on the existence of the oral nomination as such.  In my
judgment, I find the evidence on the existence
of an oral nomination
to have much probative value.  The evidence of Inkosi Qwabe was
also rejected on the basis that ‘both
the second appellant and
Inkosi Qwabe could not tell either directly and indirectly what in
fact the late leader had actually said
to them.’(See the Record
at Volume 39 at page 3676 lines 22-25.)
[91]
In my view, the testimony of the second appellant and Inkosi Qwabe,
both with regard to the existence of the oral nomination
and
exactness of what the late leader had actually said to them,
warranted a careful and proper assessment, evaluation and weighing

against the totality of the evidence tendered and probabilities in
the case, before rejection on such grounds.  This will
become
more apparent in my treatment of such testimony below.
[92]
For the purposes of accuracy and precision, I propose to quote
verbatim the reasoning of the court
a quo
in this regard:
‘
I find it inexplicable that if
the late leader had indeed said to Inkosi Ngcobo that he wished and
he desired that Mduduzi Shembe,
his son, should succeed him, then why
did Inkosi Ngcobo not expressly say so at the funeral and why did the
late leader not ask
the Inkosi to announce this.  Instead, why
did Inkosi Ngcobo refer to the fact that he is making the
announcement as to who
should succeed the late leader on the basis
that he is the Inkosi of the predominant tribe which dominates the
area where the church
is situated.  Moreover, we do not have
from Inkosi Ngcobo as to what the late leader in fact and actually
said to him. It
is for these reasons that I conclude that the
respondent had failed to discharge the onus which rests upon him to
show on a balance
of probabilities that there had in fact been an
oral nomination,’
See
the Record at Volume 39, p 3679 lines 5-17 of the judgment.
[93]
A trial judge must weigh the evidence of the witness and consider its
merits and demerits and, having done so, he or she must
decide
whether it is trustworthy and whether, despite the fact that there
are shortcomings or defects or contradictions in the
testimony, he or
she is satisfied that the truth has been told.  See
S
v Sauls & others
1981 (3) SA 172
(A) at 180E-G.
[94]
The credibility of a witness is determined mainly by measuring the
probability of his statements against the known facts of
the case.
Falsum
in uno falsum in omnibus
,
the fact that he has lied once does not mean that everything he says
is untrue.
[95]
In a civil matter, in order to determine whether or not the onus has
been discharged, the question of proof required is a preponderance
or
balance of probabilities.  The probability of the truth of a
particular averment is measured or balanced against the probability

of its being untrue.
[96]
A quantum of proof in a civil matter should not be equated with a
quantum of proof required in a criminal matter, being proof
beyond
all reasonable doubt.  Reasonable doubt is a doubt based upon
reason and common sense.  It is a doubt, which a
reasonable
person would have after carefully weighing all the evidence …
a reasonable doubt is not a caprice or a whim;
it is not a
speculation or suspicion.  It is not an excuse to avoid the
performance of an unpleasant duty, and it is not sympathy:

s4.01 of The Modern Federal Jury Instructions (1989) by L Sand, J
Siffert, W Loughlin and S Reiss.  See also
S
v Glegg
1973 (1) SA 34
(A) at 38H-39A.
[97]
In
S v
Glegg
,
the Appellate Division held that proof beyond reasonable doubt can
well be that it is a doubt which exists because of the probabilities

or possibilities which can be regarded as reasonable on the ground of
generally accepted human knowledge and experience. Proof
beyond
reasonable doubt cannot be put on the same level as proof beyond the
slightest doubt because the onus of adducing proof
as high as that
would in practice lead to defeating the ends of criminal justice.
[98]
Likewise, an analogy can be drawn from this decision that pushing the
quantum of proof in civil matters beyond the balance
of probability
is more likely than not to result in injustice to a litigant required
to adduce proof more than the quantum of proof
required in civil
matters.
[99]
Facts, it was said in
R
v Mpanza
1915 AD 348
at 352-353 are ‘. . . relevant if from their
existence inferences may properly be drawn as to the existence of the
fact in
issue’.
[100]
The evidence must be assessed in the light of all other evidence for
purposes of determining sufficiency, that is, whether
the required
and applicable standard of proof has been attained.
[101]
The factual basis is determined by evaluating all the probative
material admitted during the course of the trial.  The
court
a
quo
did
not fully analyse, evaluate and assess the weight or cogency of the
evidence of the second appellant and of Inkosi Qwabe both
as to the
existence, intelligibility or otherwise of the oral nomination in
question.
[102]
In
Stellenbosch Farmers’ Winery Group Ltd & another v
Martell Et Cie & others
2003 (1) SA 11
(SCA) para 5 Nienaber
JA provided the following informative guidelines and principles in
resolving factual disputes:
‘
To come to a conclusion on the
disputed issues a court must make findings on (a) the credibility of
the various factual witnesses;
(b) their reliability; and (c) the
probabilities. . . . As to (c), this necessitates an analysis and
evaluation of the probability
or improbability of each party’s
version on each of the disputed issues. . .the court will then, as a
final step, determine
whether the party burdened with the
onus
of proof has succeeded in discharging it
’
.
[103]
The court has a duty to evaluate the probative material.  When
evaluating evidence of probative value, the credibility
is
determined, inferences are drawn, and probabilities and
improbabilities are considered.  In the present case, the court
a quo
did not come this far.  It merely measured the credibility of
the second appellant against his omission to expressly state
at the
funeral that he was mandated by the late leader to make an
announcement as to who the new leader was.  The court
a
quo
limited the assessment of Inkosi Qwabe’s testimony only to the
determination of what the late leader had exactly said to
the second
appellant and Inkosi Qwabe.  In my judgment, the court
a
quo
ought not to have left off Inkosi Qwabe’s evidence there, but
it ought to have given it further consideration since it is
of such
probative value as to the existence or otherwise of an oral
nomination.
[104]
In my view, the court
a
quo,
in
order to discover the truth as to the existence of an oral nomination
or otherwise, ought to have taken its inquiry and assessment
further
by making a finding on whether or not the late leader communicated to
the witnesses what they alleged he had, or whether
they were merely
failing to put it crisply or clearly.
[105]
In evaluating evidence there are two basic principles; first,
evidence must be weighed in its totality, and secondly probabilities

and inferences must be distinguished from conjecture or speculation.
In
S v Trainor
2003 (1) SACR 35
(SCA) para 9 Navsa JA said:
‘
A conspectus of all the
evidence is required. Evidence that is reliable should be weighed
alongside such evidence as may be found to
be false.
Independently verifiable evidence, if any, should be weighed to see
if it supports any of the evidence tendered. In considering
whether
evidence is reliable, the quality of that evidence must of necessity
be evaluated, as must corroborative evidence, if any.
Evidence, of
course, must be evaluated against the
onus
on any particular issue or in respect of the case in its entirety.
The compartmentalised and fragmented approach . . . is illogical

and wrong.’
It
is of paramount importance that the court should eschew a piecemeal
process of reasoning.  Evidence must be weighed as a
whole,
taking account of the probabilities, the reliability, the absence of
interest or bias, the intrinsic merits or demerits
of the testimony
itself, and consistencies or contradictions, corroboration and all
other relevant factors.
[106]
Inferences and probabilities, however, must be distinguished from
conjecture or speculation.  In
Caswell
v Powell Duffryn Associated Collieries Ltd
[1939] 3 ALL ER 722
at 723, it was said that ‘there can be no
proper inference unless there are objective facts from which to infer
the other
facts which it is sought to establish’ and ‘…if
there are no positive proved facts from which the inference can
be
made, the method of inference fails and what is left is mere
conjecture or speculation’.
[107]
The court must stay ‘within the four corners of the proved
facts. . . . the court is not entitled to speculate as to
the
possible existence of other facts’:
S
v Ndlovu
1987 (1) PHH 37 (A) 68 at 69.
[108]
Probabilities must also be considered in the light of proved facts.
It is, for example, possible to accept direct credible
evidence even
though this evidence conflicts with probabilities arising from human
experience or opinion.
Motor
Vehicle Assurance Fund v Kenny
1984 (4) SA 432
(E) at 436H.
[109]
The court
a
quo
did
not reject the evidence of the second appellant as to the existence
of an oral nomination of the first appellant by the late
leader as
his successor on empirical evidence, but rather on the deductions the
court
a
quo
made on the second appellant’s conduct at the funeral of the
late leader on 3 April 2011, i.e. his omission, when announcing
the
first appellant as the new leader, to specify that he was thereby
giving effect to the last wishes of the late leader, that
the first
appellant should succeed him as the church leader.
[110]
The undisputed evidence by the second appellant is that on four
different occasions he had had casual meetings with the late
leader
and that during such meetings the late leader expressed his last
wishes to him that in the event of him dying, the first
appellant
should succeed him as the church leader.  Nor has any evidence
been tendered gainsaying that such informal meetings
between the late
leader and second appellant took place and that succession to the
church leadership had also been a subject for
discussion at such
meetings.
[111]
The evidence of Inkosi Qwabe was materially relevant to the outcome
of the hearing.  It has provided corroboration to
the second
appellant’s version that the second appellant met the late
leader on 10 January 2011 at the late leader’s
homestead and
that during such meeting the late leader expressed his last wishes to
the second appellant that on his death the
first appellant should
take over the reins as a church leader.  The second appellant
had co-incidentally joined Inkosi Qwabe
at the gate leading to the
homestead of the late leader when visiting the late leader on the day
in question.  No evidence
was tendered to show that the two
witnesses had colluded with each other on the point or that Inkosi
Qwabe had been rehearsed to
state the views expressed by the second
appellant regarding who would lead the church on the late leader’s
death.
[112]
It is inconceivable to conclude that the second appellant including
Inkosi Qwabe, with regard to the incident of 10 January
2011,
invented and fabricated the dates on which the late leader allegedly
shared with the second appellant the succession secret,
that the
first appellant should succeed him, and that the incidents occurred
on such dates.  No allegation of invention or
fabrication of
such dates and incident’s associated thereto, has been imputed
to either of the two witnesses.
[113]
The next question for decision is why the second appellant did not
state that he was giving effect to the last wishes of the
late leader
when announcing the name of the first appellant as a successor;
instead, he claimed to make the announcement in his
capacity as an
Inkosi of the predominant tribe where the church is situated.
The second appellant testified that the late
leader entrusted him
with the succession secret because he trusted him as an Inkosi of
Ngcobo (AmaQadi) clan and it was for that
reason that he, the second
appellant, wanted to address the congregants on the subject in that
capacity (see the Record at Volume
22 page 290 lines 8-10).
[114]
One may find that the second appellant acted disingenuously, but his
conduct may be said to be analogous to a situation where
a person may
put up a false story because he or she thinks that the truth is
unlikely to be sufficiently plausible.  See
Maharaj
v Parandaya
1939 NPD 239.
It appears, therefore, that the conduct of the
second appellant was not due to untruthfulness but to poor judgment
on his
part that announcing the successor to the late leader in his
capacity as an Inkosi of Ngcobo Clan, as opposed to stating
categorically
that he was then fulfilling the last wishes of the late
leader, would accord him more recognition. In the premises, the
conduct
of the second appellant cannot detract from the veracity of
the existence of an oral nomination.
[115]
The second appellant stated that though the late leader had not
expressly requested him to announce the successor to him (the
late
leader), he found himself duty bound to make it known to the
congregation whom the late leader, the kings of kings (Inkosi
ya
Makhosi), had nominated as his successor (see the Record at Volume 22
page 290 lines 20-22). At the funeral the opportunity
presented
itself for him to make the wishes of the late leader known to the
congregation (see the Record at Volume page 2130 lines
22-23).The
second appellant found it imperative for him to honour the wishes of
the late leader since, in the African society,
the wishes of a dead
person are generally respected. This is in accordance with an African
adage that ‘the word of a dead
person is not transgressed’.
[116]
Buthelezi testified that the second appellant stated that he would
appoint the church leader as his father did.  Buthelezi
went on
to state that according to the second appellant, his father had
appointed, AK Shembe as the church leader.  Buthelezi
testified
that the second appellant said that as an Inkosi of the area he had a
right to appoint a leader.  When announcing
the first appellant
as the successor to the late leader the second appellant was recorded
as saying:
‘
Your leader comes from the
house or branch of Inyanga YeZulu, not from outside thereof.  Do
not be confused.  I have all
the rights as Inkosi of the tribe.
I am in charge, your leader, Ma Nazaretha, is Mduduzi Shembe!’
[117]
That the father of the second appellant appointed AK Shembe as the
church leader is devoid of truth since, firstly, it is
common cause
between the parties that AK Shembe was appointed by his father, the
prophet Isaiah, as the successor to JG Shembe,
his brother.
Secondly, the evidence establishes that the appointment of AK Shembe
was announced by Dr E Z Sikhakhane and
Reverend A A Ngcobo.
According to the second appellant his father only urged AK Shembe
during a dispute to church leadership
to take his staff and lead the
congregants to the holy Mount Nhlangakazi on pilgrimage.
Lastly, such an alleged appointment
by the second appellant’s
father of AK Shembe, the spiritual leader of the Church of Nazareth,
would be in direct conflict
with the standard church procedure which
is being following when a new leader is appointed.  According to
the Reverend M F
Nzama, no ordinary human being is in a position to
nominate or suggest who the next Shembe shall be, save the incumbent
titular
head himself.
[118]
The evidence that the second appellant said as an Inkosi of the area
that he had the right to appoint a leader, does not find

corroboration in the evidence of Gumede who testified that the second
appellant said that as an Inkosi of the area (Amaqadi Tribe)
he had a
right to announce a leader.  See the Record at Volume 12 page
1044 lines 21-22.  In his testimony, the second
appellant, when
asked what he meant by ‘I have all the rights as Inkosi of the
tribe, I am in charge’, he said ‘when
I say that I have
all the rights as Inkosi of the area, I am in charge, this emanated
from the fact that when the late leader addressed
me with regards to
this matter, he would start by saying, ‘I am confiding in you
as Inkosi of the tribe,’ and in turn
I would respond, in
acknowledgment saying, ‘you Inkosi, Yamakhosi, the king of
kings’ see the Record at Volume 23 page
2104 lines 17-22. He
also emphasised that as a confidante of the late leader, ‘I
took it that I had all the authority to
make known who the future
leader is according to the late leader’s wishes.’
See the Record: Vol 23 p 2104 lines
22-24.
[119]
Can it be said that the second appellant appointed the first
appellant as the successor to the late leader by the mere fact
that
he took it upon himself, in his capacity as an Inkosi of the area, to
announce a new church leader?  The second appellant
said, ‘I
have no powers to install UShembe as is the God of the Nazareth. I
was announcing or making known the wishes of
Uthingolwenkosazana,
i.e. the late leader.’ (See the Record at Volume 22 page 2090
lines 20-24).  There is no direct
evidence that the second
appellant appointed the first appellant as a new church leader.
Whether or not the second appellant
was appointing the first
appellant as the new church leader can only be established from the
ordinary meaning of the words, ‘appoint’
and ‘announce’,
used in the evidence.
[120]
The
Oxford
South African Concise Dictionary
2
ed (2016) defines the word ‘appoint’ as ‘assign[ing]
a job or role to’ someone, and it defines the word
‘announce’
as ‘mak[ing] a formal public declaration about a fact. . .’.
[121]
When addressing the congregation the second appellant said, ‘Ma
Nazaretha your leader is Mduduzi Shembe’.
The words the
second appellant uttered, in my view, are not necessary to explain
the nature of his act as that of assigning the
first appellant a role
of being the church leader but rather as that of making a formal
public declaration about the fact that
he, the first appellant, was
the new leader of the congregation, a state of affairs.  His
utterances are, therefore, far too
inadequate to conclude that the
second appellant was in fact appointing the first appellant as the
new church leader.
[122]
The following statement by the second appellant in his speech at the
funeral of the late leader on 3 April 2011 negates the
conclusion
that he appointed the first appellant as the new church leader (see
the Record at Volume 22 page 2068 lines 7-9):
‘
. . . .whoever will pronounce
is not the sole king maker according to his pronunciation, not mine
neither nor of any other person.’
The
Oxford
Dictionary
defines the word ‘pronounce’ as to ‘declare or
announce’ something.  As the confidante of the late

leader, the second appellant felt that he had all the authority to
make known to the broader church community who, according to
the late
leader, the future leader was.  (See the Record at Volume 22
page 2104 lines 23-24 and Volume 24 page 2269).
His words can
therefore be said to be in keeping with his deeds.
[123]
The next question to decide is, had the late leader indeed told the
second appellant that in the event of him dying his son,
Mduduzi
Shembe, should succeed him as a spiritual leader, why did he not
expressly ask the second appellant to announce this?
It is
common cause between the parties that it is the church practice that
the name of the new leader is announced at the funeral
of the
deceased leader.  Apart from that, the second appellant is an
Inkosi of the area in which the late leader was resident;
he is a
seasoned and ardent member of the church, well-versed in the church
doctrines and practices as opposed to attorney Buthelezi,
a mere
legal practitioner who was only rendering professional services to
the late leader and was not a church member.  In
the
circumstances, it can reasonably be inferred therefrom that as the
second appellant was
au
fait
with the church practices it was not necessary for the late leader to
specifically mandate him to announce the successor on the
day of the
funeral.  However, from the late leader’s conduct of
sharing the succession secret with the second appellant,
it can
reasonably be inferred that the late leader intended the second
appellant to act upon it and make it known to the entire
congregation
at his funeral.
[124]
The court
a
quo
rejected the evidence of both the second appellant and Inkosi Qwabe,
relating to the oral nomination, on the grounds that they
could not
tell the court as to what the late leader actually said to them when
making the alleged oral nomination.  Mr. Findlay,
for the
respondent, has also contended that both witnesses could not
distinguish between succession to the household and the church

leadership position.
[125]
The second appellant in his testimony, on what the late leader said
to him in this regard, said (see the Record at Volume
23 page 2100
lines 12-13):
‘
. . ., he said should he pass
away he wishes his son, MD, to take over the reins, the leadership of
the church.’
Inkosi
Qwabe who was seated next to the second appellant during the latter’s
discussion with to late leader said (see the
Record at Volume 25 page
2302 line 7-12):
‘
He proceeded addressing himself
to Iqadi saying he is aware that his father and forefathers are
moving around him now they are wishing
to have him joining them on
the other side.  He proceeded that may be the case, however, you
do not have to bother, he is
addressing himself to iQadi, my son, in
his words he was referring to MD, is there to takeover.”
[126]
It is not in dispute that MD referred to in both quotations is
Mduduzi Shembe.  To me the gist of what the late leader
conveyed
to the two witnesses is clear that on his death he wanted his son to
succeed him.  With regard to the confusion as
to whether the
late leader was referring to succession to household or church
leadership position cannot arise on the reading of
the passages
referred to above.  The second appellant qualified the taking
over of the reins by the late leader’s son
as the leadership of
the church.  Also, under cross-examination Inkosi Qwabe put it
beyond doubt that the late leader, when
he talked to the second
appellant in his presence, was referring to the church leadership
position; when he said that the late
leader was referring to ‘God’s
service’. (See the Record at Volume 25 page 2326 lines 1-2).
[127]
Whereas the second appellant does not regard Ebuhleni as the church
property but rather a private property which his father
specifically
allotted to AK Shembe, his evidence has been that the late leader was
referring to succession to the church leadership
position.
Ebuhleni is used both as a homestead and the church; confusion on the
part of the counsel for the respondent and
ultimately the court
a
quo
might have arisen therefrom.
[128]
In my view, what the late leader conveyed to both witnesses, was
clear and sufficient to convey his last wishes regarding
his
successor to the church leadership  and for one to clearly
understand what the last wishes of the late leader were. An
oral
nomination need not be set out with the precision required in
drafting a testamentary document. Mr Findlay argued that the
only
nomination which should be accepted is the Deed of Nomination because
it is in writing.  Further, that the confirmation
of the Deed of
Nomination by the letter of 16 March 2011, shortly before his death,
is indicative of the fact that the late leader
intended to make only
one nomination. The nomination of the first appellant by the late
leader should not be discarded simply because
it is not in writing.
It is not a requirement in the Trust Deed that a nomination of the
successor to the church leadership
should only be in writing. In
terms of the Trust Deed the titular head may make more than one
nomination. Therefore, it does not
necessarily follow that simply
because the nomination of the respondent is in writing; it
automatically excludes any other nomination.
The evidence does not
establish as to when the letter Buthelezi Attorneys allegedly
received on 16 March 2011 was written, as it
does not bear any date;
it cannot therefore provide sufficient proof that the late leader
intended the Deed of Nomination to be
the only nomination. Such a
letter could well have been written even before the drafting of the
Deed of Nomination in confirmation
of the discussion the late leader
and Attorney Buthelezi had in preparation for the drafting of the
Deed of Nomination. Otherwise,
there would be no need for it.
Nor can Dr Roberts’ evidence, that the late leader told him
that the matter was in the
hands of his lawyers, provide proof that
the late leader intended the Deed of Nomination to be the only
nomination since it is
incomplete for one to conclude that the late
leader was thereby referring to the Deed of Nomination, and if he
did, he, the late
leader, intended the Deed of Nomination to be the
only nomination of a successor to him.
[129]
The oral nomination of the first appellant, which the late leader
made to the second appellant, should not be treated, assessed
and
construed as if it is a formal written nomination, made at a
pre-arranged meeting for that purpose. The nomination in question
was
made during casual or informal talks or discussions between the late
leader and the second appellant.
It
is not an unusual phenomenon amongst Africans or in the traditional
set up for elderly and people of poor health, in particular,
to
convey their last wishes to their trusted people, relatives and
friends during casual discussions or informal talks. It would

therefore not be fair and just to equate such nomination with a
formal written nomination and expect it to be as precise, and
detailed as a written one.
[130]
It has been contended on behalf of the respondent that the church
practice is that the church leader nominates a successor
during his
life time and for the protection of the nominee he keeps the identity
of the nominee secret and that, therefore, the
late leader could not
have divulged the succession secret to the second appellant.
However, to the contrary, the evidence
establishes that the late
leader had on three previous occasions confided the succession secret
in Cebekhulu, Gideon Mncube and
in the respondent himself on 12
January 2000, that the respondent would be his successor. When the
late leader communicated the
successor information to the second
appellant it had already lost the required confidentiality and
protection. In the premises,
there was nothing which could and would
have prevented the late leader from disclosing the alleged succession
secret to the second
appellant, his boyhood friend, brother and
confidante.
[131]
The question has also been raised as to why the late leader divulged
the succession secret in the presence of Inkosi Qwabe?
The
evidence has established that Inkosi Qwabe was not a mere ordinary
member of the church but an Inkosi.  Amakhosi at the
Church of
Nazareth enjoy a special status.  In terms of protocol they rank
immediately after the titular head of the church.
[132]
It has been contended on behalf of the respondent that if the late
leader had indeed confided in the second appellant who
was to succeed
him, he would not have, on the Friday before the funeral, telephoned
Buthelezi and asked him whom the late leader
had nominated as his
successor.  The second appellant’s explanation is that he
wanted to ascertain if it was the same
person whose name the late
leader had communicated to him.  If it was a different name to
the one the late leader had given
to him, he wanted to devise a means
to avoid a conflict which might arise when more than one name was to
be announced. The second
appellant had feared that the announcement
of more than one name might cause a split in the church, and result
in violence.
However, Buthelezi refused to disclose the name to
him and said that he (the second appellant) would hear at the funeral
with all
the others.  The explanation by the second appellant
for making an enquiry from Buthelezi, in my opinion, is reasonable
and
plausible, regard being had to the fact that a split had occurred
in 1976 through an announcement of this nature, which resulted
in a
blood bath between the followers of the two sections of the church.
[133]
It has been submitted on behalf of the respondent that the second
appellant wanted to prevent Buthelezi from announcing the
successor.
Buthelezi repeatedly said that at the funeral that the second
appellant did not want him to make the announcement.
But
Gumede, who was the Programme Director, indicated to Buthelezi that
the second appellant was not objecting to him making an
announcement.
[134]
The second appellant has demonstrated to be a frank, candid and
trustworthy witness.  He never claimed that he had expressly

been mandated by the late leader to announce the first appellant as
his successor at the funeral.  Had he invented or fabricated
a
story that the late leader had confided in him his nomination of the
first appellant as his successor, in order to bolster his
version and
make it more credible, one would have reasonably expected the second
appellant to claim that he was acting on an express
mandate of the
late leader.
[135]
Inkosi Qwabe also confirmed that the late leader had not specifically
mandated the second appellant to announce the successor
at his
funeral; that both witnesses corroborated each other on something
negative to their version shows that they had not colluded
with each
other.  This is also evident from the fact that when stating
what the late leader conveyed to them they do not use
exactly the
same words although the meaning and interpretation thereof could be
the same.
[136]
It is common cause that between the parties, and we are also
unanimous, that the evidence in the present case, looked in its

totality, does not exclude the possibility of the existence of an
oral nomination.  This is evident from the following:

Firstly, there is no direct evidence gainsaying the evidence of the
second appellant that the late leader had on four different
occasions
communicated to him that Mduduzi Shembe, the first appellant, should
succeed him as the church leader.  It is not
in dispute that
when the second appellant brought the late leader a hind leg of the
beast he had slaughtered, the late leader’s
paternal uncle,
Nhlangakazi, was present but he was never called as a witness to
gainsay this. Nor has any evidence been tendered
to show that Inkosi
Qwabe was on 10 January 2011 not at the late leaders’ homestead
in the company of the second appellant,
and that on the day in
question no discussion relating to succession regarding the church
leadership took place. The probabilities
are such that communications
between the late leader and second appellant regarding succession of
the church leadership did take
place. As a consequence, the existence
of an oral nomination cannot on the balance of probabilities be ruled
out.
[137]
Secondly, the undisputed evidence by the widow of the late leader,
Mrs Joyce Shembe, demonstrates that apart from the fact
that the late
leader accorded the second appellant much respect as an Inkosi of the
area in which he was resident, the late leader
regarded the second
appellant as his brother.  This finds corroboration in the
evidence of the second appellant that whilst
the late leader was
still residing at the Mbeka homestead, he and the late leader were
sharing a bed.  The evidence of a close
and trusting
relationship between the second appellant and the late leader also
finds support in the evidence of the respondent,
that when he was
accused of plotting to unseat the late leader, he, the respondent,
appealed to the second appellant to intercede
with the late leader on
his behalf, which the second appellant did with success.
[138]
In the light of the undisputed longstanding close relationship of
trust and mutual respect that existed between the late leader
and
second appellant, it is more probable than not that the late leader
confided in the second appellant who should succeed him
as the church
leader.  It cannot therefore safely be concluded that the second
appellant is untruthful when he says that the
late leader shared a
succession secret with him.
[139]
Thirdly, when Sibisi whispered into the ear of the second appellant
that the late leader had nominated the respondent as his
successor,
the reaction of the second appellant to such information demonstrated
to Sibisi that the second appellant was amazed.
He then
rhetorically enquired from Sibisi whether the late leader had even
overlooked his youngest son, Simangaliso.  The
reaction and
inquiry by the second appellant, in my judgment, indicated that the
second appellant was astonished to hear from Sibisi
something
different from what the late leader had communicated to him.
This serves to show that there is a ring of truth
in that the late
leader had confided in the second appellant that the first appellant
would succeed him in his position as the
church leader.
[140]
Fourthly, nomination of the first appellant as the successor to the
late leader would according to the evidence of both Buthelezi
and
Sibisi be appropriate and ‘one hundred percent acceptable’.
It therefore, follows that it would not be impossible,
improbable or
anomalous for the late leader to nominate and recommend the first
appellant for appointment as his successor.
In the premises, it
could not be a far-fetched thing that the late leader had orally
nominated the first appellant as his successor.
The evidence
considered in its entirety in this matter does not exclude the
possibility of the existence of an oral nomination.
Nor can it be
said that such nomination is improbable in the light of the evidence
of Buthelezi, the attorney, and Sibisi, the
Church Secretary-General,
as to the possibility and appropriateness of the appointment of the
first appellant as the successor
to the late leader. Both such
witnesses had been called by the respondent to testify in his favour.
As a consequence, I can safely
conclude that, in the present matter,
the probabilities are such that the late leader also orally nominated
the first appellant
as his successor regard being had to the
sufficiency of the evidence presented in this matter relating to the
making of such oral
nomination and to the fact that the Deed of
Nomination was drafted in the year 2000. Although it has been argued
that the letter
allegedly delivered to Buthelezi on 16 March 2011
served to confirm the Nomination Deed, such letter does not bear any
date and
nor has any evidence been tendered to show when it was
drafted. This, therefore, creates a space for various possibilities
as to
when the letter was or could have been drafted. Accordingly, in
the circumstances of this case, it cannot be said that the appellants

have failed to prove the existence of the oral nomination of the
first appellant by the late leader on the balance of probabilities.

Pushing the quantum of proof required in civil matters beyond this
point, will be unfair, unjust and prejudicial to the appellants.
[141]
It has been contended that the possibility exists that the late
leader was expressing ‘a mere wish’ that the first

appellant should succeed him as the church leader.  The
Oxford
Dictionary
defines the word ‘wish’ as a desire of something that
cannot or probably would not happen. The further meanings as
set out
in the
Oxford
Dictionary
are as follows: wanting to do something or asking someone to do
something or that something be done. It is always said that a person

has expressed his or her last wishes if he or she orders that
something should be done at or after his or her death. The latter

meaning of the word ‘wish’ or ‘wishes’ is
apropos to the present case as, according to the second appellant
as
well as Inkosi Qwabe, the late leader had previously expressed his
last wishes to the second appellant on three isolated occasions
and
to both the second appellant and Inkosi Qwabe on the fourth
occasion.   In terms of clause 8 of the Trust Deed,

the late leader was entitled and authorised to nominate and recommend
one or more persons for appointment as the titular head after
his
death.  Since the late leader could give effect to his last
wishes by nominating the first appellant as his successor,
his
utterances to the second appellant and to both the second appellant
and Inkosi Qwabe regarding succession, could not be said
to be the
expression of a ‘mere wish’, but, in my judgment, it was
a valid nomination which should be given effect
to.  In the
premises, the mere fact that the second appellant might not have
expressly or crisply put it at the funeral of
the late leader, when
announcing the first appellant as a new leader, alone, could not in
my view be a ground for concluding that
the oral nomination does not
exist.
[142]
Allowing the conduct of the second appellant at the funeral of the
late leader to cloud or nullify the existence of the oral
nomination
of the first appellant, by the late leader, in my opinion, will only
serve to defeat the last wishes of the late leader
and deprive the
executive committee, as the church leadership, an opportunity to
elect and appoint the titular head of the church
who shall
ipso
facto
also become the sole trustee of the trust, as the Trust Deed
directs.  Such an exercise by the executive committee of the

church will not only be consonant with the provisions of s19(3) of
the Constitution of the Republic of South Africa, Act 108 of
1996,
governing all the citizens of this country, but it will make it
possible for the broader church community (congregation)
to have a
church leader of its own choice.  This will, in my view, also
help to bring about peace and stability in the entire
congregation,
by bringing to finality the dispute to church leadership.
[143]
It has been argued on behalf of the respondent that the late leader
could not have nominated the first appellant as his successor
since
he had nominated and recommended the respondent for appointment as
the titular head of the church and sole trustee of the
trust.
In this regard, the evidence of Buthelezi establishes that the
conduct of the late leader was at sometimes unpredictable.

Buthelezi testified that at a certain stage the late leader signed an
agreement with Vukile Shembe the leader of the Ekuphakameni
section,
in terms of which he, the late leader, was to resign as the trustee
of the Nazareth Ecclesiastical Endowment Trust (the
trust) and allow
Vukile Shembe to take over as the trustee thereof, without consulting
or informing Buthelezi, his attorney. This
demonstrates that at some
stage the conduct of the late leader was somewhat unpredictable.
The argument that the late leader
could not have orally nominated the
first appellant as his successor after signing the Deed of Nomination
in which he nominated
and recommended the respondent as his successor
therefore does not hold any water.  The evidence and the
circumstances in
the present matter leave no other reasonable
inference to be drawn than that the late leader, by sharing
succession information
with the second appellant, tacitly mandated
the latter to make it known to the congregation and to give effect
thereto.
APPLICATION
of the TRUST DEED
[144]
The court
a
quo
held that the Trust Deed only finds application to the church
situated at Ekuphakameni.  Further, that only the Constitution

of Ebuhleni Church adopted in 1999 applies with regard to the
appointment of the titular head of the Nazareth Baptist Church,
Ebuhleni.  I assume that the court
a
quo
based its decision on the fact that the Nazareth Baptist Church is a
breakaway church from the Church of Nazareth (Shembe Religion),
which
has adopted its own constitution. While it is true and correct that
the Constitution only finds application to the Nazareth
Baptist
Church, Ebuhleni, the same cannot be said for the Trust Deed, for it
is applicable to both Ekuphakameni and Ebuhleni sections.
However,
for the new leader to become sole trustee of the trust he must first
be the titular head of the Church of Nazareth.
[145]
The Trust Deed was designed, among other things, to hold certain
immovable properties to be administered by the trust for
the benefit
of the church (Church of Nazareth). In fact, the trust was
specifically designed to benefit the members of the Church
of
Nazareth and orphaned children.  In addition, it makes provision
for the nomination and appointment of a successor to the
titular head
of the church, who also automatically becomes a sole trustee of the
trust.
[146]
On the death of his father, AK Shembe in 1995, the late leader was
appointed titular head of the church and the sole trustee
in terms of
the Trust Deed, which positions he held until his death.  It was
against that backdrop that Vukile Shembe, the
leader of Ekuphakameni
section, at a certain stage accused the late leader of mismanaging
church funds in that he was living a
lavish style of living, using
church funds.  This provides sufficient proof that the late
leader was the sole trustee of the
trust in which the members of
Ekuphakameni section are also beneficiaries.
[147]
The constitution was drafted and adopted by the church membership and
approved by the titular head of the Nazareth Baptist
Church in 1999,
as it was needed by the church in its dealings with various
institutions. In order to apply for tax exemption from
SARS and to
register as a church, the church needed a Constitution.
However, the Constitution also makes provision for the
nomination and
appointment of a titular head as the successor to the late titular
head.
[148]
In 1999 the late leader and his followers purported to break away
from the Church of Nazareth and formed the Nazareth Baptist
Church.
However, they continued acknowledging the same confession of faith
and following the teachings of the founder Isaiah Shembe.
The
late leader as the purported titular head of the new church also
continued to observe and follow the tenets of the Church of
Nazareth.
[149]
The trust does not contain a clause providing for its termination in
which event the trust should be terminated by operation
of law.
However, the Constitution makes provision for the dissolution of the
trust embodied in Protocol 293/1935 and the
incorporation of the
church under the Constitution upon the commencement of the
Constitution at the date of its approval by the
leader of the church.
[150]
It is common cause between the parties that the trust could not be
dissolved by means of a Constitution but by an order of
court.
Section 13 of the Trust Property Control Act 57 of 1988 authorises a
court to terminate the trust on application by
the trustee or any
person who in the opinion of the court has sufficient interest in the
trust property.  See
Ex
Parte Grice & another NNO: In
re
Edward Saunders Employees’ Trust; Ex Parte Grice & others
NNO: In re Estate E G A Saunders Will Trust
1984 (3) SA 84
(N) at 96D;
Curators,
Emma Smith Educational Fund v University of KwaZulu-Natal &
others
2010 (6) SA 518
(SCA) paras 24 and 25;
Gowar
& another v Gowar & others
2016 (5) SA 225
(SCA) para 34.
[151]
Nor has any evidence been tendered that either the late leader, as
the sole trustee, or any other interested person in the
property of
the trust has ever approached the court for an order terminating the
trust.  In the premises, the purported termination
and
replacement of the Trust Deed by the adoption and approval of the
church Constitution and transfer of movable and immovable
property of
the Church of Nazareth, governed by the provisions of the Trust Deed,
to a newly established church, namely the Nazareth
Baptist Church,
purported to be governed by the Constitution, was fundamentally
flawed and invalid.  As a consequence, it
could not produce any
force and effect.
[152]
Accordingly, all the positions of the Church of Nazareth created by
and held in terms of the Trust Deed are governed and regulated
by its
provisions to the exclusion of the Constitution of the Nazareth
Baptist Church adopted in 1999. No trust has ever been created
by the
Nazareth Baptist Church in respect of which the late leader could in
terms of the Constitution be entitled and authorised
to nominate and
appoint a sole trustee.
APPOINTMENT
of the SUCCESSOR in LEADERSHIP
[153]
In the Deed of Nomination, the late leader in his capacity as the
titular head of the Nazareth Baptist Church and sole trustee
of the
Church of Nazareth Ecclesiastical Endowment Trust, nominates and
recommends Vela Muhle Shembe, the respondent, for appointment
as the
Titular Head of the Church and the sole trustee of the trust after
his death. The question that arises is whether such nomination
can be
given effect to in terms of the Trust Deed or the Constitution, which
the Nazareth Baptist Church adopted in 1999.
[154]
In terms of the Constitution, the late leader, in his capacity as the
titular head of the Nazareth Baptist Church, could only
nominate and
appoint the respondent, or anybody else, as his successor in office,
but the same cannot be said for the nomination
and appointment of the
respondent to the position of the sole trusteeship of the Church of
Nazareth Ecclesiastical Endowment Trust,
since the latter is governed
by the Trust Deed.  No trust has ever been created by the
Nazareth Baptist Church, other than
the trust in question, to which
the late leader in his capacity as the titular head of the Nazareth
Baptist Church could in terms
of the Constitution have legitimately
been entitled and authorised to nominate and appoint the respondent
or anybody else as a
sole trustee.
[155]
Since no valid act could flow from the conduct of the late leader and
church membership when purported to dissolve the trust
and to have
all the property of the Church of Nazareth transferred to the newly
established Nazareth Baptist Church, the late leader
did not cease to
be the titular head of the Church of Nazareth and the sole trustee of
the trust and the Nazareth Baptist Church
to be the beneficiary of
the trust. See
Police
& Prisons Civil Rights Union v Minister of Correctional Services
& others
[2006]
2 All SA 175
(E) para 75
.
It
follows, therefore, that the positions the late leader held at the
time of his death, i.e. of the church leadership and sole

trusteeship, were held by him under the Trust Deed. In the
circumstances, the reading of the Trust Deed and the Constitution
together,
as parties have submitted, will be of no use.
[156]
Notwithstanding the purported change of the church name from Church
of Nazareth as it is known in the Trust Deed, to Nazareth
Baptist
Church and the adoption  and approval of the Constitution, the
Trust Deed was, after 1999, and still is, applicable
to Nazareth
Baptist Church, Ebuhleni. The following provides the corroborative
facts: Firstly, the parties in the present proceedings,
in support of
their respective claims, seek reliance on the provisions of the Trust
Deed.  This is indicative of the fact
that the congregants of
Nazareth Baptist Church, Ebuhleni still recognise and follow the
Trust Deed as an authoritative document
of their church; regard being
had to the fact that all the disputants in these proceedings are the
congregants of Ebuhleni section.
[157]
Secondly, Reverend Nzama testified that, after his appointment in
2010 as the chairman of the executive committee, he approached
the
late leader and asked him for a document he would use as a guide in
the performance of his duties and functions as a chairman;
the late
leader gave him the Trust Deed.  This also finds corroboration
in the evidence of attorney Buthelezi that, since
1995, and until
three years before the institution of these proceedings he was only
aware of the Trust Deed as an authoritative
document of the church.
It was only three years before these proceedings began that he became
aware of the existence of the
Constitution, when there was an
application against Sizwe Shembe.  Prior to that, the only
relevant document which had been
used in the proceedings was the
Protocol 293/1935 (Trust Deed).
[158]
The second impediment to giving effect to the order the respondent
seeks under the provisions of the Constitution is the manner
in which
the Deed of Nomination is couched. In terms of this document, the
late leader nominates and recommends the respondent
for appointment
to the positions of titular head of the Nazareth Baptist Church and
of sole trusteeship of the trust in question.
The Constitution does
not make provision for the nomination, recommendation and appointment
of a successor to the deceased titular
head whereas the Trust Deed
does.
[159]
Clause 10.1 of the constitution provides:
‘
The Head and Leadership of the
church shall during his lifetime nominate and appoint his successor
in office.’
This
clause simply nominates and appoints a successor and it does not make
any provision for recommendation, which is suggestive
of the fact
that someone else is seized with the power or authority to make such
an appointment;  whereas clause 8 of the
Trust Deed entitles the
titular head of the church to nominate and recommend any person,
amongst the pastors or lay church members
of the executive committee,
for appointment as the titular head of the church, who shall upon his
appointment automatically become
the sole trustee of the trust. The
Deed of Nomination is modelled on the Trust Deed.
[160]
Although the Constitution makes provision for the nomination and
appointment of the successor to the titular head of the church
the
Trust Deed is best placed to give guidance and direction in the
determination of the question relating to the late leader in
this
matter.
[161]
In my judgment, it therefore stands to reason, that in order to give
effect to the ‘nomination’ and ‘recommendation’

of the respondent for the appointment as the titular head and sole
trustee of the trust, this Court must have recourse to the Trust

Deed, which empowers and authorises the executive and advisory
committee to elect a titular head of the church in the event of
the
vacancy occurring at the office of the titular head.
[162]
In interpreting the words used in the Deed of Nomination this Court
should draw analogy from the fundamental tenet of statutory

interpretation as contained in
Cool Ideas 1186 CC v Hubbard &
another
2014 (4) SA 474
(CC) para 28; which was cited in
Premier
Foods (Pty) Ltd v Manoim & others
2016 (1) SA 445
(SCA) para
42.  The court in
Hubbard
held that:
‘
A fundamental tenet of
statutory interpretation is that the words in a statute must be given
their ordinary grammatical meaning,
unless to do so would result in
absurdity.  There are three important interrelated riders to
this general principle, namely:
(a)
that statutory provisions should always be interpreted purposively;
(b)
the relevant statutory provision must be properly contextualised; and
(c)
all statutes must be construed consistently with the Constitution,
that is, where reasonably possible, legislative provisions
ought to
be interpreted to preserve their constitutional validity . . .
’
Similarly,
in my view, the Trust Deed in question or any other instrument must
be interpreted purposively so to achieve equitable
results.
[163]
The emphasis should be placed on the use of the words, ‘nominate’
and ‘recommend’, Vela Muhle Shembe
for ‘appointment’.
In order to have better understanding and application of such words
in the present matter
they should be given their ordinary grammatical
meaning.
[164]
The
Oxford
Dictionary
defines the word ‘nominate’ as to ‘put forward as a
candidate for election or for an honour or award’.
It
defines the word, ‘recommend’ as to ‘put forward
with approval as being suitable for a purpose or role’.

The
Dictionary
of Contemporary English
(1982) defines it as, ‘suggest someone.’  The
Oxford
Dictionary
defines the word ‘appointment’ as a process of appointing
someone.  The
Dictionary
of Contemporary English
defines it as, ‘put in or choose for a position, job.’
[165]
If the words, ‘nominate’, ‘recommend’ and
‘appointment’, are given their ordinary grammatical

meaning, it becomes more apparent that the late leader did not
actually appoint the respondent as the titular head and the sole

trustee of the trust but he merely put him forward for election and
appointment, by the relevant executive committee as an approved

suitable candidate.
AUTHORITY
OF THE EXECUTIVE COMMITTEE
[166]
The Executive Committee derives its power or authority to elect the
next leader from clause 8 of the Trust Deed.  The
clause
requires the Executive Committee, upon the office of the titular head
becoming vacant, to elect a successor to that office,
as outlined
above. If the deceased titular head has recommended certain names
from whom his successor is to be appointed, the Committee’s

choice is limited to the persons whose names have been recommended by
the deceased titular head for appointment. However, if only
one
person is recommended, the Committee must elect such person as the
titular head of the Church.
[167]
The Executive Committee must elect a person best suited to occupy the
position of the titular head of the church.  In
the performance
of such function it is required to act fairly, honestly and
impartially.  However, Mr Findlay for the respondent
has argued
that, as the present Executive Committee was appointed in terms of
the Constitution, it does not have power to appoint
the successor to
a titular head.
[168]
Since the conduct of the late leader and the church membership
purporting to transfer the assets of the Church of Nazareth
to their
newly established church, the Nazareth Baptist Church, and to
dissolve the trust by mere adoption of the Constitution
was invalid,
the Trust Deed is still valid and binding on the church and on the
late leader as the titular head of the Church of
Nazareth and the
sole trustee of the trust, respectively.
[169]
As a consequence, the provisions of the Trust Deed apply to all the
actions of the late leader, which he performed both in
his capacity
as the church’s titular head and as the sole trustee of the
trust, and to the results of those actions.
See also M I
Madondo
The
Role of Traditional Courts in the Justice System
(2017) at p 49 para 100.  In which event, when the late leader
purported to appoint the Executive Committee under the constitution

in 2010, in particular; his conduct must be deemed to have taken
place under the provisions of clause 6 of the Trust Deed instead.

Therefore, it follows that the executive committee the late leader
purported to appoint under the provisions of the constitution
in
2010, has in terms of clause 8 of the Trust Deed, power and authority
to elect and appoint the church’s titular head and
the sole
trustee of the trust, as the clause directs.
[170]
The respondent contends that the late leader nominated him in writing
as his successor, whereas the first appellant contends
that the late
leader orally nominated him as his successor.  Both nominations
were in accordance with the church practice
officially announced at
the funeral of the late leader on 3 April 2011. Since then the first
appellant, Unyazilwezulu, became the
titular head of Ebuhleni, and
likewise the respondent, Imisebeyelanga, assumed the position of
being the titular head of Thembezinhle
which did not exist before.
Both are performing duties assigned to them in terms of the
announcement.
[171]
The handwriting experts have advanced detailed reasons for their
conclusion that the signature on the Deed of Nomination was
that of
the late leader.  On the other hand, the evidence, considered in
its entirety, does not exclude both the possibility
and probability
of the existence of the oral nomination of the first appellant by the
late leader as his successor. On the balance
of probabilities it can,
therefore, safely be concluded that the late leader also orally
nominated the first appellant as his successor
in the church
leadership.  As a result, the two contestants for the positions
of the church’s titular head and sole
trusteeship of the trust
are the respondent, Vela Muhle Shembe, and the first appellant,
Mduduzi Shembe
[172]
In terms of clause 8 of the Trust Deed the present Executive
Committee, appointed in 2010, has the duty to elect and appoint
the
church’s titular head and the sole trustee of the trust from
the two contestants.  In order to ensure impartiality
and
fairness in the execution of such duty the vote must be by secret
ballot and be supervised by the delegation of the Independent

Electoral Commission (IEC) or by a delegation from any other
independent and impartial body the parties may agree upon.
COSTS
OF APPEAL
[173]
Since in these proceedings both parties have been seeking clarity on
the matter, in pursuit of the last wishes of the late
leader, and
intending to reach finality on the appointment of a person best
suited to occupy the positions of the church’s
titular head and
sole trusteeship of the trust, in all fairness, in my view, each
party must be ordered to pay its own costs of
appeal.
APPEAL
AGAINST COST ORDERS
[174]
With regard to the appeal against the costs order granted under case
number 6259/2011, that the application was dismissed
without an order
as to costs, the respondent sought an order declaring the first
appellant to be in wilful and
mala
fide
contempt of court with regards to the order that had been granted on
15 April 2011 under case number 4265/2011.  The court
dismissed
this application on the ground that the respondent had failed to
discharge the onus of showing that the first appellant
had acted
contemptuously of such court order.  It follows that the first
appellant was the successful party and it is trite
that the costs
must follow the results.  However, the court
a
quo
did
not advance any reasons for not awarding the first appellant the
costs order.  In our judgment, the first appellant has
made out
a case for the upholding of the appeal against such order and for
awarding of a costs order in his favour.
[175]
In respect of the appeal against the costs order granted under case
number 4625/2011, that the rule
nisi
is discharged in respect
of the four interlocutory applications where no order as to costs was
made, it is not clear on what grounds
the appellants rely for their
claim that the court
a quo
erred in not awarding the costs in
their favour.  Nor have they shown that in so doing the court
a
quo
did not judiciously or properly exercise its discretion.
We are therefore not satisfied, in this regard, that the appellants

have made a case for the award of costs in their favour.
ORDER
[176]
On the premises, the following order is made:
(a) The appeal succeeds;
(b) The Executive
Committee of the Nazareth Baptist Church, Ebuhleni, is directed to
elect and appoint a titular head of the church
and the sole trustee
of the trust from the two contestants, namely Vela Muhle Shembe, the
respondent, and Mduduzi Shembe, the first
appellant, within sixty
(60) days of the date of this judgment.  Such election shall be
by a secret ballot and be supervised
by the delegation of the
Independent Electoral Committee (the IEC) or by a delegation from any
other independent and impartial
body the parties may agree upon, such
agreement shall be tendered to this Court within five (5) days from
the date of the agreement;
(c) Each part to pay its
own costs;
(d) The appeal against
the costs order granted under case number 6259/2011 is upheld and the
respondent is ordered to pay the costs
of the application, and such
costs to include the costs of two counsel;
(e) The appeal against
the costs order granted under case number 4625/2011 is dismissed.
Mnguni
et Poyo Dlwati JJ:
[177]
We have had the benefit of reading the judgment prepared by the
Deputy Judge President, Madondo. We are in agreement with
his
exposition of the background to this appeal, an order granting
condonation, his narration of the church history and the instruments

governing the administration of the church and the succession to the
office of the Titular Head and the sole trustee of the Trust.
We,
however, express our reservations in his assertion that the Church of
Nazareth is an African traditional church and therefore
that in
churches of this nature the application of the common law is much
blended with the application of traditional law and customs.
Our
reservations stem from the fact that this assertion is not supported
by the evidence adduced in the court a quo.
[178]
We are in agreement with the interpretation of the provisions of both
the Trust Deed Protocol 293/1935 and the Constitution
of the Nazareth
Baptist Church and their applicability in these proceedings. We are
also in agreement with his reasoning and ultimately
the conclusion he
reached with regards to the existence of the Deed of Nomination,
wherein Mbusi Vimbeni Shembe (the late leader)
nominated Vela Muhle
Shembe (the respondent) as Titular Head of the Nazareth Baptist
Church at Ebuhleni. We regret that we are
constrained to differ with
his reasoning and conclusion on the existence of the oral nomination
of the first appellant. In our
view the court a quo was correct in
concluding that the late leader nominated the respondent as Titular
Head of the Nazareth Baptist
Church as appears on the Deed of
Nomination and supported by the letter received by Buthelezi
Attorneys on 16 March 2011 for the
reasons which follow.
[179]
The salient facts of this appeal are set forth in the judgment of
Madondo DJP. We shall therefore refrain from repeating them
except in
so far as it may be necessary to do so in order to give completeness
to our reasoning. At the outset it is necessary
to set out the test
applicable when evaluating evidence in a civil trial. In
Gates
v Gates
[1]
Watermeyer JA said:
‘
Now in a
civil case the party, on whom the burden of proof …lies, is
required to satisfy the Court that the balance of probabilities
is in
his favour, but the law does not attempt to lay down a standard by
which to measure the degree of certainty of conviction
which must
exist in the Court’s mind in order to be satisfied
’
.
Ponnan
JA in
Pather
& another v Financial Services Board & others
[2]
quoted with approval from
Davidson
& Tatham v Financial Services Authority
[3]
where it was stated:
‘
We next ask how we should apply
the civil standard of proof. In the light of all the authorities we
conclude that there is a single
civil standard of proof on the
balance of probabilities but that it is flexible in its application.
The more serious the allegation,
or the more serious the consequences
if the allegation is proved, the stronger must be the evidence before
we should find the allegation
proved on the balance of
probabilities
’
.
[180]
At para 29 of the same judgment the learned Judge of Appeal
emphasised that:
‘
The civil
standard of proof does not necessarily mean a bare balance of
probability. The inherent probability or improbability of
an event is
a matter to be taken into account when the evidence is assessed. When
assessing the probabilities a court will have
in mind that the more
serious the allegation, the more cogent will be the evidence
required’.
Finally
in
African
Eagle Life Assurance Co Ltd v Cainer
[4]
the court held that where there are probabilities, the finding of
fact is made on a balance of probabilities. It is only where
there
are no probabilities either way that the court must be satisfied that
the story of the litigant upon whom the onus rests
is true and the
other false; See
African
Eagle supra
at p237F-H.
[181]
As has been correctly observed by Madondo DJP, it has become the
practice of the church from inception that each incumbent
leader
would nominate a successor during his lifetime but keeping the
identity of the successor a secret to avoid being killed
by other
contenders. This has become more important in order to avoid the
bloodbath that occurred when J G Shembe died and his
son, Londa
Shembe, did not accept that Isaiah Shembe had nominated A K Shembe to
succeed J G Shembe as the Titular Head of the
church and the sole
trustee. It is also apparent from the history of the church that this
nomination need not be in writing.
[182]
The evidence of Dr Charles Roberts who treated the late leader since
September 2007 until his death was that on three different
occasions
he had raised the issue of succession within the church with the late
leader. On all three occasions the late leader
assured him that he
should not worry because the matter was in the hands of his lawyer
and everything was under control. On 8 March
2011 the late leader had
said the following to him when he asked about the issue of
succession:
‘
My
lawyer will announce what’s appropriate at the right time.’
[5]
He
conceded that the late leader did not tell him who his successor
would be nor did he tell him the name of his lawyer. Dr Roberts’

impression was that the late leader had put in place all the
necessary arrangements in relation to the issue of succession.
[183]
Mr Buthelezi, an attorney practising in Durban and, who was the legal
representative of the late leader and the church since
1995,
testified that the late leader had instructed him personally to
prepare the Deed of Nomination. On the day of receipt of
the
instructions to prepare the Deed of Nomination, the late leader told
him that he was doing that to avoid a succession struggle
such as he
had witnessed involving his late father, A K Shembe. The late leader
told him that for that reason he wanted to nominate
his successor in
writing. He then requested the late leader to provide him with a copy
of the identity document of the person that
the late leader was going
to nominate as his successor. At that time the copy of the identity
document of that individual was not
at hand and it was sent to his
office after some time. He prepared the Deed of Nomination which was
then taken to the late leader
for his signature. The Deed of
Nomination was returned to his office within a couple of days after
having been signed by the late
leader and two witnesses. He kept it
in his safe until after the death of the late leader. As already
stated, the signature on
the Deed of Nomination has been found by the
court a quo and correctly endorsed in Madondo DJP’s judgment to
be that of the
late leader. He testified that if the late leader had
changed his mind about the person he had nominated, he would have
told him
during his consultations with him, the last of which was
during July 2010.
[184]
In the second paragraph of the Deed of Nomination the late leader
specifically directed that his successor should be publicly
announced
at his funeral to avoid any dispute regarding the leadership of the
church. He did not discuss the issue of nomination
with the late
leader again until he received a letter written by the late leader
which was delivered by Mr Sibisi to his office
on 16 March 2011.
During the course of the trial the appellants’ counsel made
much of the fact that as this letter was undated,
it remained unclear
as to the date on which it was written. In our view, this assertion
has no merit. We say this because it is
safe to accept, as the
evidence demonstrates, that even though it might not have been
written on 16 March 2011, the late leader
sent Mr Sibisi to Mr
Buthelezi’s office to deliver the letter on the date in
question. The evidence at the trial was that
the late leader was in
control of the church affairs until his demise and was
compos
mentis.
There is no reason therefore why he could not have sent Mr Sibisi to
Mr Buthelezi’s office on 16 March 2011 to deliver the
letter.
[185]
Mr Buthelezi testified that he kept the signed Deed of Nomination in
the safe after it was returned to him in 2000. He thereafter
did not
deal with it. He testified that he repeatedly assured the members of
the church, who were worried about what would happen
to the
leadership of the church should the late leader die before the issue
relating to the settlement was resolved, that the late
leader had
made a written nomination. His evidence was that the second appellant
attended some of these meetings.
[186]
Mr Sibisi testified that on 16 March 2011 the late leader gave him an
envelope and ordered him to deliver it to Attorney Buthelezi.
The
appellants’ counsel in cross- examination put it to him that
the late leader’s wife would say that this did not
happen,
because during that period the late leader was incapacitated, ill and
lying on his bed almost prone to trembling. In his
response Mr Sibisi
stated that the late leader’s wife would be lying when she said
that. It is common cause that this letter
is a self-standing letter
accepted by all handwriting experts as having been written and signed
by the late leader. Importantly,
the letter reinforced the late
leader’s nomination of the respondent as his successor and also
reminded Mr Buthelezi to announce
the respondent as the successor on
the date of his funeral.
[187]
Mr Cebekhulu’s evidence was that the late leader asked him to
act as a go-between him and the respondent. Importantly,
he testified
that the late leader asked him to be the respondent’s
babysitter because the respondent was going to take over
from him.
The late leader asked him to deliver the respondent’s identity
document to Attorney Buthelezi. He testified further
that he told the
second appellant’s father that the respondent was to succeed
the late leader.
[188]
From an analysis of evidence adduced before the court a quo, it is
clear that the only lawyer that dealt with the late leader’s

personal issues and those relating to succession was Mr Buthelezi.
[189]
Having given careful consideration to the evidence of Mr Buthelezi
that the late leader had instructed him personally to prepare
the
Deed of Nomination and had sent the respondent’s identity
document to him for that purpose; the evidence of  Dr
Roberts to
the effect that the late leader told him that his lawyer would make
the announcement at the appropriate time; and the
evidence of Mr
Sibisi that he delivered the letter to Mr Buthelezi’s office on
16 March 2011, we are satisfied that all this
evidence leads to the
ineluctable conclusion that it would be highly improbable for the
late leader to have made another nomination
other than the one
contained in the Deed of Nomination.
[190]
Turning to the evidence of Mrs Joyce Shembe, the wife of the late
leader, it is common cause that she did not play any role
in the
church matters. On her own version, when her late husband was
critically ill she could not register much in her mind as
to what was
taking place. She could not recall the sequence of the dates and a
visit by a group of men from Umlazi that came to
see the late leader
on 16 March 2011 to give him the offerings. She could not say with
certainty that the late leader was critically
ill on 16 March 2011.
She conceded that she and the late leader were living in separate
structures within the same yard. She conceded
that the only time that
she started spending more time in the house of the late leader was
when the late leader became critically
ill. The evidence demonstrates
that she was not a conduit that conveyed messages to and from the
late leader. Her evidence that
she did not see Mr Sibisi collecting a
letter from the late leader on 16 March 2011 does not displace the
direct evidence of Mr
Sibisi in this regard. She was not mentioned as
being present when the second appellant and Inkosi Qwabe visited the
late leader
on 15 March 2011. Although she recalled an incident when
the second appellant came in the company of Inkosi Qwabe to visit the
late leader shortly before the late leader died, she testified that
she was not aware of what was discussed by the three men. She
also
testified that the late leader was in charge of the church affairs
and made the final decisions pertaining to the church until
he died.
[191]
With regard to the evidence of the second appellant, the starting
point would be to capture what he said at the funeral of
the late
leader. He said the following:
‘…
say
I will do what my father, inkosi Amaqadi, did during iNyanga Yezulu’s
era in 1976 when he had descended from the top of
Nhlangakazi, the
holy mountain, iNkosi said take this staff….. and lead these
people, which he did, that is iNyanga Yezulu
in other words, he was
installed or appointed by the iNkosi aMaQadi Mzonjani, my father, as
the titular head of the church….’
[6]
He
continued later and said
:
‘
Your leader
comes from the house or branch of iNyanga Yezulu, not from outside
thereof, do not be confused, I have all the rights
as iNkosi of the
tribe, I am in charge, your leader MaNazaretha, is Mduduzi
Shembe.’
[7]
[192]
It is common cause that at no stage was the second appellant asked by
the late leader to make an announcement at the late
leader’s
funeral that the first appellant was to succeed  the late
leader. Instead the second appellant testified that
he took it upon
himself to make the wishes of the late leader known to the
congregation.
[193]
In fact the second appellant made two speeches on the day of the
funeral. The first speech was at a service before the funeral
program
began on a site adjacent to the place where the funeral service was
to take place. The second speech was at the podium
of the funeral
service. It is common cause that during both speeches the second
appellant did not make any mention that the late
leader made an oral
nomination to him to the effect that the first appellant was to be
his successor. He confirmed this in his
evidence. It is apparent that
in both speeches he made it clear that as the traditional leader of
the area he had all the rights
to announce the successor and that he
will appoint the new leader.
[194]
When asked about this in his evidence in chief, he did not provide a
direct answer as to why he had not told the people at
the funeral
that what he was telling them was what he had been told by the late
leader or convey that it was the late leader’s
instructions or
wish that he had been secretly told; instead of telling them that he
was talking as Inkosi of the Ngcobo clan.
He testified that he was
announcing or making known the wishes of the late leader, yet of
course, this is different to what he
said at the funeral.
[195]
He testified that when he telephoned Mr Buthelezi, he wanted to check
with him whether the name that Mr Buthelezi had matched
the one the
second appellant had in order to avoid conflict. On this aspect Mr
Buthelezi testified that the second appellant said
to him that he
should tell him the name of the nominated successor.
[196]
We do not share the same views as those expressed by Madondo DJP in
paragraph 142 of his judgment.
[8]
His suggested approach
seems to be a middle course and in those circumstances we would have
thought that there would have been nothing
to be said in support of
this appeal on the issue of oral nomination. In our view to accept
this approach would be turning the
clock back after so many years and
is inimical to the instruments governing the administration of the
church and succession to
the office of the Titular Head and the sole
trustee.
[197]
Pausing here for a moment, it is important to record that the second
appellant conceded that Mr Sibisi had informed him a
day before the
funeral that the late leader had nominated the respondent. The
evidence demonstrates that the second appellant knew
that Mr
Buthelezi was present with a written nomination and intended to
pre-empt Mr Buthelezi’s announcement with his own
announcement
as stated in his speech before the funeral. Finally, we find it
incomprehensible to regard what was allegedly said
by the late leader
to the second appellant in the presence of Inkosi Qwabe to be his
last wishes when the evidence demonstrates
that the leader sent Mr
Sibisi to deliver a letter to Mr Buthelezi on 16 March 2011 directing
Mr Buthelezi to announce his successor
at his funeral. It is common
cause that all the alleged wishes were communicated before 16 March
2011.
[198]
As
already stated, he conceded in his evidence in chief that he had no
right to appoint a church leader but had the right to express
the
wishes of the late leader. This, however, is very different to what
he said at the funeral. When asked in his evidence in chief,
whether
it was true that his father had nominated A K Shembe to lead the
church his answer was that his father had merely instructed
A K
Shembe to take the staff and lead the people to the holy mountain of
Nhlangakazi as a chief. However, this again differs from
what he said
at the funeral.
[199]
When it was put to him that he was invoking the amaQadi clan custom
on succession which dictates that the eldest son would
take over from
his father, his response was that, if they are subjects of the
amaQadi clan that cannot be overlooked. Before the
advent of
democracy and the Constitution succession followed the primogeniture
principle. It is so that in terms of customary law,
succession can be
from father to son. Hence those left behind in the past would have
expected the late leader to be succeeded by
his son. In this case the
church is governed by Protocol 293/1935 which discards traditional
customary practices. The history of
the church demonstrates that it
is not necessarily a given that an elder son would succeed the
incumbent Titular Head, and for
that reason the incumbent head
nominates his successor.
[200]
Rev M G Gumede’s evidence was that it was known by the
committee in charge of the funeral arrangements that an announcement

of a new leader was going to be made at the funeral because of the
history of the church. It was therefore expected that it would
be
made by Mr Buthelezi as he was known to be the late leader’s
lawyer. Rev Gumede testified that the strange part of the
second
appellant’s announcement was that he seemed to have taken it
upon himself to make the announcement by virtue of his
position as
Inkosi, which was not the practice.
[201]
In any event the evidence of the second appellant during the trial
and in his affidavits deposed to in these proceedings was
that the
late leader had told him of his wish that the first appellant would
take over after his death. His evidence therefore
must be looked at
in light of what Inkosi Qwabe had said in his evidence before
analysing the word ‘wish’. Inkosi Qwabe
testified that on
10 January 2011 he went to Ebuhleni and met with the second
appellant. They saw that the congregation had gone
to the mountain
but the late leader had not gone. They went to visit the late leader.
They exchanged greetings and the late leader
addressed the second
appellant and told him that he was aware that his fathers and
forefathers were moving around him and they
were wishing to have him
join them on the other side. He proceeded, to state:
‘
That may be
the case, however, you do not have to bother, he is addressing
himself to iQadi, my son, in his, words, he was referring
to MD, ‘is
there to take over’.
[9]
From
there Inkosi Qwabe and the second appellant testified that they were
overwhelmed by what the late leader had said and they
left his house.
[202]
From this, it is not clear whether the late leader made a specific
reference to a particular son or just said “my son”
would
take over. It is also not clear what it is that that son would take
over. It was only under cross-examination that he disclosed
that the
late leader had said to the second appellant that he should not be
concerned; M D Shembe was available as the next leader.
The late
leader, however, did not specify that the second appellant should
make an announcement. He was asked as to why he did
not assume that
the late leader was referring to one of his other sons, and his
response was that:
‘
uThingo to
me is a god. Therefore I wouldn’t start questioning whether
he’s talking about other sons. To me it meant
MD. Therefore I
took him to be meaning or referring to MD’
.
[10]
[203]
In our view, therefore it is not clear whether the late leader made
reference to the first appellant when he said my son is
there to take
over or because he just said that my son will take over Inkosi Qwabe
and the second appellant assumed that reference
was being made to the
first appellant. There were various contradictions by Inkosi Qwabe in
this regard. He, also under cross-examination,
testified that the
late leader had prefaced his talk by saying “as I’ve told
you earlier” and yet this was not
his evidence in chief.
[204]
It was also apparent in his evidence that he had made a speech at the
late leader’s funeral. He did so after the second
appellant’s
speech. When asked why he did not confirm at the funeral that he was
present when the late leader told the second
appellant who his
successor would be, his response was that he did not see that as
being necessary as the second appellant had
announced the name. He
emphasised that he was not there to support the second appellant in
his speech.
[205]
The court a quo formed a poor opinion of the two witnesses (the
second appellant and Inkosi Qwabe), as much as we find, it
said:
‘
When one
reads the evidence in regard to the oral nomination upon which the
respondent replies, in my view it has one failing. In
both the
testimony of Nkosi Ngcobo and Nkosi Qwabe we do not have either in
direct speech or indirect speech what the late leader
actually
said’.
[11]
[206]
We find it highly improbable that the late leader would have
disclosed his wish in the presence of Inkosi Qwabe because of
the
secretive nature of the issue. It was not necessary for the late
leader to repeat his wish in the presence of Inkosi Qwabe
as the
second appellant said that he had already told him his wish on two
separate occasions. We have no doubt that Inkosi Qwabe
would have
told the congregation that indeed he was present when the late leader
made known his wishes to the second appellant.
We find that Inkosi
Qwabe did not tell the congregation about that because it never
happened.  In our view, this was a knee
jerk reaction on the
part of the second appellant and Inkosi Qwabe when the second
appellant realised that he did not have the
power that he purported
to exercise when he announced the first appellant as the successor to
the late leader at the funeral. On
the evidence before us we find
that this aspect of nomination is a fabrication.
[207]
Finally on the issue as to whether the late leader’s wish can
be elevated to reality or a nomination in casu, the second

appellant’s evidence in this regard was that the late leader
had expressed to him his wish that the first appellant would
be his
successor upon his death. As correctly pointed out in Madondo DJP’s
judgment, the word wish in the
Oxford
Dictionary
is defined as a desire of something that cannot or probably would not
happen. We have also considered the other meanings as referred
to in
the judgment and wish to include the following definition from
Collins
English
Dictionary
:
[12]
‘
1. to want
or desire (something, often that which cannot be or is not the case).
2. to feel or express a desire or hope
concerning the future or fortune of.
3. to desire or prefer to be as
specified.
…’
.
In
our view, all these definitions seem to point to the fact that when
one expresses a wish there is no certainty that it will eventuate.

Therefore, a wish cannot be elevated to a reality which would be a
nomination in this matter. Something more would be required

especially in the light of the Deed of Nomination and the letter
delivered to Mr Buthelezi on 16 March 2011.
[208]
After giving the issue careful thought we remain unpersuaded that the
court a quo erred in concluding as follows:
‘
I find it
inexplicable that if the late leader had indeed said to Nkosi Ngcobo
that he wished and he desired that Mduduzi Shembe
his son should
succeed him, then why did Nkosi Ngcobo not expressly say so at the
funeral and why did the late leader not ask the
inkosi to announce
this. In my view that would have been the most opportune moment for
the inkosi to have said so. Instead why
did Nkosi Ngcobo refer to the
fact that he is making the announcement as to who should succeed the
late leader on the basis that
he is the inkosi of the predominant
tribe which dominates that area where the church is situated.
Moreover we do not have from
Nkosi Ngcobo as to what the late leader
in fact and actually said to him. It is for these reasons that I
conclude that the respondent
had failed to discharge the onus which
rest upon him to show on a balance of probabilities that there had in
fact been an oral
nomination.’
[13]
[209]
In our view the reasons and findings of the court a quo are
unassailable on the issue that there was only one nomination made
by
the late leader wherein he nominated the respondent as the Titular
Head and sole trustee.
[210]
What remains to be considered is the question of costs. The general
rule is that in the ordinary course costs follows the
result. In
Giddey
NO v JC Barnard & Partners
[14]
O’Regan J said:
‘
The ordinary
rule is that the approach of an appellate court to an appeal against
the exercise of a discretion by another court
will depend upon the
nature of the discretion concerned. Where the discretion contemplates
that the Court may choose from a range
of options, it is a discretion
in the strict sense. The ordinary approach on appeal to the exercise
of a discretion in the strict
sense is that the appellate court will
not consider whether the decision reached by the court at first
instance was correct, but
will only interfere in limited
circumstances; for example, if it is shown that the discretion has
not been exercised judicially
or has been exercised on a wrong
appreciation of the facts or wrong principles of law. Even where the
discretion is not a discretion
in the strict sense, there may still
be considerations which would result in an appellate court only
interfering in the exercise
of such a discretion in the limited
circumstances mentioned above.’  (Footnotes omitted.)
[211]
The court a quo dismissed with no order as to costs the application
under Case Number 6259/2011 on the ground that the respondent
had
failed to discharge the onus of showing that the first appellant had
acted contemptuously of the court order. The first appellant
was the
successful party in the application under Case Number 6259/2011 and
the costs ought to have followed the result of that
application.
Having carefully considered this issue, we are satisfied that the
respondent has achieved substantial success in this
appeal.
Consequently, there seems to be no reason why the costs should not
follow the result.
__________
______________
MNGUNI
et    POYO DLWATI JJ
Appearances
Heard:
23 October 2017
Delivered:
11-12 April 2018
For
the Appellants:
ADV.
R.B.G. CHOUDREE SC
Assisted
By: ADV. U. MADHOO
INSTRUCTED
BY: Govender Mchunu & Associates
c/o
Stowell & Company.
REF.:
(Mr L. Govender)/(Sumaya Norgot)
TEL.:
031/309-83 38/033-845 05 00
For
the Respondent: ADV. A. FINDLAY SC
Assisted
BY: ADV. R.G. UNGERER
INSTRUCTED
BY: Trevor Nkosi Attorneys
c/o
Sipho Ngubane Incorporated
REF:
(Mr T. Nkosi)/ (S Ngubane)
TEL:
031-301 73 54/082-258 30 81
[1]
Gates v Gates
1939 AD 150
at 154-155.
[2]
Pather &
another v Financial Services Board & others
2018 (1) SA 161
(SCA) para 31.
[3]
Davidson &
Tatham v Financial Services Authority
[2006]
UKFSM 31
para 198.
[4]
African Eagle
Life Assurance Co Ltd v Cainer
1980
(2) SA 234 (W).
[5]
Vol. 6 pg460 lines 15 to 19.
[6]
Vol. 22 pg 2067 lines 14 to 21.
[7]
Vol. 22 pg 2068 lines 17 to 21.
[8]
‘
Allowing the conduct of the
second appellant at the funeral of the late leader to cloud or
nullify the existence of the oral nomination
of the first appellant,
by the late leader, in my opinion, will only serve to defeat the
last wishes of the late leader and deprive
the executive committee,
as the church leadership, an opportunity to elect and appoint the
titular head of the church who shall
ipso
facto
also become the sole
trustee of the trust, as the Trust Deed directs.  Such an
exercise by the executive committee of the
church will not only be
consonant with the provisions of s 19(3) of the Constitution of the
Republic of South Africa, Act 108
of 1996, governing all the
citizens of this country, but it will make it possible for the
broader church community (congregation)
to have a church leader of
its own choice.  This will, in my view, also help to bring
about peace and stability in the entire
congregation, by bringing to
finality the dispute to church leadership’.
[9]
Vol. 25 pg 2302 lines 5 to 15.
[10]
Vol. 25 pg 2321 lines 19 to 25.
[11]
Vol. 39 pg 3676 lines 22 to 25.
[12]
Collins English
Dictionary
10
ed (2009).
[13]
Vol. 39 pg 3679 lines 5 to 17.
[14]
Giddey NO v JC
Barnard & Partners
[2006] ZACC 13
;
2007
(2) BCLR 125
(CC) para 19.