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[2019] ZASCA 172
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Shembe v Shembe NO (957/2018) [2019] ZASCA 172 (2 December 2019)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case No: 957/2018
In the
matter between:
MDUDUZI
SHEMBE
FIRST
APPELLANT
NKOSI
MQOQI NGCOBO SECOND
APPELLANT
MBONGWA
FRIEND NZAMA THIRD
APPELLANT
and
NTOMBIFIKILE
PRIMROSE SHEMBE NO RESPONDENT
and
VUKILE
VUKUKHULE SHEMBE
AMICUS
CURIAE
Neutral
citation:
M Shembe v N Shembe NO
(957/2018)
[2019] ZASCA 172
(2 December 2019)
Coram:
Petse DP, Plasket and Mbatha JJA, Tsoka and Gorven AJJA
Heard
:
7 November 2019
Delivered:
2 December 2019
Summary:
Appeal
–
factual
findings of trial court
–
test restated
–
no basis for interference unless finding vitiated by
material
–
no material misdirections in
findings of trial court
–
appeal dismissed.
ORDER
On
appeal from:
KwaZulu-Natal Division
of
the High Court, Pietermaritzburg (Madondo DJP, Mnguni and Poyo Dlwati
JJ sitting as court of appeal):
The
appeal is dismissed with costs, such costs to include those
occasioned by the employment of two counsel.
JUDGMENT
Gorven
AJA (Petse DP, Plasket and Mbatha JJA and Tsoka AJA concurring):
[1]
This appeal concerns
leadership succession in the Nazareth Baptist Church. The previous
leader was Vimbeni Shembe (the late leader).
He died at his home at
Ebuhleni on 28 March 2011. The leader chooses his successor. His
choice is not made known during his lifetime.
If it was, the chosen
successor may well be killed. The appeal in no way involves religious
beliefs or doctrinal issues. It turns
purely on the facts. The crisp
issue is who the late leader chose to succeed him.
[2]
The appellants
initially contended that the sole choice of the late leader was his
son, the first appellant. He expressed that choice
orally. They also
initially contended that the signature on a written nomination of Mr
Vela Shembe, his nephew, was a forgery.
The appellants now accept
that it was indeed signed by the late leader. Their case on appeal is
that the late leader nominated
both his son and his nephew.
[3]
Vela Shembe applied for
an order declaring him to be the leader. This spawned a number of
other applications. Most were interlocutory
but one claimed that the
first appellant was in contempt of an order granted in another of
these applications. Nothing more need
be said about the contempt
application since this has been finally decided.
[4]
Jappie JP heard oral
evidence in the KwaZulu-Natal Division of the High Court, Durban (the
trial court). Twelve factual disputes
were identified in the
consolidated applications. The trial court distilled those to the
single issue of succession. It held that
the late leader chose Vela
Shembe, alone, to be his successor. The substantive order that was
granted reads:
‘That effect
be given to the Deed of Nomination wherein the late leader Mbusi
Vimbeni Shembe nominated Vela Muhle Shembe as
the appointed titular
head of the Nazareth Baptist Church at Ebuhleni.’
I
n
respect of all but the main application, the trial court declined to
make costs orders.
[5]
The trial court granted the
appellants leave to appeal to the full court of the KwaZulu-Natal
Division of the High Court, Pietermaritzburg
(the full court). Two
members (Mnguni and Poyo Dlwati JJ) upheld the judgment of the trial
court on the main issue. They ruled
that the trial court should have
granted the first appellant costs in the contempt application and
granted an order to that effect.
There is no appeal against this
costs order. A minority judgment (Madondo DJP) concluded that the
late leader chose both Vela Shembe
and the first appellant. The
appeal comes before us with the special leave of this court.
[6]
Before the judgment of the
full court was handed down, Vela Shembe died. For convenience sake, I
shall refer to Vela Shembe as Vela
and to the first appellant, Mr
Mduduzi Shembe, as Mduduzi. After initially identifying witnesses, I
shall refer to them by their
surnames for the same reason. No
disrespect is intended by this. T
he
respondent has been substituted for Vela in her capacity as the
executrix of his estate. Mr Vukile Vukukhule Shembe, was given
leave
before the hearing to intervene as
amicus
curiae
.
[7]
Some brief background to the dispute is
necessary. The founder of the church was Isaiah Shembe. He died on 2
May 1935. The church
he founded was based at Ekuphakameni. He was
succeeded as leader by a son, Johannes Galilee Shembe. Another son,
Isaack (as spelt
in the trust deed mentioned below), was appointed by
the founder as his heir. In 1935, this son formed the Church of
Nazareth Ecclesiastical
Endowment Trust to hold the founder’s
many immovable properties. The leader of the church was the sole
trustee. The trust
deed also dealt with other matters, including
succession issues in the church.
[8]
When Johannes Galilee Shembe died, bloody
conflict arose over who should succeed him. The contestants were his
brother and third
son of Isaiah Shembe, Amos K Shembe, and the son of
Johannes Galilee Shembe, Londa Shembe. This has not been resolved and
ultimately
led to splits in the church. Each grouping appears to
claim that it is the true expression of the church founded by Isaiah
Shembe.
One grouping, led by Amos K Shembe, ended up at Ebuhleni.
There is ongoing litigation on a number of issues arising from the
above.
Some of these are the subject of pending litigation in the
KwaZulu-Natal Division of the
High Court
.
[9]
The present succession dispute concerns the
Ebuhleni grouping and this grouping alone. Unless it is necessary to
distinguish it
from other groupings, I shall simply refer to this
grouping as the church. Nothing in this, or previous judgments in
this matter,
must be construed as pronouncing on anything other than
who the late leader chose as his successor. This includes the brief
history
set out above.
[10]
As mentioned, the trial court was asked to
resolve factual disputes. The approach on appeal is that factual
findings of a trial
court bind an appeal court unless it can be shown
that they are vitiated by material misdirection.
[1]
Neither judgment of the full court appears to have adopted this
approach. Both unfortunately strayed from the proper terrain of
an
appeal court. The full court was simply called upon to decide whether
any of the factual findings of the trial court could and
should be
interfered with on appeal.
[11]
The trial court made two foundational factual
findings in arriving at its conclusion. First, it found that the
constitution of the
church (the constitution) governed the question
of succession in the church. It found that the trust deed did not
apply to this
issue. Secondly, and based on the first finding, it
found that the late leader had nominated Vela as the sole appointed
leader
of the church. I shall deal with each in turn.
[12]
The trust deed was executed in 1935. It governed
all matters concerning the church as it existed then, including
succession to the
leader. Clause 8 is the relevant one:
‘Upon the
office of Titular Head of the Church of Nazareth becoming vacant the
Executive and Advisory Committee shall 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
that if the office should be rendered vacant by death and the
deceased 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 deceased Titular Head.’
In
1999, after the split, it is common ground that the church, led by
the late leader, adopted the constitution. Clause 10.1 of
the
constitution dealt with succession:
‘The Head and
Leadership of the church shall during his lifetime nominate and
appoint his successor in office.’
[13]
It can thus be seen that in both instruments, the
leader nominates. In the trust deed, there is a provision for the
leader to nominate
more than one potential successor. In such a case,
a body called the Executive and Advisory Committee decides between
the nominees,
but is obliged to appoint one of them. The leader does
not appoint. In the constitution, on the other hand, the leader both
nominates
and appoints. The nomination by the leader becomes
operative as an appointment on his death. No other body or procedure
is involved.
Also, the leader nominates and appoints ‘his
successor’. This connotes a single person. Two people cannot be
appointed
as successor. It thus squares with the nomination amounting
to an appointment after the death of the leader. It is accordingly of
some moment as to which of these instruments governed the succession
in the present matter.
[14]
The trial court found as follows:
‘[T]he
provisions of the trust deed insofar as the succession of leadership
and titular head of the church is concerned applies
only to the
church which had its headquarters at Ekuphakameni. There was no
evidence led before me that the trust deed was ever
adopted or used
or applied at the church which has its headquarters [at] Ebuhleni.’
From
the first sentence, it is clear that the second sentence relates only
to the succession issue. The first sentence is obviously
only
intended to support the conclusion that the trust deed did not apply
to the church. The trial court found:
‘[T]he
document that has to be given effect to in this dispute is the
Constitution.’
Of
course, this does not mean that the trust deed does not apply at all
to the church. It means only that the constitution is the
only
document which regulates ‘this dispute’ as to succession.
[15]
The appellants were asked to submit whether this
finding was in any way vitiated by misdirection on the part of the
trial court.
They were unable to do so. Only one submission was
proffered in response. This was that the terms of the written
nomination show
that it was made pursuant to the trust deed. The
substantive part of the nomination was as follows:
‘
DEED OF
NOMINATION OF TRUSTEE & TITULAR HEAD OF THE NAZARETH BAPTIST
CHURCH
I, the undersigned,
MBUSI VIMBENI SHEMBE, in my capacity as the Titular Head of the
Nazareth Baptist Church and sole Trustee of
the Church of Nazareth
Ecclesiastical Endowment Trust, do hereby nominate and recommend VELA
MUHLE SHEMBE (I.D. NO. 620224 5835 08 3)
for
appointment as Titular Head of the Church and sole Trustee of
the Trust after my death.
I specifically
direct that the nomination which I have made herein should be
publicly announced on the date of my funeral so as
to avoid any
dispute regarding the leadership of the Church.’
The
nomination nowhere states that it is made under the trust deed. It
certainly mentions leadership and trusteeship. The leader
of the
church has always functioned as the sole trustee of the trust.
Regardless of any disputes with other groupings which emerged
from
the mother church on the trusteeship issue, it is accepted as regards
the present dispute that the new leader will be the
new trustee. It
is therefore hardly surprising that the late leader mentioned both
offices. He regarded himself as both leader
and trustee. His
reference to both does not mean that the trust deed applies to
leadership succession.
[16]
The trial court took into account the evidence of
Mr Sibisi in this regard. He was the secretary general of the church
under the
late leader as well as his predecessor. The late leader had
granted him a general power of attorney over his affairs. He stated
clearly that the late leader wanted a constitution to govern
leadership and other matters of church administration. The
constitution
had been adopted after a number of gatherings of the
church membership. No issues had ever been raised which questioned
whether
the constitution applied in the life of the church. Clause 8
of the constitution provides that the leader and his committees must
carry out the provisions of the constitution. The trial court found
that: ‘. . . no evidence was led showing that the trust
deed
was ever adopted or used or applied at the church.’ In argument
before us, no evidence was pointed to in the record
which gainsaid
this finding.
[17]
The minority judgment misconstrued the findings
of the trial court. It held that:
‘The court
a
quo
held that the Trust Deed only finds application to the church
situated at Ekuphakameni.’
In
fact, as set out above, the finding was:
‘[T]he
provisions of the trust deed insofar as the succession of leadership
and titular head of the church is concerned applies
only to the
church which had its headquarters at Ekuphakameni.’
The
words ‘insofar as the succession of leadership and titular head
of the church is concerned’ are omitted from the
minority
judgment but are intrinsic to the approach of the trial court. It did
not hold that the trust deed did not apply at all,
only that it did
not apply to the succession of leadership in the church.
[18]
The minority judgment of the full court went on
to hold that only the trust deed applied to the succession issue. It
found that:
‘[A]ll 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.’
It
based this conclusion on its view that the constitution did not make
provision for succession to the position of sole trustee.
There are
difficulties with this approach. As has been mentioned, the trial
court found as a fact that succession and other administrative
issues
in the church had been solely regulated by the constitution. This was
partly based on the evidence of Sibisi, who testified
that the
constitution ‘became the operating document of the Church’.
It was not challenged that the constitution was
proposed by the late
leader, accepted by the church and never questioned. The factual
position is as was found by the trial court.
On the question of
succession, its provisions differ from those of the trust deed as
demonstrated above. Where a later document
is adopted, the parts of
an earlier document that are inconsistent with it are regarded as
having been varied. This applies to
the present dispute. Thirdly, the
trust makes it clear that the leadership of the church and the
trusteeship go hand in glove.
The trust deed appointed:
‘JOHANNES
GALILEE SHEMBE . . . the recognized Titular Head of the Church of
Nazareth, (hereinafter with his successors in
office as Titular Head
of the Church of Nazareth referred to as the TRUSTEE) to be the
TRUSTEE to carry out the terms of this Trust.’
The
adoption of a different instrument for choosing the leader does not
change this. His duties as trustee are governed by the trust
deed, as
also other areas not dealt with by the constitution.
[19]
The minority judgment arrived at its finding
without pointing to any material misdirection of the trial court.
This is impermissible.
Apart from the reasoning set out above, the
full court was bound by the finding of the trial court. It was not
open to it to arrive
at the conclusion that the trust deed applied to
the succession issue. The majority judgment did not deal squarely
with this issue.
It appears to have accepted the minority finding in
this regard:
‘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.’
It did
so without analysing the reasoning of the trial court. This finding
of the majority thus stands or falls by the correctness
of that of
the minority judgment. It must accordingly suffer the same fate. The
factual finding of the trial court that the constitution
applied to
the leadership succession issue must accordingly stand. This is also
consistent with the order of the majority upholding
the order of the
trial court on the succession issue.
[20]
It may be thought that the debate as to which
instrument governed the succession is a sterile one. Not so. As
mentioned above, if
the constitution applies, the choice of the late
leader amounted to both a nomination and the appointment of the
leader on his
death. No other body or procedure was necessary for the
leader to be appointed and thus to be entitled to exercise the
leadership
functions of the church.
[21]
The next factual finding of the trial court is
that the late leader nominated Vela as his sole successor. The
majority of the full
court agreed. The minority judgment accepted
that the late leader nominated Vela in writing, but held that he also
nominated Mduduzi
orally. Attention must now turn to the way in which
the minority judgment dealt with this factual finding.
[22]
Much of the evidence concerning the written
nomination was given by Mr Buthelezi. He was the only attorney used
by the late leader
and the church. The trial court, in approaching
the issue, said:
‘[T]here is
not a scintilla of evidence which casts the slightest doubt on the
character and integrity of Mr Buthelezi.’
The
appellants did not even attempt to attack this assessment. The trial
court held that his evidence should be accepted. This finding
bears
strongly on the issue of whether Mduduzi was also nominated.
[23]
The chronology of events tells
a story. Buthelezi first met the late leader during 1995 when he was
briefed to represent him in
a court case challenging his leadership.
It will be remembered that the constitution, allowing for a single
nomination and appointment
by the leader, was adopted in 1999. During
late January 2000, the late leader told Buthelezi that he wanted to
avoid another succession
battle after his death. In order to do so,
he asked Buthelezi to draft a document nominating his successor. He
ensured that Buthelezi
included the full names and identity number of
the nominee. Buthelezi drafted the document and sent it to the late
leader. The
signed document was returned to Buthelezi dated
11 February 2000. It was witnessed by Sibisi and one other
person. Buthelezi
kept it in his safe until the death of the late
leader. Though the content of the nomination has been set out earlier
in this judgment,
the last paragraph of
that document bears repetition:
‘I
specifically direct that the nomination which I have made herein
should be publicly announced on the date of my funeral
so as to
avoid any dispute regarding the leadership of the Church
.’
(My emphasis)
[24]
Nothing more was communicated to Buthelezi on
this score until,
on
16 March 2011, he received a letter addressed to him
written in isiZulu and signed by the late leader. It was also
initially claimed by the appellants that this was a forgery, but this
contention has been abandoned in the light of expert evidence
to the
contrary. The letter was delivered by Sibisi. Buthelezi’s
secretary left a note to phone Sibisi which he did. Sibisi
told him
that the late leader had directed the delivery of the letter and had
requested that Buthelezi read it. He told Sibisi
to convey to the
late leader that he had done so. In translation, the body of this
document read:
‘
Sir,
I am
not well. I want to remind you of my brother whom I brought to your
office with his ID. Should I die, please introduce him
to the church
during my funeral as the leader of the Nazareth Church. That man is
Vela Shembe. You will ask to address the church
before my burial.
Thank
you.’
Sibisi
confirmed this aspect of Buthelezi’s evidence.
[25]
This evidence is significant. A bloody succession
battle eventually led to the mother church splitting. The succession
struggle
involving the late leader included recourse to the courts.
The late leader made it clear that he wanted to avoid any repetition
of this on his death. He took careful steps to further this
objective. He promoted a constitution which provided that the leader
nominated and appointed a single successor so that no other body or
procedure was involved. He had his choice reduced to writing
and
signed it. He nominated one person. He ensured the inclusion of the
full names and identity number of his nominee. When he
was close to
death, he reminded Buthelezi in writing of his instruction to
announce Vela as the leader at his funeral. The reminder
was sent on
16 March 2011, twelve days before his death. This date was, on any
version, the last claimed communication of his choice.
The desire to
avoid leadership disputes after his death runs like a golden thread
through these actions of the late leader. He
aimed for a seamless
transition in the leadership of the church, without any disputes.
[26]
All of this was further buttressed by the
evidence of Dr Roberts, who attended on the late leader. He had been
diagnosed with liver
cancer in January 2011. On 21 February 2011
and 8 March 2011, respectively, Roberts spoke to him about
the issue of succession. The late leader told him that this was being
taken care of by his lawyer who ‘will announce what’s
appropriate at the right time’. He made no mention that anyone
else would make such a communication.
[27]
The cogency of this evidence was contrasted by
the trial court with the evidence led in favour of a second, oral
nomination. The
main witness who testified in support of this was the
second appellant, Inkosi Ngcobo. He is the chief within the amaQadi
tribe
in whose area the late leader resided and where the church is
situated. It is worth referring in some detail to the tenor of this
evidence. The second appellant, in the papers and in evidence,
averred that the late leader told him on four occasions that he
had
chosen Mduduzi. The first was on 2 September 2010 at
Ladysmith. The next was on 10 January 2011, when he
was in
the company of Inkosi Qwabe. The third was either on 17 or
18 February 2011. The last was on 5 March 2011.
This last occasion was 23 days before the late leader died. During
these communications, the late leader made no mention of his
nomination of Vela.
[28]
Of significance in evaluating this evidence is
what took place at the funeral of the late leader, on 3 April 2011,
and
in the lead up to it. The second appellant became aware that
Buthelezi was to announce the successor at the funeral. He phoned
Buthelezi and asked him who had been chosen. Buthelezi would not
disclose this, saying only that the late leader had told him to
announce it at his funeral. On the day of the funeral, Buthelezi met
the amakhosi. Here the second appellant attempted to persuade
him not
to make the announcement. Buthelezi gave a similar response: he would
comply with the wishes of the late leader and make
the announcement.
On neither of these occasions did the second appellant disclose that
the late leader had made an oral nomination
to him at all, let alone
that he had chosen Mduduzi.
[29]
The funeral organising committee was told that
Buthelezi was to announce the successor. It decided to put this at
the end of the
programme. No indication had been given to the
committee that the second appellant was to make such an announcement.
At the funeral,
the second appellant took the programme director by
surprise. Not only was he not scheduled to speak at that point, he
was also
not scheduled to say anything about succession. He did not
say that the late leader had told him who was to succeed him.
Instead,
in a rambling address, the following emerged.
[30]
In the context of his saying that he had heard
that someone was going to announce the successor, he said:
‘The holy
prophet was given a piece of land by the king of the AmaQadi, namely
Mzonjani Ngcobo. Don’t point and show
us the person. I’m
not scared of appointing the person. It is all within my right. I
have all the right to appoint a person
. . .’.
He went
on to claim that any writing to the contrary was forged. He then
said:
‘Do not
announce anything, Mr . . . [inaudible], I know that you are present
here. Do not do your announcement, Mr . . . [inaudible],
I know that
you are here, I know that you are listening and I know that you have
something against me here at Ebuhleni . . . .
I want to say to the
children that the person who is going to make the announcement is
myself. Nobody else is going to make the
announcement. The name where
it is claimed that the holy prophet wrote, that document or that
paper could be brought. However,
I am the one who is going to do the
announcing.’
He also
said:
‘Now, let me
repeat this once more before you, maNazaretha, I 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.’
And
finally:
‘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.’
It was
only after this announcement had been made that Buthelezi was able to
make his announcement that the late leader had appointed
Vela. One
can only imagined the confusion that was created.
[31]
It seems highly unlikely that, knowing that
Buthelezi was going to announce Vela as the new leader, the second
appellant would not
tell Buthelezi of the additional nomination. This
is all the more so since he indicated that the reason he approached
Buthelezi
was to avoid potential conflict. It is further unlikely
that he would not inform the organising committee or the programme
director
that he was to make an announcement on succession. It is
also unlikely that, if the late leader had nominated Mduduzi, the
second
appellant would not have said so at the funeral rather than
purporting to make the choice himself. His evidence goes against the
avowed intent of the late leader to avoid disputes as to leadership
succession upon his death. In that light, it is highly improbable
that the late leader would have made a second nomination. It is even
less probable that he would have made an oral nomination when
he was
clearly aware that he had made a written one already. It is
inconceivable that, having communicated this to the second appellant
for the fourth time, he would tell his doctor three days later that
his attorney alone was to deal with succession. It totally
beggars
belief that he would send a written request to Buthelezi eleven days
after the last of his communications to the second
appellant
confirming a single choice of Vela without any mention of his having
made a second, contrary, nomination.
[32]
The minority judgment incorrectly held that the
trial court ‘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 trial court’s rejection of the
evidence of the second appellant went far further. The minority
judgment
criticised the trial court for failing to weigh the evidence
in its totality and to distinguish probabilities and inferences from
conjecture or speculation, but is itself subject to those
shortcomings. In any event, I do not believe that it can be said that
the trial court was guilty of any material misdirections.
[33]
I can find no material misdirections by the trial
court in its evaluation of the evidence as a whole. It is now
accepted by the
appellants that the only written nomination of the
late leader was of Vela. It is also now accepted that the letter
delivered to
Buthelezi on 16 March 2011 was written and
signed by the late leader. This reiterated his appointment of Vela
wanting
him introduced ‘as the leader of the Nazareth Church’,
not only the nominee. The late leader twice told his doctor that
Buthelezi would deal with succession. The last of these occasions was
three days after the second appellant claimed that the late
leader
told him that he had chosen Mduduzi as his successor, not as a mere
possibility but the only choice. The letter was sent
some eleven days
after the last alleged communication to the second appellant.
[34]
For all of the above reasons, and others which
need not be canvassed, it cannot be said that the trial court
misdirected itself
in the finding that the only choice of successor
was Vela. In my view, that conclusion is unassailable. No actual
misdirections
were identified. The full court was accordingly bound
by this second finding, as is this court.
[35]
The contribution of the
amicus curiae
must be weighed. It is now established that an
amicus
must be able to make a contribution to the actual issue between the
parties. In
National
Treasury & others v Opposition to Urban Tolling Alliance &
others
,
[2]
the Constitutional Court held:
‘
It is sufficient to observe that an amicus
must make submissions that will be useful to the court, and
which differ from those
of the parties. In other words, the
submissions must be directed at assisting the court to arrive at a
proper and just outcome
in a matter in which the friend of the court
does not have a direct or substantial interest as a party or
litigant.’
[3]
This
approach was later approved and summarised:
[4]
‘
The principles governing the admission of a
party as an amicus curiae are now well settled. An applicant for
admission as an amicus
curiae must:
(a)
advance
relevant, useful and new contentions going beyond those of the
litigants;
(b)
not
adopt a partisan stance “better suited to a litigant than a
friend of the court”; and
(c)
advance
submissions aimed at assisting the court to reach a just outcome.’
[36]
I
n the present matter, the
amicus
does not seek to assist in arriving at a proper and just outcome in
the appeal, only to attempt to correct certain
dicta
of the full court, particularly in the minority judgment. In his
heads of argument he goes so far as to say,:
‘The amicus
has no interest in the decision of whether it is Vela Shembe or
Mduduzi Shembe who succeeded Inkosi Vimbeni Mbusi
Shembe as leader of
the Nazareth Baptist Church, Ebuhleni. Rather, his interest in the
proceedings is to correct the approach of
the Full Bench (sic) which
led to it making findings which go beyond the leadership contest
between Vela Shembe and Mduduzi Shembe
. . .’.
It is
correct that certain
dicta
of both judgments of the full court strayed beyond the specific issue
confronting it. The
amicus
accepted that this could not be said of the trial court. From the
accepted test for the contribution of an
amicus
,
however, this is no basis on which to appear in a matter. The
amicus
was of no assistance in arriving at a decision on the issues before
us. I therefore do not regard it as necessary to deal with
any of the
points raised by the
amicus
in support of his avowed interest.
[37]
The final set of submissions of the appellants
was that the trial court erred in failing to make costs orders in the
various applications
spawned by the main one. It is so that the trial
court did not fully motivate why it came to the decision not to make
any costs
orders. The effect of this is that each party pays its own
costs. However, it seems clear from the approach of the trial court
as a whole that it felt that the appellants prevailed in some
applications and the respondent in others. It can also be said that
in matters such as these, where two factions which belong to the same
body are at loggerheads, further costs orders may well unnecessarily
add fuel to any resentment caused by the main order. I see no reason
why the discretion of the trial court in this regard warrants
interference on appeal.
[38]
In the result, the following
order is made:
The
appeal is dismissed with costs, such costs to include those
occasioned by the employment of two counsel.
___________________
T
R Gorven
Acting
Judge of Appeal
APPEARANCES:
For
Appellants: RG Choudree SC (with him M Xulu)
Instructed
by:
Govender,
Mchunu & Associates, Durban
Honey
Attorneys, Bloemfontein
For
Respondent: A Findlay SC (with him R Ungerer)
Instructed
by:
Trevor
Nkosi Attorneys, Durban
Matsepes,
Bloemfontein
For
the
Amicus Curiae
: M Du Plessis SC (with him T Palmer)
Instructed
by:
Lee
Attorneys, Durban
Webbers,
Bloemfontein
[1]
R v Dhlumayo & another
1948 (2) SA 677
(A) at 705-706.
[2]
National Treasury & others v Opposition to
Urban Tolling Alliance & others
[2012] ZACC 18; 2012 (6) SA 223 (CC).
[3]
Paragraph 13. (References omitted).
[4]
Maledu & others v Itereleng Bakgatla
Mineral Resources (Pty) Ltd & another
[2018] ZACC 41
;
2019 (2) SA 1
(CC) para 33. (References omitted).