Just my own opinion on how the Nazareth Baptist Church litigation matter was won in the winner-takes-all Shembe vs Shembe in the Pietermaritzburg High Court. Applicant Vela Shembe, the leader of the breaker-away faction – Thembezinhle; first respondent Mduduzi Shembe, the leader of the largest eBuhleni faction; second respondent Inkosi Mqoqi Ngcobo, the leader of AmaQadi Tribe.

Root of the 8-year long Shembe civil matter 

AAAAAAMEEEEEEN, this is a traditional signature of approval synonymous with the white-robes Nazarites of Shembe. The battle for the heart and soul of the church was between Mduduzi and the late Vela.

The bone of contention has been a Deed of Nomination drawn in the year 2000 by the late leader in which he nominated Vela to be a titular head of the church. The letter was read by Vimbeni’s lawyer – Zwelabantu Buthelezi at his funeral in April, 2011. In a dramatic twist – Inkosi Mqoqi Ngcobo who presides over eBuhleni in Inanda area which includes the headquarters of the church, also took to the podium and announced Vimbeni’s son – Mduduzi as the rightful heir.

During the five year trial in Durban, the letter was authenticated by three out of four handwriting experts. The church’s most prized assets which included vehicles, homes, livestock and bank accounts said to worth hundreds of millions of rands remained frozen due to the pending matter in court.

Without claiming insight into the internal processes of the courts or how the justice system works, but from what I have observed in the Shembe civil trial since I reported on it when it started from 2011-2014 as well as keeping a close eye on the proceedings through the work of my hardworking colleague/sister/friend – Nonjabulo Mntungwa, the writing was on the wall on who will emerge out victorious between the two then aspirant leaders – Mduduzi uNyazi Lwezulu’ Shembe and Vela ‘Imisebe YeLanga’ Shembe.

The matter continued even after the death of Vela. He died in late November 2017.

THE CHURCH’S HISTORY

The Nazarites church was founded by Prophet Isaiah Shembe in 1910. It had its headquarters at eKuphakameni in Inanda, north of Durban. Then it was one of the first few African initiated ones. Anchored in African traditionalism, it has grown its membership to an estimated five million across the country, mainly within the Zulu speaking people. It has assets worth millions of rands. Since its first split in 1976 when former leader Johannes Galile Shembe died, it has disintegrated into four groups – eKuphakameni, eBuhleni, Ginyezinye and Thembezinhle as well as two branch temples The Nazarite Church of God and Phakama.

I base my argument on credible witnesses’ whose testimonies put the final nail in the coffin for eBuhleni. It’s my submission that the case can be categorised in two ways – Oral testimony vs Documentary proof and popular vs less-popular characters. Documentary evidence (Deed of Nomination and a letter authored by Inkosi Vimbeni on 16 March 2011).

KEY WITNESSES

(1) Advocate Zwelabantu Buthelezi the lawyer for the late leader – Vimbeni ‘uThingo LweNkosazana’ Shembe. Adv Buthelezi was instructed to draw up a deed on nomination in the year 2000, with Inkosi Vela as a titular head of the church and sole trustee of the trust as well as being the leader. Again in February, 2011 before uThingo died, through a handwritten letter, he reminded Buthelezi about his wish to nominate Inkosi Vela.

(2) Chancey Sibisi, the secretary general of the church before the split. Preacher Sibisi was initially with eBuhleni faction but joined Thembezinhle just days before he took the stand in court. Sibisi was regarded as the late leader’s right hand man and his confidante. He was even accused by some senior church leaders for having acted like Vimbeni in some instances in his absentia. In his testimony, Sibisi said he knew about the content of the letter nominating Vela. He also had a private conversation with Inkosi Ngcobo on the day the uThingo died. Sibisi confided to Ngcobo that Vela was uThingo’s preferred heir to the throne. This revelation shocked Inkosi Ngcobo.

 

(3) Dr Charles Robert, the late leader’s doctor from 2007 until his death in April 2011. The doctor testified that when Inkosi Vimbeni was gravely ill (diagnosed with liver cancer in early 2011) he enquired three times about his succession plan which he replied: “Don’t worry’, the matter was being taken care of by my lawyer.”

(4) Forensic Document Examiners (handwriting experts) Michael Irving, Jannie Bester and Leon Esterhuizen. Their findings on the signature by the late leader on the Deed of Nomination and the handwritten letter and its accompanying signature were the straw that broke the camel’s back on the eBuhleni side and highly enhanced the prospects for the Vela led Thembezinhle. They all unanimously agreed that the signatures were authentic. They were comparing the late leader’s undisputed standard signatures to the disputed ones on the Deed of Nomination and on the letter. They found 27 similar characteristics. EBuhleni then brought in Colonel Frik Landman who had difficulty during cross-examination trying to prove his argument that the signatures were forged.

(5) Inkosi Vela Shembe. During the trial, the former teacher decried about how certain senior leaders of the church disliked him and also limited his access to the prophet – Vimbeni. Vela also revealed his close bond with the Vimbeni who paid him tuition fees and also paid him ilobolo for his first wife. Above all, he said in January, 2000 during ascension to the iNhlangakazi Mountain, he was informed by Prophet Vimbeni that the ancestors had spoken to him and to choose him as an heir. Subsequent to that he was instructed by the prophet to bring a copy of his ID and to treat the request as a matter of urgency.

(6) Inkosi Mqoqi Ngcobo. He was armed with oral evidence. He told the Durban High Court that Prophet Vimbeni had informed him in four occasions that Mduduzi Shembe would be the successor. This also included an inference that historically the transfer of chieftaincy is treated like an inheritance – from father to son. He argued that such had been the case since the church was founded but was sharply reminded that it was actually not true during cross-examination by Advocate Archie Findlay, who represented Vela Shembe.

(7) Inkosi Makhosonke Qwabe. He carried with him ‘eavesdropping evidence’. During his testimony, Inkosi Qwabe told the court he was in the room next to Ngcobo when Prophet Vimbeni informed Inkosi Ngcobo of his alleged wishes for Mduduzi to take over from him. Inkosi Qwabe who spoke after Ngcobo’s announcement at the funeral was taken to task by Judge Achmat Jappie and Adv. Findlay for not telling the congregation that he had heard secret information about the church’s succession plan.

THE PIETERMARITZBURG HIGH COURT JUDGMENT

The Durban High Court ruled in favour of Vela Shembe in 2016 but the eBuhleni faction appealed the matter. The Mduduzi led faction argued on the basis of the so-called errors of facts in 2016’s historic judgment. The eBuhleni opted not to pursue the matter on the rule of law but their heads of arguments were based on the errors of facts with a strong conviction that another court may come to a different conclusion. This included disputing the letter written by Prophet Vimbeni in his last days. They were arguing that he may have written it under duress as he was ill. The Prophet was diagnosed with liver cancer in early 2011.

Also to be revisited by the full bench was Inkosi Ngcobo’s oral evidence which included being informed by the Prophet about his wish to nominate Mduduzi as his successor in four occasions. The Mduduzi led faction believed the Durban High Court ruling did not make enough emphasis on Inkosi Ngcobo’s testimony. It also argued that the court relied much on the Constitution of the Church instead of the Trust which they believe is the most powerful document in the church.

The matter was to be heard by the full bench of three judges – Isaac Madondo, Jerome Mnguni and Thoba Poyo Dlwathi in the Pietermaritzbug High Court from October 2017.

Handing down judgment in the Pietermaritzburg High Court on 13 April 2017, Judge Isaac Madondo who’s KZN Deputy Judge President, delivered a minority judgment in which he found that Inkosi Ngcobo’s testimony was wrongfully ignored by the Durban High Court, ironically by his senior – Achmat Jappie (KZN Judge President). He said despite overwhelming evidence by the authenticated letters and documents and oral evidence choosing both leaders, Inkosi Ngcobo’s testimony should stand and he said in his view an executive committee formed in 2010 should be the one to choose the rightful heir to the throne by voting through a secret ballot.

The majority judgment by two out of three judges delivered by Jerome Mnguni and Thoba Poyo Dlwathi eventually won the day for Thembezinhle. As the common law dictates the majority judgment supersedes the minority. Both judges concurred on many factors particularly on overwhelming evidence by three handwriting experts who authenticated signatures on the Deed of Nomination in which Prophet Vimbeni nominated Vela as titular head of the church and sole trustee of the trust. Witnesses sympathetic to the Thembezinhle faction were hailed as trusted and consistent. The judges also disputed and dismissed Inkosi Ngcobo and Inkosi Qwabe’s testimonies as fabrication that should never stand.

This means that in enforcing the judgment the Thembezinhle faction can now start to prepare taking over eBuhleni – now the headquarters of the church – as guided by the court. However, the eBuhleni appealed the matter in the Supreme Court of Appeal in Bloemfontein.

RECENT JUDGMENT FROM THE SUPREME COURT OF APPEAL OF SA

The Bloemfontein-based second-highest court in the land may have upheld the KwaZulu-Natal High Court ruling in Pietermaritzburg, but its ruling has put finality on the matter.

EBuhleni’s argument was appealing to the errors of facts not errors of law (Constitutionality). They believed that the three-panel judges in Pietermaritzburg had the wrong facts or interpreted them incorrectly. They based this as grounds for judicial review. According to https://www.ridoutbarron.com; an error of fact means that you think the judge had the wrong facts or interpreted them incorrectly. With the right information, you think the judge would not have ruled against you, and you want a chance to give the high court that information.

It further says an error of law means that the judge had all of the right information, but you think the law wasn’t applied correctly. Judges are human; a mistake could have been made.

If you lose an appeal whose argument was based on errors of fact means your case ends right there in the Supreme Court of Appeal. However if it was based on errors of law means you can still appeal it in the Constitutional Court, which is the final arbiter of justice, the highest court in the land. This is where 11 judges stand guard over the Constitution at the Constitution Hill in Braamfontein.

Unfortunately for eBuhleni their arguments were based on errors of facts which cannot be reviewed by the highest court in the land. This means Thembezinhle faction, now led by acting leader – Phinda Shembe – is rightful leaders of eBuhleni, hence they are beginning the process of taking over uBhoko (parrying stick), the headquarters, homes, palaces and temples, livestock, other assets worth millions of rands. However, only time will tell if this will ever happen in our lifetime as there’s strong resistance from eBuhleni. It’s time government intervened before we see bloodshed.

This is an updated version of Vusi Khumalo’s opinion piece on the Shembe matter. Vusi Khumalo is a Journalist for the public broadcaster – SABC News.