THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 107/2025
In the matter between:
DIVINE LIFE SOCIETY OF SOUTH AFRICA FIRST APPELLANT
AROONA DEVI MANGREY N O SECOND APPELLANT
JOGINDRA KISHNAPPA NAIDOO N O THIRD APPELLANT
MAWALALL CHATROOGHOON N O FOURTH APPELLANT
SACHIN HEERAMUN MAHARAJ N O FIFTH APPELLANT
AROON SUKHNANDAN N O SIXTH APPELLANT
KUMARASEN NAICKER N O SEVENTH APPELLANT
LOGAN NAIDOO N O EIGHTH APPELLANT
SANTOSH JAIRAM N O NINTH APPELLANT
RAVEEN HARISUNKER N O TENTH APPELLANT
KARUSHA HARILAL N O ELEVENTH APPELLANT
ETHEKWINI MUNICIPALITY TWELTH RESPONDENT
and
AVINASH PARSHOTAM
(ALSO KNOWN AS RISHIKUMAR SATYANAND) RESPONDENT/
CROSS-APPELLANT
Neutral citation: Divine Life Society of South Africa and Others v Avinash
Parshotam (107/2025) [2026] ZASCA 89 (24 June 2026)
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Coram: SCHIPPERS, HUGHES and UNTERHALTER JJA and
SERITI and STEYN AJJA
Heard: 25 May 2026
Delivered: This judgment was handed down electronically by circulation
to the parties’ representatives by email, publication on the Supreme Court of
Appeal website and released to SAFLII. The date and time for hand-down of the
judgment is deemed to be 11h00 on 24 June 2026.
Summary: Judicial review – voluntary association – disciplinary
proceedings – interpretation of the organisation’s constituti on – composition of
the Board in accordance with the constitution – principles of natural justice –
adequacy of notice of the charges – right of confrontation and testing of adverse
evidence– review of dis ciplinary findings and s anctions – declaratory relief
absent a live dispute –remittal as an appropriate remedy.
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ORDER
On appeal from: KwaZulu-Natal Local Division of the High Court, Durban
(Sibiya J, sitting as the court of first instance):
1 Subject to paragraph 2 below, the appeal is dismissed with costs, including
the costs of two counsel.
2 Paragraph 93 of the high court’s order is amended to add the following
after paragraph 1:
‘The disciplinary proceedings brought by the first respondent against the
applicant are remitted to the first respondent.’
3 The cross -appeal is dismissed with costs , including the costs of two
counsel.
JUDGMENT
Unterhalter JA ( Schippers and Hughes JJA and Seriti and Steyn AJJA
concurring)
Introduction
[1] The first appellant, Divine Life Society of South Africa (the Society), is a
voluntary association. Its objects are to conduct religious, spiritual, educational
and charitable activities in South Africa in accordance with the Hindu religious
and spiritual tradition derived from the teachings of Sri Swami Sivananda , who
founded the Divine Life Society in India in 1936. The re spondent, Avinash
Parshotam, also known by his monastic name of Rishikumar Satyanand (and to
whom I shall refer as Mr Parshotam) is a d evotee and renunciant member of the
Society. Mr Parshotam was initiated into the Society, at the age of 17 years and
thereafter became a renunciant. Upon becoming an inmate, to use the language
of the Society’s constitution, a renunciant and devotee renounces worldly life and
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is required to observe chastity, obedience and poverty. He dedicates his life to
obeying and propagating the religious teaching of the Society and fulfilling its
objects. Since 2001, Mr Parshotam has lived in the Society’s ashram (a Hindu
spiritual monastery), and he has forsaken all material possessions.
[2] The Society is governed by a constitution (the Society’s constitution), in
terms of which it is managed and controlled by the Board of Management (the
Board). The second to tenth appellants are members of the Board and are cited
nomine officio. On 2 March 2020, the Board notified Mr Parshotam of its
intention to conduct an inquiry into certain of his alleged actions. Following his
response to the complaints , a disciplinary hearing was convened on
21 March 2020. On 10 August 2020, the Board informed Mr Parshotam that it
had ‘reached its verdict’. It found him guilty on all seven charges preferred
against him and invited him to submit written representations in mitigation for
the purpose of determining an appropriate sanction. Mr Parshotam did so. By
letter dated 28 August 2020, the Board advised Mr Parshotam that his
membership of the Society had been revoked and that additional sanctions were
imposed. He was further requested to provide the Board with a reasonable date
from which he would be in a position to discontinue his residence. Mr Parshotam
subsequently challenged both the Board’s finding of guilt and the sanctions
imposed upon him. For convenience, I shall refer to the latter as ‘the sanctions
decision’ and to both decisions collectively as ‘the impugned decisions’.
[3] Following the Board’s decisions , Mr Parshotam instituted proceedings in
the high court to review and set aside the impugned decisions . He also sought
declaratory relief directing that any future disciplinary decisions of the Board
comply with the basic principles of natural justice . The review was predicated
comply with the basic principles of natural justice . The review was predicated
upon a two-fold challenge. First, that the Board was not lawfully constituted, in
terms of the Society’s constitution, to take the impugned decision s because the
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membership of the Board did not include renunciates. Second, the impugned
decisions were taken contrary to the requirements of natural justice. The Society
opposed Mr Parshotam’s application, and brought a counter-application, seeking
his eviction from the ashram.
[4] The high court upheld the review. It did so on the basis that the Board was
improperly constituted when it took the impugned decisions in that the Society’s
constitution required that renunciates must serve on the Board and they did not
do so. The high court accordingly reviewed and set aside the impugned decisions.
The high court however declined the declaratory relief. It found that the principles
of natural justice did not apply to the disciplinary proceeding brought by the
Society against Mr Parshotam because they were not incorporated into the
Society’s constitution. Having reviewed and set aside the impugned decisions,
the high court, in consequence, dismissed the Society’s counter -application for
the eviction of Mr Parshotam. The Society was ordered to pay the costs, including
the costs of two counsel.
[5] The Society sought leave to appeal the order of the high court reviewing
and setting aside the impugned decisions. Mr Parshotam brought a conditional
application to cross-appeal. It was formulated thus: should the Society be granted
leave to appeal, Mr Par shotam sought leave to cross - appeal ‘those portions of
the judgment relating to the applicability of the rules of natural justice’ and the
order refusing declaratory relief. The high court granted the Society’s application
for leave to appeal, as also Mr Parshotam’s application to cross-appeal.
[6] The appeal before us raises the following issues. First, under the Society’s
constitution, was the Board lawfully constituted to take the impugned decisions
(the composition issue)? Second, if not, do the impugned decisions nevertheless
fall to be reviewed and set aside on the basis that the Society failed to observe the
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principles of natural justice (the natural justice issue) ? Third, if the Society’s
appeal is dismissed, was Mr Parshotam nevertheless entitled to the declaratory
relief that he sought from the high court (the declaratory relief issue)? Fourth, if
the Society’s appeal is upheld , is the Society entitled to the orders it sought to
evict Mr Parshotam from the Society’s ashram (the eviction issue)?
[7] It was common ground between the parties that the review of the impugned
decisions falls within the competence of the courts to review the exercise of
powers by a private body under the standards laid down in Turner v Jockey Club
of South Africa.1 The disciplinary decisions of a private body may be reviewed
by a court if they fail to accord with ‘fundamental principles of justice’ which
include conformity with the private body’s constitution and adherence to the rules
of natural justice. I turn first to the composition issue.
The composition issue
[8] The Society’s constitution provides that there shall be a Board of
Management. The Board is invested with wide powers. Among these is the
responsibility to maintain discipline, judge the spiritual suitability of any member
of the Society, to accept a candi date for ‘spiritual or religious discipleship’, and
to expel from the Society any spiritual or religious disciple. Clause 5 of the
Society’s constitution sets out the composition of the Board and the criteria for
membership of the Board. Clause 5 reads as follows:
‘BOARD OF MANAGEMENT: COMPOSITION & CRITERIA
(a) There shall be a Board of Management consisting of at least five and not more than
eighteen members.
(b) The Board of Management shall comprise the Spiritual Head, Chairman, Secretary,
Treasurer and other ordinary members, who except in the case of the Spiritual Head shall hold
office for a period of at most two years, being eligible for re -election at the expiry of the said
1 Turner v Jockey Club of South Africa 1974 (3) SA 633 (A) at 646 D -H. See also Theron en Andere v Ring van
Wellington van die NG Sendingskerk in Suid-Afrika en Andere 1976 (2) SA 1 (A) at 21F-23C.
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period. Except in the case where the Spiritual Head decrees otherwise, no person who has
served on the Board of Management and then left for any reason whatsoever, will be eligible
for re-election at any subsequent meeting of the Board of Management.
(c) All further successive members of the Board of Management shall from time to time as
occasion arises, whether by death, resignation or disqualification be appointed by the Board of
Management.
(d) No person shall be appointed a member of the Board of Management unless:
(i) he is a disciple of SRI SWAMI SIVANANDA and adherent of the principles and
teachings of the Divine Life Society and
(ii) he complies strictly with the codes of conduct and of discipline expected of an inmate
of the said Ashram and unless he abstains wholly from smoking, the consumption of
alcoholic liquor and from gambling.
(iii) he/she follows a strict vegetarian diet, meditates for at least half an hour daily, keeps a
daily spiritual diary, and in the case of a householder, conducts home Satsang on a daily
basis.
(iv) he/she agrees to render at least Five (5) hours of active service every week to the
Society. In addition it is compulsory to sell an agreed value of books printed by the Divine
Life Society of SA, on a monthly basis.
(v) (with the exception of the Spiritual Head) he/she is less than 65 years of age.
(vi) He/she agrees to practise and observes the rules of Brahmacharya.’
[9] On a plain reading, Clause 5, puts certain matters beyond doubt. First, it
specifies the permitted number of members of the Board: at least five and not
more than eighteen. Second, the Board is composed of office bearers, being the
Chairman, Secretary, Treasurer and ordinary members. Third, to be appointed a
member of the Board, a person must meet a number of criteria. Of relevance are
the criteria that a member must comply strictly with the codes of conduct and
discipline ‘expected of an inmate’; and that ‘. . . in the case of a householder [he
discipline ‘expected of an inmate’; and that ‘. . . in the case of a householder [he
or she] conducts home Satsang on a daily basis’ . The term ‘householder’ is not
defined in the Society’s constitution . It must therefore be given its ordinary
meaning – a layperson or non -monastic person who maintains a secular life,
family, and career, while practising the Hindu faith and supporting the ashram.
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What these provisions necessarily imply is that a member of the Board need not
be an inmate, but must conform to the discipline expected of an inmate. And
further, that a householder may be a member of Board.
[10] It follows from the criteria for membership of the Board that its members
may be an inmate (and hence, on the understanding of the parties, a renunciant)
because an inmate is plainly required to comply with the codes and discipline
expected of an inmate. But membership is not confined to inmates. Householders
may also qualify since the criteria provide for the daily conduct required of
householders. In sum, membership of the Board may include both householders
and inmates (that is, renunciants) provided the criteria for membership are met.
This was not disputed by the parties.
[11] What was much contested was the constitutional relevance of the
appendices to the Society’s constitution. Clause 33 reads as follows:
‘APPENDICES
The following appendices are supplementary attachments to this constitution:
Appendix 1: Important decisions taken by the Board of Management (ongoing)
Appendix 2: Restrictions on named persons.’
Appendix 1 lists important decisions taken by the Board of Management of the
Society prior to the Society’s constitution being signed on 1 September 2007 and
coming into effect on that date. Two such decisions (the composition decisions)
are of particular importance, and read as follows:
‘1 March 2003 ● The Board of Management should consist entirely of full -time
renunciants. (Minimum of 5 and not more than 8) (Amended on 15
March 2003 and August 2007)
● Nothing is to be left in Swamiji’s room after Swamiji’s passing
15 March 2003 ● The Board of Management will comprise both householders and
renunciants.’
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[12] The primary submission of Mr Parshotam is that the decision of
15 March 2003 (the renunciant requirement) requires the Board to comprise both
householders and renunciants, and that the renunciant requirement forms part of
the Society’s constitution. And hence, if the Board does not satisfy the renunciant
requirement, it is not composed in conformity with the Society’s constitution. The
Board, it is contended, was not so composed when it took the impugned decisions.
As a result, the Board had no competence t o take the impugned decisions , and
they must be reviewed and set aside. The high court upheld this submission.
[13] The Society disagrees. It contends that the appendices form no part of the
substantive content of the Society’s constitution, and hence, the renunciant
requirement does not regulate the constitutional composition of the Board. In the
alternative, the Society submits that if the composition of the Board had to satisfy
the renunciant requirement, on the facts, it did so.
[14] The resolution of the composition issue is a matter of interpretation. And
the principles that we apply to interpret the Society’s constitution are well
understood: the unitary exercise of giving meaning to the Society’s constitution
by recourse to text, c ontext and purpose. The constitutional status of the
appendices is governed by Clause 33. The appendices are described as
‘supplementary attachments to this constitution’. What this description does not
make clear is how the appendices supplement the Socie ty’s constitution. They
may do so by adding substantive provisions to the constitution, and in this sense
supplementing the constitution . A different interpretation is that Appendix 1
simply record s the historical decisions that were made , prior to the Society’s
constitution coming into force , to provide context for the interpretation of the
constitution and guidance for the Society’s future governance. On this
constitution and guidance for the Society’s future governance. On this
interpretation, Appendix 1 is supplemental in that it offers guidance so that those
charged with the application of the Society’s constitution would understand in the
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future how the Society had been governed in the past. I will refer to the first of
these interpretations as the substantive interpretation and to the second as the
guidance interpretation.
[15] The substantive interpretation has the following difficulties. First, many of
the decisions listed in Appendix A do not contain content that can be understood
to warrant constitutional entrenchment. For example, decisions were taken that
certain named persons should not work or live in the ashram, and others should
not be permitted to come back to the ashram. It was also decided that upon the
Swamiji’s passing, no tributes should be solicited. Many of the decisions concern
very specific matters and persons, some of a purely historical nature, that do not
reference how the Society is to be governed , but rather the decisions taken in
execution of that governance. Certain decisions , by contrast, are of a
constitutional kind, and in particular the composition decisions, recited above.
[16] The difficulty is this. Either Appendix 1 & 2 form part of the substantive
content of the Society’s constitution or they do not. Clause 33 cannot be read to
mean that certain of the decisions, but not others, recorded in Appendix 1 & 2,
are incorporated in the constitution. Once this is so, many of the decisions in
Appendix 1, and all of the restrictions of named persons listed in Appendix 2, are
simply not plausible candidates for incorporation in the constitution because they
are not provisions relevant to the framework of constitutional governance of the
Society.2
[17] Second, even the composition decisions are problematic for the substantive
interpretation. The decision of 1 March 2003 requires the Board to consist entirely
of full-time renunciants, with a minimum of five and not more than eight
2 A similar conclusion was reached ( Obiter) in Bissoon v Divine Society of South Africa and Others 2025 JDR
2331 (KZP) para 50.
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renunciants. These provisions are inconsistent with Clause 5 of the Society’s
constitution which permit householders to be members of the Board, and stipulate
that the Board may not have more than eighteen members. If the decision of
1 March 2003 was to form part of the Society’s constitution, this would give rise
to irreconcilable contradiction of a kind not readily to be imputed to the framers
of the Society’s constitution. And if the decision of 1 March 2003 has been
overtaken by the decision of 15 March 2003 and the Society’s constitution (as the
language of the decision indicates), then there would be no reason to incorporate
it in the Society’s constitution as a substantive provision. Nor, for the reasons
given, can the decision of 15 March 2003 consti tute a substantive
supplementation to the Society’s constitution, when the decision of 1 March 2003
is a supplementation of a different kind because of its evident redundancy.
[18] For these reasons, the substantive interpretation cannot hold good. Mr
Parshotam ventured an alternative submission, should we reject the substantive
interpretation of the composition decisions. The composition decisions constitute
resolutions of the Board, and Clause 33 gives ongoing efficacy to this resolution,
once the Society’s constitution was of force and effect. This construction cannot
prevail. Under the Society’s constitution , resolutions are passed at a quorate
meeting of the Board by majority vot e (Clause 18 read with Clause 20). An
amendment of the Society’s constitution requires a resolution of the Board
‘meeting unanimously’ (Clause 34). This language indicates that the provisions
of the Society’s constitution are entrenched, whereas ordinary resolution s are
passed by way of a majority vote at a meeting of the Board.
[19] The distinction between the entrenched provisions of the Society’s
constitution and the ordinary resolutions of the Board does not easily permit of
constitution and the ordinary resolutions of the Board does not easily permit of
the composition decisions having ongoing efficacy as resolutions. First, it would
mean that an ordinary resolution can qualify a constitutional provision as to the
12
composition of the Board by stipulating that the Board must comprise both
householders and renunciants. This is repugnant to the entrenched status of the
provisions of the Society’s constitution and the constitutionally specified basis
upon which a constitutional provision may be amended. Second, this construction
would not overcome the problem of contradiction. It would entail that the
composition decision of 1 March 2003 was given life after the Society’s
constitution came into force, even though its term s indicate that it was amended
by the composition decision of 15 March 2003, and the Society’s constitution
itself. And if it was given a fresh lease of life, it would contradict the content of
Clause 5 of the Society’s constitution.
[20] It follows that the substantive interpretation cannot prevail. And nor can
Mr Parshotam’s alternative construction. Clause 33 has a different function. It
records the history of decision-making by the Board, and in particular the history
when the Society w as led by the Spiritual Head. As the Society’s constitution
makes clear (Clause 4), there was to be no Spiritual Head beyond the Spiritual
Head’s lifetime. The Society’s constitution was formulated to govern after the
passing of the Spiritual Head. Clause 33 is a historical record of significance to
guide the governance decisions of those who come to hold office under the
Society’s constitution. It is supplemental as guidance but not constitutionally
binding. Thus, the Society’s constitution permits renunciants and householders to
be members of the Board. Appendix 1 indicates that in the past renunciants have
played an important role as members of the Board. And this is a guide as to how
the Board should be composed, but it is not a constitutional requirement that it be
so. The guidance interpretation must prevail.
[21] Thus, the impugned decisions do not fall to be reviewed and set aside by
reason of the failure of the Board to adhere to the composition decision of
reason of the failure of the Board to adhere to the composition decision of
15 March 2003. The high court was incorrect to find that this decision was an
13
obligatory constitutional requirement to permit the Board to take the impugned
decisions. I therefore do not need to consider the alternative contention of the
Society that the Board, as a matter of fact, did comprise both householders and
renunciants. Even if it did not, there is no basis to hold that for this reason the
Board was not constitutionally constituted.
The natural justice issue
[22] The Society, in its submission before this Court, accepted that the
disciplinary proceedings brought by it against Mr Parshotam were required to
comply with the rules of natural justice. At a high level of generality, Mr
Parshotam’s counsel were in agreement with this proposition. As we shall see,
the divergence between the parties arises from the application of the rules of
natural justice in this case , rather than the recognition that these rules are an
implied part of the Society’s constitution.
[23] The high court came to a different conclusion. It found that the Society is
a religious association that may exclude the rules of natural justice from its
constitution. This may be done expressly, or ‘if there is an apparent intention in
the constitution not to be bound by the rules of natural justice. ’ The high court
found that the rules of natural justice were not incorporated in the Society’s
constitution, and considered this decisive of the declaratory relief sought by Mr
Parshotam. The high court framed its conclusion in this way: ‘Given the finding
that the rules of natural justice were not incorporated by the parties into the
constitution, and to avoid doctrinal entanglement in religious matters, the
declaratory relief is not applicable’. (my emphasis).
[24] The high court concluded that the rules of natural justice were excluded
from the Society’s constitution. That the rules of natural justice were not
expressly incorporated in the Society’s constitution does not necessarily imply
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that they were excluded. They may have been tacitly agreed upon. That is a
question of interpretation. The court said that it would be improper for the rules
of natural justice to be incorporated by the court. That is a matter of no small
complexity because it engages the question whether the principles of what has
been styled private administrative law can be excluded by the express terms of a
contract.3 But before this issue is reached, the prior question is whether the
Society’s constitution tacitly adopted the rules of natural justice.
[25] In Turner v Jockey Club,4 this Court recognised ‘the expressed terms of the
agreement by which any or all of the fundamental principles of justice may be
excluded or modified.’ Whether this recognition may warrant further
consideration, by reason of the horizontal application of the Constitut ion or
otherwise, is a matter we need not engage. The parties agreed that the Society’s
constitution did permit of the application of the rules of natural justice to its
disciplinary proceedings. I consider that agreement to be well -founded for the
following reasons.
[26] Clause 6 of the Society’s constitution reads as follows:
‘RESPONSIBILITIES OF THE BOARD
The Board of Management shall at all times be directly responsible for the maintenance of
discipline and standards of morality and of behaviour at or in any or all of the institutions,
agencies, Ashrams, clinics, hospitals, canteens, Dharmashalas, shrines, temples, places of
worship, meeting places and any and all other establishments of or conducted under the aegis
of the Society and among the members of the Society, and shall be the judge of the spiritual
suitability of any employee or member of the Society and it shall have power:
(i) 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;
disciple;
3 C Hoexter and G Penfold Administrative law in South Africa 3rd ed at 164.
4 Ibid at 646B.
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(ii) to forbid or to permit any person whomsoever whether a member of the Society or not,
to attend any meeting or gathering of whatsoever nature held, or conducted by the Society; and
the Board of Management shall not be obliged to give any reason whatsoever for any decision
it may take by virtue of the powers hereby conferred upon it.’
[27] The Board enjoys the powers to judge spiritual suitability and to expel any
spiritual or religious disciple, which plainly includes a renunciant. We were
reminded by counsel for the Society that although he accepted that the rules of
natural justice were of application to the Board’s disciplinary proceedings, these
rules must be flexibly and appropriately applied, given that the Society is a
religious and spiritual organisation, and the Board is invested with the power to
judge spiritual suitability. Defere nce to the exercise of this power is thus , he
submitted, warranted.
[28] The express exclusion of the duty to give reasons ‘for any decision it may
take by virtue of the powers hereby conferred upon it’ was emphasised by the
high court in its reasoning. However, some caution should be exercised. First, the
provision is ambiguous as to which powers are being referenced: the powers that
are specifically conferred as set out in subparagraph (ii) of Clause 6, or all the
powers of the Board in Clause 6, or even all the powers of the Board under the
Society’s constitution that give rise to a decision. I am inclined to give a narrow
construction to the exclusion of the duty to give reasons because the powers
conferred on the Board are varied. A decision of the Board to exclude a member
from a gathering (one of the specific powers granted in terms of Clause 6 (ii)) is
very different from the power to expel a renunciant from the Society. If a wide
exclusion was intended to extend to all powers of the Board, this would have been
made clear.
[29] Second, and whatever the breadth of the exclusion of the duty to give
made clear.
[29] Second, and whatever the breadth of the exclusion of the duty to give
reasons under the Society’s constitution, the more important consideration is this.
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The framers of the Society’s constitution chose to make specific mention of the
exclusion of the duty to give reasons. This is one aspect of procedural fairness. If
the framers intended to exclude all the rules of natural justice, there would have
been no need to provide a specific exclusion of the duty to provide reasons. That
the framers of the Society’s constitution expressly excluded one incident of the
rules of natural justice tends to support an interpretation that they tacitly included
the rules they did not specifically exclude.
[30] Furthermore, as I have observed, the powers invested in the Board are
varied. The absence of express reference to the rules of natural justice makes
sense. It would be an exercise of considerable complexity to fashion a regime of
rules of natural justice tailored to each specific power enjoyed by the Board. And
such an exercise would be unnecessary since the rules of natural justice, applied
to a voluntary association, are of application with a proper appreciation of the
nature of the association and the ki nd of power in question. But it is difficult to
impute to the framers of the Society’s constitution the intention that in exercising
drastic powers, such as the power to expel a renunciate, the Society would not be
committed to a fair process before deciding to expel a renunciate who has, by
definition, given up much to serve the Society.
[31] I find for these reasons that, in respect of the exercise by the Society of its
power to expel a renunciate, the Society’s constitution has tacitly adopted the
rules of natural justice. This accords with the Board’s conduct. As we shall see,
the Board sought to give Mr Parshotam an opportunity to be heard in the
proceedings brought against him. The Board did so, not as a matter of grace and
favour, but rather because it appreciated the gravity of the powers it sought to
exercise. To the extent that the high court held otherwise, it fell into error.
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[32] I consider next whether the Society failed to apply the rules of natural
justice in the proceeding brought against Mr Parshotam that resulted in the
impugned decisions. An important distinction must be made at the outset. It is for
the Society to judge spi ritual suitability and whether a renunciate continues to
fulfil his obligations. We are not here engaged upon an enquiry as to the
correctness of what the Society decided, but how it did so. Mr Parshotam’s
founding affidavit and supplementary founding affi davit set out his grounds of
review, and in particular, the respects in which the Society failed to adhere to the
rules of natural justice in the proceedings taken against him.
[33] Mr Parshotam’s complaints fall into two categories. The first is that the
members of the Board were the investigators and prosecutors of the complaints;
they presided at the hearing and made the impugned decisions. The same
members of the Board could not discharge all of these functions without
compromising the impartiality of the Board in adjudicating the complaint against
Mr Parshotam. Although this attribute of procedural fairness is often referred to
by the phrase nemo iudex in sua causa (no one should be a judge in their own
cause), I prefer here plain English. The Board, in deciding the complaint against
Mr Parshotam, and any sanction that may result, had a duty of impartiality. The
duty was not placed in issue. How the Society was required to discharge that duty
was a matter of dispute.
[34] Second, Mr Parshotam levels the following complaints against the process
that the Board adopted:
(i) The Board failed to make clear the charges to be preferred against Mr
Parshotam before the hearing.
(ii) The Board did not lead any evidence at the hearing, and hence there was
nothing for Mr Parshotam to cross-examine and no case to answer.
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(iii) In making the sanctions decision, the Board relied upon ‘historical
misdemeanours’ which were never put to Mr Parshotam.
I shall for convenience refer to these complaints as the audi complaints.
[35] I turn to consider, in the first place, the audi complaints, and I begin with
the alleged failure to make clear the charges preferred against Mr Parshotam. In
a letter of 2 March 2020, the Board gave Mr Parshotam notice of an inquiry it
intended to undertake into certain ‘recent actions’ of Mr Parshotam, details of
which were set out in the letter. Mr Parshotam responded in a letter dated
6 March 2020 in which, among other matters, he provided his factual response to
the complaints made against him. On 13 March 2020, the secretary of the Board
wrote to Mr Parshotam. The Board denied Mr Parshotam’s request to enjoy legal
representation at his hearing and that an independent chair should preside. The
Board invited Mr Parshotam to a hearing on 21 March 2020.
[36] The minutes of that hearing form part of the record, as also the hearing
framework that was used by the Board to conduct the hearing. The founding
affidavit also contains ‘the plea’ that Mr Parshotam submitted to the Board at the
hearing. Mr Parshotam at the hearing, after raising certain issues concerning the
capacity of the Board to act, specifically raised his complaint that , although he
had provided a response to the complaints tabled in the Board’s letter of
2 March 2020, he had not been given notice of the specific charges he was to face,
nor which rules he had broken. What transpired at the hearing was that the Board
put to Mr Parshotam as charges the very matters that were raised in the Board’s
letter of 2 March 2020. Mr Parshotam responded by way of reading out the
contents of his plea and submitting it to the Board.
[37] Mr Parshotam was given an opportunity to respond to the charges preferred
against him at the hearing. His plea contains his answers to the complaints,
19
originally raised against him in the Board’s letter of 2 March 2020. He was thus
given a hearing, of a kind, on the charges that the Board sought to level against
him. But the gravamen of the specification complaint lies elsewhere. In a
disciplinary hearing of such gravity, a renunciant, in the position of Mr
Parshotam, facing the possibility of expulsion from the Society, was entitled to
know, in advance, the charges he was to face. Mr Parshotam had responded to the
Board’s initial letter of complaint.
[38] Even if the Board considered that nothing of that response warranted any
change to the charges to be preferred, nevertheless Mr Parshotam should have
been given adequate notice of the precise content of the charges he was to face,
so that he could properly prepare for the hearing. That he anticipated that the
charges would replicate the original complaints raised in the letter of
2 March 2020 (because he alleged that the Board had already made up its mind)
does not alter the detriment. Fairness requires that the Board specify in advance,
with sufficient particularity, what charges Mr Parshotam must meet. The Board
did not do so. It acted unfairly and breached this basic rule of natural justice. I
observe that it matters not whether proper specification would have made any
difference. The observance of the rules of natural justice is not negated by what
is sometimes referred to as the no -difference principle. Mr Parshotam’s
complaint, on this ground, is well-founded.
[39] I turn next to the complaint that the Board did not adduce evidence to prove
the charges it had preferred, and hence there was nothing upon which Mr
Parshotam could exercise his right to cross-examine. I recognise, as the Board
submitted, that the disciplinary proceedings of the Board need not replicate the
procedures adopted in a court of law. There is no requirement to adopt adversarial
procedures; a less structured inquisitorial approach may be followed. However,
procedures; a less structured inquisitorial approach may be followed. However,
charges are not self -proving. They must b e proved by the complainant, in this
20
case the Society. The evidence may be documentary, by way of oral testimony ,
or both. But it is not fair to have put the charges to Mr Parshotam and then require
him to rebut the charges, without the evidence that is relied upon to prove the
charges.
[40] There are three related difficulties. First, a renunciant, in the position of Mr
Parshotam, facing charges the Board considered serious infractions, was entitled
to confront the witnesses who provided evidence against him. And if the evidence
is documentary in nature, to be able to challenge it. This right of confrontation is
basic to what it means to be fair and is of great utility for those who must
ultimately adjudicate and make findings of fact. Second, the procedure adopted
by the Board cast an onus up on Mr Parshotam to rebut the charges, without the
evidence adduced in substantiation of these charges. The complainant must
adduce evidence before a respondent is invited to put up his case. The Board
adopted a procedure to reverse the onus of proof. This too is unfair. Third, the
invitation to Mr Parshotam to exercise his right of cross -examination is entirely
illusory. What is the evidence relied upon to prove the charge s and which
witnesses will give this evidence? Without this, what is there to cross-examine?
[41] The Board, in each of these dimensions, failed to adhere to the rules of
natural justice. Mr Parshotam was entitled to know the evidence upon which the
Board relied to prove the charges. There need be no formality as to how the
evidence is adduced. But without it, Mr Parshotam was deprived of his right of
confrontation. This too breached essential rules of natural justice.
[42] Finally, in the sanctions decision, the Board relied upon what it called
‘historical misdemeanours’. It considered these to be aggravating circumstances.
Here too, there was a failure of natural justice. The Society submitted that the
Board considered cond uct of Mr Parshotam dating back to 2017, and his
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expulsion from the Board in 2019, which he did not contest. That did not avoid
the obligation to put this conduct to Mr Parshotam, in advance of the imposition
of a sanction, offer some account as to why the conduct constitutes an aggravating
circumstance relevant to sanction, and allow Mr Parshotam to respond. This is all
the more so, given the sanction of expulsion from the Society that was under
consideration by the Board. Here too fairness was not observed.
[43] It follows that the audi complaints are well-founded. Basic aspects of the
rules of natural justice that were of application under the Society’s constitution
to disciplinary proceedings of the kind brought against Mr Parshotam were not
observed. The impugned decisions were not fairly taken, and they must be
reviewed and set aside.
The duty of impartiality
[44] Mr Parshotam complains that the Board did not comply with its duty of
impartiality. The affidavits explain that the same members of the Board were
responsible for investigating the complaint against Mr Parshotam, prosecuting it,
and adjudicating the matter . He submits that the members of the Board cannot
carry out these three functions and comply with their duty of impartiality.
[45] A respondent in disciplinary proceedings, in the position of Mr Parshotam,
is entitled to require those responsible for adjudicating the matter to approach
their task with an open mind. The test, formulated by this Court,5 is ‘conspicuous
impartiality’, that it to say , there is no requirement to show that the adjudicator
actually lacks impartiality, rather the test is whether there is a reasonable
suspicion that this is so.
5 BTR Industries South Africa (Pty) Ltd v Metal and Allied Workers’ Union 1992(3) SA 673 (A) at 694 G-H.
22
[46] I am mindful of the prudent observations of this Court in De Lange v
Presiding Bishop of the Methodist Church of Southern Africa for the time being
and Another (De Lange) ,6 that the disciplinary proceedings of a private
association may be undertaken by office bearers of the association, and need not
be delegated to outside parties. That is true too of the Society. But if the
disciplinary proceedings are to be kept ‘in house’, there must be proper
consideration given to the manner in which such proceedings are to be conducted
to ensure that the duty of impartiality is secured.
[47] The difficulty that the Society faces is this. It was open to the Board to
conduct the disciplinary proceedings against Mr Parshotam using the members of
the Board. However, the members of the Board could not all be engaged upon, or
identify themselves with, the investigation, prosecution, and adjudication of the
complaints against Mr Parshotam. I do not need to consider whether the
assumption of these functions by all the members of the Board gave rise to actual
partiality. It suffices that the members of the Board , some of whom were
complainants and played a key role in the investigation of the charges against the
Mr Parshotam , failed to differentiate these functions, and this gave rise to a
reasonable suspicion of a want of impartiality. The se members could not
formulate the complaints against Mr Parshotam, consider his initial response,
prefer the charges against him, prosecute them, and then sit as impartial
adjudicators.
[48] Once members of the Board had a hand in supporting the complaints and
the bringing of the charges, which they did, they had failed to insulate themselves
from the adverse judgments that they had formed of Mr Parshotam’s conduct .
They could not then reasonably appear to bring an impartial mind to bear upon
6 De Lange v Presiding Bishop of the Methodist Church of Southern Africa for the time being and Another [2015]
ZACC 35; 2016 (1) BCLR 1 (CC); 2016 (2) SA 1 (CC) para 27.
23
the adjudication of the charges. This is a form of functional partiality. It does not
mean that any member of the Board was in any respect actually biased. Rather,
their assumption of all these functions in conducting the disciplinary proceedings
ousted them from retaining the reasonable appearance of conspicuous impartiality
in adjudicating the charges brought against Mr Parshotam.
[49] I do not venture upon how the Society may cure this defect of their process.
The members of the Board may effect a division of labour to divide the
responsibilities of investigation and prosecution, on the one hand, and
adjudication on the other. Happily, we were informed that there are sufficient new
members of the Board who now serve, and did not serve in 2020, so that this
should be possible to do. There were some disputes before us as to the power of
the Board to delegate certain of its disciplinary fun ctions to independent
outsiders. Whether that is possible need not detain us, given the division of
functionality that can be effected among the members of the Board.
[50] What I conclude on this aspect of the matter is that the Board did not satisfy
its duty of impartiality. A reasonable suspicion of partiality hung over the
disciplinary proceedings, and hence the rules of natural justice were not observed.
On this basis also, the impugned decisions must be reviewed and set aside.
The declaratory relief
[51] Mr Parshotam sought to persuade us, as he had the high court, that if the
Society’s appeal was not upheld, he should be granted the declaratory relief that
the high court declined to grant. Mr Parshotam asks us to declare that the Board
must comply with the basic principles of natural justice, and in particular that
‘affected persons’ must have fair prior notice of the allegations to be answered;
fair prior notice of any decision that may be made against them; that a reasonable
opportunity to make representations be given concerning such decision; and that
24
the disciplinary process be conducted by an impartial and independent decision-
maker. Counsel for Mr Parshotam submitted that these are not academic issues .
Rather, it was contended, the declaratory relief would ensure that, if Mr
Parshotam were again subjected to disciplinary proceedings, he would not suffer
unfairness, and the Board would know how to proceed.
[52] I do not consider that a proper case has been made out for the declaratory
relief sought. Mr Parshotam has raised in his review a number of procedural
irregularities that vitiated the fairness of the disciplinary proceedings brought
against him. I have mad e findings as to the defects of process of th ose
proceedings. I have no doubt that the Board, should it pursue further disciplinary
proceedings against Mr Parshotam, will cure these defects. To the extent that the
declaratory relief goes beyond the remit o f the issues raised in the review, there
is no warrant to decide abstract principles of fairness, devoid of the factual
circumstances in which the Board may seek to bring disciplinary proceedings.
The rules of natural justice are principles that must be applied in a manner that is
responsive to the facts. Without the charges, the manner in which they have been
brought, how the proceedings were conducted, and their likely consequence,
declaring principles at a high level of generality has neither utility, nor is there a
live controversy which they resolve. The high court was thus correct to decline
to grant the declaratory relief sought by Mr Parshotam.
Conclusion
[53] Although the Society has prevailed on the composition issue, the order of
the high court cannot be vacated because Mr Parshotam has succeeded on the
natural justice issue. The Society’s appeal is against the order of the high court.
That order, to review a nd set aside the impugned decisions, must stand because
Mr Parshotam’s review is sustained, though by reason of my finding that the
Mr Parshotam’s review is sustained, though by reason of my finding that the
impugned decisions were not taken in conformity with the rules of natural justice.
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Once that is so, th e Society’s eviction relief, seeking Mr Parshotam’s eviction
from the ashram, cannot be entertained. It follows that the Society’s appeal must
fail. So too, must Mr Parshotam’s cross-appeal, for the reasons given.
[54] There remains one further issue that arises concerning remedy. The high
court reviewed and set aside the impugned decisions. That was the order sought.
We raised with counsel whether that order should not be supplemented, by the
usual remedial consequence of a review – remitting the matter back to the Society.
Although this review is one of a private association, remittal is a remedy that
ordinarily reflects the limits of a court’s intervention upon the decision -making
of the party reviewed. That is the case in reviews of public bodies, and it should
be all the more so in the case of a private association. Remittal of the matter back
to the Society in no way binds it to bring the disciplinary proceedings afresh. The
Society will decide how best to proceed, i n the light of this judgment , and the
passage of time. I consider remittal to be a proper supplementation of the order
granted by the high court.
[55] As to costs, Mr Parshotam has been successful in respect of the review, and
he is entitled to the costs of the appeal. The Society has been successful in having
the cross appeal dismissed, and it is entitled to those costs. Two counsel acted for
Mr Parshot am and the Society. The appeal warranted the employment of two
counsel.
[56] In the result, the following order is made:
1 Subject to paragraph 2 below, the appeal is dismissed with costs, including
the costs of two counsel.
2 Paragraph 93 of the high court’s order is amended to add the following
after paragraph 1:
26
‘The disciplinary proceedings brought by the first respondent against the
applicant are remitted to the first respondent.’
3 The cross -appeal is dismissed with costs, including the costs of two
counsel.
_____________________
D N UNTERHALTER
JUDGE OF APPEAL
27
Appearances
For the appellant: I Pilay SC with him I Veerasamy
Instructed by: Cox Yeats Attorneys, Durban
McIntyre van der Post Inc., Bloemfontein
For the respondent/
cross-appellant: S Pudifin-Jones with her C J Moodley
Instructed by: Anand-Nepaul Attorneys, Durban
Honey Attorneys Inc., Bloemfontein.