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IN THE HIGH COURT OF SOUTH AFRICA

KWAZULU NATAL LOCAL DIVISION, DURBAN

 

CASE NO: D791/2021

 

In the matter between:

 

AVINASH PARSHOTAM (ALSO KNOWN AS RISHIKUMAR SATYANAND)	APPLICANT
And
DIVINE LIFE SOCIETY OF SOUTH AFRICA	1st RESPONDENT
AROONA DEVI MANGREY N.O	2nd RESPONDENT
JOGINDRA KISHNAPPA NAIDOO N.O.	3rd RESPONDENT
MAWALALL CHATROOGHOON N.O.	4th RESPONDENT
SACHIN HEERAMUN MAHARAJ N.O.	5th RESPONDENT
AROON SUKHNANDA N.O.	6th RESPONDENT
KUMARASEN NAICKER N.O.	7th RESPONDENT
LOGAN NAIDOO N.O.	8th  RESPONDENT
SANTOSH JAIRAM N.O.	9th RESPONDENT
RAVEEN HARISUNKER N.O.	10th RESPONDENT
KARUSHA HARILAL N.O.	11th RESPONDENT
ETHEKWINI MUNICIPALITY	12th RESPONDENT

 

JUDGMENT

 

Sibiya J

 

Introduction

 

[1]  Before me are two applications, the main application is for a common law judicial review and a declarator, and the other is a counter-application for eviction.

 

[2]  The applicant, Avinash Parshotam, is a devotee and renunciant member of the Divine Life Society of South Africa ('the Society'), which is the first respondent. According to the applicant, a renunciant member is one who has given up their worldly possessions to devote their lives to the work of the Society, whilst residing on the Ashram, which is a property owned by the Society.

 

[3]  The second to tenth respondents were members of the Board of Management of the Society ('the Board') and took the decisions sought to be reviewed. The second and third respondents are the joint chairpersons of the Board. The third, fourth and fifth respondents were also the trustees of the Board. The sixth respondent was a member and treasurer, the seventh respondent a member and secretary, with the eighth to tenth respondents being ordinary members of the Board.

 

[4]  The eleventh respondent was added in the counter-application, as she was appointed as a member of the Board in August 2021, during the course of the present proceedings. The third and fourth respondents have since retired after the institution of these proceedings.

 

[5]  The twelfth respondent is the eThekwini Municipality, which was also added as a respondent in the counter-application for the eviction of the applicant. The twelfth respondent has not participated in these proceedings and any reference to 'the respondents' in this judgment is a collective reference to the first up to the eleventh respondents.

 

[6]  The applicant was found guilty of various acts of misconduct by the Board on 10 August 2020, and the sanction handed down consequent to such finding, on 28 August 2020, was that the applicant's membership of the Society was revoked and that he was expelled from the premises ('the impugned decisions').

 

The relief sought by the parties

[7]  The applicant's review is sought on the basis that:

(a)  The Board should not have acted as complainant, investigator and disciplinary tribunal and thus violated the requirements of the nemo iudex in sua causa principle. It should have appointed an independent decision-maker as it was not impartial.

(b)  The Board's failure to call witnesses deprived the applicant of the opportunity to lead evidence and to cross-examine witnesses, thus violating the audi alteram partem principle.

(c)  The impugned decisions were irrational in that no evidence was presented for the applicant to answer, confirming the applicant's suspicions that the disciplinary committee presumed him guilty.

(d)  The Board was not properly constituted, as not one of the Board members was a renunciant, as required by the constitution of the Society.

 

[8]  A succinct summary of the grounds of review is contained in the applicant's supplementary founding affidavit as being:

'the Board did not comply with the principles of natural justice inasmuch as the process followed was fundamentally unfair and the decision was not made by an impartial, independent, and properly constituted decision-making body. So too the principle of audi alteram partem was not respected.'[1]

 

[9]  I am not called upon to determine the merits of the impugned decisions, but whether the procedure followed was correct. The Society urges that in undertaking that exercise, I must confine myself to determining whether the procedure followed accords with the Society's constitution, which contains the rules that bind its members.

 

[10]  The applicant seeks the following declaratory relief: that the Board, when making disciplinary decisions, must comply with the principles of natural justice, which includes sufficient prior notice of the charges faced; a reasonable opportunity to respond; and that the proceedings must be conducted by an impartial and independent decision-maker. The relief sought is premised on the basis that the Board is violating the rights of the members by depriving them of the protection afforded by the rules of natural justice, and that such conduct must be stopped.

 

[11]  The respondents oppose the application on the ground that the Society is a voluntary association with its own constitution, which governs its processes. The rules of natural justice have deliberately been excluded from operation in the Society's constitution, which is binding on all members, including the applicant.

 

[12]  In addition, the respondents filed a conditional counter-application for the eviction of the applicant, which is conditional on the applicant's application for review being unsuccessful, as there would be no legal basis for the applicant to remain in occupation of the Ashram. I will return to that application in due course.

 

Common cause facts

 

[13]  The common cause facts are as follows.

 

[14]  Both the applicant's parents and grandparents were devotees of the Society. He was born in January 1984 and attended the Ashram from the age of four. He has been a devotee his whole life, and was initiated as a Rishikumar in January 2002, the monastic name of Satyanand being conferred on him. In February 20202, when he was 18 years old, he renounced his home and family, joined the Ashram as a resident renunciant, and donated all his inherited money to Pujya Swamiji and the Society.

 

[15]  The applicant fulfilled many roles in the business and management of the Society, having served on the Board from 2002 until his dismissal in 2019. He even served as an acting chairperson for a short while. He did not review his dismissal from the Board, nor is such dismissal being challenged in the present proceedings.

 

[16]  The Society was established in South Africa in 1949, with the object of '[carrying] out religious, spiritual, educational and charitable activities within the Republic of South Africa'. It was led by the Spiritual Head, Pujya Swamiji, as the absolute authority on all matters within the Society, until he passed away in December 2007. From then on, the Board has run the Society by fiat. It was originally formed to foster spiritual enlightenment in India in 1936 by Divine Master Sri Swami Sivananda ('the Divine Master'), who passed away in 1963.

 

[17]  Membership of the Society requires unquestioning devotion and absolute obedience to the Divine Master, the Spiritual Head and the Society's rules.

 

[18]  Prior to his passing, the Spiritual Head signed the constitution in September 2007. The Board manages the Society as empowered by clause 3 of the Society's constitution. It is also responsible for the maintenance of discipline, and for determining membership and attendance of meetings.

 

[19]  At the time of the disciplinary proceedings, the Society had 12 renunciants, also known as inmates. The requirements for a renunciant and the rules applicable to renunciants are contained in clause 28 of the constitution. Renunciants devote their lives wholly to the Society and live according to the strict rules of the constitution, with no other home or possessions outside the Society.

 

[20]  With regard to the impugned decisions, the applicant was given advance notice of the charges against him and afforded an opportunity to firstly make written, then oral submissions in response thereto. He prepared his written responses, in advance of the hearing, with the assistance of a lawyer.

 

[21]  The inquiry proceeded on 21 March 2020. The disciplinary committee comprised of the Board members, who were thus the complainant, the investigator and the disciplinary panel. At the hearing, no legal representation was allowed. In addition, no evidence was led by the Board and no witnesses were called to testify on the allegations. Only the applicant presented his defence, reading from a prepared and typed 27-page document which responded in detail to each allegation made.[2] He further reiterated his opinion that the Board had no authority and was improperly constituted for lack of any renunciants as required by the constitution, and was biased against him.

 

[22]  On 10 August 2020, the Board issued the outcome of the hearing,[3] finding the applicant guilty of seven counts of misconduct, and inviting him to provide a written response with mitigating circumstances relevant to the sanction. The applicant responded in a 10-page letter dated 21 August 2020[4] with 15 pages of supporting documents, setting out in detail why it was neither warranted nor fair to expel him from the Society that he had served with devotion for 19 years.

 

[23]  The Board sent a letter dated 28 August 2020,[5] informing the applicant that the aggravating factors outweighed the mitigating factors, with the result that his membership of the Society was revoked. The applicant was prohibited from any direct communication with officials or renunciants and also barred from using the name of the Society or associating himself with the Society in any manner, and was asked to propose a date by which he would vacate the premises.

 

The issues in the main application

[24]  The applicant identified the issues to be determined, in the application for the review and declarator, as being:

(a)  Whether the decision of the respondents to expel the applicant as a renunciant is reviewable by this court;

(b)  Whether this decision was taken in accordance with a procedurally fair process as required by the common law rules of natural justice;

(c)  Whether the Board was properly constituted when it held the disciplinary proceedings and made the decisions to find the applicant guilty and to expel him; and

(d)  Whether the impugned decisions must be reviewed and set aside for breaching the principles of natural justice, namely the nemo iudex in sua causa and the audi alteram partem principles.

 

[25]  I will proceed to deal with each of the issues raised in turn, including the argument advanced by each party, the applicable law, and my findings in relation to the issue. In that process, I will combine the issues specifically relying on natural justice in paragraph 24 (b) and (d) above and consider them as 'the second issue'.

 

Is the decision reviewable?

 

[26]  I start by re-stating the first issue as being whether a decision by the respondents, as a religious voluntary association, is susceptible to review by this court.

 

[27]  The applicant argues that it is indeed reviewable, relying on the absence of doctrinal entanglement. This refers to the courts' reluctance to interfere with and to pronounce on matters of religious doctrine. The applicant argues that what the court is called to do is not to make religious pronouncements or to comment on the rationality of the decisions taken by the Board, but to assess whether the Board followed its own process.

 

[28]  This argument by the applicant is not, however, maintained throughout, as the applicant is also seeking a pronouncement that natural justice ought to apply, even if expressly excluded by the parties. I will revert to this aspect in due course.

 

[29]  The respondents argue that the Spiritual Head controlled the affairs of the Society on the basis that if any person challenged his authority, it would constitute an act of disobedience and constitute grounds for expulsion. His decisions were not open to challenge, his instructions were strictly adhered to and when devotees were suspended or expelled, they were not entitled to or afforded any redress, because the word of the Spiritual Head was final, beyond question and sacrosanct. As the Board operates in the stead of the Spiritual Head, it has the same powers and its decisions enjoy the same protection against any challenge.

 

[30]  It is correct that courts are reluctant to make pronouncements on religious doctrine. In Benjamin and another v FNB Trust Services (Pty) Ltd NO and others[6] the court dealt with whether a marriage in terms of Islamic Sharia Law had been concluded between the plaintiff and the deceased, thus qualifying her as a surviving spouse in terms of s 1 of the Maintenance of Surviving Spouses Act 27 of 1990.

 

[31]  The court summarised the doctrine of entanglement, as espoused in many judgments of the SCA, as being

'61.1 That a proper respect for freedom of religion, precludes our courts from pronouncing on

matters of religious doctrine which fall within the exclusive realm of the religious institution concerned;

61.2 The internal rules adopted by a religious institution should, as far as possible, be left to the institution to determine domestically; and

61.3 A court should only become involved in a dispute concerning such internal rules when it is strictly necessary for it to do so.'[7]

 

[32]  The court concluded that no basis had been established for the court to interfere with the conclusions of the religious body when no evidence was advanced to support the argument that the process followed before the decision was taken was flawed.[8]

 

[33]  In Fortuin v Church of Christ Mission of the Republic of South Africa and others[9] the court, in dealing specifically with whether it was precluded from reviewing decisions taken by a church against its member, found that it had common law powers to review decisions of voluntary associations where fundamental principles of fairness were flouted. It found, however, that the powers of review were limited to whether the decision was tainted by irregularity or illegality.

 

[34]  I do not believe that I am called upon, in this application, to 'comment on the rationality of the religious tenets of the Society' as suggested by the respondents. It is not for me to determine whether the tenet that the Board should be obeyed without question, as argued by the Society, is rational, but to determine, if necessary, whether that is in fact a religious tenet of the Society, as was the case with the Spiritual Head.

 

[35]  I thus do not believe that the doctrine of entanglement finds application in this case. There is no blanket rule that prevents the court from reviewing decisions taken by religious organisations purely on the basis that they are religious organisations, and I am not convinced that there is in principle any valid reason why the decisions of the Board would not be reviewable.

 

[36]  As will become clear later on in this judgment, the Spiritual Head was afforded unquestioning obedience but the constitution makes a clear distinction between the Spiritual Head and other members of the Board, and the Board itself.

 

Procedural fairness and the rules of natural justice

 

[37]  The next issue is whether the rules of natural justice apply to the Society and its members. If the answer is in the positive, then an assessment of whether these were correctly applied will be undertaken. If the answer is in the negative, the review and declaratory relief will only succeed on this ground, if the Society failed to follow its own procedures. to the exclusion of the rules of natural justice.

 

[38]  The question of whether rules of natural justice apply to voluntary associations in general, and religious associations in particular, has been dealt with in a number of cases.

 

[39]  In Turner v Jockey,[10] a case which did not involve a religious association, the court found that it had jurisdiction to review the conduct of the voluntary association on the basis that elementary principles of justice applied to the contract between the club and the jockey. It found that principles of fairness, which underlie our system of law, including hearing the party concerned, apply unless expressly excluded by the parties.

 

[40]  In Hendricks v The Church of the Province of Southern Africa, Diocese of Free State[11] the appellant sought to appeal the decision of the high court, which had refused to review the decision of the Bishop to revoke the appellant's licence following his refusal to move to an alternative parish.

 

[41]  The SCA stated that

The high court correctly recognised that the conduct of a non-statutory body, such as a Church, must still comply with procedural fairness, subject to its own rules and regulations.'[12]

 

[42]  It further held that as the appellant had been invited to participate in the decisions but had refused the invitation to do so, he could not 'rely upon his own recalcitrant conduct to raise the issue of procedural irregularity'.[13]

 

[43]  The minority judgment found that by regarding unsubstantiated allegations as evidence on the part of the appellant without following the procedure of referring the complaint to a Board of Enquiry rendered it irrational.[14]

 

[44]  It went on further to find that, contrary to the common application of the ratio in De Lange,[15] in fact what De Lange means is that there are circumstances where the court must intervene in disputes involving religious bodies, including where the body has not followed the principles of natural justice.[16] In this regard reference was made to the 1863 judgment of Long v Bishop of Cape Town.[17] Molemela JA (as she was) in her minority judgment finally stated that there is no reason why churches, like other domestic tribunals, should not observe principles of fair play by complying with their own rules and regulations.[18]

 

[45]  In conclusion, the minority held that

'... there is no reason why our courts cannot adjudicate disputes emanating from organisations, including churches, which have incorporated these laudable principles of natural justice in their constitutions and their rules and regulations.'[19] (Footnotes omitted, and my emphasis.)

 

[46]  In my view, from these cases it can be concluded that:

(a)  Parties are allowed to exclude the application of the rules of natural justice;

(b)  There is no 'one size fits all' and each case is dependent on its own merits and its own facts. Where there is justification for excluding specific rules, an association and its members will not be forced by the courts to be bound by such rules.

(c)  Where parties have not expressly excluded such rules, they may still be excluded if there is an apparent intention in the constitution not to be bound by the rules of natural justice.

(d)  In all other cases, the rules of natural justice will automatically apply in order to ensure fairness.

 

[47]  In the cases where the courts found that the religious organisation in question had to apply the rules of natural justice, this was always qualified by the words 'as provided in its constitution' or 'in accordance with its own rules/procedures'. The deciding factor, therefore, where voluntary associations in general and religious bodies in particular are concerned, is how the parties have chosen to be regulated.

 

[48]  Each case was decided based on its own facts. Where the constitution of a relevant association makes provision for the rules of natural justice, in particular the right to be heard (audi alteram partem) and the right to be tried by an impartial body or one without an interest in the matter (nemo iudex in sua causa), the courts have given effect to those rights.

 

[49]  In the present case, the Society has in fact made provision in clause 6 of its constitution for the conduct of disciplinary proceedings. It provides that the Board shall be directly responsible for the maintenance of discipline and standards of behaviour among members of the Society and shall be the judge of the spiritual suitability of any member of the Society. In addition, it provides that the Board shall not be obliged to give any reason for any decision it may take by virtue of its powers. There is no clause that elaborates on the matters of procedure, apart from what I have stated.

 

[50]  The record of the proceedings clearly shows, and it is in fact common cause, that the applicant was given advance notice of the charges he would have to answer to, and that he in fact provided lengthy submissions in response, which were prepared in advance with the assistance of a lawyer. It is apparent from the transcript of proceedings, which was not disputed as being inaccurate, that at the hearing, the applicant was asked additional questions for clarity in relation to the charges and the written submissions, but he elected not to answer, limiting his responses instead to the written submissions.

 

[51]  The complaint that the applicant was not afforded an opportunity to be heard prior to the decision on his guilt, is thus without foundation and not borne out by the evidence. The applicant made the choice not to take the opportunity afforded to him to make further oral representations. Similar to the appellant in Hendricks, the applicant cannot rely on his own refusal of an invitation to make submissions as a procedural irregularity. The constitution did not make any reference to the rules of natural justice in general or the audi alteram partem principle in particular and in my view it would be improper for such rules to be incorporated by the court. In the event that I am wrong in this regard, there was in any event, no breach of the audi alteram partem principle.

 

[52]  The appropriateness of the disciplinary proceedings being conducted by and before a partial chairperson, with particular reference to religious bodies, has been dealt with by our courts. In De Lange[20] the court found that

'There is nothing objectionable in private associations seeking to exclude outsiders from disciplinary processes and to ensure that those proceedings are kept "within the family" (Hamata v Chairperson, Peninsula Technikon Internal Disciplinary Committee paras 18 and 20).[21] To ensure that the arbitrator is conversant with both the church's doctrine and processes and the legal requirements of a fair process, the church only appoints senior counsel to preside at arbitrations.'

 

[53]  This was in response to a complaint that the arbitrator, by being a member of the church, is biased or is reasonably expected to be biased in favour of the church. The court held that

'The church's appointment of members to its arbitration panel from which arbitrators are appointed is entirely understandable. It is to ensure that only those persons who are familiar with the rules, procedures and practices are appointed to the rather sensitive task of adjudicating disciplinary disputes.'[22]

 

[54]  The SCA went on to justify the importance of the constitutional protection of religious freedom, saying '[p]rotecting the autonomy of religious associations is considered a central aspect of protecting religious rights. Indeed such protection has been described as "vital to a conscience-honouring social order"'.[23]

 

[55]  The court found that

'... the determination of who is morally and religiously fit to H conduct pastoral duties, or who should be excluded for non-conformity with the dictates of the religion, falls within the core of religious functions. For, as Gerhard van der Schyff puts it:

"The right to admit members and clergy would also imply the right to discipline such people in order to enforce conformity and encourage conduct in harmony with religious precepts and teaching.'"[24]

 

[56]  In the disciplinary proceedings against the applicant, the non-independence of the Board was pertinently raised by the applicant but was not addressed. He argued that the Board, having determined that his conduct was inappropriate and constituted transgressions of the rules and constitution, had prejudged the applicant's position. The applicant argues that this constitutes a flagrant violation of the principle of natural justice that no man shall be a judge in his own case. In support of this, the applicant also refers to the chairperson's words during the hearing that after the verdict, the applicant would be asked to provide mitigating circumstances.[25]

 

[57]  Regarding the right to legal representation, the court in Hamata[26] found that there is no absolute right to legal representation in forums other than a court of law. There is no similar protection when it comes to administrative action; there is instead a flexibility to allow for legal representation depending on the circumstances of each case. It was held that

'Any rule purporting to compel such an organ to refuse legal representation no matter what the circumstances might be, and even if they are such that a refusal might very well impair the fairness of the administrative proceeding, cannot pass muster in law.'[27]

 

[58]  At the disciplinary proceedings, Rishikumar Roop, a senior member of the Society, assisted the applicant.

 

[59] According to the respondents, as the constitution required the Board to make the decision on disciplining the applicant, this made it the only entity that could conduct the inquiry. In addition, the applicant was party to the formulation of the standard operating procedures regarding Board members, in which the disciplinary committee was set out as comprising of Board members, to the exclusion of a member for whom the disciplinary committee is formulated.

 

[60] The respondents deny that the nemo iudex in sua causa principle is inflexible and argue that in the present circumstances, only members of the Society who understood the tenets of the Society, and the Spiritual Head, could have sat in judgment and thus the constitution empowered the Board to make decisions about expulsions from membership.

 

[61] According to the respondents, the nature of the inquiry is not an adversarial process including cross-examination by the applicant, but it is to ensure that the Board has all the relevant information. It is a fact-finding exercise by the Board to enable it to make a proper decision. Prior to the passing of the Spiritual Head, decisions were taken without even allowing a member to present their side and this was not questioned but was accepted as the correct way. The applicant was therefore not entitled to cross­ examine any 'witnesses'.

 

[62] It is common for disciplinary proceedings in religious organisations to be conducted by members of the same entity. Our courts have held that in matters of religion it is not only appropriate but even advisable for the disciplinary tribunal to be made up of the members of the body that has laid the charges.

 

[63]  In the present case, the principle that no one can be a complainant and a judge in the same matter, in my view, did not apply, given the nature of the relationship between the parties.

 

[64]  I consider it appropriate to also say something at this stage about the declaratory relief sought. Given the finding that the rules of natural justice were not incorporated by the parties into the constitution, and to avoid doctrinal entanglement in religious matters, the declaratory relief is not applicable.

 

Constitution and composition of the Board

 

[65]  The constitution of the Society is dated 1 September 2007, and consists of 34 clauses. It also contains, as Appendix 1, a record of decisions of the Society taken from 1 June 1998 until 4 August 2007 on various matters of significance, to which reference is made in clause 33 of the constitution. The applicant argues that the decisions contained in Appendix 1 form part of the constitution, whereas the Society argues that these were all overtaken by the constitution which is the final and binding authority on such matters. This is particularly so where the decisions in Appendix 1 contradict the constitution.

 

[66]  The Society relies on clause 6 for its authority to maintain discipline and standards of morality of its members and to permit or forbid members from attending meetings or gatherings and to expel members who do not comply. According to the Society, this clause does not provide for an appeal against its decisions nor for any reasons to be provided.

 

[67]  The applicant argues that the Board that presided over his hearing was not properly constituted for want of compliance with the requirement that the Board shall comprise of householders and renunciants. This requirement is found in Appendix 1 and is dated 15 March 2003.

 

[68]  The applicant relies on clause 33 of the constitution, in terms of which the appendices are incorporated into the constitution. This clause is clear and straightforward, providing that

‘The following appendices are supplementary attachments to this constitution: Appendix 1: Important decisions taken by the Board of Management (ongoing) Appendix 2: Restrictions on named persons.'

 

[69]  Appendix 1 contains the following 'important decisions' which are relevant to the composition of the Board:

'1 March 2003 The Board of Management should consist entirely of full-time renunciants.

(Minimum of 5 and not more than 8) (Amended on 15 March 2003 and August 2007)

15 March 2003 The Board of Management will comprise both householders and renunciants; 4 August 2007 Amendment to Constitution:

In addition to the Spiritual Head, there shall be four Trustees elected by the Board of Management.

The Trustees of the Divine Life Society of South Africa shall be...'

 

[70]  The applicant further submits that although the clause dealing with the composition was not in the main text but part of the appendices, a letter was written by the Society in 2018 in which it was stated that the appendices are 'part and parcel of the constitution'. I have considered the letter attached to the replying affidavit as annexure Q, and it does not in fact say what the applicant contends it does and does not even mention the appendices.

 

[71] The respondents argue that all that is required in the composition of the Board is what is provided for in clause 5 of the constitution, which is headed 'Board of Management: Composition and Criteria'. Subparagraph (a) thereof establishes the Board by providing 'There shall be a Board of Management consisting of at least five and not more than eighteen members'.

 

[72]  Subparagraph (b) provides that

'The Board of Management shall comprise the Spiritual Head, Chairman, Secretary, Treasurer and other ordinary members, who except in the case of the Spiritual Head shall hold office for a period of at most two years, being eligible for re-election at the expiry of the said period. Except in the case where the Spiritual Head decrees otherwise, no person who has served on the Board of Management and then left for any reason whatsoever, will be eligible for re-election at any subsequent meeting of the Board of Management.'

 

[73]  Subparagraph (d) sets out the eligibility requirements of Board members, as that such person shall :

'(i)  be a disciple of SRI SWAMI SIVANANDA and adherent of the principles and teachings of the Divine Life Society and

(ii)  comply strictly with the codes of conduct and of discipline expected of an inmate of the said Ashram and abstain wholly from smoking, the consumption of alcoholic liquor and from gambling.

(iii)  follow a strict vegetarian diet, meditate for at least an hour daily, keep a daily spiritual diary, and in the case of a householder, conduct home Satsang on a daily basis.

(iv)  agree to render at least Five (5) hours of active service every week to the Society. In addition, it is compulsory to sell an agreed value of books printed by the Divine Life Society of SA. on a monthly basis.

(v)  (with the exception of the Spiritual Head) be less than 65 years of age.

(vi)  agree to practice and observe the rules of Brahmacharya.'

 

[74]  The Society argues that there is a contradiction between the constitution in relation to both the number of the Board members, as well as the composition thereof, with the constitution setting the number at between 5 and 18, and the composition/eligibility being persons who meet the requirements in clause 5(d). The appendices set the number at between 5 and 8, and the eligibility as being householders and renunciants.

 

[75]  In Yiba and others v African Gospel Church[28] the appellants were expelled from the church for having called a meeting of certain branches in the Cape District at which the appellants, who were pastors of the congregations called to the meeting, declared the Cape District to be autonomous, although it was not breaking away from the African Gospel Church. Three of the four appellants were summoned to a meeting before the central executive committee but failed to attend, and were subsequently suspended. They were thereafter invited to a disciplinary hearing, which also proceeded in their absence, and they were expelled. In considering whether the expulsion was in accordance with the disciplinary procedure in the church's constitution, the court started by summarising the principles applicable to the interpretation of the constitution of a voluntary association, with specific reference to disciplinary enquiries.[29]Relevant to the present matter were the following:

(a)  'An association with a constitution agreed to by its members cannot simply disregard the provisions of that constitution'.[30]

(b)  A constitution may be interpreted either benevolently or restrictively, depending on the circumstances, and will be restrictively interpreted where the members have a direct interest in the subject matter of the rules and where they will be directly affected thereby,

as, for example, in disciplinary proceedings.[31]

(c)  An association's power to conduct disciplinary proceedings is dependent on the constitution and its rules, which determine the types of violations warranting disciplinary proceedings, the constitution of and procedure to be followed by the disciplinary body,

and the applicable penalties.[32]

(d)  A court will rarely intervene in the domestic affairs of a voluntary association, but will do so where the association has failed to follow the prescribed procedures or acts ultra vires the provisions of its constitution. Expulsion, as the most drastic form of punishment, must be expressly provided for or follow by necessary implication from the provisions of the constitution. A person may not be expelled by a body other than that entrusted with the disciplinary powers.[33]

 

[76]  The discrepancy in relation to both the composition and the number is clear and the question is whether the two documents can be read together without resulting in confusion and absurdity. In my view, and having regard to the principles laid down in Yiba, with particular reference to the type of interpretation to be adopted when the members have a direct interest and will be directly impacted, the constitution must be interpreted restrictively. In the present circumstances, this means that, as provided for in clause 33, Appendix 1 must supplement the provisions in the body of the constitution.

 

[77]  There can be no reason to effect amendments to Appendix 1 as late as 4 August 2007, when the constitution was due to be signed on 1 September 2007, unless the intention was that the content of Appendix 1 would be supplementary to the constitution, as stated in clause 33. Surely if the intention was that the content of Appendix 1 would no longer apply after the adoption of the constitution, there would be no need for clause 33 in the constitution.

 

[78]  It is also my view that clause 5 clearly envisages both renunciants (inmates) and householders as being part of the Board, as can be seen from the reference to the requirements applicable, specifically to renunciants in clause 5(d)(ii) and to householders in 5(d)(iii).

 

[79]  The respondents dispute the definition of a renunciant contended for by the applicant, which is set out in paragraph 2 of this judgment and contend that this is a narrow definition. According to them the proper definition is 'a person who has given up the worldly life to pursue their spiritual devotion towards God'. The respondents further contend that a true renunciant acts with humility and does not retaliate when circumstances become hostile against him.

 

[80]  In my view, these contentions by the respondents lend support to the conclusion that renunciants are more spiritually focused and that the Spiritual Head would have wanted to ensure that there is always a renunciant as part of the Board.

 

[81]  The issue of the composition of the Board was raised directly at the start of the proceedings yet the respondents, as far as the record of proceedings and the minutes of the Board meetings reveal, did not engage with this aspect[34], nor was it ever addressed with the applicant. In my view, this conduct of the Board was fatal to the disciplinary proceedings.

 

The counter-application

 

[82]  The respondents brought a counter-application for the eviction of the applicant, which was conditional and to be determined in the event of this court dismissing the review application. As already indicated, the eThekwini Municipality was added as a party to those proceedings, but did not play any part or file any affidavits.

 

[83]  This conditional counter-application was fully opposed by the applicant, who had raised the issue that it was premature to bring the application, but the respondents had persisted. As a result, the counter-c;1pplication comprised of a full set of papers, culminating in both parties filing heads of argument and addressing me in argument.

 

[85] Given the result in the main application, it is not necessary for me to consider the counter-application, as it was conditional to a possible outcome that did not eventuate. For the sake of finality, and as the application was fully argued, an order in relation to the counter-application, including an order for costs, will issue.

 

Conclusion

 

[86] The applicant brought this review application, relying on various grounds. Given the nature of the relationship between the parties, it is unfortunate that this matter has come this far. I have had regard to the grounds relied on and identified in the practice notes as the issues to be determined, and for the sake of clarity, I make the following findings that in relation to the issues listed in paragraph 24 of this judgment.

 

[87]  It is my finding that the decisions taken by the Society and by the Board are not immune from judicial review, merely on the basis of them being a voluntary religious association.

 

[88]  Although not provided for in the constitution of the Society, the applicant was in fact afforded an opportunity to be heard, having been given advance notice of the charges he had to answer to, and having prepared extensive written submissions in response. He was in addition invited to ask questions and to clarify certain matters, but he refused this invitation.

 

[89]  There was nothing sinister or untoward about the refusal to allow legal representation, as the Board also sat without a legal representative. With regard to the Board not being independent, this has been accepted by the courts as sometimes being necessary, particularly in religious organisations. I am satisfied that the applicant was not entitled to be tried by an impartial body, especially given the nature of the charges that he was facing.

 

[90]  With regard to the composition of the Board, the applicant raised this aspect as a preliminary issue, even at the hearing. His complaint was that the Board was non­ compliant and improperly constituted, as there were no renunciants serving as members, as required by the constitution. I am satisfied that the constitution, as duly supplemented by Appendix 1, required the Board to be constituted of both renunciants and householders.

 

[91]  The Board that held the disciplinary proceedings, and took the impugned decisions, was not properly constituted in that it did not contain any renunciants as required by its constitution. This has the consequence that the proceedings were vitiated, as the body that took decisions did not have the power to do so.

 

Costs

 

[92]  There was no argument advanced specifically in relation to costs, other than that in each of the applications and the heads of argument of the parties, each sought costs against the other. In such a case, it is only fair that although the applicant was not successful with regard to the declaratory relief, he was still substantially successful and the costs will therefore follow the result.

 

Order

 

[93]  In the result, the following order issues:

1.  The decisions of 10 August 2020 and 28 August 2020, taken by the Board of the Society in relation to the disciplinary process against the applicant are reviewed and set aside.

2.  The declaratory relief sought by the applicant is refused.

3.  The first respondent shall pay the costs of suit, including those of two counsel.

4.  The counter-application is dismissed with costs, including those of two counsel.

 

SIBIYA J

 

Appearances

 

Counsel for the applicant	: A A Gabriel SC Pudifin-Jones (absent for the hearing)* CJ Moodley
Instructed by: Ref:	Anand-Nepaul Attorneys AN: S651: AM
Counsel for the 1st to 11th respondents:	I Pillay SC I Veerasamy
Instructed by: Ref:	Cox Yeats Attorneys R Naicker/ P Barnard/ tg/ 43D578001

Heard on: 28 October 2022

Judgment on: 22 December 2023

 

* Recordal of appearances amended on 11 January 2023, after having checked the applicant's heads of argument

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