Religious institutions and the review jurisdiction of the courts

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The right to just administrative action can be enforced by means of judicial review, which is described as the power of the courts to scrutinise administrative decisions. Before a decision can be reviewed, a valid ground of review must be present and a person who is unhappy with an administrative decision can challenge the decision in court. The person can rely on the fact that the decision is a violation of the right to just administrative action. If the court finds that the decision is unlawful, unreasonable or procedurally unfair it can make any of a number of possible orders to rectify the situation. The right to just administrative action as set out in section 33 of the Constitution and the Promotion of Administrative Justice Act 3 of 2000 (PAJA) both require the exercise of a public power. Since religious institutions and domestic tribunals seldom exercise public powers in the exercise of their functions, the question that needs to be answered is when and how the review of private functions and the actions and decisions of religious organisations take place and on what basis.

Cases such as De Vos v Die Ringskommissie van die Ring van die NG Kerk, Bloemfontein1; Odendaal v Kerkraad van die Gemeente Bloemfontein-Wes van die NG Kerk in OVS2 and Theron v Ring van Wellington van die NG Sendingkerk in Suid-Afrika3 confirm the position and serve as authority for the fact that civil courts do have the authority to interpret a church order and to act accordingly. In relation to the applicability of administrative law principles, the South African courts have always been willing to review not only the actions of public bodies but also the decisions of private entities. Judicial review was often limited to the rules of natural justice, particularly in the context of religious institutions. The principles of natural justice were applicable, it was argued, because these domestic tribunals “wield powers as great as, if not greater than, any exercised by courts of law. They can deprive a man of his livelihood.”4

It is possible to subject private actors to the requirements of lawfulness, procedural fairness and rationality, albeit these duties are sometimes imposed through the medium of contract.5 In Theron v Ring van Wellington6, a case involving disciplinary proceedings in a church, Jansen JA held that, as a general rule, the same principles applied whether decisions of statutory or contractual bodies were under review. The only difference is that in the first instance the starting point is the intention of the legislature, while in the second it is the intention of the parties. Turner v Jockey Club of South Africa7exemplifies the intersection of contract and administrative law. In this casethe appellant, a jockey, had been disciplined for allegedly bribing an apprentice jockey to “pull” a horse. He challenged the validity of his conviction and the sentence imposed on him in disciplinary proceedings conducted by organs of the respondent. Botha JA set out the principles applicable to the control of the power exercised by the Jockey Club in the following terms: "In the case of a statutory tribunal its obligation to observe the elementary principles of justice derives from the expressed or implied terms of the relevant enactment while in the case of tribunal created by contract, the obligation derives from the expressed or implied terms of the agreement between the persons affected.”

It must be noted that this case was argued and decided on the basis of implied contractual terms; it did not deal with whether public law control could have been imposed on the Jockey Club in the absence of a contract between it and an aggrieved party, or whether the principles of lawfulness, reasonableness and procedural fairness had been excluded by express provisions. The fundamental principles of justice referred to by Botha JA are essentially similar to the grounds of review in administrative law. In Turner the focus was on the rules of natural justice – that a domestic tribunal, while free to regulate its own procedure, had to ensure a proper hearing in which the “accused” had an opportunity to adduce evidence and correct or gainsay prejudicial statements or allegations made against him or her; that it was required to hear both sides of the dispute fairly; and that it had to observe the “principles of fair play”.8 On the substantive level, a domestic tribunal is required to discharge its duties honestly and impartially and its findings must be “fair and bona fide”: in short, such a body is “under an obligation to act honestly and in good faith”.9

The next question is what the impact of the new constitutional order is on the review jurisdiction of the courts in relation to private functions. As to the Interim Constitution, a majority of the Constitutional Court held in Du Plessis v De Klerk10 that, in general, the Bill of Rights in the Interim Constitution bound the State but not private persons: the Bill of Rights applied directly to all legislation and to common law of a public law nature but not to common law of a private nature.11 Kentridge AJ concluded that “Chapter 3 does not have direct horizontal application but that it may and should have an influence on the development of the common law as it governs relations between individuals.”12 Observation from the above case is that all judges accepted the need for some form of constitutional control of private power. They had different views on whether that control was to be exercised through the direct application of the Bill of Rights to private relationships or indirectly through the development of a constitutionally compatible common law. Mohamed DP's judgment is particularly important in this respect because of his concern that the Constitution should control private exercise of power.13

Section 8(2) of the 1996 Constitution now provides for horizontal application of the Bill of Rights in appropriate circumstances. The effect of section 8(2) is that the freedom of the individual to exercise private power as he or she deems fit has been reduced. It is reduced when, and to the extent that, the power is such that it is appropriate to subject it to the constitutional control by using the means provided for by section 8(3). For administrative law, that raises the possibility of the horizontal application of the right to just administrative action. This will be the case if a public power or function is exercised or performed in such a way that the values of the Constitution are undermined and offended by it, and if private law or any other source does not provide an alternative effective method of control. It is likely that it is the type of power or function that should be subjected to review for lawfulness, reasonableness and procedural fairness.

In relation to PAJA, section 1 defines the term administrative action in both governmental and private contexts. The legislation has in this way recognised that section 33 of the Constitution can be applied horizontally and can thus bind natural or juristic persons who are not organs of the state when they exercise powers or perform functions of an administrative nature. Hoexter14 further takes the view that section 39 of the Constitution provides for the indirect horizontal application of the Bill of Rights and it is seen as “constitutional authority to set public-law standards for ‘private administrators’ to follow where coercive power is being exercised or where the relationship is one of inequality”. In Taylor v Kurtstag15, Malan J supported the view of Rautenbach en Malherbe,16 in that administrative law principles are applicable to unequal relationships, particularly in the context of disciplinary actions within religious institutions because these relationships are based on “principles that are applicable to the application of general rules to individual cases in all unequal relationships”.17 Claassen J in Klein v Dainfern College18 is of the view that the review of private functions is not per se excluded from the Constitution.19 This view is supported, and it seems that under the new constitutional dispensation the common law, but only in the field described as “private administrative law”, is not excluded. This view is further supported by a recent judgment in Fortuin v Church of Christ Mission of the Republic of South Africa,20 where the court was confronted with a case where a religious minister sought judicial review of the church’s decision to prevent him from the performance of his pastoral duties as an ordained minister of his church. An important fact that arose from the 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 of 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 interfere with 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 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 by means of judicial review. However, generally the courts are in favour of the view that they should act with deference in respect of church customs, doctrine and interpretations.

Keywords: administrative law; common law; disciplinary action; judicial review; private functions; religious institutions

Lees die volledige artikel in Afrikaans: Geloofsinstellings en die hersieningsbevoegdheid van die howe

End notes

1 De Vos v Die Ringskommissie van die Ring van die NG Kerk, Bloemfontein 1952 2 SA 83 (O).

2 Odendaal v Kerkraad van die Gemeente Bloemfontein-Wes van die NG Kerk in OVS 1960 1 SA 160 (O).

3 Theron v Ring van Wellington van die NG Sendingkerk in Suid-Afrika 1976 2 SA 1 (HHA).

4 Soos aangehaal in Pretorius (2002:376).

5 Baxter (1984:540) verduidelik dit soos volg: “Although the basis upon which the powers of private bodies rest is the contractual and not statutory, such bodies are often in a position to act just as coercively as public authorities and their decisions often have far reaching effects. Many of the principles of administrative law are designed to protect individuals from abuse of power. For this reason they are applied in almost identical form to these private bodies, and administrative law has itself drawn much from decisions involving domestic tribunals.”

6 Theron v Ring van Wellington.

7 Turner v Jockey Club of SA 1974 3 SA 633 (A).

8 Turner v Jockey Club 646F–G.

9 Turner v Jockey Club 646H.

10 Du Plessis v De Klerk 1996 5 BCLR 658 (KH).

11 Du Plessis v De Klerk 684G–684A.

12 Du Plessis v De Klerk 692H.

13 Plasket (2002:187).

14 Hoexter (2007:124).

15 Taylor v Kurtstag 2005 1 SA 362 (W).

16 Rautenbach en Malherbe (2004:201–5 vn. 174, soos aangehaal in Taylor v Kurtstag par. 42).

17 Taylor v Kurtstag par. 42.

18 Klein v Dainfern College par. 23.

19 Hy verklaar: “The extension of judicial review to domestic tribunals exercising public powers does not, however, mean that judicial review is now limited to such instances. Such extension did not, in my view, extinguish the courts’ powers of judicial review in instances where coercive actions of domestic tribunals not exercising public powers are at stake ... No rational reason exists to exclude individuals from the protection of judicial review in the case of coercive actions by private tribunals not exercising any public power. To my mind the Constitution makes no pronouncements in respect of this branch of private administrative law. Thus, continuing to apply the principles of natural justice to the coercive actions of private tribunals exercising no public powers will in no way be abhorrent to the spirit and purport of the Constitution.”

20 Fortuin v Church of Christ Mission of the Republic of South Africa (3626/15) [2016] ZAECPEHC 18.

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