SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 2025-036069
In the matter between:
In the matter between:
CUTHBERT KING CHANETSA First Applicant
MIKE HENRY Second Applicant
and
ERROL PLAATJIES First Respondent
THE CATHOLIC ORDER OF THE KNIGHTS Second Respondent
OF DA GAMA
ROBIN MERVYN BUYS VAN DER WALT Third Respondent
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the parties/their legal
representatives by email and by uploading it to the electronic file of this matter on
Caselines. The judgment is deemed to have been handed down on 25 May 2026.
JUDGMENT
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
______________ _________________________
DATE SIGNATURE
- 2 -
MENTZ AJ
Introduction
[1] The second respondent, the Catholic Order of the Knights of Da Gama ( the
Order) is a voluntary association and registered non- profit organisation
established as a Catholic brotherhood rooted in the Christian faith and values.
The Order is governed by its Constitution, Laws and Code of Honour (CLC).
[2] This is an application for the review and setting aside of a decision taken on 2
October 2024 by the Order to expel the first and second applicants as members
of the Order and dismiss them from the positions held within the Order (the
impugned decision). The applicants respectively held the positions of Supreme
Advocate and Supreme Treasurer with the Order prior to their expulsion.
[3] The first respondent, Mr Plaatjies, was at all material times the Supreme Knight
of the Order, and the third respondent, Mr Van der Walt, served as Supreme
Counsellor and general manager of the Alan Woodrow Park retirement homes
(AWP), a property portfolio owned and operated by the Order.
[4] AWP comprises an extensive property portfolio of retirement homes and frail
care facilities in Pretoria, Boksburg, Welkom and Brakpan. It is managed by a
Board of Management comprising members and trustees of the Order. The first
applicant was appointed vice chairman of the Board of Management, and the
second applicant was later appointed to that Board.
[5] From approximately 2023, tensions arose between the applicants on the one
hand and certain office- bearers and management personnel (particularly the
third respondent and the chairman of the Board of Management, Mr Anthony
Beale) on the other. The applicants raised concerns about governance failures
at AWP, including inadequate provision of financial information to the Board
and incomplete, vague financial reporting. They also complained of back -dated
employment contracts for the third respondent and AWP’s financial manager,
substantial salary increases and a large vehicle loan to the third respondent
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allegedly approved without proper Board oversight, and the failure to submit
consolidated accounts to SARS since 2020.
[6] The respondents contend that these concerns were either unfounded or raised
in bad faith after the first applicant developed a personal grievance against the
third respondent following a disagreement over voting procedures at a Board
meeting in 2023. According to the respondents, the applicants' conduct became
increasingly disruptive, undermining the authority of the Supreme Knight,
refusing to attend meetings unless on their own terms, and threatening not to
reimburse legitimate expenses incurred by other officers.
[7] A trustee meeting scheduled for 26 September 2024 to address the escalating
conflict proceeded without the applicants, who declined to attend on the basis
that no agenda had been provided and that the meeting was premature.
According to the applicants the meeting was converted, without notice to them,
into a disciplinary enquiry. On 2 October 2024, the applicants received letters
informing them that they had been expelled from the Order with immediate
effect.
[8] The applicants were charged, found guilty, and expelled without prior
knowledge of a disciplinary inquiry or the charges against them . It was
conceded in argument by counsel for the respondents that the charges were
only communicated to the applicants after the fact, and that they were not
informed of the disciplinary proceedings in advance of it having taken place.
[9] The application was encumbered by three interlocutory applications brought in
terms of Rules 30 and 30A, and by no fewer than ten points in limine raised by
the respondents. In all, eighteen (18) affidavits were filed: nine in the main
application, and a further nine in the three Rule 30 and/or 30A applications.
This proliferation of procedural issues did little to advance the determination of
the real dispute between the parties and resulted in a substantial increase in
the real dispute between the parties and resulted in a substantial increase in
the volume of papers and costs. It f urther created the impression that
procedural objections were being pursued at the expense of engaging with the
substantive issues in dispute.
The interlocutory Rule 30/30A applications
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[10] In summary, the interlocutory applications brought in terms of Rule 30/30A are:
a. An application by the applicants on 23 July 2025 to strike out
supplementary affidavit s filed by both the first and second respondents
respectively, wherein the complaint was that the applicants did not apply
for condonation of the late filing of their replying affidavits either in the
filing notice or by way of a separate notice. The applicants then brought a
Rule 30 application to set the first and second respondents ’
supplementary affidavits that complain about the late filing of the replying
affidavit aside (the first Rule 30 application).
b. An application by the third respondent on 11 August 2025 to strike a
notice in terms of Rule 6(15), filed by the applicants on 2 July 2025, where
they seek to strike certain paragraphs from the third respondent’s
answering affidavit. According to the third respondent, this notice in terms
of Rule 6 (15) was not supported by a founding affidavit and did not
comply with the Rules of Court (the second Rule 30 application)
c. An application by the first and second respondents on 3 September 2025
to set aside the first Rule 30/30A application brought by the applicants on
23 July 2025 (the third Rule 30 application).
[11] None of these interlocutory Rule 30/30A applications, if granted, would finally
dispose of any material issue between the parties. On the contrary, they
concern matters that do not advance the merits of either party and have
required this court to expend considerable time and resources traversing a
voluminous record in order to determine issues that did not advance the
resolution of the substantive dispute or the orderly conduct of the proceedings.
The first Rule 30 application
[12] The two supplem entary affidavits filed by the first and second respondents
respectively, opposing condonation for the late filing of the applicants’ replying
affidavit, were deposed to by the same deponent and contained the same
affidavit, were deposed to by the same deponent and contained the same
information. The Rules of Court do not make provision for further affidavits to
be filed without the leave of the Court. In these circumstances the applicants
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were entitled to bring the first Rule 30 application, although it did not contribute
to the resolution of any material issue between the parties.
[13] From the timeline it appears that the applicants’ replying affidavit in the main
application was filed two days late. That minor delay resulted in the filing of
eight additional affidavits: two supplementary affidavits by the first and second
respondents opposing condonation, a full set of affidavits in the first Rule 30
application, and a further full set in the third Rule 30 application, which sought
to set aside the first. This sequence of interlocutory steps was unnecessary and
inconsistent with the efficient conduct of litigation.
[14] No prejudice has been alleged or shown by the respon dents for the filing of the
replying affidavits two days after it was due. Condonation for the late filing of
the replying affidavit is accordingly granted.
The second Rule 30 application
[15] In the second Rule 30 application brought by the third respondent, the
complaint is directed at a notice filed by the applicants in terms of Rule 6(15) to
strike certain paragraphs from the third respondent’s answering affidavit. The
Rule 6(15) notice states that application will be made at the hearing for the
striking out of certain paragraphs in the third respondent’s answering affidavit. It
then lists the paragraph numbers in prayer 1, and in prayer 2 states that the
striking out is sought on the basis t hat the allegations are (a) vexatious; (b)
scandalous; (c) defamatory; (d) irrelevant; or constitute new matter/evidence.
[16] The second Rule 30 application is based on the contention that the notice does
not comply with the Rules of Court in that it is not supported by a founding
affidavit, it does not provide for the filing of an answering affidavit that would
allow for the third respondent to counter the allegations made, and that no
basis is set out why the paragraphs referred to in the notice should be struck.
basis is set out why the paragraphs referred to in the notice should be struck.
[17] Applications under Rule 6(15) are interlocutory in nature and governed by Rule
6(11). Such applications must be brought on notice and Rule 6(11) is clear that
it may be supported by affidavits as the case may require. A supporting affidavit
is therefore not an essential requirement for filing a notice under Rule 6(15).
- 6 -
[18] In the premises there is no merit in the second Rule 30 application brought by
the third respondent and it is dismissed.
The third Rule 30 application
[19] I turn to deal with the third Rule 30 application brought by the first and second
respondents on 11 August 2025 to strike out the first Rule 30 application
brought by the applicants. The notice of motion is headed ‘This Respondent’s
Notice in terms of Rule 30(2)(b)/Rule 30A – Irregular Step’. The main complaint
is that the notice is not in accordance with Form 2(a), and that the notice does
not provide the respondents with an opportunity to oppose the application or file
answering affidavits.
[20] Despite the alleged deficiencies in the notice, t he first and second respondents
nevertheless filed an answering affidavit to the applicants first Rule 30
application on 7 August 2025. Rule 30(2)(a) is clear: an application in terms of
Rule 30 to set aside an irregular step can only be made if the applicant has not
himself taken a further step in the cause with knowledge of the irregularity. In
this case the first and second respondents had taken the further step of filing an
answering affidavit in the first Rule 30 application.
[21] Further, given the finding that t he applicants were entitled to file the first Rule
30 application, the third Rule 30 application stands to be dismissed.
In limine points raised by the respondents
[22] Counsel for the respondents handed up a new set of heads of argument on the
morning of the hearing, with an apology that, due to an earlier oversight, the
incorrect heads of argument had been provided to the court and to the
applicants and uploaded onto Caselines. In the revised heads of argument, the
respondents persisted with no less than ten (10) points in limine, most of which
were, in my view , without substantive merit and served only to delay and
complicate the proceedings. None of these is dispositiv e of the application as a
complicate the proceedings. None of these is dispositiv e of the application as a
whole or of any material aspect of the dispute. I deal briefly with each point.
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(i) Non‑compliance with Rule 41A: the notice of motion predates the
commencement of the mandatory mediation protocol in this Division.
The applicants did not initially file a Rule 41A notice but did so after the
objection was raised. The respondents, while alleging prejudice,
themselves did not comply with Rule 41A(2)(b). Nothing prevented them
from filing the notice or inviting the applicants to mediation. This point is
not dispositive of the action and is dismissed.
(ii) Defective notice of motion (Form 2A) : t he applicants proceeded under
Rule 53, affording the respondents more time to respond than under
Rule 6. Despite claiming uncertainty about the procedural basis and the
decision under challenge, the respondents filed three answering
affidavits, each explaining the basis for the impugned decision. They
also contended that the notice of motion was an irregular step but
brought no application under Rule 30. There is no demonstrated
prejudice. This point cannot be upheld.
(iii) Misjoinder of the first respondent : the complaint is that the first
respondent is cited in his personal capacity, while he acted at all times in
official capacity. The citations of the first and third respondent in the
founding affidavit read as follows:
‘4. The first respondent is Errol Plaatjies, the Supreme Knight of the Catholic
Order of the Knights of Da Gama, with his principal place of business located
at 8[…] […] Street, E[…] , Gauteng. The first respondent is cited herein as the
person in control of the second respondent and responsible to review and
affirm the decision of the third respondent.
6. The third respondent is Robin Mervyn Buys van der Walt, the Supreme
Counsellor of the Catholic Order of the Knights of Da Gama, with his principal
place of business located at 8[…] […] Street, E […] , Gauteng. The third
respondent is cited herein in his capacity as the initial decision- maker
responsible for the offending conduct.’
responsible for the offending conduct.’
a) In my view it is clear that the first and third respondents were
both cited in their representative capacities as office- bearers of
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the second respondent. Given their positions and involvement,
they have a direct and substantial interest in the matter. There is
no misjoinder and this point in limine is dismissed.
(iv) Lack of jurisdiction over the first respondent : the Order has its registered
address within the jurisdictional area of this court. The cause of action
has further arisen within this court’s area of jurisdiction when the
impugned decision w as made at a meeting held within the jurisdictional
area.
a) Clause 21(2) of the Superior Courts Act 1 provides that this court
also has jurisdiction over other parties to the proceedings, as
long as they reside or are within the area of jurisdiction of any
other Division.
b) As the first respondent, who resides in Gqeberha in the Eastern
Cape Province, is a party to these proceedings and resides
within an area of jurisdiction of another Division of the High
Court, this court has jurisdiction over him as well. J urisdiction is
accordingly established and this point in limine has no merit.
(v) Incorrect legal framework: P romotion of Administrative Justice Act
2
(PAJA) versus contractual review : the respondents contend that the
applicants have brought a PAJA review. The papers do not support this.
The applicants do not invoke PAJA but rely on the Constitution of the
Order and the common‑ law principles of natural justice. References to
procedural fairness, bias, a record and substitution do not of themselves
transform the matter into a PAJA review. Nor is there a basis for the
suggestion that a common‑law review cannot make use of a record. This
point in limine cannot be sustained.
1 Act 10 of 2013. Section 21(2) reads: ‘A Division also has jurisdiction over any person residing
or being outside its area of jurisdiction who is joined as a party to any cause in relation to
which such court has jurisdiction or who in terms of a third party notice becomes a party to
such cause, if the said person resides or is within the area of jurisdiction of any other
such cause, if the said person resides or is within the area of jurisdiction of any other
Division.’
2 Act 3 of 2000
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(vi) Failure to exhaust internal remedies : the respondents argue that the
applicants were obliged to exhaust internal remedies. That requirement
arises in the context of PAJA and does not, without more, apply to a
common‑law review based on contract. The provision on which the
respondents rely, section C.13 of the CLC, does not regulate disciplinary
proceedings or establish an appeals process. In addition, the
correspondence indicates that any appeal would almost certainly have
resulted in the same outcome. There was no obligation on the applicants
to exhaust an internal appeal before approaching this court.
(vii) New matter in reply : the respondents complain that new, personal
allegations were introduced in reply. Whatever was said in reply does
not alter the central question: whether the applicants were informed of
the disciplinary hearing and the charges and afforded an opportunity to
be heard before being found guilty and expelled. Allegations of a
personal nature are not material to that enquiry and have been
disregarded. The applicants have made out their case in the founding
papers, on which the matter is deci ded. This point is not dispositive of
any issue and does not justify dismissal of the application.
(viii) Incompleteness and defectiveness of the founding papers : the
respondents contend the impugned decision is not clearly identified. The
notice of motion identifies the decision of 2 October 2024, expelling and
dismissing the applicants, as the decision to be reviewed. The founding
affidavit specifies section I.2 of the CLC as the provision not followed
and explains both the factual basis and the alleged breach of natural
justice. Read as a whole, the founding papers set out a complete cause
of action. This point is without merit.
(ix) Absence of a Rule 53 record obligation: the respondents contend that
Rule 53 is inapplicable and that they were not obliged to file a record.
Rule 53 is the rule governing review proceedings, and the applicants
Rule 53 is the rule governing review proceedings, and the applicants
were entitled to invoke it. The respondents did not file a record; the
applicants elected to proceed on the available material without
- 10 -
compelling further production. No prejudice to the respondents has been
shown. This point in limine is dismissed.
(x) The Plascon ‑Evans rule and alleged disputes of fact : the respondents
submit that extensive disputes of fact preclude relief. While there are
differences in the parties’ accounts on some peripheral matters, there is
no material dispute on the central issue. It was conceded at the hearing
that the applicants were only informed of the disciplinary hearing and the
charges after the event. Neither the CLC nor the principles of natural
justice permit the dismissal of members without affording them an
opportunity to participate and to be heard. This point is accordingly
without merit.
[23] The points in limine raised by the respondents accordingly fall to be dismissed.
Merits
[24] The nature of the relationship between a voluntary association and its members
has been authoritatively settled in our law in Theron en Andere v Ring van
Wellington van die N.G. Sendingkerk in Suid- Afrika en Andere
3 where the
Appellate Division held that the relationship between a voluntary association
and its members is contractual in nature.
[25] The Order is a voluntary association governed by its CLC, which constitutes the
contract between the Order and its members and which regulates the rights
and obligations of the members inter se and between members and the Order.
The CLC is the contract that governs the relationship, and neither party may
depart from it unilaterally.
[26] In Turner v Jockey Club of South Africa
4 the Appellate Division held that a
domestic tribunal must adopt a procedure which would afford the person
charged a proper hearing by the tribunal, an opportunity of producing his
evidence and of correcting or contradicting any prejudicial statement or
allegation made against him. The court further held:
3 1976 (2) SA 1 (A)
4 1974 (3) SA 633 (A) at 646
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‘The tribunal is required to listen fairly to both sides and to observe the “principles of
fair play”… in addition to what may be described as the procedural requirements, the
fundamental principles of justice require a domestic tribunal to discharge its duties
honestly and impartially…They require also the tribunal’s finding of the fact on which
the decision is to be based shall be “fair and bona fide”. It is, in other words, “under an
obligation to act honestly and in good faith.”’
[27] In Klein v Dainfern College and Another 5, in dealing with decisions of a
domestic tribunal reviewable under common law, Claassen J referred to earlier
authorities for purposes of establishing the grounds upon which a decision may
be reviewed:
‘Where one deals with a domestic tribunal created by contract, the elementary
principles of natural justice may still be applicable despite the advent of the
constitutional era. It has been stated as far back as 1942 in Jockey Club of South
Africa and Others v Feldman 1942 AD 340 at 351 that Courts can interfere in the
decision of a domestic tribunal which has disregarded its own rules or the fundamental
principles of fairness. What is to be regarded as 'principles of natural justice' was
examined in Marlin v Durban Turf Club and Others 1942 AD 112 at 125 - 6 where
Tindall JA concluded that the expression:
'(W)hen applied to the procedure of tribunals such as those just mentioned, seems to
me merely a compendious (but somewhat obscure) way of saying that such tribunals
must observe certain fundamental principles of fairness which underlie our system of
law as well as the English law. Some of these principles were stated, in relation to
tribunals created by statute, by Innes CJ in Dabner v South African Railways 1920 AD
583 in these terms:
''Certain elementary principles, speaking generally, they must observe: they must hear the
parties concerned; these parties must have due and proper opportunity of producing their
parties concerned; these parties must have due and proper opportunity of producing their
evidence and stating their contentions; and the statutory duties must be honestly and
impartially discharged.'''
[28] From the above it is evident that a court can interfere where a voluntary
association such as the Order has disregarded its own rules and the
fundamental principles of fairness, which include: (a) hearing the parties
concerned; (b) providing such parties with a due and proper opportunity of
5 2006 (3) SA 73 (T) para 14
- 12 -
producing their evidence and stating their contentions; and (c) discharging its
duties honestly and impartially. The enquiry also encompasses whether the
tribunal acted honestly and in good faith when discharging its duties.
[29] At the hearing it was conceded by counsel for the respondents that the
applicants were not informed prior to the meeting that it would be a disciplinary
hearing, and of the charges against them. They were under the impression that
it would be a trustee meeting, which they declined to attend.
[30] Counsel for the respondents submitted that attendance at a disciplinary hearing
cannot be compelled. In her heads of argument, she further contended that, in
private disciplinary proceedings, the audi principle does not require a member
to attend, but only that the member be afforded an opportunity to do so. I
accept that attendance cannot be compelled. However, in order for a member
to make an informed election whether to attend or not, he must first be notified
that a disciplinary hearing will be held and of the charges preferred against him.
[31] To convene a disciplinary hearing under the guise of a trustee meeting and
thereafter to contend that the applicants elected not to attend as the
respondents have done, is an inaccurate characterisation of what in fact
occurred. It follows that, where the applicants were not informed that the
meeting would serve as a disciplinary hearing but were left under the
misapprehension that they were merely absent from an ordinary trustee
meeting, they were not afforded a genuine opportunity to attend and to be
heard.
[32] In the founding affidavit the applicants rely on sections I.2, I.3, I.4, I.6 and I.9 of
the CLC dealing with the process that has to be followed where there is an
alleged breach of the Order’s constitution. This includes the right of the alleged
offender(s) to be notified of the d ate, time, and place of the investigation and
the nature of the alleged offence, as well as the right to attend the entire
the nature of the alleged offence, as well as the right to attend the entire
investigation of the alleged offence. Section I.3 reads:
‘
RIGHT OF PARTIES TO ATTEND INVESTIGATION
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The executive shall notify the alleged offender and the complainant of the date, time
and place, of the investigation and the nature of the alleged offence. The alleged
offender and the complainant shall be entitled to attend the entire investigation of the
alleged offence, or, if either one or other of them so desires, be represented by any
other member of the Order thereat (provided that such a representative shall not be a
member of a degree junior to that of the alleged offender and the complainant) or to
make written representation relating to the alleged offence.’
[33] Instead of engaging with whether the procedures prescribed in section I were
followed, the respondents placed considerable reliance on section C.13 of the
CLC, which regulates the duties of the Supreme Knight. In terms of section
C.13, the Supreme Knight is under a contractual obligation to enforce and
comply with the Laws of the Order, yet there is no explanation why section I.3,
which requires due process in investigations of a disciplinary nature, was not
observed. Although section C.13 appears to confer relatively broad
investigative powers on the Supreme Knight, it is silent regarding disciplinary
hearings and the procedure to be followed in disciplinary matters, and the
respondents did not reconcile their invocation of section C.13 with the
mandatory language of section I.3.
[34] In my view, nothing in section C .13 of the CLC can properly be construed as
authorising the Supreme Knight to formulate charges against members, to
convene disciplinary hearings, and to expel and/or dismiss them in their
absence and without their knowledge. Put simply, section C .13 does not confer
on the Supreme Knight a licence to disregard the basic principles of natural
justice. In the result, the respondents’ reliance on section C .13 of the CLC
cannot be sustained, and there is , in any event, no bona fi de dispute regarding
the material procedural deficiencies.
the material procedural deficiencies.
[35] The respondents further placed reliance on a similar incident in 2019 where a
member was suspended through the following of a similar process which,
according to the respondents, was approved by the first applicant in his position
of Supreme Advocate at the time. In my view, this incident several years earlier
bears no relevance to the question before this court in determining whether a
fair process was followed in the expulsion and dismissal of the applicants.
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[36] In De Lange v Presiding Bishop, Methodist Church of Southern Africa and
Another6 the SCA took a cautious approach when it comes to interference by a
court in matters that concern the internal rules adopted by a church, and held
that a court should only become involved where it is strictly necessary, and
should refrain from determining doctrinal issues to avoid entanglement.
[37] I am of the view that this is a matter in which judicial intervention is plainly
warranted. The case does not raise complex doctrinal questions that might risk
any form of improper entanglement, but turns instead on the elementary inquiry
whether the most basic principles of natural justice were observed when the
applicants were found guilty , expelled from the Order and dismissed from their
positions.
[38] The answer to that inquiry is emphatically in the negative. The applicants were
afforded no prior notice that a disciplinary hearing would be convened, they
were found guilty without knowledge that a hearing was taking place, without
being apprised of the charges preferred against them , and without any
opportunity to make representations in their defence. In the circumstances I am
unable to conclude on these facts that the process was conducted in an
impartial and even-handed manner.
[39] The decision to expel the applicants from the Order, and dismiss them from the
positions held within the Order, accordingly falls to be reviewed and set aside.
Appropriate remedy
[40] Having found that the impugned decision falls to be set aside, it becomes
necessary to determine the appropriate remedy. Ordinarily, the proper course is
to remit the matter to the original decision ‑maker for reconsideration in
accordance with lawful and fair procedures.
[41] In Trencon Construction (Pty) Ltd v Industrial Development Corporation of
South Africa Ltd and Another
7 the Constitutional Court considered the
circumstances in which a court may, by way of substitution, replace an
6 2015 (1) SA 106 (SCA)
6 2015 (1) SA 106 (SCA)
7 2015 (5) SA 245 (CC)
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administrative decision with its own. The Court accepted that the test of
‘exceptional circumstances’ is the appropriate one, but emphasised that, even
where such circumstances are present, the ultimate enquiry remains whether a
substitution order would be just and equitable.
[42] The Constitutional Court in Trencon cited with approval the guidelines in
Johannesburg City Council v Administrator, Transvaal and Another
8, decided
before the enactment of PAJA, and stated the following:
‘On a plain interpretation of Johannesburg City Council the factors under the
exceptional circumstances enquiry – like foregone conclusion, bias or incompetence –
are independent. That is, if any factor is established on its own, it would be sufficient to
justify an order of substitution. Indeed, this interpretation is also supported by
subsequent case law.’ 9
[43] The Court in Trencon then reformulated the applicable test in the
post‑constitutional era as follows:
‘To my mind, given the doctrine of separation of powers, in conducting this enquiry
there are certain factors that should inevitably hold greater weight. The first is whether
a court is in as good a position as the administrator to make the decision. The second
is whether the decision of an administrator is a foregone conclusion. These two factors
must be considered cumulatively. Thereafter, a court should still consider other
relevant factors. These may include delay, bias or the incompetence of an
administrator. The ultimate consideration is whether a substitution order is just and
equitable. This will involve a consideration of fairness to all implicated parties. It is
prudent to emphasise that the exceptional circumstances enquiry requires an
examination of each matter on a case-by-case basis that accounts for all relevant facts
and circumstances.’
10
[44] The enquiry is thus a fact‑specific one, in which the factors identified in Trencon
are considered against the background of what would be just and equitable in
are considered against the background of what would be just and equitable in
the particular case.
8 1969 (2) SA 72 (T)
9 Trencon para 39
10 Trencon para 47
- 16 -
[45] In their original notice of motion the applicants sought, by way of substitution,
an order dismissing the charges against them. During argument, however, their
counsel submitted that an order for reinstatement, restoring the status quo
ante, would be the more appropriate form of relief.
[46] The applicants submit that remittal would not be appropriate because the
outcome, on the respondents’ own version, would be a foregone conclusion. In
this regard they rely on the letter dated 8 November 2024 from the
respondents’ attorney to their attorney, annexed to the founding affidavit, which
records that:
‘Given your clients’ recent conduct our client is of the view that rescinding the decision
would likely serve little purpose as this conduct coupled with the initial conduct would
almost certainly result in your clients’ expulsion in any event.’
[47] The respondents, for their part, contend that no exceptional circumstances exist
and that a substitution order would impermissibly intrude upon the autonomy of
the Order by compelling it to retain as members individuals whose conduct, in
its view, does not warrant continued membership.
[48] This contention overlooks that, before membership may be terminated, the
Order is bound to follow its own rules and to act consistently with the principles
of natural justice. A substitution order in the present matter does not compel the
Order to accept or retain particular individuals irrespective of their conduct; it
requires only that, in dealing with its members, it adheres to its Constitution and
affords them a fair procedure where investigative and/or disciplinary steps are
taken.
[49] Having regard to the affidavits filed by the respondents, read together with their
attorney’s letter of 8 November 2024, I am of the view that remittal would lead
to a foregone conclusion. The material facts relevant to the fairness of the
process are fully canvassed on the papers, and in these circumstances this
process are fully canvassed on the papers, and in these circumstances this
court is in as good a position as the decision- makers to determine the
appropriate outcome. Accordingly, in my view an order of substitution directing
reinstatement is just and equitable.
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[50] Such an order does no more than place the applicants in the position they
would occupy if the impugned decisions were set aside and no further steps
were taken, while at the same time underscoring that any future disciplinary
action against them, or against other members of the Order, must be
undertaken in compliance with the Order’s own rules and with the basic
requirements of procedural fairness.
Costs
[51] In the notice of motion a costs order is sought against the first and third
respondents on an attorney-and-client scale. The respondents contend it would
be inappropriate, as the first respondent is cited in his personal capacity, and a
case for costs against him personally is not made out. As referred to above, it
is in my view apparent from the way in which the respondents were cited, and
from the manner in which they conducted the litigation, that they acted
throughout in their official capacities as of fice-bearers of the second
respondent. The dispute arises from decisions taken and defended on behalf of
the Order, in the exercise of power alleged to derive from its Constitution.
[52] In these circumstances it would not be appropriate to hold the first and third
respondents personally liable for costs. Any costs order should, in my view,
follow the institutional responsibility for the impugned decisions and the manner
in which the litigation was conducted, while recognising that the first and third
respondents were cited and appeared in their representative capacities. The
respondents’ counsel submitted that, in the event of an adverse cost order
against the respondents, such an order should be against the second
respondent on a party-and-party scale.
[53] The applicants have succeeded on every material aspect of the case. In my
view, the manner in which the litigation was conducted warrants a punitive
costs order. Rather than acknowledging the serious procedural irregularities
and taking steps to correct them, the respondents chose to oppose the
and taking steps to correct them, the respondents chose to oppose the
application in its entirety. They further mischaracterised the nature of the
meeting held on 26 September 2024 and persisted in attributing the applicants’
non-attendance to a conscious election on their part, instead of recognising
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from the outset that the applicants had not been afforded prior notice that a
disciplinary meeting would be held or of the charges levelled against them.
[54] The respondents also raised ten points in limine and launched two applications
in terms of Rules 30 and/or 30A, none of which was dispositive of any material
issue, and advanced a defence on the merits which proceeded on the basis
that the Order was entitled to expel its members without affording them any
meaningful measure of due process.
[55] In these circumstances an award of costs on the scale as between attorney and
client is, in my view, warranted.
[56] Given the nature of the Rule 30/30A applications brought by both sides, and
the fact that they did not assist in addressing or resolving any material issue, it
is appropriate that no order as to costs be made in relation to them, with the
result that each party must bear its own costs in those applications.
[57] Having regard to the representative capacities in which the first and third
respondents were cited, and to the institutional character of the decisions
impugned, it is appropriate that the costs order operate against the second
respondent, with the first and third respondents being held liable only in their
official capacities.
Order
Accordingly, I make the following order:
1. The decision of 2 October 2024 whereby the first and second applicant s were
expelled from the second respondent and dismissed from their respective
positions as Supreme Advocate and Supreme Treasurer of the second
respondent, is reviewed and set aside.
2. The first and second applicants are reinstated as members of the second
respondent and to the positions they held prior to the impugned decision of 2
October 2024.
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3. No order as to costs is made in respect of the three interlocutory applications
filed in terms of Rule 30 and/or Rule 30A.
4. The first and third respondents, in their official capacities as office- bearers of
the second respondent, and the second respondent, are ordered, jointly and
severally, the one paying the other to be absolved, to pay the costs of the main
review application on the scale as between attorney and client on scale C.
___________________________
S MENTZ
ACTING JUDGE OF THE HIGH COURT
PRETORIA
For the applicants: Adv J de Beer SC
Adv J Delport
Instructed by: Bester Rhoodie Attorneys
For the respondents: Adv L Isparta
Instructed by: Lloyd Kieser Inc
Date heard: 25 February 2026
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