Organisations that discipline or expel members cannot assume that, because they are voluntary associations, they are free to dispense with basic procedural fairness. In a recent judgment, the Supreme Court of Appeal (SCA) reaffirmed that disciplinary decisions by private bodies may be reviewed where they depart from the body’s own constitution or the principles of natural justice.
Although the case concerned a religious society rather than an employer, the Court’s observations have wider significance. The judgment confirms that fairness is context-specific rather than formulaic, but members facing serious sanctions should generally be told in advance what charges they must meet, what evidence supports those charges, and have their case decided by an impartial decision-maker.
The case arose after the Divine Life Society of South Africa revoked the membership of a renunciant, Avinash Parshotam, following disciplinary proceedings in 2020. Parshotam challenged both the findings against him and the sanctions imposed, arguing that the board of management had not been properly constituted and that the disciplinary process breached the rules of natural justice.
The KwaZulu-Natal High Court ruled in his favour on the board-composition issue but held that natural justice did not apply because the Society’s constitution did not incorporate those principles.
The SCA reached a different conclusion. It found that the board had, in fact, been properly constituted, overturning the High Court on that point. Nevertheless, it dismissed the Society’s appeal because the disciplinary proceedings themselves failed to meet the requirements of procedural fairness. It also remitted the matter to the Society, leaving it to decide whether to pursue fresh disciplinary proceedings in light of the judgment.
Fairness is a fundamental requirement
Writing for a unanimous Court, Judge of Appeal David Unterhalter reaffirmed that courts may review disciplinary decisions taken by private bodies where they fail to comply with established standards of fairness.
“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.”
The SCA rejected the High Court’s conclusion that natural justice had been excluded simply because it was not expressly incorporated into the Society’s constitution. Instead, it held that, at least in relation to the Society’s power to expel a renunciate, the constitution had tacitly adopted the rules of natural justice.
As Unterhalter JA observed: “…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.”
What procedural fairness required
The SCA found several fundamental defects in the disciplinary process.
First, Parshotam was not given adequate notice of the precise charges before the hearing. Although he had responded to an earlier letter outlining complaints, the board never formally particularised the charges he would have to answer.
Unterhalter JA said: “Fairness requires that the board specify in advance, with sufficient particularity, what charges Mr Parshotam must meet.”
He added that it did not matter whether better notice would ultimately have changed the outcome; compliance with the rules of natural justice is not defeated by a “no-difference” argument.
Second, although the SCA accepted that disciplinary proceedings need not replicate court procedures and may instead adopt a less structured inquisitorial approach, it said a member facing serious charges was nevertheless entitled to know and test the evidence relied upon.
“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.”
The board’s procedure, however, denied Mr Parshotam that opportunity. Having led no evidence to prove the charges before calling on him to respond, the board effectively reversed the onus of proof.
Unterhalter JA observed: “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 charges, and which witnesses will give this evidence? Without this, what is there to cross-examine?”
It also criticised the board for relying on “historical misdemeanours” as aggravating factors when deciding on sanction without first putting those matters to him and giving him an opportunity to respond.
Impartiality matters
One of the judgment’s governance observations concerns the separation of functions in disciplinary proceedings.
The SCA accepted that disciplinary proceedings need not be outsourced and may remain “in house”. However, it held that where the same decision-makers investigate complaints, formulate or support charges, prosecute them, and then adjudicate them, the process may create a reasonable suspicion of partiality. The Court noted that an internal division of functions among board members would ordinarily address that concern.
The judgment explained that the test is not whether decision-makers were actually biased, but whether “there is a reasonable suspicion” that they lacked impartiality. On the facts, the board members’ assumption of multiple roles deprived them of “the reasonable appearance of conspicuous impartiality”.
Broader governance lessons
Although the dispute arose within a religious organisation, employment lawyers at Cliffe Dekker Hofmeyr say the judgment has broader implications for clubs, professional bodies, and other voluntary associations that exercise disciplinary powers.
The firm notes that organisations exercising disciplinary powers should ensure that charges are clearly formulated in advance, that allegations are supported by evidence capable of being challenged, that aggravating factors are disclosed before sanction is imposed, and that investigative and adjudicative functions are appropriately separated.
The SCA’s judgment illustrates how established principles of natural justice continue to apply when private organisations exercise significant disciplinary powers. At the same time, the Court respected the Society’s autonomy by remitting the matter for reconsideration rather than substituting its own decision, reinforcing that judicial intervention is directed at ensuring a fair process rather than dictating the outcome.
Click here to download the judgment
