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.’
In 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. The 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.’

1 R v Dhlumayo & another 1948 (2) SA 677 (A) at 705-706.

[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]  In 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,:

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).

‘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