Fortuin v Church of Christ Mission of the RSA (3626/15) [2016] ZAECPEHC 18 (5 May 2016) per FY Renqe AJ.
The applicant was ‘dis-fellowshipped’ because he divorced his wife and married someone else. He was entitled to a fair hearing before any decision was made. The Church failed to follow fair processes as required by its own Constitution. The Court held there was ample authority to empower it to interfere with the decision because fundamental principles of fairness had been flouted. The issue was whether the tribunal was competent to make that decision and whether it complied with the requirements of procedural and substantive fairness. This limits the powers to whether the procedure or decision taken was tainted by irregularity or illegality. The decision in Theron v Ring van Wellington van die NG Sending Kerk in SA confirmed that a reasonableness test based on rationality was a competent basis under the common law powers to review decisions of voluntary associations.
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“[18] I now turn my attention to the powers of the court to review a decision taken by a church. Counsel for the respondent argued that the crisp question to be decided in this matter is whether or not the decision of the first respondent is that of a tribunal or officer performing judicial, quasi-judicial or administrative function in terms of Rule 53 (1) of the Uniform Rules. Counsel for the applicant argued that this court has common law jurisdiction to review the decision of a contractual or domestic tribunal and the court will interfere and review the proceedings of such tribunal where it has disregarded its own rules or the fundamental principles of fairness have not been adhered to. See Turner v Jockey Club of SA 1974 (3) SA 633 where the following was stated at page 644 paragraphs G-H,
‘The Tribunal is required to listen fairly to both sides and to observe “the principles of fair play” (Marlin’s case, supra at pages 126 and 128). 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 (Dabner v SA Railway and Harbours, 1920 AD 583 at page 589). They require also that the tribunal’s findings of the facts on which its decision is based shall be “fair and bona fide” (Jockey Club of SA v Transvaal Racing Club, supra at p.450) it is, in other words, “under an obligation” to act honestly and in good faith (Maclean v Workers’ Union supra at page 623)’.