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2024
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[2024] ZAMPMBHC 50
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Ackerman v Mbombela Golf Club (5584/2023) [2024] ZAMPMBHC 50 (19 July 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
MPUMALANGA
DIVISION ( MAIN SEAT )
Case
No:
5584/2023
1.
REPORTABLE: YES/ NO
2.
OF INTEREST TO OTHER JUDGES: YES/NO
3.
REVISED.
DATE
19 JULY 2024
[SIGNED]
SIGNATURE
In the matter between:
GERHARDUS JACOBUS
ACKERMAN
APPLICANT
And
MBOMBELA
GOLF CLUB
RESPONDENT
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email and release to
SAFLII.
The date and time for hand-down is deemed to be at
11h30
on 19 JULY 2024.
JUDGMENT
MSIBI
AJ:
1.
The applicant brought review proceedings in terms of Rule 53 of the
Uniform Rules for the review and setting aside of the decision
of the
respondent to permanently ban him from membership. The application is
opposed.
2.
The applicant is Mr Gerhardus Jacobus Ackerman, a Chartered
Accountant who has been a resident of Matumi Golf Estate for 25
years. He was a member of Mbombela Golf Club (the respondent) from
2000 to 2016.
3.
The respondent is Mbombela Golf Club, a voluntary association which,
in terms of its constitution, is a juristic person who may
act or be
acted against in its name and address at Matumi Estate, Wilhem
Street, Mbombela.
4.
The golf club has rules that are embodied in the Mbombela Golf Club
Constitution and all members are obliged to comply therewith.
Background
5.
The following facts are largely common case.
6.
The applicant served as a captain of the club from 2013 to 2015. In
2016 during a club meeting a certain member of the respondent
made
derogatory remarks to his wife while she was discussing a document.
Aggrieved by the said remarks, the applicant responded
with
derogatory remarks to the person who made the remarks. He was
subsequently found guilty at a disciplinary hearing of behaviour
unbecoming of a member of the respondent. He appealed against the
conviction and expulsion, but later abandoned same.
7.
As a result of his expulsion the respondent was banned from playing
golf on the estate, attending homeowner’s association
and
general meetings as theses were held in the premises of the golf
club.
8.
Eight years after his expulsion, the applicant applied for
re-admission as a member of the respondent as prescribed in clause
8
of the constitution. This was rejected by the respondent on 26
September 2023.
9.
Consequent to the rejection the applicant launched this application
in terms of Rule 53 and Rule 6 in order to have the decision
reviewed
and set aside.
Reasons
for the rejection of application for re-admission.
10.
After completing necessary membership application forms as prescribed
by clause 8 of the respondent’s constitution; the
applicant
received a reply from the respondent dated 27 September 2023 which
stated as follows:
“
As
previously communicated to you, your application for membership is
indirect breach of the club’s constitution in terms
of clause
18.7 which reads as
“
18.7.
After the hearing and or investigation of any complaint as to the
conduct of a member, the vice-captain, or in his absence,
a nominated
management committee member shall have the power to:
18.7.1
Expel such member, such member shall be ineligible for reelection
forthwith and all monies paid to the club by him shall
be forfeited”
In
light of the outcome of your disciplinary enquiry dated 29 April 2016
where you were expelled, we hereby inform you that your
application
for membership has been declined
”
11.
The rejection of the applicant’s application for re-admission
was met with resistance and after correspondence was exchanged,
the
applicant’s legal representative instituted these review
proceedings. The applicant contended that based on the content
of the
respondent’s letter the applicant’s application was
declined due to the fact that he was expelled in 2016, he
cannot
again be re-elected into membership. The applicant further referred
this court to the minutes of the meeting at which the
membership of
the applicant was rejected that read as follows:
“
DP
informed the meeting that an application for the life banned golfer
Jaco Ackerman was received just prior to the AGM. As discussed
in
previous meetings, this application is in contradiction of MGC
constitution, clause 18.7.1 and a formal reply from the club
was
still required to be sent to Jaco Ackerman. SS to check the contents
of the letter prior to DP sending. NE suggest we get opinion
to check
on if our club’s constitution will stand up to the
constitutional master [sic]”
The
rules
12.
Both parties referred this court to clause 14.2 of the respondent’s
constitution which stipulates as follows:
“
14.2
A member who has been designated a default are or who has been
requested to resign or who has been expelled from membership
shall
not be legible for readmission to the club, unless re-admission is
recommended by two thirds (2/3) majority of the management
committee…”
13.
The issue before this court is not the legitimacy of the applicant’s
expulsion in 2016, but the rejection of his application
for
re-admission as a member.
14.
It was argued on behalf of the applicant that the contents of the
letter does illustrate the fact that (DP) Mr Plumb only informed
the
committee that the plaintiff’s application was in contradiction
to the NSG constitution, namely clause 18.7.1 and that
a letter will
be sent to him informing him of the committee’s decision. This
stance is also confirmed In a letter dated 12
April 2023 pertaining
to the conduct of one Mr Chris Koch which stated as follows:
“
We
can only again advice, and as per our warning letter, that Mr
Ackerman is serving a lifetime suspension from the club and facility
in terms of the club’s constitution”
15.
It was further submitted on behalf of the applicant that the
committee’s decision in this regard was procedurally unfair,
arbitrary and materially influenced by an error in law. This was
contrary to section 6 of Act 3 of 2000 (Promotion of Administrative
Justice Act)
16.
It was also argued that according to common law precepts he had a
right to appear before the committee and be heard before the
committee could decide to reject his application for re-admission.
Consequently, he contests the committee’s rejection of
his
application and prays that the committee’s decision be set
aside.
17.
The respondent argues that the provisions Act 3 of 2000 do not apply
in that the application for re-admission does not constitute
an
administrative action under the Act. It constituted an executive
action which is not reviewable in terms of PAJA, so continues
the
argument. Based on this alone the application should be dismissed
with costs.
18.
In terms of section 21 of the Superior Courts Act, a division has
jurisdiction to adjudicate causes of action arising within
its area
of jurisdiction. The cause of action in this application arose within
the area of jurisdiction of this court, as such
this court has
jurisdiction to hear this application.
19.
The respondent argues that in terms of clause 18.7, the committee has
authority to expel a member, who shall then be ineligible
for
re-election. Such a member can be deprived of all right and
privileges of his membership during such time or period. By virtue
of
the respondent’s clauses and the fact that their relationship
is contractual in nature, the respondent’s committee
holds
absolute discretion regarding the applicant’s re-admission
20.
It is also true that cause 18.7 and 14.2 are mutually destructive.
Despite this fact, both clauses are mandatory and have to
be complied
with regarding admission, expulsion and re-admission into the club’s
membership. The applicant was once a member
of the respondent’s
club and also served as a captain of the club. Although clause 18.7
validates and confirms the applicant’s
termination of
membership, clause 14.2 gives him a fair opportunity for his
re-application for membership to be heard and decided
by a two thirds
majority.
Considerations
21.
The applicant has been a home owner in the golf estate for 25 years.
This is the place he calls home, for himself and his family.
The
initial termination and expulsion was a due punishment for his
conduct. For the said number of years, he could not interact
freely
in the club, in home owner’s meetings and other events at the
club. To label the applicant as the “life banned
golfer Jaco
Ackerman” during his second application for re-admission was
procedurally unfair. This creates the impression
that a decision had
already been made by the member chairing the meeting. It also gives
an impression that the application for
re-admission was not open for
discussion by the committee.
22.
When one considers the minutes of the meeting it is clear that it was
not the committee that rejected the applicant’s
application but
rather the directive of Mr Plumb. If the decision was made by the
committee the minutes of the meeting would need
no interpretation.
23.
This goes against the rules of natural justice; the applicant had a
right to be heard and to have his application adjudicated
fairly in
terms of clause 14.2. It is highly possible, given the 8-year ban
that he had been living under, that he might have learnt
a lesson
from his previous conduct. The only way for the committee to know
this was for them to hear what he had to say. What if
he had
compelling submissions that he wanted to bring before the committee?
The stance taken against this application suggest bias
on the side Mr
Plumb. If there was no bias, he would have allowed the committee to
make decision as directed by clause 14.2. On
this matter he acted
beyond the scope of the mandate given to him by the constitution. The
bias that the applicant demonstrated
in this matter is a more
fundamental kind which involves pre-judgment of the matter.
[1]
24.
As it was held in
Turner
v Jockey Club South Africa
[2]
domestic tribunals must follow a fair procedure to afford persons a
fair hearing and allow them to present their evidence. Fair
play must
be observed, and this must be done honestly and impartially. A
tribunal must make fair and bona fide findings of fact,
acting
honestly and in good faith.
25.
Mr Plumb’s decision is one sided and biased in that it was
based on rule 18.7. He negligently or intentionally omitted
to
consider and draw the attention of the committee to clause 14.2 of
the Constitution. The fact that he refers the applicant as
‘the
life banned Jaco Ackerman’ indicates a pre-conceived notion
that he will not allow him to be re-admitted. By so
doing he conveyed
to the rest of the committee that the application is doomed to fail,
since it was not even supposed to be heard
in the first place.
26.
Seeing that clause 14.2 prescribes the manner in which the committee
should be constituted and the procedure to be followed
in deciding
the application of a previously banned member, it was of paramount
importance that this clause is complied with. From
the wording of the
minutes this was not done.
27.
The rejection of the applicant’s application for re-admission
undoubtedly failed to comply with both procedural and substantive
grounds.
Order
In
the result the following order is made:
a) That
the decision taken by the management committee of the respondent on
26 September 2023, in terms of which
the application for membership
by the applicant was rejected, is reviewed and set aside.
b)
The respondent is ordered to pay the costs of this application on the
scale
as between attorney and own client.
S
MSIBI
JUDGE OF THE HIGH
COURT
MPUMALANGA DIVISION
MBOMBELA
DATE
OF HEARING:
28
MAY 2024
DATE
OF JUDGMENT:
19
JULY 2024
APPEARANCES
FOR THE APPLICANT:
MR
G K SLABBER ON INSTRUCTIONS OF SLABBER ATTORNEYS INC.
FOR
THE RESPONDENT:
Adv.
JA VAN WYK ON INSTRUCTIONS OF SWANEPOEL AND PARTNERS INC.
[1]
1 Trustees for The Time Being of the Legacy Body Corporate v BAE
Estates (PTY) Ltd
2022 (1) SA 424
at page 39)
2
2 1974 (3) 6333 (A)