IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
In the matter between:
AMRISH BISSOON
and
DIVINE LIFE SOCIETY OF SOUTH AFRICA
AROONA DEVI MANGREY
JOGINDRA KISHNAPPA NAIDOO
MAWALALLCHATROOGHOON
SACHIN HEERAMUN MAHARAJ
AROON SUKHNANDAN
KUMARASEN NAICKER
LOGAN NAIDOO
SANTOSH JAIRAM
RAVEEN HARISUNKER
JUDGMENT
Olsen J (Mathenjwa J & Zwane AJ concurring): Appeal Case no: AR361/2023
Appellan t
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
Sixth Respondent
Seventh Respondent
Eighth Respondent
Ninth Respondent
Tenth Respondent
[1] With the leave of the Supreme Court of Appeal, Mr Amrish Bissoon appeals
against the decision of the court a quo (Ploos van Amstel J) dismissing his application
to review certain decisions made by the first respondent , the Divine Life Society of
South Africa. The decision of the court a quo to dismiss the application followed
findings by the court that the application had been unreasonably delayed, and that the
delay could not be condoned or overlooked .
[2] The primary issue in this appeal is as to whether the decision of the court a quo
to dismiss the application because it was delayed was correct. A decision on the
question as to whether the appellant was entitled to any of the relief he sought is not
reached unless we conclude that the decision to dismiss the application on grounds
of delay was wrong. It is necessary to furnish an account of the nature of the Divine
Life Society of South Africa (which is the first respondent , and which will be referred
to as the "Society") in order to contextualise the enquiry into whether the dismissal of
the application on grounds of delay was justified.
[3] The Society is a religious association or organisation which has its origins in
India. It was founded by a person named Sri Swami Sivananda who was apparently
referred to as the Divine Master. According to Mr Mangrey, the chairman of the
governing Board of the Society who attested to the answering affidavit, the Divine
Master directed one of his disciples referred to in the papers as "Swamiji" to establish
the Society in South Africa, which was done in 1949.
[4] The Society has stressed in its answering papers that the central tenet of the
Society, the central rule to which all its members are bound, is the duty of absolute
2
obedience to the Divine Master. This feature of the Society is perhaps best described
in Mr Mangrey's words.
"In accordance with our tradition, Swamiji controlled the affairs of the Society
on the basis that if any person challenged his authority, that constituted an act
of disobedience and grounds for expulsion. The decision is not open to
challenge .
Disobedience is contrary to the teachings of the Divine Master and is totally
unacceptable . A rejection of this tenet is a rejection of the very essence of the
spiritual doctrine of the Society.
Before Swamiji passed away the constitution of the Society was signed by him
signifying his approval of it. The board was entrusted in terms of the constitution
to run the Society and also to ensure discipline and compliance to the spiritual
doctrine of the Divine Master and Swamiji. Whereas the document is called
"constitution" it is not to be construed as some embodiment of democratic or
constitutional values as legal scholars may understand. It is his will or rather his
rules for the Society. To oppose the board is to oppose the constitution and so
Swamiji and the Divine Master. It is unthinkable ."
[5] Against that background the Society contends that its decisions are not subject
to judicial review. But that point was not pressed by counsel in argument. The
passages just quoted from Mr Mangrey's affidavit are only challenged by the appellant
in one respect; he denies that the board is, as it were, the successor to Swamiji.
Swamiji died not long after the Society's constitution was signed. The appellant points
3
out that, in terms of the constitution, on his death the Society would not have a spiritual
head.
[6] According to the appellant the Society has a few hundred active and committed
"householder members" and a few thousand other persons who attend irregularly .
According to the Society it has an estimated 5000 devotees in South Africa. Both the
appellant and the Society confirmed that there are twelve "renunciants ". These are
individuals who have devoted their lives wholly to the Society, have no possessions
and no home outside of the Society. They must conduct themselves in accordance
with strict rules.
[7] The Society is a voluntary association . One ordinarily looks to the founding
documents of such an association , commonly called its constitution, in order to
determine the provisions of the contract to which members bind themselves when
volunteering membership. However, in this case the constitution is something of a
secret document. A copy of it was put up by the appellant with his founding papers.
That elicited a response from the Society that Swamiji had decreed that the
constitution should never be given to anyone and that those who wanted to view it
could only do so by appointment at a particular branch of the Society. The appellant
does not specifically deny that Swamiji decreed that, but rejects the contention that he
is not entitled to a copy of it on the basis that it has become a public document, having
been lodged with a public authority. It appears safe to conclude on an overview of all
the papers that in practice ordinary members of the Society relate to it upon the footing
that the word of the board is law; and work upon the assumption that the board acts in
all matters in accordance with the teachings of Swamiji, and the Divine Master.
4
However, from the board's perspective , its members obviously being aware of the
provisions of the constitution which are regarded as the product of the teachings of
Swamiji, its conduct and activities are controlled by the constitution to which members
of the Society do not have ready access.
[8] In giving an account of the provisions of the constitution of the Society I shall
confine myself to matters which provide context, and to matters which have or may
have a bearing on the issues raised in this litigation.
a) The principal object of the Society "is to carry out religious, spiritual,
educational and charitable activities within the Republic of South Africa".
b) Whilst the Society may make money from the sale of books and tape
recordings , and so on, of a religious character , and may let out any of its
property not immediately required for its charitable purposes, its principal
income is anticipated to be and is, on the papers, derived from
donations .
c) The Society may establish and maintain centres for the pursuit of
religious ideals, meditation , prayer, and for the accommodation and
training of disciples. It may erect and maintain schools and colleges for
the education of children. It may also establish and maintain hostels,
dormitories , and other homes or institutions.
d) "All the business and affairs of the Society shall be managed and
controlled by the Board of Management , who shall have full power to
carry out the objects of the Society ... ". The Board shall control and direct
policy and the activities of the Society.
5
e) It may create, suspend or disband sub-committees and branches of the
Society and delegate any of its powers to any such sub-committee or
branch or to any office bearer of the Society.
f) The board is empowered to engage and dismiss servants of the Society
and to regulate their terms of service and remuneration .
g) The board is directly responsible for the maintenance of discipline and
standards of morality and behaviour of the members of the Society. It
"shall be the judge of the spiritual suitability of any employee or member
of the Society". It has the power to "accept or to reject any candidate for
spiritual or religious discipleship and to expel from any of the
establishments of the Society of whatsoever nature any spiritual or
religious disciple". It has the power to forbid (or permit) any person,
whether a member of the Society or not, to attend meetings and
gatherings. With regard to these powers the board is not obliged "to give
any reason whatsoever for any decision it may take by virtue of the
powers hereby conferred upon it".
h) One of the central features of the organisation is that the board is in the
nature of a self-appointed governing body. When members leave the
board, successors are appointed by the board itself. With the exception
of the late spiritual head, board members are obliged to retire from the
board at age 65.
i) The board must consist of at least five and not more than 18 members .
j) The constitution may be amended only by a unanimous resolution
passed after not less than ten days written notice is given to all the
members of the board.
6
[9] The Society has an income of between R8 million and R 10 million per year. It
appears that a substantial portion of that income is dedicated to construction and the
maintenance of buildings and facilities. The appellant states in his founding affidavit
that the "Society's construction and critical infrastructure work is conducted via the
projects committee". Some of the members of the projects committee act as, and are
called, "project managers ". Judging from what is said in all the papers these persons
have a more "hands-on" role than other members of the committee. The projects
committee is a committee of the board, and its members are appointed as such by the
board.
[1 O] Membership of the projects committee is voluntary and unremunerated. It is
clear on all the papers in this application that service on the projects committee is
intended to be a contribution to the furtherance of the objects of the religious society
to which members of the committee pledge their allegiance. Membership of the
committee is not intended to be a device for the acquisition of personal gain.
Membership of the committee is entirely voluntary.
[11] Prior to the course of events which gave rise to this litigation the appellant was
a member of the Society's projects committee and one of the project managers . He
was the secretary of the projects committee . He certainly appears to have played a
prominent role in the affairs of the projects committee. The appellant had been a
devotee of the Society since childhood and had chaired the Society's Cape Town
branch since 2012.
7
[12] There is some evidence on the papers that the appellant was at least the senior
or head project manager. He describes himself as "the project manager" but the
Society's answering affidavit asserts that the project management duties were shared
with other members of the project management committee. The papers in these
proceedings do not yield perfect clarity on this issue.
Events leading to this litigation.
[13] Things did not go well with the project committee. A professor employed at the
University of KwaZulu-Natal, who is a member of the committee , became disillusioned
with the appellant's role and, judging from the record, fell into conflict with the
appellant. As early as October 2018 a member of the committee sent an email to
committee members complaining of bickering at project meetings and observing that
of the eight then members of the committee only four were actively involved in project
operations. He expressed the opinion that the projects committee should cease to
operate, that all its members should be removed, and that the board should appoint
new members to fast-track operations. The appellant himself forwarded this email to
the board recording his agreement with the views stated therein.
[14] It is apparent from the papers that matters did not improve, certainly from the
perspective of the appellant. In June 2019 he wrote to the board stating that over the
previous nine months he had been witness to a number of instances where senior
members of the Society, including members of the board, had acted in a manner which
would have serious legal and financial implications for the Society. There followed a
8
flurry of correspondence between the Society and the appellant in the course of which
the appellant expressed his frustration at what he perceived to be the board's
reluctance to take up the issues he had raised. The board instituted what should
probably be regarded as an internal enquiry, utilising the services of its attorney to
investigate the matters raised by the appellant. In August 2019 the attorney reported
that he found no irregularity in the conduct of which the appellant had complained.
[15) On 28 October 2019 attorneys who had been engaged by the appellant wrote
a letter to the board on his behalf. It made allegations of financial irregularities ,
mismanagement and dishonest or unlawful practices. It recorded the appellant's
alleged grave concerns concerning the manner in which the Society's building projects
had been carried out. It alleged that projects had been carried out in conflict with
accepted standard building procedures in that "such building works" might be
dangerous and require further costly remedial work. The letter recorded the appellant's
demand that the members of the board should tender their resignation in writing by
Friday 22nd November 2019 failing which the appellant would take steps to secure their
removal.
The relief sought, and the decision of the court a quo.
[16) The board reacted in mid-November 2019. What the board and its members
who are cited as the second to tenth respondents did, or are alleged to have done,
then became the subject of the present review proceedings in which the appellant
sought an order reviewing and setting aside the decisions of the board
9
"made on or about 15 and/or 18 November 2019 to suspend, prohibit and/or
remove the applicant from:
1.1. attending any workshops, meetings, ashrams or premises of the Society;
1.2. acting as chairperson of the Cape Town branch of the Society;
1.3. acting as project manager on the projects committee of the Society; and
1.4. acting as secretary of the projects committee of the Society."
[17] The appellant also sought what is in effect an order declaring the law applicable
to the conduct of the board. He asked for a declaratory order that disciplinary decisions
made by the board
"must comply with the principles of natural justice, including that any affected
person must have fair prior notice of the decision that may be made against
them, and a reasonable opportunity to make representations concerning that
decision to an impartial and independent decision maker".
It is not the role of a court of law to legislate for, or in effect to draft an amendment or
addition to the constitution of, an association. It is the role of a court to apply legal
principles to a given set of facts and circumstances. Declaring in advance what legal
principles will apply, and must be observed, in all future actions of a type is likely to
cause more harm than good. Not all circumstances of an alleged type are the same.
The prayer for this relief was correctly not pressed before us in argument. I propose
to say nothing more about it.
[18] The appellant's review proceedings were instituted in December 2020, more
than a year after the decisions, or alleged decisions, of the Society were made. In its
10
answering papers the Society raised the issue of delay and asked that the proceedings
be dismissed on that count alone.
[19) The court a quo was informed that the appellant was no longer pursuing
paragraphs 1.1 and 1.2 of the relief he sought in the notice of motion. The issue of
delay accordingly had to be considered upon the basis that the appellant sought to
have reviewed and set aside decisions that he should no longer act either as project
manager on the projects committee of the Society or as secretary of the projects
committee of the Society. Before us the issue has been further confined. The only
relief sought is setting aside the alleged removal of the appellant "as project manager
on the projects committee of the Society".
[20) The learned Judge in the court a quo found that the appellant had not
adequately explained the delay and concluded that it was unreasonable. He found that
there was no basis on the evidence before him on which he could exercise a discretion
to overlook the delay, and was not satisfied that the interests of justice required the
delay to be overlooked.
[21) Before us counsel for the appellant conceded that the delay was unreasonable
and did not argue the point. Accordingly what is at issue is the decision of the court a
quo that the unreasonable delay could not be overlooked.
[22] With reference to Buffalo City Metropolitan Municipality vs Asia Construction
(Pty) Ltd 2019 (4) SA 331 (CC), the appellant argues that the Judge a quo erred in
failing to take into account the potential prejudice to affected parties caused by not
11
entertaining the review, the merits of the legal challenge against the decision sought
to be reviewed and the question as to whether the court is constitutionally compelled
to declare conduct unlawful in terms of section 172(1 )(a) of the Constitution. On the
merits, it is argued that the learned Judge erred by failing to take into account that the
appellant was removed without any hearing or prior notice of any kind, and therefore
contrary to the rules of natural justice; and that the board was not properly constituted
both because it lacked sufficient renunciates and because it was not quorate.
[23] The text of the judgment of the court a quo is a transcript of the judgment
delivered extempore . It is brief. But one can see that the learned Judge was referred,
as we were, to the principles the appellant regards as applicable , the grounds of
review, and the background leading up to the decisions of November 2019. I think it
goes too far to suggest that the court failed to consider the merits of the appellant's
complaints. It is correct that, despite having considered the judgment in Buffalo City,
the learned Judge did not record his assessment of the merits of the appellant's case.
[24] Mr Pillay SC, who appeared for the Society, has argued that the discretion
exercised by the Judge in the court a quo is a discretion in the "true" sense, as a result
of which it would be inappropriate for us to interfere with his decision without finding
that he was influenced by incorrect principles or a misdirection , or did not act judicially.
In my view that is not the correct classification of the discretion exercised in the court
a quo. The court was not confronted with a wide range of equally permissible options.
It could grant or refuse condonation of the unreasonable delay. In making that decision
the court was permitted to take into account the different relevant factors canvassed
in the papers before it. Notionally this court is in as good a position as was the court a
12
quo to make a decision as to whether condonation should or should not be granted. It
is not necessary first to decide whether the Judge acted otherwise than judicially, or
misdirected himself. Nevertheless , when considering the request to overturn the
decision of the court a quo, an appeal court should consider broader policy
considerations and act with caution. (Trencon Construction (Pty) Limited vs Industrial
Development Corporation of South Africa Limited and another 2015 (5) SA 245 (CC),
paragraphs 83 to 89.)
The legal principles relied upon by the appellant.
[25] Buffalo City concerned a legality review. A municipality sought to review its
own conduct in concluding a contract. The appellant's arguments are presented upon
the assumption that it is correct to apply principles governing the approach to
condoning unreasonable delay in a legality review of state action to the common law
review of the disciplinary decisions of a voluntary association. No explanation or
justification for that approach has been presented to us in argument. The two contexts
are quite different. I do not propose to go into this question as in this particular case
following the approach we are urged to by the appellant does not affect the outcome
of the appeal. However it should be made clear that this judgment does not stand as
authority for the proposition that the principles governing the condonation of
unreasonable delay in a legality review of state action apply with equal force to a
review of the proceedings of a domestic tribunal. We make no decision on that issue.
[26] The following principles are extracted from paragraphs 53 to 70 of the judgment
in Buffalo City, selected upon the basis that they might arguably have a bearing on the
13
proper approach to the question as to whether the appellant's delay in this case should
be overlooked.
(a) It is a feature of the rule of law that undue delay should not be tolerated.
There is a public interest in bringing certainty and finality to administrative
action and a court should accordingly be vigilant in considering overlooking
a late review.
(b) A basis for the court to exercise its discretion to overlook delay must be
capable of being gleaned from the facts made available, or objectively
available factors.
(c) The approach to overlooking delay is flexible; context is important.
(d) Potential prejudice to affected parties as well as the possible consequences
of setting aside an impugned decision must be considered.
(e) The nature of the impugned decision must be considered. In conjunction
with that the merits of the legal challenge should be considered. A "clinical
excision" of the merits from the factors to be considered in enquiring whether
delay should be condoned is impermissible . The materiality of any deviance
from legal requirements is a consideration .
(f) Another factor is the conduct of the applicant for relief on review.
14
The conduct of the appellant, and prejudice.
[27] On the assumption that a decision was made to relieve the appellant of his
position as a project manager (a subject to which I must revert), and upon the
assumption that such a stand-alone decision would be of a disciplinary nature, the
appellant knew very soon after that decision would have been made that it had been
made. That is clear from tt:,e fact that, for the existence of such a disciplinary decision,
the appellant relies upon a letter addressed by the Society's attorneys to him on 18th
November 2019 which, he said, notified him of the alleged disciplinary decision. (Thus,
I think, the reference to the date "18th November 2019" in the order he seeks.) He was
equally well aware of the fact that on 15th November 2019 (the other date referred to
in his form of order) the board had resolved to disband the entire project management
committee, a decision he does not seek to have reviewed.
[28] The appellant did not notify the board that he regarded his removal as a project
manager invalid, despite the fact that he obviously knew what is common cause, that
he received no notification of an intention so to remove him as a project manager and
was not afforded a hearing on the subject. On the papers before the court he instead
pursued his allegations of irregularities in the conduct of the board and some of its
members , and complaints that others had been mistreated by the board. He knew that
following the disbandment of the project management committee of which he had been
a member and secretary, the board called for volunteers for positions on a new
committee . He did not volunteer. He knew that following that process a new committee
15
was appointed in December 2019. The earliest notification from the appellant to the
board that he objected to his "removal" that I am able to find in the papers is contained
in a letter dated 21st September 2020 addressed by the appellant's attorneys to the
board. The subject of the letter is a call for mediation , and one of the subjects
mentioned for mediation is "the improper removal of our client".
[29] In the affidavits he has signed in these proceedings the appellant presents
himself as a faithful member of the Society whose predominant if not sole concerns
are the interests of the Society and its works. Implicit in everything that he says about
his role as a project manager is a contention that he is the one person who proved
capable of realising that project management was not running properly, and that there
were indeed material irregularities in the conduct of others when making management
decisions concerning the Society's projects.
[30] Taking these factors into account, in my view it was the responsibility of the
appellant to notify the board forthwith that he challenged the validity of the decision
which led to him no longer being a project manager. Some subsequent delay in the
institution of his review proceedings might have been understandable whilst mediation
with a view to settlement was pursued. Given that, on the appellant's case, his failure
to take any steps to challenge his removal as a project manager would have meant
that project management would continue to be performed in an irregular and arguably
incompetent manner, the failure of the appellant to notify the board immediately in
November 2019 that he contended that his removal was invalid, and to indicate that
legal proceedings would be instituted if the settlement of that issue could not be
reached promptly, is not readily excusable .
16
[31] In the result, on the appellant's version, the Society has been prejudiced by the
appellant's delay both in raising a challenge to its alleged decision to remove him as
a project manager, and by the subsequent further delay in instituting the review
proceedings. If a challenge was to be made to the project management regime of the
Society, involved as it was substantially in charitable construction works, it was
necessary to avoid an extended period of uncertainty amongst its members, and
potential donors, on the question as to whether the proper management of charitable
funds was being undermined. Given the nature of the Society, and the responsibilities
and powers of its board, it is not inconceivable that such misgivings or suspicions
might take on a religious dimension.
[32] On the appellants case he would suffer no measurable prejudice if his delay
was not condoned . He has laid out facts which illustrate that the relationship between
him and the board had broken down entirely. His real demand was that the entire
board should resign and be reconstituted in a manner not sanctioned by the
constitution of the Society. A decision reviewing and setting aside his alleged removal
as project manager would not easily solve any of the problems which the appellant
describes , because on his own case the appellant and the present board cannot work
together. The grant of the relief on review would constitute little more than a point
scored in very much wider conflict. That does not constitute a ground justifying
overlooking the admittedly unreasonable delay.
[33] Finally on the question of prejudice, and in case it should be thought that the
obvious has been overlooked, it must be mentioned that the appellant would suffer no
17
financial prejudice if the review is not heard. The position of project manager is
occupied voluntarily and is unremunerated . If, as a matter offact, the appellant derived
what one might call a secondary financial benefit from occupying a position of a project
manager, then he has not disclosed it.
The merits of the review as a factor.
[34] I turn now to the main criticism of the judgment of the court a quo, that in
concluding that the appellant's delay could not be overlooked , the court failed to take
into account the merits of the review proceedings. Buffalo City is no authority for the
proposition that a court considering the question as to whether unreasonable delay
should be condoned must first decide the merits of the review proceedings . The merits
are a factor which must be considered. The position is put as follows in Golden Core
Trade and Invest (Pty) Ltd vs Merafong City Local Municipality and another [2023] 4
All SA 589 (SCA) para 51.
"Whether a delay should be overlooked does not and should not entail a
determination of the merits of the review or collateral challenge. The merits of
the challenge are to be weighed on the following basis: if the delay is to be
overlooked , is there a challenge that warrants the attention of the court? In other
words, whether there is a serious question to be decided. To decide the merits
assumes the very jurisdiction that is yet to be determined. And more, it
inevitably skews the weighing of factors that Khumalo requires."
(Khumalo and another vs Member of the Executive Council for Education:
KwaZulu-Natal 2014 (5) SA 579 (CC)).
18
[35] The present case is not an occasion for a dissertation on the scope of judicial
interference in the proceedings of voluntary associations . The question raised by the
appellant in his review proceedings is whether, in connection with a disciplinary
decision that he should be removed as a project manager, the applicable fundamental
principles of justice were not observed as a result of which this court may interfere with
the decision. I use the term "disciplinary " to describe the decision both because that is
how the decision has been identified and treated by the appellant in his papers, and
because it is in connection with decisions of that nature that our law permits judicial
interference in the ordinary functioning of a voluntary association. The essential
requirement for interference is that there should have been a deviation from the
associations own rules concerning the process to be followed in disciplining a member
of an association . The fundamental principles of justice (referred to by the appellant
using the term "natural justice") apply either because the rules state so expressly , or
because, given the nature of such proceedings , those principles are implied. The
precise content of such implied rules is not an issue which arises in this case, and
neither does any issue arise as to what the position may be if the rules state in so
many words that in disciplining a member the association shall not be obliged to follow
a just or fair procedure. The constitution of the Society may generate an observation
that it is a licence for despotic conduct on the part of the board of the association . But
it contains no provision which says that in connection with disciplinary proceedings the
fundamental principles of fairness and justice should not be observed.
[36] The appellant's complaint is that a disciplinary decision against him ought to
have been made by an independent body, that he ought to have been advised in
advance of the complaint against him, and that he ought to have been allowed to be
19
heard in defence of his position. Save for the first component of his complaint (about
which there may be some doubt in our law) there seems to be no contradiction
between the appellant's contentions and the usually implied rules of voluntary
associations dealt with in cases such as Turner v Jockey Club of South Africa 197 4
(3) SA 633 (A). Mr Pillay conceded that if there had been a disciplinary decision that
the appellant should be denied the role of project manager, those usual principles
would have applied. If the board itself was conflicted because members of it were
themselves involved, it had the power to appoint a committee .
[37] It is common cause that no such committee was appointed , that no notice was
given to the appellant of any disciplinary proceedings and that the appellant was not
heard in any disciplinary proceedings. What is not common cause is that there were
any disciplinary proceedings at all.
[38] According to the appellant what brought to his notice the fact that there had
been disciplinary proceedings was the letter of 18 November 2019 which he received
from the Society's attorneys . The first 11 paragraphs of the letter are an account, from
the perspective of the board, of the disputes which had arisen between the appellant
and the board concerning the appellant's attack, especially on certain members of the
board, and the complaints he had raised which, if true, would reflect poorly on the
board. It is obviously all very one-sided. The twelfth paragraph of the letter then reads
as follows.
"Finally, and given your clients relentless pursuance of this matter:
20
12.1. the board is of the view that your client is not fit and proper to chair the
Society's Cape Town branch, or make any meaningful contribution to its
project committee ;
12.2. your client appears to be possessed of an ulterior motive that does not
further the mission of the Society;
12. 3. your clients conduct, contrary to his utterances , appears to be destined
to destabilise the institution and create an atmosphere of chaos.
In the circumstances , the board is left with no alternative but to relieve your
client of his duties as chair of the Cape Town branch and a member of the
projects committee."
(My underlining)
[39] The record of the Society's decisions was produced. It includes relevant
minutes of the meetings of the board. There is no minute or record of a decision by
the board to "relieve" the appellant of his duties as a member of the projects
committee. There is no record of any disciplinary proceedings directed at disciplining
the appellant.
[40] There is a resolution of the board taken on 15th of November 2019 to disband
the projects committee with immediate effect, upon the basis that it would be
reconstituted later. This was an operational or management decision. It is the Society's
case that the effect of the disbandment of the projects committee was that the
members of it who were conducting themselves as project managers would no longer
be regarded as project managers. As far as can be determined on the papers this has
21
always been the boards understanding of the position. The resolution to disband the
projects committee is followed by a direction that municipalities should be informed
that the appellant would no longer be operating as a project manager. The argument
for the Society advanced by Mr Pillay is that if there had been a disciplinary decision
it would have post-dated the decision of 15th November 2019 and would have had no
effect whatsoever, as all members of the projects committee, including the appellant,
were no longer on that committee and they had all been advised under the hand of
the secretary of the board by letter or notice dated 16th November 2019 of the decision
of the Society to dissolve the committee.
[41] Perhaps mindful of this difficulty once the record had been provided by the
Society, in his supplementary founding affidavit the appellant sought to make the case
that he had an appointment as a project manager quite independently of his
membership of the project committee. His affidavit does not disclose when he was
appointed in that fashion, and what the terms of the appointment were. The seeds of
the potential rejection of this claim in the main review proceedings were laid in the way
in which he framed his argument for the existence of such a position independently of
membership of the projects committee. He states that it is obvious that the position of
project manager is separate and distinct from service on the projects committee. It is
obvious because "many people serve on the projects committee who are not also the
projects manager". Far from being obvious, the argument does not logically support
the conclusion that there is a separate office of project manager.
22
[42] Furthermore the wording of the relief sought in the notice of motion suggests
that in truth the appellant always saw the position as the board does. He asked for an
order reviewing and setting aside the decision of the board to remove him from
"acting as project manager on the projects committee of the Society".
It is self-evident that if the projects committee of the Society was dissolved , the
appellant automatically ceased to be a "project manager on the projects committee of
the Society". The decision to dissolve the committee was an operational or
management decision. That is presumably why it was not challenged by the appellant.
[43] I conclude that on this, the main pillar upon which the appellant rests his claim
to have prospects of success, the appellant has failed to establish that his case is a
compelling one which demands a hearing.
[44] I turn to the contention that the board was not properly constituted at the
material time. The supplementary submission, that when the board allegedly made a
disciplinary decision affecting the appellant, it was not quorate, was not pressed in
argument. In terms of the constitution a quorum is five members of the board. There
is no evidence that any decision which may have a bearing on these proceedings was
taken by board members numbering less than five.
[45] The constitution to which I have referred to in this judgment is the one signed
at Durban on 1st September 2007, and produced by the appellant as an annexure to
his founding papers. It provides that the board shall consist of at least five and not
23
more than eighteen members. The Society's answering papers admit that the
constitution annexed to the founding affidavit is the constitution of the Society.
[46] The contention that the board was not properly constituted is directed at both
its numbers and composition . In his replying affidavit the appellant introduced another
(unsigned) version of the constitution which he had plucked from papers delivered in
an application which bears a 2008 case number. The advantage he seeks to gain from
that is that this different version of the constitution provides for the board to be
comprised of at least ten and not more than twenty-one members. In his replying
affidavit he in effect challenged the Society to deliver a fourth set of affidavits to deal
with his contention in reply that this second version of the constitution is in fact the
correct one. It is argued that the Society's failure to take up that challenge would lead
the court hearing the review to conclude that the second version of the constitution is
the correct one.
[47] This argument is without merit.
a) Once the Society accepted as true the allegation by the appellant in his
founding affidavit that the signed constitution is indeed the constitution of
the Society, each of the parties was in the position of a litigant who had
made an admission . There was no /is between the parties as to the text of
the constitution. The door was closed against the introduction of any other
version of the constitution . To open it the appellant would have had to apply
for leave to supplement his founding affidavit with an affidavit explaining his
error in recognising the signed constitution , and proving the provenance of
the second version. He would have been asking for leave to withdraw a
24
material admission. The appellant had no right to pursue that course in
reply.
b) The evidence relied upon by the appellant is an extract from the affidavit of
the person who produced the second version of the constitution in the
proceedings dating from 2008. It is hearsay and inadmissible.
c) The heading of the second version of the constitution reveals that, if it had
been approved, it would have been passed by way of an amending
resolution of the board of management "dated ....... 2008". The date of the
amending resolution does not appear in the document, and it is unsigned at
the end.
[48] The appellant then relies on a document which is appendix 1 to the Society's
constitution headed "Important decisions taken by the board of management". It
contains a list of dated decisions taken by the board of management between 1998
and 4th August 2007; that is to say decisions which the board had taken before the
constitution was signed on 1st September 2007. The appendix reflects a board
decision made on 15 March 2003 that the board would comprise both householders
and renunciants. The appellant's argument is that the board was comprised wholly of
householders.
[49] There are in fact two appendices to the constitution. Appendix 2 is headed
"Restrictions on named persons". Some of them have been banned for life from the
Society. Others have been forbidden from living at a certain place such as La Mercy.
Yet others had restrictions placed on them as to how they might participate in the
Society's affairs.
25
[50] Appendix 1 contains similar restrictions on particular persons, and otherwise
furnishes directions as to behaviour and the conduct of religious devotion. Clause 33
of the constitution introduces the two appendices .
"The following appendices are supplementary attachments to this constitution ".
The appellant relies upon the judgment of Sibiya AJ in Parshotam v Divine Life Society
of South Africa and others (2023] ZAKZDHC 100 (22nd December 2023) which holds
that appendix 1 contains provisions of the constitution ; as a result of which, by reason
of the March 2003 decision of the board, there is an additional requirement concerning
the composition of the board, that it should include renunciants . This is no occasion to
make a decision as to whether on this issue Parshotam was correctly decided. We are
not deciding the review, but rather considering its potential merits. However, there is
a substantial argument for the proposition that on this issue Parshotam was wrongly
decided. Most of the so-called important decisions made and recorded in appendix1
are not constitutional provisions at all. But the decision of March 2003 (the last one on
the subject of the composition of the board) is of a type that could be regarded as
suitable for inclusion in a constitution. But why, if it was intended to entrench in the
constitution a requirement that there should be both renunciants and householders on
the board, was it not included in the clause which provides that the board should
consist of at least five and not more than eighteen members? The constitution provides
for its amendment following a special procedure. If it was seriously contemplated that
the March 2003 decision of the board could only be amended following that procedure ,
then it is startling indeed that the requirement that the board should comprise both
householders and renunciants was not included in the text of the constitution .
26
[51] As it turns out it is common cause on the papers that of the ten members of
the board appointed at the time material to the review proceedings , eight were
householders and two renunciants . However, the two renunciants were under
suspension ; but they were not removed from office.
[52] The conclusion must be that if the merits of the review were to be decided, the
appellants prospects on the ground that the board was wrongly constituted does not
enjoy good prospects.
[53] The submission made by counsel for the appellant is that a consideration of the
merits of the review proceedings must result in a conclusion that the appellant would
enjoy good prospects of success. In my view that submission is wrong. Accordingly ,
the submission that in terms of section 172(1 )(a) of the Constitution of the Republic of
South Africa a court confronted with review proceedings such as these is compelled
to declare conduct unlawful "where the unlawfulness of the impugned decision is clear
and not disputed" also lacks a foundation . (Why section 172(1)(a) of the Constitution
applies to common law review of domestic tribunals or private associations was not
explained in argument for the appellant.)
[54] Finally, in support of his argument that his delay should have been overlooked ,
the appellant argues that the Society, through the deponent to its affidavits, has
committed perjury (or rather statutory perjury), and that such conduct ought not to pass
uninterrogated and undecided , merely because of the appellant's delay in pursuing his
review. This alleged ·conduct post-dates both the events which are the subject of the
review proceedings, and indeed the institution of review proceedings. There would be
27
no need for the court determining the review to consider the question as to whether
any false evidence had been put up by the Society concerning events which happened
later. I am in any event quite unsatisfied that the appellant's accusations of perjury
have been established , even prima facie.
Conclusion.
[55] After examining the material that the appellant says the learned judge a quo
ought to have considered but did not consider, no reason to upset the decision of the
court a quo emerges. Those considerations aside, the judge's finding that the delay
was unreasonable is no longer challenged. In my view his finding is unassailable that,
on the evidence before him, there was no basis on which he could exercise his
discretion to overlook the delay.
[56] The Society launched an application in advance of this appeal to be permitted
to lead further evidence of events which post-dated the judgment of the court a quo.
The evidence is to the effect that a decision had been made to disband the project
management committee altogether as a result of which there is no position left for the
appellant to occupy if he should succeed in the appeal. The application to lead further
evidence was opposed. There is no need to consider the application as granting it
would not affect the outcome of this appeal.
[57] The following order is made.
a) The appeal is dismissed with costs, including the costs of two counsel where
employed . The costs of senior counsel shall be taxed on scale C and those
28
of junior counsel on scale B.
b) There shall be no order as to the costs incurred in the application to lead
further evidence.
Olsen J
njwa J
29
Case Information:
Judgment reserved:
Judgment delivered:
For Appellant:
Instructed by:
For Respondent:
Instructed by: 31 January 2025
D Simonsz
K Makhanya Inc
5th Floor, Royal Towers
30 Dorothy Nyembe Street
Durban
Tel: 031 305 0982
Email: khulekani@kmakhanyainc .co.za
kmakhanyainc@gmai l.com
Ref: KM: 0001
c/o Cajee Setsubi Chetty
195 Boshoff Street
Pietermaritzburg
Tel: 033 345 6719
Email: asifessa@csci.co.za
Ref: Mr Essa
I Pillay SC with I Veerasamy
Cox Yeats Attorneys
Ncondo Chambers , 45 Vuna Close
Umhlanga Ridge
Durban
Tel: 031 536 8500
Email: pbarnard@coxyeats.co.za
rnaicker@coxyeats .co.za
Ref: R Naicker / P Barnard / ac / 430578002
30