South Africa is a richly diverse society, and this statement pertains to religious diversity as well. As is the case in any religiously diverse society, it is inevitable that members of different religious communities who hold different religious views and have practices will experience conflicts within, but also outside of these communities. Often these disputes end up in court, and although it is widely accepted that courts, and even the state, should not force religious associations to exercise their religion in a particular way, they are not automatically exempt from procedural constitutional and other legislative provisions and measures.
Recently the Port Elizabeth High Court in the case of Fortuin v Church of Christ Mission of the Republic of South Africa and Others (3626/15)  ZAECPEHC 18 was confronted with a case where a religious minister sought judicial review of the church’s decision to disfellowship him from the performance of his pastoral duties as an ordained minister of his church. This case emphasised important aspects that have frequently emanated from especially disciplinary action by religious associations and from which religious associations can learn valuable lessons.
The first aspect that arose from the said case focused on the power of a court to review decisions taken by a church and the element of fairness. In order to establish whether the respondents in the Fortuin case followed fair or equitable procedures as contemplated in their own constitution, the court embarked on an investigation into the powers to review a decision taken by a religious association. In this regard the applicant argued that the court has common law jurisdiction to review the decision of a domestic tribunal where it has disregarded its own rules or where the fundamental principles of fairness have not been adhered to. The court consequently held there was ample authority to empower it to intervene in the decision because fundamental principles of fairness had been flouted. It was clear from the evidence that the church failed to follow procedural fairness as required by its own constitution and consequently the court set aside the decision by the church to disfellowship and suspend the applicant. Therefore the Fortuin case aligned itself with numerous cases that have supported the understanding that civil courts have the authority to interpret a church order and to adjudicate accordingly. However, the position is generally supported by the courts that courts should act with deference in respect of church customs, doctrine and interpretations.
This view was further supported in a recent judgment in the case of Bishop Ngewu and the Anglican Church of Southern Africa. The KwaZulu-Natal High Court in Pietermaritzburg in Bishop Mlibo Ngewu v The Anglican Church of Southern Africa and Ten Others  ZAKZPHC 88 confirmed the view that:
It is common cause between the parties that this court can review proceedings of the Church if there has been non-compliance with the Church’s Constitution and/or Canons or with the principles of natural justice. (Para. )
A second important aspect that was evident in the Fortuin case, but which did not attract as much attention by the court, was the requirement that the church exercise its powers and authority in accordance with the relevant church order or constitution. If the church exceeds its powers, the decision will be unlawful and can be set aside by a court. In Fortuin the applicant argued that the church acted unlawfully since “the Church’s National Assembly is the highest decision making body that is competent to take such a resolution and it in fact never took such a resolution at any of its Annual Assemblies that he attended” (para. ). The applicant argued that the church lacked the necessary authority to make such a decision and that it should be set aside. It was clear from the facts before the court that the applicant was merely informed of his suspension during a church conference. The church could not present any evidence of the fact that a disciplinary hearing was conducted. It could be argued that the church did not exercise its disciplinary powers in accordance with the provisions of the church order and thus exceeded its powers. The decision would therefore be unlawful and could be set aside.
The last element that came before the court in Fortuin was the important aspect of procedural fairness, also called the principle of natural justice, and this discussion focused in particular on the aspect of audi alteram partem as the minimum requirements for a fair hearing.In accordance with this principle an accused person must at least receive adequate notice of the case against him and be given a reasonable opportunity to state his case. In terms of our common law a person involved in a disciplinary hearing is entitled “to have the charge clearly formulated with sufficient particularity in such a manner as will leave him/her under no misapprehension as to the specific act or conduct to be investigated”. In Fortuin the applicant contended that the actions of the church had been in contravention of the tenets of natural justice and that he had had the right to be heard before the church could properly take a decision to disfellowship him. It was clear from the evidence that the church had failed to comply with fair processes as required by its own constitution. The decision of the respondents to disfellowship the applicant from the performance of his duties as minister of the Bloemendal Church was therefore set aside.
With reference to Fortuin this discussion has highlighted various important principles that a church needs to comply with in the exercising of its powers. Religious associations must make sure that they follow their own rules and procedures and that their internal church orders and rules provide for the necessary procedural guarantees in order to give effect to the basic requirements of a fair hearing.
Keywords: disciplinary hearing; domestic tribunal; judicial review; lawfulness; legal disputes; procedural fairness; religious association
Lees die volledige artikel in Afrikaans: Regsgeskille en die kerk: lesse te leer uit die saak van Johannes Fortuin en die Church of Christ Mission